title: Case C-246/07: Action brought on 22 May 2007 — Commission of the European Communities v Kingdom of Sweden

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/19

         Action brought on 22 May 2007 — Commission of the European Communities v Kingdom of Sweden
   (Case C-246/07)
   (2007/C 183/31)
   Language of the case: Swedish
   Parties

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

      Defendant: Kingdom of Sweden
   Form of order sought

               —

               Declare that, by proposing unilaterally that a substance, PFOS (perfluorooctane sulphate), be added to Annex A to the Stockholm Convention on persistent organic pollutants, the Kingdom of Sweden has failed to fulfil its obligations under Article 10 EC and Article 300(1) EC;

               —

               order the Kingdom of Sweden to pay the costs.

         Pleas in law and main arguments
   Sweden has proposed unilaterally that a substance, PFOS (perfluorooctane sulphate), be added to Annex A to the Stockholm Convention on persistent organic pollutants.
   The Commission claims that Sweden's unilateral proposal of PFOS meant that the EC's international representation was divided. Sweden acted unilaterally with regard to PFOS despite the fact that Sweden was aware that the Community was engaged in drafting legislation which included that substance. Sweden's action meant that the Community and Member States could not jointly present proposals for additions to the Stockholm Convention. Thus Sweden has failed to fulfil its obligations under Articles 10 EC and 300(1) EC.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 1 February 1996 in Case C-177/94 (reference for a preliminary ruling from the Pretura Circondariale, Rome, Sezione Distaccata di Frascati): criminal proceedings against Gianfranco Perfili (Freedom of establishment - Freedom to provide services - Judicial procedure - Discrimination)

text:
No C 108/2               EN                    Official Journal of the European Communities                                     13 . 4 . 96
      that provision, that omission does not prevent the                                  JUDGMENT OF THE COURT
      national customs authority from considering the                                              ( Sixth Chamber)
      application with reference to that provision.
                                                                                of 1 February 1996
                                                                          in Case C-280/94 ( reference for a preliminary ruling from
(') OJ No C 18 , 21 . 1 . 1994 .
                                                                          the Centrale Raad van Beroep ): Y. M. Posthuma
                                                                          van Damme v. Bestuur van de Bedrijfsvereniging voor
                                                                          Detailhandel, Ambachten en Huisvrouwen, and N. Oztürk
                                                                          v. Bestuur van de Nieuwe Algemene Bedrijfsvereniging (')
                                                                          (Equal treatment for men and women — Social security —
                                                                          Directive 79/7/EEC — Interpretation of the judgment of
                                                                          24 February 1994 in Case C-343/92 De Weerd, née Roks,
                                                                                and Others)
               JUDGMENT OF THE COURT
                                                                                ( 96/C 108/03 )
                          ( Sixth Chamber )
                        of 1 February 1996
in Case C-l 77/94 ( reference for a preliminary ruling                                     (Language of the case: Dutch)
from the Pretura Circondariale, Rome, Sezione Distaccata
di Frascati ): criminal proceedings against Gianfranco
                                 Perfili ( 1 )
(Freedom of establishment — Freedom to provide services                   (Provisional translation; the definitive translation will be
           — Judicial procedure — Discrimination)                                   published in the European Court Reports)
                             { 96/C 108/02 )
                                                                          In Case C-280/94 : reference to the Court under Article 177
                 (Language of the case: Italian)                          of the EC Treaty from the Centrale Raad van Beroep
                                                                          ( Higher Social Security Court ) for a preliminary ruling in the
(Provisional translation; the definitive translation will be              proceedings pending before that court between
                                                                          Y.    M.   Posthuma-van        Damme     and Bestuur    van    de
          published in the European Court Reports)
                                                                          Bedrijfsvereniging voor Detailhandel, Ambachten en
                                                                          Huisvrouwen, and, on the other hand, between N. Oztiirk
In Case C-177/94 : reference to the Court under Article 177               and Bestuur van de Nieuwe Algemene Bedrijfsvereniging —
of the EC Treaty from the Pretura Circondariale ( District                on the interpretation of Council Directive 79/7/EEC of
Magistrate's Court ), Rome, Sezione Distaccata di Frascati                 19 December 1978 on the progressive implementation of
 ( Frascati Division) for a preliminary ruling in the criminal            the principle of equal treatment for men and women in
proceedings pending before that court against Gianfranco                  matters of social security ( OJ 1979 L 6 , p . 24 ) — the Court
Perfili, civil party: Lloyd's of London — on the                           ( Sixth Chamber ), composed of: C. N. Kakouris, President of
interpretation of Articles 3 , 5 and 6 of the EC Treaty and               the Chamber, G. Hirsch, G. F. Mancini , F. A. Schockweiler
Article 6 of the European Convention for the protection of                 ( Rapporteur ) and H. Ragnemalm, Judges; N. Fennelly,
human rights and fundamental freedoms of 4 November                       Advocate-General; H. A. Riihl, Principal Administrator, for
 1950, the Court ( Sixth Chamber ), composed of:                          the Registrar, has given a judgment on 1 February 1996 , in
 C. N. Kakouris, President of the Chamber, G. F. Mancini,                 which it rules :
 F. A. Schockweiler ( Rapporteur ), J. L. Murray and
 H. Ragnemalm, Judges; P. Léger, Advocate-General ;
 R. Grass, Registrar, gave a judgment on 1 February 1996 ,
                                                                           Article 4 (1 ) of Council Directive 79/7/EEC of 19 December
 the operative part of which is as follows :
                                                                           1978 on the progressive implementation of the principle of
                                                                           equal treatment for men and women in matters of social
 Article 6 of the EC Treaty in conjunction with Articles 52                security does not preclude the application of national
 and 59 thereof, laying down the principle of non                         legislation which makes receipt of a benefit for incapacity
 discrimination on the grounds of nationality, must be                     for work subject to the requirement of having received a
  interpreted as not precluding a Member State's legislation               certain income from or in connection with work in the year
 from requiring a victim of a criminal offence who wishes to               preceding the commencement of incapacity, even if it is
  bring suit as a civil party in criminal proceedings to grant his         established that that requirement affects more women than
                                                                           men .
  representative a special power of attorney, even when the
  law of the Member State of which the victim is a national
  does not lay down such a formality.
                                                                            (') OJ No C 351 , 10 . 12 . 1994 .
  C ) OJ 1994 C 233 , 20 . 8 . 1994 .


title: Judgment of the Court (Fifth Chamber) of 8 May 2003 in Case C-111/01 (Reference for a preliminary ruling from the Oberster Gerichtshof): Gantner Electronic GmbH v Basch Exploitatie Maatschappĳ BV (Brussels Convention — Article 21 — Lis pendens — Set-off)

