title: Action brought on 17 February 1995 by Groupe Origny, a limited liability company succeeding to the rights of the limited liability company Cedest, against the Commission of the European Communities (Case T-38/95)

text:
13 . 5 . 95         LJN                 Official Journal of the European Communities                                 No C 119/ 13
Instance of the European Communities on 15 February                Action brought on 17 February 1995 by Groupe Origny, a
1995 by the International Express Carriers Conference,             limited liability company succeeding to the rights of the
established at 9 Rue de la Terrassière, CH-1207 Geneva,            limited liability company Cedest, against the Commission of
Switzerland, represented by Eric Morgan de Rivery, of the                              the European Communities
Paris Bar, and by Jacques Derenne, of the Brussels and Paris                                 ( Case T-38/95 )
Bars, with an address for service in Luxembourg at the
Chambers of Alex Schmitt, Bonn & Schmitt, 62 Avenue                                            ( 95/C 119/33
Guillaume .
                                                                                (Language of the case: French)
The applicant claims that the Court should :
                                                                   An action against the Commission of the European
— declare that the Commission's failure to define its              Communities was brought before the Court of First
     position within two months of receipt of the formal           Instance of the European Communities on 17 February
     request contained in the applicant's letter of 23             1995 by Groupe Origny, a limited liability company having
     November 1994 in relation to the aspects of the               its registered office in Paris ( France ) and succeeding to the
     complaint of 13 July 1988 , as supplemented thereafter,       rights of the limited liability company Cedest, represented
     concerning:                                                   by Xavier de Roux, of the Paris Bar, with an address for
                                                                   service in Luxembourg at the Chambers of Jacques Loesch,
                                                                   8 Rue Zithe .
    — the application of Article 85 , and
    — the application of Article 86,                               The applicant claims that the Court should:
     is in breach of Article 175 of the Treaty,                    — annul in whole or in part Article 1 , Article 3 ( 3 ) ( a ) and
                                                                        Article     9.20    of     the  Commission   decision     of
— order the Commission to pay the costs of the application              30 November 1994, in so far as those articles concern
     even in the event that the Commission should take action           Cedest,
     which is held by the Court to render the action devoid of
     purpose .
                                                                   — in the alternative, amend Article 9 of the Commission
                                                                        decision so as to set aside or reduce substantially the fine
                                                                        imposed on Cedest,
Pleas in law and main arguments adduced in support:
                                                                   — order the Commission to pay the costs .
The Commission failed to define its position on both aspects
of the applicant's complaint within two months of being
                                                                   Pleas in law and main arguments adduced in support:
requested to do so by the applicant, contrary to the second
paragraph of Article 175 of the EEC Treaty. Since the              The applicant relies on the following pleas in law in support
application was brought within the ensuing two-month               of its action :
period, it must be declared admissible.
                                                                    L Formal and procédural defects:
With regard to Article 85, the alleged disappearance (which
is denied) of the restriction of competition complained of               1 . Failure to attribute the complaints to individual
cannot entitle the Commission to dispense with the                           undertakings.
obligation to define its position. Although, in the context of
the procedure under Regulation No 17, it sent a letter to the            2. Extremely short period for examination of the file,
IECC under Article 6 of Regulation No 99/63 , the                            which was not only disproportionate in relation to
Commission did not dismiss this aspect of the complaint.                     the duration of the investigation but was also
                                                                             unjustified by reason of the absence of any
With regard to Article 86, a letter stating that the                         urgency .
Commission is pursuing the matter cannot fulfil the
Commission's obligation to define its position. In view of               3 . Failure clearly to identify the documents on the file
the length of time which elapsed between the filing of the                   and to, provide a list of accessible documents .
complaint and the dispatch of the letter calling upon
the Commission to act, the applicant is entitled to obtain               4. Refusal to grant access to all documents on the
from the Commission either a reasoned decision stating that                  file .
an investigation of the complaint was unnecessary or a
provisional notice under Article 6 of Regulation                         5 . Refusal to grant the applicant a separate hearing.
No 99/63 .
                                                                   II. With regard to the practices complained of:
The application must therefore be declared to be
well-founded in regard to the aspects of the complaint                   1 . Lack of evidence : the Commission has failed to
concerning both Article 85 and Article 86 of the EEC
                                                                             establish the applicant's alleged involvement in the
Treaty.
                                                                             two agreements concerned relating to respect for
                                                                             home markets and the regulation of transfers of
                                                                             goods between France and Germany.
 ---pagebreak--- No C 119/14            EN                    Official Journal of the European Communities                                                13 . 5 . 95
     2. Incorrect analysis of the applicant's market                               with the fact that the Commission chose to
          conduct: in forming the view that the applicant was                      incriminate only a selection of European cement
          involved in an agreement to limit transhipments of                       producers. The applicant also takes the view that
          cement between France and Germany, the                                   the Commission could not, without contradicting
          Commission was guilty of a manifest error in                             itself, define the geographical reference market as
          interpretation of the facts.                                              being both local and European at the same time.
                                                                         II. Manifest error of assessment: the applicant submits
                                                                              that the complaints upheld against it — regarded by the
                                                                              Commission as the application of a general agreement
                                                                              — are either non-existent or without relation to the
Action brought on 17 February 1995 by Société Ciments
                                                                              applicant and, in any event, unconnected to a general
Français SA against the Commission of the European
                            Communities                                       agreement. The applicant also takes the view that the
                                                                              evidence which ostensibly establishes the existence of a
                         (Case T-39/95 )                                      general agreement to 'respect home markets' is
                           ( 95/C 119/34 )                                    manifestly inadequate.
                 (Language of the case: Frencb)                         III. Breach of the principles of non-discrimination and
                                                                              proportionality, along with breach of the principles of
An action against the Commission of the European                              sound administration and the protection of legitimate
Communities was brought before the Court of First                             expectations.
Instance of the European Communities on 17 February
1995 by Société Ciments Français SA, having its registered              IV. In the alternative, the applicant submits that the fines
office in Paris ( France ), represented by Antoine Winckler, of               imposed on it should be reduced substantially. It takes
the Paris Bar, with an address for service in Luxembourg at                   the view that the Commission :
the Chambers of Elvinger & Hoss, 15 Côte d'Eich.
                                                                              1 , committed manifest errors in its calculation;
The applicant claims that the Court should :
                                                                              2 , failed properly to take account of the gravity of the
— annul the Commission decision of 30 November                                     alleged infringements and on that ground
     1994,                                                                         committed a serious breach of the principle of
                                                                                proportionality;
— in the alternative, reduce the fines imposed,
                                                                              3 , chose an incorrect relevant market as the basis for
— order the Commission to pay the costs .                                          calculating the fine .
Pleas in law and main arguments adduced in support:
In support of its action, the applicant relies on the following
pleas in law:
                                                                        Action brought on 18 February 1995 by Société Lafarge
  I.  Procédural defects :                                                   Coppée against the Commission of the European
                                                                                Communities
      1 . Breach of the right to a fair hearing. The applicant
                                                                                (Case T-43/95 )
           submits that there has been a failure to comply with
           the principle that all parties should be heard in                                          ( 95/C 119/35 )
           administrative proceedings: first, on the ground of
           non-communication          or   absence     of  details                        (Language of tbe case: French)
           connecting individuals to certain fundamental
           complaints; second, on the ground that there was
                                                                        An action against the Commission of the European
           no full access to the file documents; and, finally, by
                                                                        Communities was brought before the Court of First
           reason of the restrictions imposed on the
                                                                        Instance of the European Communities on 18 February
           applicant's opportunity to set out its view
                                                                        1 995 by Société Lafarge Coppée, having its registered office
           regarding the complaints finally upheld against
           it.
                                                                        in Paris ( France ), represented by Henry Lesguillons, of the
                                                                        Paris Bar, with an address for service in Luxembourg at the
      2 . The Advisory Committee was not called to                      Chambers of Marc Loesch, 11 Rue Goethe.
           comment on the exact amount of the fines
           envisaged by the Commission.                                The applicant claims that the Court should:
      3 . Failure to state reasons. The applicant points out in        — annul the Commission Decision of 30 November 1994
           this regard that the theory of a 'single and                     in its entirety, or at least Articles 1 , 3 ( 1 ) ( a ) and 3 ( 3 ) ( a ),
           continuous agreement' involving practically the                  4 ( 1 ), 4 ( 2 ), 4 ( 3 ) ( a ), 4 (4 ) (e ) and 4 (4 ) ( f), 6 and 7
           entire European cement industry is directly at odds              thereof,


title: Case C-140/16: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy) lodged on 7 March 2016 — Edra Costruzioni Soc. coop., Edilfac Srl v Comune di Maiolati Spontini

text:
               6.6.2016

               EN

               Official Journal of the European Union

               C 200/7

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy) lodged on 7 March 2016 — Edra Costruzioni Soc. coop., Edilfac Srl v Comune di Maiolati Spontini
   (Case C-140/16)
   (2016/C 200/10)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per le Marche

