title: Case T-258/06: Action brought on 12 September 2006 — Germany v Commission

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/52

         Action brought on 12 September 2006 — Germany v Commission
   (Case T-258/06)
   (2006/C 294/107)
   Language of the case: German
   Parties

      Applicant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze-Bahr)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               declare null and void the Commission's interpretative communication of 23 June 2006 on the Community law applicable to contract awards not or not fully subject to the provisions of the public procurement directives; and

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant takes issue with the Commission's interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the public procurement directives, which was placed on the Commission's internet website on 24 July 2006 and published in the Official Journal on 1 August 2006 (OJ 2006 C 179, p. 2).
   As grounds for its action, the applicant submits that the Commission was not competent to issue the contested communication. It argues in this connection that the contested communication contains new rules on tendering which go beyond the obligations arising under existing Community law. These new rules will have legally binding effects for the Member States. The EC Treaty, however, contains no authorisation which would enable the defendant to adopt such rules. The present case therefore, in the applicant's view, essentially involves an instance of de facto legislation.
   The applicant goes on to contend that, by establishing mandatory rules, the defendant has upset the institutional balance existing between the Council, the European Parliament and the Commission.
   In conclusion the applicant submits that, even if the Commission were competent to issue the contested communication, the latter would still have to be declared null and void as the principle of legal certainty has been infringed. The defendant ought to have invoked the appropriate legal basis and made express reference to this in the legal measure in question. The Commission thus also breached the duty to state reasons laid down in Article 253 EC.


title: Judgment of the Court of 16 May 2017 in Case E-8/16 — Netfonds Holding ASA, Netfonds Bank AS, and Netfonds Livsforsikring AS v The Norwegian Government (Freedom of establishment — Article 31 EEA — Directive 2000/12/EC — Directive 2002/83/EC — Directive 2006/48/EC — Directive 2007/44/EC — Credit institutions — Assurance undertakings — Qualifying holdings — Proportionality — Suitability — Necessity)

text:
               28.9.2017

               EN

               Official Journal of the European Union

               C 321/10

         JUDGMENT OF THE COURT
   of 16 May 2017
   in Case E-8/16
   Netfonds Holding ASA, Netfonds Bank AS, and Netfonds Livsforsikring AS v The Norwegian Government

      (Freedom of establishment — Article 31 EEA — Directive 2000/12/EC — Directive 2002/83/EC — Directive 2006/48/EC — Directive 2007/44/EC — Credit institutions — Assurance undertakings — Qualifying holdings — Proportionality — Suitability — Necessity)

   (2017/C 321/08)
   In Case E-8/16, Netfonds Holding ASA, Netfonds Bank AS, and Netfonds Livsforsikring AS v The Norwegian Government — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Oslo District Court (Oslo tingrett) concerning the interpretation of Articles 31, 36 and 40 of the Agreement on the European Economic Area in the context of the rules and practices applicable to the ownership of Norwegian companies at the time of their application for authorisation as banks or insurance companies, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 16 May 2017, the operative part of which is as follows:

               1.

               At the material time, Directive 2000/12/EC, Directive 2006/48/EC and Directive 2002/83/EC, also as amended by Directive 2007/44/EC, did not prevent the EEA States from maintaining stricter rules concerning the procedure for the authorisation of banks and insurance companies. Nonetheless, such rules must be compatible with the fundamental freedoms guaranteed by the EEA Agreement.

               2.

               Legislation as described in Questions 1 and 2 and administrative practice as described in Question 3 constitute restrictions that appear to fall predominantly within the scope of Article 31 EEA. Whether this is the case is for the referring court to assess.

               3.

               The objective of reducing excessive risk incentives of owners of banks or insurance companies, particularly in relation to the risk of misuse of power, reflects overriding reasons in the general interest capable of justifying national measures which restrict the freedom of establishment as guaranteed by Article 31 EEA. It is for the referring court to identify the objectives which are in fact pursued by the national measures, as well as to determine whether the legitimate aims are pursued in a suitable and consistent manner.

               4.

               The issue rules, as described in Questions 1 and 2, do not seem suitable to achieve the legitimate objective that the Court has identified. The administrative practice, as described in Question 3, appears suitable to achieve that objective to the extent that it applies to applications for authorisation as a bank or an insurance company and not to secondary acquisitions after the granting of authorisation.

               5.

               If the referring court finds one or more of the national measures suitable for attaining a legitimate objective, it must also assess whether they go beyond what is necessary in order to attain that objective. In the present proceedings, it appears that measures other than those contested are less restrictive while equally effective in attaining the legitimate objective identified.


title: Case T-227/14: Action brought on 11 April 2014 — CBM Creative Brands Marken v OHIM — Aeronautica Militare — Stato Maggiore (Trecolore)

text:
               28.7.2014

               EN

               Official Journal of the European Union

               C 245/17

         Action brought on 11 April 2014 — CBM Creative Brands Marken v OHIM — Aeronautica Militare — Stato Maggiore (Trecolore)
   (Case T-227/14)
   2014/C 245/24
   Language in which the application was lodged: English

      Parties

      Applicant: CBM Creative Brands Marken GmbH (Zürich, Switzerland) (represented by: U. Lüken, M. Grundmann and N. Kerger, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Aeronautica Militare — Stato Maggiore (Rome, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 January 2014 in Case R 253/2013-1 in so far as the First Board of Appeal annuls the decision of the Opposition Division and upholds the opposition against the application mark rejecting the application No 009 877 325 in regard of the goods in classes 18 and 25;

               —

               Dismiss the opposition against Application No 009 877 325 in its entirety;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘Trecolore’ for goods and services in Classes 18, 25 and 35 — Community trade mark application No 9 877 325

      Proprietor of the mark or sign cited in the opposition proceedings: Aeronautica Militare — Stato Maggiore

      Mark or sign cited in opposition: The community and national word and figurative mark ‘FRECCE TRICOLORI’, for goods and services in Classes 9, 14, 16, 18, 20, 25, 28 and 41

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

      Decision of the Board of Appeal: Annulled the contested decision in part

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


title: Case T-362/06: Judgment of the General Court of 27 September 2012 — Ballast Nedam Infra v Commission (Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Fines — Proof of the infringement — Gravity of the infringement — Imputability of the unlawful conduct — Rights of the defence — Production of new pleas in the course of proceedings — Unlimited jurisdiction)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/19

         Judgment of the General Court of 27 September 2012 — Ballast Nedam Infra v Commission
   (Case T-362/06) (1)

   (Competition - Agreements, decisions and concerted practices - Netherlands market in road pavement bitumen - Decision finding an infringement of Article 81 EC - Fines - Proof of the infringement - Gravity of the infringement - Imputability of the unlawful conduct - Rights of the defence - Production of new pleas in the course of proceedings - Unlimited jurisdiction)
   2012/C 355/37
   Language of the case: Dutch

      Parties

      Applicant: Ballast Nedam Infra BV (Nieuwegein (Netherlands)) (represented: initially by A. Bosman and J. van de Hel, and subsequently by A. Bosman and E. Oude Elferink, lawyers)

      Defendant: European Commission (represented by: A. Bouquet, A. Nijenhuis and F. Ronkes Agerbeek, Agents, assisted initially by F. Wijckmans, F. Tuytschaever and L. Gyselen, and subsequently by F. Wijckmans and F. Tuytschaever, lawyers)

      Re:

   Application, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)) in so far as it concerns the applicant, and, in the alternative, first, for annulment in part of that decision and for reduction of the fine imposed on the applicant and, second, for annulment in part of that decision in so far as it sets the duration of the infringement with respect to the applicant and for a corresponding reduction of the fine imposed on it.

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 1(a) of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)) in so far as it concerns the participation of Ballast Nedam Infra BV in the infringement between 21 June 1996 and 30 September 2000;

               2.