text:
21.6.2003                 EN                           Official Journal of the European Union                                                C 146/7
p. 1), the Court, composed of: J.-P. Puissochet, President of the                                JUDGMENT OF THE COURT
Sixth Chamber, acting for the President, M. Wathelet and
C. W. A. Timmermans, Presidents of Chambers, C. Gulmann,
D. A. O. Edward, P. Jann, F. Macken, S. von Bahr and                                                      (Fifth Chamber)
J. N. Cunha Rodrigues (Rapporteur), Judges; P. Léger, Advocate
General; M.-F. Contet, Principal Administrator, for the Regis-                                             of 8 May 2003
trar, has given a judgment on 6 May 2003, in which it has
ruled:
                                                                               in Case C-111/01 (Reference for a preliminary ruling from
                                                                               the Oberster Gerichtshof): Gantner Electronic GmbH v
                                                                                Basch Exploitatie Maatschappij BV ( 1)
1.    A colour per se, not spatially delimited, may, in respect of
      certain goods and services, have a distinctive character within
      the meaning of Article 3(1)(b) and Article 3(3) of First Council         (Brussels Convention — Article 21 — Lis pendens — Set-
      Directive 89/104/EEC of 21 December 1988 to approximate                                                     off)
      the laws of the Member States relating to trade marks, provided
      that, inter alia, it may be represented graphically in a way that                                   (2003/C 146/11)
      is clear, precise, self-contained, easily accessible, intelligible,
      durable and objective. The latter condition cannot be satisfied
      merely by reproducing on paper the colour in question, but may                               (Language of the case: German)
      be satisfied by designating that colour using an internationally
      recognised identification code.                                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
2.    In assessing the potential distinctiveness of a given colour as a
      trade mark, regard must be had to the general interest in not
      unduly restricting the availability of colours for the other traders
      who offer for sale goods or services of the same type as those in        In Case C-111/01: Reference to the Court under the Protocol
      respect of which registration is sought.                                 of 3 June 1971 on the interpretation by the Court of Justice of
                                                                               the Convention of 27 September 1968 on Jurisdiction and the
                                                                               Enforcement of Judgments in Civil and Commercial Matters
3.    A colour per se may be found to possess distinctive character            by the Oberster Gerichtshof (Austria) for a preliminary ruling
      within the meaning of Article 3(1)(b) and Article 3(3) of                in the proceedings pending before that court between Gantner
      Directive 89/104, provided that, as regards the perception of            Electronic GmbH and Basch Exploitatie Maatschappij BV,
      the relevant public, the mark is capable of identifying the              on the interpretation of Article 21 of the abovementioned
      product or service for which registration is sought as originating       Convention of 27 September 1968 (OJ 1972 L 299, p. 32), as
      from a particular undertaking and distinguishing that product            amended by the Convention of 9 October 1978 on the
      or service from those of other undertakings.                             accession of the Kingdom of Denmark, Ireland and the United
                                                                               Kingdom of Great Britain and Northern Ireland (OJ 1978
                                                                               L 304, p. 1, and — amended text — p. 77), by the Convention
4.    The fact that registration as a trade mark of a colour per se is         of 25 October 1982 on the accession of the Hellenic Republic
      sought for a large number of goods or services, or for a specific        (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on
      product or service or for a specific group of goods or services, is      the accession of the Kingdom of Spain and the Portuguese
      relevant, together with all the other circumstances of the               Republic (OJ 1989 L 285, p. 1) and by the Convention of
      particular case, to assessing both the distinctive character of the      29 November 1996 on the accession of the Republic of
      colour in respect of which registration is sought, and whether           Austria, the Republic of Finland and the Kingdom of Sweden
      its registration would run counter to the general interest in not        (OJ 1997 C 15, p. 1), the Court (Fifth Chamber), composed
      unduly limiting the availability of colours for the other operators      of: M. Wathelet (Rapporteur), President of the Chamber,
      who offer for sale goods or services of the same type as those in        C.W.A. Timmermans, A. La Pergola, P. Jann and S. von Bahr,
      respect of which registration is sought.                                 Judges; P. Léger, Advocate General; M.-F. Contet, Principal
                                                                               Administrator, for the Registrar, has given a judgment on
                                                                               8 May 2003, in which it has ruled:
5.    In assessing whether a trade mark has distinctive character
      within the meaning of Article 3(1)(b) and Article 3(3) of
      Directive 89/104, the competent authority for registering trade          Article 21 of the Convention of 27 September 1968 on Jurisdiction
      marks must carry out an examination by reference to the actual           and the Enforcement of Judgments in Civil and Commercial Matters,
      situation, taking account of all the circumstances of the case           as amended by the Convention of 9 October 1978 on the accession
      and in particular any use which has been made of the mark.               of the Kingdom of Denmark, Ireland and the United Kingdom of
                                                                               Great Britain and Northern Ireland, by the Convention of 25 October
                                                                               1982 on the accession of the Hellenic Republic, by the Convention
                                                                               of 26 May 1989 on the accession of the Kingdom of Spain and the
( 1) OJ C 200 of 14.7.2001.                                                    Portuguese Republic, and by the Convention of 29 November 1996
                                                                               on the accession of the Republic of Austria, the Republic of Finland
                                                                               and the Kingdom of Sweden, must be construed as meaning that, in
                                                                               order to determine whether two claims brought between the same
                                                                               parties before the courts of different Contracting States have the same
 ---pagebreak--- C 146/8                  EN                          Official Journal of the European Union                                               21.6.2003
subject-matter, account should be taken only of the claims of the                              JUDGMENT OF THE COURT
respective applicants, to the exclusion of the defence submissions
raised by a defendant.
                                                                                (Fifth Chamber)
( 1) OJ C 134 of 5.5.2001.
                                                                                of 3 April 2003
                                                                             in Case C-116/01 (Reference for a preliminary ruling from
                                                                             the Raad van State): SITA EcoService Nederland BV,
                                                                             formerly Verol Recycling Limburg BV v Minister van
                                                                             Volkshuisvesting, Ruimtelijke Ordening en Milieu-
                  JUDGMENT OF THE COURT                                                                     beheer (1)
                          (Sixth Chamber)                                    (Environment — Waste — Regulation (EEC) No 259/93 —
                                                                             Directive 75/442/EEC — Treatment of waste in several
                                                                             stages — Use of waste as fuel in the cement industry and
                            of 8 May 2003
                                                                             use of incineration residues as raw material in cement
                                                                             manufacture — Classification as a recovery operation or as
in Case C-113/01 (Reference for a preliminary ruling from                    a disposal operation — Concept of the use of waste princi-
     the Högsta förvaltningsdomstolen): Paranova Oy (1)                             pally as a fuel or other means to generate energy)
(Interpretation of Article 28 EC and Article 30 EC —                                                    (2003/C 146/13)
Medicinal products — Withdrawal of parallel import licence
in consequence of waiver of the marketing authorisation for
               the medicinal product of reference)                                                (Language of the case: Dutch)
                           (2003/C 146/12)                                   (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                    (Language of the case: Swedish)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           In Case C-116/01: Reference to the Court under Article 234
                                                                             EC by the Raad van State (Netherlands) for a preliminary ruling
                                                                             in the proceedings pending before that court between SITA
                                                                             EcoService Nederland BV, formerly Verol Recycling Limburg
In Case C-113/01: Reference to the Court under Article                       BV and Minister van Volkshuisvesting, Ruimtelijke Ordening
234 EC by Högsta förvaltningsdomstolen (Finland) for a                       en Milieubeheer, on the interpretation of Council Directive 75/
preliminary ruling in the proceedings pending before that                    442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as
court brought by Paranova Oy on the interpretation of                        amended by Council Directive 91/156/EEC of 18 March 1991
Article 28 EC and Article 30 EC, the Court (Sixth Chamber),                  (OJ 1991 L 78, p. 32) and Commission Decision 96/350/EC
composed of: J.-P. Puissochet, President of the Chamber,                     of 24 May 1996 (OJ 1996 L 135, p. 32), the Court
C. Gulmann (Rapporteur), F. Macken, N. Colneric and                          (Fifth Chamber), composed of: M. Wathelet, President of the
J.N. Cunha Rodrigues, Judges; F.G. Jacobs, Advocate General;                 Chamber, C.W.A. Timmermans, A. La Pergola (Rapporteur),
H.A. Rühl, Principal Administrator, for the Registrar, has given             P. Jann and A. Rosas, Judges; F.G. Jacobs, Advocate General;
a judgment on 8 May 2003, in which it has ruled:                             M.-F. Contet, Principal Administrator, for the Registrar, has
                                                                             given a judgment on 3 April 2003, in which it has ruled:
Article 28 EC and Article 30 EC preclude national legislation under
which the withdrawal, at the request of its holder, of a marketing           1.    Where a waste treatment process comprises several distinct
authorisation of reference of itself entails the withdrawal of the                 stages, it must be classified as a disposal operation or a recovery
parallel import licence granted for the medicinal product in question.             operation within the meaning of Council Directive 75/442/
However, those provisions do not preclude restrictions on parallel                 EEC of 15 July 1975 on waste, as amended by Council
imports of the medicinal product in question where there is in fact a              Directive 91/156/EEC of 18 March 1991 and by Commission
risk to the health of humans as a result of the continued existence of             Decision 96/350/EC of 24 May 1996, for the purpose
that medicinal product on the market of the importing Member State.                of implementing Council Regulation (EEC) No 259/93 of
                                                                                1 February 1993 on the supervision and control of shipments
                                                                                of waste within, into and out of the European Community, as
( 1) OJ C 150 of 19.5.2001.
                                                                                amended by Council Regulation (EC) No 120/97 of 20 January
                                                                                1997, taking into account only the first operation that the
                                                                                waste is to undergo subsequent to shipment;


title: Case F-99/15: Action brought on 6 July 2015 — ZZ and Others v EIB

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/40

         Action brought on 6 July 2015 — ZZ and Others v EIB
   (Case F-99/15)
   (2015/C 414/50)
   Language of the case: French

      Parties

      Applicants: ZZ and Others (represented by: L. Levi, lawyer)

      Defendant: European Investment Bank (EIB)

      Subject-matter and description of the proceedings

   Application for annulment of the salary statements of April 2015 and the bonus statements of April 2015 which, in the view of the applicants, implement decisions which fail to have regard to their rights to a salary progression and claim for damages in respect of the pecuniary and non-pecuniary harm allegedly suffered.

