title: Case C-94/05: Judgment of the Court (Second Chamber) of  16 March 2006  (reference for a preliminary ruling from the Bundesverwaltungsgericht) — Emsland-Stärke GmbH v Landwirtschaftskammer Hannover (Common agricultural policy — Regulation (EC) No 97/95 — Premiums paid to starch-producing undertakings — Conditions for granting premiums — Penalties — Proportionality — Regulation (EC, Euratom) No 2988/95 — Protection of the European Communities' financial interests)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/25

         Judgment of the Court (Second Chamber) of 16 March 2006 (reference for a preliminary ruling from the Bundesverwaltungsgericht) — Emsland-Stärke GmbH v Landwirtschaftskammer Hannover
   (Case C-94/05) (1)

   (Common agricultural policy - Regulation (EC) No 97/95 - Premiums paid to starch-producing undertakings - Conditions for granting premiums - Penalties - Proportionality - Regulation (EC, Euratom) No 2988/95 - Protection of the European Communities' financial interests)
   (2006/C 131/44)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht (Germany)
   Parties to the main proceedings

      Applicant: Emsland-Stärke GmbH

      Defendant: Landwirtschaftskammer Hannover
   Re:
   Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 13(4) of Commission Regulation (EC) No 97/95 of 17 January 1995 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards the minimum price and compensatory payment to be paid to potato producers and of Council Regulation (EC) No 1868/94 establishing a quota system in relation to the production of potato starch (OJ 1995 L 16, p. 3), as amended by Commission Regulation (EC) No 1125/96 of 24 June 1996 (OJ 1996 L 150, p. 1) — Conditions governing grant of the premium — Cultivation contract between the potato starch manufacturer on the one hand and, on the other, not the producer but a dealer who obtains the potatoes directly or indirectly from producers — Penalties
   Operative part of the judgment

               1.

               The penalty provided for in Article 13(4) of Commission Regulation (EC) No 97/95 of 17 January 1995 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards the minimum price and compensatory payment to be paid to potato producers and of Council Regulation (EC) No 1868/94 establishing a quota system in relation to the production of potato starch, as amended by Commission Regulation (EC) No 1125/96 of 24 June 1996, applies to a starch-producing undertaking which, although it has not necessarily exceeded the sub-quota allocated to it, obtains potatoes from a trader obtaining them directly or indirectly from potato producers, even where the purchase and delivery contract between that undertaking and the trader in question is described as a ‘cultivation contract’ by the parties to the contract and has been accepted as such by a competent national authority under Article 4(2) of that regulation, but cannot be classified as a ‘cultivation contract’ for the purposes of Article 1(d) and (e) of that regulation.

               2.

               Consideration of the first part of the second question has disclosed no factor capable of affecting the validity of Article 13(4) of Regulation No 97/95, as amended by Regulation No 1125/96, from the point of view of the principle of legal certainty.

               3.

               Consideration of the second part of the second question has disclosed no factor capable of affecting the validity of Article 13(4) of Regulation No 97/95, as amended by Regulation No 1125/96, from the point of view of the principle of proportionality referred to in Article 2(1) and (3) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests.

               4.

               The fact that the competent national authority was informed that the starch-producing undertaking had obtained potatoes from a trader obtaining them directly or indirectly from producers cannot affect the classification of an irregularity regarded as having been ‘caused by negligence’ within the meaning of Article 5(1) of Regulation No 2988/95, nor, therefore, affect the imposition on that undertaking of the penalty provided for in Article 13(4) of Regulation No 97/95, as amended by Regulation No 1125/96.

      (1)  OJ C 93, 16.04.2005.


title: Case C-312/07: Reference for a preliminary ruling from the Tribunal d'instance, Paris, lodged on 6 July 2007 — JVC France SAS v Administration des douanes (Direction Nationale du Renseignement et des Enquêtes douanières)

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/25

         Reference for a preliminary ruling from the Tribunal d'instance, Paris, lodged on 6 July 2007 — JVC France SAS v Administration des douanes (Direction Nationale du Renseignement et des Enquêtes douanières)
   (Case C-312/07)
   (2007/C 211/46)
   Language of the case: French
   Referring court
   Tribunal d'instance de Paris
   Parties to the main proceedings

      Applicant: JVC France SAS

      Defendant: Administration des douanes (Direction Nationale du Renseignement et des Enquêtes douanières)
   Questions referred

               1.

               Must a camcorder, which when imported is unable to record external video signals, be classified under subheading 8525 40 99, if its video interface can subsequently be reconfigured as a video input by using software or an enabler (widget) equipped with electronic circuitry which enables it to record an external video sound signal, even though the manufacturer and the seller have not mentioned this possibility and do not endorse it?

               2.

               If so, to the extent that the subsequent amendments of the explanatory notes entail a change in Community practice with regard to the classification of camcorders and an exception to the principle that goods must be classified according to their actual characteristics at the time of customs clearance, was the European Commission entitled to make this change by amending the explanatory notes, and hence with retrospective effect, rather than by adopting a classification regulation that was applicable only in the future?


title: Case T-554/12: Action brought on 21 December 2012 — Oracle America/OHMI — Aava Mobile (AAVA MOBILE)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/22

         Action brought on 21 December 2012 — Oracle America/OHMI — Aava Mobile (AAVA MOBILE)
   (Case T-554/12)
   2013/C 63/43
   Language in which the application was lodged: English

      Parties

      Applicant: Oracle America, Inc. (Wilmington, United States) (represented by: M. 2Graf, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Aava Mobile Oy (Oulu, Finland)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market in case R 1205/2011-2 dated October 9, 2012;

               —

               Order the costs of the proceedings to be borne by the defendant.

      Pleas in law and main arguments

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

      Community trade mark concerned: the word mark ‘AAVA MOBILE’, for goods and services in classes 9, 38 and 42 — Community trade mark application No 8 715 385)

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

      Mark or sign cited in opposition: Community trade mark registration No 6 551 626 for goods and services in classes 9, 16, 35, 37, 38, 41, 42 et 45

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

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 8(1)(b) and (5) of Council Regulation No 207/2009.


title: Case C-213/06 P: Judgment of the Court (First Chamber) of 18 July 2007 — European Agency for Reconstruction (EAR) v Georgios Karatzoglou (Appeals — Temporary staff — Termination of contract)

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/8

         Judgment of the Court (First Chamber) of 18 July 2007 — European Agency for Reconstruction (EAR) v Georgios Karatzoglou
   (Case C-213/06 P) (1)

   (Appeals - Temporary staff - Termination of contract)
   (2007/C 211/13)
   Language of the case: English
   Parties

      Appellant: European Agency for Reconstruction (EAR) (represented by: S. Orlandi and J.-N. Louis, avocats)

      Other party to the proceedings: Georgios Karatzoglou (represented by: S. Pappas, dikigoros)
   Re:
   Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 23 February 2006 in Case T-471/04 Karatzoglou v EAR annulling the decision of the EAR terminating the contract of the applicant as a member of the temporary staff
   Operative part of the judgment
   The Court:

               1)

               Sets aside the judgment of the Court of First Instance of the European Communities of 23 February 2006 in Case T-471/04 Karatzoglou v EAR;

               2)

               Refers the case back to the Court of First Instance of the European Communities for that Court to rule on Mr Karatzoglou's submissions to the effect that the decision of the European Agency for Reconstruction (EAR) of 26 February 2004 terminating his employment contract should be annulled;

               3)

               Reserves the costs.

      (1)  OJ C 178, 29.7.2006.


title: Case T-289/07: Order of the General Court of 23 March 2010 — Caisse Nationale des Caisses d'Epargne et de Prévoyance v Commission

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/50

         Order of the General Court of 23 March 2010 — Caisse Nationale des Caisses d'Epargne et de Prévoyance v Commission
   (Case T-289/07) (1)

   2010/C 148/82

      Language of the case: French

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

      (1)  OJ C 235, 6.10.2007.


title: Case C-208/04: Reference for a preliminary ruling by the Conseil d'Etat (Belgium), XIIIth Chamber, by judgment of that court of 29 April 2004 in the case Inter-Environnement Wallonnie against Région wallonne

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/7

         Reference for a preliminary ruling by the Conseil d'Etat (Belgium), XIIIth Chamber, by judgment of that court of 29 April 2004 in the case Inter-Environnement Wallonnie against Région wallonne
   (Case C-208/04)
   (2004/C 179/14)
   A reference has been made to the Court of Justice of the European Communities by judgment of the Conseil d'Etat (Belgium), XIIIth Chamber, of 29 April 2004, received at the Court Registry on 11 May 2004, for a preliminary ruling in the case Inter-Environnement Wallonnie against Région wallonne on the following question:
   ‘Is Article 1(a) of Directive 75/442/EEC of 15 July 1975 (1), as amended by Directive 91/156/EEC of 18 March 1991 (2), to be construed as allowing Member States to create, by means of a legal rule, a category of materials which do not come either under the category of waste or that of products but may none the less either meet the definition of waste set out in Article 1(a) or contain substances or objects which meet that definition of waste?’