               Reduces the amount of the fine imposed jointly and severally on Ballast Nedam Infra in Article 2(a) of that decision to EUR 3.45 million;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 20, 27.1.2007.


title: Case T-70/09: Judgment of the General Court of 14 April 2011 — Netherlands v Commission (ERDF — Single programming document for the Groningen-Drenthe region — Decision on the reduction of the aid and ordering partial reimbursement of the amounts paid — Obligation to state reasons — Article 23(1) and Article 24(1) and (2) of Regulation (EEC) No 4253/88)

text:
               28.5.2011

               EN

               Official Journal of the European Union

               C 160/17

         Judgment of the General Court of 14 April 2011 — Netherlands v Commission
   (Case T-70/09) (1)

   (ERDF - Single programming document for the Groningen-Drenthe region - Decision on the reduction of the aid and ordering partial reimbursement of the amounts paid - Obligation to state reasons - Article 23(1) and Article 24(1) and (2) of Regulation (EEC) No 4253/88)
   2011/C 160/22
   Language of the case: Dutch

      Parties

      Applicant: Kingdom of the Netherlands (represented by: C. Wissels and M. Noort, acting as Agents)

      Defendant: European Commission (represented by: W. Roels and A. Steiblyte, acting as Agents)

      Re:

   Action for annulment in part of Commission Decision C(2008) 8355 of 11 December 2008 on the reduction of the aid from the European Regional Development Fund (ERDF) within the framework of the single programming document no 97.07.13.003 coming under objective 2 for the Groningen-Drenthe region, granted in accordance with Commission Decision 97/711/EC of 26 May 1997.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders the Kingdom of the Netherlands to pay the costs.

      (1)  OJ C 90, 18.04.2009.


title: Case T-26/10: Order of the General Court of 15 April 2010 — Alibaba Group v OHIM — allpay.net (ALIPAY)

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/51

         Order of the General Court of 15 April 2010 — Alibaba Group v OHIM — allpay.net (ALIPAY)
   (Case T-26/10) (1)

   2010/C 148/90

      Language of the case: English

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

      (1)  OJ C 100, 17.4.2010.


title: Case T-29/06: Action brought on  24 January 2006  — Procter & Gamble v OHIM

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/33

         Action brought on 24 January 2006 — Procter & Gamble v OHIM
   (Case T-29/06)
   (2006/C 86/68)
   Language of the case: English
   Parties

      Applicant: The Procter & Gamble Company (Cincinnati, USA) [represented by: G. Kuipers, lawyer]

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the OHIM of 22 November 2005 (Case R 1071/2004-1), which was notified to P&G by letter of 5 December 2005, in so far as it finds that the mark does not satisfy the conditions as laid down in Article 7(1)(b) of Regulation No 40/94; and

               —

               order the OHIM to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Three dimensional mark in form of a square white tablet showing a blue five petalled floral design for goods in class 3 (washing and bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; preparations for the washing, cleaning and care of dishes; soaps) — application No 1 697 432

      Decision of the examiner: Refusal of the application
   Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Violation of Article 7(1)(b) of Council Regulation No 40/94.


title: Case C-109/11: Action brought on 3 March 2011 — European Commission v Czech Republic

text:
               28.5.2011

               EN

               Official Journal of the European Union

               C 160/11

         Action brought on 3 March 2011 — European Commission v Czech Republic
   (Case C-109/11)
   2011/C 160/11
   Language of the case: Czech

      Parties

      Applicant: European Commission (represented by: K. Walker and D. Triantafyllou, acting as Agents)

      Defendants: Czech Republic

      Form of order sought

               —

               Declare that, by authorising non-taxable persons to become members of a VAT group, the Czech Republic has failed to fulfil its obligations under Articles 9 and 11 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax; (1)

               —

               order the Czech Republic to pay the costs.

      Pleas in law and main arguments

   According to Article 9(1) of Directive 2006/112/EC, ‘taxable person’ shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity. Article 11 of that directive provides that, after consulting the advisory committee on value added tax (hereafter, the ‘VAT Committee’), each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.
   In the opinion of the Commission, by permitting non-taxable persons to become members of VAT groups in accordance with Article 11 of Directive 2006/112/EC, the Czech Republic has failed to fulfil its obligations under Articles 9 and 11 of Regulation 20é6/112/EC.

      (1)  OJ 2006 L 347, p. 1.


title: Case T-237/06: Action brought on 4 September 2006 — Nederlandse Omroep Stichting v Commission of the European Communities

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/51

         Action brought on 4 September 2006 — Nederlandse Omroep Stichting v Commission of the European Communities
   (Case T-237/06)
   (2006/C 294/106)
   Language of the case: Dutch
   Parties

      Applicant: Nederlandse Omroep Stichting (represented by: J.J. Feenstra and H.M.H. Speyart, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the Commission's decision, in particular Article 1(1) and (2) and Articles 2 and 3 and the recitals on which they are based;

               —

               order the Commission to pay the costs

         Pleas in law and main arguments
   By its application the Nederlandse Omroep Stichting (NOS) seeks the annulment of the Commission's decision of 22 June 2006 on ad hoc financing of the Dutch public broadcasters (State aid C 2/2004 [ex NN 170/2003]).
   In support of its application the applicant alleges, first, breach of Article 88(1), (2) and (3) EC and of Regulation No 659/1999 (1). It submits that the Commission has incorrectly interpreted and applied the distinction between new and existing aid. The ad hoc aid which is the subject of the contested decision was merely a part of the total system of public financing of Dutch public broadcasters. The general system has been recognised by the Commission as existing aid. The cash flows, which the Commission refers to as ad hoc financing, are provided on the same lines and should, according to the applicant, therefore be regarded as existing aid.
   Secondly, the applicant alleges breach of Articles 87 and 88 EC as result of the Commission's incorrect interpretation and application of the judgment in Altmark
       (2). According to the applicant, the Commission found, wrongly and on the basis of an unfair criterion, that the ad hoc financing should be regarded as State aid. The applicant submits that the criteria developed in Altmark by the Court of Justice cannot be applied in the present situation. Instead, the Amsterdam Protocol on the financing of public broadcasting (3) should be the point of departure.
   Thirdly, the applicant alleges breach of Articles 87 and 88 EC, Article 253 EC and Regulation No 659/1999 as result of the lack of connection between the provision of the ad hoc financing and the overcompensation found by the Commission. According to the applicant, the overcompensation connected with the creation of reserves in the case of the broadcasting institutions is not sufficiently attributable to the allocation of the funds which the Commission refers to as ad hoc financing.
   Fourthly, the applicant alleges breach of Articles 87 and 88 EC as result of the fact that the Commission wrongly regards copyright royalties as State aid. Moreover, the ad hoc financing is not favouring the applicant as an undertaking within the meaning of Article 87(1) EC and the public financing awarded does not lead to a distortion of competition within the meaning of Article 87(1) EC.
   Fifthly, the applicant alleges breach of Article 86(2) EC owing to a lack of proportionality. Also when viewed in the light of the Amsterdam Protocol on the financing of public broadcasting, the Commission wrongly failed, after finding that there was no distortion of competition, to balance the lack of negative effects of overcompensation against the interest of the performance of a public task and the Community's interest in general. The applicant submits that the Commission should have also taken into account the limited nature of the Dutch language area and the fact that the reserves that had arisen would have led to expenditure in the foreseeable future and would thus have disappeared.
   Finally, the applicant alleges breach of the rules of procedure in Article 88(2) EC and the rights of the defence as result of the fact that the Commission extended the scope of the investigation in various respects.

      (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).

      (2)  Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GmbH [2003] ECR I-7747.