      Parties to the main proceedings

      Applicants: Edra Costruzioni Soc. coop., Edilfac Srl

      Defendant: Comune di Maiolati Spontini

      Question referred

   Do the Community principles of the protection of legitimate expectations and legal certainty, together with the principles of the free movement of goods, the freedom of establishment and the freedom to provide services, laid down in the Treaty on the Functioning of the European Union (TFEU), as well as the principles deriving therefrom, such as equality of treatment, non-discrimination, mutual recognition, proportionality and transparency, referred to (most recently) in Directive 2014/24/EU, (1) preclude national legislation, such as the Italian legislation founded on the combined provisions of Articles 87(4) and 86(3a) of Legislative Decree No 163 of 2006 and Article 26(6) of Legislative Decree No 81 of 2008, as interpreted, with a view to securing proper respect for, and uniform application of, the law, pursuant to Article 99 of the Code of Administrative Procedure, by judgments No 3 and No 9 of 2015 of the Plenary Assembly of the Consiglio di Stato, according to which the failure to list the corporate safety and security costs separately in tenders in a procedure for the award of a public works contract inevitably results in the exclusion of the tendering undertaking concerned, even in the case where the obligation to list that information separately was not set out either in the tender rules or on the attached form to be completed for the submission of the tender, and even though, in substantive terms, the tender in question took into account the minimum costs of corporate safety and security?

      (1)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).


title: Case C-256/00: Reference for a preliminary ruling from the Cour d'Appel, Brussels (Fourth Chamber), by judgment of that court of 19 June 2000 in the case of S.A. Besix NV, formerly called S.A. Entreprises SBBM and Six Construct v WABAG Wasserreinigungsbau Alfred Kretzschmar GmbH & Co KG, a company incorporated under German law, and Planungs- und Forschungsgesellschaft Dipl. Ing. W. Kretzschmar GmbH & Co KG, a company incorporated under German law

text:
12.8.2000              EN                   Official Journal of the European Communities                                        C 233/25
2.    Since the Turkish authorities were aware of the inaccuracy       Must Article 5(1) of the Convention of 27 September 1968 on
      of the content of the ATR certificates, which they               Jurisdiction and the Enforcement of Judgments in Civil and
      authenticated, is there no possibility of making the             Commercial Matters (OJ 1972 L 299, p. 32), as amended by
      Turkish State liable for payment of the customs debt?            the Convention of 9 October 1978 on the Accession of the
                                                                       Kingdom of Denmark, Ireland and the United Kingdom of
                                                                       Great Britain and Northern Ireland (OJ 1978 L 304, p. 1;
3.    Since the Commission suspected or was aware of the
                                                                       amended version of the Convention at p. 77) and by the
      conduct of the Turkish authorities, referred to in point 2
                                                                       Convention of 25 October 1982 on the Accession of the
      above, was the Commission under a duty to warn the
                                                                       Hellenic Republic (OJ 1982 L 388, p. 1), be interpreted as
      Community operators?
                                                                       meaning that a defendant domiciled in a Contracting State
                                                                       may, in another Contracting State, be sued, in matters relating
4.    Is breach of that possible duty such as to exonerate the         to a contract, in the courts for any of the places of performance
      (customs) declarants from liability where during all those       of the obligation in question, in particular where, consisting in
      years they acted in good faith in respect of the contents        an obligation not to do something — such as, in the present
      of their declarations?                                           case, an undertaking to act exclusively with another party to a
                                                                       contract with a view to submitting a joint tender in connection
                                                                       with a public contract and not to enter into a commitment
5.    Is the decision of the Commission and of the Portuguese          with another partner — that obligation is to be performed in
      customs authorities, on the advice of the former, to             any place whatever in the world?
      proceed to post-clearance recovery of the import duties
      valid without previously putting in motion the procedure
      provided for by Articles 22 and 25 of the EEC/Turkey
      Association Agreement (signed in Brussels on 23 Novem-           If not, may that defendant be sued specifically in the courts for
      ber 1970)?                                                       one of the places of performance of the obligation and, if so,
                                                                       by reference to what criterion must that place be determined?
(1) Council Regulation (EEC) No 2913/92 of 12 October 1992
    establishing the Community Customs Code (OJ 1992 L 302, p. 1).
                                                                       Appeal brought on 10 July 2000 by Odette Simon against
                                                                       the judgment delivered on 10 May 2000 by the Court of
                                                                       First Instance of the European Communities (Single Judge)
Reference for a preliminary ruling from the Cour d’Appel,              in Case T-177/97 Odette Simon v Commission of the
Brussels (Fourth Chamber), by judgment of that court of                                   European Communities (1)
19 June 2000 in the case of S.A. Besix NV, formerly called
S.A. Entreprises SBBM and Six Construct v WABAG
Wasserreinigungsbau Alfred Kretzschmar GmbH & Co                                               (Case C-274/00 P)
KG, a company incorporated under German law, and
Planungs- und Forschungsgesellschaft Dipl. Ing. W.
Kretzschmar GmbH & Co KG, a company incorporated                                                (2000/C 233/49)
                       under German law
                                                                       An appeal against the judgment delivered on 10 May 2000 by
                         (Case C-256/00)                               the Court of First Instance of the European Communities
                                                                       (Single Judge) in Case T- 177/97 Odette Simon v Commission
                         (2000/C 233/48)                               of the European Communities was brought before the Court
                                                                       of Justice of the European Communities on 10 July 2000 by
                                                                       Odette Simon, represented by J.-N. Louis and Véronique Peere,
Reference has been made to the Court of Justice of the                 of the Brussels Bar, with an address for service in Luxembourg
European Communities by a judgment of the Cour d’Appel                 at the offices of Société de Gestion Fiduciaire, 2-4 Rue Beck.
(Court of Appeal), Brussels (Fourth Chamber), of 19 June
2000, which was received at the Court Registry on 28 June
2000, for a preliminary ruling in the case of S.A. Besix NV,           The appellant claims that the Court of Justice should:
formerly called S.A. Entreprises SBBM and Six Construct v
WABAG Wasserreinigungsbau Alfred Kretzschmar GmbH &
Co KG, a company incorporated under German law, and                    —     Set aside the judgment of the Court of First Instance of
Planungs-        und     Forschungsgesellschaft     Dipl.    Ing.            the European Communities (Single Judge) of 10 May
W. Kretzschmar GmbH & Co KG, a company incorporated                          2000 in Case T-177/97 Odette Simon v Commission of
under German law, on the following question:                                 the European Communities;


title: Case T-261/02: Action brought on 30 August 2002 by Bank für Arbeit und Wirtschaft Aktiengesellschaft against the Commission of the European Communities