      Form of order sought

               —

               Annulment of the decisions to apply to the applicants the decision of the Board of Directors of the defendant of 16 December 2014 setting a salary progression limited to 2,7 % and the decision of the Management Committee of the defendant of 4 February 2015, entailing a salary loss, those decisions being in the salary statements of April 2015 and the annulment, to the same extent, of all the decisions in the subsequent salary statements;

               —

               Annulment of the notices concerning the performance rewards for 2015;

               —

               Accordingly, order the defendant

                           —

                           to pay the difference in remuneration resulting from the decisions cited above of the Board of Directors of the defendant of 16 December 2014 and of the Management Committee of the defendant of 4 February 2015 as compared to the application of the minimum merit grid; to that difference in remuneration must be added late-payment interest with effect from 12 April 2015 and, subsequently, on the 12th day of each month until payment in full, that interest being set at the rate of the ECB increased by three points;

                           —

                           to pay the difference in remuneration resulting from the application of the rate of 16,3 % on a salary budget defined in accordance with the defendant’s undertakings;

                           —

                           to pay damages in respect of the harm suffered as a result of the loss of purchasing power, that loss being evaluated ex aequo et bono and provisionally at 1,5 % of the monthly remuneration;

                           —

                           to pay to each applicant EUR 1  000 as compensation for the non-pecuniary harm;

               —

               Order the defendant to pay all the costs.


title: JUDGMENT OF THE COURT of 28 April 1998 in Case C-306/96: (reference for a preliminary ruling from the Court d'Appel de Versailles): Javico International and Javico AG v. Yves Saint Laurent Parfums SA (YSLP) (Competition - Luxury cosmetic products - Selective distribution system - Obligation to export to a non-member country - Prohibition of re-importation into, and of marketing in, the Community)

text:
C 209/6               EN                  Official Journal of the European Communities                                       4.7.98
Cologne, Germany, for a preliminary ruling in the                    1. Article 85(1) of the EC Treaty precludes a supplier
proceedings pending before that court between                             established in a Member State of the Community from
Metronome Musik GmbH and Music Point Hokamp                               imposing on a distributor established in another
GmbH Ð on the validity of Article 1(1) of Council                         Member State to which the supplier entrusts the
Directive 92/100/EEC of 19 November 1992 on rental                        distribution of his products in a territory outside the
right and lending right and on certain rights related to                  Community a prohibition of making any sales in any
copyright in the field of intellectual property (OJ L 346 of              territory other than the contractual territory, including
27.11.1992, p. 61) Ð the Court, composed of: G. C.                        the territory of the Community, either by direct
Rodríguez Iglesias, President, C. Gulmann, H.                             marketing or by re-exportation from the contractual
Ragnemalm, M. Wathelet and R. Schintgen (Presidents of                    territory, if that prohibition has the effect of
Chambers), G. F. Mancini, J. C. Moitinho de Almeida,                      preventing, restricting or distorting competition within
P. J. G. Kapteyn, D. A. O. Edward, J.-P. Puissochet                       the Community and is liable to affect the pattern of
(Rapporteur), G. Hirsch, P. Jann and L. Sevón, Judges; G.                 trade between Member States. This might be the case
Tesauro, Advocate General; D. Louterman-Hubeau,                           where the Community market in the products in
Principal Administrator, for the Registrar, has given a                   question is characterised by an oligopolistic structure
judgment on 28 April 1998, in which it has ruled:                         or by an appreciable difference between the prices
                                                                          charged for the contractual product within the
                                                                          Community and those charged outside the Community
Examination of the question submitted has disclosed no                    and where, in view of the position occupied by the
factor of such a kind as to affect the validity of Article 1(1)           supplier of the products at issue and the extent of the
of Council Directive 92/100/EEC of 19 November 1992                       supplier's production and sales in the Member States,
on rental right and lending right and on certain rights                   the prohibition entails a risk that it might have an
related to copyright in the field of intellectual property.               appreciable effect on the pattern of trade between
                                                                          Member States such as to undermine attainment of the
(1) OJ C 233 of 10.8.1996.                                                objectives of the common market.
                                                                     2. Provisions intended to prevent a distributor from
                                                                          selling directly in the Community and re-exporting to
                                                                          the Community contractual products which the
                                                                          distributor has undertaken to sell in non-member
                                                                          countries do not escape the prohibition laid down in
              JUDGMENT OF THE COURT                                       Article 85(1) of the Treaty on the ground that the
                       of 28 April 1998                                   Community supplier of the products concerned
                                                                          distributes those products within the Community
in Case C-306/96: (reference for a preliminary ruling from                through a selective distribution network covered by an
the Court d'Appel de Versailles): Javico International and                exemption decision under Article 85(3) of the Treaty.
   Javico AG v. Yves Saint Laurent Parfums SA (YSLP) (1)
(Competition Ð Luxury cosmetic products Ð Selective                  (1) OJ C 336 of 9.11.1996.
distribution system Ð Obligation to export to a non-
member country Ð Prohibition of re-importation into,
            and of marketing in, the Community)
                        (98/C 209/11)
                                                                                JUDGMENT OF THE COURT
               (Language of the case: French)                                                (Sixth Chamber)
                                                                                of 30 April 1998
  (Provisional translation; the definitive translation will be       in Case C-136/95 (reference for a preliminary ruling from
         published in the European Court Reports)                    the French Cour de Cassation): Caisse Nationale d'Assu-
                                                                     rance Vieillesse des Travailleurs SalarieÂs (CNAVTS) v.
                                                                                EÂvelyne Thibault (1)
In Case C-306/96: reference to the Court under Article 177
of the EC Treaty by the Cour d'Appel de Versailles                   (Equal treatment for men and women Ð Directive 76/
(France) for a preliminary ruling in the proceedings                 207/EEC Ð Maternity leave Ð Right to an assessment of
pending before that court between Javico International                                         performance)
and Javico AG and Yves Saint Laurent Parfums SA                                               (98/C 209/12)
(YSLP), on the interpretation of Article 85(1) of the EC
Treaty Ð the Court, composed of G. C. Rodríguez                                       (Language of the case: French)
Iglesias, President, C. Gulmann and R. Schintgen
(Rapporteur), Presidents of Chambers, G. F. Mancini, J. C.
Moitinho de Almeida, P. J. G. Kapteyn, D. A. O. Edward,                (Provisional translation; the definitive translation will be
J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón, Judges,                      published in the European Court Reports)
G. Tesauro, Advocate General; H. von Holstein,
Administrator, for the Registrar, has given a judgment on            In Case C-136/95: reference to the Court under Article 177
28 April 1998 in which it has ruled:                                 of the EC Treaty from the French Cour de Cassation


title: Case T-144/10: Judgment of the General Court of 24 May 2011 — Space Beach Club v OHIM — Flores Gómez (SpS space of sound) (Community trade mark — Opposition proceedings — Application for Community figurative mark ‘SpS space of sound’ — Earlier national and Community figurative marks ‘space ibiza’ , ‘space DANCE BARCELONA’ , ‘space DANCE MADRID’ , ‘space DANCE VALENCIA’ , ‘space DANCE MALLORCA’ , ‘space DANCE EIVISSA’ , ‘space SPACE IBIZA WORLD’ , ‘space DANCE’ and earlier national word mark ‘SPACE VIVA’ — Relative ground for refusal — No likelihood of confusion — Lack of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/22

         Judgment of the General Court of 24 May 2011 — Space Beach Club v OHIM — Flores Gómez (SpS space of sound)
   (Case T-144/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark ‘SpS space of sound’ - Earlier national and Community figurative marks ‘space ibiza’, ‘space DANCE BARCELONA’, ‘space DANCE MADRID’, ‘space DANCE VALENCIA’, ‘space DANCE MALLORCA’, ‘space DANCE EIVISSA’, ‘space SPACE IBIZA WORLD’, ‘space DANCE’ and earlier national word mark ‘SPACE VIVA’ - Relative ground for refusal - No likelihood of confusion - Lack of similarity between the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 204/39
   Language of the case: Spanish

      Parties

      Applicant: Space Beach Club, SA (San Jorge, Ibiza, Spain) (represented by: A. I. Alejos Cutili, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Miguel Ángel Flores Gómez (Madrid, Spain) (represented by: A. J. Vela Ballesteros and B. C. Lamas Begué, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 18 January 2010 (Case R 766/2009-2) concerning opposition proceedings between Space Beach Club, SA and Miguel Ángel Flores Gómez.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Space Beach Club, SA to pay the costs.