      (3)  Protocol annexed to the Treaty establishing the European Community concerning the system of public broadcasting in the Member States.


title: Case T-563/11: Action brought on 28 October 2011 — Anbouba v Council

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/53

      Action brought on 28 October 2011 — Anbouba v Council
      (Case T-563/11)
      (2012/C 25/104)
      Language of the case: French

         Parties

         Applicant: Issam Anbouba (Homs, Syria) (represented by: M.-A. Bastin and J.-M. Salva, lawyers)

         Defendant: Council of the European Union

         Form of order sought

                  —

                  Declare this application admissible in all its elements;

                  —

                  Declare it well founded in all its pleas in law;

                  —

                  State that the contested acts may be annulled in part since the part of the acts which is to be annulled can be separated from the act as a whole;

                  —

                  Accordingly

                              —

                              Annul in part Council Decision 2011/522/CFSP of 2 September 2011, Council Decision 2011/628/CFSP of 23 September amending Decision 2011/273/CFSP concerning restrictive measures against Syria and Regulation No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria by deleting the listing of Mr Issam Anbouba and references to him as supporting the current regime in Syria;

                              —

                              Failing that, annul Council Decision 2011/522/CFSP of 2 September 2011, Council Decision 2011/628/CFSP of 23 September amending Decision 2011/273/CFSP concerning restrictive measures against Syria and Regulation No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria;

                  —

                  Failing that, declare those decisions and the regulation inapplicable as regards Issam Anbouba and order the removal of his name and references from the list of persons who are the object of sanctions by the European Union;

                  —

                  Order the Council provisionally to pay one euro in damages as compensation for the non-pecuniary and pecuniary harm suffered by reason of the designation of Mr Issam Anbouba as a supporter of the current regime in Syria;

                  —

                  Order the Council to pay all the costs.

         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:

                              —

                              firstly, infringement of the principle of the presumption of innocence guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and by Article 48 of the Charter of Fundamental Rights of the European Union and

                              —

                              secondly, a manifest error of assessment, since the accusations against the applicant do not rest on objective facts but on mere allegations connected with his social status as a businessman.

                  2.

                  Second plea in law, divided into four parts, alleging infringement of the rights of the defence and of the right to a fair hearing, of the duty to state reasons, of the right to a private life and the right to freedom of religion, since:

                              —

                              the applicant has not been sent any evidence or serious indications which could have led to his inclusion in the list of persons subject to sanction and was not heard before the adoption of the contested acts;

                              —

                              the defendant merely used a very general form of words in the contested acts, in particular without stating reasons, when drawing up the restrictive measures against the applicant;

                              —

                              the adoption of restrictive measures against the applicant has given rise to strong reactions and threats from persons or groups which are victims of the Syrian repression with which the applicant has been associated following the contested acts;

                              —

                              the true reason for the adoption of the restrictive measures against the applicant is religious in nature.


title: Opinion 1/09: Opinion of the Court (Full Court) of 8 March 2011 — Council of the European Union (Opinion delivered pursuant to Article 218(11) TFEU — Draft agreement — Creation of a unified patent litigation system — European and Community Patents Court — Compatibility of the draft agreement with the Treaties)

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/2

         Opinion of the Court (Full Court) of 8 March 2011 — Council of the European Union
   (Opinion 1/09) (1)

   (Opinion delivered pursuant to Article 218(11) TFEU - Draft agreement - Creation of a unified patent litigation system - European and Community Patents Court - Compatibility of the draft agreement with the Treaties)
   2011/C 211/03
   Language of the case: all the official languages.

      Parties

      Applicant: Council of the European Union

      Re:

   Request for an opinion — Compatibility, with the EC Treaty, of a draft agreement creating a unified patent litigation system — European and Community Patents Court, composed of a court of first instance and a court of appeal — Attribution to that court of jurisdiction to determine, in particular, disputes relating to the validity and/or application of Community patents, linked to the power or the obligation for that court to refer to the Court of Justice questions for a preliminary ruling on the interpretation of the EC Treaty or the validity and interpretation of acts adopted by the European Union institutions — Adverse effect on the autonomy of the Community legal order and the primacy of Community law?

      Operative part

   The envisaged agreement creating a unified patent litigation system (currently called ‘European and Community Patents Court’) is not compatible with the provisions of the EU Treaty and the FEU Treaty.

      (1)  OJ C 220, 12.9.2009.


title: Case C-439/01: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat im Land Niederösterreich, Aussenstelle Mistelbach, by order of that court of 6 November 2001 in the case of Libor Cipra and Vlastimil Kvasnicka against Bezirkshauptmannschaft Mistelbach.

text:
C 31/4                 EN                   Official Journal of the European Communities                                       2.2.2002
Action brought on 12 November 2001 by the Com-                         exempted from tax should result in zero tax, Italian excise duty
mission of the European Communities against the Italian                is at a high rate of LIT 1 260 000 per 1 000 kg of lubricating
                             Republic                                  oil. This is clearly contrary to Article 3(2) of Directive 92/12
                                                                       in conjunction with Article 8(1)(a) of Directive 92/81.
                         (Case C-437/01)
                                                                       (1) OJ L 76, 23.3.1992, p. 1.
                                                                       (2) OJ L 316, 31.10.1992, p. 12.
                          (2002/C 31/07)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 12 Novem-
ber 2001 by the Commission of the European Communities,                Reference for a preliminary ruling by the Unabhängiger
represented by Enrico Traversa and Kilian Gross, acting as             Verwaltungssenat im Land Niederösterreich, Aussenstelle
Agents.                                                                Mistelbach, by order of that court of 6 November 2001 in
                                                                       the case of Libor Cipra and Vlastimil Kvasnicka against
                                                                                Bezirkshauptmannschaft Mistelbach.
The applicant claims that the Court should:                                                     (Case C-439/01)
—     declare that, by maintaining in force a tax on lubricating                                 (2002/C 31/08)
      oils the Italian Republic has breached its obligations
      under Article 3(2) of Council Directive 92/12/EEC (1) of
      25 February 1992 on the general arrangements for
      products subject to excise duty and Article 8(1)(a) of
      Council Directive 92/81/EEC (2) of 19 October 1992 on            Reference has been made to the Court of Justice of the
      the harmonisation of the structures of excise duties on          European Communities by order of the Unabhängiger Verwal-
      mineral oils;                                                    tungssenat im Land Niederösterreich, Aussenstelle Mistelbach,
                                                                       (Independent Administrative Chamber in the Land of Lower
                                                                       Austria, Mistelbach Branch) of 6 November 2001, received at
—     order the Italian Republic to pay the costs.                     the Court Registry on 13 November 2001, for a preliminary
                                                                       ruling in the case of Libor Cipra and Vlastimil Kvasnicka
                                                                       against Bezirkshauptmannschaft Mistelbach, on the following
                                                                       questions:
Pleas in law and main arguments
                                                                       1.    Do drivers falling within the scope of Council Regulation
                                                                             No 3820/85 of 20 December 1985 on the harmonisation
                                                                             of certain social legislation relating to road transport (1)
                                                                             have to satisfy the requirements set out in Article 8(1)
The Commission submits that allowing Italy to impose a                       and (2) of that regulation cumulatively where there are
national tax on lubricating oils which it is bound to exempt                 two drivers or is Article 8(2) a special rule that prevails
from harmonised excise duty under Article 8(1)(a) of Directive               over Article 8(1)?
92/81 would deprive that article of any practical effect.
                                                                       2.    Where there are two drivers falling within the scope of
                                                                             Council Regulation No 3820/85 of 20 December 1985
                                                                             on the harmonisation of certain social legislation relating
For the purposes of the application of Article 3(2) of Directive             to road transport, is Article 8(1) of that regulation, or
92/12 exemptions are covered either by the rules on determin-                possibly Article 8(1) and (2), inapplicable because of
ing the tax base or by the rules concerning the arrangements                 incompatibility with superior Community law?
for the calculation of harmonised excise duty. It follows
that the Italian tax on lubricating oils is incompatible with
Article 3(2) of that directive since a tax of that sort is not
consistent with the general scheme of rules relating to excise         (1) OJ L 370, p. 1.
duty on mineral oils as far as calculation of the tax and
determination of the tax base are concerned. Whereas the
application of harmonised excise duty to a taxable subject


title: Case T-397/13: Judgment of the General Court of 14 January 2016 — Tilly-Sabco v Commission (Agriculture — Export refund — Poultry meat — Implementing regulation fixing the refund at EUR 0 — Action for annulment — Regulatory act not entailing implementing measures — Direct concern — Admissibility — Article 3(3) of Regulation (EU) No 182/2011 — Obligation to state reasons — Article 164(3) of Regulation (EC) No 1234/2007 — Legitimate expectations)

text:
               29.2.2016

               EN

               Official Journal of the European Union

               C 78/15

         Judgment of the General Court of 14 January 2016 — Tilly-Sabco v Commission
   (Case T-397/13) (1)

