title: Case C-268/99: Reference for a preliminary ruling by the Arrondissementsrechtbank 's-Gravenhage, sitting in Amsterdam, by decision of 15 July 1999 in the case of A.M. Jany, E. Padevetova, R. Zacalova, Z. Hrubcinova, S. Überlackerova, and K.A. Szepietowska v Staatssecretaris van Justitie

text:
C 265/4                EN                   Official Journal of the European Communities                                     18.9.1999
II. Are the conditions laid down in Article 3(1)(a) and (d) of         1. Can Polish and Czech nationals rely directly on the
     the regulation satisfied if a plant protection product has           Agreements in the sense that they are entitled, vis-à-vis a
     been produced by means of a patented process as a result             Member State, to claim that they derive a right to admission
     of which it contains a lower amount of unavoidable                   and residence from the right laid down in Article 44 of the
     impurities than an existing plant protection product with            Agreement with Poland/Article 45 of the Agreement with
     the same active substance, a new authorisation has been              the Czech Republic to take up and pursue economic
     obtained for this new plant protection product, and the              activities as self-employed persons and to set up and
     patent covering the manufacturing process in question was            manage undertakings, irrespective of the policy which the
     designated as the basic patent within the meaning of                 Member State in question pursues in this regard?
     Article 3(1), opening passage and subparagraph (a)?
(1) OJ 1996 L 198, p. 30.                                              2. If the answer to that question is in the affirmative: is a
                                                                          Member State free undet Article 58 of the Agreement with
                                                                          Poland/ Article 59 of the Agreement with the Czech
                                                                          Republic to make the right to admission and residence
                                                                          subject to specific conditions such as those contained in
                                                                          the policy followed by the Netherlands, which include the
Reference for a preliminary ruling from the Tribunale                     condition that the alien must be able, by carrying on
Amministrative Regionale per la Lombardia (Lombardy                       his business, to receive adequate means of support [in
Regional Administrative Court), third Section, by order                   accordance with Chapter A4/4.2.1. of the 1994 VC, this
of that court of 27 November 1998 in the case of Excelsior                means a net income which is at least equal to the
SNC di Pedrotti Bruna & C., formerly Excelsior SNC di                     subsistence level within the meaning of the Algemene
Costa Rodolfo & C. v Ente Autonomo Fiera Internazionale                   Bijstandswet (General Law on Welfare)]?
di Milano and CIFTAT, a limited liability cooperative
                             society
                                                                       3. Does Article 44 of the Agreement with Poland/Article 45
                        (Case C-260/99)                                   of the Agreement with the Czech Republic allow prosti-
                                                                          tution to be excluded from the notion of ‘economic
                        (1999/C 265/06)                                   activities as self-employed persons’ on the ground that
                                                                          prostitution does not come within the description in
Reference has been made to the Court of Justice of the
                                                                          Article 44(4), opening words and (c), of the Agreement
European Communities by an order of the Tribunale Amminis-
                                                                          with Poland/Article 45(4), opening words and (c), of the
trative Regionale per la Lombardia (Lombardy Regional
                                                                          Agreement with the Czech Republic for reasons of a moral
Administrative Court), third Section, of 27 November 1998,
                                                                          nature, on the ground that prostitution is prohibited in (a
which was received at the Court Registry on 13 July 1999, for
                                                                          majority of) the associate countries, and on the ground
a preliminary ruling in the case of Excelsior SNC di Pedrotti
                                                                          that it gives rise to problems concerning the freedom of
Bruna & C., formerly Excelsior SNC di Costa Rodolfo & C. v
                                                                          action of prostitutes and their independence which are
Ente Autonomo Fiera Internazionale di Milano and CIFTAT, a
                                                                          difficult to monitor?
limited liability cooperative society on the following question:
May the definition of a body governed by public law contained          4. Do Article 43 (ex Article 52) of the EC Treaty and
in Article 1(b) of Council Directive 92/50/EEC (1) of 18 June             Article 44 of the Agreement with Poland/Article 45 of
1992 be deemed applicable to the Ente Autonomo Fiera                      the Agreement with the Czech Republic permit such a
Internazionale di Milano?                                                 distinction to be drawn between the notions of ‘activities
                                                                          as self-employed persons’ and ‘economic activities as
(1) OJ 1992 L 209 of 24.7.1992, p. 1.                                     self-employed persons’ featuring in those respective pro-
                                                                          visions that the activities carried out by a prostitute in a
                                                                          self-employed capacity come within the term used in
                                                                          Article 43 (ex Article 52) of the EC Treaty but not within
                                                                          that used in those articles of the Agreements?
