title: Case C-591/16 P: Appeal brought on 18 November 2016 by H. Lundbeck A/S, Lundbeck Ltd against the judgment of the General Court (Ninth Chamber) delivered on 8 September 2016 in Case T-472/13: H. Lundbeck A/S, Lundbeck Ltd v European Commission

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/25

         Appeal brought on 18 November 2016 by H. Lundbeck A/S, Lundbeck Ltd against the judgment of the General Court (Ninth Chamber) delivered on 8 September 2016 in Case T-472/13: H. Lundbeck A/S, Lundbeck Ltd v European Commission
   (Case C-591/16 P)
   (2017/C 030/30)
   Language of the case: English

      Parties

      Appellants: H. Lundbeck A/S, Lundbeck Ltd (represented by: R. Subiotto QC, Barrister, T. Kuhn, Rechtsanwalt)

      Other parties to the proceedings: European Commission, European Federation of Pharmaceutical Industries and Associations (EFPIA)

      Form of order sought

   The appellants claim that the Court should:

               —

               Set aside the Judgment, in whole or in part

               —

               Annul the Decision in so far as it applies to the Appellants or, in the alternative, annul the fines imposed on the Appellants pursuant to the Decision or, in the further alternative, substantially reduce the fines imposed on the Appellants pursuant to the Decision;

               —

               Order the Commission to pay the Appellants’ legal and other costs of these proceedings and of the proceedings before the General Court (‘GC’);

               —

               If necessary, remand the case to the GC for reconsideration in accordance with the Court’s judgment;

               —

               Take any other measures that this Court considers appropriate;

      Pleas in law and main arguments

   By their first plea, the Appellants submit that the GC erred in law in upholding the Commission’s conclusion that the Agreements had the object of restricting competition. The GC erred in law in finding that an Agreement restricts competition by object even if it falls within the scope of Lundbeck’s patents. Such agreement cannot be considered by its very nature harmful to competition, as it contains restrictions comparable to those that the patent holder could have obtained through court rulings enforcing its patents. A mere payment cannot turn an otherwise legitimate and unproblematic agreement, such as an in-scope patent settlement agreement, into a restriction of competition by object. As a result, the GUK UK Agreement, which the GC found to fall within the scope of Lundbeck’s patents, should not have been held to restrict competition by object. The same conclusion applies to the other five Agreements, because the GC erred in law in qualifying them as exceeding the scope of Lundbeck’s patents.
   By their second plea, the Appellants submit that the GC erred in law in failing to apply the correct legal test to assess whether five of the six Agreements contained restrictions that exceeded the scope of Lundbeck’s patents. The GC should have assessed whether there was a ‘meeting of minds’ within the meaning of Article 101 TFEU between Lundbeck and each of the Generics that the relevant Agreement(s), with the exception of the GUK UK Agreement, imposed restrictions that exceeded the scope of Lundbeck’s patents. Applying this test leads to the inevitable legal conclusion that the Agreements fell within the subject-matter of Lundbeck’s patents.
   By their third plea, the Appellants submit that even if the GC’s legal qualification that five, or less, of the six Agreements fell outside the scope of Lundbeck’s patents was correct, the GC erred in law in concluding that the out-of-scope Agreements restricted competition by object. In their economic and legal context, the Agreements were not by their very nature harmful to competition and are not comparable to market sharing agreements, and the GC erred in law as it failed to assess the counterfactual.
   By their fourth plea, the Appellants submit that the GC erred in law, committed a manifest error of assessment of the evidence, and gave contradictory reasons in upholding the Commission’s conclusion that Lundbeck and the Generics were actual or potential competitors at the time of the Agreements, regardless of whether the Generics’ products violated Lundbeck’s patents. First, the GC erred in law as it disregarded the existence of legal barriers, namely Lundbeck’s patents, that prevented the Generics’ entry with infringing citalopram products. Second, the GC’s conclusion that Lundbeck doubted the validity of its patents is vitiated by an error in law, a manifest error in the assessment of the evidence and contradictory reasoning. Third, the GC erred in law by holding that evidence dated from after the conclusion of the Agreements, but which still in many cases pre-dated the expiry of the Agreements, cannot be decisive in assessing whether the Generics were potential competitors to Lundbeck. These documents include scientific evidence that the Generics or their API producers infringed Lundbeck’s patents, national courts’ orders granting preliminary injunctions or other forms of relief to Lundbeck against citalopram products based on the API that some of the Generics used, and the European Patent Office (‘EPO’)’s confirmation of the validity of Lundbeck’s Crystallization Patent on all relevant aspects, whose strength the Commission questioned. Lastly, the GC erred in law and failed to state reasons by finding that each of the Generics had real and concrete possibilities of entering the market without properly assessing whether they could do so with non-infringing citalopram.
   By their fifth plea, the Appellants submit that the GC erred in law in upholding the Commission’s imposition of fines on Lundbeck. First, the GC erred in law by misapplying the standard for culpability. Second, the GC erred in law in upholding the Commission’s conclusion that Lundbeck could not be unaware of the anticompetitive nature of its conduct. Third, the GC violated the principle of legal certainty and non-retroactivity by upholding the imposition of more than a symbolic fine.
   By their sixth plea, the Appellants submit, in the alternative, that the GC erred in law and failed to provide adequate reasoning in upholding the Commission’s calculation of the fines imposed on the Appellants. The value of sales on which the fines are based includes Lundbeck’s sales in certain EEA Member States in which the Generics were effectively barred from entering because they did not obtain a marketing authorization (‘MA’) until after the expiry of the Agreements or, with respect to Austria, because Lundbeck’s citalopram compound patent was still in force during a significant part of the term of the Agreements. In addition, this case warrants the application of a lower gravity percentage, in particular since the Agreements are not comparable to cartels and their effective geographic scope was much more limited that their literal geographic scope.


title: Case C-146/15: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 26 March 2015 — J.H. Dees-Erf, other parties: Staatssecretaris van Infrastructuur en Milieu, Koninklijke Luchtvaart Maatschappij NV

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/22

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 26 March 2015 — J.H. Dees-Erf, other parties: Staatssecretaris van Infrastructuur en Milieu, Koninklijke Luchtvaart Maatschappij NV
   (Case C-146/15)
   (2015/C 198/30)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicant: J.H. Dees-Erf

      Other parties: Staatssecretaris van Infrastructuur en Milieu, Koninklijke Luchtvaart Maatschappij NV

      Question referred

   Given that Netherlands law provides access to the civil courts to protect the rights which passengers may derive under EU law from Article 5(1)(c) and Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), does Article 16 of that Regulation oblige the national authorities to take implementing measures which form the basis for administrative enforcement action through the bodies designated under Article 16 separately in each individual case in which Article 5(1)(c) and Article 7 of the Regulation are infringed, in order to be able to guarantee a passenger’s right to compensation separately in each individual case?


title: Judgment of the Court of First Instance of 1 April2004 in Case T-198/02: N v Commission of the European Communities (Officials— Disciplinary measures — Removal from post without loss of pension rights— Statement of reasons — Rights of the defence — Proportionality — Failureto comply with the time-limits fixed by Article 7 of Annex IX to the StaffRegulations — Article 12, first paragraph, of the Staff Regulations)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/59

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 1 April 2004
   in Case T-198/02: N v Commission of the European Communities (1)

   (Officials - Disciplinary measures - Removal from post without loss of pension rights - Statement of reasons - Rights of the defence - Proportionality - Failure to comply with the time-limits fixed by Article 7 of Annex IX to the Staff Regulations - Article 12, first paragraph, of the Staff Regulations)
   (2004/C 106/117)
   Language of the case: French
   In Case T-198/02: N, a former official of the Commission of the European Communities, resident in Asse (Belgium), represented by N. Lhoëst and E. de Schietere de Lophem, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agent: J. Currall) – application (1) for annulment of the decision of the appointing authority of the Commission of 25 February 2002 imposing on the applicant the disciplinary measure of removal from post without withdrawal or reduction of entitlement to retirement pension in accordance with Article 86(2)(f) of the Staff Regulations of Officials of the European Communities and (2) for damages – the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, gave a judgment on 1 April 2004 in which it:

               (1)

               Orders the Commission to pay the applicant the sum of EUR 700 as compensation for the non-material damage suffered by him;

               (2)

               Dismisses the remainder of the action;

               (3)

               Orders the Commission to bear its own costs and to pay one-sixth of the applicant's costs of the present proceedings and the proceedings for interim relief;

               (4)

               Orders the applicant to bear five-sixths of his costs of the present proceedings and the proceedings for interim relief.

