title: Case C-44/01: Reference for a preliminary ruling by the Oberste Gerichtshof by order of 19 December 2000 in the case of Pippig Augenoptik GmbH & Co KG v 1. Hartlauer Handelsgesellschaft mbH and 2. Estate of Franz Josef Hartlauer

text:
C 118/10              EN                     Official Journal of the European Communities                                       21.4.2001
If not:                                                                      Is the reference in Article 3a(1)(a) of the directive to
                                                                             Article 7(1) of the directive a lex specialis in relation to
(2) Are the provisions contained in Articles 1 and 4 of                      Article 7(2) of the directive, with the result that a national
     Council Regulation (EEC) No 3950/92 of 28 December                      standard governing misleading statements which is poss-
     1992 and Articles 3 and 4 of Commission Regulation                      ibly more strict may be applied to all elements of the
     (EEC) No 534/93 of 9 March 1993 valid, in the light of                  comparison?
     Article 33 (ex 39) of the Treaty, in so far as they do not
     provide that derogations may be made from the periods
     prescribed by those provisions for the allocation of                    Is Article 3a(1)(a) of the directive to be interpreted as
     individual reference quantities, for adjustments and levies             meaning that the comparison of the price of a brand-
     in cases of administrative or judicial challenge to those               name product with the price of a no-name product of
     provisions?                                                             equivalent quality is not permitted where the name of the
                                                                             manufacturer is not indicated, or do Article 3a(1)(c) and
(3) If retrospective adjustment is not possible, does the                    Article 3a(1)(g) of the directive preclude indication of the
     Community legislation permit the Member State to                        manufacturer? Is the image of a (brand-name) product a
     assume responsibility for paying the sums owed to the                   feature of the product/service within the meaning of
     Community without incurring liability to penalties?                     Article 3a(c) of the directive? Does it follow from a
                                                                             (possible) negative answer to this question that any (price)
                                                                             comparison of a brand-name product with a no-name
(1) OJ L 405 of 31.12.1992, p. 1.
(2) OJ L 57 of 10.3.1993, p. 12.
                                                                             product of equivalent quality is not permitted?
                                                                        2.   Is Article 7(2) of the directive to be interpreted as meaning
                                                                             that differences in the procurement of the product/service
                                                                             whose features are compared with features of the adver-
                                                                             tiser’s product/service must also be assessed solely on the
                                                                             basis of Article 3a of the directive?
Reference for a preliminary ruling by the Oberste Ge-
richtshof by order of 19 December 2000 in the case of
Pippig Augenoptik GmbH & Co KG v 1. Hartlauer                                If this question is answered in the affirmative:
Handelsgesellschaft mbH and 2. Estate of Franz Josef
                            Hartlauer
                                                                             Is Article 3a of the directive to be interpreted as meaning
                         (Case C-44/01)                                      that a (price) comparison is permitted only if the com-
                                                                             pared goods are procured through the same distribution
                        (2001/C 118/15)                                      channels and are thus offered by the advertiser and his
                                                                             competitor(s) in a comparable selection?
Reference has been made to the Court of Justice of the
European Communities by order of 19 December 2000 by the                3.   Is ‘comparison’ within the meaning of Article 7(2) of the
Oberste Gerichtshof (Supreme Court), Austria, which was                      directive to be construed as including the creation of the
received at the Court Registry on 2 February 2001, for a                     bases for comparison through a test purchase?
preliminary ruling in the case of Pippig Augenoptik GmbH &
Co. KG v 1. Hartlauer Handelsgesellschaft mbH and 2. Estate
of Franz Josef Hartlauer on the following questions:
                                                                             If this question is answered in the affirmative:
1.   Is Article 7(2) of Directive 97/55/EC (1)   of the European
     Parliament and of the Council of 6 October 1997
     amending Directive 84/450/EEC (2) concerning mislead-                   Is Article 3a of the directive to be interpreted as meaning
     ing advertising so as to include comparative advertising                that the deliberate initiation of a (price) comparison
     (‘the directive’) to be interpreted to the effect that                  which is favourable to the advertiser through a test
     ‘comparative advertising, as far as the comparison is                   purchase which is made before the beginning of the
     concerned’ means the statements regarding the product                   advertiser’s own offer and is arranged accordingly makes
     offered by the advertiser himself, the statements regarding             the comparison unlawful?
     the product offered by the competitor and the statements
     regarding the relationship between the two products (the
     result of the comparison)? Or is there a ‘comparison’              4.   Is a comparison discrediting within the meaning of
     within the meaning of Article 7(2) of the directive only                Article 3a(1)(e) of the directive if the advertiser selects the
     in so far as the statements are made regarding the                      goods purchased from the competitor in such a way that
     result of the comparison, with the consequence that                     a price difference is obtained which is greater than the
     misconceptions regarding other features of the compared                 average price difference and/or if such price comparisons
     goods/services may be assessed on the basis of a national               are repeatedly made with the result that the impression is
     standard governing misleading statements which is poss-                 created that the prices of the competitor(s) are generally
     ibly more strict?                                                       excessive?
 ---pagebreak--- 21.4.2001                EN                    Official Journal of the European Communities                                     C 118/11
      Is Article 3a(1)(e) of the directive to be interpreted as           Action brought on 5 February 2001 by Commission of
      meaning that the information on the identification of the           the European Communities against Beta Television SpA
      competitor must be restricted to the extent absolutely                                    (Videomusic/TMC2)
      necessary and it is therefore not permitted if, in addition
      to the competitor’s name, its company logo (if it exists)
      and its shop are shown?                                                                      (Case C-51/01)
                                                                                (2001/C 118/17)
(1) OJ 1997 L 290, p. 18.
(2) OJ 1984 L 250, p. 17.                                                 An action against Beta Television SpA (Videomusic/TMC2)
                                                                          was brought before the Court of Justice of the European
                                                                          Communities on 5 February 2001 by the Commission of the
                                                                          European Communities, represented by Bernard Mongin,
                                                                          assisted by Massimo Moretto, avvocato.
                                                                          The applicant claims that the Court should:
                                                                          —     order the defendant to repay, to the Commission, EUR
Action brought on 5 February 2001 by Commission of                              382 312, together with interest as from 14 July 1999
the European Communities against the Kingdom of Spain                           until actual payment;
                                                                          —     order the defendant to pay the costs.
                            (Case C-47/01)
                           (2001/C 118/16)                                Pleas in law and main arguments
An action against the Kingdom of Spain was brought before                 The action, brought on the basis of an arbitration clause, seeks
the Court of Justice of the European Communities on 5 Febru-              the repayment of sums of money advanced in the context of
ary 2001 by the Commission of the European Communities,                   Contract No 70320, signed on 13 November 1996, in the
represented by Gregorio Valero Jordana, with an address for               context of the 16:9 Action Plan to promote the broadcast of
service in Luxembourg at the office of Carlos Gómez de la                high-definition television programmes in Europe.
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                          The beneficiary, within the period laid down in the contract,
The applicant claims that the Court should:                               broadcast only 6 hours and 34 minutes of programmes in
                                                                          16:9 format instead of the 500 hours offered and contracted
                                                                          for. The Commission therefore decided to terminate the
—     declare that, by failing to draw up or, in any event,               contract, governed by Belgian law, for breach of contract by
      communicate to the Commission, the plan, outline or                 the defendant.
      inventory summary required by Articles 4(1) and 11 of
      Council Directive 96/59/EC (1) of 16 September 1996 on
      the disposal of polychlorinated biphenyls and polychlori-
      nated terphenyls (PCB/PCT), the Kingdom of Spain has
      failed to fulfil its obligations under that directive;
—     order the Council of the European Union to pay the costs.
                                                                          Action brought on 5 February 2001 by Commission of
                                                                          the European Communities against TV Internazionale
Pleas in law and main arguments                                                                         SpA
The pleas in law and main arguments relied on are set out in                                       (Case C-52/01)
the application.
                                                                                (2001/C 118/18)
(1) OJ 1996 L 243, p. 31.                                                 An action against TV Internazionale SpA was brought before
                                                                          the Court of Justice of the European Communities on 5 Febru-
                                                                          ary 2001 by the Commission of the European Communities,
                                                                          represented by Bernard Mongin, assisted by Massimo Moretto,
                                                                          avvocato.


title: Case T-38/10 P: Order of the General Court of 17 December 2010 — Marcuccio v Commission (Appeal — Civil service — Officials — Non-contractual liability — Reimbursement of recoverable expenses — Availability of a parallel remedy — Procedural defects — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               19.2.2011

               EN

               Official Journal of the European Union

               C 55/23

         Order of the General Court of 17 December 2010 — Marcuccio v Commission
   (Case T-38/10 P) (1)

   (Appeal - Civil service - Officials - Non-contractual liability - Reimbursement of recoverable expenses - Availability of a parallel remedy - Procedural defects - Appeal in part manifestly inadmissible and in part manifestly unfounded)
   2011/C 55/41
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Other party to the proceedings: European Commission (represented by: C. Berardis-Kayser and L. Currall, agents, and A. Dal Ferro, lawyer)

      Re:

   Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) delivered on 10 November 2009 in Case F-70/07 Marcuccio v Commission seeking to have that order set aside.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Luigi Marcuccio is to bear his own costs and to pay those incurred by the European Commission in the appeal proceedings.