   ((Agriculture - Export refund - Poultry meat - Implementing regulation fixing the refund at EUR 0 - Action for annulment - Regulatory act not entailing implementing measures - Direct concern - Admissibility - Article 3(3) of Regulation (EU) No 182/2011 - Obligation to state reasons - Article 164(3) of Regulation (EC) No 1234/2007 - Legitimate expectations))
   (2016/C 078/23)
   Language of the case: French

      Parties

      Applicant: Tilly-Sabco (Guerlesquin, France) (represented by: R. Milchior, F. Le Roquais and S. Charbonnel, lawyers)

      Defendant: European Commission (represented by: D. Bianchi and K. Skelly, acting as Agents)

      Intervener in support of the applicant: Doux SA (Châteaulin, France) (represented by: J. Vogel, lawyer)

      Re:

   Application for annulment of Commission Implementing Regulation (EU) No 689/2013 of 18 July 2013 fixing the export refunds on poultrymeat (OJ 2013 L 196, p. 13).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Tilly-Sabco to pay its own costs, including those relating to the interim proceedings;

               3.

               Orders the European Commission to pay its own costs, including those relating to the interim proceedings;

               4.

               Orders Doux SA to pay its own costs;

               5.

               Orders the French Republic to pay its own costs incurred as an intervener in the interim proceedings.

      (1)  OJ C 291, 5.10.2013.


title: Case T-430/08: Judgment of the General Court of 9 July 2010 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS) (Community trade mark — Opposition proceedings — Application for Community word mark GRAIN MILLERS — Earlier national business name Grain Millers and its figurative representation — Partial refusal to register — Relative ground for refusal — Likelihood of confusion — Article 8(4) of Regulation (EC) No 40/94 (now Article 8(4) of Regulation (EC) No 207/2009))

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/34

         Judgment of the General Court of 9 July 2010 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)
   (Case T-430/08) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark GRAIN MILLERS - Earlier national business name Grain Millers and its figurative representation - Partial refusal to register - Relative ground for refusal - Likelihood of confusion - Article 8(4) of Regulation (EC) No 40/94 (now Article 8(4) of Regulation (EC) No 207/2009))
   2010/C 234/59
   Language of the case: English

      Parties

      Applicant: Grain Millers, Inc. (Eden Prairie, Minnesota, United States) (represented by: L.-E. Ström, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court: Grain Millers GmbH & Co. KG (Bremen, Germany) (R. Böckenholt, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 23 July 2008 (Case R 478/2007-2), concerning opposition proceedings between Grain Millers GmbH & Co. KG and Grain Millers, Inc.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Grain Millers, Inc. to pay the costs.

      (1)  OJ C 313, 6.12.2008.


title: Case C-289/00: Reference for a preliminary ruling by the Corte di Appello di Genova, First Civil Division, by order of that court of 21 June 2000 in the case of Fincantieri — Cantieri Navali Italiani SpA and Finmeccanica SpA v Federico Bianchi and Others

text:
C 285/2                 EN                    Official Journal of the European Communities                                      7.10.2000
Reference for a preliminary ruling by the Hessisches                     21 June 2000, which was received at the Court Registry on
Finanzgericht by order of that court of 21 February 2000                 24 July 2000, for a preliminary ruling in the case of Fincantieri
in the case of Medi Bayreuth Weihermüller & Voigtmann                    — Cantieri Navali Italiani SpA and Finmeccanica SpA v
     GmbH & Co. KG v Oberfinanzdirektion Koblenz                         Federico Bianchi and Others, on the following questions:
                         (Case C-263/00)
                                                                         Must Articles 1(2)(e) and 2(1)(c) of Council Regulation (EEC)
                                                                         No 3541/92 (1) of 7 December 1992 be interpreted as meaning
                         (2000/C 285/03)                                 that Italian natural persons (in this case the respondent
                                                                         lawyers) are not permitted, in reliance on a transfer of a claim
Reference has been made to the Court of Justice of the                   pro solvendo (for payment of fees for legal representation) by an
European Communities by order of the Hessiches Finanzger-                Iraqi subject (in this case Rafidain Bank), to require in Italy
icht (Finance Court, Hessen) of 21 February 2000, received at            from an Italian legal person (in this case Fincantieri and
the Court Registry on 28 June 2000, for a preliminary ruling             Finmeccanica) payment in respect of an award of costs to the
in the case of Medi Bayreuth Weihermüller & Voigtmann                    Iraqi subject (the transferor of the claim) contained in an Italian
GmbH & Co. KG v Oberfinanzdirektion Koblenz (Principal                   judgment which has become res judicata?
Revenue Office, Koblenz) on the following questions:
a)    Does the description ‘orthopaedic appliances’ within the
      meaning of CN Code No 9021 cover functional knee                   (1) OJ L 361 of 10.12.1992, p. 1.
      supports with tracking stays and functional knee orthoses
      with a supportive effect, consisting essentially of neo-
      prene, with two removable aluminium side stays, 30 cm
      and 37 cm long respectively, with extension-limited
      polycentric joints and two Velcro fastening straps, where
      proper use of each of the above appliances requires an
      individual setting of the joints with extension-limiting
      wedges?
                                                                         Reference for a preliminary ruling by the Oberster
b)    Does the term ‘solely’, used in Note 1(b) of CN Chapter 90
                                                                         Gerichtshof of the Republic of Austria, by a decision of
      and in Note 2(b) to CN Chapters 61 and 62 allow the
                                                                         that court of 27 June 2000 in the case of Johann Franz
      elasticity of the material to be regarded as the sole relevant
                                                                         Duchon v Pensionsversicherungsanstalt der Angestellten
      criterion even if the supportive function is strengthened
      by other materials?
                                                                                (Case C-290/00)
c)    If Question b) is answered in the affirmative:
      Is General Rule A.3(b) in the General rules for the                                         (2000/C 285/05)
      interpretation of the comined nomenclature suitable for
      determining the question when the supportive function              Reference has been made to the Court of Justice of the
      of the other materials is predominant, or what other               European Communities by a decision of the Oberster Gerichts-
      criteria should be used to determine the question?                 hof (Supreme Court) of the Republic of Austria of 27 June
                                                                         2000, which was received at the Court Registry on 24 July
                                                                         2000, for a preliminary ruling in the case of Johann Franz
                                                                         Duchon v Pensionsversicherungsanstalt der Angestellten on
                                                                         the following questions:
                                                                         1.    Does the situation of an employed person who, as a
                                                                               national of a country which is now a Member State, was
Reference for a preliminary ruling by the Corte di Appello                     employed prior to the accession of that Member State in
di Genova, First Civil Division, by order of that court of                     another Member State and sustained an accident there,
21 June 2000 in the case of Fincantieri — Cantieri Navali                      fall within the scope of Council Regulation (EEC)
Italiani SpA and Finmeccanica SpA v Federico Bianchi                           No 1408/71 of 14 June 1971(1) on the application of
                            and Others                                         social security schemes to employed persons, to self-
                                                                               employed persons and to members of their families
                         (Case C-289/00)                                       moving within the Community, as amended and updated
                                                                               by Council Regulation (EEC) No 2001/83 of 2 June
                                                                               1983 (2), as amended by Council Regulation (EEC)
                         (2000/C 285/04)
                                                                               No 1249/92 of 30 April 1992 (3), where the person
                                                                               concerned applies for an occupational disability pension
Reference has been made to the Court of Justice of the                         after the accession of the Member State and the accident
European Communities by an order of First Civil Division of                    at work can have the effect of establishing entitlement to
the Corte di Appello di Genova (Genoa Appeal Court) of                         an occupational disability pension?