text:
9.11.2002              EN                     Official Journal of the European Communities                                      C 274/29
The applicant claims that the Court should:                              Finally, the applicant submits that the Commission has
                                                                         infringed essential procedural rights held by the applicant and
                                                                         that it unlawfully passed the statement of objections to the
—     annul the Commission decision of 11 June 2002 (COMP/               FPÖ (Austrian Freedom Party).
      36.571 — Austrian Banks) in so far as it relates to the
      applicant;
—     in     the    alternative,    reduce      the      fine    of
      EUR 30 380 000 imposed on the applicant in the
      defendant’s decision;
                                                                         Action brought on 30 August 2002 by Bank für Arbeit
                                                                         und Wirtschaft Aktiengesellschaft against the Com-
—     order the defendant to pay the costs.                                          mission of the European Communities
                                                                                (Case T-261/02)
                                                                                (2002/C 274/52)
Pleas in law and main arguments
                                                                                (Language of the Case: German)
The proceeding conducted by the defendant was directed
against regular meetings of banks in Austria (‘Bankenrunden’).           An action against the Commission of the European Communi-
By the contested decision the Commission found that the                  ties was brought before the Court of First Instance of the
applicant — together with seven other Austrian banking                   European Communities on 30 August 2002 by Bank für
institutions — had infringed Article 81 EC by participating in           Arbeit und Wirtschaft Aktiengesellschaft, established in Vien-
agreements and concerted practices concerning prices, charges            na, represented by H.-J. Niemeyer and M. von Hinden, Lawyers,
and advertising measures, designed to restrict competition on            with an address for service in Luxembourg.
the Austrian banking market from 1 January 1995 until
24 June 1998. The Commission imposed fines on the banks
concerned.                                                               The applicant claims that the Court should:
                                                                         —     annul Articles 1 and 2 of the Commission decision of
                                                                               11 June 2002 in Case COMP/36.571 — Austrian banks,
The applicant submits first of all that Article 81 EC cannot be                in so far as it is found therein that the applicant has
applicable since the banks’ meetings, which the applicant                      infringed Article 81 EC and must cease that infringement;
admits, could not affect trade between Member States because
of their regional and local focus.                                       —     annul Article 3 of the decision in so far as it imposes a
                                                                               fine of EUR 7 590 000 upon the applicant;
                                                                         —     in the alternative, reduce the fine imposed on the
The applicant further contends that the defendant, when                        applicant in Article 3 of the decision to an appropriate
setting the basic amount, assumed that those meetings had                      amount;
adverse economic effects although the applicant, together with
the other banks concerned, had proved by means of an                     —     order the defendant to pay the costs.
economist’s expert report that there were no such effects. In
addition, the defendant exercised its discretion improperly
when setting the basic amount because it failed to take account
of the transitional situation pertaining in legal terms in Austria       Pleas in law and main arguments
after entry into the European Economic Area, the statutorily
privileged status of the Bankenrunden under Austrian cartel
law, the participation of State authorities and the fact that the        The proceeding conducted by the defendant was directed
Bankenrunden were public knowledge.                                      against regular meetings of banks in Austria (‘Bankenrunden’).
                                                                         By the contested decision the Commission found that the
                                                                         applicant — together with seven other Austrian banking
                                                                         institutions — had infringed Article 81 EC by participating in
Furthermore, the applicant worked with the defendant in                  agreements and concerted practices concerning prices, charges
establishing the facts. The defendant granted no reduction for           and advertising measures, designed to restrict competition on
that wide-ranging cooperation and therefore exercised its                the Austrian banking market from 1 January 1995 until
discretion incorrectly and to the applicant’s detriment when             24 June 1998. The Commission imposed fines on the banks
applying the Leniency Notice.                                            concerned.
 ---pagebreak--- C 274/30              EN                    Official Journal of the European Communities                                     9.11.2002
The applicant submits that the decision must be set aside if           The applicant claims that the Court should:
only because it infringes the obligation to state reasons
under Article 253 EC. Furthermore, the defendant infringed
Article 81 EC by assessing incorrectly in law the nature of the        —     annul the Commission decision of 11 June 2002 in a
rounds of meetings which were investigated. On an objective                  proceeding under Article 81 EC (Case COMP/36.571/
assessment of the facts, the defendant should have recognised                D-1 — Austrian Banks);
that there was predominantly disagreement between the banks
in question. The incorrect assessment of the facts leaves its
mark on the whole of the contested decision and must                   —     in the alternative, annul Articles 3 and 4 of that decision
                                                                             in so far as they relate to the applicant;
therefore result in its complete annulment. The decision also
infringes Article 81 EC because the rounds of meetings
investigated were not capable of affecting trade between               —     order the defendant to pay the costs.
Member States.
The applicant further contends that Article 3 of the contested
decision must be annulled in the absence of fault, a precon-
dition under Article 15(2) of Regulation No 17/62. Given the           Pleas in law and main arguments
purely national nature of the rounds of meetings and the fact
that they were rooted in a specifically Austrian context — with
the participation of Austrian State authorities — the applicant
was unable to discern their unlawful content and their                 The proceeding conducted by the defendant was directed
purported ability to affect trade between Member States.               against regular meetings of banks in Austria (‘Bankenrunden’).
                                                                       By the contested decision the Commission found that the
                                                                       applicant — together with seven other Austrian banking
                                                                       institutions — had infringed Article 81 EC by participating in
Furthermore the defendant, in breach of Article 15(2) of
Regulation No 17/62, infringed essential principles governing          agreements and concerted practices concerning prices, charges
                                                                       and advertising measures, designed to restrict competition on
the calculation of fines and in particular misapplied on many
                                                                       the Austrian banking market from 1 January 1995 until
counts its own guidelines on the method for setting fines. First
                                                                       24 June 1998. The Commission imposed fines on the banks
of all, it is wrong to accept that there was a ‘very serious
                                                                       concerned.
infringement’, and the defendant failed to take account of
numerous mitigating circumstances. Finally, the fine must be
substantially reduced for the further reason that the defendant,
by misapplying the notice on the non-imposition of fines in
                                                                       The applicant submits that the rounds of meetings between
cartel cases, had no regard at all to the applicant’s extensive
                                                                       the Austrian banks could not appreciably affect trade between
cooperation.
                                                                       States. The Commission misapplied Article 81(1) EC in the
                                                                       contested decision. The arrangements in question were limited
                                                                       to the territory of the Republic of Austria. The Commission
                                                                       adduced no conclusive evidence as to why the arrangements
                                                                       were none the less supposed to have been capable of appreci-
                                                                       ably affecting trade between States. In particular, it was not
                                                                       demonstrated that they had the effect of partitioning the
                                                                       market.
Action brought on 30 August 2002 by Raiffeisenlandes-
bank Niederösterreich-Wien AG against the Commission
                of the European Communities                            The applicant further contends that the Commission did not
                                                                       prove that the applicant acted with intent or negligently. The
                                                                       Commission misapplied Article 15(2) of Regulation No 17/
                        (Case T-262/02)
                                                                       62. It imposed a fine despite an absence of proof that the
                                                                       applicant’s staff had acted with intent or negligently. The
                        (2002/C 274/53)                                Commission fails to have regard to the fact that the question
                                                                       of fault does not turn on knowledge of the prohibition on
                                                                       cartels but primarily on knowledge of the facts which render
                 (Language of the Case: German)                        that prohibition applicable in a specific case. Furthermore,
                                                                       the Commission considers fault only with regard to the
                                                                       requirement that competition be restricted and does not ask
                                                                       itself whether the applicant’s staff were in a position to
                                                                       recognise the alleged effects between Member States. That was
An action against the Commission of the European Communi-              not the case.
ties was brought before the Court of First Instance of the
European Communities on 30 August 2002 by Raiffeisenlan-
desbank Niederösterreich-Wien AG, established in Vienna,
represented by H. Wollmann, Lawyer.


title: Judgment of the Court of 4 April 2000 in Case C-269/97: Commission of the European Communities v Council of the European Union (Regulation (EC) No 820/97 — Legal basis)