      (1)  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ L 194 of 25.07.1975, p. 39).

      (2)  Council Directive 91/156/EEC of 18 March 1991, amending Directive 75/442/EEC on waste (OJ L 78 of 26.03.1991, p. 32).


title: Case C-213/00 P: Appeal brought on 30 May 2000 by Italcementi SpA against the judgment delivered on 15 March 2000 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Joined Cases T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 between Cimenteries CBR SA and Others and the Commission of the European Communities

text:
C 247/8                EN                       Official Journal of the European Communities                                       26.8.2000
(d) The Court of First Instance’s judgment is also vitiated by                   (iii) order the Commission to pay the costs.
      a lack of reasoning and failure to respond to arguments
      of the Appellant.
                                                                           Pleas in law and main arguments
(1) OJ C 101 of 22.4.1995, pp 10-20; C 119 of 13.5.1995, pp 13-            —     Error of law inasmuch as the judgment under appeal
    26; C 137 of 3.6.1995, pp 23-28, 33 and 34, and C 208 of                     finds that the consultation with the Advisory Committee
    12.8.1995, pp 26 and 27.                                                     on Restrictive Practices and Abuses of Dominant Pos-
(2) Commission Decision 94/815/EC of 30 November 1994 relating
    to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
                                                                                itions was properly conducted: the case-law of the Court
    and 33.322 — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).                    of Justice requires that the Advisory Committee should
                                                                                be consulted at least orally on the amount of the fines
                                                                                envisaged.
                                                                           —     Manifest error of assessment in so far as the judgment
                                                                                under appeal finds that Compagnie des Ciments Belges
                                                                                was under the control of Ciments Français at the time of
                                                                                the infringement and inasmuch as the turnover of that
                                                                                subsidiary was not excluded from the basis of assessment
                                                                                on which the fine imposed on Ciments Français was
                                                                                calculated.
Appeal brought on 26 May 2000 by Ciments Français S.A.                     —     Infringement of the principle of proportionality inasmuch
against the judgment delivered on 15 March 2000 by the                           as the judgment under appeal does not reduce the amount
Court of First Instance of the European Communities                              of the fine imposed on Ciments Français in proportion to
(Fourth Chamber, Extended Composition) in Case T-39/95                           the complaints against Ciments Français which were
Ciments Français S.A. v Commission of the European                               annulled by the Court of First Instance.
                           Communities
                                                                           —     Error of law inasmuch as the judgment under appeal
                                                                                states that the Commission was entitled to base itself on
                        (Case C-211/00 P)                                        the turnover for 1992 for the purpose of calculating the
                                                                                fine imposed on Ciments Français: under Article 15(2) of
                         (2000/C 247/11)                                         Regulation No 17/62, the turnover which is to serve as
                                                                                the basis for calculation of the fine is in principle that of
                                                                                the business year preceding adoption of the decision. The
An appeal has been brought before the Court of Justice of the                    Court of First Instance departed from that interpretation
European Communities on 26 May 2000 by Ciments Français                          and failed to give reasons for so doing.
S.A., represented by Antoine Winckler, with an address for
service in Luxembourg at the Chambers of Elvinger & Hoss,
15 Côte d’Eich, against the judgment delivered on 15 March
2000 by the Court of First Instance of the European Communi-
ties (Fourth Chamber, Extended Composition) in Case
T-39/95 Ciments Français S.A. v Commission of the European
Communities.
                                                                           Appeal brought on 30 May 2000 by Italcementi SpA
The appellant claims that the Court should:                                against the judgment delivered on 15 March 2000 by the
                                                                           Court of First Instance of the European Communities
                                                                           (Fourth Chamber, Extended Composition) in Joined Cases
—     Annul in part, pursuant to Article 225 EC and Article 54             T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95,
      of the EC Statute of the Court of Justice, the judgment              T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95,
      delivered on 15 March 2000 by the Court of First Instance            T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95,
      in Case T-39/95 Ciments Français S.A. v Commission of                T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95,
      the European Communities;                                            T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95,
                                                                           T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95,
—     grant the forms of order sought by Ciments Français at               T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95
      first instance, namely:                                              between Cimenteries CBR SA and Others and the Com-
                                                                                mission of the European Communities
      (i)    annul, pursuant to Article 230 EC, the Commission
             decision of 30 November 1994 relating to a pro-                                       (Case C-213/00 P)
             ceeding under [Article 81 EC] in Cases IV/33.126
             and 33.322;
                                                                                (2000/C 247/12)
      (ii) in the alternative, reduce, pursuant to Article 229
             EC and Article 17 of Regulation No 17/62, the fine            An appeal against the judgment delivered on 15 March by the
             imposed on Ciments Français; and                              Court of First Instance of the European Communities (Fourth
 ---pagebreak--- 26.8.2000                EN                    Official Journal of the European Communities                                          C 247/9
Chamber, Extended Composition) in Joined Cases T-25/95,                         —     in so far as the Court of First Instance endorsed the
T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95,                                 method adopted by the Commission when imposing
T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95,                                 the fine on Italcementi;
T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95,
T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95,
                                                                                —     in so far as the Court of First Instance took the view
T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95,
                                                                                that the fact that Italcementi’s participation in the
T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95,
                                                                                ECEC and in some aspects of the exchanges of
T-87/95, T-88/95, T-103/95 and T-104/95 between Cimente-
                                                                                information was not contrary to Article 85(1) of the
ries CBR SA and Others and the Commission of the European
                                                                                Treaty, and the consequent annulment of part of
Communities, was brought before the Court of Justice of the
                                                                                Article 2 and the whole of Article 5 of the decision
European Communities on 30 May 2000 by Italcementi SpA,
                                                                                at issue did not entail a proportional reduction of
represented by Cesare Lanciani, of the Milan Bar, Alberto
                                                                                the fine imposed by Article 9 of the decision at issue;
Predieri, of the Florence Bar, Mario Siragusa, of the Rome Bar,
Francesca Maria Moretti, of the Venice Bar, and Matteo Beretta,
of the Bergamo Bar, with an address for service in Luxembourg                   —     in so far as the Court of First Instance considered
at the Chambers of Elvinger, Hoss & Prussen, 2 Place Winston                          the infringement committed by the appellant to be
Churchill.                                                                            serious;
The Appellant claims that the Court should:                                     —     in so far as the Court of First Instance concluded
                                                                                that the appellant’s participation lasted until the end
1.    mainly, set aside the judgment in whole or in part:                             of April 1992.
      —     in so far as the Court of First Instance misapplied in
                                                                          3.    In any event, annul the relevant parts of the Commission
            respect of Italcementi the principles of infringement
                                                                                decision should it uphold the present appeal.
            of the rights of defence in relation to failure to grant
            full access during the administrative procedure to
            the case-file;                                                4.    Reduce the fine by the amount it may deem appropriate.
      —     in so far as the Court of First Instance misapplied in        5.    Refer the case back to the Court of First Instance should
            respect of Italcementi the principles of infringement               it decide that the nature of the case, in whole or in part,
            of the rights of defence in relation to failure to                  does not make it possible for the Court of Justice to give
            communicate beforehand the decision to drop                         a final decision on the dispute.
            objections.
2.    in the alternative, set aside the judgment in part:                 6.    Order the Commission to pay the costs of the proceedings
                                                                                at first instance and the appeal.
      —     in so far as the Court of First Instance did not find
            that the infringement of the rights of defence by
            the failure to communicate the decision to drop
            objections should result in the annulment of                  Pleas and main arguments
            Article 4(3)(b) of the decision at issue (1) and conse-
            quently in a proportionate reduction of the fine in
            view of the lesser duration of the infringement;              Pleas in law relating to the setting aside of the judgment
                                                                          and the annulment of the decision
      —     in so far as the Court of First Instance did not accept
            that there was a contradiction between the decision
            to drop objections and the decision at issue and did
            not therefore annul Article 4(3)(b) of the operative          A.    Procedure
            part, with all its implications so far as concerns the
            infringement and, therefore, also the fine;                   1.     Misapplication of Community law and infringement of
                                                                          the rights of defence as a result of being unable to gain access
      —     in so far as the Court of First Instance found that the       to all the documents contained in the Commission’s file during
            Commission was right to attribute to Italcementi an           the course of the administrative procedure:
            infringement of Article 85(1) of the Treaty on
            the ground that it participated in an agreement
                                                                          (i)   Infringement of the rights of defence as regards access to
            concerning contracts and arrangements with Cal-
                                                                                the file automatically entails annulment of the decision at
            cestruzzi, following the termination of the contract
            between Calcestruzzi and Titan and, in any event,                   issue.
            after the period 3 to 15 April 1987;
                                                                          (ii) The analysis carried out by the Court of First Instance is
      —     in so far as the Court of First Instance found that a               seriously flawed by erroneous assumptions going to the
            sufficient statement of reasons had been provided                   merits; it is moreover entirely arbitrary and unfounded
            for the decision at issue so far as concerns determi-               inasmuch as the Court of First Instance misapplied the
            nation of the fine imposed on the appellant;                        principle of direct evidence, having ruled out a priori as
 ---pagebreak--- C 247/10               EN                   Official Journal of the European Communities                                          26.8.2000
      irrelevant any document which did not have an objective          B.    Pleas in law relating to the reduction of
      link with the charges laid against the appellant or                    the fine
      which did not counter directly the documentary evidence
      adduced by the Commission and, in any event, by the              1.     Error in law as regards failure to change the fine where
      manner in which the Court of First Instance ascertained          the Commission measure is annulled in part.
      whether the rights of defence had in fact been infringed
      on account of the improper access to the file during the         2.     Infringement of Article 15(2) of Regulation No 17 and
      administrative procedure.                                        inadequacy of the statement of reasons so far as concerns
                                                                       assessment of the gravity of the infringement with which
                                                                       Italcementi is charged.
(iii) Infringement of the rights of defence as regards access to
      the file entails the annulment of the decision at issue
      irrespective of whether the undertaking which stands             3.     Infringement of Article 15(2) of Regulation No 17 so far
      accused is able to show that access during the administrat-      as concerns assessment of the duration of the infringement
      ive procedure might have led the Commission to arrive            with which Italcementi is charged.
      at a different conclusion.
                                                                       (1) Commission Decision 94/815/EC of 30 November 1994 relating
                                                                           to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
2.     Infringement of the rights of the defence, inadequate               — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).
statement of reasons and contradiction with an earlier decision
regarding the decision dropping the national objections com-
municated by letter of 27 November 1993.
B.    Substance
                                                                       Appeal brought on 31 May 2000 by Buzzi Unicem SpA
                                                                       (‘Unicem’) against the judgment delivered on 15 March
1.     Error in law and contradiction with another part of the         2000 by the Court of First Instance of the European
statement of reasons as regards assessment of the validity of          Communities (Fourth Chamber, Extended Composition)
the agreement on contracts and agreements signed in April              in Joined Cases T-25/95, T-26/95, T-30/95, T-31/95,
1987 with Calcestruzzi.                                                T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95,
                                                                       T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95,
                                                                       T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95,
                                                                       T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95,
Pleas in law relating to the cancellation or reduction of              T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95,
the fine                                                               T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and
                                                                       T-104/95 between Cimenteries CBR SA and Others and
                                                                              the Commission of the European Communities
                                                                                (Case C-217/00 P)
A.    Pleas in law relating to the cancellation
      of the fine
                                                                                (2000/C 247/13)
1.     Misapplication of Community law and case-law and                An appeal against the judgment delivered on 15 March by the
infringement of Article 253 of the Treaty as regards assessment        Court of First Instance of the European Communities (Fourth
of the inadequacy of the statement of reasons for the decision         Chamber, Extended Composition) in Joined Cases T-25/95,
at issue so far as concerns the fine.                                  T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95,
                                                                       T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95,
                                                                       T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95,
2.     Infringement of Article 15(2) of Regulation No 17,              T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95,
breach of the principle of proportionality, manifest error of          T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95,
assessment and inadequate statement of reasons so far as               T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95,
concerns the sales taken into account when calculating the             T-87/95, T-88/95, T-103/95 and T-104/95 between Cimente-
fines.                                                                 ries CBR SA and Others and the Commission of the European
                                                                       Communities, was brought before the Court of Justice of the
                                                                       European Communities on 31 May 2000 by Buzzi Unicem
3.     Misapplication of Community law, breach of the prin-            SpA, whose principal office is in Turin (Italy), represented by
ciples of fairness, proportionality and non-discrimination and         Cristoforo Osti, of the Rome Bar, and Alessandra Prastaro, of
inadequate statement of reasons as regards assessment of the           the Lecce Bar, with an address for service in Luxembourg at
criteria used when determining the fines.                              the Chambers of Marc Loesch, 11 Rue Goethe.