title: Case C-267/09: Action brought on 15 July 2009 — Commission of the European Communities v Portuguese Republic

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/27

         Action brought on 15 July 2009 — Commission of the European Communities v Portuguese Republic
   (Case C-267/09)
   2009/C 220/52
   Language of the case: Portuguese

      Parties

      Applicant: Commission of the European Communities (represented by R. Lyal and G. Braga da Cruz, Agents)

      Defendant: Portuguese Republic

      Form of order sought

               —

               a declaration that, by approving and maintaining in force statutory provisions contained in Article 130 of the Code of Personal Income Tax (Código do Imposto sobre o Rendimento das Pessoas Singulares, ‘the CIRS’), that require taxpayers not resident in Portugal to appoint a tax representative, the Portuguese Republic has failed to fulfil its obligations under Articles 18 and 56 of the EC Treaty and the corresponding articles of the EEA Agreement:

               —

               an order that the Portuguese Republic should pay the costs.

      Pleas in law and main arguments

   The Commission considers that Article 130 of the Code of Personal Income Tax lays down a general obligation imposed on persons not resident in Portuguese territory to appoint a tax representative resident in Portugal, an obligation incompatible with Articles 18 EC and 56 EC and with the corresponding articles of the EEA Agreement:

               (a)

               on the one hand, an obligation imposed on persons not resident in Portuguese territory who receive only income definitively taxed at source to appoint a tax representative resident in Portugal;

               (b)

               on the other hand, an obligation imposed on persons not resident in Portuguese territory who receive income requiring the submission of a tax return to appoint a tax representative resident in Portugal.

         According to the Commission, a general obligation such as that laid down in Article 130 of the CIRS is contrary to the principle of free movement of persons and capital enshrined in Articles 18 and 56 EC and in the corresponding articles of the EEA Agreement, for it is discriminatory (in relation to persons not resident in Portuguese territory) and at the same time it is disproportionate to the aim pursued.
   It is discriminatory in that, in practice, that obligation represents a financial charge imposed on non-residents, given that in most cases such representatives will not offer their services free of charge. Moreover, even if the services of a tax representative are offered free of charge, the mere fact that it is mandatory to appoint one is, in itself, an impediment to the free movement of persons and capital, for it must –if that impediment is not to exist — be for the taxpayer himself to decide whether he wishes to appoint a tax representative.
   In addition, even if the tax representative has no obligation or responsibility whatsoever to pay the tax, but must do no more than perform duties of a formal nature, the mere fact that it is compulsory to appoint a representative is, per se, an impediment to the free movement of persons and capital, for it must –if that impediment is not to exist — be for the taxpayer himself to decide whether he wishes to appoint a tax representative.
   Nor is that obligation proportionate, for the objective pursued, that of ensuring effective fiscal control and of combating tax avoidance, while legitimate, might be attained by less restrictive methods.
   On the one hand, Council Directive 2008/55/EC (1) of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures, codifying Council Directive 76/308/EEC of 15 March 1976, provides for mutual assistance in the recovery of claims relating to taxes, and so for income taxes (compare Article 2(g)), as is the case with the IRS (personal income tax). On the other hand, as provided in Council Directive 77/799/EEC (2) of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, the competent authority of one Member State may always request the competent authority of another Member State to forward to it the information necessary to combat tax avoidance.

      (1)  OJ 2008 L 150, p. 28.

      (2)  OJ 1977 L 336, p. 15.


title: Case C-505/09 P: Judgment of the Court (Second Chamber) of 29 March 2012 — European Commission v Republic of Estonia, Republic of Lithuania, Slovak Republic, United Kingdom of Great Britain and Northern Ireland (Appeal — Environment — Directive 2003/87/EC — Greenhouse gas emission allowance trading scheme — National allocation plan for emission allowances for the Republic of Estonia for the period 2008 to 2012 — Respective competences of the Commission and the Member States — Article 9(1) and (3) and Article 11(2) of Directive 2003/87 — Equal treatment — Principle of sound administration)

text:
               26.5.2012

               EN

               Official Journal of the European Union

               C 151/2

         Judgment of the Court (Second Chamber) of 29 March 2012 — European Commission v Republic of Estonia, Republic of Lithuania, Slovak Republic, United Kingdom of Great Britain and Northern Ireland
   (Case C-505/09 P) (1)

   (Appeal - Environment - Directive 2003/87/EC - Greenhouse gas emission allowance trading scheme - National allocation plan for emission allowances for the Republic of Estonia for the period 2008 to 2012 - Respective competences of the Commission and the Member States - Article 9(1) and (3) and Article 11(2) of Directive 2003/87 - Equal treatment - Principle of sound administration)
   2012/C 151/03
   Language of the case: Estonian

      Parties

      Appellant: European Commission (represented by: E. Kružíková and E. Randvere and by E. White, acting as Agents)

      Intervener in support of the Commission: Kingdom of Denmark (represented by C. Vang, acting as Agent)

      Other parties to the proceedings: Republic of Estonia (represented by: L. Uibo and M. Linntam, acting as Agents), Republic of Lithuania, Slovak Republic, United Kingdom of Great Britain and Northern Ireland

      Interveners in support of the Republic of Estonia: Czech Republic (represented by M. Smolek, acting as Agent), Republic of Latvia (represented by K. Drēviņa and I. Kalniņš, acting as Agents)

      Re:

   Appeal against the judgment of the General Court (Seventh Chamber) of 23 September 2009 in Case T-263/07 Estonia v Commission by which the Court annulled the Commission’s decision of 4 May 2007 concerning the national greenhouse gas allocation plan notified by the Republic of Estonia for the period from 2008 to 2012, in accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32) — Error of law in examining the admissibility of the application for annulment — Misinterpretation of Articles 9(1) and (3) and 11(2) of Directive 2003/87/EC and the general principle of equal treatment — Misinterpretation of the scope and extent of the principle of sound administration — Erroneous classification of the provisions of the contested decision as not separable, leading to the total rather than partial annulment of that decision

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Commission to pay the costs;

               3.

               Orders the Czech Republic, the Kingdom of Denmark and the Republic of Latvia to bear their own costs.

      (1)  OJ C 63, 13.3.2010.


title: Case T-129/09: Judgment of the General Court of 4 May 2011 — Bongrain v OHIM — apetito (APETITO) (Community trade mark — Opposition proceedings — Application for the Community word mark APETITO — Earlier Community word mark apetito — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/15

         Judgment of the General Court of 4 May 2011 — Bongrain v OHIM — apetito (APETITO)
   (Case T-129/09) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark APETITO - Earlier Community word mark apetito - Relative ground for refusal - Likelihood of confusion - Similarity of the goods - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2011/C 179/26
   Language of the case: English

      Parties

      Applicant: Bongrain SA (Viroflay, France) (represented by: C. Hertz-Eichenrode, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: apetito AG (Rheine, Germany) (represented by: T. Weeg, lawyer)

      Re:

   ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 2 February 2009 (Case R 720/2008-4) relating to opposition proceedings between apetito AG and Bongrain SA

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Bongrain SA to pay the costs.

