title: Action brought on 13 March 1998 by Acerinox SA against Commission of the European Communities (Case T-48/98)

text:
C 137/20               EN                    Official Journal of the European Communities                                     2.5.98
The applicant claims that the Court should:                             The applicant points out that, as a result of interpreting in
                                                                        this way Article 17 of the electoral rules, List No 5 has
1. annul Commission Regulation (EC) No 2494/97 of                       come to have only Brussels-based representatives among
     12 December 1997 on the issuing of import licences                 those elected from it, while the candidate who had
     for rice falling within CN code 1006 and originating               received the greatest number of individual votes was
     in the overseas countries and territories under the                excluded from those elected. The applicant claims that
     specific measures introduced by Regulation (EC)                    such a final result is paradoxical and legally aberrant.
     No 2352/97 (1),                                                    Such a result conflicts directly with the basic rule which
                                                                        governs any kind of democratic ballot, namely that those
2. order the Commission to pay the costs of the case.                   candidates who obtain the greatest number of votes win
                                                                        and are appointed according to the number of votes
Pleas in law and main arguments adduced in support:                     obtained.
The pleas in law and main arguments are identical to                    In support of her application the applicant claims that the
those in Case T-32/98 (2).                                              contested decisions should be annulled:
(1) OJ L 343, 13.12.1997, p. 17.
                                                                        Ð inasmuch as they infringe Articles 6, 17 and 18 of the
(2) Not yet published in the Official Journal.
                                                                            electoral rules,
                                                                        Ð in the alternative, inasmuch as those rules are in
                                                                            breach of the provisions of Annex II to the Staff
                                                                            Regulations,
Action brought on 9 March 1998 by Maria Paola
         Sabbatucci against the European Parliament                     Ð inasmuch as they are contrary to the principles
                         (Case T-42/98)                                     common to all the Member States in matters of
                                                                            electoral law, according to which the first successful
                          (98/C 137/44)                                     candidate from the list which has obtained the greatest
                                                                            number of votes must be elected.
                (Language of the case: Italian)
An action against the European Parliament was brought                   The applicant states in particular that to read
before the Court of First Instance of the European                      Article 17(5)(b) in the way that the Committee of Tellers
Communities on 9 March 1998 by Maria Paola                              has done runs counter to the system of proportional
Sabbatucci, represented by Alberto Dal Ferro and Andrea                 distribution of seats laid down in Article 17(1) and (2)
Cevese, of the Vicenza Bar, with an address for service at              thereof. However, should the Court consider that the only
the Chambers of Morresi Law Office, 67, avenue des                      possible interpretation of Article 17 of the electoral rules
Nerviens, Brussels.                                                     is that adopted in the contested decisions, the applicant
                                                                        also claims that that provision and Article 6(4) are
The applicant claims that the Court should:                             contrary to Annex II to the Staff Regulations. The absence
                                                                        in that Annex of any mention of the obligation to ensure
Ð annul the notice of 27 January 1998 of the Committee                  that the staff of a particular seat are represented where
     of Tellers and their reply of 17 February 1998                     there is only a single committee means, in the view of the
     inasmuch as they exclude the applicant from the                    applicant, that where such representation is guaranteed by
     candidates elected to the Staff Committee,                         the electoral rules, it should be established by way of
                                                                        criteria such as not to upset the choice expressed by the
Ð order the defendant to pay the costs of these                         electorate with its vote.
     proceedings.
Pleas in law and main arguments adduced in support:
The applicant, an official in Category B at the European
Parliament, challenges her exclusion from the Staff                     Action brought on 13 March 1998 by Acerinox SA
Committee of the European Parliament. The applicant                          against Commission of the European Communities
observes that she submitted her candidature in List No 5                                       (Case T-48/98)
for the to the second-round elections held in January 1998
and obtained the greatest number of votes of those on the                                       (98/C 137/45)
list. According to the information provided by the
Committee of Tellers following the allocation of seats on                              (Language of the case: English)
the basis of the number of individual votes, one of the
conditions with regard to the composition of the                        An action against the Commission of the European
committee laid down in Article 17(5)(b) of the                          Communities was brought before the Court of First
Parliament's electoral rules requiring the presence of a                Instance of the European Communities on 13 March 1998
certain number of members assigned to Brussels had not                  by Acerinox SA, represented by Alexandre Vandencasteele
been met. Thus the applicant was replaced by the Brussels               and Denis Waelbroeck with an address for service in
representative, who had not been elected, who had the                   Luxembourg at the Offices of Ernest Arendt, 8-10 rue
greatest number of votes in List No 5.                                  Matrhias Hardt.
 ---pagebreak--- 2.5.98                 EN                    Official Journal of the European Communities                                  C 137/21
The applicant claims that the Court should:                                 Article 65 of the ECSC Treaty (alloy surcharge) in so
                                                                            far as it concerns the applicant,
Ð annul the decision of the Commission of 21 January
    1998 in Case IV/35.814 (Alloy surcharge) in so far as               Ð in the alternative, reduce the fine,
    it is addressed to it,
                                                                        Ð order the defendant to pay the costs.
Ð alternatively, reduce substantially the fine imposed on
    it,
                                                                        Pleas in law and main arguments adduced in support:
Ð order the Commission to pay the costs.
                                                                        For some time a number of producers of stainless steel
Pleas in law and main arguments adduced in support:                     have applied a common mark-up, which is known as the
                                                                        alloy surcharge. That price supplement is calculated on the
By the contested decision the Commission found that the                 basis of the price of the components of the alloy.
applicant, a Spanish public company active in the stainless
steel sector, together with other companies manufacturing               According to the Commission, in its decision of 21 January
these products, had infringed Article 65(1) of the ECSC                 1998, there is an agreement between the producers to that
Treaty by jointly agreeing in December 1993 to modify                   effect. The cartel restricts competition to a substantial
and apply in concert the reference values of the                        extent, since the undertakings involved produce 90 % of
calculation formula of alloy surcharges, a practice which,              all stainless steel. According to the Commission, those
the Commission claimed, had as its object and effect, the               agreements constitute an infringement of Article 65 of the
restriction and distortion of competition within the                    ECSC Treaty.
common market.
                                                                        The applicant challenges the Commission's decision on the
The pleas in law and main arguments are, in principle, the              grounds that:
same as those raised in Cases T-45/98 Krupp Thyssen
Nirosta GmbH and T-47/98 Acciai Speciali Terni and                      Ð even without the agreements all producers would have
T-49/98 ALZ NV, concerning the other companies                              taken steps to adapt prices to the economic situation,
forming the alleged cartel (1).
                                                                        Ð the Commission overestimated the impact of the alloy
The applicant further claims not to have participated in
                                                                            surcharge on prices and failed to take account of the
any agreement or concerted practice within the meaning
                                                                            circumstances of each individual undertaking
of Article 65 of the ECSC Treaty. If the applicant could be
                                                                            concerned,
regarded as having participated in such agreement or
concerted practice, quod non, the infringement can, at
most, be regarded as sporadic and ephemeral and not as                  Ð the Commission imposed similar fines on all the
having the duration alleged by the Commission. Finally,                     undertakings concerned, without taking account of the
the fines imposed on the applicant are in any event                         considerable differences between the sizes of the
disproportionate and discriminatory.                                        undertakings,
(1) Not yet published in the Official Journal.                          Ð the Commission infringed the rights of the defence.
Action brought on 16 March 1998 by ALZ NV against                       Action brought on 20 March 1998 by Lars Bo Rasmussen
          Commission of the European Communities                           against the Commission of the European Communities
                         (Case T-49/98)                                                         (Case T-50/98)
                          (98/C 137/46)                                                          (98/C 137/47)
                (Language of the case: Dutch)                                           (Language of the case: French)
An action against the Commission of the European
Communities was brought before the Court of First                       An action against the Commission of the European
Instance of the European Communities on 16 March 1998                   Communities was brought before the Court of First
by ALZ NV, established in Genk, Belgium, represented by                 Instance of the European Communities on 20 March 1998
B. van de Walle de Ghelcke, of the Brussels Bar, with an                by Lars Bo Rasmussen, residing at Dalheim
address for service in Luxembourg at the Chambers of M.                 (Luxembourg), represented by Carlo Revoldini, of the
Loesch, of the Luxembourg Bar, 11, rue Goethe.                          Luxembourg Bar, 180, route de Longwy.
The applicant claims that the Court should:                             The applicant claims that the Court should:
Ð annul the Commission's decision C(1998)68 final of                    Ð annul the decision of the Commission not to promote
    21 January 1998 concerning a procedure pursuant to                      him to Grade A 4 in the 1997 promotions procedure,


