title: Case T-566/08: Action brought on 17 December 2008 — Total Raffinage Marketing v Commission

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/38

         Action brought on 17 December 2008 — Total Raffinage Marketing v Commission
   (Case T-566/08)
   (2009/C 55/69)
   Language of the case: French
   Parties

      Applicant: Total Raffinage Marketing SA (Puteaux, France) (represented by: A. Vandencasteele, C. Falmagne, C. Lemaire and S. Naudin, lawyers)

      Defendant: Commission of the European Communities
   Forms of order sought

               —

               annul, in part, Articles 1 and 2 of Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle waxes);

               —

               very substantially reduce the amount of the fine imposed on Total R.M. by Article 2 of that decision;

               —

               order the Commission to pay all of the costs.

         Pleas in law and main arguments
   By its present action, the applicant seeks the annulment, in part, of Commission Decision C(2008) 5476 final of 1 October 2008 in Case COMP/39.181 — Candle waxes, in which the Commission found that certain undertakings, including the applicant, infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area, by price-fixing and sharing markets in paraffin waxes in the European Economic Area (EEA), and slack wax in Germany.
   In support of its action, the applicant puts forward 11 pleas in law alleging infringement of: Article 81 EC; the duty to state reasons; the 2006 Guidelines on the method of setting fines (1); and the principles of proportionality, the presumption of innocence, legal certainty, equal treatment and that the penalty should fit the offence, in that the Commission:

               —

               held that the practices relating to waxes and paraffin, on the one hand, and to slack wax, on the other, constituted a single and continuous infringement, and held the practices in relation to slack wax to be an agreement;

               —

               wrongly found a single and continuous infringement consisting of an agreement for price-fixing; market and/or customer sharing, even if it was merely an exchange of information concerning the state of the paraffin market; prices and future strategies in relation to tariffs; the customers and the volumes which could be attributed to the applicant;

               —

               first, misinterpreted the Community case-law on undertakings publicly distancing themselves by holding the applicant responsible for the entire duration of the wax and paraffin aspect of the cartel, although the applicant had ceased to participate in ‘technical meetings’ after the meeting of 11 and 12 May 2004, that is to say, nearly one year before the end of the infringement and, second, allowed the intended withdrawal of Repsol from the cartel before the end of the infringement, and not that of the applicant, although the applicant was in an equivalent situation;

               —

               required the applicant to prove that it publicly distanced itself from the cartel;

               —

               did not take account of the applicant's failure to implement the cartel;

               —

               used the value of sales from the last three financial years in which the applicant had participated in the cartel, instead of the value of sales for the last year in which it had participated;

               —

               found a percentage of the value of sales for the slack wax aspect of the infringement which was too high;

               —

               applied the method for setting the fine laid down in point 24 of the Guidelines which is contrary to Article 23(3) of Regulation No 1/2003 and to the principles of proportionality, equal treatment and presumption of innocence;

               —

               applied an additional amount for deterrent effect without, however, providing sufficient reasons for that;

               —

               imposed a fine representing 410 % of the turnover obtained in one year by the applicant on the relevant market;

               —

               held the parent company, Total SA, responsible for the applicant's behaviour.

      (1)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).


title: Case T-408/09: Action brought on 8 October 2009 — ancotel v OHIM — Acotel (ancotel)

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/33

         Action brought on 8 October 2009 — ancotel v OHIM — Acotel (ancotel)
   (Case T-408/09)
   2009/C 312/55
   Language in which the application was lodged: German

      Parties

      Applicant: ancotel GmbH (Frankfurt am Main, Germany) (represented by: H. Truelsen, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Acotel SpA (Rome, Italy)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 19 June 2009 in Case R 1385/2008 1;

               —

               Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: ancotel

      Community trade mark concerned: the figurative mark ‘ancotel’ for services in Classes 35 and 38 (Application No 3 314 424)

      Proprietor of the mark or sign cited in the opposition proceedings: Acotel SpA

      Mark or sign cited in opposition: in particular the Italian figurative mark No 643 751 and the Community figurative mark No 1 442 268‘ACOTEL’ for goods and services in Classes 9 and 38

      Decision of the Opposition Division: Opposition upheld in part

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), since there is no likelihood of confusion between the trade marks at issue

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case T-443/12: Action brought on 5 October 2012 — ancotel v OHIM — Acotel (ancotel.)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/25

         Action brought on 5 October 2012 — ancotel v OHIM — Acotel (ancotel.)
   (Case T-443/12)
   2012/C 379/44
   Language in which the application was lodged: German

      Parties

      Applicant: ancotel GmbH (Frankfurt am Main, Germany) (represented by: H. Truelsen, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Acotel SpA (Rome, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2012 in Case R 1895/2011-4 (ex R 1385/2008-1);

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the figurative mark, containing the word element ‘ancotel’, for services in Classes 35 and 38 — Community trade mark application No 3 314 424

      Proprietor of the mark or sign cited in the opposition proceedings: Acotel SpA

      Mark or sign cited in opposition: the national and Community figurative mark, containing the word element ‘ACOTEL’, for goods and services in Classes 9 and 38

      Decision of the Opposition Division: the opposition was upheld in part

      Decision of the Board of Appeal: the appeal was dismissed

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


title: Case C-326/01 P: Appeal brought on 29 August 2001 (by fax on 27 August 2001) by Telefon & Buch Verlagsgesellschaft mbH, against the judgment delivered on 14 June 2001 by the Fourth Chamber of the Court of First Instance of the European Communities in Joined Cases T-357/99 and T-358/99 between Telefon & Buch VerlagsgmbH and the Office for Harmonisation in the Internat Market (Trade Marks and Designs) (OHIM)