title: Case C-243/13: Judgment of the Court (Fifth Chamber) of 4 December 2014  — European Commission v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Environment — Directive 2008/1/EC — Integrated pollution prevention and control — Existing installation — Authorisation procedure — Procedures under way — Judgment of the Court establishing a failure to fulfil obligations — Non-implementation — Article 260(2) TFEU — Pecuniary penalties — Lump sum — Penalty payment)

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/7

         Judgment of the Court (Fifth Chamber) of 4 December 2014 — European Commission v Kingdom of Sweden
   (Case C-243/13) (1)

   ((Failure of a Member State to fulfil obligations - Environment - Directive 2008/1/EC - Integrated pollution prevention and control - Existing installation - Authorisation procedure - Procedures under way - Judgment of the Court establishing a failure to fulfil obligations - Non-implementation - Article 260(2) TFEU - Pecuniary penalties - Lump sum - Penalty payment))
   (2015/C 046/08)
   Language of the case: Swedish

      Parties

      Applicant: European Commission (represented by: S. Petrova and J. Enegren, acting as Agents)

      Defendant: Kingdom of Sweden (represented by: E. Karlsson, A. Falk and S. Johannesson, acting as Agents)

      Operative part of the judgment

   The Court (Fifth Chamber) hereby:

               1.

               Declares that, by failing to take the measures necessary to comply with the judgment of the Court of Justice in Commission v Sweden (C-607/10, EU:C:2012:192), Sweden has failed to fulfil its obligations under Article 260(1) TFEU;

               2.

               Declares that, if the failure to fulfil obligations found in point 1 has continued until the date of delivery of this judgment, the Kingdom of Sweden shall be ordered to pay to the European Commission, into the ‘European Union own resources’ account, a penalty payment of EUR 4  000 for each day of delay in taking the measures necessary to comply with the judgment of 23 November 2006 in Commission v Sweden (C-607/10, EU:C:2012:192), from the date of delivery of this judgment until the date on which the first judgment has been complied with;

               3.

               Orders the Kingdom of Sweden to pay to the European Commission, into the ‘European Union own resources’ account, a lump sum of EUR 2 0 00  000;

               4.

               Orders the Kingdom of Sweden to pay the costs.

      (1)  OJ C 189, 29.6.2013.


title: Case C-321/09 P: Judgment of the Court (Fifth Chamber) of 7 April 2011 — Hellenic Republic v European Commission (Appeal — EAGGF — Expenditure excluded from Community financing owing to failure to comply with Community rules — Expenditure incurred by the Hellenic Republic)

text:
               11.6.2011

               EN

               Official Journal of the European Union

               C 173/2

         Judgment of the Court (Fifth Chamber) of 7 April 2011 — Hellenic Republic v European Commission
   (Case C-321/09 P) (1)

   (Appeal - EAGGF - Expenditure excluded from Community financing owing to failure to comply with Community rules - Expenditure incurred by the Hellenic Republic)
   2011/C 173/03
   Language of the case: Greek

      Parties

      Appellant: Hellenic Republic (represented by: I. Chalkias, Agent)

      Other party to the proceedings: European Commission (represented by: H. Tserepa-Lacombe and F. Jimeno Fernández, Agents)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Eighth Chamber) of 11 June 2009, in Case T-33/07 Greece v Commission, by which that court dismissed an application for the partial annulment of Commission Decision 2006/932/EC of 14 December 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (notified under document number C(2006) 5993) — Olive oil, cotton, dried grapes and citrus fruit sectors

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 244, 10.10.2009.


title: Case C-451/05: Judgment of the Court (Fourth Chamber) of 11 October 2007 (reference for a preliminary ruling from the Court of Cassation — France) — Européenne et Luxembourgeoise d'investissements SA (ELISA) v Directeur général des impôts, Ministère public (Direct taxation — Tax on the commercial value of immovable property in France owned by legal persons — Holding companies under Luxembourg law — Refusal of exemption — Directive 77/799/EEC — Non-exhaustive list of specified taxes and duties — Tax similar in nature — Limits to exchange of information — Bilateral convention — Article 73b of the EC Treaty (now Article 56 EC) — Free movement of capital — Combating tax evasion)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/8