      (1)  OJ C 80, 27.3.2010.


title: Action brought on 26 July 1996 by Biscuiterie-Confiserie LOR and Confiserie du TECH against the Commission of the European Communities (Case T-114/96)

text:
No C 269/28           EN                  Official Journal of the European Communities                                    14 . 9 . 96
— the Commission has manifestly misinterpreted the law in            — Appointment not in the interest of the service : The
    respect of Article 86 of the EC Treaty with the result that          applicant argues that, in disregard of Article 7 of the
    conclusions in paragraphs 30 to 37 of its decision were              Staff Regulations, the appointment of the successful
    defective .                                                          candidate did not satisfy the needs of the service but was
                                                                         decided purely for formal reasons and in the interest of
                                                                         the person concerned . After her promotion, the
                                                                         candidate appointed retained the same functions she had
                                                                         previously performed at grade A 3 , which did not
                                                                         correspond to the vacancy notice .
Action brought on 22 July 1996 by Jean-Claude Seche
  against the Commission of the European Communities                 — Sex discrimination : The lack of reasons stated for the
                       ( Case T-l 12/96 )                                decision invites the suspicion that one of the
                         ( 96/C 269/61                                   Commission's reasons was a purely sexual preference ,
                                                                         prohibited by the principle of equal treatment between
                                                                         male and female workers .
                (Language of the case: French)
An action against the Commission of the European                     — Infringement of the principle of equal treatment: The
Communities was brought before the Court of First                        applicant maintains that he was discriminated against by
Instance of the European Communities on 22 July 1996 by                  reason of his nationality, age and sex.
Jean-Claude Seche, residing in Brussels, represented by Eric
Boigelot, of the Brussels Bar , with an address for service in       — Misuse of powers and abuse of process : The
Luxembourg at the Chambers of Louis Schiltz, 2 rue du Fort               appointment of the successful candidate was not
Rheinsheim .                                                             motivated in any way by the interest of the service , but
                                                                         was made firstly in the interests of the person concerned
The applicant claims that the Court should :                             and , secondly, in order to achieve the doubling of the
                                                                         number of women at A 2 level in the Commission in
— annul the Commission 's decision appointing the                        1996 .
    successful candidate on 22 May 1996 to the post of
    Principal Legal Adviser, grade A 2 , in the Legal                — Infringement of the obligation to have due regard to the
    Service ,                                                            interests of officials .
— annul the decision, implicit in the contested decision
    referred to above , not to appoint the applicant to fill the     — Breach of good faith and the principle of the protection
    post of Principal Legal Adviser in the Legal Service ,               of legitimate expectations : The applicant maintains that
                                                                         he was in a situation in which the Community
— as the legal consequence of the annulment of the above                 administration had given him reasonable grounds to
    decisions, order the Commission to amend the                         expect that he would be promoted to grade A 2 .
    applicant's career bracket with effect from 1 June
    1996 ,                                                           As regards the claim for damages, the applicant argues that
                                                                     the decisions he seeks to have annulled , and which are
— order the Commission to pay the applicant ECU 1 in                 clearly in breach of duty having regard to their
    symbolic compensation for non-material damage,                   unlawfulness, have caused him significant non-material
                                                                     damage for which the Commission must make
— order the Commission to pay the costs .                            compensation .
Pleas in law and main arguments adduced in support:
The applicant makes the following arguments tn support of
his action :
— Lack of comparative examination of the merits : The
    applicant questions whether the candidates ' merits were
    objectively compared before the decisions were made,             Action brought on 26 July 1996 by Biscuiterie-Confiserie
    and adds that the procedure followed offered no                  LOR and Confiserie du TECH against the Commission of
    guarantees that Article 45 of the Staff Regulations and                           the European Communities
    the principle of equal treatment were complied with . He                                 ( Case T-l 14/96 )
    considers, moreover, that comparison of the merits                                         ( 96/C 269/62 )
    could not have led the Commission to prefer the
    successful person 's candidature to his own .
                                                                                (Language of the case: French)
— Failure to state reasons : The applicant maintains that the
    Commission infringed Article 25 of the Staff
    Regulations, in that no reasons are stated in the                An action against the Commission of the European
    contested decisions .                                            Communities was brought before the Court of First
 ---pagebreak--- 14 . 9 . 96            EN                   Official Journal of the European Communities                               No C 269/29
Instance of the European Communities on 26 July 1996 by                question was decided on following the procedure laid down
Biscuiterie-Confiserie LOR whose registered office is at               in Article 17 of Council Regulation ( EEC ) No 2081 /92 , in
Perpignan ( France ) and Confiserie du TECH whose                      which other parties do not have the opportunity to make
registered office is at Cabestany ( France ), represented by           their views known . Consequently, the decision was not
Nicolas Boespflug, of the Paris Bar .                                  taken with full knowledge of the facts, since the applicants
                                                                       were not able to put forward their arguments .
The applicant claims that the Court should :
— annul Commission Regulation ( EC ) No 1107/96 of
      12 June 1996 on the registration of geographical
      indications and designations of origin under the
      procedure laid down in Article 17 of Council Regulation          Action brought on 29 July 1996 by X against the European
                                                                                Parliament
      ( EEC ) No 2081 /92 in so far as it registered the names
      'Turron de Jijona ' and 'Turron de Alicante ' as protected                               ( Case T-l 19/96 )
      geographical indications,                                                                  ( 96/C 269/63 )
— order the defendant to pay the costs .                                               (Language of the case: French)
                                                                       An action against the European Parliament was brought
Pleas in law and main arguments adduced in support:                    before the Court of First Instance of the European
                                                                       Communities on 29 July 1996 by X, represented by
The applicant companies, which have for many years                     Jean-Noel Louis, Thierry Demaseure and Ariane Tornel of
manufactured 'tourons ' in France under the names ' touron             the Brussels Bar, with an address for service in Luxembourg
Jijona' and ' touron Alicante ', claim that the contested              at the office of Fiduciaire Myson SARL, 1 rue Glesener.
measure was adopted in breach of Article 3 of Council
Regulation ( EEC ) No 2081 /92 of 14 July 1992 on the                  The applicant claims that the Court should :
protection of geographical indications and designations of
origin for agricultural products and foodstuffs, which
provides that names that have become generic may not be                — annul the decision of the appointing authority to treat
registered ; a generic name is the name of an agricultural                  the applicant's absences between March and October
product or a foodstuff which , although it relates to the place             1995 as unauthorized, to deduct them from his days of
or the region where this product was originaly produced or                  annual leave and , when his leave was used up, to deduct
marketed , has become the common name of an agricultural                    an amount equivalent to the remuneration to which he is
                                                                            entitled,
product or a foodstuff.
                                                                       — annul the decision of 18 April 1996 of the
 In their view, the names 'Jijona ' and ' Alicante' used to                 Secretary-General of the European Parliament expressly
describe 'tourons ' are unquestionably generic .                            rejecting his complaint,
                                                                       — order the defendant to pay the costs .
The applicants state that in the Roussillon the manufacture
 of 'tourons ' is traditional , in particular a hard and a soft
 'touron' called 'Alicante' and 'Jijona ' respectively , after the      Pleas in law and main arguments adduced in support:
 names of the towns where they originated ; consequently, in
 the minds of French consumers those names, when they are
 used to describe 'tourons', are not connected to the Spanish           The applicant, an official in grade C 3 of the European
 towns of those names . The applicants point out that even in           Parliament who, according to the contested decision, has
 Spain the names 'Jijona ' and ' Alicante' are used as synonyms         been absent from work without permission, challenges that
 for ' soft' and ' hard ' to designate ' types' and 'varieties' of      finding of the appointing authority, its deduction of the
 'turron ', whatever the origin of the 'turron ' in question ; they     alleged absences from his days of leave and , when they were
 also note that ' turrones ' have been marketed under the               used up, its deduction of an amount equivalent to the
                                                                        remuneration to which he is entitled .
 names 'Jijona ' and 'Alicante' by many major Spanish
 ' turron ' manufacturers established in towns other than
 Jijona and Alicante . The applicants add that in legal                 He claims, inter alia, that the allegedly unauthorized
 proceedings in France the names in question have been                  absences which are the subject-matter of the contested
 found to be generic .                                                  decision , are justified on medical grounds and that in any
                                                                        event his immediate superiors were informed of the reasons
                                                                        for his absence . Moreover, he asserts that the medical
 Furthermore , the applicants consider that there are                   certificate drawn up by his doctor provides justification for
 particular grounds for annulment of the contested                      most of the absences at issue . The European Parliament has
 Regulation on the point in dispute in that the registration in         none the less treated those absences as unauthorized ,