text:
C 317/12              EN                     Official Journal of the European Communities                                       10.11.2001
     meaning of Article 1(1) of that directive, including the           Action brought on 24 August 2001 by Commission of the
     exercise of the powers referred to in Article 2(1)(c)                    European Communities against Italian Republic
     thereof, is precluded from dismissing an application by a
     tenderer that is indirectly aimed at obtaining damages,                                       (Case C-323/01)
     where the contract award procedure is already tainted by
     a material legal infringement attributable to a decision
     taken by the contracting authority, other than the decision                                   (2001/C 317/20)
     being contested by that tenderer, on the ground that if
     the contested decision had not been taken the tenderer             An action against the Italian Republic was brought before the
     would none the less have been harmed for other reasons?            Court of Justice of the European Communities on 24 August
                                                                        2001 by the Commission of the European Communities,
3.   If Question 1 is answered in the negative: Is Council              represented by Richard Wainwright and Roberto Amorosi,
     Directive 93/36/EEC (2) of 14 June 1993 coordinating               acting as Agents.
     procedures for the award of public supply contracts, in
     particular Articles 15 to 26 thereof, to be interpreted as         The applicant claims that the Court should:
     prohibiting a public contracting authority conducting
     contract award procedures from taking account of refer-            1.    Declare that, by failing to adopt and bring into force
     ences relating to the products offered by tenderers not as               within the prescribed period the laws, regulations or
     proof of the tenderers’ suitability but to satisfy an award              administrative provisions necessary to comply with Com-
     criterion, such that the fact that those references are given            mission Directive 98/101/EC (1) of 22 December 1998
     a negative evaluation would not exclude the tenderer                     adapting to technical progress Council Directive
     from the contract award procedure but would merely                       91/157/EEC (2) on batteries and accumulators containing
     result in the tender receiving a lower evaluation, for                   certain dangerous substances, the Italian Republic has
     example under a points system in which a poor evaluation                 failed to fulfil its obligations under that directive;
     of references might be offset by a lower price?
                                                                        2.    Order the Italian Republic to pay the costs.
4.   If Questions 1 and 3 are answered in the negative: Is it
     compatible with the relevant provisions of Community
     law, including Article 26 of Directive 93/36/EEC, the
     principle of equal treatment and the obligations of the            Pleas in law and main arguments
     Communities under international law for an award
     criterion to provide that product references are to be             The mandatory nature of the provisions of the third paragraph
     evaluated on the basis of the number of references alone,          of Article 249 and the first paragraph of Article 10 of the EC
     there being no substantive examination as to whether               Treaty requires Member States to adopt the measures necessary
     contracting authorities’ experiences of the product have           to transpose directives addressed to them into their domestic
     been good or bad, and, moreover, that only references              law before the expiry of the period prescribed for doing so.
     from the geographical area comprising the part of the              That period expired on 1 January 2000 without Italy having
     Alps within the European Union are to be taken into                brought into force the necessary provisions.
     account?
                                                                        (1) OJ 1999 L 1, p. 1.
5.   Is it compatible — with Community law, in particular               (2) OJ 1991 L 78, p. 38.
     the principle of equal treatment, for an award criterion to
     permit opportunities to inspect examples of the subject
     of the invitation to tender to receive a positive evaluation
     only if available within a 300 kilometre radius of the
     authority issuing the invitation to tender?
6.   If Question 3 is answered in the affirmative, or Question 4        Appeal brought on 29 August 2001 (by fax on 27 August
     or 5 answered in the negative: Is Article 2(1)(c) of               2001) by Telefon & Buch Verlagsgesellschaft mbH, against
     Directive 89/665/EEC, if necessary considered in conjunc-          the judgment delivered on 14 June 2001 by the Fourth
     tion with other principles of Community law, to be                 Chamber of the Court of First Instance of the European
     interpreted as meaning that if the contracting authority’s         Communities in Joined Cases T-357/99 and T-358/99
     infringement consists in imposing an unlawful award                between Telefon & Buch VerlagsgmbH and the Office for
     criterion, the tenderer will be entitled to damages only if        Harmonisation in the Internat Market (Trade Marks and
     he can actually prove that, but for the unlawful award                                        Designs) (OHIM)
     criterion, he would have submitted the best tender?
                                                                                (Case C-326/01 P)
(1) OJ 1989 L 395, p. 33.
                                                                                (2001/C 317/21)
(2) OJ 1993 L 199, p. 1.
                                                                        An appeal against the judgment delivered on 14 June 2001 by
                                                                        the Fourth Chamber of the Court of First Instance of the
 ---pagebreak--- 10.11.2001             EN                    Official Journal of the European Communities                                        C 317/13
European Communities in Joined Cases T-357/99 and                       Action brought on 31 August 2001 by the Commission
T-358/99 between Telefon & Buch VerlagsgmbH and the                             of the European Communities against Ireland
Office for Harmonisation in the Internat Market (Trade Marks
and Designs) (OHIM) was brought before the Court of Justice
of the European Communities on 29 August 2001 (by fax on                                         (Case C-327/01)
27 August 2001) by Telefon & Buch VerlagsgmbH, represented
by Dr Hans Georg Zeiner, Zeiner & Zeiner Chambers, Schil-                                        (2001/C 317/22)
linggasse 6, A-1010 Vienna.
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 31 August 2001 by
The appellant claims that the Court should:                             the Commission of the European Communities, represented
                                                                        by Mikko Huttunen, acting as agent, with an address for
                                                                        service in Luxembourg.
1.    set aside the judgment of the Court of First Instance of
      14 June 2001 in Joined Cases T-357/99 and T-358/99
      Telefon & Buch VerlagsgmbH v Office for Harmonisation             The Applicant claims that the Court should:
      in the Internat Market;
                                                                        (1) declare that by. failing to adopt the laws, regulations
2.    declare that the words UNIVERSALTELEFONBUCH and                         or administrative provisions necessary to comply with
      UNIVERSALKOMMUNIKATIONSVERZEICHNIS                       are            Council Directive 98/20/EC (1) of 30 March 1998
      capable of comprising European Community trade marks,                   amending Directive 92/14/EEC (2) on the limitation of the
      satisfy the requirements of Article 4 of Regulation                     operation of aeroplanes covered by Part II, Chapter 2,
      No 40/94 and are not merely descriptive within the                      Volume 1 of Annex 16 to the Convention on Inter-
      meaning of Article 7(1)(c) of that regulation;                          national Civil Aviation, second edition (1988) or, in any
                                                                              event, by failing to inform the Commission of those
                                                                              measures, Ireland has failed to fulfil its obligations under
3.    refer the case back to the Office for Harmonisation in the              that Directive;
      Internat Market for further consideration and decision,
      requiring it to follow the view as to the law of the Court
      of Justice of the European Communities;                           (2) order Ireland to pay the costs.
4.    order the Office for Harmonisation in the Internat Market
      to pay the costs of these proceedings.                            Pleas in law and main arguments
                                                                        The pleas in law and main arguments are analogous to those
                                                                        in Case C-323/01 (3); the time-limit for transposition expired
Pleas in law and main arguments                                         on 1 March 1999.
                                                                        (1) OJ L 107, 7.4.1998, p. 4.
Article 7(1)(c) of Council Regulation (EC) No 40/94 of                  (2) OJ L 76, 23.3.1992, p. 21.
20 December 1993 on the Community trade mark (1) has been               (3) See page 12 of this Official Journal.
infringed because it was interpreted too broadly and therefore
incorrectly: the neologisms at issue here, acknowledged by the
Court of First Instance as such, cannot be signs which are
subject to a requirement of availability. It would be an
interference with the creativity of economic operators to
reserve for commercial dealings words which have not yet
been used, or have not yet been used for certain goods or
services, and therefore clearly are also not needed for such            Action brought on 31 August 2001 by the Commission
dealings; that appears untenable on the basis of Regulation                     of the European Communities against Ireland
No 40/94. If the ground for excluding protection, contained
in Article 7(1)(c) of Regulation No 40/94, were interpreted as
broadly as the Court of First Instance has interpreted it in the                                 (Case C-328/01)
contested judgment, Article 12(b) of that regulation would be
superfluous.                                                                                (2001/C 317/23)
                                                                        An action against Ireland was brought before the Court of
(1) OJ L 11, 14.1.1994, p. 1.                                           Justice of the European Communities on 31 August 2001 by
                                                                        the Commission of the European Communities, represented
                                                                        by Mikko Huttunen, acting as agent, with an address for
                                                                        service in Luxembourg.


title: Case T-205/15: Action brought on 24 April 2015 — Aguirre and Company v OHIM — Puma (Representation of a sports shoe)

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/36

         Action brought on 24 April 2015 — Aguirre and Company v OHIM — Puma (Representation of a sports shoe)
   (Case T-205/15)
   (2015/C 205/49)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Aguirre and Company, SA. (Madrid, Spain) (represented by: M. Pomares Caballero and A. Pomares Caballero, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Puma SE (Herzogenaurach, Germany)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark representing a sports shoe —Community trade mark No 1050520-0001

      Contested decision: Decision of the Third Board of Appeal of OHIM of 20 January 2015 in Case R 696/2013-3

      Forms of order sought

   The applicant claims that the General Court should:

               —

               alter the contested decision so as to find that the ground of invalidity laid down in Article 25(1)(e) of Regulation No 6/2002 found by the Board of Appeal is not met in this case;

               —

               or, alternatively, annul the contested decision;

               —

               and, in any event, order OHIM to pay the costs and the costs of the applicant.

      Pleas in law

               —

               infringement of an essential procedural requirement in that the contested decision contained inconsistent statements with the result that it is insufficiently reasoned.

               —

               infringement of Article 25(1)(e) Regulation No 6/2002.

               —

               infringement of Article 63 of Regulation No 6/2002.