         Judgment of the Court (Fourth Chamber) of 11 October 2007 (reference for a preliminary ruling from the Court of Cassation — France) — Européenne et Luxembourgeoise d'investissements SA (ELISA) v Directeur général des impôts, Ministère public
   (Case C-451/05) (1)

   (Direct taxation - Tax on the commercial value of immovable property in France owned by legal persons - Holding companies under Luxembourg law - Refusal of exemption - Directive 77/799/EEC - Non-exhaustive list of specified taxes and duties - Tax similar in nature - Limits to exchange of information - Bilateral convention - Article 73b of the EC Treaty (now Article 56 EC) - Free movement of capital - Combating tax evasion)
   (2007/C 297/11)
   Language of the case: French
   Referring court
   Court of Cassation
   Parties to the main proceedings

      Applicant: Européenne et Luxembourgeoise d'investissements SA (ELISA)

      Defendant: Directeur général des impôts, Ministère public
   Re:
   Reference for a preliminary ruling — Court of Cassation (France) — Interpretation of Article 43 EC et seq. and Article 56 EC et seq., and Article 1 of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation (OJ 1977 L 336, p. 15) — Tax on the commercial value of immoveable property situated in France — Exemption of legal persons having their effective centre of management in France, legal persons which, under a treaty, are not to be taxed more heavily and legal persons having their seat in a country or territory which has concluded with France a convention on administrative assistance to combat tax evasion and avoidance — Refusal to grant an exemption to a Luxembourg holding company.
   Operative part of the judgment

               1)

               The tax on the commercial value of immovable property owned in France by legal persons is a tax which is similar in nature to those taxes referred to in Article 1(3) of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct and indirect taxation, as amended by Council Directive 92/12/EEC of 25 February 1992, which is levied on elements of capital within the meaning of Article 1(2) of that directive;

               2)

               Directive 77/799, as amended by Directive 92/12, and in particular Article 8(1) thereof, does not preclude two Member States from binding themselves by means of an international convention, with the intention of avoiding double taxation and establishing rules for reciprocal administrative assistance in the area of taxes on income and capital, which excludes from its scope, in respect of one Member State, one category of taxpayers subject to a tax covered by that directive, if the competent authority of the Member State which should furnish information is prevented by its laws or administrative practices from collecting or using such information for that State's own purposes, this being a matter which it is for the national court to verify;

               3)

               Article 73b of the EC Treaty (now Article 56 EC) must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which exempts companies established in France from the tax on the commercial value of immovable property owned in France by legal persons, when, in respect of companies established in another Member State, it makes that exemption subject either to the existence of a convention on administrative assistance between the French Republic and that State for the purposes of combating tax avoidance and tax evasion or to the existence of a requirement in a treaty containing a clause prohibiting discrimination on grounds of nationality to the effect that those companies cannot be more heavily taxed than companies established in France, and which does not allow the company established in another Member State to supply evidence to establish the identity of the natural persons who are its shareholders.

      (1)  OJ C 60, 11.3.2006.


title: Case C-279/09: Judgment of the Court (Second Chamber) of 22 December 2010 (reference for a preliminary ruling from the Kammergericht, Berlin — Germany) — DEB Deutsche Energiehandels-und Beratungsgesellschaft mbH v Bundesrepublik Deutschland (Effective judicial protection of rights derived from European Union law — Right of access to a court — Legal aid — National legislation refusing legal aid to legal persons in the absence of ‘public interest’ )

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/9

         Judgment of the Court (Second Chamber) of 22 December 2010 (reference for a preliminary ruling from the Kammergericht, Berlin — Germany) — DEB Deutsche Energiehandels-und Beratungsgesellschaft mbH v Bundesrepublik Deutschland
   (Case C-279/09) (1)

   (Effective judicial protection of rights derived from European Union law - Right of access to a court - Legal aid - National legislation refusing legal aid to legal persons in the absence of ‘public interest’)
   2011/C 55/15
   Language of the case: German

      Referring court

   Kammergericht, Berlin

      Parties to the main proceedings

      Applicant: DEB Deutsche Energiehandels-und Beratungsgesellschaft mbH

      Defendant: Bundesrepublik Deutschland

      Re:

   Reference for a preliminary ruling — Kammergericht Berlin — Interpretation of the principle of effectiveness — Compatibility with that principle of national rules refusing legal aid to legal persons in the absence of ‘public interest’ — Action seeking to establish the liability of a Member State for delay in transposing Community directives

      Operative part of the judgment

   The principle of effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer.
   In that connection, it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right; whether they pursue a legitimate aim; and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.
   In making that assessment, the national court must take into consideration the subject matter of the litigation; whether the applicant has a reasonable prospect of success; the importance of what is at stake for the applicant in the proceedings; the complexity of the relevant law and procedure; and the applicant’s capacity to represent himself effectively. In order to assess the proportionality, the national court may also take account of the amount of the costs of the proceedings in respect of which advance payment must be made and whether or not those costs might represent an insurmountable obstacle to access to the courts.
   With regard more specifically to legal persons, the national court may take account of their situation. The court may therefore take into consideration, inter alia, the form of the legal person in question and whether it is profit-making or non-profit-making; the financial capacity of the partners or shareholders; and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings.

      (1)  OJ C 267, 7.11.2009.


title: Case T-336/06: Action brought on 27 November 2006 — 2K-Teint and Others v EIB and Commission

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/15

         Action brought on 27 November 2006 — 2K-Teint and Others v EIB and Commission
   (Case T-336/06)
   (2007/C 20/22)
   Language of the case: French
   Parties

      Applicants: 2K-Teint SARL, Mohamed Kermoudi, Khalid Kermoudi, Laila Kermoudi, Mounia Kermoudi, Salma Kermoudi and Rabia Kermoudi (Casablanca, Morocco) (represented by: P. Thomas, lawyer)

      Defendants: European Investment Bank (Luxembourg, Grand Duchy of Luxembourg) and Commission of the European Communities (Brussels, Belgium)
   Form of order sought

               —

               admit the application and declare the applicants' action well founded;

               —

               order the EIB to release its entire file concerning the equity loan to the capital of 2K-Teint, including all documents exchanged in that regard with the BNDE, failing which to pay a late-payment fine of EUR 10 000 per day;

               —

               rule that the EIB is liable to the applicants in quasi-delict by reason of the errors, failures, negligence and omissions of the EIB with regard to the applicants;

               —

               rule that the applicants suffered a loss quantified [as set out in the application];

               —

               order an expert to report on the extent and validity of the losses described;

               —

               order the EIB and/or the European Community jointly and severally to pay the applicants amounts in respect of the causes of action set out above, converted to Euros [on the basis of the following indications] with statutory interest as from the first court summons issued to the applicants, that is to say the summons to appear before the Tribunal d'arrondissement, Luxembourg (District Court), dated 17 June 2003 and until payment in full;

               —

               rule that the judgment to be delivered will be provisionally enforceable notwithstanding any remedies and without a guarantee;

               —

               order the EIB and/or the European Community jointly and severally to pay, as an amount additional to the costs, the provisional sum of EUR 12 500 which the applicants have had to pay to ensure their defence and representation at the hearing and which it is inequitable that they should bear;

               —

               order the EIB and/or the European Community to pay all the expenses and costs of the action;

               —

               reserve to the applicants all rights and claims.