text:
10.6.2000                  EN                       Official Journal of the European Communities                                            C 163/5
2. Neither the reduction in working time, by reference to the                                    JUDGMENT OF THE COURT
     standard working time for day-work, awarded in respect of work
     performed according to a three-shift roster, nor the value of such
     a reduction, are to be taken into consideration for the purpose of                                   (First Chamber)
     calculating the salary used as the basis for a pay comparison for
     the purposes of Article 119 of the Treaty and Directive 75/117.
     However, such a reduction may constitute an objective reason                                         of 4 April 2000
     unrelated to any discrimination on grounds of sex such as to
     justify a difference in pay. It is for the employer to show that such
     is in fact the case.
                                                                               in Case C-465/98 (reference for a preliminary ruling from
                                                                               the Oberlandesgericht Köln): Verein gegen Unwesen in
(1) OJ C 278 of 5.9.1998.                                                          Handel und Gewerbe Köln eV v Adolf Darbo AG (1)
                                                                               (Labelling and presentation of foodstuffs — Directive
                                                                                79/112/EEC — Strawberryjam — Risk of deception)
                   JUDGMENT OF THE COURT                                                                  (2000/C 163/08)
                             of 4 April 2000
                                                                                (Language of the case: German)
in Case C-269/97: Commission of the European Communi-
             ties v Council of the European Union (1)
           (Regulation (EC) No 820/97 — Legal basis)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                             (2000/C 163/07)
                                                                               In Case C-465/98, reference to the Court under Article 177 of
                       (Language of the case: French)                          the EC Treaty (now Article 234 EC) by the Oberlandesgericht
                                                                               Köln (Germany) for a preliminary ruling in the proceedings
                                                                               pending before that court between Verein gegen Unwesen in
(Provisional translation; the definitive translation will be published         Handel und Gewerbe Köln eV and Adolf Darbo AG — on
                      in the European Court Reports)                           the interpretation of Article 2(1)(a)(i) of Council Directive
                                                                               79/112/EEC of 18 December 1978 on the approximation of
In Case C-269/97: Commission of the European Communities                       the laws of the Member States relating to the labelling,
(Agents: P. van Nuffel and G. Berscheid), supported by the                     presentation and advertising of foodstuffs for sale to the
European Parliament (Agents: J. Schoo and E. Waldherr) v                       ultimate consumer (OJ 1979 L 33, p. 1) — the Court (First
Council of the European Union (Agents: J.-C. Piris, J. Carbery                 Chamber), composed of: L. Sevón, President of the Chamber,
and M. Sims) — application for annulment of Council                            P. Jann and M. Wathelet (Rapporteur), Judges; P. Léger,
Regulation (EC) No 820/97 of 21 April 1997 establishing a                      Advocate General; L. Hewlett, Administrator, for the Registrar,
system for the identification and registration of bovine animals               has given a judgment on 4 April 2000, in which it has ruled:
and regarding the labelling of beef and beef products (OJ 1997
L 117, p. 1) — the Court, composed of: G.C. Rodriguez
Iglesias, President, D.A.O. Edward and L. Sevón (Rapporteur),                 Article 2(1)(a)(i) of Council Directive 79/112/EEC of 18 December
Presidents of Chambers, P.J.G. Kapteyn, C. Gulmann,                            1978 on the approximation of the laws of the Member States
J.-P. Puissochet, P. Jann, H. Ragnemalm and M. Wathelet,                       relating to the labelling, presentation and advertising of foodstuffs
Judges; A. Saggio, Advocate General; R. Grass, Registrar, has                  for sale to the ultimate consumer does not preclude use of the
given a judgment on 4 April 2000, in which it:                                 description ‘naturally pure’ for a strawberry jam which contains the
                                                                               gelling agent pectin and traces or residues of lead, cadmium and
1. Dismisses the application;                                                  pesticides of the following levels: 0.01 mg/kg of lead, 0.008 mg/kg
                                                                               of cadmium, 0.016 mg/kg of procymidone and 0.005 mg/kg of
2. Orders the Commission of the European Communities to pay the                vinclozolin.
     costs;
3. Orders the European Parliament to bear its own costs.
                                                                               (1) OJ C 71 of 13.3.1999.
(1) OJ C 295 of 27.9.1997.


title: Case T-305/05: Action brought on 1 August 2005 — Balabanis and Le Dour v Commission

text:
               29.10.2005

               EN

               Official Journal of the European Union

               C 271/20

         Action brought on 1 August 2005 — Balabanis and Le Dour v Commission
   (Case T-305/05)
   (2005/C 271/40)
   Language of the case: French
   Parties

      Applicant(s): Panagiotis Balabanis (Brussels, Belgium), Olivier Le Dour (Brussels, Belgium) (represented by: X. Martin, S. Orlandi, A. Coolen, J.-N Louis, E. Marchal, lawyers)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               annul the Commission's decision not to take account of the applicants' merits for the 2004 promotion exercise and the decisions not to promote them to a higher grade in their category;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In this case the applicants, who were appointed probationary officials on 16 March 2002 and who, in accordance with the new wording of Article 45 of the Staff Regulations, completed the minimum of two years in their grade as from 16 March 2004, thus contest the Appointing Authority's refusal to consider them as eligible for the 2004 promotion exercise and to promote them to a higher grade in their category for the same exercise.
   In support of their claims the applicants assert that Article 45 of the Staff Regulations has been infringed. In accordance with that new provision the probationary period must be taken into account for the purpose of calculating the minimum seniority in grade.


title: Judgment of the Court (Fifth Chamber) of 25 October 2001 in Case C-398/98: Commission of the European Communities v Hellenic Republic (Failure by a Member State to fulfil its obligations — Article 30 of the EC Treaty (now, after amendment, Article 28 EC) — Obligation to maintain minimum stocks of petroleum products)

text:
C 3/4                     EN                      Official Journal of the European Communities                                           5.1.2002
business use of a private car, the Kingdom of the Netherlands                Republic (Agents: P. Mylonopoulos and N. Dafniou) —
has failed to fulfil its obligations under the EC Treaty — the               application for a declaration that, by establishing and main-
Court (Fifth Chamber), composed of: S. von Bahr, President of                taining a system for stocks of petroleum products which
the Fourth Chamber, acting for the President of the Fifth                    directly links the facility to transfer the storage obligation to
Chamber, D.A.O. Edward, A. La Pergola (Rapporteur),                          refineries established in Greece to an obligation to obtain
M. Wathelet and C.W.A. Timmermans, Judges; C. Stix-Hackl,                    supplies of petroleum products from those refineries, and by
Advocate General; H.A. Rühl, Principal Administrator, for the                prohibiting service stations from obtaining supplies from
Registrar, has given a judgment on 8 November 2001, in                       refineries or from another Member State, the Hellenic Republic
which it:                                                                    has failed to fulfil its obligations under Article 30 of the EC
                                                                             Treaty (now, after amendment, Article 28 EC) — the Court
1.    Declares that by providing, in breach of Articles 17(2)(a) and         (Fifth Chamber), composed of: P. Jann, President of the
      18(1)(a) of Sixth Council Directive 77/388/EEC of 17 May               Chamber, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevón
      1977 on the harmonisation of the laws of the Member States             and M. Wathelet, Judges; D. Ruiz-Jarabo Colomer, Advocate
      relating to turnover taxes — Common system of value added              General; L. Hewlett, Administrator, for the Registrar, has given
      tax: uniform basis of assessment, in the version resulting from        a judgment on 25 October 2001, in which it rules:
      Council Directive 95/7/EC of 10 April 1995 amending
      Directive 77/388 and introducing new simplification measures           1.    By establishing and maintaining a system for the compulsory
      with regard to value added tax — scope of certain exemptions                 maintenance of emergency stocks of petroleum products which
      and practical arrangements for implementing them, that an                    directly links the facility for companies which market those
      employer who is a taxable person, for the purposes of value                  products to transfer their storage obligation to refineries
      added tax may deduct part of an allowance paid to an employee                established in Greece to an obligation to obtain their supplies
      for business use of a private car, the Kingdom of the Netherlands            of those products from those refineries, the Hellenic Republic
      has failed to fulfil its obligations under the EC Treaty;                    has failed to fulfil its obligations under Article 30 of the EC
                                                                                Treaty (now, after amendment, Article 28 EC).
2.    Orders the Kingdom of the Netherlands to pay the costs;
                                                                             2.    The Hellenic Republic is ordered to pay the costs.
3.    Orders the United Kingdom of Great Britain and Northern
      Ireland to bear its own costs.
                                                                             (1) OJ C 397 of 19.12.1998.
(1) OJ C 340 of 7.11.1998.
                                                                                JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT
                                                                                (Third Chamber)
                            (Fifth Chamber)
                                                                                of 13 November 2001
                         of 25 October 2001
                                                                             in Case C-59/99: Commission of the European Communi-
in Case C-398/98: Commission of the European Communi-                        ties v Manuel Pereira Roldão & Filhos Ld.a, Instituto
                    ties v Hellenic Republic (1)                             Superior Técnico and King, Taudevin & Gregson (Hold-
                                                                                ings) Ltd (1)
(Failure by a Member State to fulfil its obligations —
Article 30 of the EC Treaty (now, after amendment, Article                   (Arbitration clause — Reimbursement of advance payments
28 EC) — Obligation to maintain minimum stocks of                            made under a contract terminated by the Commission for
                         petroleum products)                                                           non-performance)
                              (2002/C 3/05)                                                               (2002/C 3/06)
                     (Language of the case: Greek)                                             (Language of the case: Portuguese)
(Provisional translation; the definitive translation will be published       (Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                               in the European Court Reports)
In Case C-398/98: Commission of the European Communities                     In Case C-59/99: Commission of the European Communities
(Agents: D. Triantafyllou and O. Couvert-Castéra) v Hellenic                 (Agents: initially F. de Sousa Fialho and O. Couvert-Castéra,


title: Case T -338/05: Order of the Court of First Instance of  9 December 2005  — Raymond Claudel v Court of Auditors

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/44

         Order of the Court of First Instance of 9 December 2005 — Raymond Claudel v Court of Auditors
   (Case T -338/05) (1)

   (2006/C 48/82)

      Language of the case: French

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

      (1)  OJ C 296 of 26.11.2005.


title: Case C-321/10: Action brought on 5 July 2010 — European Commission v Kingdom of Belgium

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/28

         Action brought on 5 July 2010 — European Commission v Kingdom of Belgium
   (Case C-321/10)
   ()
   2010/C 246/47
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: A. Alcover San Pedro and J. Sénéchal, Agents)

      Defendant: Kingdom of Belgium

      Form of order sought

               —

               Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), (1) or in any event by not communicating such measures to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

               —

               order the Kingdom of Belgium to pay the costs.