20.2.1999             EN                 Official Journal of the European Communities                                 C 48/21
The reduced rate for medicaments reimbursable by the                       Removal from the register of Case C-84/97 (1)
social security was applicable on 1 January 1991 but does                                  (1999/C 48/36)
not comply with Community law.
                                                                    By order of 27 October 1998 the Court of Justice of the
Such a rate specifically for reimbursable medicaments,              European Communities has ordered the removal from the
whereas another rate is applicable to other medicaments,            register of Case C-84/97 (reference for a preliminary
is contrary to the principle of uniformity of the tax in            ruling from the Corte d'Appello di Torino):
Article 12(3)(a) of the Sixth Directive.                            Amministrazione delle Finanze dello Stato v. Grafoplast
                                                                    SpA.
                                                                    (1) OJ C 131, 26.4.1997.
That specific rate is not, as the French Government
contends, based on objective criteria but on the legal
status of the products in question. Medicaments
reimbursable by the social security are not intrinsically
different from other medicaments.
                                                                          Removal from the register of Case C-305/96 (1)
(1) OJ L 145, 13.6.1977, p. 1.
                                                                                (1999/C 48/37)
                                                                    By order of 28 October 1998 the Court of Justice of the
                                                                    European Communities has ordered the removal from the
                                                                    register of Case C-305/96: United Kingdom and Northern
                                                                    Ireland v. Commission of the European Communities.
      Removal from the register of Case C-428/97 (1)
                                                                    (1) OJ C 370, 7.12.1996.
                        (1999/C 48/34)
By order of 20 October 1998, the President of the Court
of Justice of the European Communities ordered the
removal from the register of Case C-428/97 (Reference for                 Removal from the register of Case C-332/97 (1)
a preliminary ruling from the Bundesfinanzhof): Sarclad
                                                                                (1999/C 48/38)
International Ltd v. Bundesamt für Finanzen.
(1) OJ C 55, 20.2.1998.                                             By order of 28 October 1998, the President of the Court
                                                                    of Justice of the European Communities ordered the
                                                                    removal from the register of Case C-332/97: Commission
                                                                    of the European Communities v. Kingdom of Belgium.
                                                                    (1) OJ C 331, 1.11.1997.
      Removal from the register of Case C-178/96 (1)
                        (1999/C 48/35)
                                                                          Removal from the register of Case C-367/97 (1)
                                                                                (1999/C 48/39)
By order of 23 October 1998, the President of the Sixth
Chamber of the Court of Justice of the European
Communities ordered the removal from the register of
                                                                    By order of 28 October 1998, the President of the Court
Case C-178/96 (reference for a preliminary ruling from the
                                                                    of Justice of the European Communities ordered the
Tribunale Amministrativo Regionale per la Lombardia):
                                                                    removal from the register of Case C-367/97: Commission
Stefano Serbini v. Ministero del Commercio con l'Estero.
                                                                    of the European Communities v. Kingdom of the
                                                                    Netherlands.
(1) OJ C 197, 6.7.1997.
                                                                    (1) OJ C 370, 6.12.1997.


title: Case C-469/13: Request for a preliminary ruling from the Tribunale di Verona (Italy) lodged on 30 August 2013 — Shamim Tahir v Ministero dell’Interno and Questura di Verona

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/25

         Request for a preliminary ruling from the Tribunale di Verona (Italy) lodged on 30 August 2013 — Shamim Tahir v Ministero dell’Interno and Questura di Verona
   (Case C-469/13)
   2014/C 52/44
   Language of the case: Italian

      Referring court

   Tribunale di Verona

      Parties to the main proceedings

      Applicant: Shamim Tahir

      Defendants: Ministero dell’Interno, Questura di Verona

      Questions referred

               1.

               Is Article 7(1) of Directive 2003/109 (1) to be interpreted as meaning that the condition laid down in Article 4(1) of that directive, under which long-term residence status is dependent upon a person having resided legally and continuously in a Member State for five years, documentary evidence of which must be submitted when an application for a long-term residence permit is made, may also be satisfied by a person, other than the applicant, who has a family connection with the applicant for the purposes of Article 2(e) of the directive?

               2.

               Is the first sentence of Article 13 of Directive 2003/109 to be interpreted as meaning that one of the more favourable terms on which Member States may issue a ‘long-term resident’s EC residence permit’ of permanent or unlimited validity is that, where a person has already acquired long-term resident status, having satisfied the pre-condition laid down in Article 4(1) of that directive, under which legal and continuous residence in the Member State concerned for five years is required, members of that person’s family for the purposes of Article 2(e) of the directive are to be deemed also to have satisfied that condition, irrespective of the length of time for which they have resided in the national territory of the Member State in which the application is submitted?

      (1)  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).


title: Case T-283/14: Action brought on 30 April 2014  — Advansa and Others v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/35

         Action brought on 30 April 2014 — Advansa and Others v Commission
   (Case T-283/14)
   2014/C 223/39
   Language of the case: German

      Parties

      Applicants: Advansa GmbH (Hamm, Germany), Akzo Nobel Industrial Chemicals GmbH (Ibbenbüren, Germany), Aurubis AG (Hamburg, Germany), CABB GmbH (Gersthofen, Germany), CBW Chemie GmbH Bitterfeld-Wolfen (Bitterfeld-Wolfen, Germany), CFB Chemische Fabrik Brunsbüttel GmbH & Co. KG (Bitterfeld-Wolfen), Clariant Produkte (Deutschland) GmbH (Frankfurt am Main, Germany), Dow Olefinverbund GmbH (Schkopau, Germany), Dow Deutschland Anlagengesellschaft mbH (Stade, Germany), Dralon GmbH (Dormagen, Germany), Ems-Chemie (Neumünster) GmbH & Co. KG (Neumünster, Germany), Hahl Filaments GmbH (Munderkingen, Germany), ISP Marl GmbH (Marl, Germany), Messer Produktionsgesellschaft mbH Siegen (Bad Soden am Taunus, Germany), Messer Produktionsgesellschaft mbH Salzgitter (Bad Soden am Taunus), Nabaltec AG (Schwandorf, Germany), Siltronic AG (Munich, Germany), Trevira GmbH (Bobingen, Germany), Wacker Chemie AG (Munich, Germany) und Westfalen Industriegase GmbH (Münster, Germany) (represented by: C. Arhold, N. Wimmer, F. Wesche, L. Petersen and T. Woltering, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 to open the formal investigation procedure in State aid case SA.33995 (2013/C) (ex 2013/NN) — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on four pleas in law.

               1.

               First plea in law: Infringement of Articles 107(1) and 108 TFEU due to erroneous classification of the special compensation regime

                           —

                           The applicants claim that the opening decision infringes Articles 107(1) and 108 TFEU and Article 13(1) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) because the EEG-surcharge provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG) did not constitute an allocation of State resources and the reduction of the EEG-surcharge for energy-intensive users did not constitute a waiver of State resources.

                           —

                           The applicants state, in this context, that the Commission based its examination on new delimiting parameters which are incompatible with the principles of previous case-law. In particular, the Commission completely waived the criterion of the specific power of disposal of State authorities, which according to settled case-law is necessary for the classification as State resources, and deemed it to be sufficient for the State legislature to affect cash flows between private parties and for the compliance by the private parties with the legal requirements to be monitored by regulatory authorities.

                           —

                           In addition, the Commission is bound by its decision by which it did not classify the 2000 EEG as aid within the meaning of Article 107(1) TFEU because there was no transfer of State resources, and therefore erred in law by classifying the 2012 EEG as a new, unlawfully implemented aid scheme.

                           —

                           In addition, the Commission did not adequately examine and therefore also did not realise that the exceptions for energy-intensive users are justified according to the aim, nature and scheme of the 2012 EEG and therefore did not constitute a selective advantage.

               2.

               Second plea in law: Infringement of Article 108(1) TFEU and Articles 18 and 19 of Regulation No 659/1999 due to failure to propose appropriate measures

                           —

                           The applicants submit in that regard that, when examining the 2012 EEG, the Commission should in any event have applied the procedure for existing aid in accordance with Article 108(1) TFEU and Articles 17-19 of Regulation No 659/1999 and should have proposed appropriate measures to Germany before opening the formal investigation procedure instead of exposing market participants to considerable economic risks due to the classification of the 2012 EEG as new, non-notified aid.

               3.

               Third plea in law: Infringement of the right to be heard

                           —

                           The applicants argue also that the Commission should have consulted them in any event before adopting a decision with such serious legal effects.

               4.

               Fourth plea in law: Insufficient reasoning

                           —

                           Lastly, the applicants claim that the opening decision is vitiated by a lack of reasoning in the essential passages.

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


title: Case T-382/07 R: Order of the Court of First Instance of 30 October 2007 — France v Council

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/44

         Order of the Court of First Instance of 30 October 2007 — France v Council
   (Case T-382/07 R)
   (2007/C 315/86)

      Language of the case: French

   The President of the Court of First Instance has ordered that the case be removed from the register.


title: Case C-651/13: Order of the Court (Eighth Chamber) of 12 February 2015 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Lb Group Ltd v Ministero dell'Economia e delle Finanze, Amministrazione Autonoma dei Monopoli di Stato (AAMS), Galassia Game Srl (Reference for a preliminary ruling — Article 99 of the Rules of Procedure — Identical questions referred — Articles 49 TFEU and 56 TFEU — Freedom of establishment — Freedom to provide services — Games of chance — National legislation — Reorganisation of the licencing system through an alignment of licence expiry dates — New call for tenders — Licences with a shorter period than that of licences awarded in the past — Restriction — Overriding reasons of general interest — Proportionality)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/2

         Order of the Court (Eighth Chamber) of 12 February 2015 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Lb Group Ltd v Ministero dell'Economia e delle Finanze, Amministrazione Autonoma dei Monopoli di Stato (AAMS), Galassia Game Srl
   (Case C-651/13) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure - Identical questions referred - Articles 49 TFEU and 56 TFEU - Freedom of establishment - Freedom to provide services - Games of chance - National legislation - Reorganisation of the licencing system through an alignment of licence expiry dates - New call for tenders - Licences with a shorter period than that of licences awarded in the past - Restriction - Overriding reasons of general interest - Proportionality))
   (2015/C 127/02)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Lb Group Ltd

      Defendants: Ministero dell'Economia e delle Finanze, Amministrazione Autonoma dei Monopoli di Stato (AAMS), Galassia Game Srl

      Operative part of the order

   Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation, such as that in issue in the main proceedings, which provides for the organisation of a new call for tenders relating to licences with a period of validity shorter than that of licences awarded in the past due to a reorganisation of the licencing system through an alignment of licence expiry dates.