      (1)  OJ No C 233 of 28.9.2002.


title: Order of the President of the Court of First Instance of 7 April 2000 in Case T-11/00 R: Michel Hautem v European Investment Bank (Proceedings for interim relief — Enforcement of a judgment — Jurisdiction of the judge hearing the application for interim measures — Interpretation of the judgment)

text:
8.7.2000               EN                     Official Journal of the European Communities                                      C 192/17
23 December 1997 (VI/51329) rejecting an application from                Socredo to comply with Community law and to apply Council
the applicant for the issue of import licences for sugar products        Decisions 86/283/EEC of 30 June 1986 and 91/482/EEC of
until the Court of First Instance has given judgment on the              25 July 1991 on the association of the overseas countries and
substance, and, second, for interim measures prohibiting the             territories with the European Economic Community (OJ 1986
Commission from applying, for the same period, the pro-                  L 175, p. 1, and OJ 1991 L 263, p. 1, respectively) — the Court
visions of Commission Regulation (EC) No 2553/97 of                      of First Instance (First Chamber), composed of: B. Vesterdorf,
17 December 1997 on rules for issuing import licences for                President, and M. Vilaras and N. Forwood, Judges; H. Jung,
certain products covered by CN codes 1701, 1702, 1703 and                Registrar, made an order on 10 April 2000, the operative part
1704 and qualifying as ACP/OCT originating products (OJ                  of which is as follows:
1997 L 349, p. 26) and /or of Article 108b of Council Decision
91/482/EEC of 25 July 1991 on the association of the                     1. The action is dismissed as manifestly inadmissible;
overseas countries and territories with the European Economic
Community (OJ 1991 L 263 p. 1), as amended, in so far as
those provisions have the effect of limiting imports into the            2. The applicant is to bear his own costs and to pay the costs
Community of sugar originating in the overseas territories and               incurred by the European Investment Bank and the Commission.
countries — the President of the Court of First Instance of the
European Communities has made an order on 6 April 2000,
the operative part of which is as follows:                               (1) OJ C 79 of 18.3.2000.
1. The application for the present proceedings for interim measures
    to be stayed until final judgment is delivered in the main
    proceedings (Case T-44/98) is rejected;
2. The security provided in accordance with the operative part of the
    orders of 30 April and 29 September 1999, in Case T-44/98
    R II Emesa Sugar v Commission, is released for the benefit of the
    Community;
                                                                         ORDER OF THE PRESIDENT OF THE COURT OF FIRST
3. Costs are reserved.                                                                              INSTANCE
                                                                                of 7 April 2000
                                                                         in Case T-11/00 R: Michel Hautem v European Investment
                                                                                Bank
      ORDER OF THE COURT OF FIRST INSTANCE                               (Proceedings for interim relief — Enforcement of a judgment
                                                                         — Jurisdiction of the judge hearing the application for
                        of 10 April 2000                                      interim measures — Interpretation of the judgment)
in Case T-361/99: Karl L. Meyer v Commission of the                                              (2000/C 192/31)
European Communities and European Investment Bank (1)
                   (Manifest inadmissibility)                                               (Language of the case: French)
                         (2000/C 192/30)                                 In Case T-11/00 R: Michel Hautem, member of the staff of
                                                                         the European Investment Bank, represented by M. Karp and
                                                                         J. Choucroun, of the Luxembourg Bar, with an address for
                   (Language of the case: French)                        service in Luxembourg at their Chambers, 84 Grand-Rue,
                                                                         v European Investment Bank (Agents: J.-P. Minnaert and
                                                                         G. Vandersanden) — application for interim measures — the
In Case T-361/99: Karl L. Meyer, residing at Uturoa (island of           President of the Court of First Instance made an order on
Raiatea, French Polynesia), represented by J.-D. des Arcis, of           7 April 2000, the operative part of which is as follows:
the Papeete Bar, with an address for service in Luxembourg at
the office of H. Pakowski, Ambassador of the Federal Republic
of Germany, 20-22 Avenue Emile Reuter, v Commission                      1. The application for interim measures is dismissed.
of the European Communities (Agents: B. Martenczuk and
X. Lewis) and European Investment Bank (Agent: L. LaMarca)               2. The costs are reserved.
— application for compensation for the damage allegedly
suffered by the applicant as a result of the failure on the part
of the Commission and the European Investment Bank to
require the local authorities in French Polynesia and Banque


title: Case C-108/06: Order of the President of the Fifth Chamber of the Court of 23 October 2006 — Commission of the European Communities v Kingdom of the Netherlands

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/25

         Order of the President of the Fifth Chamber of the Court of 23 October 2006 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-108/06) (1)

   (2006/C 331/51)

      Language of the case: Dutch

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

      (1)  OJ C 121, 20.5.2006.


title: Case C-266/14: Judgment of the Court (Third Chamber) of 10 September 2015 (request for a preliminary ruling from the Audiencia Nacional — Spain) — Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA (Reference for a preliminary ruling — Social policy — Directive 2003/88/EC — Protection of the safety and health of workers — Organisation of working time — Point (1) of Article 2 — Concept of ‘working time’ — Workers who are not assigned a fixed or habitual place of work — Time spent travelling between the workers’ homes and the premises of the first and last customers)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/16

         Judgment of the Court (Third Chamber) of 10 September 2015 (request for a preliminary ruling from the Audiencia Nacional — Spain) — Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA
   (Case C-266/14) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 2003/88/EC - Protection of the safety and health of workers - Organisation of working time - Point (1) of Article 2 - Concept of ‘working time’ - Workers who are not assigned a fixed or habitual place of work - Time spent travelling between the workers’ homes and the premises of the first and last customers))
   (2015/C 363/18)
   Language of the case: Spanish

      Referring court

   Audiencia Nacional

      Parties to the main proceedings

      Applicant: Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.)

      Defendants: Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA

      Operative part of the judgment

   Point (1) of Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.

      (1)  OJ C 282, 25.8.2014.


title: Case F-134/12: Action brought on 9 November 2012 — ZZ v Council

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/74

         Action brought on 9 November 2012 — ZZ v Council
   (Case F-134/12)
   2013/C 26/153
   Language of the case: French

      Parties

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

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment, firstly, of Council Decision 2011/866/EU of 19 December 2011 concerning the Commission’s proposal for a Council Regulation adjusting the remuneration and pension of the officials and other servants of the European Union and, secondly, the salary statements for January, February and March 2012 established pursuant to that decision.

      Form of order sought

               —

               Declare that Council Decision 2011/866/EU of 19 December 2011 concerning the Commission’s proposal for a Council Regulation adjusting with effect from 1 July 2011 the remuneration and pension of the officials and other servants of the European Union and the correction coefficients applied thereto is unlawful;

               —

               Annul the response rejecting the claim of 30 July 2012 made against the salary statements for January, February and March 2012, established pursuant to Council Decision 2011/866/EU of 19 December 2011;

               —

               Order the Council to pay the applicant the arrears of salary and pension to which he is entitled from 1 July 2011 together with late-payment interest calculated, with effect from the date on which the arrears fell due, at the rate fixed by the ECB for main refinancing operations increased by two points;

               —

               Order the Council to pay the applicant a symbolic EUR 1 as compensation for the non-material damage suffered as a result of the administrative error committed by the adoption of Council Decision 2011/866/EU of 19 December 2011;

               —

               Order the Council to pay the costs.


title: Case T-185/15: Action brought on 14 April 2015 — Buonotourist v Commission

text:
               8.6.2015

               EN

               Official Journal of the European Union

               C 190/27

         Action brought on 14 April 2015 — Buonotourist v Commission
   (Case T-185/15)
   (2015/C 190/31)
   Language of the case: Italian

      Parties

      Applicant: Buonotourist Srl (Castel San Giorgio, Italy) (represented by: G. Capo, lawyer, L. Visone, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the decision of the European Commission of 19 January 2015 on State aid Sa.35843 (2014/c) (ex 2012/NN), notified to the applicant on 20 February 2015 and implemented by Italy;

               —

               declare, in accordance with Articles 263 TFEU and 264 TFEU, the decision of the European Commission of 19 January 2015 in the procedure relating to State aid Sa.35843 (2014/c) (ex 2012/NN) (in the sum of EUR 1 1 11  572,00) totally null and void, in so far as it finds that the sums granted by way of compensation for public service obligations under Regulation (EEC) No 1191/69 — compensation granted pursuant to Article 11 for a tariff obligation in the Local Public Transport sector — are to be regarded as a measure that has not been notified, constituting State aid within the meaning of Article 107(1) TFEU, which is incompatible with the internal market;

               —

               declare, in accordance with Articles 263 TFEU and 264 TFEU, the decision of the European Commission of 19 January 2015 in the procedure relating to State aid Sa.35843 (2014/c) (ex 2012/NN) (in the sum of EUR 1 1 11  572,00) totally null and void, in so far as it imposes operational measures for the recovery of the aid by the Italian State;

               —

               order the Commission to pay the costs incurred by Buonotourist s.r.l.