title: Case T-69/99: Action brought on 5 March 1999 by Eurotica Rendez-Vous Television Danish Satellite (DSTV) A/S against the Commission of the European Communities

text:
5.6.1999              EN                      Official Journal of the European Communities                                          C 160/29
According to the applicant, the main errors of the Commission            By decision of 30 July 1998, the United Kingdom Secretary of
are:                                                                     State for Culture, Media and Sport suspended the relaying of
                                                                         the programme ‘Rendez-Vous Television’ on the ground that
— the reduction of the labour of the applicant,                          it manifestly and seriously infringed article 22 of Council
                                                                         Directive 89/552/EEC (the ‘Television Without Frontiers’
— the refusal to accept costs for third party assistance,                Directive, hereinafter referred to as ‘the Directive’) (1). This was
                                                                         followed by the commencement of various proceedings before
— the refusal to accept ‘other costs’ and                                the United Kingdom courts; however, those proceedings did
                                                                         not prevent the entry into force of the Secretary of State’s
— the refusal to accept, for the period from 1 June 1996 to              Decision on 11 September 1998.
     30 November 1996, any of the costs submitted by the
     applicant.
                                                                         The Commission, having received notification of that decision,
                                                                         informed the United Kingdom authorities, by the contested
                                                                         decision, that the suspension measures in issue were compat-
                                                                         ible with Community law.
Action brought on 5 March 1999 by Eurotica Rendez-
Vous Television Danish Satellite (DSTV) A/S against the                  By the present application, the applicant seeks annulment of
         Commission of the European Communities                          that decision, on the ground that the United Kingdom has
                                                                         infringed the principles of non-discrimination and pro-
                         (Case T-69/99)                                  portionality in its interpretation of article 22 of the Directive.
                        (1999/C 160/53)
                                                                         The applicant maintains that, whilst article 22 of the Directive
                   (Language of the case: French)                        confers on the Member States extensive powers to assess
                                                                         whether television broadcasts include programmes which
                                                                         might be seriously harmful to minors, in particular where they
An action against the Commission of the European Communi-                contain pornography or gratuitous violence, and despite
ties was brought before the Court of the First Instance of               the considerable leeway which the Member States enjoy in
the European Communities on 5 March 1999 by Eurotica                     interpreting that concept, they are none the less required, in so
Rendez-Vous Television Danish Satellite (DSTV) A/S, the                  doing, to observe Community law and, in particular, the
registered office of which is situated in Frederiksberg (Den-            principles of proportionality and non-discrimination.
mark), represented by Jean-Paul Hordies and Agnès Maqua, of
the Brussels Bar, with an address for service in Luxembourg at
the offices of Fiduciaire Myson SARL, 30, rue de Cessange.
                                                                         The measures taken by the United Kingdom authorities are:
The applicant claims that the Court should:
— annul the Decision of the Commission of 22 December                    — discriminatory, since similar, if not ‘harder’, programmes
     1998, adopted on the basis of article 22 Directive                       are currently relayed on the territory of the United
     89/552/EEC, by which it decided that the measures                        Kingdom, some of them with the benefit of a United
     adopted by the United Kingdom authorities, prohibiting                   Kingdom permit,
     the relaying of the applicant’s programme within the
     territory of that country, are in conformity with Com-
     munity law,                                                         — contrary to the principle of proportionality, since the
                                                                              applicant has taken all possible measures — including, in
— order the defendant to pay all the costs.                                   particular, those referred to in article 22 of the Directive
                                                                              — to protect minors, and
Pleas in law and main arguments
                                                                         — contrary to article 59 of the EC Treaty.
The applicant, a special-interest television channel established
under Danish law, the majority interest in which is held by a
Luxembourg holding company, distributes and sells a tele-
vision programme which is relayed by satellite under the name
‘Eurotica Rendez-Vous Television’. It offers that service, in            (1) Council Directive 89/552/EEC of 3 October 1989 on the coordi-
particular, to viewers in various Member States, including the               nation of certain provisions laid down by law, regulation or
United Kingdom. The broadcasts begin at about 00.30 a.m.                     administrative action in Member States concerning the pursuit of
and finish at 5.00 a.m. Between 00.10 a.m. and 00.30 a.m.,                   television broadcasting activities (OJ L 298, 17.10.1989, p. 23;
the programme is relayed via the PAL system and in unencoded                 corrigendum: OJ L 331, 16.11.1989, p. 51).
form (for promotional purposes); from 00.30 a.m. to 5.00
a.m., the transmission is encrypted, inasmuch as the pro-
gramme then comprises three films of an erotic nature. The
transmission of the program and the content of what is
broadcast are strictly controlled.


title: Case T-539/13: Order of the General Court of 21 April 2016 — Inclusion Alliance for Europe v Commission (Action for annulment — Seventh framework programme for research and technological development including demonstration activities (2007-2013) — MARE, Senior and ECRN projects — Recovery of a share of the financial contribution paid — Enforcement decision — Nature of the pleas relied on — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/51

      Order of the General Court of 21 April 2016 — Inclusion Alliance for Europe v Commission
      (Case T-539/13) (1)

      ((Action for annulment - Seventh framework programme for research and technological development including demonstration activities (2007-2013) - MARE, Senior and ECRN projects - Recovery of a share of the financial contribution paid - Enforcement decision - Nature of the pleas relied on - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law))
      (2016/C 211/65)
      Language of the case: Italian

         Parties

         Applicant: Inclusion Alliance for Europe GEIE (Bucharest, Romania) (represented by: S. Famiani, lawyer)

         Defendant: European Commission (represented by: L. Di Paolo and F. Moro, acting as Agents, assisted by D. Gullo, lawyer)

         Re:

      Action for annulment of Commission Decision C(2013) 4693 final of 17 July 2013 concerning the recovery of a sum of EUR 212 411,89, plus interest, owed by the applicant in the context of the MARE, Senior and ECRN projects.

         Operative part of the order

                  1.

                  The action is dismissed.

                  2.

                  Inclusion Alliance for Europe GEIE shall pay the costs.

         (1)  OJ C 15, 18.1.2014.


title: Case C-210/12: Judgment of the Court (Eighth Chamber) of 17 October 2013 (request for a preliminary ruling from the Bundespatentgericht — Germany) — Sumitomo Chemical Co. Ltd v Deutsches Patent- und Markenamt (Patent law — Plant protection products — Supplementary protection certificate — Regulation (EC) No 1610/96 — Directive 91/414/EEC — Emergency marketing authorisation under Article 8(4) of that directive)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/13

         Judgment of the Court (Eighth Chamber) of 17 October 2013 (request for a preliminary ruling from the Bundespatentgericht — Germany) — Sumitomo Chemical Co. Ltd v Deutsches Patent- und Markenamt
   (Case C-210/12) (1)

   (Patent law - Plant protection products - Supplementary protection certificate - Regulation (EC) No 1610/96 - Directive 91/414/EEC - Emergency marketing authorisation under Article 8(4) of that directive)
   2013/C 367/21
   Language of the case: German

      Referring court

   Bundespatentgericht

      Parties to the main proceedings

      Applicant: Sumitomo Chemical Co. Ltd

      Defendant: Deutsches Patent- und Markenamt

      Re:

   Request for a preliminary ruling — Bundespatentgericht — Interpretation of Articles 3(1)(b) and 7(1) of Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products (OJ 1996 L 198, p. 30) — Conditions under which a supplementary certificate can be obtained — Possibility of having that certificate issued on the basis of a prior marketing authorisation granted in accordance with Article 8(4) of Directive 91/414/EEC — Active substance Clothianidin

      Operative part of the judgment

               1.