         Pleas in law and main arguments
   By a financing contract signed in Luxembourg on 28 April 1994, the EIB, acting in the name and on behalf of the European Community on the basis of a mandate granted by the European Commission, granted the Kingdom of Morocco, as assistance with risk capital, a conditional loan intended to finance productive projects in the industrial sector, in particular in association with European Union undertakings (natural and legal persons) (Global Loan Financial Sector II Project). According to the terms of the contract, the product of the EIB's loan to Morocco was to be on-loaned with a view to financing projects pursuant to agreements in the form of loans from banks in Morocco, subsequently acting as financial intermediaries. Those loans used for on-lending were intended to ensure the financing by the financial intermediaries of loans or investments in the capital of Moroccan operators, the final beneficiaries. The grant of each loan to the operators was to be the subject of a contract concluded between the bank and the operator concerned by the investment in question. The intermediary was obliged to submit every application with a view to financing investment or a loan to the EIB for approval together with the Moroccan State. The EIB was required to notify the Moroccan State of its agreement with a copy thereof sent simultaneously to the financial intermediary.
   On 12 October 1994, an on-lending agreement was signed between the Kingdom of Morocco and the Banque Nationale pour le Développement Economique (BNDE) which then became one of the financial intermediaries within the meaning of the contract concluded between the EIB and the Kingdom of Morocco. On 29 November 1995, a loan agreement in the context of the IInd EIB Line was concluded between the BNDE and the applicants, subject to the EIB's agreement and receipt of the funds by the BNDE. The contract concerned the partial financing of investment in the company 2K-Teint. By letter of 14 October 1994, the EIB gave its agreement to the 2K-Teint project's receiving that financing.
   By the present action in respect of non-contractual liability on the part of the Community, the applicants seek compensation for the loss which they claim to have suffered by reason of the allegedly wrongful conduct of the EIB in the exercise of its responsibilities as agent of the Community in the context of the management of the loan in question. Inter alia, they allege that the clearing of the loan was extremely slow and it was released only in July 1997, which led them to arrange a short-term loan with the BNDE. The applicants' failure to perform their financial obligations led the BNDE to initiate recovery proceedings before the national courts. By a judgment of a Moroccan national court, the company 2K-Teint was ordered to sell its business.
   Firstly, the applicants allege a number of irregularities committed by the BNDE in the management of the Community funds, of which they informed the EIB, seeking its response. The applicants claim that the EIB did not react to the information sent to it. They argue that the EIB was required to act since the BNDE acted if not on instruction as its agent, at least as its apparent agent, the EIB retaining an important role in the decisions on the loans in question.
   Furthermore, the applicants claim that the EIB should accept liability not only for the errors of the BNDE arising in connection with the legal relationship between them, but also the consequences of its own deficiencies and failures. They allege that the EIB did not efficiently monitor or check the use of the funds from the time of their receipt by the Moroccan bodies, which consequently meant that the allegedly fraudulent conduct of the BNDE was encouraged or even supported. They submit that the EIB was guilty of failures, negligence and omissions, to a serious extent, in its duties of prudence, diligence and care in the management of Community funds.
   The applicants submit that the losses which they claim to have suffered are directly related to the omissions and failures of the EIB. They therefore seek an order that it compensate them for those losses.


title: Case T-605/13: Judgment of the General Court of 25 September 2014 — Alma-The Soul of Italian Wine v OHIM — Miguel Torres (SOTTO IL SOLE ITALIANO SOTTO il SOLE) (Community trade mark — Opposition proceedings — Application for Community figurative mark SOTTO IL SOLE ITALIANO SOTTO il SOLE — Earlier Community word mark VIÑA SOL — Relative ground for refusal — Article 75 of Regulation (EC) No 207/2009 — Duty to state reasons)

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/46

      Judgment of the General Court of 25 September 2014 — Alma-The Soul of Italian Wine v OHIM — Miguel Torres (SOTTO IL SOLE ITALIANO SOTTO il SOLE)
      (Case T-605/13) (1)

      ((Community trade mark - Opposition proceedings - Application for Community figurative mark SOTTO IL SOLE ITALIANO SOTTO il SOLE - Earlier Community word mark VIÑA SOL - Relative ground for refusal - Article 75 of Regulation (EC) No 207/2009 - Duty to state reasons))
      (2014/C 395/57)
      Language of the case: English

         Parties

         Applicant: Alma-The Soul of Italian Wine LLLP (Bal Harbor, Florida, United States) (represented by: F. Terrano, lawyer)

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

         Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Miguel Torres, SA (Vilafranca del Penedès, Spain) (represented by: J. Güell Serra, lawyer)

         Re:

      Action brought against the decision of the Second Board of Appeal of OHIM of 10 September 2013 (Case R 18/2013-2), concerning opposition proceedings between Miguel Torres, SA, and Alma-The Soul of Italian Wine LLLP.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 10 September 2013 (Case R 18/2013-2);

                  2.

                  Orders OHIM to bear its own costs and to pay the costs incurred by Alma-The Soul of Italian Wine LLLP;

                  3.

                  Orders Miguel Torres, SA, to bear its own costs.

         (1)  OJ C 24, 25.1.2014.


title: Order of the Court of First Instance of 19 October 2001 in Case T-121/01: Laurent Piau v Commission of the European Communities (Action for failure to act — Communication under Article 6 of Regulation No 2542/98 — Taking of position bringing infringement to an end — No need to adjudicate)

text:
2.2.2002                EN                     Official Journal of the European Communities                                       C 31/11
V. Tiili and P. Mengozzi, Judges; H. Jung, Registrar, made an                   ORDER OF THE COURT OF FIRST INSTANCE
order on 24 October 2001, the operative part of which is as
follows:                                                                                of 19 October 2001
1.    The application is dismissed.                                       in Case T-121/01: Laurent Piau v Commission of the
                                                                                European Communities (1)
2.    The parties shall bear their own costs.
                                                                          (Action for failure to act — Communication under Article 6
                                                                          of Regulation No 2542/98 — Taking of position bringing
                                                                                infringement to an end — No need to adjudicate)
(1) OJ C 61, 24.2.2001.
                                                                                (2002/C 31/23)
                                                                                (Language of the case: French)
                                                                          In Case T-121/01: Laurent Piau, residing in France, represented
                                                                          by M. Fauconnet, lawyer, with an address for service in
      ORDER OF THE COURT OF FIRST INSTANCE                                Luxembourg, against Commission of the European Communi-
                                                                          ties (Agent: E. Gippini Fournier) — application for a declaration
                     of 19 September 2001                                 that the Commission refrained, contrary to the Treaty, from
                                                                          ruling on a complaint concerning alleged infringements of
                                                                          Article 81 EC — the Court of First Instance (First Chamber),
in Case T-83/01: Merck KGaA v Office for Harmonisation                    composed of B. Vesterdorf, President, N.J. Forwood and
in the Internal Market (Trade Marks and Designs)                          H. Legal, Judges; H. Jung, Registrar, made an order on
                              (OHIM) (1)                                  19 October 2001, the operative part of which is as follows:
(Community trade mark — Irregularity of the application                   1.    There is no need to adjudicate on the action.
                         — Inadmissibility)
                                                                          2.    The parties shall bear their own costs.
                          (2002/C 31/22)
                                                                          (1) OJ C 227, 11.8.2001.
                   (Language of the case: English)
In Case T-83/01: Merck KGaA, having its registered office in
Darmstadt, Germany, against Office for Harmonisation in the               ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Internal Market (Trade Marks and Designs) (OHIM) — action                                              INSTANCE
brought against Decision R 299/2000-3 of the Third Board of
Appeal of the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) of 31 January 2001 concerning the                                     of 21 September 2001
registration of the term ‘OSTEOCALCIUM’ as a Community
trade mark — the Court of First Instance (Second Chamber),                in Case T-138/01 R: F v Court of Auditors of the European
composed of A. W. H. Meij, President, A. Potocki and J. Pirrung,                                      Communities
Judges; H. Jung, Registrar, has made an order on 19 September
2001, the operative part of which is as follows:
                                                                          (Application for interim measures — Officials — Decision
                                                                                to reassign — Urgency — Balance of interests)
1.    The application is dismissed as inadmissible.
                                                                                (2002/C 31/24)
2.    The applicant shall bear its own costs.
                                                                                (Language of the case: French)
(1) OJ C 173 of 16.6.01.
                                                                          In Case T-138/01 R: F, residing in Luxembourg, represented by
                                                                          P. Goergen, lawyer, with an address for service in Luxembourg,
                                                                          against Court of Auditors of the European Communities


title: Case C-431/12: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 24 September 2012 — Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili v SC Rafinăria Steaua Română SA

text:
               22.12.2012

               EN

               Official Journal of the European Union

               C 399/10

         Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania), lodged on 24 September 2012 — Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili v SC Rafinăria Steaua Română SA
   (Case C-431/12)
   2012/C 399/17
   Language of the case: Romanian

      Referring court

   Înalta Curte de Casație și Justiție

      Parties to the main proceedings

      Appellants in cassation: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili

      Respondent in cassation: SC Rafinăria Steaua Română SA

      Question referred

   Is it contrary to Article 183 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) if Article 124 of the Romanian Tax Procedure Code is interpreted as meaning that the State is not liable for payment of interest on amounts claimed under VAT declarations in respect of the period between the date of set-off of those amounts and the date on which those set-off decisions are annulled by a national court?