      (1)  OJ C 112, 14.4.2014.


title: Judgment of the Court of First Instance of 6 October 2004 in Joined Cases T-117/03 to T-119/03 and T-171/03: New Look Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier Community figurative mark comprising the letter combination ‘NL’ — Applications for Community figurative marks comprising the terms ‘NLSPORT’, ‘NLJEANS’, ‘NLACTIVE’ and ‘NLCollection’ — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/19

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 6 October 2004
   in Joined Cases T-117/03 to T-119/03 and T-171/03: New Look Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Opposition proceedings - Earlier Community figurative mark comprising the letter combination ‘NL’ - Applications for Community figurative marks comprising the terms ‘NLSPORT’, ‘NLJEANS’, ‘NLACTIVE’ and ‘NLCollection’ - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2004/C 314/49)
   Language of the case: Spanish
   In Joined Cases T-117/03 to T-119/03 and T-171/03: New Look Ltd, established in Weymouth, Dorset (United Kingdom), represented by R. Ballester and G. Marín, lawyers, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: O. Montalto, J. García Murillo and S. Laitinen), the other party to the proceedings before the Board of Appeal of OHIM being Naulover SA, established in Barcelona (Spain) — four actions brought against the decisions of the First Board of Appeal of OHIM of 27 January 2003 (R 95/2002-1, R 577/2001-1 and R 578/2001-1) and 15 April 2003 (R 19/03-1) relating to opposition proceedings between Naulover SA and New Look Ltd — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 6 October 2004, in which it:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 146 of 21.6.2003.


title: Case T-524/15: Order of the General Court of 5 April 2016 — NICO v Council

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/46

         Order of the General Court of 5 April 2016 — NICO v Council
   (Case T-524/15) (1)

   (2016/C 191/63)
   Language of the case: English
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 371, 9.11.2015.


title: Case C-274/03: Action brought on 24 June 2003 by the Commission of the European Communities against Ireland

text:
C 200/18                 EN                        Official Journal of the European Union                                            23.8.2003
Pleas in law and main arguments                                            not developed until several years after the conclusion of the
                                                                           projects in issue in circumstances where the procedures used
                                                                           were at all times in accordance with best practice at the time
The Applicant submits that Commission Decision                             as approved by the Commission amounts to a retrospective
C(2003)1084 should be annulled on the following grounds:                   application of Community rules by the Commission.
I. Manifest error of approach or assessment by the Commis-                 IV. Breach of the principle of proportionality and/or the
    sion                                                                         principles in relation to the imposition of penalties
a)      The Irish Authorities do not accept the validity of the            The Commission clearly had available alternatives to the deci-
        extrapolation exercise purportedly carried out by the              sion adopted in this case. The approach adopted by the
        Commission and submit that extrapolation is not an                 Commission is out of all proportion to the result intended to
        acceptable methodology for establishing a monetary                 be achieved having regard to the ongoing efficacy of the
        repayment value in the case of very broadly-based grant            projects in issue and the nature of the project beneficiary.
        schemes such as the Operational Programme for Tourism,             Such an approach effectively amounts to the imposition of a
        1989 — 1993. Further, it is submitted that the Commis-             penalty in circumstances where there is no evidence of any
        sion has failed to identify the legal basis on which the           wrongdoing on the part of any undertaking or authority.
        extrapolation exercise it has purported to carry out is
        based.
                                                                           (1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
                                                                               laying down provisions for implementing Regulation (EEC)
                                                                               No 2052/88 as regards coordination of the activities of the
b)      The application by the Commission of its own definition                different Structural Funds between themselves and with the opera-
        of the meaning of the terms of Article 23 of Regulation                tions of the European Investment Bank and the other existing
        4253/88 (1) in a manner that permits it to extend the                  financial instruments OJ L 374, 31.12.1988, p. 1-14.
        scope of its powers amounts to an infringement of the
        express provisions of that article and constitutes a mani-
        fest error of assessment on the part of the Commission in
        the exercise of its discretion pursuant to Article 24
        thereof.
c)      It is manifestly erroneous of the Commission to seek to
        justify imposing a penalty on Ireland on the basis of
        Datasheets, published in April 1997, several years after           Action brought on 24 June 2003 by the Commission of
        the Programme finished on the basis that they represented                     the European Communities against Ireland
        a codification of previously established practice, when this
        general practice had not been established by either the
        Commission or the European Court of Auditors in their                                          (Case C-274/03)
        monitoring of the Programme.
                                                                                (2003/C 200/32)
d)      It is furthermore submitted that the Commission was
        manifestly wrong in concluding that there were errors or
        risks inherent in the reporting system developed by the
        Irish authorities.                                                 An action against Ireland was brought before the Court of
                                                                           Justice of the European Communities on 24 June 2003 by the
                                                                           Commission of the European Communities, represented by
II. Infringement of a fundamental rule of law relating to the              Mr Georges Zavvos, acting as agent, with an address for service
     implementation of the Treaty                                          in Luxembourg.
In exercising its discretion pursuant to Article 24 of Regulation          The Applicant claims that the Court should:
4253/88, the Commission misdirected itself or was wrong in
law in failing to take account of the matters pleaded in the
application. The Commission approach is in breach of the                   1)     declare that, by failing to adopt the laws, regulations and
provisions of inter alia, articles 23 and 24 of Regulation                        administrative provisions necessary to comply with Direc-
4253/88.                                                                          tive 2000/26/EC of the European Parliament and of the
                                                                                Council of 16 May 2000 on the approximation of the
                                                                                laws of the Member States relating to insurance against
                                                                                civil liability in respect of the use of motor vehicles and
III. Failure to respect the principles of non-retrospectivity,                    amending Council Directives 73/239/EEC and 88/357/EEC
      legal certainty, and legitimate expectation                                 (Fourth motor insurance Directive), published in the Offi-
                                                                                cial Journal L 181, 20.07.2000, p. 65-74, or in any event
                                                                                by failing to communicate them to the Commission,
The retrospective application of standards for financial manage-                  Ireland has failed to fulfil its obligations under the Direc-
ment, and in particular the issue of eligibility criteria, that were              tive;
 ---pagebreak--- 23.8.2003             EN                        Official Journal of the European Union                                            C 200/19
   2)    order Ireland to pay the costs.                                    —     It also wrongly failed to give any, or any sufficient
                                                                                weight to the fact that it is the recipient of aid that
                                                                                particularly requires protection in cases where
                                                                                Article 15 applies.
   Pleas in law and main arguments
   The period within which the directive had to be transposed               —     The Court of First Instance should not have held that
   expired on 20 July 2002.                                                       the characterisation of the recipient of aid as merely an
                                                                                ‘information source’ in the course of the procedure
                                                                                under Article 88(2) EC supported its conclusion.
                                                                            —     The Court of First Instance wrongly failed to take
   Appeal brought on 25 June 2003 by Scott SA against                             account of the wording of Articles 14 and 15 which
   the judgment delivered on 10 April 2003 by the Fifth                           indicates that Article 15 is concerned with the liability
   Chamber, Extended Composition, of the Court of First                           of recipients of aid.
   Instance of the European Communities in case T-366/
   00 between Scott SA, supported by the French
   Republic, and the Commission of the European                             —     The Court of First Instance wrongly failed to recognise
                             Communities                                          that the consequence of its interpretation of Article 15
                                                                                was to frustrate the purpose of that Article, that is to
                          (Case C-276/03 P)                                       say, to provide legal certainty to recipients of aid.
                           (2003/C 200/33)
                                                                            The Court of First Instance was wrong to hold that the
                                                                            absence of a ‘duty’ on the part of the Commission to ‘warn’
   An appeal against the judgment delivered on 10 April 2003                recipients of interrupting actions was relevant to the ques-
   by the Fifth Chamber, Extended Composition, of the Court                 tion of whether an action of which the recipient had no
   of First Instance of the European Communities in case                    notice could interrupt the limitation period as against it.
   T-366/00 between Scott SA, supported by the French
   Republic, and the Commission of the European Commu-
   nities (1), was brought before the Court of Justice of the               The Court of First Instance was wrong to hold that
   European Communities on 25 June 2003 by Scott SA,                        Article 15 created a single limitation period that applied in
   established in Saint-Cloud (France), represented by Sir                  the same way to the Member State concerned and to ‘third
   Jeremy Lever KCMG, QC, and G. Peretz, Barristers, and                    parties’; alternatively, it was wrong to hold that such a
   A. Nourry and R. Griffith, Solicitors, with an address for               principle operated so as to exclude the application of the
   service in Luxembourg.                                                   limitation rule as sought by Scott.
   The Appellant claims that the Court should:
                                                                            The Court of First Instance was wrong to regard it as
   —     set aside the decision of the Court of First Instance              relevant to the application of Article 15 that Scott could
         dismissing Scott's application for annulment of                    have had no legitimate expectation that the aid was lawfully
         Article 2 of the Decision (2) in so far as Scott's                 granted originally; the purpose of Article 15 is to provide
         application alleges that the Commission infringed                  legal certainty where, ex hypothesi, the aid was not lawfully
         Article 15 of the Regulation;                                      granted.
   —     annul Article 2 of the Decision, in so far as it
         concerns the alleged aid granted in the form of a
         preferential land price referred to in Article 1 of the            The Court of First Instance wrongly disregarded the wording
         Decision; and                                                      of Article 15 and failed to address an important argument
                                                                            addressed to it by Scott, summarised by the Court of First
   —     order the Commission to pay the costs of this appeal,              Instance at paragraph 42 of the judgment.
         including the costs incurred by Scott at first instance.
                                                                            The Court of First Instance was wrong to treat it as relevant
   Pleas in law and main arguments                                          that there was no limitation rule in force on the expiry of
                                                                            10 years from the grant of the aid to Scott.
   The Appellant submits that the judgment of the Court of
   First Instance should be set aside on the following grounds:
                                                                        (1) OJ C 61, 24.02.2001, p. 16.
                                                                        (2) 2002/14/EC: Commission Decision of 12 July 2000 on the state
   The Court of First Instance was wrong to apply the newly                 aid granted by France to Scott Paper SA Kimberly-Clark (Text with
   introduced provisions of Article 15 of Regulation 659/                   EEA relevance) (notified under document number C(2000) 2183)
   99 (3)as if they were governed by the old case-law relating              (OJ L 12, 15.01.2002, p. 1).
   to the conduct of administrative procedures.                         (3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
                                                                            down detailed rules for the application of Article 93 of the EC
   —     The Court of First Instance should have recognised that            Treaty (OJ L 83, 27.03.1999, p. 1).
         the Regulation established a Community State aid
         regime that is, in important and relevant respects, new.