      Pleas in law and main arguments

   The period prescribed for transposing Directive 2007/2/EC expired on 14 May 2009. As at the date on which the present action was brought, the defendant had not yet adopted all the measures necessary to transpose the directive or, in any event, had not communicated those measures to the Commission.

      (1)  OJ 2007 L 108, p. 1.


title: Judgment of the Court (Second Chamber) 21 February 2002 in Case C-65/00: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil obligations ﾔ Environment — Hazardous waste — Directives 75/442/EEC and 91/689/EEC)

text:
C 109/8                  EN                        Official Journal of the European Communities                                              4.5.2002
the Convention of 27 September 1968 on Jurisdiction and the                         Failing other criteria, that will be the place where the employee
Enforcement of Judgments in Civil and Commercial Matters                            has worked the longest.
by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that                           It will only be otherwise if, in light of the facts of the case, the
court between Herbert Weber and Universal Ogden Services                            subject-matter of the dispute is more closely connected with a
Ltd, on the interpretation of Article 5(1) of the abovementioned                    different place of work, which would, in that case, be the
Convention of 27 September 1968 (OJ 1978 L 304, p. 36), as                          relevant place for the purposes of applying Article 5(1) of the
amended by the Convention of 9 October 1978 on the                                  convention.
Accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland (OJ 1978                              In the event that the criteria laid down by the Court of Justice
L 304, p. 1 and — amended version — p. 77), by the                                  do not enable the national court to identify the habitual place
Convention of 25 October 1982 on the Accession of the                               of work, as referred to in Article 5(1) of the convention, the
Hellenic Republic (OJ 1982 L 388, p. 1) and by the Convention                       employee will have the choice of suing his employer either in the
of 26 May 1989 on the Accession of the Kingdom of Spain                             courts for the place where the business which engaged him is
and the Portuguese Republic (OJ 1989 L 285, p. 1), the Court                        situated, or in the courts of the Contracting State in whose
(Sixth Chamber), composed of: F. Macken, President of the                           territory the employer is domiciled.
Chamber, N. Colneric, J.-P. Puissochet, R. Schintgen (Rapporte-
ur) and V. Skouris, Judges; F.G. Jacobs, Advocate General;                    3.    National law applicable to the main dispute has no bearing on
R. Grass, Registrar, has given a judgment on 27 February                            the interpretation of the concept of the place where an employee
2002, in which it has ruled:                                                        habitually works, within the meaning of Article 5(1) of the
                                                                                convention, to which the second question relates.
                                                                              (1) OJ C 122 of 29.4.2000.
1.    Work carried out by an employee on fixed or floating
      installations positioned on or above the part of the continental
      shelf adjacent to a Contracting State, in the context of the
      prospecting and/or exploitation of its natural resources, is to be
                                                                                JUDGMENT OF THE COURT
      regarded as work carried out in the territory of that State for the
      purposes of applying Article 5(1) of the Convention of
      27 September 1968 on Jurisdiction and the Enforcement of                                          (Second Chamber)
      Judgments in Civil and Commercial Matters, as amended by
      the Convention of 9 October 1978 on the Accession of the
      Kingdom of Denmark, Ireland and the United Kingdom of                                              21 February 2002
      Great Britain and Northern Ireland, the Convention of 25 Octo-
      ber 1982 on the Accession of the Hellenic Republic and the              in Case C-65/00: Commission of the European Communi-
      Convention of 26 May 1989 on the Accession of the Kingdom                                      ties v Italian Republic (1)
      of Spain and the Portuguese Republic.
                                                                              (Failure by a Member State to fulfil obligations — Environ-
                                                                              ment — Hazardous waste — Directives 75/442/EEC and
                                                                                91/689/EEC)
2.    Article 5(1) of that convention must be interpreted as meaning                                      (2002/C 109/12)
      that where an employee performs the obligations arising under
      his contract of employment in several Contracting States the                                  (Language of the case: Italian)
      place where he habitually works, within the meaning of that
      provision, is the place where, or from which, taking account of
      all the circumstances of the case, he in fact performs the essential    (Provisional translation; the definitive translation will be published
      part of his duties vis-à-vis his employer.                                                   in the European Court Reports)
                                                                              In Case C-65/00, Commission of the European Communities
      In the case of a contract of employment under which an                  (Agents: L. Ström and M.G. Bisogni) v Italian Republic (Agent:
      employee performs for his employer the same activities in more          U. Leanza): Application for a declaration that, by exempting
      than one Contracting State, it is necessary, in principle, to take      undertakings and establishments which carry out hazardous
      account of the whole of the duration of the employment                  waste recovery operations covered by Council Directive
      relationship in order to identify the place where the employee          91/689/EEC of 12 December 1991 on hazardous waste (OJ
      habitually works, within the meaning of Article 5(1).                   1991 L 377, p. 20) from the permit requirement laid down by
 ---pagebreak--- 4.5.2002                 EN                     Official Journal of the European Communities                                             C 109/9
Article 10 of Council Directive 75/442/EEC of 15 July 1975                 preliminary ruling in the proceedings pending before that
on waste (OJ 1975 L 194, p. 39), as amended by Council                     court between Caterina Insalaca and Office National des
Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78,                       Pensions (ONP), on the interpretation of Articles 46a and 46b
p. 32), without making such exemption conditional upon                     of Council Regulation (EEC) No 1408/71 of 14 June 1971 on
satisfaction of the requirements laid down by Article 3(2) of              the application of social security schemes to employed persons,
Directive 91/689, the Italian Republic has failed to fulfil its            to self-employed persons and to members of their families
obligations under Article 11 of Directive 75/442, as amended               moving within the Community, as amended and updated by
by Directive 91/156, and under Article 3 of Directive 91/689,              Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ
the Court (Second Chamber), composed of: N. Colneric,                      1983 L 230, p. 6), as amended by Council Regulation (EEC)
President of the Chamber, R. Schintgen and V. Skouris                      No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7), the
(Rapporteur), Judges; J. Mischo, Advocate General; R. Grass,               Court (Second Chamber), composed of: N. Colneric, President
Registrar, has given a judgment on 21 February 2002, in                    of the Chamber, R. Schintgen (Rapporteur) and V. Skouris,
which it:                                                                  Judges; P. Léger, Advocate General; H. von Holstein, Deputy
                                                                           Registrar, has given a judgment on 7 March 2002, in which it
1.    Declares that, by exempting undertakings and establishments          has ruled:
      which carry out hazardous waste recovery operations covered by
      Council Directive 91/689/EEC of 12 December 1991 on
      hazardous waste from the permit requirement laid down by
      Article 10 of Council Directive 75/442/EEC of 15 July 1975
      on waste, as amended by Council Directive 91/156/EEC of
      18 March 1991, without making such exemption conditional
      upon satisfaction of the requirements laid down by Article 3(2)      1.   The legislation of a Member State governing the calculation of
      of Directive 91/689, the Italian Republic has failed to fulfil its        a survival pension and establishing a restriction of the ceiling
      obligations under the combined provisions of Article 11 of                fixed for the overlapping of a retirement and a survivor’s pension
      Directive 75/442, as amended by Directive 91/156, and                     where the surviving spouse can claim a survivor’s pension
      Article 3 of Directive 91/689;                                            payable by another Member State is a provision on reduction
                                                                                within the meaning of Articles 46a and 46b of Council
2.    Orders the Italian Republic to pay the costs.                             Regulation (EEC) No 1408/71 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
(1) OJ C 135 of 13.5.2000.                                                      within the Community, as amended and updated by Council
                                                                                Regulation (EEC) No 2001/83 of 2 June 1983, as amended
                                                                                by Council Regulation (EEC) No 1248/92 of 30 April 1992.
                  JUDGMENT OF THE COURT                                    2.   Articles 46a and 46b of Regulation No 1408/71 of 14 June
                                                                                1971, as amended and updated by Regulation No 2001/83,
                         (Second Chamber)                                       as amended by Regulation No 1248/92, preclude the appli-
                                                                                cation of the legislation of a Member State containing a
                            7 March 2002                                        provision against overlapping under which a survivor’s pension
                                                                                received in that Member State must be reduced because of a
                                                                                survivor’s pension acquired in another Member State, where the
in Case C-107/00 (Reference for a preliminary ruling from                       benefits payable in application the legislation of the first
the Tribunal du Travail de Mons): Caterina Insalaca v                           Member State are less favourable than those determined in
             Office national des pensions (ONP) (1)                             application of Article 46 of that regulation.
(Social security — Articles 46 to 46c of Regulation (EEC)
No 1408/71 — National rules against overlapping —
                     Benefits of the same kind)
                           (2002/C 109/13)
                                                                           (1) OJ C 149 of 27.5.2000.
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
In Case C-107/00: Reference to the Court under Article 234
EC by the Tribunal du Travail de Mons (Belgium) for a