      Pleas in law and main arguments

   By the contested decision in the present case, the Commission declared that the payments made to Buonotourist, either by way of compensation or reparation for damage, for the unlawful unilateral imposition of public service obligations (PSO) for the period 1996-2002, in so far as they constitute a measure that has not been notified, constitute State aid within the meaning of Article 107(1) of the Treaty, which is incompatible with the internal market. As a consequence, the decision imposed operational measures for the recovery of the aid.
   In support of the action, the applicant relies on 8 pleas in law.

               1.

               First plea in law, alleging infringement of Articles 93, 107, 108 and 263 TFEU in relation to Article 17 of Council Regulation (EEC) No 1191/69 of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ, English Special Edition, 1969(1), p. 276).

                           —

                           It is submitted in this regard that the question whether the compensation payments made in respect of PSO tariffs pursuant to Regulation No 1191/69 are compatible with Community law should have been considered in the light of the provisions of that regulation, not by reference to the Treaty provisions on State aid. The Commission therefore erred in law by acting on the basis of the Treaty provisions.

               2.

               Second plea in law, alleging infringement of Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) in relation to Articles 107 and 108 TFEU.

                           —

                           It is submitted in this regard that the Commission treated the payments made to Buonotourist for the PSO imposed on it as a measure that had not been notified. On the contrary, those payments were made after the measure had been notified to the Commission. As a consequence, the Commission erred in law and made a procedural error by adopting the decision to open the procedure 14 months after receipt of the notification.

               3.

               Third plea in law, alleging infringement of Articles 93, 107 and 108 TFEU in relation to Article 17 of Regulation No 1191/69 and to Article 9 of Regulation (EEC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).

                           —

                           It is submitted in this regard that the Commission erred in law in that it infringed the principles of legal certainty and of the protection of legitimate expectations as the case is governed by Regulation No 1191/69.

               4.

               Fourth plea in law, alleging infringement of Article 1(f) in relation to Article 1(g) and to Articles 4, 7 and 15 of Regulation No 659/1999, for the purposes of Article 17 of Regulation No 1191/69.

                           —

                           It is submitted in this regard that compensation paid pursuant to that regulation is exempt from any preliminary information procedure and that the sums received by Buonotourist may therefore be classified as existing aid. The Commission erred in law by infringing Article 108(2) TFEU as it cannot order the recovery of sums paid on the basis that the aid granted is classified as unlawful.

               5.

               Fifth plea in law, alleging infringement of Article 267 TFEU, Articles 6 and 13 ECHR and Articles 93, 107 and 108 TFEU.

                           —

                           It is submitted in this regard that the Consiglio di Stato has already carried out an assessment in relation to what is covered by the provisions laid down in Articles 11 and 17 of Regulation No 1191/69, thereby adopting a position to the effect that the sums granted are covered as existing aid. The Commission exceeded its power as it cannot annul decisions of judicial bodies, including national judicial bodies, when they apply Community law.

               6.

               Sixth plea in law, alleging infringement of Articles 6, 7 and 13 ECHR; Articles 93 — 107 and 108 in relation to Article 258 et seq. TFEU, in relation to Article 101 of the Constitution of the Italian Republic; and Article 2909 of the Italian Civil Code.

                           —

                           It is submitted in this regard that the contested decision has an impact on the status of res judicata of the judgment of the Consiglio di Stato interpreting and applying Community rules. The Commission has therefore once again exceeded its powers as it cannot set aside the judgment having the status of res judicata but must institute proceedings pursuant to Article 258 TFEU.

               7.

               Seventh plea in law, alleging infringement of Articles 11 and 17 of Regulation No 1191/69, Articles 93, 107 and 108 TFEU, and misuse of power in the present case.

                           —

                           It is submitted in this regard that a measure may be classified as State aid if it actually and specifically affects trade and free competition, in so far as it must be demonstrated that there is in fact such an effect. The Commission has absolutely failed to demonstrate that this is the case, especially in view of the fact that in the Regione Campania the internal local public transport (LPT) market has never been open to competition.

               8.

               Eighth plea in law, alleging infringement of Articles 1, 11 and 17 of Regulation No 1191/69 and Articles 93, 107 and 108 TFEU.

                           —

                           It is submitted in this regard that the Commission made a factual error as it maintained that the compensation granted was calculated by a method established ex post. It is apparent from the documents annexed to the application that the opposite is in fact the case.


title: Case T-810/16: Action brought on 21 November 2016 — Barmenia Krankenversicherung v EUIPO (Mediline)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/49

         Action brought on 21 November 2016 — Barmenia Krankenversicherung v EUIPO (Mediline)
   (Case T-810/16)
   (2017/C 022/66)
   Language of the case: German

      Parties

      Applicant: Barmenia Krankenversicherung a.G. (Wuppertal, Germany) (represented by: M. Graf, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the procedure before EUIPO

      Mark at issue: EU word mark ‘Mediline’ — EU trade mark No 14 655 385

      Contested decision: decision of the First Board of Appeal of EUIPO of 8 September 2016 in Case R 2437/2015-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law

               —

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

               —

               infringement of Article 7(1)(c) of Regulation No 207/2009.


title: Case C-540/13: Action brought on 15 October 2013 — European Parliament v Council of the European Union

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/6

         Action brought on 15 October 2013 — European Parliament v Council of the European Union
   (Case C-540/13)
   2013/C 359/09
   Language of the case: French

      Parties

      Applicant: European Parliament (represented by: F. Drexler, A. Caiola, M. Pencheva, acting as Agents)

      Defendant: Council of the European Union

      Form of order sought

   The European Parliament claims that the Court should:

               —

               annul Council Decision 2013/392/EU of 22 July 2013 fixing the date of effect of Decision 2008/633/JHA concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences; (1)

               —

               maintain the effects of Council Decision 2013/392/EU, until such time that it is replaced by a new act adopted in accordance with law;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   The European Parliament puts forward two pleas in law in support of its action.
   First, the European Parliament disputes the Council’s use of an incorrect decision-making procedure for the adoption of Decision 2013/392/EU. The European Parliament should in fact have been involved in the adoption of the contested decision under an ordinary legislative procedure. Having not been involved with the adoption of the act, the European Parliament considers that the decision-making procedure followed by the Council is vitiated by an essential procedural requirement.
   Second, the European Parliament alleges that the Council used either a legal basis which had been repealed by the entry into force of the Lisbon Treaty, or a secondary legal basis which is unlawful under the case-law of the Court of Justice.
   Finally, should the Court of Justice decide to annul the contested decision, the Parliament considers that it would be appropriate for the Court to maintain the effects of the contested decision, in accordance with Article 264, second paragraph, TFEU, until such time that it is replaced by a new act adopted in accordance with law.