               15.8.2008

               EN

               Official Journal of the European Union

               C 209/1

         (2008/C 209/01)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 197, 2.8.2008

   Past publications

      OJ C 183, 19.7.2008

      OJ C 171, 5.7.2008

      OJ C 158, 21.6.2008

      OJ C 142, 7.6.2008

      OJ C 128, 24.5.2008

      OJ C 116, 9.5.2008

   These texts are available on:

               EUR-Lex: http://eur-lex.europa.eu


title: Case F-104/09: Judgment of the Civil Service Tribunal (First Chamber) of 24 March 2011 — Canga Fano v Council (Civil service — Officials — Promotion — Promotion exercise 2009 — Decision not to promote — Comparative examination of the merits — Manifest error of assessment — Action for annulment — Action for damages)

text:
               28.5.2011

               EN

               Official Journal of the European Union

               C 160/28

         Judgment of the Civil Service Tribunal (First Chamber) of 24 March 2011 — Canga Fano v Council
   (Case F-104/09) (1)

   (Civil service - Officials - Promotion - Promotion exercise 2009 - Decision not to promote - Comparative examination of the merits - Manifest error of assessment - Action for annulment - Action for damages)
   2011/C 160/42
   Language of the case: French

      Parties

      Applicant: Diego Canga Fano (Brussels, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer and K. Zieleśkiewicz, agents)

      Re:

   Application for annulment of the defendant’s decision not to include the applicant on the list of officials promoted to Grade AD 13 under the 2009 promotion procedure.

      Operative part of the judgment

               1.

               The application is dismissed.

               2.

               Mr Canga Fano shall pay all the costs.

      (1)  OJ C 37, 13.2.2010, p. 51.


title: Case C-498/07 P: Appeal brought on 16 November 2007 by Aceites del Sur-Coosur S.A. formerly Aceites del Sur S.A against the judgment delivered by the Court of First Instance (First Chamber) on 12 September 2007 in Case T-363/04 Koipe Corporacion S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/27

         Appeal brought on 16 November 2007 by Aceites del Sur-Coosur S.A. formerly Aceites del Sur S.A against the judgment delivered by the Court of First Instance (First Chamber) on 12 September 2007 in Case T-363/04 Koipe Corporacion S.L. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-498/07 P)
   (2008/C 22/53)
   Language of the case: Spanish
   Parties

      Appellant: Aceites del Sur-Coosur S.A., formerly Aceites del Sur S.A. (represented by: J.-M Otero Lastres, lawyer)

      Other parties to the proceedings: Koipe Corporacion S.L and Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               declare that the appeal against the judgment of the Court of First Instance (First Chamber) of 12 September 2007 in Case T-363/04 for infringement of Community law was lodged in good time and in due form;

               —

               uphold the appeal and, accordingly, set aside the judgment of the Court of First Instance in its entirety in accordance with Article 61 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure;

               —

               give final judgment if the state of the proceedings so permits;

               —

               alternatively, if the state of the proceedings does not so permit, refer the case back to the Court of First Instance for judgment in accordance with the binding criteria established by the Court of Justice and, if necessary, state which of the effects of the judgment set aside must be regarded as final for the parties to the proceedings and, in accordance with Article 112 of the Rules of Procedure, order the applicant, now the respondent, to pay the costs.

         Pleas in law and main arguments
   This appeal against the judgment of the First Chamber of the Court of First Instance of 12 September 2007 is based on the two grounds set out below:
   1.   Infringement of Article 8(1) and (2)(a)(i) and (ii) of Regulation No 40/94 (1)

   The first infringement of Community Law committed by the judgment appealed is the fact that it held to be ‘irrelevant’ the question of which of the marks put forward by CARBONELL to oppose the application for the Community trade mark LA ESPAÑOLA No 236588 satisfy the condition of being ‘earlier’ marks.
   If it had applied Article 8(1) and (2)(a)(i) and (ii) of Regulation No 40/94, the judgment should have excluded KOIPE's Community mark CARBONELL No 338681 from the opposing marks on the ground that that Community registration is not an earlier mark within the meaning of Article 8(2)(a)(i) of Regulation No 40/94. If it had acted in that way the only earlier marks of KOIPE which could oppose the application for registration of the Community mark LA ESPAÑOLA No 236588 would be CARBONELL's Spanish trade marks No 994364, No 1238745 and No 1698613.
   Delimited in that way, the earlier marks enforceable against the application for registration of the Community mark LA ESPAÑOLA No 236588 would, for the purposes of Article 8(1)(b), be earlier marks protected in Spanish territory. Therefore, the existence of the likelihood of confusion between the Community mark LA ESPAÑOLA No 236588 and KOIPE's earlier opposing marks would relate solely to the public on Spanish territory, which is where KOIPE's earlier marks are protected, and not the public on the whole of Community territory, as those marks do not include any Community marks.
   2.   Infringement of Article 8(1)(b) of Regulation No 40/94
   Article 8(1)(b) of Regulation No 40/94 governs the relative ground of refusal of an application for registration of a Community trade mark on the ground that there is a likelihood of confusion between the Community mark applied for and one or more earlier opposing marks. Therefore, the judgment appealed infringed that rule for the two reasons set out below:
   Part One
   The consequences of the improper delimitation of the earlier marks which are enforceable against the application of the application for Community trade mark LA ESPAÑOLA No 236588
   The starting point for the first infringement of Article 8(1)(b) complained of is the improper delimitation of the ‘earlier’ marks enforceable against the Community trade mark application and relates to the consequences that that improper delimitation of the earlier opposing marks had on the way in which the judgment appealed applied Article 8(1)(b) to the dispute which is the subject of these proceedings.
   From all of the submissions in Part One it may be concluded that the judgment appealed infringed Article 8(1)(b) of Regulation No 40/94 because:

               —

               It did not find CARBONELL's marks No 994364, No 1238745 and No 1698613 to be the only earlier opposing marks.