               Article 3(1)(b) of Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products must be interpreted as precluding the issue of a supplementary protection certificate for a plant protection product in respect of which an emergency marketing authorisation has been issued under Article 8(4) of Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market, as amended by Commission Directive 2005/58/EC of 21 September 2005.

               2.

               Articles 3(1)(b) and 7(1) of Regulation No 1610/96 must be interpreted as precluding an application for a supplementary protection certificate being lodged before the date on which the plant protection product has obtained the marketing authorisation referred to in Article 3(1)(b) of that regulation.

      (1)  OJ C 209, 14.7.2012.


title: ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber) of 17 September 1998 in Case T-271/94 (92): Eugénio Branco Lda v. Commission of the European Communities (Taxation of costs)

text:
5.12.98              EN                   Official Journal of the European Communities                                C 378/17
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            the Chambers of Jacques Schroeder of Faltz et AssocieÂs, 6,
                    of 30 September 1998                             Rue Heine, against the Commission of the European
                                                                     Communities (Agents: Ana Maria Alves Vieira and Knut
in Case T-121/97: Richie Ryan v. Court of Auditors of the            Simonsson) Ð application for taxation of costs made
                  European Communities (1)                           following the judgment of the Court of First Instance of
(Action for annulment Ð System of payment for the                    11 July 1996 in Case T-271/94 Branco v. Commission
members of the Court of Auditors Ð Departure from                    [1996] ECR II-749 Ð the Court of First Instance (Fifth
office Ð Pension Ð No increase Ð Infringement of the                 Chamber), composed of: J. Azizi, President, R. García-
basic regulation Ð Statement of reasons Ð Legitimate                 Valdecasas and M. Jaeger, Judges; H. Jung, Registrar,
      expectations Ð Principle of non-discrimination)                made an order on 17 September 1998, the operative part
                                                                     of which is as follows:
                         (98/C 378/30)
               (Language of the case: French)                        The total amount of the recoverable costs in Case T-271/
                                                                     94 is fixed at PTE 1 316 660, including VAT.
In Case T-121/97: Richie Ryan, former member of the
Court of Auditors of the European Communities, resident              (1) OJ C 288, 15.10.1994.
in Dublin, represented by Georges Vandersanden, of the
Brussels Bar, with an address for service in Luxembourg at
the Offices of Fiduciaire Myson SARL, 30 Rue de
Cessange, against the Court of Auditors of the European
Communities (Agents: Jean-Marie Stenier, Jan Inghelram
and Paolo Giusta), supported by the Council of the
European Union (Agents: Jean-Paul JacqueÂ and TheÂreÁse
                                                                          ORDER OF THE COURT OF FIRST INSTANCE
Blanchet) Ð application for the annulment of the decision
of the Court of Auditors of 20 February 1997 setting the                                 of 15 September 1998
rate of the applicant's pension with effect from 1 March
                                                                      in Case T-109/97: Molkerei Groûbraunshain GmbH and
1997 Ð the Court of First Instance (Fifth Chamber),
                                                                          Bene Nahrungsmittel GmbH v. Commission of the
composed of: J. Azizi, President, R. García-Valdecasas and
                                                                                European Communities (1)
M. Jaeger, Judges; B. Pastor, Principal Administrator, for
the Registrar, has given a judgment on 30 September                  (Community protection of designations of origin Ð
1998, in which it:                                                   Registration under a Commission Regulation of a
                                                                     designation for a geographical area considered by the
1. Annuls the decision of the Court of Auditors of                   applicants to be too large Ð Action for annulment Ð
    20 February 1997 setting the rate of the applicant's                                     Inadmissibility)
    pension;
                                                                                (98/C 378/32)
2. Orders the Court of Auditors to pay the costs;
                                                                                (Language of the case: German)
3. Orders the Council to bear its own costs.
(1) OJ C 199, 28.6.1997.
                                                                     In Case T-109/97: Molkerei Groûbraunshain GmbH and
                                                                     Bene Nahrungsmittel GmbH, established in Altenburg
                                                                     (Germany), represented by Michael Loschelder and Thilo
                                                                     Klingbeil, lawyers, Cologne, with an address for service in
                                                                     Luxembourg at the Chambers of Marc Loesch, 11 Rue
                                                                     Goethe, supported by Freistaat Thüringen, represented by
                                                                     Georg M. Berrisch, lawyer, Hamburg, with an address for
     ORDER OF THE COURT OF FIRST INSTANCE                            service in Luxembourg at the Chambers of Guy Harles,
                       (Fifth Chamber)                               8Ð10 Rue Mathias Hardt, against Commission of the
                                                                     European Communities (Agents: JoseÂ-Luis Iglesias
                    of 17 September 1998                             Buhigues, Ulrich Wölker and Bertrand Wägenbaur),
       in Case T-271/94 (92): EugeÂnio Branco Lda v.                 supported by Molkerei und Weichkäserei K.-H.
        Commission of the European Communities (1)                   Zimmermann         GmbH,      established  in   Falkenhain
                                                                     (Germany), represented by Philipp Lotze and Stefan Lehr,
                      (Taxation of costs)                            of the Brussels Bar, with an address for service in
                         (98/C 378/31)                               Luxembourg at the Chambers of ReneÂ Foltz, 6 Rue
                                                                     Heinrich Heine, Ð application for annulment of
                                                                     Commission Regulation (EC) No 123/97 of 23 January
             (Language of the case: Portuguese)
                                                                     1997 supplementing the Annex to Commission Regulation
                                                                     (EC) No 1107/96 on the registration of geographical
In Case T-271/94 (92): EugeÂnio Branco Lda, established in           indications and designations of origin under the procedure
Lisbon, represented by Bolota Belchior, of the Vila Nova             laid down in Article 17 of Regulation (EEC) No 2081/92
de Gaia Bar, with an address for service in Luxembourg at            (OJ L 22, 24.1.1997, p. 19), in so far as it registers the


title: Removal from the register of T-227/97

text:
10. 1. 98             EN                Official Journal of the European Communities                                  C 7/29
         Removal from the register of T-201/97 (1)                 Communities ordered the removal from the register of
                          (98/C 7/74)                              Case T-226/97: GueÂrin Automobiles v. Commission of the
                                                                   European Communities.
               (Language of the case: Spanish)
                                                                   (1) OJ C 318, 18. 10. 1997.
By order of 13 November 1997, the President of the
Second Chamber of the Court of First Instance of the
European Communities ordered the removal from the
register of Case T-201/97: Manuel Francisco Caballero
Montoya v. Commission of the European Communities.
(1) OJ C 252, 16. 8. 1997.                                                  Removal from the register of T-227/97 (1)
                                                                                (98/C 7/76)
                                                                                (Language of the case: French)
                                                                   By order of 6 November 1997, the President of the Second
         Removal from the register of T-226/97 (1)
                                                                   Chamber of the Court of First Instance of the European
                          (98/C 7/75)                              Communities ordered the removal from the register of
                (Language of the case: French)                     Case T-227/97: Christian Marion v. Economic and Social
                                                                   Committee.
By order of 5 November 1997, the President of the Third
Chamber of the Court of First Instance of the European             (1) OJ C 331, 1. 11. 1997.


title: Case T-446/07: Action brought on 7 December 2007 — Royal Appliance International v OHIM — BSH Bosch und Siemens Hausgeräte (Centrixx)

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/30

         Action brought on 7 December 2007 — Royal Appliance International v OHIM — BSH Bosch und Siemens Hausgeräte (Centrixx)
   (Case T-446/07)
   (2008/C 37/47)
   Language in which the application was lodged: German
   Parties

      Applicant: Royal Appliance International GmbH (Hilden, Germany) (represented by: K.-J. Michaeli and M. Schork, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany)
   Form of order sought

               —

               To annul the decision of the Fourth Board of Appeal of OHIM of 3 October 2007 in Case R 572/2006-4;

               —

               To order the defendant to pay the applicant's costs and those of the proceedings.

         Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant.

      Community trade mark concerned: the word mark ‘Centrixx’ for goods in Class 7 (application No 3 016 227).

      Proprietor of the mark or sign cited in the opposition proceedings: BSH Bosch und Siemens Hausgeräte GmbH.

      Mark or sign cited in opposition: the German word mark ‘sensixx’ for goods in Class 7 (No 30 244 090).

      Decision of the Opposition Division: rejection of the opposition.

      Decision of the Board of Appeal: annulment of the decision of the Opposition Division and refusal of the application for registration of the mark.

      Pleas in law: infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), since the Board of Appeal incorrectly applied the principles of Community case-law concerning the likelihood of confusion.

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


title: JUDGMENT OF THE COURT of 7 March 1995 in Case C-68/93 (reference for a preliminary ruling from the House of Lords): Fiona Shevill, Ixora Trading Inc., Chequepoint SARL, Chequepoint International Ltd v. Presse Alliance SA (Brussels Convention - Article 5 (3) - Place where the harmful event occurred - Libel by a newspaper article)

text:
 8 . 4 . 95             EN                Official Journal of the European Communities                                  No C 87/3
de Almeida and J.L. Murray, Judges; G. Tesauro,                      products of plant origin, including fruit and vegetables (2) —
Advocate-General; D. Louterman-Hubeau, Principal                     the Court, composed of P.J.G. Kapteyn, President of the
Administrator, for the Registrar, gave a judgment on                 Chamber, C.N. Kakouris (Rapporteur) and J.L. Murray,
23 February 1995 , in which it rules:                                Judge; Advocate-General; C.O. Lenz, Registrar, R. Grass,
                                                                     gave a judgment on 23 February 1995 , whose operative part
                                                                     is as follows :
1 . rules which make the export of coins, banknotes or
      bearer cheques conditional upon a prior declaration or
      an    administrative   authorization   and      make      that Council Directive 90/642/EEC of 27 November 1990 on
      requirement subject to criminal penalties do not fall          the fixing ofmaximum levels for pesticide residues in and on
      within the scope of Articles 30 and 59 of the Treaty;          certain products of plant origin, including fruit and
                                                                     vegetables, does not preclude national legislation from
                                                                     setting maximum permissible levels for residues of
2. Articles 1 and 4 of Council Directive 88/361 /EEC of
                                                                     chlorpropham and propham on potatoes and providing for
      24 June 1 988 for the implementation ofArticle 67 ofthe        procedures for checking compliance with those levels,
      Treaty preclude the export ofcoins, banknotes or bearer        subject to the provisions of Articles 30 and 36 of the EC
      cheques being made conditional on prior authorization          Treaty.
      but do not by contrast preclude a transaction of that
      nature being made conditional on a prior declaration;
                                                                     ( x ) OJ No C 103 , 11 . 4 . 1994 .
                                                                     (2 ) OJ No L 350, 14 . 12 . 1990, p . 71 .
3 . Article 1 in conjunction with Article 4 of Directive
      88/361 /EEC may be relied on before national courts and
      render inapplicable national rules which conflict with
      those provisions.
(!) OJ No C 235 , 31 . 8 . 1993 . OJ No C 298 , 4 . 11 . 1993 .
(2 ) OJ No L 178 , 8 . 7. 1988 , p . 5 .
                                                                                JUDGMENT OF THE COURT
                                                                                of 7 March 1995
                                                                     in Case C-68/93 (reference for a preliminary ruling from the
                                                                     House of Lords ): Fiona Shevill, Ixora Trading Inc.,
                                                                     Chequepoint SARL, Chequepoint International Ltd v.
                                                                                Presse Alliance SA (*)
                JUDGMENT OF THE COURT
                                                                     (Brussels Convention — Article 5 (3) — Place where the
                        (Fourth Chamber)
                                                                       harmful event occurred — Libel by a newspaper article)
                      of 23 February 1995                                                         ( 95/C 87/06 )
in Joined Cases C-54/94 and C-74/94 (reference for a
preliminary ruling from the Pretura Circondariale,
Macerata: criminal proceedings against Ulderico                                      (Language of the case: English)
              Cacchiarelli and Gino Stanghellini i 1 )
(Council Directives 76/895/EEC and 90/642/EEC —
                                                                     In Case C-68/93 : reference to the Court under the Protocol
Maximum permissible levels ofpesticide residues on or in
                             potatoes)                               of 3 June 1971 on the interpretation by the Court of Justice
                                                                     of the Convention of 27 September 1968 on Jurisdiction
                            95/C 87/05 )                             and the Enforcement of Judgments in Civil and Commercial
                                                                     Matters by the House of Lords for a preliminary ruling in
                 (Language of the case: Italian)                     the proceedings pending before that court between Fiona
                                                                     Shevill, Ixora Trading Inc ., Chequepoint SARL,
                                                                     Chequepoint International Ltd and Presse Alliance SA — on
(Provisional translation; the definitive translation will be         the interpretation of Article 5 ( 3 ) of the abovementioned
           published in the European Court Reports)                  Convention of 27 September 1968 (2 ) as amended by the
                                                                     Convention of 9 October 1978 on the accession of the
                                                                     Kingdom of Denmark, Ireland and the United Kingdom of
In Joined Cases C-54/94 and C-74/94: references to the               Great Britain and Northern Ireland (3 ) and by the
Court under Article 177 of the EEC Treaty by the                     Convention of 25 October 1982 on the accession of the
investigating judge of the Pretura Circondariale (District           Hellenic Republic (4) — the Court, composed of G.C.
Magistrate's Court), Macerata, Italy, for a preliminary              Rodriguez Iglesias, President, F.A. Schockweiler
ruling in the criminal proceedings before that court against         ( Rapporteur), P.J.G. Kapteyn and C. Gulmann (Presidents
Gino Stanghellini ( Case C-54/94 ) and Ulderico Cacchiarelli         of Chambers ), G.F. Mancini, C.N. Kakouris, J.C. Moitinho
( Case C-74/94 ) on the interpretation of Council Directive          de Almeida, J.L. Murray, D.A.O. Edward, J.-P. Puissochet
90/642/EEC of 27 November 1990 on the fixing of                      and G. Hirsch, Judges; M. Darmon, subsequently P. Leger,
maximum levels for pesticide residues in and on certain              Advocate-General; L. Hewlett, Administrator, for the
 ---pagebreak--- No C 87/4            [ EN                   Official Journal of the European Communities                                          8 . 4 . 95
Registrar, gave a judgment on 7 March 1995, the operative                   security schemes to employed persons, to self-employed
part of which is as follows :                                               persons and to members of their families moving within
                                                                            the Community 0, as amended and updated by Council
                                                                            Regulation (EEC ) No 2001/83 of 2 June 1983 (2), to be
 1 . on a proper construction of the expression 'place where                interpreted as also applying to benefits granted by a
     the harmful event occurred' in Article 5 (3) of the                    Member State in the form of a national subsidy upon
      Convention of 27 September 1968 on Jurisdiction and
                                                                            application and without legal entitlement (in this case in
     the Enforcement ofJudgments in Civil and Commercial                    accordance with the guidelines on the granting of
     Matters, as amended by the Convention of 9 October
                                                                            adaptation allowance to employees in the coal mining
      1978 on the accession of the Kingdom of Denmark,                      Industry) to older employees in the coal mining industry
     Ireland and the United Kingdom of Great Britain and                    laid off as a result of closure or rationalization
     Northern Ireland and by the Convention of25 October                    measures ?
     1982 on the accession of the Hellenic Republic, the
     victim of a libel by a newspaper article distributed in
     several Contracting States may bring an action for                2. If the answer is in the affirmative: Does Article 4 ( 1 ) (c )
     damages against the publisher either before the courts of              of Regulation (EEC) No 1408/71 require the national
     the Contracting State of the place where the publisher of              subsidy granted by the Member State to be assessed in
     the defamatory publication is established, which have                  accordance with Article 46 of Regulation (EEC )
     jurisdiction to award damages for all the harm caused by               No 1408/71 , having regard to Article 46 ( 2 ) ( b ) in
     the defamation, or before the courts ofeach Contracting                particular ?
     State in which the publication was distributed and
     where the victim claims to have suffered injury to his
     reputation, which have jurisdiction to rule solely in             3 . If the national subsidy granted by the Member State is to
     respect of the harm caused in the State of the court                   be assessed in accordance with Article 46 of Regulation
     seised;                                                                (EEC) No 1408/71 :
2 . the criteria for assessing whether the event in question is             Does the first sentence of Article 12 (2 ) of Regulation
     harmful and the evidence required of the existence and                 (EEC ) No 1408/71 permit a pension, within the
     extent of the harm alleged by the victim of the                        meaning of Article 1 (t) of Regulation (EEC)
     defamation are not governed by the Convention but by                   No 1408/71 , paid by another Member State (in this case
     the substantive law determined by the national conflict                the Netherlands WAO pension) to be deducted, or does
     of laws rules of the court seised, provided that the                   the second sentence of Article 12 (2 ) of Regulation
     effectiveness of the Convention is not thereby                         (EEC) No 1408/71 preclude such deduction ?
     impaired.
                                                                       4. If a deduction in accordance with the first sentence of
0 ) OJ No C 117, 28 . 4. 1993 .                                             Article 12 (2 ) of Regulation (EEC ) No 1408/71 is
(2 ) OJ No L 299 , 31 . 12 . 1972 .                                         permissible:
(3 ) OJ No L 304, 30. 10. 1978 , p. 1 — amended text — p. 77.
(4 ) OJ No L 388 , 31 . 12 . 1982 , p . 1 .                                 Is such deduction limited by Article 7 ( 1 ) ( b ) of Council
                                                                            Regulation (EEC) No 574/72 of 21 March 1972 (3)
                                                                            laying down the procedure for implementing Regulation
                                                                            ( EEC ) No 1408/71 , as amended and updated by Council
                                                                            Regulation (EEC ) No 2001/83 of 2 June 1983 ?
Reference for a preliminary ruling from the Hessischer                 (M OJ No L 149, 5 . 7. 1971 , p. 2.
Verwaltungsgerichtshof by order of that court of 12 January            (2) OJ No L 230, 22 . 8 . 1983 , p. 6.
1995 in the case of Siegfried Otte v. Federal Republic of              (3 ) OJ No L 74, 27. 3 . 1972, p. 1 .
                              Germany
                          Case C-25/95
                             95/C 87/07
Reference has been made to the Court of Justice of the
European Communities by an order of the Hessischer                    Reference for a preliminary ruling from the Rechtbank van
Verwaltungsgerichtshof ( Higher Administrative Court                  Eerste Aanleg te Antwerpen, by judgment of that court of
Hessen) of 12 January 1995, which was received at the                 31 January 1995 in the case of ( 1 ) E. Pastoors and (2 )
Court Registry on 2 February 1995 , for a preliminary ruling                         Trans-Cap GmbH v. Belgian State
in the case of Siegfried Otte v. Federal Republic of Germany
                                                                                (Case C-29/95 )
on the following questions:
                                                                                ( 95/C 87/08
1 . Are paragraphs ( 1 ) and (2 ) of Article 4, and in particular
     Article 4 ( 1 ) (c) of Council Regulation ( EEC)                 Reference has been made to the Court of Justice of the
     No 1408/71 of 14 June 1971 on the application of social          European Communities by judgment of the Rechtbank van