title: Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-245/03 (reference for a preliminary ruling by the Conseil d'État): Merck, Sharp & Dohme BV v État belge (Directive 89/105/EEC — Medicinal products for human use — Application for entry on a positive list — Nature of the time-limit for responding — Mandatory nature — Consequences of exceeding the time-limit)

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/8

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 20 January 2005
   in Case C-245/03 (reference for a preliminary ruling by the Conseil d'État): Merck, Sharp & Dohme BV v État belge (1)

   (Directive 89/105/EEC - Medicinal products for human use - Application for entry on a positive list - Nature of the time-limit for responding - Mandatory nature - Consequences of exceeding the time-limit)
   (2005/C 57/14)
   Language of the case: French
   In Case C-245/03: reference for a preliminary ruling under Article 234 EC from the Conseil d'État (Belgium), by decision of 9 May 2003, received at the Court on 10 June 2003, in the proceedings, between Merck, Sharp & Dohme BV and État belge – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), C. Gulmann, R. Schintgen and G. Arestis, Judges; A. Tizzano, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 20 January 2005, in which it has ruled:

               1.

               The time-limit laid down in the first subparagraph of Article 6(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems is a mandatory time-limit which the national authorities are not entitled to exceed.

               2.

               The first subparagraph of Article 6(1) of Directive 89/105 does not impose the automatic entry of a medicinal product on the list of proprietary medicinal products covered by the sickness insurance system where the time-limit laid down in that article is exceeded.

      (1)  OJ C 213 of 06.09.2003.


title: Case C-264/05: Action brought on 22 June 2005 by the Commission of the European Communities against the Federal Republic of Germany

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/14

         Action brought on 22 June 2005 by the Commission of the European Communities against the Federal Republic of Germany
   (Case C-264/05)
   (2005/C 205/26)
   Language of the case: German
   An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 22 June 2005 by the Commission of the European Communities, represented by Hans Støvlbæk and Andreas Manville, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare that by not adopting the necessary laws, regulations and administrative provisions to transpose Directive 2001/19/EC (1) of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, or by not informing the Commission of such provisions, the Federal Republic of Germany has failed to fulfil its obligations to implement fully that directive;

               —

               order the Federal Republic of Germany to pay the costs of the proceedings.

         Pleas in law and main arguments
   The time-limit for transposition of the directive passed on 3 January 2003.

      (1)  OJ 2001 L 206, p. 1.


C 184/30              EN                     Official Journal of the European Union                                     2.8.2003
       Removal from the register of Case C-291/02 (1)                       Removal from the register of Case C-354/02 (1)
                         (2003/C 184/62)                                                     (2003/C 184/66)
By order of 28 May 2003 the President of the Court of Justice        By order of 2 June 2003 the President of the Court of Justice
of the European Communities ordered the removal from the             of the European Communities ordered the removal from the
register of Case C-291/02 (Reference for a preliminary ruling        register of Case C-354/02: Commission of the European
by the Verwaltungsgerichtshof): Rethmann Photo Recycling             Communities v Republic of Austria.
GmbH v Bundesminister für Land- und Forstwirtschaft,
Umwelt und Wasserwirtschaft.
                                                                     (1) OJ C 305 of 07.12.2002.
(1) OJ C 261 of 26.10.2002.
                                                                            Removal from the register of Case C-355/02 (1)
       Removal from the register of Case C-311/02 (1)                                        (2003/C 184/67)
                         (2003/C 184/63)
                                                                     By order of 2 June 2003 the President of the Court of Justice
                                                                     of the European Communities ordered the removal from the
By order of 6 June 2003 the President of the Court of Justice        register of Case C-355/02: Commission of the European
of the European Communities ordered the removal from the             Communities v Republic of Austria.
register of Case C-311/02: Commission of the European
Communities v Hellenic Republic.
                                                                     (1) OJ C 305 of 07.12.2002.
(1) OJ C 247 of 12.10.2002.
                                                                            Removal from the register of Case C-364/02 (1)
       Removal from the register of Case C-351/02 (1)
                                                                                (2003/C 184/68)
                         (2003/C 184/64)
                                                                     By order of 2 June 2003 the President of the Court of Justice
By order of 5 June 2003 the President of the Court of Justice        of the European Communities ordered the removal from the
of the European Communities ordered the removal from the             register of Case C-364/02: Commission of the European
register of Case C-351/02: Commission of the European                Communities v Hellenic Republic.
Communities v Hellenic Republic.
                                                                     (1) OJ C 289 of 23.11.2002.
( ) OJ C 289 of 23.11.2002.
 1
                                                                            Removal from the register of Case C-367/02 (1)
       Removal from the register of Case C-353/02 ( )  1
                                                                                (2003/C 184/69)
                         (2003/C 184/65)
                                                                     By order of 26 March 2003 the President of the Court of
By order of 2 June 2003 the President of the Court of Justice        Justice of the European Communities ordered the removal
of the European Communities ordered the removal from the             from the register of Case C-367/02 (Reference for a preli-
register of Case C-353/02: Commission of the European                minary ruling by the Bundespatentgericht): Deutsche Telekom
Communities v Republic of Austria.                                   AG v DKV Deutsche Krankenversicherung AG.
(1) OJ C 305 of 07.12.2002.                                          (1) OJ C 19 of 25.01.2003.


title: Case C-179/13: Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 12 April 2013 — Raad van bestuur van de Sociale verzekeringsbank v L.F. Evans

text:
               29.6.2013

               EN

               Official Journal of the European Union

               C 189/3

         Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 12 April 2013 — Raad van bestuur van de Sociale verzekeringsbank v L.F. Evans
   (Case C-179/13)
   2013/C 189/05
   Language of the case: Dutch

      Referring court

   Centrale Raad van Beroep

      Parties to the main proceedings

      Applicant: Raad van bestuur van de Sociale verzekeringsbank (Svb)

      Defendant: L.F. Evans

      Questions referred

               1.

               Must Article 2 and/or Article 16 of Regulation 1408/71 (1) be construed as meaning that a person like Evans, who is a national of a Member State, who exercised her right of freedom of movement for workers, to whom the social security legislation of the Netherlands was applicable and who then went to work as a member of the service staff of the Consulate General of the United States of America in the Netherlands, from the commencement of such work no longer falls under the personal scope of Regulation 1408/71?
               If not:

               2.

                           (a)

                           Must Article 3 of Regulation 1408/71 and/or Article 7(2) of Regulation No 1612/68 (2) be construed as meaning that the application of privileged status to Evans, which in this case consists inter alia of not being compulsorily insured for the purposes of social security and of not paying contributions in that regard, should be considered a sufficient justification for discriminating on grounds of nationality?

                           (b)

                           What significance must be attached in that regard to the fact that in December 1999 Evans, when asked, opted for the continuation of the privileged status?

      (1)  Council Regulation of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2).

      (2)  Council Regulation of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475).


title: Case T-44/08: Action brought on 24 January 2008 — Shetland Islands Council v Commission

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/27

         Action brought on 24 January 2008 — Shetland Islands Council v Commission
   (Case T-44/08)
   (2008/C 107/46)
   Language of the case: English
   Parties

      Applicant: Shetland Islands Council (Lerwick, United Kingdom) (represented by: E. Whiteford, Barrister, R. Murray, Solicitor, and R. Thompson QC)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annulment of Articles 1(2), 3, 4 and 5 of the decision; and

               —

               the costs of this application.