      (1)  OJ C 141, 20.6.2009.


title: Case T-99/03: Judgment of the Court of First Instance of 13 September 2005 — Atienza Morales v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Meaning of ‘international organisation’)

text:
               15.10.2005

               EN

               Official Journal of the European Union

               C 257/9

         Judgment of the Court of First Instance of 13 September 2005 — Atienza Morales v Commission
   (Case T-99/03) (1)

   (Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Meaning of ‘international organisation’)
   (2005/C 257/15)
   Language of the case: French
   Parties:

      Applicant(s): Maria Luisa Atienza Morales (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

      Defendant(s): Commission of the European Communities (represented by: J. Curral and V. Joris, agents)
   Application for:
   (i) annulment of the Commission's decision of 20 June 2002 refusing to grant the applicant payment of the expatriation allowance laid down in Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the Commission's decision of 13 December 2002 rejecting the complaint brought to that end and (ii) payment of that allowance from 1 April 2002
   Operative part of the judgment:
   The Court:

               1)

               Dismisses the application;

               2)

               Orders each party to bear its own costs.

      (1)  OJ C 124, 24.5.2003.


title: Case C-520/12 P: Order of the Court (Seventh Chamber) of 4 July 2013 — Diadikasia Symvouloi Epicheiriseon AE v European Commission, EU Delegation to Turkey, Central Finance & Contracts Unit (CFCU) (Appeals — Instrument for Pre-Accession Assistance — Public procurement — Project for the enlargement of the European Turkish Business Centres Network — Decision not to award the project — Application for damages for the alleged losses — National decision — No involvement by European Union bodies)

text:
               19.10.2013

               EN

               Official Journal of the European Union

               C 304/3

         Order of the Court (Seventh Chamber) of 4 July 2013 — Diadikasia Symvouloi Epicheiriseon AE v European Commission, EU Delegation to Turkey, Central Finance & Contracts Unit (CFCU)
   (Case C-520/12 P) (1)

   (Appeals - Instrument for Pre-Accession Assistance - Public procurement - Project for the enlargement of the European Turkish Business Centres Network - Decision not to award the project - Application for damages for the alleged losses - National decision - No involvement by European Union bodies)
   2013/C 304/05
   Language of the case: English

      Parties

      Appellant: Diadikasia Symvouloi Epicheiriseon AE (represented by: A. Krystallidis, avocat)

      Other party to the proceedings: European Commission (represented by: A. Aresu and F. Erlbacher, acting as Agents), EU Delegation to Turkey, Central Finance & Contracts Unit (CFCU)

      Re:

   Appeal brought against the order of the General Court (Fourth Chamber) of 13 September 2012 in Case T-369/11 Diadikasia Symbouloi Epicheiriseon AE v European Commission, Central Finance & Contracts Unit (CFCU) and Delegation of the European Union to Turkey, by which the General Court dismissed an application for damages seeking compensation for harm allegedly suffered by the applicant following a decision by the Delegation of the European Union to Turkey not to award the applicant the contract to carry out the project ‘Enlargement of the European Turkish Business Centers Network to Sivas, Antakya, Batman and Van’ (EuropeAid/128621/D/SER/TR) — Inadmissibility — Lack of jurisdiction

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Diadikasia Symvouloi Epicheiriseon AE to pay the costs.

      (1)  OJ C 26, 26.1.2013.


title: Case T-95/13: Action brought on 13 February 2013 — Walcher Meßtechnik v OHIM (HIPERDRIVE)

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/36

         Action brought on 13 February 2013 — Walcher Meßtechnik v OHIM (HIPERDRIVE)
   (Case T-95/13)
   2013/C 108/85
   Language of the case: German

      Parties

      Applicant: Walcher Meßtechnik GmbH (Kirchzarten, Germany) (represented by S. Walter, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 December 2012 in Case R 1779/2012-1;

               —

               Order OHIM to pay the costs including those incurred in the course of the appeal proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘HIPERDRIVE’ for goods in Classes 7 and 9

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed in part

      Pleas in law:

               —

               Infringement of Article 7(1)(c) of Regulation No 207/2009

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009


title: Case F-34/09: Action brought on 2 April 2009 — Sluiter v Europol

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/25

         Action brought on 2 April 2009 — Sluiter v Europol
   (Case F-34/09)
   2009/C 167/48
   Language of the case: Dutch

      Parties

      Applicant: Rudolf Sluiter (Hillegom, the Netherlands) (represented by: P. de Casparis, lawyer)

      Defendant: European Police Office (Europol)

      Subject-matter and description of the proceedings

   Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer him a permanent post, and the decision of 7 January 2009 rejecting the complaint brought against the first decision.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the decision of 12 June 2008 by which the defendant informed the applicant that it could not offer him a permanent post and the decision of 7 January 2009 in response to a complaint, stating that the objections which the applicant had raised to the decision of 12 June 2008 were unfounded;

               —

               order Europol to pay the costs.


title: Case C-677/11: Reference for a preliminary ruling from the Conseil d’Etat (France) lodged on 29 December 2011 — SNC Doux Élevage and Société Coopérative Agricole UKL-ARREE v Ministère de l’Agriculture, de l’alimentation, de la pêche, de la ruralité et de l'aménagement du territoire and Comité interprofessionnel de la dinde française (CIDEF)

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/11

         Reference for a preliminary ruling from the Conseil d’Etat (France) lodged on 29 December 2011 — SNC Doux Élevage and Société Coopérative Agricole UKL-ARREE v Ministère de l’Agriculture, de l’alimentation, de la pêche, de la ruralité et de l'aménagement du territoire and Comité interprofessionnel de la dinde française (CIDEF)
   (Case C-677/11)
   2012/C 89/16
   Language of the case: French

      Referring court

   Conseil d’Etat, France

      Parties to the main proceedings

      Applicants: SNC Doux Élevage, Société Coopérative Agricole UKL-ARREE

      Defendants: Ministère de l’Agriculture, de l’alimentation, de la pêche, de la ruralité et de l’aménagement du territoire, Comité interprofessionnel de la dinde française (CIDEF)

      Question referred

   Must Article 107 of the Treaty on the Functioning of the European Union, read in the light of Case C-345/02 Pearle BV and Others, be interpreted as meaning that a decision by which a national authority extends to all the traders in a sector an agreement which, like the agreement made within the Comité interprofessionnel de la dinde française (CIDEF), introduces the levying of a contribution in an inter-trade organisation recognised by that national authority, thus rendering that contribution compulsory, in order to make it possible to implement certain activities — publicity activities, promotional activities, external relations activities, quality assurance activities, research activities, activities in defence of the sector’s interests, and the use of studies and consumer panels — is, in view of the nature of the activities in question, the methods by which they are financed and the conditions of their implementation, related to State aid?


title: Case C-565/13: Request for a preliminary ruling from the Hovrätten för västra Sverige (Sweden) lodged on 4 November 2013 — Kammaråklagaren v Ove Ahlström, Lennart Kjellberg, Fiskeri AB Ganthi and Fiskeri AB Nordic

text:
               18.1.2014

               EN

               Official Journal of the European Union

               C 15/9

         Request for a preliminary ruling from the Hovrätten för västra Sverige (Sweden) lodged on 4 November 2013 — Kammaråklagaren v Ove Ahlström, Lennart Kjellberg, Fiskeri AB Ganthi and Fiskeri AB Nordic
   (Case C-565/13)
   2014/C 15/13
   Language of the case: Swedish

      Referring court

   Hovrätten för västra Sverige

      Parties to the main proceedings

      Applicant: Kammaråklagaren

      Defendants: Ove Ahlström, Lennart Kjellberg, Fiskeri AB Ganthi and Fiskeri AB Nordic

      Questions referred

               1.