      (1)  OJ C 134, 22.5.2010.


title: Case C-5/16: Action brought on 4 January 2016 — Republic of Poland v European Parliament and Council of the European Union

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/23

         Action brought on 4 January 2016 — Republic of Poland v European Parliament and Council of the European Union
   (Case C-5/16)
   (2016/C 098/30)
   Language of the case: Polish

      Parties

      Applicant: Republic of Poland (represented by: B. Majczyna, acting as Agent)

      Defendants: European Parliament, Council of the European Union

      Form of order sought

               —

               annul Decision (EU) 2015/1814 of the European Parliament and of the Council concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading scheme and amending Directive 2003/87/EC; (1)

               —

               order the European Parliament and the Council of the European Union to pay the costs.

      Pleas in law and main arguments

   The Republic of Poland seeks the annulment of Decision (EU) 2015/1814 of the European Parliament and of the Council concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading scheme and amending Directive 2003/87/EC, and an order that the European Parliament and the Council of the European Union pay the costs.
   The declared aim of the contested decision is to tackle the structural imbalances between the supply of greenhouse gas emission allowances on the EU market and the demand for them, imbalances which result in emission allowances not reaching prices on the market that accord with the expectations of the EU legislature. The fundamental means of attaining that aim is the establishment of a market stability reserve (MSR) mechanism, which is to consist in reducing the number of emission allowances available on the market by placing them in the reserve if there is a significant surplus of emission allowances on the market and specified conditions are met and, on the other hand, if the number of emission allowances available on the market falls below 400 million, in increasing the auction volumes of emission allowances.
   The Republic of Poland puts forward the following pleas against the contested decision.
   First, a plea of infringement of Article 192(1) TFEU, in conjunction with Article 192(2)(c) TFEU, by the adoption of the contested decision in accordance with the ordinary legislative procedure, despite the fact that that decision is a measure significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply.
   In the opinion of the Republic of Poland, the contested decision will significantly affect the choice of energy sources and the general structure of energy supply in Poland. In accordance with Article 192(2)(c) TFEU, such a decision must therefore be adopted by the Council unanimously in a special legislative procedure.
   Secondly, a plea of infringement of the principle of sincere cooperation and of infringement of the powers of the European Council defined in Article 15 TEU by the adoption of measures contrary to the conclusions of the European Council of 23 and 24 October 2014.
   In accordance with the conclusions of the European Council of 2014, the main EU instrument for achieving the targeted level of emission reductions was to be a well-functioning, reformed emissions trading system (EU ETS) with an instrument to stabilise the market in line with the Commission proposal, which specified the year 2021 as being when the market stability reserve mechanism would come into effect. The adoption in the contested decision of the year 2019 as when the market stability reserve mechanism would come into effect was contrary to what was established by the European Council in 2014.
   Thirdly, a plea of infringement of the principle of legal certainty and of the principle of the protection of legitimate expectations by the adoption of measures which interfere with the emission allowance trading system during the trading period and in particular in the final years of that period.
   By the contested decision, 900 million allowances withdrawn from the market in 2014-16 — which were to return to the market in 2019-20 — are placed directly in the stability reserve, which means that ultimately they will not return to the market. The pool of allowances that is available to market participants in the current trading period is consequently lower than was expected. Market participants had a legitimate expectation that the temporarily withdrawn allowances would return again to the market between 2019 and 2020 and based their business plans on that. The principles of operation of the system, such as the rules defining the number of emission allowances available, should not be subject to change during the trading period, which sets the temporal perspective for the planning of various activities by the undertakings participating in the system. Those principles constitute fundamental premisses which determine the undertakings’ investment activity.
   Fourthly, a plea of infringement of the principle of proportionality by the adoption of measures which lead to the achievement of higher emission reduction targets than those resulting from the European Union’s international commitments and than required to attain the aim of Directive 2003/87/EC.
   As a result of the adoption of the contested decision, the European Union will achieve targets higher than currently proposed at international level in the context of the second period of the Kyoto Protocol, agreed in December 2012 in Doha.
   Fifthly, a plea of infringement of the obligation to carry out an appropriate analysis of the effect of the contested decision on individual Member States and of infringement of the obligation to present an adequate assessment of the effects that adoption of the contested decision will have on the emission allowance trading market.

      (1)  OJ 2015 L 264, p. 1.


title: Case T-408/10: Judgment of the General Court of 16 September 2013 — Roca Sanitario v Commission (Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Attributability of unlawful conduct — Fines — 2006 Guidelines on the method of setting fines — Gravity of the infringement — Multipliers — Mitigating circumstances — Reduction of the fine — Significant added value)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/29

         Judgment of the General Court of 16 September 2013 — Roca Sanitario v Commission
   (Case T-408/10) (1)

   (Competition - Agreements, decisions and concerted practices - Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria - Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement - Coordination of price increases and exchange of sensitive business information - Attributability of unlawful conduct - Fines - 2006 Guidelines on the method of setting fines - Gravity of the infringement - Multipliers - Mitigating circumstances - Reduction of the fine - Significant added value)
   2013/C 325/48
   Language of the case: Spanish

      Parties

      Applicant: Roca Sanitario, SA (Barcelona, Spain) (represented by: J. Folguera Crespo and M. Merola, lawyers)

      Defendant: European Commission (represented: initially by F. Castillo de la Torre, A. Antoniadis and F. Castilla Contreras, and subsequently by F. Castillo de la Torre, A. Antoniadis and F. Jimeno Fernández, acting as Agents)

      Re:

   Application for annulment in part of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures), and, in the alternative, for reduction of the fine imposed on the applicant in that decision.

      Operative part of the judgment

   The Court:

               1.

               Sets the amount of the fine imposed on Roca Sanitario, SA in Article 2(4)(b) of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures) at EUR 6 298 000;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the European Commission to pay, in addition to its own costs, one third of the costs incurred by Roca Sanitario;

               4.

               Orders Roca Sanitario to bear two-thirds of its own costs.

      (1)  OJ C 301, 6.11.2010.


title: Case C-147/09: Reference for a preliminary ruling from the Oberlandesgericht Wien (Austria) lodged on 24 April 2009 — Ronald Seunig v Maria Hölzel

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/27

         Reference for a preliminary ruling from the Oberlandesgericht Wien (Austria) lodged on 24 April 2009 — Ronald Seunig v Maria Hölzel
   (Case C-147/09)
   2009/C 153/50
   Language of the case: German

      Referring court

   Oberlandesgericht Wien

      Parties to the main proceedings

      Appellant: Ronald Seunig

      Respondent: Maria Hölzel

      Questions referred

               1.

                           (a)

                           Is the second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) (‘Regulation No 44/2001’) applicable in the case of a contract for the provision of services also where the services are, by agreement, provided in several Member States?
                           If the answer to that question is in the affirmative,
                           Should the provision referred to be interpreted as meaning that

                           (b)

                           the place of performance of the obligation that is characteristic of the contract must be determined by reference to the place where the service provider’s centre of business is located, which is to be determined by reference to the amount of time spent and the importance of the activity;

                           (c)

                           in the event that it is not possible to determine a centre of business, an action in respect of all claims founded on the contract may be brought, at the applicant’s choice, in any place of performance of the service within the Community?

               2.

               If the answer to the first question is in the negative,
               Is Article 5(1)(a) of Regulation No 44/2001 applicable in the case of a contract for the provision of services also where the services are, by agreement, provided in several Member States?