      (1)  OJ 2013 L 198, p. 45.


title: Case T-334/07: Judgment of the Court of First Instance of 19 November 2009 — Denka International v Commission (Plant-protection products — Active substance dichlorvos — Non-inclusion in Annex I to Directive 91/414/EEC — Evaluation procedure — Opinion of an EFSA Scientific Panel — Plea of illegality — Article 20 of Regulation (EC) No 1490/2002 — Submission of new studies and data during the evaluation procedure — Article 8 of Regulation (EC) No 451/2000 — Article 28(1) of Regulation (EC) No 178/2002 — Legitimate expectations — Proportionality — Equal treatment — Principle of sound administration — Rights of the defence — Principle of subsidiarity — Article 95(3) EC and Articles 4(1) and 5(1) of Directive 91/414)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/23

         Judgment of the Court of First Instance of 19 November 2009 — Denka International v Commission
   (Case T-334/07) (1)

   (Plant-protection products - Active substance dichlorvos - Non-inclusion in Annex I to Directive 91/414/EEC - Evaluation procedure - Opinion of an EFSA Scientific Panel - Plea of illegality - Article 20 of Regulation (EC) No 1490/2002 - Submission of new studies and data during the evaluation procedure - Article 8 of Regulation (EC) No 451/2000 - Article 28(1) of Regulation (EC) No 178/2002 - Legitimate expectations - Proportionality - Equal treatment - Principle of sound administration - Rights of the defence - Principle of subsidiarity - Article 95(3) EC and Articles 4(1) and 5(1) of Directive 91/414)
   2010/C 11/44
   Language of the case: English

      Parties

      Applicant: Denka International BV (Barneveld, Netherlands) (represented by: C. Mereu and K. Van Maldegem, lawyers)

      Defendant: Commission of the European Communities (represented by: B. Doherty and L. Parpala, acting as Agents)

      Re:

   Application for annulment of Commission Decision 2007/387/EC of 6 June 2007 concerning the non-inclusion of dichlorvos in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 145, p. 16)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Denka International BV to bear its own costs and to pay those of the Commission of the European Communities.

      (1)  OJ C 269, 10.11.2007.


title: Case C-378/12: Judgment of the Court (Second Chamber) of 16 January 2014 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber) London — United Kingdom) — Nnamdi Onuekwere v Secretary of State for the Home Department (Request for a preliminary ruling — Directive 2004/38/EC — Article 16(2) and (3) — Right of permanent residence of third-country nationals who are family members of a Union citizen — Taking into consideration of periods of imprisonment of those nationals)

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/6

         Judgment of the Court (Second Chamber) of 16 January 2014 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber) London — United Kingdom) — Nnamdi Onuekwere v Secretary of State for the Home Department
   (Case C-378/12) (1)

   (Request for a preliminary ruling - Directive 2004/38/EC - Article 16(2) and (3) - Right of permanent residence of third-country nationals who are family members of a Union citizen - Taking into consideration of periods of imprisonment of those nationals)
   2014/C 85/10
   Language of the case: English

      Referring court

   Upper Tribunal (Immigration and Asylum Chamber) London

      Parties to the main proceedings

      Applicant: Nnamdi Onuekwere

      Defendant: Secretary of State for the Home Department

      Re:

   Request for a preliminary ruling — Upper Tribunal (Immigration and Asylum Chamber) London — Interpretation of Article 16 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Right of permanent residence — Concept of legal residence for a period of five years in the host Member State — Possibility of a period of imprisonment being taken into account.

      Operative part of the judgment

               1.

               Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that the periods of imprisonment in the host Member State of a third-country national, who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods, cannot be taken into consideration in the context of the acquisition by that national of the right of permanent residence for the purposes of that provision.

               2.

               Article 16(2) and (3) of Directive 2004/38 must be interpreted as meaning that the continuity of residence is interrupted by periods of imprisonment in the host Member State of a third-country national who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods.

      (1)  OJ C 295, 29.9.2012.


title: Case T-578/15: Action brought on 30 September 2015 — Azur Space Solar Power v OHIM (Representation of a solar cell)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/33

         Action brought on 30 September 2015 — Azur Space Solar Power v OHIM (Representation of a solar cell)
   (Case T-578/15)
   (2015/C 414/43)
   Language of the case: English

      Parties

      Applicant: Azur Space Solar Power GmbH (Heilbronn, Germany) (represented by: J. Nicodemus, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: International registration designating the European Union in respect of a figurative mark (Representation of a solar cell) — International registration No 1 201 973

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 27 July 2015 in Case R 2780/2014-4

      Forms of order sought

   The applicant claims that the Court should:

               —

               annul the refusal of OHIM;

               —

               order OHIM to pay the costs.

      Plea in law

               —

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


title: Case T-480/10: Action brought on 4 October 2010 — Département du Gers v Commission

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/50

         Action brought on 4 October 2010 — Département du Gers v Commission
   (Case T-480/10)
   ()
   2010/C 346/97
   Language of the case: French

      Parties

      Applicant: Département du Gers (Auch, France) (represented by: S. Mabile and J.-P. Mignard, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul Decision 2010/426/EU of the European Commission of 28 July 2010 authorising the placing on the market of products containing, consisting of, or produced from genetically modified maize Bt11xGA21 (SYN-BTØ11-1xMON-ØØØ21-9) pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The pleas in law and the main arguments raised by the applicant are identical or essentially the same as those raised in Case T-478/10 Département du Gers v Commission.


title: Case T-13/00: Order of the Court of First Instance of 5 September 2006 — Baltussen and Others v Commission

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/30

         Order of the Court of First Instance of 5 September 2006 — Baltussen and Others v Commission
   (Case T-13/00) (1)

   (2006/C 261/61)

      Language of the case: Dutch

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

      (1)  OJ C 135, 13.5.2000.


title: Case C-407/06: Judgment of the Court (Seventh Chamber) of 10 May 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Protection of workers — Major accident hazards involving dangerous substances — Failure to transpose within the prescribed period)

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/5

         Judgment of the Court (Seventh Chamber) of 10 May 2007 — Commission of the European Communities v Kingdom of Belgium
   (Case C-407/06) (1)

   (Failure of a Member State to fulfil obligations - Protection of workers - Major accident hazards involving dangerous substances - Failure to transpose within the prescribed period)
   (2007/C 140/09)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: B. Schima and J. Hottiaux, Agents)

      Defendant: Kingdom of Belgium (represented by: D. Haven, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances (OJ 2003 L 345, p. 97).
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 281 of 18.11.2006.


title: Case T-706/14: Action brought on 3 October 2014  — Holistic Innovation Institute v REA

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/44

         Action brought on 3 October 2014 — Holistic Innovation Institute v REA
   (Case T-706/14)
   2014/C 421/62
   Language of the case: Spanish

      Parties

      Applicant: Holistic Innovation Institute, SLU (Madrid, Spain) (represented by: R. Muñiz García, lawyer)

      Defendant: Research Executive Agency (REA)

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the contested decision excluding the applicant from the INACHUS and ZONeSEC projects;

               —

               compensate the applicant and order the defendant to pay the amount of EUR 7 81  250, corresponding to the two projects from which it has been excluded, together with interest at the statutory rate from when the payments were to accrue; and

               —

               compensate the applicant and order the defendant to pay the amount determined by the expert appointed by the General Court, for the additional harm that exclusion from the projects caused to the applicant.

      Pleas in law and main arguments

   The present action is directed against the decision of the Research Executive Agency of the European Commission of 24 July 2014, reference ARES (2014) 2461172, terminating negotiations and rejecting the participation of the applicant in the European projects INACHUS (607522) and ZONeSEC (607292) of the Call for Proposals FP7-SEC-2013-1 of the Seventh Framework Programme.
   In support of its action, the applicant relies on five pleas in law.

               1.

               The decision is manifestly unfounded, containing a mere ostensible statement of reasons.

               2.

               The independent evaluators reported favourably on projects in which the applicant company participated.

               3.

               After those reports, the defendant changed the criteria as a retaliatory measure against the director of the applicant, who had previously brought proceedings against the European Commission in connection with a dispute relating to the company Rose Visión S.L.

               4.

               The agents of the defendant put pressure on the other participants in the projects to exclude the applicant before the decision, in an attempt thereby to avoid having to take the contested decision.

               5.

               The defendant’s conduct caused the applicant damage and prejudicial consequences.


title: Case T-268/08: Action brought on 11 July 2008 — Land Burgenland v Commission

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/14

         Action brought on 11 July 2008 — Land Burgenland v Commission
   (Case T-268/08)
   (2008/C 247/27)
   Language of the case: German
   Parties

      Applicant: Land Burgenland (represented by: U. Soltész and C. Herbst, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Pursuant to Article 231(1) EC, annul Commission Decision C(2008) 1625 final of 30 April 2008 (No C 56/2006, ex NN 77/2006 — Privatisation of the Bank Burgenland) in its entirety;

               —

               Pursuant to Article 87(1) of the Rules of Procedure of the Court, order the Commission to pay the applicant's costs.