               Is Article 6(1) of the fisheries partnership agreement between the European Community and the Kingdom of Morocco exclusive in that it excludes Community vessels from being authorised to fish in Moroccan fishing zones on the basis of licences issued exclusively by the competent Moroccan authorities for Moroccan owners of fishing quotas?

               2.

               Is Article 6(1) of the fisheries partnership agreement between the European Community and the Kingdom of Morocco exclusive in that it excludes Community vessels from being chartered to Moroccan companies on a bareboat charter (on the standard’Barecon 2001’ BIMCO Standard Bareboat Charter form) for fishing in Moroccan fishing zones carried out on the basis of a licence issued exclusively by the competent Moroccan authorities to Moroccan owners of quotas?

               3.

               Is the answer to question 2 affected in the event that the chartering party also gives competence in the form of administration and crewing of the fishing vessel and technical support to the Moroccan company?

               4.

               Does the fisheries partnership agreement between the European Community and the Kingdom of Morocco mean that the Kingdom of Morocco is entitled to develop and carry out its own domestic industrial pelagic fishing alongside the agreement below the 29th Parallel (N)? If that is the case, does the agreement entitle the Kingdom of Morocco to charter or grant licences directly to Community fishing vessels for its domestic fishing without there being a need for a permit from the European Community?


title: Case T-374/07: Action brought on 22 September 2007 — Pachtitis v Commission of the European Communities and EPSO

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/37

         Action brought on 22 September 2007 — Pachtitis v Commission of the European Communities and EPSO
   (Case T-374/07)
   (2007/C 283/68)
   Language of the case: Greek
   Parties

      Applicant: Demetrios Pachtitis (Athens, Greece) (represented by: P. Giatagantzidis, B. Niangou, lawyers)

      Defendant: Commission of the European Communities and the European Personnel Selection Office (EPSO)
   Form of order sought

               —

               annul the decision by EPSO of 27 June 2007 and its implied decision to reject the applicant's confirmatory application of 10 July 2007, relating to his right to access to EPSO documents;

               —

               order EPSO to send to him (i) a true copy of the questions put to him and his answers at the two preliminary tests (a) and (b) when he took part in the Open Competition EPSO/AD/77/06 (OJ C 277 A, p. 1) to constitute a reserve list for recruitment by the European institutions of administrator linguists (AD 5) having Greek as main language, in the field of translation and (ii) a true copy of the list of correct answers to those two preliminary tests taken by him;

               —

               order the Commission of the European Communities and EPSO to pay the costs.

         Pleas in law and main arguments
   The applicant claims that the refusal of the European Personnel Selection Office (EPSO) to provide to him a true copy of the questions put to him and his answers at the two preliminary tests (a) and (b) when he took part in the Open Competition EPSO/AD/77/06 (OJ C 277 A, p. 1) and a true copy of the list of the correct answers to those preliminary tests taken by him, is a decision which is unlawful and insufficiently justified, given that it infringes his right to access to the documents of the European institutions under Article 255 EC and Articles 2 and 4 of Regulation (EC) No 1049/2001 (1), and that the statement of its reasons is very vague and infringes Article 253 EC. At the same time, according to the applicant, the refusal of EPSO to produce the above documents is contrary to the principles of transparency, proper administration, legal certainty and the protection of the legitimate expectations of citizens.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145,p. 43).


title: Judgment of the Court (First Chamber) of 11 January 2001 in Case C-370/99: Commission of the European Communities v Ireland (Failure of a Member State to fulfil its obligations — Directive 96/9/EC — Failure to implement within the prescribed period)

text:
C 150/4                   EN                      Official Journal of the European Communities                                          19.5.2001
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                            (First Chamber)                                                          of 18 January 2001
                          of 11 January 2001                                 in Case C-361/98: Italian Republic v Commission of the
                                                                                European Communities (1)
in Case C-370/99: Commission of the European Communi-                        (Council Regulation (EEC) No 2408/92 — Application for
                             ties v Ireland (1)                              annulment of Commission Decision 98/710/EC — Distri-
                                                                             bution of air traffic between the airports of Milan —
                                                                                ‘Malpensa 2000’)
(Failure of a Member State to fulfil its obligations —
Directive 96/9/EC — Failure to implement within the
                           prescribed period)                                                          (2001/C 150/07)
                            (2001/C 150/06)
                                                                                (Language of the case: Italian)
                     (Language of the case: English)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-370/99: Commission of the European Communities
(Agents: K. Banks and M. Desantes) v Ireland (Agents:
M.A. Buckley) — application for a declaration that, by failing               In Case C-361/98: Italian Republic (Agents: U. Leanza, assisted
to adopt the laws, regulations and administrative provisions                 by I.M. Braguglia and P.G. Ferri) v Commission of the
necessary to comply with Directive 96/9/EC of the European                   European Communities (Agents: F. Benyon and L. Pignataro)
Parliament and of the Council of 11 March 1996 on the legal                  — application for annulment of Commission Decision
protection of databases (OJ 1996 L 77, p. 20), Ireland has                   98/710/EC of 16 September 1998 on a procedure relating to
failed to fulfil its obligations under that directive — the Court            the application of Council Regulation (EEC) No 2408/92
(First Chamber), composed of: M. Wathelet, President of the                  (Case VII/AMA/11/98 — Italian traffic distribution rules for
Chamber, P. Jann and L. Sevón (Rapporteur), Judges; P. Léger,               the airport system of Milan) (OJ 1998 L 337, p. 42) —
Advocate General; R. Grass, Registrar, has given a judgment                  the Court, composed of: G.C. Rodrı́guez Iglesias, President,
on 11 January 2001, in which it:                                             C. Gulmann, A. La Pergola, M. Wathelet and V. Skouris
                                                                             (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet,
                                                                             P. Jann, L. Sevón, R. Schintgen and F. Macken (Rapporteur),
1.    Declares that, by failing to adopt the laws, regulations and           Judges; G. Cosmas, Advocate General; H. von Holstein, Deputy
      administrative provisions necessary to comply with Directive           Registrar, for the Registrar, has given a judgment on 18 January
      96/9/EC of the European Parliament and of the Council of               2001, in which it:
      11 March 1996 on the legal protection of databases, Ireland
      has failed to fulfil its obligations under that directive;
                                                                             1.    Dismisses the application;
2.    Orders Ireland to pay the costs.
                                                                             2.    Orders the Italian Republic to pay the costs.
(1) OJ C 352 of 4.12.1999.                                                   (1) OJ C 378 of 5.12.1998.


title: Judgment of the Court (Second Chamber) of 2 June 2005 in Case C-282/02: Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Water pollution — Directive 76/464/EEC)

text:
               12.11.2005

               EN

               Official Journal of the European Union

               C 281/2

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 2 June 2005
   in Case C-282/02: Commission of the European Communities v Ireland (1)

   (Failure of a Member State to fulfil obligations - Water pollution - Directive 76/464/EEC)
   (2005/C 281/04)
   Language of the case: English
   In Case C-282/02, action under Article 226 EC for failure to fulfil obligations, brought on 31 July 2002, Commission of the European Communities (Agent: M. Shotter) v Ireland (Agent: D.J. O'Hagan, assisted by A.M. Collins, lawyer) the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, C. Gulmann, J. Makarczyk and P. Kūris, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 2 June 2005, in which it:

               1.

               Declares that, in failing to take all of the measures necessary to ensure a correct transposition and application of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, Ireland has failed to comply with its obligations under Article 7 of that directive;

               2.

               Dismisses the remainder of the action;

               3.

               Orders Ireland to pay the costs.