         Pleas in law and main arguments
   The applicant is a public authority that made payments to the fisheries sector under the scope of two general aid measures, named ‘Aid to the Fish Catching and Processing Industry’ and ‘Aid to the Fish Farming Industry’, consisting of different types of aid schemes. One of these schemes was the First Time Shareholders Scheme. The Commission found that the aid which the United Kingdom implemented on the basis of this scheme was incompatible with the common market, in so far as it concerned aid granted for the first time acquisition of a share in a second-hand fishing vessel.
   By means of its application, the applicant seeks partial annulment pursuant to Article 230 EC of Commission Decision C 39/2006 (ex NN 94/2005) of 13 November 2007 concerning the First Time Shareholders Scheme implemented in the United Kingdom. In particular, the applicant seeks annulment of Article 1(2), 3, 4, and 5 of the contested decision on the following grounds:

               (1)

               The Commission erred in law in finding that all payments made for the first time acquisition of a share in a second-hand fishing vessel were incompatible with the common market and had to be paid back;

               (2)

               The Commission erred in law in finding that recovery of these payments would be compatible with:

                           (a)

                           Article 14(1) of Council Regulation (EC) No 659/1999 (1); and

                           (b)

                           the general principles of legal certainty and the protection of legitimate expectations and of equality of treatment.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case C-162/05 P: Appeal brought on 8 April 2005 by Entorn, Societat Limitada Enginyeria I Seveis against the judgment delivered on 18 January 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-141/01 between Entorn, Societat Limitada Enginyeria I Seveis and Commission of the European Communities

text:
               11.6.2005

               EN

               Official Journal of the European Union

               C 143/27

         Appeal brought on 8 April 2005 by Entorn, Societat Limitada Enginyeria I Seveis against the judgment delivered on 18 January 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-141/01 between Entorn, Societat Limitada Enginyeria I Seveis and Commission of the European Communities
   (Case C-162/05 P)
   (2005/C 143/42)
   Language of the case: Spanish
   An appeal against the judgment delivered on 18 January 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-141/01 between Entorn, Societat Limitada Enginyeria I Seveis and Commission of the European Communities was brought before the Court of Justice of the European Communities on 8 April 2005 by Entorn, Societat Limitada Enginyeria I Seveis.
   The appellant claims that the Court should:

               1.

               Uphold the pleas in law put forward by the appellant in its appeal and annul in its entirety the judgment of the Court of First Instance of 18 January 2005 (Case T-141/01) dismissing its action for the annulment of Decision C(1999) 534 of the European Commission of 4 March 1999, and

               2.

               Order the Commission to pay the costs.

         Pleas and main arguments
   The appellant puts forward three pleas in law:

               1.

               Impropriety of the proceedings before the Court of First Instance, in that that court refused to accept certain evidence from the applicant — which, in the circumstances of the case, the applicant considered to be decisive — and the applicant was not given any opportunity to request in the proceedings before the Court of First Instance that that impropriety be rectified, with the result that its interests were severely impaired and it was prevented from fully exercising its rights of defence — paragraphs 132 to 138 of the judgment.

               2.

               Breach of the general legal principle of the presumption of innocence. The examination, evaluation and interpretation of the facts by the Court of First Instance, which was manifestly incorrect and sometimes without foundation, prompted it to base its judgment on reasons which manifestly ran counter to the general legal principle as to the presumption of innocence, which is enjoyed by all persons until such time as a final judgment is delivered against them in criminal proceedings.

               3.

               Incorrect legal classification by the Court of First Instance of the applicant as the entity responsible for repaying the aid granted to the Zumaque project, under Article 24 of Regulation (EEC) 4253/88 and the decision as to withdrawal. The appellant considers that the Court of First Instance erred in law by stating that Entorn, Societat Limitada Enginyeria I Seveis — the appellant — was the entity required to repay the aid received under Commission Decision C (1999) 534 of 4 March 1999.


title: Case T-349/08: Judgment of the General Court of 25 October 2011 — Uralita v Commission (Competition — Agreements, decisions and concerted practices — Sodium chlorate market — Decision finding an infringement of Article 81 EC — Action for annulment — Imputability of unlawful conduct)

text:
               3.12.2011

               EN

               Official Journal of the European Union

               C 355/15

         Judgment of the General Court of 25 October 2011 — Uralita v Commission
   (Case T-349/08) (1)

   (Competition - Agreements, decisions and concerted practices - Sodium chlorate market - Decision finding an infringement of Article 81 EC - Action for annulment - Imputability of unlawful conduct)
   2011/C 355/24
   Language of the case: English

      Parties

      Applicant: Uralita SA (Madrid, Spain) (represented by: I.S. Forrester QC, and K. Struckmann, P. Lindfelt and J. Garcia-Nieto Esteva, lawyers)

      Defendant: European Commission (represented by: F. Castilla Contreras, R. Sauer, A. Biolan and J. Bourke, Agents)

      Re:

   Application for the partial annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate) in so far as it concerns Uralita, SA

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Uralita, SA to pay the costs.

      (1)  OJ C 285, 8.11.2008.


title: Action brought on 10 July 1997 by the French Republic against the Commission of the European Communities (Case C-251/97)

text:
C 295/ 10             EN                  Official Journal of the European Communities                                 27 . 9 . 97
Action brought on 10 July 1997 by the French Republic                    the reorganization of working time which the
  against the Commission of the European Communities                     undertakings concerned have had to accept, not
                                                                         the normal cost of such reorganization which
                       ( Case C-251 /97 )                                undertakings in other sectors or in other Member
                                                                         States would have to bear. The fact that a substantial
                         ( 97/C 295/ 16 )
                                                                         number of undertakings have declined to benefit from
                                                                         the measure for the reduction of social charges on the
                                                                         ground that what is required by the State in return is
                                                                         too burdensome sufficiently shows that the measures
An action against the Commission of the European                         do not bring the beneficiary undertakings any clear
Communities was brought before the Court of Justice of                   competitive advantage .
the European Communities on 10 July 1997 by the French
Republic, represented by Kareen Rispal-Bellanger,
Assistant Director in the Directorate for Legal Affairs,
                                                                     — The Commission made a manifest error of assessment
Ministry of Foreign Affairs, and Gautier Mignot, Secretary
for Foreign Affairs in that directorate, acting as Agents,               of the facts by failing to accept that the measures
with an address for service in Luxembourg at the French                  were financially and economically neutral for the
Embassy, 8 B Boulevard Joseph II .                                       beneficiary undertakings .
The Government of the French Republic claims that the
Court should :
                                                                     Appeal brought on 11 July 1997 by D. Coussios against
    annul Commission Decision C(97 ) 1162 final of                   the judgment delivered on 15 May 1997 by the Fourth
    9 April 1997 concerning aid granted by France to the             Chamber of the Court of First Instance of the European
                                                                     Communities in Case T-273/94 between D. Coussios and
    textile, clothing, leather and footwear sectors,
                                                                             the Commission of the European Communities
                                                                                Case C-252/97 P )
    order the Commission to pay the costs.                                                    ( 97/C 295/ 17 )
Pleas in law and main arguments adduced in support:                  An appeal against the judgment delivered on 15 May
                                                                     1997 by the Fourth Chamber of the Court of First
                                                                     Instance of the European Communities in Case T-273/94
                                                                     between D. Coussios and the Commission of the European
Infringement of Article 92 ( 1 ) of the EC Treaty by the             Communities was brought on 11 July 1997 by D.
contested decision                                                   Coussios, represented by Xavier Magnee, Batonnier, of the
                                                                     Brussels Bar, with an address for service in Luxembourg at
                                                                     the Chambers of Louis Schiltz, 2 Rue Fort Rheinsheim.
— The Commission erred in law in classifying measures
    consisting of the grant of specific financial advantages
    to undertakings, in return for actions whose financial           The appellant claims that the Court of Justice should:
    cost balances the amount of that aid, as aid within the
    meaning of Article 92 ( 1 ) of the Treaty, in so far as
    they exceed the de minimis threshold set by the                  hold the present appeal admissible and well-founded, set
     Commission's communication of 24 January 1996 .                 aside the judgment under appeal and, as the Court of First
    The argument which the French Government presents                Instance should have done,
     in the present case is in fact analogous to an argument
     it put forward in the Kimberly Clark case ( Case
     C-241 /94, [ 1996] ECR 1-4551 ), which the Court
                                                                     — annul the Commission 's decision of 4 October 1993
     basically did not reject, namely that a financial
     advantage granted by the State to an undertaking in                  removing the appellant from his post and the decision
     return for optional action by that undertaking in                    of 2 May 1994 rejecting his complaint,
     favour of its employees does not constitute aid which
     distorts or is liable to distort competition within the
     meaning of Article 92 ( 1 ) of the Treaty, since the            — order the appellant's retroactive reinstatement with
     amount of that advantage does not exceed the cost to                 effect    from  1   December      1993 and  order     the
     the undertaking of that action, or exceeds it only by                Commission to pay arrears of salary without
     an amount below the de minimis threshold . In the                    interruption together with interest at the rate of 8 %
     present case, the measures for reducing social charges               p. a . from the date on each month when those arrears
     compensate only for the additional cost of                           became payable,


title: Case C-582/10: Action brought on 13 December 2010 — European Commission v Republic of Austria