      (1)  OJ 2006 L 347, p. 1.


title: Case F-42/13: Action brought on 8 May 2013 — ZZ v EESC

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/61

         Action brought on 8 May 2013 — ZZ v EESC
   (Case F-42/13)
   2013/C 207/105
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: L. Levi and A. Blot, lawyers)

      Defendant: European Economic and Social Committee

      Subject-matter and description of the proceedings

   Annulment of the decision to terminate the applicant’s employment contract and the application to compensate her for the material and non-material damage allegedly suffered.

      Form of order sought

               —

               Annul the decision of 16 October 2012 adopted by the Secretary-General of the EESC, as the Authority empowered to conclude contracts, to terminate the applicant’s contract;

               —

               if necessary, annul the decision of the authority empowered to conclude contracts of 31 January 2013 confirming the termination of the applicant’s contract and the decision of the authority empowered to conclude contracts of 24 April 2013 specifically rejecting the applicant’s complaint;

               —

               pay compensation in respect of the material damage suffered by the applicant;

               —

               grant the applicant the sum fixed on equitable grounds and provisionally at EUR 150 000 for non-material damage suffered;

               —

               order the EESC to pay the costs.


title: Case T-455/04: Action brought on 18 November 2004 by Ms D. Beyatli and Mr A. Candan against the Commission of the European Communities

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/25

         Action brought on 18 November 2004 by Ms D. Beyatli and Mr A. Candan against the Commission of the European Communities
   (Case T-455/04)
   (2005/C 57/43)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 November 2004 by Ms D. Beyatli, Nicosia, Cyprus and Mr A. Candan, Istanbul, Turkey, represented by Mr A. Demetriades, lawyer.
   The applicants claim that the Court should:

               —

               annul the Commission's Decision of 5 May 2004 declaring the applicants not successful in the written tests of the Open Competition for assistant administrators for Cypriot citizens EPSO/A/1/03;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicants are Cypriot nationals whose mother tongue is Turkish. They applied for a position of assistant administrator in the context of Open Competition EPSO/A/1/03 for Cypriot citizens. The notice of competition required that candidates have a thorough knowledge of the Greek language. The applicants failed to receive a sufficient number of points in test (e), which was in the Greek language, and were thus not admitted to the oral tests.
   The applicants challenge this decision, submitting that the requirement that candidates should have a thorough knowledge of Greek is discriminatory, given that not all Cypriot citizens have Greek as their mother tongue. According to the applicants this requirement violates Article 12 EC and Articles 1d and 27 of the Staff Regulations. They further allege that Article 3 of Regulation 401/2004 (1) limits recruitment only to those having one of the existing 11 official languages as their main language and is thus not proportionate with the objectives of the European Union and its intention to integrate Turkish speaking Cypriots within the European Union.

      (1)  Council Regulation (EC, Euratom) No 401/2004 of 23 February 2004 introducing, on the occasion of the accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, special temporary measures for recruitment of officials of the European Communities, OJ L 67, 05/03/2004, p.1


title: JUDGMENT OF THE COURT (Sixth Chamber) of 29 June 1995 in Case C-456/93 (reference for a preliminary ruling from the Oberlandesgericht Frankfurt am Main): Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v. Privatkellerei Franz Wilhelm Langguth Erben GmbH & Co. KG (Description of wines - Repetition on the label of the terms 'Kabinett', 'Spätlese', 'Auslese' and 'Weißherbst' as parts of a brand name)