      (1)  OJ 2001 L 12, p. 1.


title: Case C-85/01: Action brought on 20 February 2001 by the Commission of the European Communities against the United Kingdom

text:
C 134/6                 EN                     Official Journal of the European Communities                                          5.5.2001
      —     at paragraph 66: the claim for damages to make                     —     it is at the very least contradictory to use as evidence,
            reparation for the damage caused by the reprisals is                     in the procedure before the Court, an administrative
            inadmissible in the absence of proper pre-litigation                     enquiry which was conducted in a manner which
            procedure beforehand.                                                    was censured by the Court of First Instance itself,
                                                                                and the results of which are challenged by the
                                                                                applicant.
      —     at paragraph 67: the claim for compensation does
            not fall within the jurisdiction of the Court, in view             —     it is altogether contradictory for the Court of First
            of the form of order sought;                                             Instance to make use of earlier staff reports in order
                                                                                to put in question the applicant’s abilities and thus
                                                                                prove that her problems at work could not be
      —     at paragraph 68: annulment of the contested
                                                                                attributed to sexual harassment. Its reasoning does
            decision is sufficient to make good the non-material
                                                                                not moreover settle the question whether the failure
            damage caused to the applicant by the uncertainty
                                                                                to reward the applicant for progress is not in fact
            in which the Commission left her as regards the
                                                                                the result of her refusal to succumb to the pressures
            action it proposed to take on her request for
                                                                                of sexual harassment.
            assistance and the results of its administrative
            enquiry;
                                                                          —    Infringement of Community law and the relevant case-
                                                                               law on new pleas in law.
      —     at paragraph 69: the applicant has not established to
            the requisite legal standard the damage caused by             —    Justice denied in respect of liability.
            having been exposed to the consequences of having
            complained of sexual harassment, to which the
                                                                          —    Infringement of the rights of the defence: the Court of
            Commission was indifferent.
                                                                               First Instance unreasonably drew inferences from an
                                                                               administrative enquiry which was contested by the appli-
      —     at paragraph 70: the applicant did not adduce the                  cant who had not been able to submit observations or be
            abovementioned evidence with regard either to the                  present to hear the evidence of witnesses or of the person
            conduct prior to the incident of 27 February 1997                  accused of the conduct under investigation.
            or the incident itself;
—     recognise that there was sexual harassment and that non-
      material damage was caused to the appellant;
—     order the defendant to pay damages together with interest
      in an amount to be determined by the Court;                         Action brought on 20 February 2001 by the Commission
                                                                          of the European Communities against the United
                                                                                Kingdom
—     order the defendant to pay the costs of these proceedings.
                                                                                (Case C-85/01)
Pleas in law and main arguments                                                                     (2001/C 134/10)
—     Breach of the obligation to state reasons:                          An action against the United Kingdom was brought before the
                                                                          Court of Justice of the European Communities on 20 February
                                                                          2001 by the Commission of the European Communities,
      —     by simply annulling the implied rejection, the Court          represented by Mr Richard Wainwright, acting as Agent, with
            of First Instance has altered the degree of seriousness       an address for service in Luxembourg.
            of the Commission’s failure to fulfil its obligations
            after criticising the Commission at length in the
            grounds of the judgment, thus leading to a regret-            The Applicant claims that the Court should:
            table contradiction in those grounds.
                                                                          —    declare that, by failing to ensure that the bathing waters
                                                                               in Blackpool and adjacent to Southport comply with the
      —     by stating, first, that the applicant did not prove that           limit values set in accordance with Article 3 of Council
            she had in fact suffered sexual harassment and,                    Directive 76/160/EEC (1), in compliance with the judg-
            secondly, by acknowledging the existence of conduct                ment of the Court of Justice in Case C-56/90 delivered on
            falling within the scope of sexual harassment in the               14 July 1993, the United Kingdom has failed to fulfil its
            same judgment, the Court of First Instance has                     obligations under paragraph 1 of Article 228 of the EC
            contradicted itself in its grounds.                                Treaty;
 ---pagebreak--- 5.5.2001                 EN                   Official Journal of the European Communities                                         C 134/7
—     order the United Kingdom to pay to the Commission of               Appeal brought on 26 February 2001 by La Poste against
      the European Communities, into the account ‘EC own                 the judgment delivered on 14 December 2000 by the
      resources’, a penalty payment of EUR 106 800 for each              Fourth Chamber (Extended Composition) of the Court of
      day of delay in implementing the measures necessary to             First Instance of the European Communities in Case
      comply with the judgment in Case C-56/90 from delivery             T-613/97 between Union Française de l’Express (UFEX),
      of the present judgment until the judgment in Case                 DHL International, Federal Express International (France)
      C-56/90 has been complied with;                                    and CRIE and the Commission of the European Communi-
                                                                         ties, supported by the French Republic, Chronopost SA
                                                                                and La Poste
—     order the United Kingdom to pay the costs.
                                                                                (Case C-94/01 P)
Pleas in law and main arguments
                                                                                (2001/C 134/11)
In its judgment of 14 July 1993, in Case C-56/90 (ECR 1993               An appeal against the judgment delivered on 14 December
p. I-4109), the Court declared that, by failing to take all the          2000 by the Fourth Chamber (Extended Composition) of the
necessary measures to ensure that the quality of the bathing             Court of First Instance of the European Communities in Case
waters in Blackpool and of those adjacent to Southport                   T-613/97 between Union Française de l’Express (UFEX), DHL,
conformed to the limit values set in accordance with Article 3           International, Federal Express International (France) and CRIE
of Council Directive 76/160/EEC of 8 December 1975 con-                  and the Commission of the European Communities, supported
cerning the quality of bathing water, the United Kingdom had             by the French Republic, Chronopost SA and La Poste, was
failed to fulfil its obligations under the EEC Treaty.                   brought before the Court of Justice of the European Communi-
                                                                         ties on 26 February 2001 by La Poste, represented by
                                                                         H. Lehman, Avocat, with an address for service in Luxembourg.
Article 228(1) of the EC Treaty requires a Member State to
take the necessary measures to comply with a judgment by the
Court which finds that it has failed to fulfil an obligation under       The appellant claims that the Court should:
the Treaty.
                                                                         —     set aside the judgment of the Court of First Instance of
                                                                               14 December 2000 in so far as it annuls Article 1 of
There cannot be any doubt that, in the present case, the United                Commission Decision 98/365/EC of 1 October 1997
Kingdom should long since have taken all the necessary                         concerning alleged State aid granted by France to SFMI-
measures to ensure that the quality of the bathing waters in                   Chronopost (1) in so far as it finds that the logistical
Blackpool and of those adjacent to Southport conform to                        and commercial assistance provided by La Poste to its
the limit values set in accordance with Article 3 of the                       subsidiary SFMI-Chronopost does not constitute State aid
aforementioned directive. Over six years had already passed                    to SFMI-Chronopost;
since the Court gave its judgment by the time the Commission
issued its reasoned opinion. At this time, six out of the nine
bathing waters in question still failed to comply with the               —     order Union Française de l’Express, DHL, International,
directive.                                                                     Federal Express International and CRIE to pay the costs
                                                                               incurred by La Poste in the proceedings before both the
                                                                               Court of First Instance and the Court of Justice.
In accordance with Article 228(2) of the EC Treaty, the
Commission asks the Court to impose a penalty payment of
EUR 106 800 on the United Kingdom for each day’s delay in
implementing the Court’s judgment in Case C-56/90, begin-                Pleas in law and main arguments
ning from the day on which the Court gives its judgment in
the present case.                                                        —     Contradictory and insufficient statement of reasons
                                                                               The Court of First Instance purports to apply the private
                                                                               investor test, but instead its method consists in appraising
(1) of 8 December 1975 concerning the quality of bathing water (OJ             the impact of the reserved service. In requiring account
    L 31, 5.2.1976, p. 1).                                                     to be taken of a private undertaking with no reserved
                                                                               sector, the Court of First Instance draws a comparison
                                                                               between public owners and private owners with no
                                                                               reserved sector but does not treat the public owner and
                                                                               the private owner in the same way. A private owner with
                                                                               a reserved sector would never be required to take into


title: Case C-137/03: Action brought on 26 March 2003 by the Commission of the European Communities against the Hellenic Republic