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/30

         Action brought on 13 December 2010 — European Commission v Republic of Austria
   (Case C-582/10)
   ()
   2011/C 30/47
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: N. Yerrell and B. Schöfer, acting as Agents)

      Defendant: Republic of Austria

      Form of order sought

               —

               Declare that, by failing fully to adopt the laws, regulations and administrative provisions necessary to transpose Directive 2008/68/EC of the European Parliament and of the Council of 24 September 2008 on the inland transport of dangerous goods (1) or fully to communicate such measures to the Commission, the Republic of Austria has failed to fulfil its obligations under that directive;

               —

               order the Republic of Austria to pay the costs.

      Pleas in law and main arguments

   The time-limit for the transposition of Directive 2008/68/EC expired on 30 June 2009.

      (1)  OJ 2008 L 260, p. 13.


title: Case C-388/06: Action brought on 20 September 2006 — Commission of the European Communities v French Republic

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/18

         Action brought on 20 September 2006 — Commission of the European Communities v French Republic
   (Case C-388/06)
   (2006/C 261/34)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: W. Mölls, Agent)

      Defendant: French Republic
   Form of order sought

               —

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/96/EC of 27 October 2003, restructuring the Community framework for the taxation of energy products and electricity (1), or in any event by failing to communicate those provisions to the Commission, the French Republic has failed to fulfil its obligations under that directive;

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The period for the transposition of Directive 2003/96/EC expired on 31 December 2003.

      (1)  OJ L 283, 31.10.2003, p. 51.


title: Case T-185/00: Action brought on 13 July 2000 by Métropole Télévision (M6) against the Commission of the European Communities

text:
C 285/14               EN                     Official Journal of the European Communities                                    7.10.2000
Action brought on 13 July 2000 by Métropole Télévision                   active effect to the contested decision. In short, the Com-
(M6) against the Commission of the European Communi-                     mission had exempted the system for the sub-licensing of
                               ties                                      Eurovision rights, whereas that system is by nature discriminat-
                                                                         ory. Lastly, the applicant maintains that, by adopting the
                                                                         contested decision, the Commission has committed a misuse
                         (Case T-185/00)                                 of powers.
                         (2000/C 285/26)
                                                                         (1) OJ 2000 L 151, p. 18.
                   (Language of the case: French)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 13 July 2000 by Métropole Télé-
vision (M6), established at Neuilly/Seine (France), represented
by Didier Théophile, of the Paris Bar.
                                                                         Action brought on 14 July 2000 by Società Conserve
                                                                         Italia Soc. Coop. a.r.l. against the Commission of the
                                                                                European Communities
The applicant claims that the Court should:
—     annul all the provisions of Commission Decision                                             (Case T-186/00)
      2000/400/EC dated 10 May 2000 (Case IV/32.150 Euro-
      vision);
                                                                                (2000/C 285/27)
—     order the Commission to pay all the costs.
                                                                                (Language of the case: Italian)
Pleas in law and principal arguments
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 14 July 2000 by Società Conserve
The applicant is contesting the Commission’s decision of
                                                                         Italia Soc. Coop. a.r.l., established at S. Lazzaro di Savena,
10 May 2000 declaring Article 81(1) EC and Article 53(1) of
                                                                         represented by Marina Averani, Andrea Pisaneschi and Stefano
the EEA Agreement to be inapplicable to certain agreements
                                                                         Zunarelli, lawyers, with an address for service in Luxembourg
of the European Broadcasting Union (EBU) governing the
                                                                         at the Chambers of Charles Turk, 13 B Avenue Guillaume.
acquisition of television rights to sporting events, the exchange
of sports programmes within the framework of Eurovision
and access to Eurovision sports rights for third parties (1). That       The applicant claims that the Court should:
decision was adopted as a result of the judgment of the Court
of First Instance of 11 July 1996 in Joined Cases T-528/93,
T-542/93, T-543/93 and T-546/93 Métropole Télévision and                 —     annul, pursuant to the second paragraph of Article 230
Others v Commission, by which the Court of First Instance                      EC, the Commission’s decision of 3 May 2000 (C (2000)
annulled the Commission’s exemption decision of 11 June                        1099);
1993.
                                                                         —     order the Commission to pay the costs.
The applicant complains, first of all, that the Commission is
asserting, contrary to what the Court of First Instance held in
its aforementioned judgment, that its decision dated 11 June             Pleas in law and principal arguments
1993 did not include the criteria for EBU membership. On the
basis of that postulation, the new criteria adopted by the EBU
following delivery of the judgment of the Court of First                 The present action is directed against the Commission’s
Instance have been wrongly excluded from the scope of the                decision of 3 May 2000 (C (2000) 1099), notified on 9 May
decision.                                                                2000, which ‘withdraws the grant of aid by EAGGF, Guidance
                                                                         Section, for project No 9 (beneficiary: Massalombarda
                                                                         Colombani S.p.A.) in the context of operational programme
In addition, the applicant maintains that the criteria for EBU           No 91.C.T.I.T.01 approved by Commission Decision
membership are manifestly anti-competitive. It goes on to                No C(91)2255/6 of 28.10.1991, and which reduces the
complain that the Commission has unlawfully given retro-                 amount payable in respect of that operational programme’.


title: Case C-624/13 P: Order of the Court (Ninth Chamber) of 11 February 2015 — Iliad SA, Free infrastructure, Free SAS v European Commission, French Republic, Republic of Poland, Département des Hauts-de-Seine (Appeal — Article 181 of the Rules of Procedure of the Court of Justice — State aid — compensation for the costs of providing a public service for the establishment and operation of a very-high-speed broadband electronic communications network)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/9

         Order of the Court (Ninth Chamber) of 11 February 2015 — Iliad SA, Free infrastructure, Free SAS v European Commission, French Republic, Republic of Poland, Département des Hauts-de-Seine
   (Case C-624/13 P) (1)

   ((Appeal - Article 181 of the Rules of Procedure of the Court of Justice - State aid - compensation for the costs of providing a public service for the establishment and operation of a very-high-speed broadband electronic communications network))
   (2015/C 146/13)
   Language of the case: French

      Parties

      Appellants: Iliad SA, Free infrastructure SAS, Free SAS (represented by: T. Cabot, avocat)

      Other parties to the proceedings: European Commission (represented by: B. Stromsky and C. Urraca Caviedes, Agents), French Republic (represented by: D. Colas and J. Bousin, Agents), Republic of Poland, Département des Hauts-de-Seine (represented by: G. O’Mahony, avocat)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Iliad SA, Free Intrastructure SAS and Free SAS are ordered to pay the costs of the European Commission, the French Republic and the Département des Hauts-de-Seine.