title: Case C-203/08: Judgment of the Court (Second Chamber) of 3 June 2010 (reference for a preliminary ruling from the Raad van State (Netherlands)) — The Sporting Exchange Ltd, trading as Betfair v Minister van Justitie (Article 49 EC — Restrictions on the freedom to provide services — Games of chance — Offer of games of chance via the internet — Legislation reserving a licence to a single operator — Renewal of licence without subjecting the matter to competition — Principle of equal treatment and obligation of transparency — Application in the field of games of chance)

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/4

         Judgment of the Court (Second Chamber) of 3 June 2010 (reference for a preliminary ruling from the Raad van State (Netherlands)) — The Sporting Exchange Ltd, trading as Betfair v Minister van Justitie
   (Case C-203/08) (1)

   (Article 49 EC - Restrictions on the freedom to provide services - Games of chance - Offer of games of chance via the internet - Legislation reserving a licence to a single operator - Renewal of licence without subjecting the matter to competition - Principle of equal treatment and obligation of transparency - Application in the field of games of chance)
   2010/C 209/05
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicant: The Sporting Exchange Ltd, trading as Betfair

      Defendant: Minister van Justitie

      Intervening party: Stichting de Nationale Sporttotalisator

      Re:

   Reference for a preliminary ruling — Raad van State — Interpretation of Article 49 EC — National legislation prohibiting the unlicensed organisation of gaming and collection of bets and reserving a licence to one single operator in order to safeguard social wellbeing and public health — Refusal to issue a licence to an (internet) operator which is already licensed in other Member States, including the Member State in which it has its registered office — Renewal of such a licence without subjecting the matter to competition — Overriding reasons in the public interest

      Operative part of the judgment

               1.

               Article 49 EC must be interpreted as not precluding legislation of a Member State, such as the legislation at issue in the main proceedings, under which exclusive rights to organise and promote games of chance are conferred on a single operator, and which prohibits any other operator, including an operator established in another Member State, from offering via the internet services within the scope of that regime in the territory of the first Member State.

               2.

               Article 49 EC must be interpreted as meaning that the principle of equal treatment and the consequent obligation of transparency are applicable to procedures for the grant of a licence to a single operator or for the renewal thereof in the field of games of chance, in so far as the operator in question is not a public operator whose management is subject to direct State supervision or a private operator whose activities are subject to strict control by the public authorities.

      (1)  OJ C 197, 2.8.2008.


title: Case C-91/06: Order of the President of the Fifth Chamber of the Court of 30 January 2007 — Commission of the European Communities v Republic of Austria

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/27

         Order of the President of the Fifth Chamber of the Court of 30 January 2007 — Commission of the European Communities v Republic of Austria
   (Case C-91/06) (1)

   (2007/C 82/53)

      Language of the case: German

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

      (1)  OJ C 96, 22.4.2006.


title: Case T-34/07: Action brought on 7 February 2007 — Goncharov v OHIM — DSB (DSBW)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/43

         Action brought on 7 February 2007 — Goncharov v OHIM — DSB (DSBW)
   (Case T-34/07)
   (2007/C 82/92)
   Language in which the application was lodged: German
   Parties

      Applicant: Karen Goncharov (Moscow, Russian Federation) (represented by: G. Hasselblatt und A. Späth, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: DSB (Copenhagen, Denmark)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trademarks and Designs) (OHIM) of 4 December 2006 (Case R 1330/2005-2);

               —

               Order OHIM to pay its own costs and those of the applicant;

               —

               Order DSB, should it intervene in the proceedings, to pay its own costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: Karen Goncharov.

      Community trade mark concerned: The word mark DSBW for services in Classes 39, 41, 43 and 44 (Application No 2 852 143).

      Proprietor of the mark or sign cited in the opposition proceedings: DSB

      Mark or sign cited in opposition: The word mark DSB (Community trade mark No 2 292 290) for services in Classes 35-37, 39, 41 and 42, whereas the opposition was directed against registration in Classes 39, 41 and 43.

      Decision of the Opposition Division: Rejection of Opposition.

      Decision of the Board of Appeal: Annulment of the contested decision and grant of the appeal.

      Pleas in law: The Board of Appeal wrongly finds that the registration of the mark DSBW is precluded by Article 8(1) (b) of Regulation 40/94; (1) there is no likelihood of confusion between the opposing marks.

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


title: Case T-118/08: Judgment of the General Court of 15 June 2010 — Actega Terra v OHIM (TERRAEFFEKT matt & gloss) (Community trade mark — Application for the Community word mark TERRAEFFEKT matt & gloss — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/33

         Judgment of the General Court of 15 June 2010 — Actega Terra v OHIM (TERRAEFFEKT matt & gloss)
   (Case T-118/08) (1)

   (Community trade mark - Application for the Community word mark TERRAEFFEKT matt & gloss - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))
   2010/C 209/48
   Language of the case: German

      Parties

      Applicant: Actega Terra GmbH (Lehrte, Germany) (represented by: A. Andorfer-Erhard, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: S. Schnäffner, Agent)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 7 January 2008 (Case R 1467/2007-1) concerning an application for registration of the word sign TERRAEFFEKT matt & gloss as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Actega Terra GmbH to pay the costs.

      (1)  OJ C 107, 26.4.2008.


title: Case C-456/09: Reference for a preliminary ruling from the Juzgado Contencioso Administrativo n o 3 de Pontevedra (Spain) lodged on 23 November 2009 — Ana María Iglesias Torres v Consejería de Educación de la Junta de Galicia

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/34

         Reference for a preliminary ruling from the Juzgado Contencioso Administrativo no 3 de Pontevedra (Spain) lodged on 23 November 2009 — Ana María Iglesias Torres v Consejería de Educación de la Junta de Galicia
   (Case C-456/09)
   2010/C 24/62
   Language of the case: Spanish

      Referring court

   Juzgado Contencioso Administrativo No 3 de Pontevedra

      Parties to the main proceedings

      Applicant: Ana María Iglesias Torres

      Defendant: Consejería de Educación de la Junta de Galicia

      Questions referred

               1.

               Is Directive 1999/70/EC (1) applicable to interim staff of the Autonomous Community of Galicia?

               2.

               Is it possible to regard Article 25(2) of Law 7/2007 as a national provision transposing Directive 1999/70/EC when there is no reference to Community legislation in that Law?

               3.

               In the event that the reply to the second question is affirmative: must Article 25(2) EBEP be defined as a national provision transposing the directive, of the kind referred to in point 4 of the operative part of the judgment of the Court of Justice in Case C-268/06 (Impact), (2) or is the Spanish State required to give retroactive effect to remuneration arising from the three-yearly increments which it has recognised in accordance with the Directive?