title: Case T-369/03: Action brought on 29 October 2003 by Arizona Chemical B.V., Eastman Belguim B.V.B.A., Resinall Europe B.V.B.A. and Cray Valley Iberica S.A. against the Commission of the European Communities

text:
C 7/42                 EN                         Official Journal of the European Union                                          10.1.2004
In support of his claims, the applicant alleges:                          —     order the Commission to pay all costs and expenses in
                                                                                these proceedings.
—    a combination of an error in law and a manifest error of
     assessment of the facts, inasmuch as the contested
     decision does not consider the work carried out by him
     for the Delegation of the Autonomous Community of                    Pleas in law and main arguments
     Murcia in Brussels ‘work done for [a] State’, in the sense
     recognised in the Staff Regulations as an exception to the
     reference period. In the alternative, he claims that the
                                                                          The Contested Decision in this case rejected the applicants
     Council wrongly concluded in the contested decision that
                                                                          request to declassify rosin as a dangerous substance listed in
     the applicant’s centre of interest and habitual residence
                                                                          Annex I of Council Directive 67/548/EEC of 27 June 1967 on
     were in Brussels and not in Murcia;
                                                                          the approximation of laws, regulations and administrative
—    infringement of the principle of equal treatment, in                 provisions relating to the classification, packaging and labelling
     that the appointing authority discriminated between                  of dangerous substances (1).
     essentially identical personal situations.
                                                                          In support of their application the applicants submit that the
                                                                          Contested Decision is unlawful on the grounds that the
                                                                          classification of rosin was decided on the basis of test results
                                                                          relating to a different substance, namely oxidised rosin. They
                                                                          further submit that the classification in question is not
Action brought on 29 October 2003 by Arizona Chemical                     supported by the conclusion of the scientific assessment
B.V., Eastman Belguim B.V.B.A., Resinall Europe B.V.B.A.                  conducted under Directive 67/548 and was decided on the
and Cray Valley Iberica S.A. against the Commission of                    wrong premise that rosin always produces oxidised rosin and
                 the European Communities                                 that the latter causes skin sensitisation under normal handling
                                                                          and use. The applicants also contend that the Contested
                                                                          Decision is unlawful because it is based on the ‘precautionary
                         (Case T-369/03)
                                                                          principle’, which does not apply to hazard-based decisions,
                                                                          that the Contested Decision violates the EC Treaty as it fails to
                          (2004/C 7/77)                                   consider new, state-of-the-art scientific evidence on oxidised
                                                                          rosin and that, finally, the Contested Decision also violates
                  (Language of the case: English)                         fundamental principles of Community law, more especially
                                                                          the principles of legal certainty, legitimate expectations and
                                                                          proportionality.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                          (1) OJ P 196 , 16.08.1967, p. 1-98, English special edition: Series I
European Communities on 29 October 2003 by Arizona                            Chapter 1967, p. 234.
Chemical B.V., Almere, the Netherlands, Eastman Belguim
B.V.B.A., Kallo, Belguim, Resinall Europe B.V.B.A., Brugge,
Belguim and Cray Valley Iberica S.A., Madrid, Spain , represent-
ed by Claudio Mereu and Koen Van Maldegem, lawyers.
The applicant claims that the Court should:
—    annul Commission          Decision    D(2003)430245        of
                                                                          Action brought on 10 November 2003 by Yves Mahieu
     20 August 2003;
                                                                            against the Commission of the European Communities
—    declare that the rosin entry in Annex I of Council Directive
     67/548/EEC of 27 June 1967 on the approximation of                                           (Case T-372/03)
     laws, regulations and administrative provisions relating
     to the classification, packaging and labelling of dangerous
     substances, is unlawful;                                                                       (2004/C 7/78)
—    in the alternative, declare that the rosin Annex I entry is
     inapplicable to the Applicants under Article 241 EC                                     (Language of the case: French)
     Treaty;
—    compensate Applicants for damages suffered as a result of
     the adoption of the contested Decision, in the provisional           An action against the Commission of the European Communi-
     amount of EUR 1; or, in the alternative declare the                  ties was brought before the Court of First Instance of the
     Commission liable for imminent damage foreseeable with               European Communities on 10 November 2003 by Yves
     sufficient certainty, even if the damage cannot be precisely         Mahieu, residing in Brussels, represented by Lucas Vogel,
     assessed;                                                            lawyer.