         Pleas in law and main arguments
   The applicant contests Commission Decision C(2008) 1625 final of 30 April 2008 in which the Commission decided that the State aid which Austria granted in contravention of Article 88(3) EC to the Versicherungsgesellschaft Grazer Wechselseitige Versicherung AG and the GW Beteiligungserwerbs- und -verwaltungs-GmbH in the context of the privatisation of the HYPO Bank Burgenland AG is incompatible with the common market.
   The applicant makes the following pleas in law in support of its action:

               —

               erroneous application of Article 87(1) EC by the Commission when it fixed the market price, as a tender procedure is not mandatory;

               —

               erroneous application of Article 87(1) EC by the Commission as a result of the infringement of existing Commission practice;

               —

               erroneous application of Article 87(1) EC by the Commission since a private seller would also have had to predict that the Austrian Financial Market Authority would reject the bidder which made the highest bid;

               —

               erroneous application of Article 87(1) EC by the Commission since the applicant should have been allowed to take into account the legal guarantee (‘Ausfallhaftung’) for certain liabilities of the privatised bank in its decision to award aid;

               —

               erroneous application of the private vendor principle by the Commission when assessing the influence of the legal guarantee on the decision to sell;

               —

               erroneous application of Article 87(1) EC by the Commission as a result of mistaken application of the burden of proof or of the obligation to submit evidence in a tender procedure;

               —

               erroneous application of Article 87(1) EC by the Commission since the tender by the bidder with the highest offer cannot operate as the basis for the determination of the market price;

               —

               incorrect assessment of the economic value of the share issues of the privatised bank by the Commission; and

               —

               erroneous application of Article 87(1) EC by the Commission in the context of the determination of a State aid component.


title: Case C-608/15 P: Appeal brought on 17 November 2015 by Panasonic Corp. against the judgment of the General Court (Third Chamber) delivered on 9 September 2015 in Case T-82/13: Panasonic Corp. and MT Picture Display Co. Ltd v European Commission

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/23

         Appeal brought on 17 November 2015 by Panasonic Corp. against the judgment of the General Court (Third Chamber) delivered on 9 September 2015 in Case T-82/13: Panasonic Corp. and MT Picture Display Co. Ltd v European Commission
   (Case C-608/15 P)
   (2016/C 027/27)
   Language of the case: English

      Parties

      Appellant: Panasonic Corp. (represented by: R. Gerrits, advocaat, M. Hoskins QC, M. Gray, Barrister)

      Other parties to the proceedings: European Commission, MT Picture Display Co. Ltd

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the Judgment and Order of the General Court: (i) to the extent that the Judgment found that Commission Decision C(2012) 8839 final of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 — TV and Computer Monitor Tubes) had not infringed Panasonic’s rights of defence and right to be heard in the period prior to 10 February 2003; and/or (ii) insofar as it failed to annul in whole or in part the finding at Articles 1(2)(c) and (e) of the Decision that Panasonic and MTPD participated in the infringement during the period from 1 April 2003 to 12 June 2006;

               —

               annul: (i) Article 1(2)(c) of the Decision insofar as it found that Panasonic participated in the CPT cartel from 15 July 1999 to 10 February 2003; and/or (ii) Articles 1(2)(c) and (e) of the Decision in respect of the period from 1 April 2003 to 12 June 2006;

               —

               reduce the fine imposed by Article 2(2)(f) of the Decision; and/or annul and/or further reduce the fines imposed on Panasonic and MTPD by Articles 2(2)(h) and 2(2)(i) of the Decision as appropriate, from the levels of those fines fixed by the Judgment at EUR 82 826 000 and EUR 7 530 000 respectively; further or alternatively

               —

               remit the case to the General Court for further consideration in accordance with the law;

               —

               order the European Commission to pay the costs of Panasonic arising from the present appeal.

      Pleas in law and main arguments

               1.

               First plea: The General Court incorrectly found that the Commission had discharged its burden of setting out in the statement of objections the essential elements against Panasonic, including the basis upon which it was alleged that Panasonic knew about the overall CPT cartel. The General Court erred in law by holding that it is sufficient for the Commission to set out one of the essential elements of the infringement implicitly but necessarily in the statement of objections.

               2.

               Second plea: The General Court should afford Panasonic and MTPD the same relief as may be granted to Toshiba Corporation (‘Toshiba’) in any appeal that it may bring in relation to the period of time for which Toshiba was found jointly and severally liable with Panasonic and MTPD. In T-104/13 Toshiba v Commission, the General Court held that any annulment or alteration of the Decision in relation to the imputation of the unlawful conduct of the joint venture MTPD to Panasonic also benefitted Toshiba. Consequently, Panasonic contends that, should Toshiba obtain an order from this Court setting aside the judgment of the General Court insofar as it did not annul the Decision and/or annul or reduce the fine in relation to the period of time for which Toshiba was found jointly and severally liable for an infringement with Panasonic and MTPD, the General Court would also have erred in not granting Panasonic and MTPD the same relief as ought to have been granted to Toshiba.


title: Case C-89/99: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that court of 5 March 1999 in the case of 1. V.O.F. Schieving-Nijstad, 2. W. G. Schieving and 3. H. Nijstad against R. Groeneveld

text:
C 136/12              EN                    Official Journal of the European Communities                                      15.5.1999
7. Can the rule in Sections 24(2) JAG and 14(a) JAO be                 Reference for a preliminary ruling by the Hoge Raad der
    justified for the purposes of Article 2(4) of Directive            Nederlanden by judgment of that court of 5 March 1999
    76/207/EEC merely on the ground that it counterbalances            in the case of 1. V.O.F. Schieving-Nijstad, 2. W. G.
    disadvantages not faced by women as they are not subject                Schieving and 3. H. Nijstad against R. Groeneveld
    to a duty of service?
                                                                                (Case C-89/99)
8. Can Article 6 of Directive 76/207/EEC found a right of
    access to training where refusal of access is based on                                     (1999/C 136/22)
    discrimination and there are no other available sanctions
    in the form of rights to compensation?                             Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Hoge Raad der
(1) OJ L 39, 14.2.1976, p. 40.                                         Nederlanden (Supreme Court of the Netherlands) of 5 March
                                                                       1999, received at the Court Registry on 15 March 1999, for a
                                                                       preliminary ruling in the case of 1. V.O.F. Schieving-Nijstad, 2.
                                                                       W. G. Schieving and 3. H. Nijstad against R. Groeneveld on
                                                                       the following questions:
Reference for a preliminary ruling by the Hoge Raad der
                                                                       1. Does Article 50 of the TRIPs Agreement, in particular
Nederlanden by judgment of 26 February 1999 in the case
                                                                           Article 50(6), have direct effect?
of 1. Amsterdamsche Football Club ‘AJAX ’, 2. Langenberg
Participaties B.V., also trading under the name Fan Pro-               2. Is Article 50(6) of the TRIPs Agreement to be interpreted
motions, v 1. S. C. Reule, 2. S. J. Reule, and 3. Fan Image                as meaning that provisional measures, within the meaning
                               B.V.                                        of subparagraphs (1) and (2) of that provision, must
                                                                           automatically lapse by operation of law either in the event
                         (Case C-84/99)                                    that the substantive proceedings are not instituted within
                                                                           the period prescribed for their commencement in the
                        (1999/C 136/20)                                    provisional measure or, in the absence of the determination
Reference has been made to the Court of Justice of the                     of such a period, where the substantive proceedings are
European Communities by judgment of 26 February 1999 of                    not commenced within 20 working days or 31 calendar
the Hoge Raad der Nederlanden (Supreme Court of the                        days (whichever is the longer period); alternatively, in order
Netherlands), which was received at the Court Registry on                  for the provisional measure to lapse, is it (invariably)
9 March 1999, for a preliminary ruling in the case of                      necessary for an appeal to have been lodged by the party
1. Amsterdamsche Football Club ‘AJAX’, 2. Langenberg Partici-              against whom that measure has been ordered?
paties B.V., also trading under the name Fan Promotions, v             3. Where the time-limit within which the substantive pro-
1. S. C. Reule, 2. S. J. Reule, and 3. Fan Image B.V. on the               ceedings must be brought is not prescribed in the pro-
following question: Does Article 50(6) of the TRIPs Agreement              visional measures ordered, does it commence on:
have direct effect?
                                                                           (a) the day after the date on which the court ordered the
                                                                                provisional measure in question; or
                                                                           (b) the day after the date on which the decision ordering
                                                                                the provisional measure was served on the defendant;
Reference for a preliminary ruling by the Tribunal de                           or
Grande Instance, Béthune, by judgment of that court of
24 March 1998 in the case of Roquette Frères SA against                    (c) the day after the date on which the decision ordering
              the Direction des Services Fiscaux                                the provisional measure became definitive and no
                                                                                longer open to challenge; or
                         (Case C-88/99)
                                                                           (d) at any other point in time?
                        (1999/C 136/21)                                4. Where a court orders a provisional measure, must it of its
Reference has been made to the Court of Justice of the                     own motion fix a time-limit within which substantive
European Communities by judgment of the Tribunal de                        proceedings are to be instituted, or may it fix such a
Grande Instance (High Court), Béthune of 24 March 1998,                    time-limit only if an application is made to that effect?
received at the Court Registry on 15 March 1999, for a                 5. Where a court is called upon in appeal proceedings to
preliminary ruling in the case of Roquette Frères SA against               adjudicate on a measure ordered by a lower court in
the Direction des Services Fiscaux (Tax Department). The                   proceedings at first instance, and that appellate court
Tribunal de Grande Instance, Béthune seeks a ruling from the               confirms that measure, is it open to the appellate court to
Court of Justice on the legality of Article 190 of the Livre des           prescribe, either of its own motion or on application by
Procédures Fiscales (Book of Tax Procedures) and, in particular,           one of the parties, a time-limit within the meaning
on the question whether the French Government was entitled,                hereinbefore referred to, if the court seised of the matter at
under Community law, to make a distinction between the date                first instance has not done so?
on which an action became time-barred and the date on which
recovery became time-barred, entailing a difference in the             6. Is Article 50 of the TRIPs Agreement applicable where that
treatment of actions under national law and actions com-                   agreement enters into force in the Contracting State
menced on the basis of a judgment of the Court of Justice of               concerned on a date following the closure of the trial
the European Communities in which a provision of national                  procedure at first instance but before the court seised of
law was found to be illegal.                                               the first-instance proceedings has delivered its decision?