      (1)  OJ C 39, 8.2.2014.


title: Action brought on 17 April 1996 by Kingdom of Spain against the Commission of the European Communities (Case C-123/96)

text:
 22 . 6 . 96           EN                    Official Journal of the European Communities                                   No C 180/ 19
 The request for a preliminary ruling submitted by the                  Gerichtshof ( Austrian Supreme Court) of 11 March 1996 ,
 Pretura Circondariale di Ivrea, Sezione di Strambino, by an            which was received at the Court Registry on 16 April 1996 ,
 order of 14 December 1995 is inadmissible.                             for a preliminary ruling in the case of Stephen Austin
                                                                        Saldanha and MTS Securities Corporation v . Hiross
.(') OJ No C 46 , 17 . 2 . 1996 .                                       Holding Aktiengesellschaft on the following question :
                                                                        Where proceedings are brought before an Austrian civil
                                                                        court by a British national who is also a national of the
                                                                        United States of America, who resides in that country ( in
 Reference for a preliminary ruling from the Finanzgericht              Florida ) and does not have any residence or assets in Austria ,
 Dusseldorf — Fourth Chamber — by order of that court of                against a joint-stock company whose registered office is in
 26 March 1996, in the case of Fruko-Handelsgesellschaft                Austria, by which he seeks to restrain that company from
               mbH v. Hauptzollamt Emmerich                             selling or otherwise transferring shares in specified
                          ( Case C-120/96 )                             subsidiary companies to its Italian subsidiary company, or
                                                                        to subsidiaries of that company established in Italy, without
                            ( 96/C 180/39 )                             the approval of a qualified majority of three quarters of the
                                                                        general meeting of shareholders or, in the alternative, of a
 Reference has been made to the Court of Justice of the                 simple majority of the general meeting of shareholders, does
 European Communities by an order of the Finanzgericht                  the fact that he has been ordered by the competent Austrian
 ( Finance Court ) Dusseldorf, Fourth Chamber, of 26 March              court ( of first instance ), on application by the defendant
 1 996 , which was received at the Court Registry on 15 April           company pursuant to paragraph 57 ( 1 ) of the Austrian Code
 1996 , for a preliminary ruling in the case of                         of Civil Procedure, to provide security for costs in a specified
 Fruko-Handelsgesellschaft           mbH      v.    Hauptzollamt        sum constitute discrimination on grounds of nationality
 Emmerich on the following questions :                                  contrary to the first paragraph of Article 6 of the EC
                                                                        Treaty ?
 1 . What degree of severity is required before there can be
      any finding of irreparable damage within the meaning of
      the second paragraph of Article 244 of Regulation
      ( EEC ) No 2913/92 0 ?
 2 . When is there damage within the meaning of the second              Action brought on 17 April 1996 by Kingdom of Spain
                                                                          against the Commission of the European Communities
      paragraph of Article 244 of Regulation ( EEC )
      No 2913 /92 ?                                                                             ( Case C-123 /96 )
                                                                                ( 96/C 180/41 )
 3 . What degree of probability must be held to exist for it to
      be found that there is a possibility of the occurrence of         An action against the Commission of the European
      the irreparable damage referred to in the second                  Communities was brought before the Court of Justice of the
      paragraph of Article 244 of Regulation ( EEC )                    European Communities on 17 April 1 996 by Kingdom of
      No 2913/92 ?
                                                                        Spain, represented by Gloria Calvo Diaz, Abodago del
                                                                        Estado, with an address for service in Luxembourg at the
 4 . If the answer to Question 1 is that sufficiently severe            Spanish Embassy, 4—6 Boulevard E. Servais .
      damage is constituted by the mere possibility of a
      winding-up petition based on the disputed but not                 The applicant claims that the Court should:
      suspended decision of the customs authority being
      presented with prospects of success in view of the tax            1 , annul the following Articles of Commission Directive
      debtor's       financial         circumstances,      should            96/2/EC of 16 January 1996 ( ! ):
      implementation of the decision be suspended if a
      winding-up petition could be presented even in the                     — Article 1 ( 3 ) in so far as follows :
      absence of the customs authority's decision ?
                                                                                — the second indent of Article 3 ( a ) inserted into
 (!) OJ No L 302 , 1992 , p . 1 .                                                   Directive 90/388/EEC ( 2 ),
                                                                                — the fifth ( last) indent of Article 3 ( a ) inserted into
                                                                                Directive 90/388/EEC ,
                                                                                — Article 3          (c)   inserted    into      Directive
 Reference for a preliminary ruling from the Oberster                               90/388/EEC,
 Gerichtshof by order of that court of 11 March 1996, in the
 case of Stephen Austin Saldanha and MTS Securities                              — Article 3          (d)   inserted    into      Directive
       Corporation v. Hiross Holding Aktiengesellschaft                             90/388 /EEC ,
                          ( Case C-122/96 )
                                                                             — Articles 2 ( 1 ) and 2 ( 2 ), and
                             ( 96/C 180/40 )
                                                                             — Article 4 ;
 Reference has been made to the Court of Justice of the
 European Communities by an order of the Oberster                       2 , order the Commission to pay the costs .
 ---pagebreak---  No C 180/20              EN j                 Official Journal of the European Communities                                      22 . 6 . 96
 Pleas in law and main arguments                                                38 ( 1 ) where the issuing court has already ordered that
                                                                                provisional execution of the judgment against the
 Lack of competence of the Commission ( see Case C-ll/96,                      judgment debtor is to be conditional on the provision of
 OJ No C 95 , 1996, p. 5 ).                                                     certain security to the judgment debtor.
 Misuse, of powers: the articles added ex novo to Directive
 90/388/EEC by Directive 96/2/EC make substantive                         Interrelationship between Article 38 (2) and the issuing
 changes to the existing system without observing either the              court's order for security
 division of powers between the Community institutions and
 in relation to the Member State or the procedure and the
 timetable laid down by the Council for drawing up the                    3 . Whether or not the Article 37(1 ) appellate court has the
 necessary provisions to enable the obligations flowing from                   power to consider whether the security or guarantee
 the full liberalization of the mobile and personal                            already provided by the judgment creditor is an
 communications sector to be imposed upon the Member                           adequate response to the order of the issuing court and
 States .                                                                      take account of any inadequacy in deciding whether to
                                                                               make an order under Article 38 ( 2 ), and
 (') OJ No L 20, 26 . 1 . 1996 , p . 59 .
 ( 2 ) OJ No L 192 , 24 . 7 . 1990, p . 10.
                                                                          4 , whether or not the Article 37(1 ) appellate court has the
                                                                               power, under Article 38 ( 2 ), to make enforcement
                                                                               conditional on the provision of security or guarantee
                                                                               greater than that ordered by the issuing court pending a
                                                                               final determination of the appeal proceedings in the
                                                                               issuing country .
Reference for a preliminary ruling by Her Majesty's Court
of Session in Scotland, by decision of that court of 29 March
 1996, in the case of Marie Brizard et Roger International SA             Time of exercise of Article 38 (1 ) power to sist or stay
against William Grant & Sons ( International ) Ltd and
                                 Another
                            Case C- 1 26/96                              5 . Whether or not the power to sist or stay the proceedings
                             ( 96/C 180/42 )                                   under Article 38 ( 1 ) may be exercised by an Article 37
                                                                               ( 1 ) appellate court only on dismissing the Article 37 ( 1 )
                                                                               appeal (regardless of whether a further appeal on a point
Reference has been made to the Court of Justice of the
European Communities by a decision of Her Majesty's                            of law may be made^ to the court designated under
                                                                              Article 37 ( 2 )) or instead may be exercised by the Article
Court of Session in Scotland of 29 March 1996, which was
                                                                               37(1 ) appellate court before it reaches any final decision
received at the Court Registry on 18 April 1996, for a                        on the merits of the appeal before it.
preliminary ruling in the case of Marie Brizard et Roger
International SA against William Grant & Sons
( International ) Ltd and another, on the following
questions :                                                              Interrelationship between Article 38 (1 ) and Article 34
Interrelationship between Article 38 (l )( l ) and Article 38
(2)
                                                                         6 . Whether, when deciding whether or not to exercise the
                                                                              power given under Article 38 ( 1 ), the Article 37 ( 1 )
                                                                              appellate court may properly take into consideration,
1 , ( a ) Whether or not, in a situation where adequate
            protection for the judgment debtor can be made
            available, Article 38 is to be construed to make                      ( i ) only those matters set out in Articles 27 and 28 ;
            available to the Article 37 ( 1 ) appellate court both
            the Article 38 ( 1 ) power to sist or stay the                      ( ii ) those matters which have arisen due to a material
            proceedings and the Article 38 ( 2 ) power to make
                                                                                change of circumstances since the order for
            enforcement of a judgment conditional on such
                                                                                provisional execution was pronounced;
            security as the Court shall determine, and
       ( b) If Question ( 1 ) ( a ) is answered in the affirmative,           ( iii ) matters of which the respondents could not have
            whether the exercise of one of these powers is to be                        been aware at the time the order for provisional
            preferred to that of the other.                                             execution was pronounced;
Interrelationship between Article 38 (1 ) and the issuing                     ( iv ) matters of which the respondents were unaware at
court's order for security                                                              the time of the order for provisional execution,
                                                                                whether or not they might reasonably have
2 . Whether or not the Article 37(1 ) appellate court has the                           anticipated them, and which were accordingly not
       power to order a sist or stay in proceedings under Article                       presented to the issuing court;


title: Case C-212/07: Order of the Court (Sixth Chamber) of 13 February 2008 — Indorata-Serviços e Gestão, Ld a v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Word mark HAIRTRANSFER — Refusal of registration — Lack of distinctive character)