text:
2 . 9 . 95           I                         Official Journal of the European Communities                                  No C 229/5
Court, Germany ) for a preliminary ruling in the proceedings              Judges; G. Cosmas, Advocate-General; H. A. Riihl ,
pending before that court between Hauptzollamt Heilbronn                  Principal Administrator, for the Registrar, gave a judgment
and Temic Telefunken Microelectronic GmbH in the                          on 29 June 1995 , the operative part of which is as
presence of the Bundesministerium der Finanzen — on the                   follows :
interpretation of Article 18 ( 2 ) ( d ), the first subparagraph of
Article 18 ( 3 ) and the first indent of Article 21 ( 1 ) ( a ) of         1 . Article 71 (1 ) (b) (ii) of Council Regulation (EEC)
Council Regulation ( EEC ) No 1999/85 of 16 July 1985 on                         No 1408/71 on the application of social security
inward processing relief arrangements ( 2 ) — the Court                         schemes to employed persons, to self-employed persons
( Fourth Chamber), composed of: P. J. G. Kapteyn, President                     and to members of their families moving within the
of the Chamber, C. N. Kakouris and J. L. Murray                                  Community, as amended and updated by Council
( Rapporteur), Judges; G. Tesauro, Advocate-General ;                            Regulation (EEC) No 2001 /83 of 2 June 1983 must be
L. Hewlett, Administrator, for the Registrar, has given a                        interpreted as also applying to unemployed persons who
judgment on 29 June 1995 , in which it rules :                                   during their last employment resided in the Member
                                                                                State in which they worked, even where, in derogation
Article 18 (2) (d), the first subparagraph of Article 18 (3)                    from Article 13 (2) (a) of that Regulation, and pursuant
and the first indent of Article 21 ( 1 ) (a) of Council                          to Article 1 7, therein referred to, the competent
Regulation (EEC) No 1999/85 of 16 July 1985 on inward                           authorities of two Member States are in agreement that
processing relief arrangements are to be interpreted as                         the employed person is to remain subject to the social
meaning that a quantitative limitation may not be attached                      security legislation of one of those Member States, not
to an authorization to use the system of processing under                       being the one in whose territory the unemployed person
customs control as a way of discharging the inward                              was employed;
processing relief arrangements.
                                                                          2 . that article applies even where the agreement pursuant
( 1 ) OJ No C 332 , 8 . 12 . 1993 .                                             to Article 1 7 ofthe Regulation came into being when the
( 2 ) OJ No L 188 , 20 . 7 . 1985 , p . 1 .                                     employed person was already working and residing in
                                                                                the territory of one and the same Member State.
                                                                          (') OJ No C 1 , 4 . 1 . 1994 .
                                                                          ( 2 ) OJ No L 149 , 5 . 7. 1971 , p . 2 .
                                                                          (-1 ) OJ No L 230 , 22 . 8 . 1983 , p . 6 .
                JUDGMENT OF THE COURT
                          ( Sixth Chamber )
                          of 29 June 1995
     in Case C-454/93 ( reference for a preliminary ruling                                JUDGMENT OF THE COURT
        from the Arbeidshof, Brussels ): Rijksdienst voor
                                                                                ( Sixth Chamber )
            Arbeidsvoorziening v. Joop van Gestel ( ] )
(Social security for migrant workers — Designation of the                                           of 29 June 1995
competent State in accordance with Article 1 7 ofRegulation               in Case C-456/93 ( reference for a preliminary ruling from
(EEC) No 1408/71 — Residence and employment in a                          the Oberlandesgericht Frankfurt am Main ): Zentrale zur
Member State other than the competent State —                             Bekämpfung unlauteren Wettbewerbs eV v. Privatkellerei
          Unemployment benefits provided pursuant to                           Franz Wilhelm Langguth Erben GmbH & Co. KG ( 1 )
                       Article 71 (1) (b) (ii))                           (Description of wines — Repetition on the label ofthe terms
                            ( 95/C 229/09 )                                'Kabinett', Spatlese 'Auslese ' and 'WeiEherbst' as parts of
                                                                                a brand name)
                 (Language of the case: Dutch)                                                        ( 95/C 229/10 )
(Provisional translation; the definitive translation will be                               (Language of the case: German)
           published in the European Court Reports)
                                                                          (Provisional translation; the definitive translation will be
In Case C-454/93 : reference to the Court under Article 177                          published in the European Court Reports)
of the EC Treaty by the Arbeidshof ( Higher Labour Court),
Brussels, for a preliminary ruling in the proceedings                     In Case C-456/93 : reference to the Court under Article 177
pending before that court between Rijksdienst voor                        of the EC Treaty by the Oberlandesgericht ( Higher Regional
Arbeidsvoorziening and Joop van Gestel on the                             Court ) Frankfurt am Main ( Germany ) for a preliminary
interpretation of Articles 17 and 71 ( 1 ) ( b ) ( ii ) of Council        ruling in the proceedings pending before that court between
Regulation ( EEC ) No 1408/71 of 14 June 1971 on the                      Zentrale zur Bekampfung unlauteren Wettbewerbs eV and
application of social security schemes to employed persons,               Privatkellerei Franz Wilhelm Langguth Erben GmbH & Co .
to self-employed persons and to members of their families                 KG on the interpretation of Article 40 ( 3 ) of Council
moving within the Community ( 2 ), as amended and updated                 Regulation ( EEC ) No 2392/89 of 24 July 1989 laying down
by Council Regulation ( EEC ) No 2001 /83 of 2 June 1983 ( 3 )            general rules for the description and presentation of wines
— the Court ( Sixth Chamber), composed of: F. A.                          and grape musts ( 2 ) and Article 3 of Commission Regulation
Schockweiler, President of the Chamber, G. F. Mancini, C.                 ( EEC ) No 3201/90 of 16 October 1990 laying down
N. Kakouris ( Rapporteur ), J. L. Murray and G. Hirsch,                   detailed rules for the description and presentation of wines
 ---pagebreak--- No C 229/6               EN                    Official Journal of the European Communities                                        2 . 9 . 95
and grape musts ( 3 ) — the Court ( Sixth Chamber ),                      preliminary ruling in the proceedings pending before that
composed of F. A. Schockweiler, President of the Chamber,                 court between SCAC Sri and Associazione dei Produttori
G. F. Mancini, C. N. Kakouris, J. L. Murray ( Rapporteur )                Ortofrutticoli ( ASIPO ) — on the interpretation and validity
and G. Hirsch, Judges; P. Leger, Advocate-General; H.                     of Article 1 ( 2 ) of Council Regulation ( EEC ) No 668/93 of
A. Riihl, Principal Administrator, for the Registrar, gave a              1 7 March 1 993 on the introduction of a limit to the granting
judgment on 29 June 1995 , the operative part of which is as              of production aid for processed tomato products ( 2 ) — the
follows :                                                                 Court ( Sixth Chamber ), composed of: F. A. Schockweiler
                                                                          ( Rapporteur ), President of the Chamber, P. J. G. Kapteyn,
                                                                          G. F. Mancini, J. L. Murray and G. Hirsch, Judges;
1 . Article 3 (2) of Commission Regulation (EEC)
                                                                          D. Ruiz-Jarabo Colomer, Advocate-General; L. Hewlett,
       No 3201 /90 of 16 October 1990 laying down detailed
                                                                          Administrator, for the Registrar, has given a judgment on
       rules for the description and presentation of wines and
                                                                          29 June 1995 , in which it rules :
       grape musts must be interpreted as not precluding
       the labelling of quality wines ('Qualitatsweine mit
       Pradikat') from repeating the terms 'Kabinett',                    1 . Article 1 (2) of Council Regulation (EEC) No 668/93 of
       'Spatlese ' or 'Auslese ' — in addition to their prescribed              1 7 March 1 993 on the introduction of a limit to the
       use (in lettering of the same type and height as the name                granting of production aid for processed tomato
       of the specified region or of a geographical unit smaller                products must be interpreted as meaning that, in the
       than the specified region) — in different lettering with                 event of a transfer of fresh tomatoes by a processing
       higher letters, particularly in a conspicuous manner as                  undertaking during a marketing year from the 'peeled
       part of a brand name;                                                    tomatoes ' category to the 'concentrate ' or 'other tomato
                                                                                products ' category, only the quantities actually
2 . Article 3 (3) (a), first indent, in conjunction with the                    produced by that undertaking in each category, regard
       second subparagraph of Article 3 (3) of Regulation                       being had to that transfer, are to be taken into account in
       (EEC) No 3201 /90 must be interpreted as not                             the following marketing year for the purposes of the
       precluding the repetition on the label, in the case of                   division of the maximum quantities between the
       German quality wines produced in specified regions                       processing undertakings by the Member State
                                                                                concerned.
       (' Qualitatsweine bA '), of the term ' Weiflherbst' — in
       addition to its use in the same lettering as that used for
       indicating the specified region — in larger letters,               2 . Consideration of Article 1 (2) of Regulation (EEC)
       particularly in a conspicuous manner as part of a brand                  No 668/93 has disclosed no factor of such a kind as to
       name .
                                                                                affect the validity of that provision.
 (') OJ No C 27, 28 . 1 . 1994 .
 ( 2 ) OJ No L 232 , 9 . 8 . 1989 , p . 13 .                               (') OJ No C 90 , 26 . 3 . 1994 .
 ( 3 ) OJ No L 309 , 8 . 11 . 1990 , p. 1 .                                (2 ) OJ No L 72, 25 . 3 . 1993 , p. 1 .
                  JUDGMENT OF THE COURT                                                   JUDGMENT OF THE COURT
                            ( Sixth Chamber)                                                         ( Fifth Chamber)
                            of 29 June 1995                                                         of 29 June 1995
 in Case C-56/94 (reference for a preliminary ruling from                  in Joined Cases C-109/94, C-207/94 and C-225/94:
 the Tribunale di Piacenza): SCAC Srl v. Associazione dei
                                                                           Commission of the European Communities v. Hellenic
               Produttori Ortofrutticoli ( ASIPO ) (M                                                   Republic ( ' )
  (Common organization of the market — Processed tomato                     (Failure of a Member State to fulfil its obligations —
 products — Limit to the granting of production aid —                      Directives 90/61 8/EEC, 88/357/EEC and 90/619/EEC —
 Determination of quotas — Validity of Regulation (EEC)                                   Non-transposition — Insurances)
                                 No 668/93)
                                                                                95/C 229/ 12 )
                               ( 95/C 229/11 )
                    (Language of the case: Italian)                                         (Language of the case: Greek)
  (Provisional translation; the definitive translation will be              (Provisional translation; the definitive translation will be
            published in the European Court Reports)                                 published in the European Court Reports)
  In Case C-56/94 : reference to the Court under Article 177 of             In Joined Cases C-109/94 , C-207/94 and C-225/94 :
  the EC Treaty by the Tribunale di Piacenza ( Italy ) for a                Commission of the European Communities ( Agent:


title: Case T-171/11: Judgment of the General Court of 29 November 2012 — Hopf v OHIM (Champflex) (Community trade mark — Application for Community word mark Champflex — Absolute grounds for refusal — Descriptiveness — Article 7(1)(c) of Regulation (EC) No 207/2009 — Lack of distinctiveness — Article 7(1)(b) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/42

         Judgment of the General Court of 29 November 2012 — Hopf v OHIM (Champflex)
   (Case T-171/11) (1)

   (Community trade mark - Application for Community word mark Champflex - Absolute grounds for refusal - Descriptiveness - Article 7(1)(c) of Regulation (EC) No 207/2009 - Lack of distinctiveness - Article 7(1)(b) of Regulation No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009)
   2013/C 26/81
   Language of the case: German

      Parties

      Applicant: Hans-Jürgen Hopf (Zirndorf, Germany) (represented by: V. Mensing, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel, acting as Agent)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 January 2011 (Case R 1514/2010-4) concerning an application for registration of the word mark Champflex as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 January 2011 (Case R 1514/2010-4) in so far as it concerns the goods ‘syringes’;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Mr Hans-Jürgen Hopf to bear his own costs and to pay half the costs of OHIM, and orders OHIM to bear half of its own costs.

      (1)  OJ C 145, 14.5.2011.


title: Case C-263/05: Judgment of the Court (Third Chamber) of 18 December 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Environment — Directives 75/442/EEC and 91/156/EEC — Concept of waste — Substances or objects intended for disposal or recovery operations — Production residues capable of re-use)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/8

         Judgment of the Court (Third Chamber) of 18 December 2007 — Commission of the European Communities v Italian Republic
   (Case C-263/05) (1)

   (Failure of a Member State to fulfil obligations - Environment - Directives 75/442/EEC and 91/156/EEC - Concept of ‘waste’ - Substances or objects intended for disposal or recovery operations - Production residues capable of re-use)
   (2008/C 51/13)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: M. Konstantinidis and L. Cimaglia, Agents)

      Defendant: Italian Republic (represented by: I.M. Braguglia, Agent and G. Fiengo, lawyer)
   Re:
   Failure of a Member State to fulfil its obligations — Infringement of Article 1(a) of Council Directive 75/442 of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) — National law excluding from the scope of the directive certain substances or objects intended for disposal or recovery operations and also certain production waste of which the holder disposes or intends to dispose
   Operative part of the judgment
   The Court:

               1)

               Declares that the Italian Republic has failed to fulfil its obligations under Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991 and Commission Decision 96/350/EC of 24 May 1996, by adopting and maintaining in force Article 14 of Decree-Law No 138 of 8 July 2002 laying down urgent measures concerning taxation, privatisation and control of pharmaceutical expenditure and economic support in disadvantaged areas, now, after amendment, Law No 178 of 8 August 2002, which excludes from the scope of Legislative Decree No 22 of 5 February 1997 implementing Directives 91/156/EEC on waste, 91/689/EEC on hazardous waste and 94/62/EC on packaging and packaging waste the following: (i) substances, objects or goods intended for waste disposal or recovery operations not expressly listed in Annexes B or C to Legislative Decree No 22/97; and (ii) substances or objects forming production residue which the holder intends or is required to discard, where they may be and are re-used in a production or consumption cycle without undergoing prior treatment and without harming the environment, or, if they have undergone prior treatment, provided that that treatment is not one of the recovery operations listed in Annex C to Legislative Decree No 22/97;

               2)

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 217, 3.9.2005.