               4.

               In the event that the reply to the second question is negative: is it possible to apply Directive 1999/70/EC directly to the case in the terms set out in the judgment of the Court of Justice in Del Cerro Alonso? (3)

      (1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

      (2)  Case C-268/06 Impact [2008] ECR I-2483.

      (3)  Case C-307/05 Del Cerro Alonso [2007] ECR I-7109.


title: Action brought on 20 August 1998 by Hewlett Packard Europe BV against the Commission of the European Communities (Case T-134/98)

text:
21.11.98              EN                 Official Journal of the European Communities                                  C 358/17
In particular, it emphasizes that the attempt to ascribe to         Pleas in law and main arguments adduced in support:
local area networks a function which is peculiar to
telecommunications is based on an excessively broad
interpretation of the concept of telecommunications. In its         The applicant contests the revocation of certain binding
view, the chief characteristic of telecommunications                tariff information concerning various machines having the
equipment is that it enables data to be transmitted over            functions of commutators and intended for use in local
unlimited distances; consequently, it is radically different        area networks.
from that used in local area networks. Moreover, that
difference in terms of distance is directly linked to a             The pleas in law and main arguments are the same as
functional difference. Transmissions within a local area            Case T-133/98 Hewlett Packard France v. Commission.
network are extremely rapid; such rapidity is technically
possible over short distances only. With long-distance
telecommunications, by contrast, the maximum speed of
transmission is very much slower.
The applicant further claims that the equipment in                  Action brought on 7 September 1998 by the
question simultaneously fulfils the three conditions which,         Amministrazione Autonoma dei Monopoli di Stato against
according to Note 5(B) of Chapter 84, must be met in                       the Commission of the European Communities
order for a unit to be regarded as forming part of a
complete system, and that it thus falls, in accordance with                               (Case T-139/98)
Note 5(C), within the scope of heading No 84.71: it                                        (98/C 358/34)
constitutes equipment of the type used exclusively in
automatic data processing systems, is connectable to the
central processing unit through the local area network or                          (Language of the case: Italian)
networks and is also able to accept data in a form which
can be used by the system.                                          An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 7 September
                                                                    1998 by the Amministrazione Autonoma dei Monopoli di
                                                                    Stato (Autonomous Administration of State Monopolies),
                                                                    represented by Pier Giorgio Ferri and Danilo Del Gaizo,
                                                                    of the Avvocatura Generale dello Stato, with an address
Action brought on 20 August 1998 by Hewlett Packard
                                                                    for service in Luxembourg at the Italian Embassy, 5 rue
Europe BV against the Commission of the European
                                                                    Marie-Adelaïde.
                         Communities
                       (Case T-134/98)
                                                                    The applicant claims that the Court should:
                        (98/C 358/33)
                                                                    Ð annul the contested decision, pursuant to the form of
               (Language of the case: French)                           order sought under Heading B (point 8 et seq.);
An action against the Commission of the European                    Ð in the alternative, annul that part of the decision
Communities was brought before the Court of First                       challenged in the remaining forms of order, and
Instance of the European Communities on 20 August                       accordingly reduce the scale of the fine imposed;
1998 by Hewlett Packard Europe BV, the registered office
of which is at Amstelveen (Netherlands), represented by
Fabrice Goguel and Anne Trager, of the Paris Bar, with an           Ð order the Commission to pay the costs.
address for service in Luxembourg at the Chambers of
Aloyse May, 31 Grand-rue.                                           Pleas in law and main arguments adduced in support:
The applicant claims that the Court should:                         The applicant in the present case (the AAMS') is a body
                                                                    forming part of the Amministrazione Finanziaria dello
Ð annul Commission Decision 98/406/EC of 16 June                    Stato Italiano (Financial Administration of the Italian
    1998, published on pages 45 and 46 of the Official              State), which, in addition to performing various
    Journal of the European Communities of 23 June                  administrative functions, is also involved in the production
    1998, in so far as it requires the revocation of Binding        and wholesale distribution of processed tobacco products.
    Tariff Information Nos FR 12030199701394,                       Through the contested decision (1), the defendant cast
    12030199702134 and 12030199702135, which had                    doubt on the compatibility with Article 86 of the EC
    correctly classified the machines in issue under heading        Treaty of certain conduct by the applicant organisation in
    8471.80.10;                                                     relation to a number of clauses in the standard-form
                                                                    contract for the distribution of cigarettes of other
                                                                    manufacturing undertakings and in relation to certain
Ð order the Commission to pay all the costs.                        unilateral steps taken in regard to imported cigarettes and


title: Case T-38/11: Judgment of the General Court of 16 December 2015 — Cathay Pacific Airways v Commission (Competition — Agreements, decisions and concerted practices — European airfreight market — Agreements and concerted practices in respect of several elements of the pricing of airfreight services (imposition of fuel and security surcharges, refusal to pay commission on surcharges) — Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and Switzerland on Air Transport — Obligation to state reasons)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/32

         Judgment of the General Court of 16 December 2015 — Cathay Pacific Airways v Commission
   (Case T-38/11) (1)

   ((Competition - Agreements, decisions and concerted practices - European airfreight market - Agreements and concerted practices in respect of several elements of the pricing of airfreight services (imposition of fuel and security surcharges, refusal to pay commission on surcharges) - Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and Switzerland on Air Transport - Obligation to state reasons))
   (2016/C 048/36)
   Language of the case: English

      Parties

      Applicant: Cathay Pacific Airways Ltd (Queensway, Hong Kong, China) (represented initially by D. Vaughan QC, R. Kreisberger, Barrister, B. Bar-Bouyssiere, lawyer, and M. Rees, Solicitor, then by D. Vaughan, R. Kreisberger and M. Rees)

      Defendant: European Commission (represented initially by S. Noë, N. von Lingen and J. Bourke, and subsequently by A. Dawes, acting as Agents, and by J. Holmes, Barrister)

      Re:

   Application for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 — Airfreight), in so far as it concerns the applicant, and, in the alternative, for a reduction in the fine imposed on the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls Articles 2, 3 and 5 of Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 — Airfreight), in so far as they concern Cathay Pacific Airways Ltd;

               2.

               Orders the European Commission to bear its own costs and to pay those of Cathay Pacific Airways.

      (1)  OJ C 72, 5.3.2011.


title: Case C-41/07: Action brought on 1 February 2007 — Commission of the European Communities v Portuguese Republic

text:
               24.3.2007

               EN

               Official Journal of the European Union

               C 69/9

         Action brought on 1 February 2007 — Commission of the European Communities v Portuguese Republic
   (Case C-41/07)
   (2007/C 69/19)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by: A. Caeiros and B. Stromsky, acting as Agents)

      Defendant: Portuguese Republic
   Form of order sought

               —

               principally, a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/28/EC (1) of 8 April 2005 laying down principles and detailed guidelines for good clinical practice as regards investigational medicinal products for human use, as well as the requirements for authorisation of the manufacturing or importation of such products, the Portuguese Republic has failed to fulfil its obligations under Article 31 of that directive;

               —

               or, a declaration that, by failing in any event to communicate those provisions to the Commission of the European Communities, the Portuguese Republic has failed to fulfil its obligations under that directive;

               —

               an order that the Portuguese Republic should pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposition into domestic law of that directive expired on 29 January 2006.

      (1)  OJ L 91, 2005, p. 13.