               —

               CARBONELL's later Community mark No 338681 was not expressly excluded from the opposing marks.

               —

               As a consequence of the two preceding submissions ‘the public in the territory in which the earlier marks were protected’ was not correctly delimited, the earlier marks being exclusively Spanish marks the public in the relevant territory was the Spanish consumer of olive oil.

               —

               Although in some paragraphs the Court refers to the ‘Spanish market for olive oil’, its assessment of that information was made in a partial and limited manner, since that information was taken into account only in determining the distinctive character of the figurative elements of the signs at issue.

               —

               Consequently, the Court did not take account of that information either in its overall assessment of the similarity of the signs (since the Court does not mention the ‘Spanish market for olive oil’ in assessing, for example, the distinctive character of the verbal components of the signs at issue) or in weighing up other factors which were also relevant in the case in order to give a ruling on whether there was a likelihood of confusion between the signs at issue.

         Part Two
   Effect of the improper delimitation of the opposing marks on the scope of the public of the territory in which the earlier mark is protected. Incorrect determination and subsequent assessment of the relevant factors for the determination of the likelihood of confusion.
   The reasoning put forward by the appellant to substantiate the infringement of Article 8(1)(b) complained of in the Second part is based on two grounds. First, the submissions set out above relating to the improper delimitation of the ‘earlier opposing marks’ and its influence on the scope ‘of the public of the territory in which the earlier mark is protected’. Second, an incorrect determination and subsequent assessment of all the factors that should have been taken into account in order to determine whether there was a likelihood of confusion between Community mark applied for LA ESPAÑOLA No 236588 and CARBONELL's earlier opposing Spanish marks No 994364, No 1238745 and No 1698613.
   The arguments on which the appellant bases its opinion that the judgment under appeal infringed Article 8(1)(b) by its improper application are as follows:

               —

               The judgment appealed examined the marks at issue not on the basis of the criterion of a ‘global assessment’ or ‘overall impression’, but took a separate, successive and ‘analytical’ approach to the constituent elements of compound marks thereby infringing Article 8(1)(b) and the Community case-law interpreting it.
               The judgment appealed failed to do what it ought to have done from the beginning, which was to examine the marks using a ‘global assessment’ and the ‘overall impression’ made by them. Instead, the judgment appealed used an analytical approach from the outset and made a separate and successive examination of the figurative elements on one hand (paragraphs 75 to 87) and the verbal components on the other (paragraphs 88 to 93), giving decisive weight to the figurative elements, denying any importance to the verbal components. It is true that the judgment appealed did mention the criterion of the global assessment and overall impression (paragraph 99), but it is also true that it is not sufficient to mention and repeat a judicial criterion in order to act correctly it is important to follow it and apply it correctly to the case. That was not done in the judgment appealed. In order to assess the similarity of the signs at issue, the judgment appealed failed to apply the primary and principal criterion of a global assessment and overall impression, and applied an analytical criterion, deriving first of all from a breakdown of the marks into their figurative and verbal components and then a separate assessment, first of the two figurative components of the signs at issue and then of the verbal component of LA ESPAÑOLA, omitting any reference to the other verbal element of the opposing marks, the name CARBONELL.
               Second, the judgment appealed also infringed Article 8(1)(b), because it did not assess two relevant elements in the case such as earlier coexistence over a long period and notoriety which were extremely relevant in order to determine the likelihood of confusion between the Community mark applied for LA ESPAÑOLA No 236588 and the earlier opposing Spanish marks CARBONELL.

               —

               The perception of the average Spanish consumer of olive oil and the supposed likelihood of confusion between the marks at issue.
               The judgment appealed, while it alludes to the profile of the average consumer elaborated by Community case-law, does not use that consumer model but constitutes the profile of the average Spanish consumer of olive oil as a consumer who is closer to the model of the average consumer used in German case-law: ‘a careless and rash consumer’ than the model European consumer chosen by Community case-law who is ‘reasonably well-informed and reasonably observant and circumspect’ (judgments LLOYD, paragraph 26, and PICASSO, paragraph 38). In addition, the judgment appealed commits another no less serious error which is to ‘take account of a lower level of attention’ by consumers with regard to marks of olive oil, instead of taking account of the level attention normally paid to olive oil by the average Spanish consumer who is reasonably well-informed and reasonably observant and circumspect.

      (1)  Council Regulation of 20 December 1993 on the Community trade mark.


title: Judgment of the Court (Sixth Chamber) of 2 June 2005 in Case C-68/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2001/81/EC — Atmospheric pollutants — National emission ceilings)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/15

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 2 June 2005
   in Case C-68/04: Commission of the European Communities v Hellenic Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 2001/81/EC - Atmospheric pollutants - National emission ceilings)
   (2005/C 182/28)
   Language of the case: Greek
   In Case C-68/04 Commission of the European Communities (Agents: G. Valero Jordana and M. Konstantinidis) v Hellenic Republic (Agent: N. Dafniou) — action under Article 226 EC for failure to fulfil obligations brought on 13 February 2004 — the Court (Sixth Chamber), composed of A. Borg Barthet (Rapporteur), President of the Chamber, A. La Pergola and A. Ó Caoimh, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 2 June 2005, in which it:

               1.

               Declares that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants, the Hellenic Republic has failed to fulfil its obligations under Article 15(1) of that directive;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 94 of 17.4.2004.


title: Case T-149/08: Action brought on 18 April 2008 — Abbott Laboratories v OHIM — aRigen (Sorvir)

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/36

         Action brought on 18 April 2008 — Abbott Laboratories v OHIM — aRigen (Sorvir)
   (Case T-149/08)
   (2008/C 142/66)
   Language in which the application was lodged: English
   Parties

      Applicant: Abbott Laboratories (Abbott Park, United States) (represented by: S. Schäffler, lawyer)

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

      Other party to the proceedings before the Board of Appeal: aRigen, Inc. (Tokyo, Japan)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 February 2008 in case R 809/2007-2; and

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: aRigen, Inc

      Community trade mark concerned: The word mark ‘Sorvir’ for goods in class 5 — application No 004 455 507

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

      Mark or sign cited: The word mark ‘NORVIR’ for goods in class 5

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

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the marks in question are similar and thus likely to cause confusion.


title: Judgment of the Court (Fourth Chamber) 7 March 2002 in Case C-259/00 (Reference for a preliminary ruling from the Finanzgericht München): Biochem Zusatzstoffe Handels- und Produktions GmbH v Oberfinanzdirektion Nürnberg (Common Customs Tariff — Tariff headings — Tariff classification of immunoglobulin concentrates from colostrum — Classification in the Combined Nomenclature)