8.4.2000              EN                Official Journal of the European Communities                                 C 102/17
       Removal from the register of Case C-25/99 (1)                      Removal from the register of Case C-346/99 (1)
                        (2000/C 102/33)
                                                                                (2000/C 102/34)
By order of 21 January 2000 the President of the Court of
Justice of the European Communities has ordered the removal        By order of 25 January 2000 the President of the Court of
from the register of Case C-25/99: Commission of the               Justice of the European Communities has ordered the removal
European Communities v Republic of Austria.                        from the register of Case C-346/99: Commission of the
                                                                   European Communities v Grand Duchy of Luxembourg.
(1) OJ C 86, 27.3.1999.
                                                                   (1) OJ C 333, 20.11.1999.


title: Notice of open competition

text:
12.4.2001        EN                      Official Journal of the European Communities                                 C 111/13
                                             COURT OF JUSTICE
                                             NOTICE OF OPEN COMPETITION
                                                        (2001/C 111/08)
          The Court of Justice of the European Communities will be publishing in the Official Journal of the European
          Communities C 111 A of 12.4.2001 the following notice of open competition:
          Dutch edition
          CJ/L A/5 (lawyer-linguists of Dutch mother-tongue)
          To obtain a copy of this Official Journal please apply to the Personnel Division of the Court of Justice of
          the European Communities, L-2925 Luxembourg.
          Closing date for application: 14.5.2001.


title: Case T-711/15: Order of the General Court of 14 September 2016 — Othman v Council

text:
               7.11.2016

               EN

               Official Journal of the European Union

               C 410/36

         Order of the General Court of 14 September 2016 — Othman v Council
   (Case T-711/15) (1)

   (2016/C 410/64)
   Language of the case: French
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 59, 15.2.2016.


title: Case C-438/05: Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales), by Order of that court of  23 November 2005  in 1) The International Transport Workers' Federation 2) The Finnish Seamen's Union v 1) Viking Line ABP 2) OU Viking Line Eesti

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/16

         Reference for a preliminary ruling from the Court of Appeal (Civil Division) (England and Wales), by Order of that court of 23 November 2005 in 1) The International Transport Workers' Federation 2) The Finnish Seamen's Union v 1) Viking Line ABP 2) OU Viking Line Eesti
   (Case C-438/05)
   (2006/C 60/34)
   Language of the case: English
   Reference has been made to the Court of Justice of the European Communities by Order of the Court of Appeal (Civil Division) (England and Wales) of 23 November 2005, received at the Court Registry on 6 December 2005, for a preliminary ruling in the proceedings between 1) The International Transport Workers' Federation 2) The Finnish Seamen's Union and 1) Viking Line ABP 2) OU Viking Line Eesti, on the following questions:
   Scope of the free movement provisions

               1)

               Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State which has the effect of making it pointless for that undertaking to re-flag a vessel in another Member State, does that action fall outside the scope of Article 43 of the EC Treaty and/or Regulation 4055/86 (1) by virtue of the EC's social policy including, inter alia, Title XI of the EC Treaty and, in particular, by analogy with the Court's reasoning in Case C-67/96 Albany [1996] ECR I- 5751, paras 52-64?

         Horizontal direct effect

               2)

               Do Article 43 of the EC Treaty and/or Regulation 4055/86 have horizontal direct effect so as to confer rights on a private undertaking which may be relied on against another private party and, in particular, a trade union or association of trade unions in respect of collective action by that union or association of unions?

         Existence of restrictions on free movement

               3)

               Where a trade union or association of trade unions takes collective action against a private undertaking so as to require that undertaking to enter into a collective bargaining agreement with a trade union in a particular Member State, which has the effect of making it pointless for that undertaking to re-flag a vessel in another Member State, does that action constitute a restriction for the purposes of Article 43 of the EC Treaty and/or Regulation 4055/86?

               4)

               Is a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, a directly discriminatory, indirectly discriminatory or non-discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86?

               5)

               In determining whether collective action by a trade union or association of trade unions is a directly discriminatory, indirectly discriminatory or non-discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86, is the subjective intention of the union taking the action relevant or must the national court determine the issue solely by reference to the objective effects of that action?

         Establishment/ Services

               6)

               Where a parent company is established in Member State A and intends to undertake an act of establishment by reflagging a vessel to Member State B to be operated by an existing wholly owned subsidiary in Member State B which is subject to the direction and control of the parent company:

                           a)

                           is threatened or actual collective action by a trade union or association of trade unions which would seek to render the above a pointless exercise capable of constituting a restriction on the parent company's right of establishment under Article 43, and

                           b)

                           after reflagging of the vessel, is the subsidiary entitled to rely on Regulation 4055/86 in respect of the provision of services by it from Member State B to Member State A?

         Justification
   Direct discrimination

               7)

               If collective action by a trade union or association of trade unions is a directly discriminatory restriction under Article 43 of the EC Treaty or Regulation 4055/86, can it, in principle, be justified on the basis of the public policy exception set out in Article 46 of the EC Treaty on the basis that:

                           a)

                           the taking of collective action (including strike action) is a fundamental right protected by Community law; and/or

                           b)

                           the protection of workers?

         ITF policy: objective justification

               8)

               Does the application of a policy of an association of trade unions which provides that vessels should be flagged in the registry of the country in which the beneficial ownership and control of the vessel is situated so that the trade unions in the country of beneficial ownership of a vessel have the right to conclude collective bargaining agreements in respect of that vessel, strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services, and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition?

         FSU's actions: objective justification

               9)

               Where:

                           a parent company in Member State A owns a vessel flagged in Member State A and provides ferry services between Member State A and Member State B using that vessel;

                           the parent company wishes to re-flag the vessel to Member State B to apply terms and conditions of employment which are lower than in Member State A;

                           the parent company in Member State A wholly owns a subsidiary in Member State B and that subsidiary is subject to its direction and control;

                           it is intended that the subsidiary will operate the vessel once it has been re-flagged in Member State B with a crew recruited in Member State B covered by a collective bargaining agreement negotiated with an ITF affiliated trade union in Member State B;

                           the vessel will remain beneficially owned by the parent company and be bareboat chartered to the subsidiary;

                           the vessel will continue to provide ferry services between Member State A and Member State B on a daily basis;

                           a trade union established in Member State A takes collective action so as to require the parent and/or subsidiary to enter into a collective bargaining agreement with it which will apply terms and conditions acceptable to the union in Member State A to the crew of the vessel even after reflagging and which has the effect of making it pointless for the parent to re-flag the vessel to Member State B,

                           does that collective action strike a fair balance between the fundamental social right to take collective action and the freedom to establish and provide services and is it objectively justified, appropriate, proportionate and in conformity with the principle of mutual recognition?

               10)

               Would it make any difference to the answer to 9) if the parent company provided an undertaking to a court on behalf of itself and all the companies within the same group that they will not by reason of the reflagging terminate the employment of any person employed by them (which undertaking did not require the renewal of short term employment contracts or prevent the redeployment of any employee on equivalent terms and conditions)?

      (1)  Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries.


title: Case C-465/07: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 17 October 2007 — M. and N. Elgafaji v Staatssecretaris van Justitie

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/5

         Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 17 October 2007 — M. and N. Elgafaji v Staatssecretaris van Justitie
   (Case C-465/07)
   (2008/C 8/08)
   Language of the case: Dutch
   Referring court
   Raad van State/Netherlands
   Parties to the main proceedings

      Appellants: M. Elgafaji, N. Elgafaji and Staatssecretaris van Justitie
   Questions referred

               1.

               Is Article 15(c) of Council Directive 2004/83/EC (1) on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted to be interpreted as offering protection only in a situation on which Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted in the case-law of the European Court of Human Rights, also has a bearing, or does Article 15(c), in comparison with Article 3 of the Convention, offer supplementary or other protection?

               2.

               If Article 15(c) of the Directive, in comparison with Article 3 of the Convention, offers supplementary or other protection, what are the criteria in that case for determining whether a person who claims to be eligible for subsidiary protection status runs a real risk of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c) of the Directive, read in conjunction with Article 2(e) thereof?

      (1)  OJ L 304, p. 12.