text:
10.5.2003              EN                       Official Journal of the European Union                                          C 112/21
Action brought on 26 March 2003 by the Commission of                    Action brought on 31 March 2003 by the Commission
the European Communities against the Hellenic Republic                  of the European Communities against the Republic of
                                                                                Austria
                         (Case C-137/03)
                                                                                (Case C-147/03)
                         (2003/C 112/36)
                                                                                (2003/C 112/37)
An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 26 March
2003 by the Commission of the European Communities,                     An action against the Republic of Austria was brought before
represented by M. Kondou-Durande, of its Legal Service.                 the Court of Justice of the European Communities on 31 March
                                                                        2003 by the Commission of the European Communities,
                                                                        represented by Denis Martin, of its Legal Service, with an
The Commission claims that the Court should:                            address for service in Luxembourg.
—     declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with            The applicant claims that the Court should:
      Directive 2000/77/EC ( 1) of the European Parliament and
      of the Council of 14 December 2000 amending Council
      Directive 95/53/EC fixing the principles governing the            1.    declare that, by failing to adopt the necessary measures
      organisation of official inspections in the field of animal             to ensure that holders of secondary school leaving
      nutrition, the Hellenic Republic has failed to fulfil its               examination certificates obtained in other Member States
      obligations under the Treaty and that Directive;                        have access to higher or university education in Austria
                                                                              on the same conditions as holders of leaving examination
                                                                              certificates obtained in Austria, the Republic of Austria
—     order the Hellenic Republic to pay the costs.                           has failed to fulfil its obligations under Articles 12, 149
                                                                              and 150 EC;
                                                                        2.    order the Republic of Austria to pay the costs.
Pleas in law and main arguments
Under the third paragraph of Article 249 of the Treaty
establishing the European Community, a directive is to be               Pleas in law and main arguments
binding, as to the result to be achieved, upon each Member
State to which it is addressed.
                                                                        The effect of the rules governing admission to the Austrian
                                                                        system of higher or university education is that holders of
Under the first paragraph of Article 10 EC, Member States are           secondary school leaving examination certificates obtained in
to take all appropriate measures, whether general or particular,        other Member States must demonstrate, not only that they
to ensure fulfilment of the obligations arising out of that             satisfy the general conditions for admission to higher or
Treaty or resulting from action taken by the institutions of the
                                                                        university education, but also that they fulfil the specific
Community.                                                              conditions for direct access to their chosen subject which have
                                                                        been laid down by the Member State of issue of those leaving
                                                                        examination certificates. Such rules are contrary to Articles 12,
The Hellenic Republic does not dispute the fact that it must            149 and 150 EC. Firstly, as is not disputed, the admission of
take measures to comply with the above Directive.                       holders of leaving examination certificates obtained in other
                                                                        Member States to certain fields of study at Austrian higher-
                                                                        education colleges or universities is made subject to a condition
The Commission notes that the Hellenic Republic has not yet             which does not apply to holders of leaving examination
taken the appropriate measures to incorporate the directive in          certificates obtained in Austria. Secondly, by referring to
question fully into the Greek legal order.                              the legal requirements governing admission to higher and
                                                                        university education which are applicable in the State of origin,
                                                                        those rules lead to discrimination against nationals of other
( 1) OJ L 333 of 29.12.2000, p. 81.
                                                                        Member States.


title: Case C-243/14: Order of the Court (Seventh Chamber) of 6 November 2014 (application brought by Philippe Adam Krikorian — France) — Grégoire Krikorian and Others (Article 267 TFEU — Direct application by the parties — Clear lack of jurisdiction of the Court)

text:
               9.3.2015

               EN

               Official Journal of the European Union

               C 81/2

         Order of the Court (Seventh Chamber) of 6 November 2014 (application brought by Philippe Adam Krikorian — France) — Grégoire Krikorian and Others

   (Case C-243/14) (1)

   ((Article 267 TFEU - Direct application by the parties - Clear lack of jurisdiction of the Court))
   (2015/C 081/02)
   Language of the case: French
   Application brought by Philippe Adam Krikorian

      Parties to the main proceedings

      Krikorian and Others

      Operative part

   The Court of Justice of the European Union manifestly lacks jurisdiction to deal with the application brought by Mr Krikorian and Others.

      (1)  OJ C 16, 19.1.2015.


title: Judgment of the Court of First Instance of 25 May 2004 in Case T-69/03: W v European Parliament (Officials — Resettlement allowance — Definition of residence — Evidence)

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/16

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 25 May 2004
   in Case T-69/03: W v European Parliament (1)

   (Officials - Resettlement allowance - Definition of residence - Evidence)
   (2004/C 201/35)
   Language of the case: French
   In Case T-69/03: W., a former official of the European Parliament, residing in Folkestone (United Kingdom), represented by P Goergen, lawyer, against the European Parliament (Agents: J. de Wachter and L. Knudsen) — application for annulment of the decision of the European Parliament of 3 June 2002 refusing to grant the applicant a resettlement allowance — the Court of First Instance, composed of J.D. Cooke, single judge; I. Natsinas, administrator, for the Registrar, gave a judgment on 25 May 2004, in which it:

               1.

               Dismisses the application.

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 101 of 26.4.2003.


title: Case T-156/04: Action brought on 27 April 2004 by Electricité de France (EDF) against Commission of the European Communities

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/12

         Action brought on 27 April 2004 by Electricité de France (EDF) against Commission of the European Communities
   (Case T-156/04)
   (2004/C 179/24)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 April 2004 by Electricité de France (EDF), established in Paris, represented by Michel Debroux, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul Articles 3 and 4 of Commission Decision C(2003)4637 Final of 16 December 2003 on State aid granted by France to the applicant and to the gas and electricity industry sectors in the form of accounting and fiscal measures adopted in 1997 when EDF's balance sheet was restructured;

               —

               alternatively, annul Articles 3 and 4 of the contested decision inasmuch as the repayment required of EDF was very considerably overestimated;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   By the contested decision, the Commission took the view that the non-payment by the applicant of corporation tax when tax-free provisions created by it for the renewal of its general supply network were reclassified as the provision of capital constituted State aid incompatible with the common market.
   In support of its application, the applicant relies first on a plea in law based on the alleged infringement of essential procedural requirements. It argues that in altering its assessment between the decision to initiate the procedure and the adoption of the contested decision without allowing the applicant to submit its observations, the Commission failed to have regard to the rights of the defence.
   The applicant next alleges that the measures at issue must be analysed as a lawful recapitalisation on the applicant's part. In failing to respond to that argument, the Commission failed in its duty to state reasons and committed an error of law in its assessment of the concept of State aid. The applicant also alleges under the same plea that the measures at issue did not affect trade between Member States and accordingly could not be considered to be State aid.
   Lastly, in support of the form of order sought in the alternative, the applicant alleges that the contested decision required repayment of a greater sum than that which could possibly be considered to be due.


title: Case C-25/16: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 January 2016 — Nintendo Co. Ltd v BigBen Interactive GmbH, BigBen Interactive S.A.

text:
               25.4.2016

               EN

               Official Journal of the European Union

               C 145/16

         Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 January 2016 — Nintendo Co. Ltd v BigBen Interactive GmbH, BigBen Interactive S.A.
   (Case C-25/16)
   (2016/C 145/20)
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Nintendo Co. Ltd

      Defendants: BigBen Interactive GmbH, BigBen Interactive S.A.

      Questions referred

               1.

               In connection with a trial to enforce claims under a Community design, can the court of a Member State whose jurisdiction with respect to a defendant is based solely on Article 79(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (1) in conjunction with Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (2) on the basis that this defendant, which is domiciled in another Member State, supplied the defendant domiciled in the pertinent Member State with goods that may infringe intellectual property rights, adopt measures against the first mentioned defendant that are applicable throughout the EU and extend beyond the supply relationships on which jurisdiction is based?

               2.

               Is Regulation No 6/2002, particularly Article 20(1)(c), to be interpreted as meaning that a third party may depict a Community design for commercial purposes if it intends to sell accessory items for the right holder’s goods corresponding to the Community design? If so, what criteria apply to this?

               3.

               For the purposes of Article 8(2) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations, (3) how is the place ‘in which the act of infringement was committed’ to be determined in cases in which the infringer

                           a)

                           offers goods that infringe a Community design on a website and that website is also directed at Member States other than the one in which the person damaged by the infringement is domiciled, and/or

                           b)

                           has goods that infringe a Community design shipped to a Member State other than the one in which it is domiciled?

                     Is Article 15(a) and (g) of Regulation No 864/2007 to be interpreted as meaning that the law determined in this manner is also applicable to participatory acts of other persons?