title: Case C-32/03: Reference for a preliminary ruling by the Højesterets Anke- og Kæremålsudvalg by order of that Court of 22 January 2003 in the case of I/S Fini H against Skatteministeriet

text:
C 83/6                  EN                           Official Journal of the European Union                                          5.4.2003
Reference for a preliminary ruling by the Højesterets                        Action brought on 28 January 2003 by the Commission
Anke- og Kæremålsudvalg by order of that Court of                            of the European Communities against the United
22 January 2003 in the case of I/S Fini H against Skatte-                           Kingdom of Great Britain and Northern Ireland
                              ministeriet
                                                                                (Case C-33/03)
                           (Case C-32/03)
                                                                                (2003/C 83/11)
                           (2003/C 83/10)
                                                                             An action against the United Kingdom of Great Britain and
                                                                             Northern Ireland was brought before the Court of Justice of
                                                                             the European Communities on 28 January 2003 by the
Reference has been made to the Court of Justice of the                       Commission of the European Communities, represented by
European Communities by order of the Højesterets Anke- og                    R. Lyal, acting as agent, with an address for service in
Kæremålsudvalg (Appeals and Objections Committee of the                      Luxembourg.
Supreme Court) of 22 January 2003, received at the Court
Registry on 28 January 2003, for a preliminary ruling in the
case of I/S Fini H against Skatteministeriet (Danish Ministry of             The Applicant claims that the Court should:
Taxation) on the following questions:
                                                                             (1) declare that by granting taxable persons the right to
                                                                                deduct value added tax in respect of certain supplies of
                                                                                road fuel to non-taxable persons, contrary to Articles 17
                                                                                and 18 of the Sixth Council Directive of 17 May 1977
Q ues ti o n 1
                                                                                (77/388/EEC) on the harmonisation of the laws of the
                                                                                Member States relating to turnover taxes — common
                                                                                system of value added tax: uniform basis of assessment (1),
Can a person be regarded as independently carrying on an                           the United Kingdom has failed to fulfil its obligations
economic activity within the meaning of Article 4(1)-(3) of the                    under the EC Treaty;
Sixth VAT Directive ( 1) in a situation in which the person
concerned originally entered into a lease agreement as part of               (2) order the United Kingdom to pay the costs.
an independent economic activity but has now ceased that
actual activity, even though the lease continues to exist for a
particular period as a result of a non-termination clause, and
in which, after the actual activity ceases, no transactions                  Pleas in law and main arguments
subject to VAT are conducted by application of the lease for
the purpose of obtaining income therefrom on a continuing
basis.                                                                       By virtue of the VAT (Input Tax) (Person Supplied) Order 1991
                                                                             [hereinafter, ‘the disputed Order’], a taxable person is granted
                                                                             the right to deduct VAT in respect of supplies of road fuel to a
                                                                             non-taxable person, where the taxable person reimburses to
                                                                             the latter the cost of the fuel. Although the language of the
Q ues ti o n 2                                                               Order is general, it appears that the right of deduction is
                                                                             granted to employers in respect of purchases of road fuel by
                                                                             their employees.
Does the question whether or not the person concerned
actively seeks, during the remaining part of the period of non-
terminability, either to utilise the commercial lease to conduct             In the Commission’s view, the provisions of the Order are
transactions subject to VAT for the purpose of obtaining                     contrary to the Sixth VAT Directive in three respects and in
income therefrom on a continuing basis or to dispose thereof                 relation to two provisions. First of all, the disputed Order
have any bearing on the answer to Question 1 and does the                    grants a right of deduction in respect of supplies to another,
length of the period of non-terminability or the remaining part              non-taxable, person, contrary to Article 17(2)(a). Secondly, the
thereof likewise have any bearing?                                           measure does not state that deduction can be granted only in
                                                                             respect of goods and services used for the purposes of taxable
                                                                             transactions; it thus fails to comply with the condition to that
                                                                             effect set out in Article 17(2). Finally, deduction is granted in
( 1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                             the absence of any VAT invoice, contrary to Article 18(1)(a).
     harmonization of the laws of the Member States relating to
     turnover taxes — Common system of value added tax: uniform
     basis of assessment (OJ L 145, 13.6.1977, p. 1).
                                                                             (1 ) OJ L 145, 13.6.1977, p. 1.


title: Case C-201/99: Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 12 May 1999 in the case of Deutsche Nichimen GmbH v Hauptzollamt Düsseldorf

text:
17.7.1999               EN                    Official Journal of the European Communities                                      C 204/33
(b) the state of the case so permitting, annul Commission                Reference for a preliminary ruling from the Finanzgericht
     Decision 94/215/ECSC (1) of 16 February 1994 relating to            Düsseldorf by order of that court of 12 May 1999 in
     a proceeding pursuant to Article 65 of the ECSC Treaty              the case of Deutsche Nichimen GmbH v Hauptzollamt
     concerning agreements and concerted practices (allegedly)                                      Düsseldorf
     engaged in by European producers of beams;
                                                                                (Case C-201/99)
(c) alternatively, reduce or cancel the fine set by the Court of
     First Instance imposed on British Steel by Article 4 of                                     (1999/C 204/66)
     Commission Decision 94/215/ECSC;
                                                                         Reference has been made to the Court of Justice of the
(d) order interest to be paid by the Commission on the fine or           European Communities by an order of the Fourth Senate of
     such part of it as is repaid under (b) or (c) above, in respect     the Finanzgericht Düsseldorf (Finance Court, Düsseldorf) of
     of the period since payment of the fine by British Steel on         12 May 1999, which was received at the Court Registry on
     2 June 1994 until repayment by the Commission and at                26 May 1999, for a preliminary ruling in the case of Deutsche
     such rate as is considered by the Court to be fair and just;        Nichimen GmbH v Hauptzollamt Düsseldorf on the following
                                                                         questions:
(e) order the Commission to pay the costs.
                                                                         1. Is the definition of television receivers in heading No 8528
                                                                             of the Combined Nomenclature in the version in force
                                                                             from 1990 to 1992 to be interpreted as including devices
Pleas in law and main arguments                                              such as the satellite receivers more precisely described in
                                                                             the grounds of this order, even though with those devices
                                                                             television programmes can be made visible and audible
It is submitted, in summary, that the Court of First Instance                only with television receivers of domestic type?
erred in law in the following respects:
                                                                         2. If Question 1 is answered in the negative: Is the definition
                                                                             of parts in heading No 8529 of the Combined Nomen-
(a) in denying British Steel a fair trial within a reasonable                clature or in Note 2(b) to Section XVI of the Combined
     period, contrary to Article 6 of the European Convention                Nomenclature in the version in force from 1990 to 1992
     for the Protection of Human Rights;                                     to be interpreted as including devices such as the satellite
                                                                             receivers more precisely described in the grounds of this
(b) in finding that the Decision had been adopted and                        order, and are those devices then to be classified under
     authenticated in conformity with the requisite rules and                heading No 8529 of the Combined Nomenclature despite
     procedures,                                                             Note 2(b) to Section XVI of the Combined Nomenclature?
(c) in characterising the facts as agreements or concerted
     practices prohibited by Article 65(1) of the ECSC Treaty,
     in disregard of its own findings as to the nature and
     purpose of the contacts taking place between the undertak-
     ings within the framework of the Commission’s monitor-
     ing system and contrary to the meaning of Article 65(1);
                                                                         Reference for a preliminary ruling by the Tribunal Supre-
                                                                         mo (Supreme Court) Sala de lo Contencioso-
(d) in finding, contrary to the rights of defence, that, during the      administrativo (Division for Contentious Administrative
     administrative procedure, the Commission had provided               Proceedings) Sección Tercera (Third Chamber) by order
     British Steel with sufficient information concerning its            of that court of 12 May 1999 in the case of Asociación
     own role and had carried out an adequate investigation              Profesional de Empresas Navieras de Lı́neas Regulares
     into its own role;                                                  (ANALIR), Isleña de Navegación S.A. (ISNASA), Fletamen-
                                                                         tos de Baleares S.A. and Unión Sindical Obrera (USO)
                                                                                against Administración del Estado
(e) in finding that the Decision contained an adequate state-
     ment of reasons for the fine imposed on British Steel;
                                                                                (Case C-205/99)
(f) in failing, contrary to Article 33 of the Treaty, to annul the
     Decision to the extent that it had found that British Steel                                 (1999/C 204/67)
     had committed infringements of Article 65(1) prior to
     1 July 1988.                                                        Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Tribunal Supremo,
                                                                         Sala de lo Contencioso-administrativo, Sección Tercera of
                                                                         12 May 1999, received at the Court Registry on 31 May 1999,
(1) OJ L 116, 06.05.1994, p. 1.                                          for a preliminary ruling in the case of Asociación Profesional
                                                                         de Empresas Navieras de Lı́neas Regulares (ANALIR), Isleña de
                                                                         Navegación S.A. (ISNASA), Fletamentos de Baleares S.A. and
                                                                         Unión Sindical Obrera (USO) against Administración del
                                                                         Estado on the following questions:


title: Case C-163/12: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 2 April 2012 — Società Cooperativa Autonoleggio Piccola arl and Gianpaolo Vivani v Comune di Grottaferrata

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/15

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 2 April 2012 — Società Cooperativa Autonoleggio Piccola arl and Gianpaolo Vivani v Comune di Grottaferrata
   (Case C-163/12)
   2012/C 165/24
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicants: Società Cooperativa Autonoleggio Piccola arl, Gianpaolo Vivani

      Defendant: Comune di Grottaferrata

      Questions referred

               1.

               Do Article 49 TFEU, Article 3 TEU, Articles 3, 4, 5 and 6 TFEU, Articles 101 and 102 TFEU and Regulation (EEC) No 2454/1992 (1) and Regulation (EC) No 12/1998 (2) preclude the application of Articles 3(3) and 11 of Law No 21 of 1992 in so far as the latter provisions respectively state that ‘3. The registered office of the carrier, and the garage, must be located, exclusively, within the territory of the municipality which issued the authorisation’ and that ‘…Bookings of car and driver hire shall take place at the garage. Each individual car and driver hire must begin and end at the garage located in the municipality where the authorisation was issued, returning to that garage, although the collection of the user and the user’s arrival at his destination may take place also in other municipalities …’?

               2.

               Do Article 49 TFEU, Article 3 TEU, Articles 3, 4, 5 and 6 TFEU, Articles 101 and 102 TFEU and Regulation (EEC) No 2454/1992 and Regulation (EC) No 12/1998 preclude the application of Articles 5 and 10 of Lazio Regional Law No 58 of 26 October 1993, in so far as the latter provisions respectively state that ‘…Users shall be collected, or the service shall begin, within the territory of the municipality which issued the authorisation’ and that ‘…Users shall be collected and the service shall begin exclusively within the territory of the municipality which issued the licence or authorisation and the service shall be provided to any destination, subject to the consent of the driver in the case of destinations beyond the municipal boundaries …’?

      (1)  OJ 1992 L 251, p. 1.

      (2)  OJ 1998 L 4, p. 10.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 20 February 1997 in Case C-106/95 (reference for a preliminary ruling from the Bundesgerichtshof): Mainschiffahrts-Genossenschaft eG (MSG) v. Les Gravières Rhénanes Sarl (Brussels Convention - Agreement on the place of performance of the obligation in question - Agreement conferring jurisdiction)

text:
No C 108/4            ΓΕΝ !                   Official Journal of the European Communities                                       5 . 4 . 97
       Council Regulation (EEC) No 2001 /83 of 2 June                    Convention of 9 October 1978 on the accession of the
       1983, as amended by Council Regulation (EEC)                      Kingdom of Denmark, Ireland and the United Kingdom of
       No 1248/92 of 30 April 1992 .                                     Great Britain and Northern Ireland ( OJ No L 304, 30 . 10 .
                                                                         1978, p. 1 ; amended version of the Convention at p. 77)
2 . Article 48 of the aforementioned regulation is not                   — the Court ( Sixth Chamber ), composed of: J. L. Murray,
       applicable to unemployment benefits.                              President of the Fourth Chamber, acting for the President
                                                                         of the Sixth Chamber, C. N. Kakouris ( Rapporteur ), P. J. G.
3 . It is for the national court to determine whether the                Kapteyn, G. Hirsch and H. Ragnemalm, Judges; G.
       condition laid down by Article 67 (3) of the                      Tesauro, Advocate-General; L. Hewlett, Administrator, for
       aforementioned regulation to the effect that a person             the Registrar, has given a judgment on 20 February 1997,
                                                                         in which it has ruled :
       who has completed periods of insurance in another
       Member State cannot rely on those periods in order to
       obtain unemployment benefit in the State concerned                1 . The third hypothesis in the second sentence of the first
       unless he last completed periods of insurance in                       paragraph of Article 17 of the Convention of
       accordance with the provisions of the legislation of                   27 September 1968 on jurisdiction and the
       that State, is fulfilled where the person concerned has                enforcement of judgments in civil and commercial
       never been in employment in that State but                             matters, as amended by the Convention of 9 October
       contributions have been paid on his behalf to the                      1978 on the accession of the Kingdom of Denmark,
       sickness insurance and familiy benefits schemes by the                 Ireland and the United Kingdom of Great Britain and
       competent unemployment institution.                                    Northern Ireland, must be interpreted as meaning
                                                                              that, under a contract concluded orally in
4 . It is not contrary to Articles 48 and 51 of the EC                        international trade or commerce, an agreement
       Treaty, or to the aforementioned regulation, for                       conferring jurisdiction will be deemed to have been
       national legislation to require the person concerned to                validly concluded under that provision by virtue of the
       have paid contributions for a IS-year period to a                      fact that one party to the contract did not react to a
       pension scheme in one or more Member Stateis in                        commercial letter of confirmation sent to it by the
       order to qualify for the grant of an unemployment                      other party to the contract or repeatedly paid invoices
       allowance for claimants of over 52 years of age.                       without objection where those documents contained a
                                                                              pre-printed reference to the courts having jurisdiction,
(') OJ No C 137, 3 . 6 . 1995 .                                               provided that such conduct is consistent with a
                                                                              practice in force in the field of international trade or
                                                                              commerce in which the parties in question operate and
                                                                              the latter are aware or ought to have been aware of
                                                                              the practice in question. It is for the national court to
                                                                              determine whether such a practice exists and whether
                 JUDGMENT OF THE COURT                                        the parties to the contract were aware of it. A practice
                                                                              exists in a branch of international trade or commerce
                           ( Sixth Chamber)                                   in particular where a particular course of conduct is
                        of 20 February 1997                                   generally followed by contracting parties operating in
                                                                               that branch when they conclude contracts of a
 in Case C-106/95 (reference for a preliminary ruling from                    particular type. The fact that the contracting parties
 the Bundesgerichtshof): Mainschiffahrts-Genossenschaft                        were aware of that practice is made out in particular
           eG (MSG ) v. Les Gravieres Rhenanes Sari ( ] )                      where they had previously had trade or commercial
 (Brussels Convention — Agreement on the place of                              relations between themselves or with other parties
 performance of the obligation in question — Agreement                         operating in the branch of trade or commerce in
                       conferring jurisdiction)                                question or where, in that branch, a particular course
                                                                               of conduct is generally and regularly followed when
                              ( 97/C 108/06 )
                                                                               concluding a certain type of contract, with the result
                                                                               that it may be regarded as being a consolidated
                  (Language of the case: German)                               practice.
     (Provisional translation; the definitive translation will be
             published in the European Court Reports)                     2 . The Convention of 27 September 1968 must be
                                                                               interpreted as meaning that an oral agreement on the
                                                                               place of performance which is designed not to
  In Case C-106/95 : reference to the Court under Article 177
                                                                                determine the place where the person liable is actually
  of the EC Treaty from the Bundesgerichtshof ( Federal                         to perform the obligations incumbent upon him, but
  Court of Justice ) for a preliminary ruling in the                            solely to establish that the courts for a particular place
  proceedings pending before that court between                                 have jurisdiction, is not governed by Article 5 (1 ) of
  Mainschiffahrts-Genossenschaft eG ( MSG) and Les                              the Convention, but by Article 1 7, and is valid only if
  Gravieres Rhenanes Sari — on the interpretation of                            the requirements set out therein are complied with.
  Article 5 ( 1 ) and the third hypothesis mentioned in the
  second sentence of the first paragraph       of Article 17 of the
                                                                           H OJ No C 137, 3 . 6 . 1995 .
  Convention of 27 September 1968 on           jurisdiction and the
  enforcement of judgments in civil and        commercial matters
   ( OJ No L 304, 30. 10 . 1978 , p. 36 ),      as amended by the