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/16

         Order of the Court (Sixth Chamber) of 13 February 2008 — Indorata-Serviços e Gestão, Lda v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-212/07) (1)

   (Appeal - Community trade mark - Word mark HAIRTRANSFER - Refusal of registration - Lack of distinctive character)
   (2008/C 128/26)
   Language of the case: German
   Parties

      Appellant: Indorata-Serviços e Gestão, Lda (represented by: T. Wallentin, lawyer)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Weberndörfer, acting as Agent)
   Re:
   Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 15 February 2007 in Case T-204/04 Indorata-Serviços e Gestão, Lda
       v OHIM, by which the Court of First Instance dismissed the action for annulment of the decision refusing registration of the word mark HAIRTRANSFER for goods and services in Classes 8, 22, 41 and 44 — Distinctiveness of the mark
   Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Indorata-Serviços e Gestão, Lda is ordered to pay the costs.

      (1)  OJ C 155, 7.7.2007.


title: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 31 March 1998 in the case of Johann Buchner and 12 others v. Sozialversicherungsanstalt der Bauern (Case C-104/98)

text:
C 209/18              EN                  Official Journal of the European Communities                                     4.7.98
Justice) of 5 March 1998, which was received at the Court            date of birth which results from the first information given
Registry on 9 April 1998, for a preliminary ruling in the            by the insured person to the social security institution of
case of Union Deutsche Lebensmittelwerke GmbH v.                     the Member State in question or to the employer in that
Schutzverband gegen Unwesen in der Wirtschaft e.V. on                State (in so far as he is under a duty to notify the social
the following questions:                                             security institution)?
(a) Is Article 3(1) of Council Regulation (EEC) No 1898/
     87 (1) of 2 July 1987 on the protection of
     designations used in marketing of milk and milk
     products, read in conjunction with Article 3(2) of
     Council Directive 89/398/EEC (2) of 3 May 1989 on
                                                                     Reference for a preliminary ruling from the Oberster
     the approximation of the laws of the Member States
                                                                     Gerichtshof by order of that court of 31 March 1998 in
     relating to foodstuffs intended for particular
                                                                     the case of Johann Buchner and 12 others v. Sozialver-
     nutritional uses, to be interpreted as meaning that a
                                                                                sicherungsanstalt der Bauern
     milk product, in which milk fat has been replaced on
     dietary grounds by vegetable fat, cannot be described                                  (Case C-104/98)
     as cheese?                                                                               (98/C 209/35)
(b) If Question (a) is answered in the affirmative, is it
     significant that the designation dietary cheese                Reference has been made to the Court of Justice of the
     (dietary soft cheese) containing vegetable oil for a fat-       European Communities by an order of the Oberster
     modified diet' is complemented by additional                    Gerichtshof (Supreme Court, Austria) of 31 March 1998,
     descriptive material on the packaging, such as this            which was received at the Court Registry on 14 April
     dietary cheese is rich in polyunsaturated fats¼' or             1998, for a preliminary ruling in the case of Johann
     this dietary cheese is ideal for a cholesterol-conscious       Buchner and 12 others v. Sozialversicherungsanstalt der
     lifestyle¼'?                                                    Bauern on the following questions:
(1) OJ L 182, 3.7.1987, p. 36.                                       1. Is Article 7(1)(a) of Directive 79/7/EEC (1) to be
(2) OJ L 186, 30.6.1989, p. 27.                                          interpreted as allowing Member States to determine
                                                                         different pensionable ages only for pension rights
                                                                         which are granted exclusively on the basis of the risk
                                                                         of old age, or is that derogation applicable also to
                                                                         pension rights which are granted only from a specified
Reference for a preliminary ruling by the Bundessozial-                  age but in addition are granted only because of
gericht by order of that court of 17 February 1998 in the                invalidity (incapacity for work)?
case of Ibrahim Kocak against Landesversicherungsanstalt
               Oberfranken und Mittelfranken                         2. Is Article 7(1)(a) and (2) of Directive 79/7/EEC to the
                       (Case C-102/98)                                   interpreted as allowing a Member State to alter a
                                                                         previously existing identical provision on pensionable
                         (98/C 209/34)                                   age (in this case completion of the 55th year for men
                                                                         and women) after the end of the transposition period,
Reference has been made to the Court of Justice of the                   in such a way that a different pensionable age for men
European Communities by order of the Thirteenth Senate                   and women (in this case completion of the 57th year
of the Bundessozialgericht (Federal Social Court) of                     for men and the 55th year for women) is now
17 February 1998, received at the Court Registry on                      determined?
9 April 1998, for a preliminary ruling in the case of
Ibrahim      Kocak     against    Landesversicherungsanstalt         (1) OJ L 6, 10.1.1979, p. 24.
(Regional Insurance Office) Oberfranken und Mittel-
franken on the following question:
Is the law relating to the association between the
European Economic Community and Turkey (in particular
Article 9 of the Agreement establishing an Association
between the European Economic Community and Turkey                   Appeal brought on 14 April 1998 by Günther Bühring
of 12 September 1963, Article 37 of the Additional                   against the judgment delivered on 4 February 1998 by the
Protocol to that agreement of 23 November 1970,                      First Chamber of the Court of First Instance of the
Article 10 of Decision No 1/80 of the Council of                     European Communities in Case T-246/93 between
Association of 19 September 1980 and Article 3(1) of                 Günther Bühring and the Council of the European Union
Decision No 3/80 of the Council of Association of                        and the Commission of the European Communities
19 September 1980) to be interpreted as not permitting                                     (Case C-105/98 P)
the legislature of a Member State to adopt rules under                                        (98/C 209/36)
which the applicable date of birth for use in the insurance
number allocated to an insured person and for the grant
of old-age pension is in principle, in the case of Turkish           An appeal against the judgment delivered on 4 February
migrant workers also Ð without regard to particular                  1998 by the First Chamber of the Court of First Instance
characteristics of the Turkish register of civil status Ð the        of the European Communities in Case T-246/93 between


title: Judgment of the Court of First Instance of 19 September 2001 in Case T-121/00: Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Shape of a product for washing machines or dishwashers — Three-dimensional mark — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
C 3/28                 EN                       Official Journal of the European Communities                                   5.1.2002
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                     of 19 September 2001                                                       of 19 September 2001
in Case T-120/00: Procter & Gamble Company v Office                        in Case T-121/00: Procter & Gamble Company v Office
for Harmonisation in the Internal Market (Trade Marks                      for Harmonisation in the Internal Market (Trade Marks
                    and Designs) (OHIM) (1)                                                    and Designs) (OHIM) (1)
(Community trade mark — Shape of a product for washing                     (Community trade mark — Shape of a product for washing
machines or dishwashers — Three-dimensional mark —                         machines or dishwashers — Three-dimensional mark —
Absolute ground for refusal — Article 7(1)(b) of Regulation                Absolute ground for refusal — Article 7(1)(b) of Regulation
                          (EC) No 40/94)                                                             (EC) No 40/94)
                           (2002/C 3/47)                                                              (2002/C 3/48)
                  (Language of the case: English)                                            (Language of the case: English)
In Case T-120/00: Procter & Gamble Company, established in                 In Case T-121/00: Procter & Gamble Company, established in
Cincinnati, Ohio (United States of America), represented by                Cincinnati, Ohio (United States of America), represented by
C.J.J.C. van Nispen and G. Kuipers, lawyers, with an address               C.J.J.C. van Nispen and G. Kuipers, lawyers, with an address
for service in Luxembourg, against Office for Harmonisation                for service in Luxembourg, against Office for Harmonisation
in the Internal Market (Trade Marks and Designs) (OHIM)                    in the Internal Market (Trade Marks and Designs) (OHIM)
(Agents: A. von Mühlendahl, D. Schennen and C. Røhl Søberg)                (Agents: A. von Mühlendahl, D. Schennen and C. Røhl Søberg)
— application brought against the decision of the First Board              — application brought against the decision of the First Board
of Appeal of the Office for Harmonisation in the Internal                  of Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 29 February 2000 (Case                 Market (Trade Marks and Designs) of 29 February 2000 (Case
R-520/1999-1), which was notified to the applicant on                      R-529/1999-1), which was notified to the applicant on
3 March 2000 — the Court of First Instance (Second Chamber),               3 March 2000 — the Court of First Instance (Second Chamber),
composed of A.W.H. Meij, President, A. Potocki and J. Pirrung,             composed of A.W.H. Meij, President, A. Potocki and J. Pirrung,
Judges; D. Christensen, Administrator, for the Registrar, has              Judges; D. Christensen, Administrator, for the Registrar, has
given a judgment on 19 September 2001, in which it:                        given a judgment on 19 September 2001, in which it:
1.    Dismisses the action;                                                1.    Dismisses the action;
2.    Orders the parties to bear their own costs.                          2.    Orders the parties to bear their own costs.
(1) OJ C 192 of 8.7.2000.                                                  (1) OJ C 192 of 8.7.2000.