      (1)  OJ 2002 L 3, p. 1.

      (2)  OJ 2001 L 12, p. 1.

      (3)  OJ 2007 L 199, p. 40.


title: Case C-252/12: Judgment of the Court (Third Chamber) of 18 July 2013 (request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd (Trade marks — Regulation (EC) No 207/2009 — Article 9(1)(b) and (c) — Article 15(1) — Article 51(1)(a) — Grounds for revocation — Definition of ‘genuine use’ — Trade mark used together with another trade mark or as part of a compound trade mark — Colour or combination of colours in which a trade mark is used — Reputation)

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/16

         Judgment of the Court (Third Chamber) of 18 July 2013 (request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd v Asda Stores Ltd
   (Case C-252/12) (1)

   (Trade marks - Regulation (EC) No 207/2009 - Article 9(1)(b) and (c) - Article 15(1) - Article 51(1)(a) - Grounds for revocation - Definition of ‘genuine use’ - Trade mark used together with another trade mark or as part of a compound trade mark - Colour or combination of colours in which a trade mark is used - Reputation)
   2013/C 260/27
   Language of the case: English

      Referring court

   Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Applicants: Specsavers International Healthcare Ltd, Specsavers BV, Specsavers Optical Group Ltd, Specsavers Optical Superstores Ltd

      Defendant: Asda Stores Ltd

      Re:

   Request for a preliminary ruling — Court of Appeal (England and Wales) (Civil Division) — Interpretation of Articles 9(1)(b) and (c), 15 and 51 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) — Notion of ‘genuine use’ of a trade mark — Combined use of figurative and word marks which were registered separately — Trade mark registered without claiming a colour, but used with a particular colour to the point of creating an association in the mind of a section of the public between that colour and the mark

      Operative part of the judgment

               1.

               Article 15(1) and Article 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark must be interpreted as meaning that the condition of ‘genuine use’, within the meaning of those provisions, may be fulfilled where a Community figurative mark is used only in conjunction with a Community word mark which is superimposed over it, and the combination of those two marks is, furthermore, itself registered as a Community trade mark, to the extent that the differences between the form in which that trade mark is used and that in which it was registered do not change the distinctive character of that trade mark as registered.

               2.

               Article 9(1)(b) and (c) of Regulation No 207/2009 must be interpreted as meaning that where a Community trade mark is not registered in colour, but the proprietor has used it extensively in a particular colour or combination of colours with the result that it has become associated in the mind of a significant portion of the public with that colour or combination of colours, the colour or colours which a third party uses in order to represent a sign alleged to infringe that trade mark are relevant in the global assessment of the likelihood of confusion or unfair advantage under that provision.

               3.

               Article 9(1)(b) and (c) of Regulation No 207/2009 must be interpreted as meaning that the fact that the third party making use of a sign which allegedly infringes the registered trade mark is itself associated, in the mind of a significant portion of the public, with the colour or particular combination of colours which it uses for the representation of that sign is relevant to the global assessment of the likelihood of confusion and unfair advantage for the purposes of that provision.

      (1)  OJ C 227, 28.7.2012.


title: Case T-150/04: Judgment of the Court of First Instance of 11 July 2007 — Mülhens v OHIM/Minoronzoni (TOSCA BLU) (Community trade mark — Opposition procedure — Application for figurative Community trade mark TOSCA BLU — Earlier national word mark TOSCA — Relative grounds for refusal — Well-known trade mark within the meaning of Article 6 bis of the Paris Convention — Article 8(1)(b) of Regulation (EC) No 40/94 — Article 8(5) of Regulation (EC) No 40/94)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/31

         Judgment of the Court of First Instance of 11 July 2007 — Mülhens v OHIM/Minoronzoni (TOSCA BLU)
   (Case T-150/04) (1)

   (Community trade mark - Opposition procedure - Application for figurative Community trade mark TOSCA BLU - Earlier national word mark TOSCA - Relative grounds for refusal - Well-known trade mark within the meaning of Article 6 bis of the Paris Convention - Article 8(1)(b) of Regulation (EC) No 40/94 - Article 8(5) of Regulation (EC) No 40/94)
   (2007/C 199/57)
   Language of the case: Italian
   Parties

      Applicant: Mülhens GmbH & Co. KG (Cologne, Germany) (represented by: T. Schulte-Beckhausen, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Capostagno and O. Montalto, agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Minoronzoni Srl (Ponte San Pietro, Italy) (represented by: G. Floridia, F. Polettini and R. Floridia, lawyers)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 18 February 2004 (Case R 949/2001-1) relating to opposition proceedings between Mühlens GmbH & Co. KG and Minoronzoni Srl.
   Operative part of the judgment

               1.

               The action is dismissed;

               2.

               Mühlens GmbH & Co. KG are ordered to pay the costs.

      (1)  OJ C 239, 25.9.2004.


title: Case T-54/12: Action brought on 8 February 2012 — K2 Sports Europe v OHIM — Karhu Sport Iberica (SPORT)

text:
               14.4.2012

               EN

               Official Journal of the European Union

               C 109/22

         Action brought on 8 February 2012 — K2 Sports Europe v OHIM — Karhu Sport Iberica (SPORT)
   (Case T-54/12)
   2012/C 109/47
   Language in which the application was lodged: English

      Parties

      Applicant: K2 Sports Europe GmbH (Penzberg, Germany) (represented by: J. Güell Serra, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Karhu Sport Iberica, SL (Cordoba, Spain)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 November 2011 in case R 986/2010-4;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

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

      Community trade mark concerned: The figurative mark in black and white ‘SPORT’, for goods in classes 18, 25 and 28 — Community trade mark application No 7490113

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

      Mark or sign cited in opposition: German trade mark registration No 302008015437 of the word mark ‘K2 SPORTS’, for goods in classes 18, 25 and 28; International trade mark registration No 982235 of the word mark ‘K2 SPORTS’, for goods in classes 18, 25 and 28

      Decision of the Opposition Division: Rejected the opposition in its entirety

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal: (i) did not take into consideration the fact that, as a consequence of the identity in the goods at issue the differences between the marks are attenuated; (ii) made an incorrect assessment of the mark applied for, taking the view that there was no chance that the figurative element might be perceived by the public as a representation of the letter K; (iii) incorrectly presumed that being the word ‘SPORT’ understood in all the relevant territories, it should be omitted in the comparative analysis, (iv) erred in making the comparison of the signs; and (v) there is a likelihood of confusion between the conflicting marks even if the word ‘SPORT’ may have a weak distinctive character.


title: Case C-342/17: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Veneto (Italy) lodged on 8 June 2017 — Memoria Srl, Antonia Dall’Antonia v Comune di Padova

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/26

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Veneto (Italy) lodged on 8 June 2017 — Memoria Srl, Antonia Dall’Antonia v Comune di Padova
   (Case C-342/17)
   (2017/C 309/33)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Veneto

      Parties to the main proceedings

      Applicants: Memoria Srl, Antonia Dall’Antonia

      Defendant: Comune di Padova

      Question referred

   Must Articles 49 and 56 of the Treaty on the Functioning of the European Union be interpreted as precluding the application of the following provisions of Article 52 of the Regulation on funeral services of the Municipality of Padua?
   ‘The recipient shall not in any circumstances be permitted to request a third party to keep the funeral urn. This prohibition shall apply even if the deceased expressly stated during his lifetime that such was his wish (third subparagraph).
   It is obligatory to keep the urn solely at the home of the recipient (fourth subparagraph) …
   In no circumstances may funeral urns be kept for profit and economic activities relating to, even non-exclusively, the keeping of funeral urns, for whatever purpose and for whatever period, shall therefore not be permitted. This prohibition shall apply even if the deceased expressly stated during his lifetime that such was his wish (tenth subparagraph).’


title: Case C-316/14: Order of the President of the Court of 25 September 2014 (request for a preliminary ruling from the Amtsgericht Rüsselsheim — Germany) — Marc Hußock, Ute Hußock, Michelle Hußock, Florian Hußock v Condor Flugdienst GmbH

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/17

         Order of the President of the Court of 25 September 2014 (request for a preliminary ruling from the Amtsgericht Rüsselsheim — Germany) — Marc Hußock, Ute Hußock, Michelle Hußock, Florian Hußock v Condor Flugdienst GmbH
   (Case C-316/14) (1)

   (2014/C 431/27)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 303, 8.9.2014.


title: Case C-65/07: Action brought on 8 February 2007 — Commission of the European Communities v Ireland

text:
               24.3.2007

               EN

               Official Journal of the European Union

               C 69/14

         Action brought on 8 February 2007 — Commission of the European Communities v Ireland
   (Case C-65/07)
   (2007/C 69/32)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: B. Stromsky and D. Lawunmi, Agents)

      Defendant: Ireland
   The applicant claims that the Court should:

               —

               declare that by failing to adopt the laws, regulations or administrative provisions necessary to comply with Directive 2004/24/EC of the European Parliament and of the Council of 31 March 2004 amending, as regards traditional herbal medicinal products, Directive 2001/83/EC on the Community code relating to medicinal products for human use (1) or, in any event, by failing to notify such provisions to the Commission, Ireland has failed to fulfil its obligations under Article 2 of that Directive.