title: Case T-605/15: Action brought on 23 October 2015 — Wirtschaftsvereinigung Stahl and Others v Commission

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/63

         Action brought on 23 October 2015 — Wirtschaftsvereinigung Stahl and Others v Commission
   (Case T-605/15)
   (2016/C 027/80)
   Language of the case: German

      Parties

      Applicants: Wirtschaftsvereinigung Stahl (Düsseldorf, Germany), Benteler Steel/Tube GmbH (Paderborn, Germany), BGH Edelstahl Freital GmbH (Freital, Germany), BGH Edelstahl Lippendorf GmbH (Lippendorf, Germany), BGH Edelstahl Siegen GmbH (Siegen, Germany), Buderus Edelstahl GmbH (Wetzlar, Germany), ESF Elbe-Stahlwerke Feralpi GmbH (Riesa, Germany), Friedr. Lohmann GmbH Werk für Spezial- & Edelstähle (Witten, Germany), Outokumpu Nirosta GmbH (Krefeld, Germany), Rogesa Roheisengesellschaft Saar mbH (Dillingen, Germany), Zentralkokerei Saar GmbH (Dillingen), Drahtwerk St. Ingbert GmbH (Sankt Ingbert, Germany), Ilsenburger Grobblech GmbH (Ilsenburg, Germany), ThyssenKrupp Electrical Steel GmbH (Gelsenkirchen, Germany), ThyssenKrupp Federn und Stabilisatoren GmbH (Hagen, Germany), ThyssenKrupp Gerlach GmbH (Homburg, Germany), ThyssenKrupp Rasselstein GmbH (Andernach, Germany) und Emscher Aufbereitung GmbH (Mühlheim an der Ruhr, Germany) (represented by: H. Janssen, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the contested decision;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   By the present action, the applicants seek the annulment of Commission Decision (EU) 2015/1585 of 25 November 2014 (notified under document C(2014) 8786) on the aid scheme SA.33995 (2013/C) (ex 2013/NN) implemented by Germany for the support of renewable electricity and of energy-intensive users. (1)

   In support of the action, the applicants rely on four pleas in law which are, in essence, identical or similar to the pleas relied on in Case T-319/15 Deutsche Edelstahlwerke v Commission. (2)

      (1)  OJ 2015 L 250, p. 122.

      (2)  OJ 2015 C 302, p. 60.


title: Case T-167/05: Judgment of the Court of First Instance of 13 June 2007 — Grether v OHIM — Crisgo (FENNEL) (Community trade mark — Opposition proceedings — Application for the figurative Community trade mark FENNEL — Earlier Community word mark FENJAL — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b), Article 73, second sentence, and Article 74(1) of Regulation (EC) No 40/94)

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/22

         Judgment of the Court of First Instance of 13 June 2007 — Grether v OHIM — Crisgo (FENNEL)
   (Case T-167/05) (1)

   (Community trade mark - Opposition proceedings - Application for the figurative Community trade mark FENNEL - Earlier Community word mark FENJAL - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b), Article 73, second sentence, and Article 74(1) of Regulation (EC) No 40/94)
   (2007/C 170/42)
   Language of the case: English
   Parties

      Applicant: Grether AG (Binningen, Switzerland) (represented by: initially, V. von Bomhard, A. Pohlmann and A. Renck, and subsequently, V. von Bomhard, A. Pohlmann and T. Dolde, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Crisgo (Thailand) Co. Ltd (Samutsakom, Thailand) (represented by: A. Bensoussan, M. Haas and L. Tellier-Loniewski, lawyers)
   Re:
   Action brought against the decision of the Fourth Chamber of the Board of Appeal of OHIM of 14 October 2004 (Case R 250/2002-4) concerning opposition proceedings between Grether AG and Crisgo (Thailand) Co. Ltd.
   Operative part of the judgment
   The Court:

               1.

               dismisses the action;

               2.

               orders the applicant to pay the costs.

      (1)  OJ C 182, 23.7.2005.


title: Case F-13/05: Order of the Civil Service Tribunal (Third Chamber) of  18 May 2006  –Corvoisier and Others v European Central Bank (Staff of the European Central Bank — Vacancy notice — Act adversely affecting staff — Pre-litigation procedure — Inadmissibility)

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/33

         Order of the Civil Service Tribunal (Third Chamber) of 18 May 2006 –Corvoisier and Others v European Central Bank
   (Case F-13/05) (1)

   (Staff of the European Central Bank - Vacancy notice - Act adversely affecting staff - Pre-litigation procedure - Inadmissibility)
   (2006/C 165/66)
   Language of the case: French
   Parties

      Applicants: Sandrine Corvoisier, Roberta Friz, Hundjy Peurd'Homme and Elvira Rosati (Frankfurt-am-Main, Germany) (represented by: G. Vandersanden and L. Levi, lawyers)

      Defendant: European Central Bank (represented by: H. Weenink and K. Sugar, agents, assisted by B. Wägenbaur, lawyer)
   Re:
   First, application for annulment of European Central Bank vacancy notice ECB/156/04 aimed at filling six posts as Record Management Specialists; second, application for annulment of all decisions taken in implementation of the vacancy notice; third, application for damages for the losses allegedly caused as a result of all of the aforementioned decisions.
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               The parties are ordered to bear their own costs.

      (1)  OJ C 132 of 28.5.2005 (case initially registered before the Court of First Instance of the European Communities under Case T-126/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).