18.12.1999              EN                     Official Journal of the European Communities                                 C 366/23
Action brought on 28 October 1999 by the Commission                              Removal from the register of Case C-116/99 (1)
of the European Communities against the Republic of
                                 Austria
                                                                                (1999/C 366/40)
                           (Case C-411/99)
                                                                          By order of 21 September 1999 the President of the Court of
                                                                          Justice of the European Communities has ordered the removal
                           (1999/C 366/38)
                                                                          from the register of Case C-116/99: Commission of the
                                                                          European Communities v Italian Republic.
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities
on 28 October 1999 by the Commission of the European
                                                                          (1) OJ No C 188 of 3.7.1999.
Communities, represented by Josef Christian Schieferer, of its
Legal Service, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of its
Legal Service, Wagner Centre C 254, Kirchberg.
The applicant claims that the Court should:
(1) declare that, by failing to adopt and communicate to
     the Commission the laws, regulations and administrative
     measures necessary in order to comply with Directive
                                                                                Removal from the register of Case C-349/98 (1)
     95/47/EC (1) of the European Parliament and the Council
     of 24 October 1995 on the use of standards for the
     transmission of television signals, the Republic of Austria                                  (1999/C 366/41)
     has failed to fulfil its obligations under that directive;
(2) order the Republic of Austria to pay the costs.                       By order of 22 September 1999 the President of the Court of
                                                                          Justice of the European Communities has ordered the removal
                                                                          from the register of Case C-349/98: Commission of the
The pleas in law and main arguments are the same as in Case               European Communities v Italian Republic.
C-386/99 (2); the time-limit laid down in Article 8 of the
directive expired on 23 August 1996.
                                                                          (1) OJ No C 340 of 7.11.1998.
( 1) OJ L 281 of 23.11.1995, p. 51.
(2) See p. 20 of this Official Journal.
                                                                                Removal from the register of Case C-12/99 (1)
        Removal from the register of Case C-474/98 (1)
                           (1999/C 366/39)                                                        (1999/C 366/42)
By order of 20 September 1999 the President of the Court of               By order of 23 September 1999 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-474/98 (reference for a preliminary           from the register of Case C-12/99: Commission of the Euro-
ruling by the Tribunal Administratif de Lille): Clinique Grégoire         pean Communities v Portuguese Republic.
SA v Direction Régionale des Impôts du Nord-Pas-de-Calais.
                                                                          (1) OJ C 71 of 13.3.1999.
(1) OJ No C 71 of 13.3.1999.


3 . 6 . 95                  EN                  Official Journal of the European Communities                            No C 137/ 15
the EC Treaty in so far as it penalizes in general the                            Removal from the register of Case C-4 15/92 ( )
importation by private individuals of medicaments or, as in                                            ( 95/C 137/33 )
this case , spectacles from other Member States ?
                                                                           By order of 17 February 1995 the President of the Court of
                                                                           Justice of the European Communities ordered the removal
                                                                           from the register of Case C-415/92 : Italian Republic
                                                                           v. Commission of the European Communities .
Action brought on 11 April 1995 by the Commission of the
 European Communities against the Portuguese Republic
                                                                           ( t ) OJ No C 33 , 5 . 2 . 1993 .
                              ( Case C-125/95 )
                                ( 95/C 137/32 )
An action against the Portuguese Republic was brought
before the Court of Justice on 11 April 1995 by the
Commission of the European Communities, represented by
Jose Luis Iglesias Buhigues and Sergio de Carvalho, Legal                         Removal from the register of Case C-397/93 ( )
Advisers , acting as Agents, with an address for service in                                             ( 95/C 137/34 )
Luxembourg at the office of Georgios Kremlis , of its Legal
Service, Wagner Centre, Kirchberg.
                                                                           By order of 16 February 1995 the President of the Court of
The applicant claims that the Court should :                               Justice of the European Communities ordered the removal
                                                                           from the register of Case C-397/93 ( reference for a
— declare that, by failing to adopt within the prescribed                  preliminary ruling from the Pretura Circondariale di
     period all the measures necessary to implement in                     Genova ): Voltri Terminal Europa SpA v. Giorgio Donati
     full :                                                                and Others .
     — Council Directive 91 /67/EEC (') of 28 January 1991                 (>) OJ No C 277, 15 . 10 . 1993 .
          concerning the animal health conditions governing
          the placing on the market of aquaculture animals and
          products,
     — Council Directive 91 /492/EEC ( 2 ) of 15 July 1991
           laying down the health conditions for the production
           and the placing on the market of live bivalve
           molluscs ,                                                              Removal from the register of Case C-52/94 ( ! )
                                                                                ( 95/C 137/35 )
     — Council Directive 91 /495/EEC ( i ) of 22 July 1991
           laying down the health conditions for the production
          and the placing on the market of fishery products ,              By order of 16 February 1 995 the President of the Court of
           and                                                             Justice of the European Communities ordered the removal
                                                                           from the register of Case C-52/94 : Italian Republic
     — Council Directive 92/48/EEC ( 4 ) of 16 June 1992                   v. Commission of the European Communities .
           laying down the minimum hygiene rules applicable
          to fishery products caught on board certain vessels in           (') OJ No C 103 , 11 . 4 . 1994 .
           accordance with Article 3 ( 1 ) ( a ) ( i ) of Directive
           91 /493 /EEC ,
— the Portuguese Republic has failed to comply with its
     obligations under the Treaty,
— order the Portuguese Republic to pay the costs .
                                                                                Removal from the register of Case C-89/94 (')
Pleas in law and main arguments adduced in support:                                                     ( 95/C 137/36 )
The pleas in law and main arguments are similar to those in
Case C-79/95 . The period prescribed for transposing the                   By order of 8 March 1995 the President of the Court of
Directives expired on 1 January 1993 .                                     Justice of the European Communities ordered the removal
                                                                           from the register of Case C-89/94 : Commission of the
(')  OJ  No    L 46 , 19 . 2 . 1991 , p . 1 .
                                                                           European Communities v. Hellenic Republic .
(2)  OJ  No    L 268 , 24 . 9 . 1991 , p . 1 .
(;)  OJ  No    L 268 , 24 . 9 . 1991 , p . 15 .                            (M OJ No C 132 , 14 . 5 . 1994 .
(4 ) OJ  No    L 187, 7. 7 . 1992 , p . 41 .