1.5.1999               EN                  Official Journal of the European Communities                                 C 121/15
       Removal from the register of Case C-373/96 (1)                        Removal from the register of Case C-220/97 (1)
                        (1999/C 121/31)                                                      (1999/C 121/34)
By order of 3 February 1999 the President of the Court of             By order of 11 February 1999 the President of the Court of
Justice of the European Communities has ordered he removal            Justice of the European Communities has ordered the removal
from the register of Case C-373/96 (reference for a preliminary       from the register of Case C-220/97: Commission of the
ruling from the Tribunale di Trento): Ministero delle Finanze         European Communities v. Federal Republic of Germany.
v. Merkur Chemical Srl.
(1) OJ C 40, 8.2.1997.                                                (1) OJ C 252, 16.8.1997.
       Removal from the register of Case C-98/97 (1)
                        (1999/C 121/32)                                      Removal from the register of Case C-394/98 (1)
By order of 3 February 1999 the President of the Court of                                    (1999/C 121/35)
Justice of the European Communities has ordered he removal
from the register of Case C-98/97 (reference for a preliminary        By order of 11 February 1999 the President of the Court of
ruling from the Tribunale Civile e Penale di Torino): CIF Srl v.      Justice of the European Communities has ordered the removal
Ministero delle Finanze.                                              from the register of Case C-394/98: Commission of the
                                                                      European Communities v. Kingdom of Belgium.
(1) OJ C 142, 10.5.1997.
                                                                      (1) OJ C 1, 4.1.1999.
       Removal from the register of Case C-72/98 (1)
                        (1999/C 121/33)
                                                                             Removal from the register of Case C-395/98 (1)
By order of 3 February 1999 the President of the Court of
Justice of the European Communities has ordered he removal
from the register of Case C-72/98 (reference for a preliminary                               (1999/C 121/36)
ruling from the Tribunal de Grande Instance, Lyon): SA
Gougenheim Imprimerie Publicité v. Directeur des Services             By order of 11 February 1999 the President of the Court of
Fiscaux du Rhône.                                                     Justice of the European Communities has ordered the removal
                                                                      from the register of Case C-395/98: Commission of the
(1) OJ C 151, 16.5.1998.                                              European Communities v. Kingdom of Belgium.
                                                                      (1) OJ C 397, 19.12.1998.


title: Judgment of the Court of 17 September 2002 in Case C-253/00 (Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division): Antonio Muñoz y Cia SA, Superior Fruiticola SA v Frumar Ltd, Redbridge Produce Marketing Ltd (Agriculture — Regulation (EC) No 2200/96 — Quality standards for varieties of table grapes — Legal obligations of operators marketing table grapes within the Community — Right of an operator to seek enforcement of those obligations in civil proceedings)

text:
C 274/10                 EN                       Official Journal of the European Communities                                          9.11.2002
3.    If it is demonstrated that there is in fact a risk to public health    Regulation (EEC) No 1035/72 of the Council of 18 May 1972
      arising from the coexistence of two versions of the same               and Council Regulation (EC) No 2200/96 of 28 October 1996 on
      medicinal product on the market in a Member State such a risk          the common organisation of the market in fruit and vegetables are to
      may justify restrictions on the importation of the old version of      be interpreted as meaning that compliance with the provisions on
      the medicinal product in consequence of the withdrawal of the          quality standards applicable to fruit or vegetables must be capable of
      marketing authorisation of reference by the holder thereof in          enforcement by means of civil proceedings instituted by a trader
      relation to that market.                                               against a competitor.
( 1) OJ C 211 of 22.7.2000.                                                  (1 ) OJ C 247 of 26.8.2000.
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                      of 17 September 2002                                                            (Sixth Chamber)
in Case C-253/00 (Reference for a preliminary ruling from                                          of 24 September 2002
the Court of Appeal (England & Wales) (Civil Division):
Antonio Muñoz y Cia SA, Superior Fruiticola SA v Frumar
            Ltd, Redbridge Produce Marketing Ltd ( 1)
                                                                             in Case C-255/00 (Reference for a preliminary ruling from
                                                                             the Tribunale di Trento): Grundig Italiana SpA v Ministero
                                                                                delle Finanze ( 1)
(Agriculture — Regulation (EC) No 2200/96 — Quality
standards for varieties of table grapes — Legal obligations
of operators marketing table grapes within the Community
— Right of an operator to seek enforcement of those                          (Internal taxes contrary to Community law — Recovery of
                  obligations in civil proceedings)                          sums paid but not due — National legislation retroactively
                                                                             reducing time-limits for bringing proceedings — Compati-
                                                                                bility with the principle of effectiveness)
                           (2002/C 274/15)
                                                                                (2002/C 274/16)
                    (Language of the case: English)
                                                                                (Language of the case: Italian)
In Case C-253/00: Reference to the Court under Article 234                   (Provisional translation; the definitive translation will be published
EC by the Court of Appeal of England and Wales (Civil                                           in the European Court Reports)
Division) for a preliminary ruling in the proceedings pending
before that court between Antonio Muñoz y Cia SA, Superior
Fruiticola SA and Frumar Ltd, Redbridge Produce Marketing
Ltd, on the interpretation of Regulation (EEC) No 1035/72 of
the Council of 18 May 1972 and Council Regulation (EC)                       In Case C-255/00: Reference to the Court under Article 234
No 2200/96 of 28 October 1996 on the common organisation                     EC by the Tribunale di Trento (Italy) for a preliminary ruling
of the market in fruit and vegetables (OJ, English Special                   in the proceedings pending before that court between Grundig
Edition 1972 (II), p. 437, and OJ 1996 L 297, p. 1 respectively),            Italiana SpA and Ministero delle Finanze, on the interpretation
the Court, composed of: G.C. Rodríguez Iglesias, President,                  of the principles of Community law relating to the recovery of
P. Jann (Rapporteur), N. Colneric and S. von Bahr, (Presidents               sums paid but not due, the Court (Sixth Chamber), composed
of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola,                      of: F. Macken, President of the Chamber, C. Gulmann,
J.-P. Puissochet, R. Schintgen, J.N. Cunha Rodrigues and                     J.-P. Puissochet (Rapporteur), R. Schintgen and J.N. Cunha
C.W.A. Timmermans, Judges; L.A. Geelhoed, Advocate Gen-                      Rodrigues, Judges; D. Ruíz-Jarabo Colomer, Advocate General;
eral; R. Grass, Registrar, has given a judgment on 17 September              R. Grass, Registrar, has given a judgment on 24 September
2002, in which it has ruled:                                                 2002, in which it has ruled:


title: Case C-135/12: Action brought on 9 March 2012 — European Commission v Republic of Poland

text:
               28.4.2012

               EN

               Official Journal of the European Union

               C 126/10

         Action brought on 9 March 2012 — European Commission v Republic of Poland
   (Case C-135/12)
   2012/C 126/19
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: Z. Maluskova and D. Milanowska, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

               —

               declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Commission Directive 2009/145/EC of 26 November 2009 providing for certain derogations, for acceptance of vegetable landraces and varieties which have been traditionally grown in particular localities and regions and are threatened by genetic erosion and of vegetable varieties with no intrinsic value for commercial crop production but developed for growing under particular conditions and for marketing of seed of those landraces and varieties, (1) and in any event by not informing the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 36 of that directive;

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   The time-limit for transposition of the directive expired on 31 December 2010.

      (1)  OJ 2009 L 312, p. 44.


title: Case T-575/13: Action brought on 30 October 2013 — Lesaffre et Compagnie v OHIM — Louis Baking Company (BAKING CENTER BY TECHNOLINE)

text:
               1.2.2014

               EN

               Official Journal of the European Union

               C 31/11

         Action brought on 30 October 2013 — Lesaffre et Compagnie v OHIM — Louis Baking Company (BAKING CENTER BY TECHNOLINE)
   (Case T-575/13)
   2014/C 31/20
   Language in which the application was lodged: French

      Parties

      Applicant: Lesaffre et Compagnie (Paris, France) (represented by: T. De Haan and P. Péters, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Louis Baking Company, SL (Girona, Spain)

      Form of order sought

               —

               Annul in its entirety the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 August 2013 in Case R 2333/2012-4; and

               —

               Order OHIM to pay the costs incurred by Lesaffre in the proceedings before the General Court and before the Fourth Board of Appeal.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Louis Baking Company, SL

      Community trade mark concerned: Coloured figurative mark containing the word elements ‘BAKING CENTER By TECHNOLINE’ for goods and services in Classes 30, 35 and 42 — Application for Community trade mark No 9 195 793

      Proprietor of the mark or sign cited in the opposition proceedings: Applicant

      Mark or sign cited in opposition: French mark ‘BAKING CENTER’ for services in Class 41

      Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-327/06: Action brought on 26 July 2006 — Commission of the European Communities v Italian Republic

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/29

         Action brought on 26 July 2006 — Commission of the European Communities v Italian Republic
   (Case C-327/06)
   (2006/C 224/55)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: J. Enegren and L. Pignataro, Agents)

      Defendant: Italian Republic
   Form of order sought

               —

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC (1) establishing a general framework for informing and consulting employees in the European Community or, in any event, by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under Article 11 of that directive;

               —

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposition of the directive expired on 23 March 2005.

      (1)  OJ L 80, 23.3.2002, p. 29.