C 118/26              EN                   Official Journal of the European Communities                                     21.4.2001
        Removal from the register of Case C-8/00 (1)                         Removal from the register of Case C-102/99 (1)
                         (2001/C 118/58)                                                     (2001/C 118/61)
By order of 19 October 2000 the President of the Court of             By order of 27 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal           Justice of the European Communities has ordered the removal
from the register of Case C-8/00: Commission of the European          from the register of Case C-102/99: (reference for a preliminary
Communities v Ireland.                                                ruling from the Commissione Tributaria Regionale di Venezia):
                                                                      Veneta Assicurazioni SpA. v Ufficio del Registro di Padova.
(1) OJ C 63 of 4.3.2000.
                                                                      (1) OJ C 136 of 15.5.1999.
       Removal from the register of Case C-331/99 (1)
                                                                             Removal from the register of Case C-421/99 (1)
                         (2001/C 118/59)
                                                                                (2001/C 118/62)
By order of 25 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 27 October 2000 the President of the Court of
from the register of Case C-331/99: Commission of the                 Justice of the European Communities has ordered the removal
European Communities v France.                                        from the register of Case C-421/99: Commission of the
                                                                      European Communities v Italy.
(1) OJ C 314 of 30.10.1999.
                                                                      (1) OJ C 20 of 22.1.2000.
       Removal from the register of Case C-95/00 (1)
                                                                             Removal from the register of Case C-469/99 (1)
                         (2001/C 118/60)
                                                                                (2001/C 118/63)
By order of 26 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 27 October 2000 the President of the Court of
from the register of Case C-95/00: [reference for a preliminary       Justice of the European Communities has ordered the removal
ruling from the Landesgericht Korneuburg (Austria)]: O’Neill          from the register of Case C-469/99: Commission of the
Incorporated v JOMO s.r.o.                                            European Communities v Italian Republic.
(1) OJ C 149 of 27.5.2000.                                            (1) OJ C 47 of 19.2.2000.


title: Reference for a preliminary ruling from the Hoge Raad, Netherlands, by judgment of that court of 12 November 1997 in the case of Staatssecretaris van Financiën v. J. Heerma and the company, J. Heerma and K. Heerma-Graanstra (Case C-23/98)

text:
C 94/12               EN                 Official Journal of the European Communities                                    28.3.98
    States must respect, in the case where the loading and          Reference for a preliminary ruling by the Juzgado de lo
    unloading in port areas of, in particular, goods                Social No 1, Santiago de Compostela by order of that
    imported by sea from one Member State into the                  court of 13 January 1998 in the case of Dorinda Teresa
    territory of another Member State and port work in              López Tourís against Instituto Nacional de Empleo and
    general are reserved exclusively to registered dockers',                 Instituto Nacional de la Seguridad Social
    the conditions and detailed rules for the recognition of
    whom are determined by the King on the advice of the                                   (Case C-25/98)
    Joint Committee having responsibility for the port
    area in question, whereby binding rates are applied,                                    (98/C 94/24)
    even though the work can be carried out by ordinary
    (that is to say, non-registered) dock workers?
2. Are registered dockers, as referred to in Article 1 of
    the Law of 8 June 1972 and having the exclusive right           Reference has been made to the Court of Justice of the
    to carry out dock work within port areas, as defined            European Communities by order of the Juzgado de lo
    in greater detail in the relevant legislative provisions,       Social (Social Court) No 1, Santiago de Compostela of
    to be regarded as entrusted with the operation of               13 January 1998, which was received at the Court
    services of general economic interest within the                Registry on 29 January 1998, for a preliminary ruling in
    meaning of Article 90(2) of the EC Treaty, and would            the case of Dorinda Teresa López Tourís against Instituto
    they no longer be able to carry out their special duties        Nacional de Empleo and Instituto Nacional de la
    if Article 90(1) and the prohibitory provisions of              Seguridad Social on the following questions:
    Articles 7, 85 and 86 of the EC Treaty were to be
    applied to them?
                                                                    1. Must Article 67(1) of Regulation (EEC) No 1408/71
                                                                        (in its present version) be interpreted, as regards the
                                                                        particular facts to which it is to be applied, as
                                                                        meaning that periods of insurance or of employment
Reference for a preliminary ruling from the Hoge Raad,                  completed under the legislation of any other Member
Netherlands, by judgment of that court of 12 November                   State must be taken into account for the purposes of
1997 in the case of Staatssecretaris van FinancieÈn v. J.               obtaining the unemployment allowance for persons
Heerma and the company, J. Heerma and K. Heerma-                        over 52 years of age, provided for by Article 215(3) of
                           Graanstra                                    Real Decreto Legislativo (Royal Legislative Decree) 1/
                        (Case C-23/98)                                  1994 of 20 June 1994, which approves the
                                                                        consolidated version of the Ley General de la
                         (98/C 94/23)                                   Seguridad Social (General Law on Social Security), to
                                                                        the extent to which the right to a retirement pension
                                                                        may be obtained on the basis of such contributions,
                                                                        subject to age requirements, in a Member State other
Reference has been made to the Court of Justice of the                  than that of the competent institution?
European Communities by a judgment of the Hoge Raad
(Supreme Court), Netherlands, of 12 November 1997,
which was received at the Court Registry on 28 January
1998, for a preliminary ruling in the case of
Staatssecretaris van FinancieÈn v. J. Heerma and the
company, J. Heerma and K. Heerma-Graanstra on the                   2. Can that be the case even though the worker has not
following question:                                                     paid contributions in Spain or has paid contributions
                                                                        for less than one year, provided that he is entitled to a
                                                                        retirement pension in any Member State?
Must Article 4(1) of the Sixth Directive be interpreted as
meaning that, where a person pursues as his sole economic
activity the letting of an incorporeal asset to the company
of which he is a member, that letting, albeit an economic
activity, must be regarded as not being made
independently, on the ground that the partner must be               3. Is the requirement that, for migrant workers to receive
deemed to constitute a taxable person together with the                 the unemployment allowance available for persons of
partnership within the meaning of Article 4(1) aforesaid?               more than 52 years of age, it must be shown that,
                                                                        subject to age requirements, they are entitled to a
                                                                        retirement pension payable by the Spanish social
                                                                        security scheme (persons having such an entitlement in
                                                                        any other Member State being precluded from


title: Case C-90/12: Judgment of the Court (Ninth Chamber) of 7 November 2013 — European Commission v Republic of Poland (Failure of a Member State to fulfil obligations — Air transport — Agreements relating to air services between Member States and third countries — Obligation on Member States to distribute traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure and to inform the Commission of that procedure without delay)

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/7

         Judgment of the Court (Ninth Chamber) of 7 November 2013 — European Commission v Republic of Poland
   (Case C-90/12) (1)

   (Failure of a Member State to fulfil obligations - Air transport - Agreements relating to air services between Member States and third countries - Obligation on Member States to distribute traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure and to inform the Commission of that procedure without delay)
   2014/C 9/09
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: K. Simonsson and M. Owsiany-Hornung, acting as Agents)

      Defendant: Republic of Poland (represented by: B. Majczyna and M. Szpunar, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 5 and 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries (OJ 2004 L 157, p. 7) — Obligation on the Member States to distribute traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure and to inform the Commission of that procedure without delay

      Operative part of the judgment

   The Court:

               1.

               Declares that, by not taking the necessary measures to comply with Articles 5 and 6 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries, the Republic of Poland has failed to fulfil its obligations under those provisions;

               2.

               Orders the Republic of Poland to pay the costs.

      (1)  OJ C 126, 28.4.2012.


title: Case T-602/17: Action brought on 4 September 2017 — Spain v Commission

text:
               23.10.2017

               EN

               Official Journal of the European Union

               C 357/27

         Action brought on 4 September 2017 — Spain v Commission
   (Case T-602/17)
   (2017/C 357/37)
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: M. Sampol Pucurull and A. Gavela Llopis, agents)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Commission Implementing Decision C(2017) 4136 of 26 June 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF), fruit and vegetable sector, operational funds, in so far as it affects the Kingdom of Spain.

      Pleas in law and main arguments

   In support of its action, the applicant relies upon four pleas in law.

               1.

               First plea in law, alleging infringement of Article 26(2) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors. (1)

                           —

                           The applicant claims in this regard that the Commission made a manifest error in finding a failure to check the criterion of recognition of the producers organisation’s main activity, inasmuch as that check is ensured by the adequate checking of the value of the production marketed.

                           —

                           It is also claimed that the Commission infringed the principle of protection of legitimate expectations, in that the Commission’s finding was inconsistent with the earlier finding in investigation FV/2010/004.

               2.

               Second plea in law, alleging infringement of Article 104(2)(d) of Regulation (EU) No 543/2011 and the principle of protection of legitimate expectations.