      (1)  OJ C 261 of 26.10.2002.


title: Case T-162/08: Action brought on 29 April 2008 — Frag Comercio Internacional v OHIM — Tinkerbell Modas (GREEN by missako)

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/40

         Action brought on 29 April 2008 — Frag Comercio Internacional v OHIM — Tinkerbell Modas (GREEN by missako)
   (Case T-162/08)
   (2008/C 171/78)
   Language in which the application was lodged: English
   Parties

      Applicant: Frag Comercio Internacional, SL (Esparraguera, Spain) (represented by: E. Sugrañes, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Tinkerbell Modas, Ltda (São Paulo, Brazil)
   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 14 February 2008 in case R 1527/2006-2;

               —

               reject the application for Community trade mark No 3 663 234; and

               —

               order the other party to the proceedings before the Board of Appeal to pay the costs.

         Pleas in law and main arguments

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

      Community trade mark concerned: The figurative mark ‘GREEN by missako’ for goods and services in classes 3, 25, 35 — application No 3 663 234

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

      Mark or sign cited: The Community figurative trade mark ‘MI SA KO’ for goods in classes 18 and 25; the national figurative trade mark ‘MI SA KO’ for services in class 35

      Decision of the Opposition Division: Dismissal of the opposition

      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 a mere global likelihood of confusion among consumers is required in order to deny a Community trade mark application.


title: Case C-447/99: Action brought on 24 November 1999 by the Commission of the European Communities against the Italian Republic

text:
5.2.2000               EN                       Official Journal of the European Communities                                        C 34/15
Action brought on 24 November 1999 by the Com-                             Action brought on 25 November 1999 by the Com-
mission of the European Communities against the Italian                    mission of the European Communities against the Grand
                             Republic                                                             Duchy of Luxembourg
                         (Case C-447/99)                                                             (Case C-448/99)
                          (2000/C 34/28)
                                                                                (2000/C 34/29)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 24 Novem-                  An action against the Grand Duchy of Luxembourg was
ber 1999 by the Commission of the European Communities,                    brought before the Court of Justice of the European Communi-
represented by Frank Benyon and Stefania Dragone, of its                   ties on 25 November 1999 by the Commission of the Euro-
Legal Service, acting as Agents, with an address for service in            pean Communities, represented by Michel Nolin, of its Legal
Luxembourg at the office of Carlos Gómez de la Cruz, of its               Service, acting as Agent, with an address for service in
Legal Service, Wagner Centre, Kirchberg.                                   Luxembourg at the office of Carlos Gómez de la Cruz, of its
                                                                           Legal Service, Wagner Centre, Kirchberg.
The applicant claims that the Court should:
                                                                           The Commission claims that the Court should:
1. Declare that, by maintaining in force the provisions of
     Article 3 of the Ministerial Decree of 13 August 1998,                1. Declare that, by failing to bring into force the laws,
     which brings into force Law No 537 of 24 December                          regulations and administrative provisions necessary to
     1993, as amended by Law No 662 of 23 December 1996,                        comply with Articles 8(3) and 9(2) of Directive 97/13/EC
     which provide for differentiated airport taxes according to                of the European Parliament and of the Council of 10 April
     whether the flight is domestic or to another Member State,                 1997 on a common framework for general authorisations
     the Italian Republic has failed to fulfil its obligations under            and individual licences in the field of telecommunications
     Article 59 of the EC Treaty and Article 3(1) of Regulation                 services (1), the Grand Duchy of Luxembourg has failed to
     (EEC) No 2408/92 (1);                                                      fulfil its obligations under that directive;
2. Order the Italian Republic to pay the costs.                            2. Order the Grand Duchy of Luxembourg to pay the costs.
Pleas in law and main arguments                                            Pleas in law and main arguments
The Commission submits that the distinction made by the                    The two complaints which are the subject of this application
Italian legislation between flights between Italy and other                relate to the individual licences mentioned in Section III of
Member States and domestic Italian flights, resulting in                   Directive 97/13/EC.
different airport taxes, is incompatible with the principle of
freedom to provide services enshrined in Article 59 of the EC
Treaty (now, after amendment, Article 49 EC) and Article 62                — By failing to publish, as provided for by Article 7(2)(e) of
of the EC Treaty (repealed by the Treaty of Amsterdam) and                      the Law of 21 March 1997 on telecommunications, the
the provisions of Regulation No 2408/92 as well as with the                     conditions specified for the establishment and operation
right to move freely within the territory of the Member States                  of a radio paging service, the Grand Duchy of Luxembourg
conferred on the citizens of the Union by Article 8a of the EC                  has failed to fulfil its obligation under Article 8(3) of the
Treaty (now, after amendment, Article 18 EC).                                   directive;
In the Commission’s view, the differentiation of the airport tax           — By failing to provide that an applicant must be informed,
measure offers the certain prospect of a specific advantage to                  within a period of six weeks, of the decision taken on his
the Italian home market and to national air carriers.                           licence application, the Grand Duchy of Luxembourg has
                                                                                failed to fulfil its obligation under Article 9(2) of the
                                                                                directive.
(1) Council Regulation (EEC) No 2408/92 of 23 July 1992 on
    access for Community air carriers to intra-Community air routes
    (OJ 1992 L 240, p. 1).                                                 (1) OJ L 117 of 17.5.1997, p. 15.


title: Case F-102/12: Action brought on 25 September 2012 — ZZ v Parliament

text:
               24.11.2012

               EN

               Official Journal of the European Union

               C 366/41

         Action brought on 25 September 2012 — ZZ v Parliament
   (Case F-102/12)
   2012/C 366/82
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: C. Bernard-Glanz and S. Rodrigues, lawyers)

      Defendant: European Parliament

      Subject-matter and description of the proceedings

   Annulment of the decision to re-grade the applicant in grade AST 5, step 3, with retroactive effect

      Form of order sought

               —

               Annul the contested decision and, if necessary, the decision rejecting the appeal;

               —

               Indicate to the defendant the effects of that annulment, namely the applicant’s re-grading in grade D 4, step 8, with effect from 1 May 2004, a reconstitution of his career in accordance with the promotions and increases in step which he has had since then and payment of any arrears of remuneration;

               —

               Order the European Parliament to pay the costs.


title: Case C-5/10 P: Order of the Court (Fifth Chamber) of 16 May 2011 — Giampietro Torresan v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Klosterbrauerei Weissenohe GmbH & Co. KG (Appeals — Community trade mark — Word mark CANNABIS — Invalidity proceedings — Absolute ground for refusal — Descriptive character — Regulation (EC) No 40/94 — Article 7(1)(c))

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/7

         Order of the Court (Fifth Chamber) of 16 May 2011 — Giampietro Torresan v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Klosterbrauerei Weissenohe GmbH & Co. KG
   (Case C-5/10 P) (1)

   (Appeals - Community trade mark - Word mark CANNABIS - Invalidity proceedings - Absolute ground for refusal - Descriptive character - Regulation (EC) No 40/94 - Article 7(1)(c))
   2011/C 252/12
   Language of the case: Italian

      Parties

      Appellant: Giampietro Torresan (represented by: G. Recher and R. Munarini, avvocati)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto, acting as Agent), Klosterbrauerei Weissenohe GmbH & Co. KG (represented by: A. Masetti Zannini de Concina, M. Bucarelli and R. Cartella, avvocati)

      Re:

   Appeal against the judgment of the Court of First Instance (Second Chamber) of 19 November 2009 in Case T-234/06 Torresan v OHIM, by which the Court dismissed the action brought against the decision of the Second Board of Appeal of OHIM of 29 June 2006 (Case R 517/2005-2), relating to invalidity proceedings between Klosterbrauerei Weissenohe GmbH & Co. KG and Giampietro Torresan

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Torresan is ordered to pay the costs.

      (1)  OJ C 63, 13.3.2010.