text:
4.5.2002                EN                      Official Journal of the European Communities                                             C 109/11
2.    Article 69(1)(a) of Regulation No 1408/71, as amended and            On a proper construction of Annex I to Council Regulation (EEC)
      updated by Regulation No 118/97, must be construed as                No 2658/87 of 23 July 1987 on the tariff and statistical
      meaning that, in order to retain entitlement to unemployment         nomenclature and on the Common Customs Tariff, as amended by
      benefits as provided for therein, a person seeking work must         Regulation (EC) No 2086/97 of 4 November 1997, immunoglobul-
      have remained available to the employment services of the            in concentrates from dried, defatted and decaseinated colostrum,
      competent State for a total of at least four weeks after the         standardised by means of lactose, are to be classified as pharmaceutical
      commencement of unemployment, regardless of whether that             products in Chapter 30 of the Combined Nomenclature.
      period was continuous or not.
                                                                           (1) OJ C 247 of 26.8.2000.
(1) OJ C 211 of 22.7.2000.
                 JUDGMENT OF THE COURT
                                                                                JUDGMENT OF THE COURT
                        (Fourth Chamber)
                                                                                (Sixth Chamber)
                           7 March 2002
                                                                                7 February 2002
in Case C-259/00 (Reference for a preliminary ruling
from the Finanzgericht München): Biochem Zusatzstoffe                      in Case C-279/00: Commission of the European Communi-
Handels- und Produktions GmbH v Oberfinanzdirektion                                              ties v Italian Republic (1)
                            Nürnberg (1)
(Common Customs Tariff — Tariff headings — Tariff                          (Failure by a Member State to fulfil its obligations —
classification of immunoglobulin concentrates from col-                    Freedom to supply services — Free movement of capital —
  ostrum — Classification in the Combined Nomenclature)                               Business of providing temporary labour)
                          (2002/C 109/16)                                                             (2002/C 109/17)
                   (Language of the case: German)                                               (Language of the case: Italian)
(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-259/00: Reference to the Court under Article 234
EC by the Finanzgericht München (Germany) for a preliminary                In Case C-279/00, Commission of the European Communities
ruling in the proceedings pending before that court between                (Agents: E. Traversa and M. Patakia) v Italian Republic (Agent:
Biochem Zusatzstoffe Handels- und Produktions GmbH and                     U. Leanza, assisted by D. Del Gaizo): Application for a
Oberfinanzdirektion Nürnberg, on the interpretation of Chap-               declaration that, by requiring undertakings engaged in the
ter 30 of the Combined Nomenclature, set out in Annex I to                 provision of temporary labour which are established in other
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the                 Member States to maintain their registered office or a branch
tariff and statistical nomenclature and on the Common                      office on Italian territory, and to lodge a guarantee of ITL
Customs Tariff (OJ 1987 L 256, p. 1), as amended by                        700 million with a credit institution having its registered office
Commission Regulation (EC) No 2086/97 of 4 November                        or a branch office on Italian territory, the Italian Republic has
1997 (OJ 1997 L 312, p. 1), the Court (Fourth Chamber),                    failed to fulfil its obligations under Articles 49 EC and 56 EC,
composed of: D.A.O. Edward (Rapporteur), acting for the                    the Court (Sixth Chamber), composed of: F. Macken, President
President of the Fourth Chamber, A. La Pergola and                         of the Chamber, C. Gulmann, R. Schintgen (Rapporteur),
C.W.A. Timmermans, Judges; C. Stix-Hackl, Advocate General;                V. Skouris, J.N. Cunha Rodrigues, Judges; S. Alber, Advocate
R. Grass, Registrar, has given a judgment on 7 March 2002, in              General; R. Grass, Registrar, has given a judgment on 7 Febru-
which it has ruled:                                                        ary 2002, in which it:


title: Case T-88/06: Judgment of the Court of First Instance of 24 January 2008 — Dorel Juvenile Group v OHIM (SAFETY 1ST) (Community trade mark — Application for the Community word mark SAFETY 1ST — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/35

         Judgment of the Court of First Instance of 24 January 2008 — Dorel Juvenile Group v OHIM (SAFETY 1ST)
   (Case T-88/06) (1)

   (Community trade mark - Application for the Community word mark SAFETY 1ST - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)
   (2008/C 64/55)
   Language of the case: English
   Parties

      Applicant: Dorel Juvenile Group, Inc. (Canton, United States of America) (represented by: G. Simon, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: Ó. Mondéjar Ortuño, acting as Agent)
   Re:
   Action brought against the decision of the Second Board of Appeal of OHIM of 11 January 2006 (Case R 616/2004-2) relating to an application for registration of the word mark SAFETY 1ST as a Community trade mark
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Dorel Juvenile Group, Inc. to pay the costs.

      (1)  OJ C 108, 6.5.2006.


title: Case T-306/04: Action brought on 15 July 2004 by Monika Luxem against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/41

         Action brought on 15 July 2004 by Monika Luxem against the Commission of the European Communities
   (Case T-306/04)
   (2004/C 262/79)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 July 2004 by Monika Luxem, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court of First Instance should:

               —

               annul the Commission's decision not to appoint her an official of the European Communities, not to assign her to DG DEV/A 2 to the post declared vacant under reference COM/2002/6022/F and refusing to assign her to any other post corresponding to her abilities and her professional qualifications and experience;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:
   The applicant submitted her candidature for open competition COM/A/6/01 for the recruitment of administrators in the fields of external relations and the management of aid. In her candidature she stated that she had obtained a German diploma after three years of studies. Having passed the competition, she applied for a vacant post in the Commission. By letter of 30 July 2003 the Commission informed her that, having regard to her diploma, it was unable to accept her candidature. According to the Commission, only a German diploma obtained after four years' studies would satisfy the conditions for admission to the competition, which stipulated that the necessary diplomas must give access to doctoral studies.
   In support of her action for annulment of that decision, the applicant pleads breach of the principle of legal certainty, the unlawfulness of withdrawing a decision that has conferred rights on an individual, infringement of the competition notice in question and a manifest error of assessment.


title: Case T-166/10: Action brought on 7 April 2010 — Samskip Multimodal Container Logistics v Commission

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/39

         Action brought on 7 April 2010 — Samskip Multimodal Container Logistics v Commission
   (Case T-166/10)
   ()
   2010/C 209/61
   Language of the case: English

      Parties

      Applicant: Samskip Multimodal Container Logistics BV ('s-Gravenzande, Netherlands) (represented by: K. Platteau, Y. Maasdam and P. Broers, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul Commission Decision C(2010) 580 of 27 January 2010 on the financial assistance for proposals for actions submitted in the 2009 selection procedure in the European Union programme granting the Community financial assistance to improve the environmental performance of the freight transport system (Marco Polo II) (1), in so far as it selects Proposal No TREN/B4/SUB/01-2009 MP-II/6, the G2G@2XL project, for funding amounting to EUR 2 190 539;

               —

               order the Commission to pay the costs of the procedure pursuant to Article 87(2) of the Rules of Procedure.

      Pleas in law and main arguments

   In support of its application, the applicant puts forward two pleas in law on the following grounds.
   In its first plea, the applicant claims that the contested funding infringes the funding conditions and requirements provided by Article 5(2) of Regulation 1692/2006 as

               —

               it causes an unacceptable distortion of competition contrary to the common interest within the market of freight forwarding services by the alternative modes of transport proposed by the G2G@2XL project, namely rail and short sea shipping from Italy, Switzerland and Austria to the United Kingdom; and

               —

               the G2G@2XL project will not stay viable after the prescribed period of 36 months.

         In its second plea the applicant claims that the contested funding infringes Article 1 of Regulation 1692/2006 as it does not contribute to the common interest goals that are pursued by the Marco Polo II Programme. The contested funding will merely result in a shift from an existing multimodal operator to another multimodal operator and not from road transport to rail transport. As a result, no extra road freight traffic will be shifted to environmentally friendly modes. Hence, the contested funding will not contribute to an actual reduction in international road freight transport and will therefore not reduce congestion nor contribute to the pursued improvement of the environmental performance of the transport system (i.e. the common interest goals that are pursued by the Marco Polo II Programme and which are provided in Article 1 of Regulation 1692/2006).

      (1)  Regulation (EC) No 1692/2006 of the European Parliament and of the Council of 24 October 2006 establishing the second Marco Polo programme for the granting of Community financial assistance to improve the environmental performance of the freight transport system (Marco Polo II) and repealing Regulation (EC) No 1382/2003, OJ 2006 L 328, p. 1


title: Case C-27/15: Request for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione siciliana (Italy) lodged on 22 January 2015 — Pippo Pizzo v CRGT srl

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/27

         Request for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione siciliana (Italy) lodged on 22 January 2015 — Pippo Pizzo v CRGT srl
   (Case C-27/15)
   (2015/C 138/39)
   Language of the case: Italian

      Referring court

   Consiglio di Giustizia Amministrativa per la Regione siciliana

      Parties to the main proceedings

      Applicant: Pippo Pizzo

      Defendant: CRGT srl

      Questions referred

               1)

               Must Articles 47 and 48 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (1) be interpreted as precluding national legislation, like the Italian legislation described above, which allows divided reliance upon the capacities of other entities, on the terms set out above, in respect of services?