                           —

                           The applicant claims that the Commission made a manifest error with regard to this provision, in finding shortcomings in the checking of the criterion of consistency and technical quality of the investments relating to the requests for amendments to the operational programme, laid down in that provision. The applicant states in that regard that that article does not require an analysis linked to the commercial strategy of a producer organisation.

                           —

                           The applicant also claimed that the Commission infringed the principle of protection of legitimate expectations, in that the Commission’s finding was inconsistent with the earlier finding in investigation FV/2010/004.

               3.

               Third plea in law, alleging infringement of Article 59(c)(iv), Article 60(2) and (5) and Article 65 of Regulation (EU) No 543/2011 and the principle of protection of legitimate expectations.

                           —

                           The applicant claims that the Commission made a manifest error in finding shortcomings in the checking of the eligibility of the operational programme, because the regulation mentioned does not prohibit investment costs from being carried over to another annuity within the same operational programme.

                           —

                           Similarly, the Commission infringed the principle of protection of legitimate expectations in that the Commission’s finding is inconsistent with the reply given by the Director General of the European Commission’s Directorate General for Agriculture of 19 November 2013 to queries from the Spanish authorities concerning the application of Article 65 of the Regulation.

               4.

               Fourth plea in law, alleging infringement of Article 52(2) of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (2) and the Guidelines for the calculation of financial consequences contained in Document VI/5330/97.

                           —

                           The applicant claims in this regard that the flat-rate correction imposed is unfounded because there were no shortcomings in the checks. In the alternative, the applicant states that the correction is disproportionate and that, where appropriate, no correction or, as a last resort, a correction of 2 % should be imposed, given the specific circumstances and the Commission’s conduct in the present case.

      (1)  OJ 2011 L 157, p. 1.

      (2)  OJ 2013 L 347, p 549.


title: Case T-690/15: Judgment of the General Court of 2 February 2017 — Marcas Costa Brava v EUIPO — Excellent Brands JMI (Cremcaffé) (EU trade mark — Opposition proceedings — Application for EU figurative mark Cremcaffé — Earlier EU figurative mark café crem — Relative ground for refusal — Lack of genuine use of the earlier mark — Article 42(2) of Regulation (EC) No 207/2009)

text:
               13.3.2017

               EN

               Official Journal of the European Union

               C 78/28

         Judgment of the General Court of 2 February 2017 — Marcas Costa Brava v EUIPO — Excellent Brands JMI (Cremcaffé)
   (Case T-690/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark Cremcaffé - Earlier EU figurative mark café crem - Relative ground for refusal - Lack of genuine use of the earlier mark - Article 42(2) of Regulation (EC) No 207/2009))
   (2017/C 078/38)
   Language of the case: English

      Parties

      Applicant: Marcas Costa Brava, SL (Sils, Spain) (represented by: E. Manresa Medina and J. Manresa Medina, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: M. Fischer, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Excellent Brands JMI Ltd (Baar, Switzerland) (represented by: D. Majer, lawyer)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 29 September 2015 (Case R 2586/2014-5), relating to opposition proceedings between Marcas Costa Brava and Excellent Brands JMI.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Marcas Costa Brava, SL, to pay the costs.

      (1)  OJ C 48, 8.2.2016.


title: Case C-361/99: Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 6 September 1999 in the case of Dr Silveria Gäng against Republic of Austria

text:
8.1.2000              EN                   Official Journal of the European Communities                                            C 6/9
Reference for a preliminary ruling by the Landesgericht               The applicant claims that the Court of Justice should:
für Zivilrechtssachen Wien by order of that court of
6 September 1999 in the case of Dr Silveria Gäng against
                      Republic of Austria                             1. annul the Commission’s decision of 8 July 1999 concern-
                                                                          ing the application by the Spanish Government for a
                                                                          transitional regime in accordance with Article 24 of
                        (Case C-361/99)                                   Directive 96/92/EC (1) of the European Parliament and of
                                                                          the Council of 19 December 1996 concerning common
                          (2000/C 6/17)                                   rules for the internal market in electricity, and
Reference has been made to the Court of Justice of the                2. order the defendant institution to pay the costs.
European Communities by order of the Landesgericht für
Zivilrechtssachen Wien (Regional Civil Court, Vienna) of
6 September 1999, received at the Court Registry on 27 Sep-
tember 1999, for a preliminary ruling in the case of Dr Silveria      Pleas in law and main arguments
Gäng against Republic of Austria on the following questions:
                                                                      — Infringement of Article 24(1) of Directive 96/92/EC: while
1. Has Council Directive 76/207/EEC of 9 February 1976 (1)
                                                                          the decision refusing to allow the application is based on
    (the Equal Treatment Directive) been properly transposed              the fact ‘that the nature of the measure notified is
    into Austrian national law by the current version of the
                                                                          more important than its objective’, in its decision the
    Austrian Bundes-Gleichbehandlungsgesetz (Federal Law on
                                                                          Commission does not adduce any evidence to support the
    Equal Treatment), BGBl 100/1993, as regards the upper                 conclusion that it has considered the substance of the
    limit for damages claimed (Paragraph 15(2) of the Federal
                                                                          matter. The Commission therefore acknowledges in its
    Law on Equal Treatment) and as regards the requirement
                                                                          statement contained in the Council’s minutes (12851/96
    that public sector employees of the Republic of Austria               ADD 1) that recovery of investments constitutes an
    bring such claims within six months by application to
                                                                          appropriate basis for the application of Article 24. It
    the administrative authority with jurisdiction over them
                                                                          should be noted that the so-called ‘Costs of Transition to
    (Paragraph 19(2) of the Federal Law on Equal Treatment)?              Competition’ (‘CTC’) constitute a method the nature of
                                                                          which is similar to that wider concept of the recovery of
2. If the answer to Question 1 is in the negative, is that                investments, dealing with indemnification in part with
    Directive intended to confer an individual right on the               regard to the additional effort, in terms of investments,
    claimant in the main proceedings in this case?                        made by undertakings in order to comply with a policy of
                                                                          public intervention, the purpose of which was to guarantee
3. If the answer to Question 2 is in the affirmative, does                diversification in the electricity sector and security of
    this reference for a preliminary ruling contain all the               supply of electricity. It must, therefore, be concluded that
    information the Court of Justice needs to determine itself            the CTC system does indeed constitute a derogation, which
    whether the Austrian Federal Law on Equal Treatment is                the Commission may accept in accordance with Article 24
    manifestly incompatible with the wording and purpose of               of the Directive, from Article 8(2) thereof, a derogation
    Council Directive 76/207/EEC of 9 February 1976 or is                 which has not been assessed or examined in the Com-
    the determination of that question in this case to be left to         mission’s decision.
    the Austrian court which has made the reference?
                                                                      — Infringement of Article 24(3) of Directive 96/92/EC: the
(1) OJ L 39 of 14.2.1976, p. 40.                                          derogation from Article 8(2) of the Directive, requested by
                                                                          the Spanish authorities, for isolated networks, necessarily
                                                                          entails either a higher supply price for consumers using
                                                                          those isolated systems or, if the criterion of equal treatment
                                                                          for all national customers is used, the introduction of
                                                                          compensation for those extra costs. The latter is the
                                                                          solution chosen by the Spanish legislation, which neither
                                                                          affects intra-Community trade nor is capable of distorting
Action brought on 4 October 1999 by the Kingdom of
                                                                          competition, which does not exist in isolated systems.
Spain against the Commission of the European Communi-
                                                                          Accordingly, in the contested decision the Commission
                                 ties
                                                                          was wrong to apply Article 24(3) of Directive 96/92/EC,
                                                                          given that the ‘sistemas insulares y extrapeninsulares’
                        (Case C-369/99)                                   (systems in the islands and outside Iberia) must give rise to
                                                                          the derogations provided for by that provision, and has
                          (2000/C 6/18)                                   failed to comply with Article 8(2) of the Directive.
An action against the Commission of the European Communi-             — Breach of the principle of protection of legitimate expec-
ties was brought before the Court of Justice on 4 October                 tations: the Commission had publicly, constantly and
1999 by the Kingdom of Spain, represented by R. Silva de                  firmly maintained that compensation schemes for non-
Lapuerta, acting as Agent, with an address for service in                 commercial prices in the electricity sector must be notified
Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais.              and, where appropriate, authorised pursuant to Article 24