               —

               order Ireland to pay the costs.

         Pleas in law and main arguments
   The period within which the directive had to be transposed expired on 30 October 2005.

      (1)  OJ L 136, p. 85.


title: Case F-62/12: Action brought on 15 June 2012 — ZZ v EASA

text:
               4.8.2012

               EN

               Official Journal of the European Union

               C 235/17

         Action brought on 15 June 2012 — ZZ v EASA
   (Case F-62/12)
   2012/C 235/36
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis, É. Marchal and S. Orlandi, lawyers)

      Defendant: European Aviation Safety Agency (EASA)

      Subject-matter and description of the proceedings

   Annulment of the decision to calculate accredited pension rights acquired before entry into service on the basis of the new General Implementing Provisions of Article 11(2) of Annex VIII to the Staff Regulations of 3 March 2011.

      Form of order sought

               —

               declare unlawful Article 9 of the General Implementing Provisions of Article 11(2) of Annex VIII to the Staff Regulations;

               —

               annul the decision to apply, to the applicant’s request for transfer of pension rights, the parameters referred to in the General Implementing Provisions of Article 11(2) of Annex VIII to the Staff Regulations of 3 March 2011;

               —

               order the European Aviation Safety Agency to pay the costs.


title: Case F-55/11: Order of the Civil Service Tribunal of 12 December 2012 — Chatzidoukakis v Commission

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/33

         Order of the Civil Service Tribunal of 12 December 2012 — Chatzidoukakis v Commission
   (Case F-55/11) (1)

   2013/C 46/69
   Language of the case: Greek
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 252, 27.8.11, p. 56.


title: Case T-728/14: Action brought on 10 October 2014 — Universal Protein Supplements Corp. d/b/a Universal Nutrition v OHIM — H. Young Holdings (animal)

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/44

         Action brought on 10 October 2014 — Universal Protein Supplements Corp. d/b/a Universal Nutrition v OHIM — H. Young Holdings (animal)
   (Case T-728/14)
   (2014/C 431/69)
   Language in which the application was lodged: English

      Parties

      Applicant: Universal Protein Supplements Corp. d/b/a Universal Nutrition (New Brunswick, United States) (represented by: S. Malynicz, Barrister)

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

      Other party to the proceedings before the Board of Appeal: H. Young Holdings plc (Newbury, United Kingdom)

      Details of the proceedings before OHIM

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

      Trade mark at issue: Community figurative mark containing the verbal element ‘animal’ — Community trade mark No 2 8 24  548

      Procedure before OHIM: Proceedings for a declaration of invalidity

      Contested decision: Decision of the First Board of Appeal of OHIM of 31 July 2014 in Case R 2058/2013-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM and the other party to pay their own costs and those of the applicant.

      Pleas in law

               —

               Infringement of Article 8(4) of Regulation No 207/2009;

               —

               Infringement of Article 37(b)(ii) of Regulation No 2868/95.


title: Action brought on 15 July 1998 by the Commission of the European Communities against the French Republic (Case C-256/98)

text:
5.9.98                   EN                    Official Journal of the European Communities                                    C 278/25
Kingdom of Spain, represented by Santiago Ortiz                           Action brought on 15 July 1998 by the Commission of the
Vaamonde, Abogado del Estado, acting as Agent, with an                        European Communities against the French Republic
address for service in Luxembourg at the Spanish                                                   (Case C-256/98)
Embassy, 4Ð6 Boulevard Emmanuel Servais.
                                                                                (98/C 278/45)
The applicant claims that the Court of Justice should:
                                                                          An action against the French Republic was brought before
                                                                          the Court of Justice of the European Communities on
                                                                          15 July 1998 by the Commission of the European
Ð annul Commission Decision 98/324/EC (1) on the
                                                                          Communities, represented by Paolo Stancanelli, of its
     clearance of the accounts in respect of the expenditure
                                                                          Legal Service, and Olivier Couvert-CasteÂra, a national
     for 1997 of the Guarantee Section of the European
                                                                          civil servant on secondment to its Legal Service, acting as
     Agricultural Guidance and Guarantee Fund, as regards
                                                                          Agents, with an address for service in Luxembourg at the
     the financial adjustment imposed on Spain, and
                                                                          office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                          Kirchberg.
Ð order the Commission to pay the costs.
                                                                          The Commission of the European Communities claims
                                                                          that the Court should:
Pleas in law and main arguments adduced in support:
                                                                          Ð declare that, by failing to adopt all the laws,
                                                                               regulations and administrative measures necessary in
Ð Infringement of essential procedural requirements and                        order to comply with Council Directive 92/43/EEC of
     lack of a statement of reasons:                                           21 May 1992 on the conservation of natural habitats
                                                                               and of wild fauna and flora (1), in that it has omitted
                                                                               to take the measures necessary in order to comply
     The contested Decision cannot incorporate a financial                     with Article 6 of that Directive, the French Republic
     adjustment since it was issued at the stage of clearance                  has failed to fulfil its obligations under that Directive
     of accounts (Article 5(2)(b) of Council Regulation                        and under the third paragraph of Article 189 of the
     (EEC) No 729/70 (2) and not at the stage of                               EC Treaty,
     verification of compliance (Article 5(2)(c) of
     Regulation (EEC) No 729/70). Only at the latter stage                Ð order the French Republic to pay the costs.
     is it appropriate to verify whether the expenditure
     incurred is in conformity with the Community
     provisions. Any financial adjustment made otherwise                  Pleas in law and main arguments adduced in support:
     than in connection with the clearance of accounts
     which is a preliminary to it is void through failure to
     follow the correct clearance procedure laid down in                  The pleas in law and main arguments are analogous to
     Commission Regulation (EC) No 1663/95 (3).                           those in Case C-250/98 (2); the time limit prescribed by
     Moreover, although the Kingdom of Spain has learned                  Article 23 of the Directive for its transposition expired on
     why the Commission doubted the correctness of a                      5 June 1994.
     particular budgetary item, it has been unable to
     ascertain why the Commission rejected the                            (1) OJ L 206, 22.7.1992, p. 7.
     explanations offered by the Kingdom of Spain.                        (2) See page 22 of this Official Journal.
Ð Infringement of the applicable Community law:
     The calculation made by the Spanish authorities is                   Appeal brought on 15 July 1998 by Arnaldo Lucaccioni
     correct and is in conformity with the applicable                     against the judgment delivered on 14 May 1998 by
     Council Regulation (EC) No 150/95 (4) and                            the Second Chamber of the Court of First Instance of
     Commission Regulations (EC) No 157/95 (5) and (EC)                   the European Communities in Case T-165/95 between
     No 158/95 (6).                                                       Arnaldo Lucaccioni and the Commission of the European
                                                                                Communities
(1 ) OJ L 141, 13.5.1998, p. 38.                                                                  (Case C-257/98 P)
(2 ) Official Journal, English special Edition 1970 I, p. 218.
(3 ) OJ L 158, 8.7.1995, p. 6.
                                                                                (98/C 278/46)
(4 ) OJ L 22, 31.1.1995, p. 1.
(5 ) OJ L 24, 1.2.1995, p. 1.
(6 ) OJ L 24, 1.2.1995, p. 4.                                             An appeal against the judgment delivered on 14 May
                                                                          1998 by the Second Chamber of the Court of First
                                                                          Instance of the European Communities in Case T-165/95
                                                                          between Arnaldo Lucaccioni and the Commission of the