title: Case T-23/16: Judgment of the General Court of 8 March 2017 — Biernacka-Hoba v EUIPO — Formata Bogusław Hoba (Formata) (EU trade mark — Invalidity proceedings — EU figurative mark Formata — Absolute ground for invalidity — Absence of bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009 — Relative ground for invalidity — Likelihood of confusion — Article 53(1)(a) and Article 8(1)(a) and (b) of Regulation (EC) No 207/2009)

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/18

         Judgment of the General Court of 8 March 2017 — Biernacka-Hoba v EUIPO — Formata Bogusław Hoba (Formata)
   (Case T-23/16) (1)

   ((EU trade mark - Invalidity proceedings - EU figurative mark Formata - Absolute ground for invalidity - Absence of bad faith - Article 52(1)(b) of Regulation (EC) No 207/2009 - Relative ground for invalidity - Likelihood of confusion - Article 53(1)(a) and Article 8(1)(a) and (b) of Regulation (EC) No 207/2009))
   (2017/C 129/30)
   Language of the case: Polish

      Parties

      Applicant: Ilona Biernacka-Hoba (Aleksandrów Łódzki, Poland) (represented by: R. Rumpel, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Folliard-Monguiral and K. Zajfert, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO: Formata Bogusław Hoba (Aleksandrów Łódzki)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 4 November 2015 (Case R 102/2015-2), relating to invalidity proceedings between Ms Biernacka-Hoba and Formata Bogusław Hoba.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 November 2015 (Case R 102/2015-2), in so far as the Board of Appeal dismissed the application for a declaration of invalidity based on a relative ground for invalidity;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders EUIPO to bear its own costs and to pay half of the costs incurred by Ms Ilona Biernacka-Hoba;

               4.

               Orders Ms Biernacka-Hoba to bear half of her own costs.

      (1)  OJ C 111, 29.3.2016.


title: Case C-408/06: Judgment of the Court (Third Chamber) of 13 December 2007 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Landesanstalt für Landwirtschaft v Franz Götz (Sixth VAT Directive — Economic activity — Taxable persons — Bodies governed by public law — Milk-quota sales point — Transactions of agricultural intervention agencies and staff shops — Significant distortions of competition — Geographic market)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/22

         Judgment of the Court (Third Chamber) of 13 December 2007 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Landesanstalt für Landwirtschaft v Franz Götz
   (Case C-408/06) (1)

   (Sixth VAT Directive - Economic activity - Taxable persons - Bodies governed by public law - Milk-quota sales point - Transactions of agricultural intervention agencies and staff shops - Significant distortions of competition - Geographic market)
   (2008/C 51/35)
   Language of the case: German
   Referring court
   Bundesfinanzhof
   Parties to the main proceedings

      Applicant: Landesanstalt für Landwirtschaft

      Defendant: Franz Götz
   Re:
   Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of the second and third subparagraphs of Article 4(5) of and points 7 and 12 in Annex D to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Allocation of reference quantities of milk invoiced without a separate statement of the VAT — Assessment of the classification as a taxable person of a body established by a Land which transfers reference quantities of milk to milk producers against prepayment
   Operative part of the judgment

               1.

               A milk-quota sales point is neither an agricultural intervention agency within the meaning of the third subparagraph of Article 4(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2001/4/EC of 19 January 2001, read in conjunction with point 7 of Annex D thereto, nor a staff shop within the meaning of the third subparagraph of Article 4(5) of that directive, read in conjunction with point 12 of Annex D thereto;

               2.

               The treatment of a milk-quota sales point as a non-taxable person in respect of activities or transactions in which it engages as a public authority, within the meaning of Article 4(5) of the Sixth Directive, as amended by Directive 2001/4/EC, cannot give rise to significant distortions of competition, by reason of the fact that it is not faced, in a situation such as that at issue in the main proceedings, with private operators providing services which are in competition with the public services. As that finding applies in respect of all milk-quota sales points operating within a given delivery reference quantity transfer area, defined by the Member State concerned, that area constitutes the relevant geographic market for the purpose of establishing whether there are significant distortions of competition.

      (1)  OJ C 310, 16.12.2006.


title: Case C-88/09: Reference for a preliminary ruling from the Conseil d'État (France) lodged on 2 March 2009 — Graphic Procédé v Ministère du budget, des comptes publics et de la fonction publique

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/23

         Reference for a preliminary ruling from the Conseil d'État (France) lodged on 2 March 2009 — Graphic Procédé v Ministère du budget, des comptes publics et de la fonction publique
   (Case C-88/09)
   2009/C 113/44
   Language of the case: French

      Referring court

   Conseil d'État

      Parties to the main proceedings

      Applicant: Graphic Procédé

      Defendant: Ministère du budget, des comptes publics et de la fonction publique

      Question referred

   What are the criteria to be employed in order to determine whether reprographics is a supply of goods or a provision of services [for the purposes of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment] (1)?

      (1)  OJ 1977 L 145, p. 1.


title: Judgment of the Court (Fourth Chamber) of 18 November 2004 in Case C-116/04 Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil its obligations — Directive 2001/17/EC — Reorganisation and winding up of insurance undertakings — Failure to transpose within the prescribed period)

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/19

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 18 November 2004
   in Case C-116/04 Commission of the European Communities v Kingdom of Sweden (1)

   (Failure of a Member State to fulfil its obligations - Directive 2001/17/EC - Reorganisation and winding up of insurance undertakings - Failure to transpose within the prescribed period)
   (2005/C 6/37)
   Language of the case: Swedish
   In Case C-116/04 Commission of the European Communities (Agents: E. Traversa and K. Simonsson) v Kingdom of Sweden (Agent: A. Kruse) – action under Article 226 EC for failure to fulfil obligations, brought on 4 March 2004 – the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; L.A. Gellhoed, Advocate General; R. Grass, Registrar, gave a judgment on 18 November 2004, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Sweden to pay the costs.

      (1)  OJ C 106 of 30.4.2004.


title: Case T-118/09: Judgment of the General Court of 5 October 2011 — La Sonrisa de Carmen and Bloom Clothes v OHIM — Heldmann (BLOOMCLOTHES) (Community trade mark — Opposition proceedings — Application for Community figurative mark BLOOMCLOTHES — Earlier national word mark BLOOM — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/17

         Judgment of the General Court of 5 October 2011 — La Sonrisa de Carmen and Bloom Clothes v OHIM — Heldmann (BLOOMCLOTHES)
   (Case T-118/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark BLOOMCLOTHES - Earlier national word mark BLOOM - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2011/C 340/32
   Language of the case: Spanish

      Parties

      Applicants: La Sonrisa de Carmen, SL (Vigo, Spain); and Bloom Clothes, SL (Madrid, Spain) (represented by: S. Míguez Pereira, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Harald Heldmann (Hamburg, Germany) (represented by: E. Günther, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 8 January 2009 (Case R 695/2008-2), relating to opposition proceedings between, on the one hand, Harald Heldmann and, on the other, La Sonrisa de Carmen, SL and Bloom Clothes, SL.

      Operative part of the judgment

   The General Court:

               1.

               Dismisses the action;

               2.

               Orders La Sonrisa de Carmen, SL and Bloom Clothes, SL to pay the costs, with the exception of those incurred by Harald Heldmann;

               3.

               Orders Mr Heldmann to bear his own costs.

      (1)  OJ C 141, 20.6.2009.