               2)

               Do the principles of EU law, and, in particular, those of protection of legitimate expectations, legal certainty and proportionality, preclude a legal rule of a Member State which permits the exclusion from a public tendering procedure of an undertaking which did not understand, because this was not expressly provided in the tender documents, that it was obliged, on pain of exclusion from that procedure, to fulfil the obligation to pay a sum in order to participate in that procedure, even though the existence of that obligation cannot be clearly deduced from the wording of the law in force in the Member State, but can nevertheless be inferred, by means of a twofold legal operation, which involves, first, interpreting extensively certain provisions of that Member State’s positive law and, then, incorporating — in accordance with the outcome of that broad interpretation — the mandatory provisions in the tendering documents?

      (1)  OJ 2004 L 134, p. 114.


title: Case T-316/14: Action brought on 1 May 2014 — PKK/Conseil

text:
               28.7.2014

               EN

               Official Journal of the European Union

               C 245/22

         Action brought on 1 May 2014 — PKK/Conseil
   (Case T-316/14)
   2014/C 245/30
   Language of the case: English

      Parties

      Applicant: Kurdistan Workers’ Party (PKK) (represented by: A. van Eik, T. Buruma and M. Wijngaarden, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Council Implementing Regulation (EU) No 125/2014 (1) insofar as it concerns the PKK (a.k.a KADEK a.k.a. Kongra-GEL);

               —

               Determine that Council Regulation (EC) No 2580/2001 (2) is not applicable to the PKK (a.k.a KADEK a.k.a. Kongra-GEL);

               —

               In the alternative, determine that a lesser measure than continued placement on the list is warranted;

               —

               Award of costs and interest to the applicant.

      Pleas in law and main arguments

   In support of the action, the applicant relies on eight pleas in law.

               1.

               First plea in law, alleging that Council Implementing Regulation (EU) No 125/2014 is void insofar as it concerns the PKK and/or Council Regulation (EC) No 2580/2001 is inapplicable due to a failure to observe the law of armed conflict.

               2.

               Second plea in law, alleging that Council Implementing Regulation (EU) No 125/2014 is void insofar as it concerns the PKK since the PKK cannot be qualified as a ‘terrorist organisation’ as defined in Article 1(3) of Council Common Position 2001/931/CFSP (3).

               3.

               Third plea in law, alleging that Council Implementing Regulation (EU) No 125/2014 is void insofar as it concerns the PKK because no decision by a competent authority, as required by Article 1(4) of Council Common Position 2001/931/CFSP has been taken.

               4.

               Fourth plea in law, alleging that Council Implementing Regulation (EU) No 125/2014 is void insofar as it concerns the PKK as the decision is in part based on information obtained through torture or ill-treatment, thereby failing to respect the fundamental rights, observe the principles and promote the application thereof in accordance with Article 51 of the Charter of Fundamental Rights.

               5.

               Fifth plea in law, alleging that Council Implementing Regulation (EU) No 125/2014 is void insofar as it concerns the PKK since the Council has not conducted any proper review as required by Article 1(6) of Council Common Position 2001/931/CFSP.

               6.

               Sixth plea in law, alleging that Council Implementing Regulation (EU) No 125/2014 is void insofar as it concerns the PKK as the decision does not comply with the requirements of proportionality and subsidiarity.

               7.

               Seventh plea in law, alleging that Council Implementing Regulation (EU) No 125/2014 is void insofar as it concerns the PKK as it does not comply with the obligation to state reasons in conformity with Article 296 TFUE.

               8.

               Eighth plea in law, alleging that Council Implementing Regulation (EU) No 125/2014 is void insofar as it concerns the PKK because it infringes upon the PKK’s right of defense and it’s right to effective judicial protection.

      (1)  Council Implementing Regulation (EU) No 125/2014 of 10 February 2014 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 714/2013.

      (2)  Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism.

      (3)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism.


title: Case T-447/11: Action brought on 9 August 2011 — Catinis v Commission

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/24

         Action brought on 9 August 2011 — Catinis v Commission
   (Case T-447/11)
   2011/C 298/45
   Language of the case: English

      Parties

      Applicant: Lian Catinis (Damascus, Syria) (represented by: S. Pappas, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the contested decision as far as the non-closure of the investigation and the rejection of access to the applicant's personal file are concerned; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies primarily on the plea of breach of law, as well as the duty to state reasons in support of the decision to continue the investigation beyond any reasonable time and not to have it closed.
   Further, the applicant relies on the plea of breach of the duty to state reasons in support of the decision not to allow access to the investigation file.
   Lastly, the applicant alleges breaches of fundamental rights and general principles of law, in particular of the principle of good administration, presumption of innocence and right of defence.


title: Case T-478/16: Action brought on 26 October 2016 — OP v Commission

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/17

         Action brought on 26 October 2016 — OP v Commission
   (Case T-478/16)
   (2016/C 475/27)
   Language of the case: German

      Parties

      Applicant: OP (Bonn, Germany) (represented by: S. Conrad, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the defendant’s implicit and explicit rejection decisions of 16 and 30 September 2016 respectively (Ref.: Ares (2016) 5716994), relating to the applicant’s administrative complaint of 17 April 2016 under Article 22(1) of Regulation (EC) No 58/2003 seeking a review of the legality of the decision of the Executive Agency of the European Research Council of 18 March 2016 (Ref.: Ares (2016) 1371979), received by the applicant on 28 April 2016, stating that the applicant’s grant application of 17 November 2015 (application number 716017 — QUASIMODO) within the Framework Programme ‘Horizon 2020’, ERC Work Programme 2016 (ERC Starting Grant) had been considered unsuitable and had been rejected;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on two pleas in law:

               1.

               First plea in law, alleging infringement of the applicant’s right to a review by the defendant of the legality of the actions of the Executive Agency of the European Research Council, since the defendant failed to reply to the applicant’s administrative complaint within the deadline laid down by the third subparagraph of Article 22(1) of Regulation (EC) No 58/2003. (1)

               2.

               Second plea in law, alleging that the rejection of the applicant’s grant application was unlawful.
               The applicant submits that the rejection of her administrative complaint was also unlawful because the decision by the Executive Agency of the European Research Council rejecting her grant application was itself unlawful.

      (1)  Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1).


title: Joined Cases C-241/12 and C-242/12: Judgment of the Court (First Chamber) of 12 December 2013 (request for a preliminary ruling from the Rechtbank te Rotterdam — Netherlands) — Criminal proceedings against Shell Nederland Verkoopmaatschappij BV (C-241/12), Belgian Shell NV (C-242/12) (Environment — Waste — Concept — Directive 2006/12/EC — Shipments of waste — Information from the competent national authorities — Regulation (EEC) No 259/93 — Discarding of a substance or object or intention or requirement to discard it)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/11

         Judgment of the Court (First Chamber) of 12 December 2013 (request for a preliminary ruling from the Rechtbank te Rotterdam — Netherlands) — Criminal proceedings against Shell Nederland Verkoopmaatschappij BV (C-241/12), Belgian Shell NV (C-242/12)
   (Joined Cases C-241/12 and C-242/12) (1)

   (Environment - Waste - Concept - Directive 2006/12/EC - Shipments of waste - Information from the competent national authorities - Regulation (EEC) No 259/93 - Discarding of a substance or object or intention or requirement to discard it)
   2014/C 52/16
   Language of the case: Dutch

      Referring court

   Rechtbank te Rotterdam

      Parties in the main proceedings

   Shell Nederland Verkoopmaatschappij BV (C-241/12), Belgian Shell NV (C-242/12)

      Re:

   Requests for a preliminary ruling — Rechtbank te Rotterdam — Netherlands — Interpretation of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (OJ 1993 L 30, p. 1) and Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1) — Concept of ‘waste’ — Shipment of Ultra Light Sulphur Diesel (ULSD) by vessel from the Netherlands to Belgium — ULSD mixed accidentally, when the vessel was being loaded, with Methyl Tertiary Butyl Ether (MTBE) — Product no longer corresponding to the specifications agreed upon by the buyer and the vendor — Buyer who became aware of that fact at the time of delivery in Belgium — Diesel taken back by the vendor and shipped to the Netherlands — Purchase price refunded to the buyer — Vendor having the intention of placing the diesel back on the market, whether or not after mixing it with another product — Inclusion or non-inclusion in the concept of waste.

      Operative part of the judgment

   Article 2(a) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, as amended by Commission Regulation (EC) No 2557/2001, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, a consignment of diesel accidentally mixed with another substance is not covered by the concept of ‘waste’, provided that the holder of that consignment does actually intend to place that consignment, mixed with another product, back on the market, which it is for the referring court to ascertain.

      (1)  OJ C 243, 11.8.2012.