Reference for a preliminary ruling by the Arrondisse-
mentsrechtbank ’s-Gravenhage, sitting in Amsterdam,
by decision of 15 July 1999 in the case of A.M. Jany,                  5. If the answer to the previous question is that the distinction
E. Padevetova, R. Zacalova, Z. Hrubcinova, S. Über-                      therein referred to is permissible:
lackerova, and K.A. Szepietowska v Staatssecretaris van
                             Justitie
                                                                          a) Is it compatible with Article 44 of the Agreement with
                        (Case C-268/99)                                        Poland/Article 45 of the Agreement with the Czech
                                                                               Republic and the freedom of establishment which
                        (1999/C 265/07)                                        those provisions are intended to realise to impose
                                                                               minimum conditions on the self-employed persons
Reference has been made to the Court of Justice of the                         referred to in paragraph (3) of those articles in regard
European Communities by decision of 15 July 1999 from the                      to the range of their activities and also to impose
Arrondissementsrechtbank ’s-Gravenhage (District Court, The                    restrictions such as that:
Hague), sitting in Amsterdam, which was received at the Court
Registry or 19 July 1999, for a preliminary ruling in the
case of A.M. Jany, E. Padevetova R. Zacalova, Z. Hrubcinova,                   — the operator must perform skilled work;
S. Überlackerova, and K.A. Szepietowska v Staatssecretaris van
Justitie on the following questions:                                           — a business strategy must exist;
 ---pagebreak--- 18.9.1999            EN                    Official Journal of the European Communities                                        C 265/5
       — the operator must (also) attend to the management            Reference for a preliminary ruling by the Hoge Raad der
           of the business and not (exclusively) to the execu-        Nederlanden, by judgment of 6 July 1999 in the criminal
           tive (production) activities;                                         proceedings against G.A.P. van der Burg
                                                                                (Case C-278/99)
       — the operator must strive to ensure continuity of
           the undertaking, which means inter alla that the                                    (1999/C 265/08)
           must have this principal place of residence in the
           Netherlands;                                               Reference has been made to the Court of Justice of the
                                                                      European Communities by judgment of 6 July 1999 from
                                                                      the Hoge Raad der Nederlanden (Supreme Court of the
       — there must be investment, and long-term commit-              Netherlands), which was received at the Court Registry on
           ments must be entered into?                                26 July 1999, for a preliminary ruling in the criminal proceed-
                                                                      ings against G.A.P. van der Burg on the following questions:
                                                                      1. Must Article 1 of Directive 83/189 (1) be interpreted as
   b) Does Article 44 of the Agreement with Poland/                       meaning that Article C.11.1(1) of the Besluit radio-elektrische
                                                                          inrichtingen (Decree on Radio-Electrical Equipment), which
       Article 45 of the Agreement with the Czech Republic
                                                                          provides that ‘It is prohibited to make commercial adver-
       provide justification for not regarding as self-employed           tisements, or cause commercial advertisements to be made,
       any person who is dependent on and indebted to the                 for transmitting equipment which is not of an approved
       person who recruited her and/or placed her in work,                type’, should be treated as a technical regulation within the
       even though it is established that, as between the                 meaning of Directive 83/189, regard being had to the
       person concerned and that third party, there is no                 statutory rules set out above [...] and in light of the issues
       question of an employment relationship, against which              considered in that context [...]?
       the term ‘self-employed’ in paragraph 4 of Articles 44
       and 45 of the Agreements seeks to establish a barrier?         2. If the answer to Question 1 is in the affirmative: does this
                                                                          have the result that such a provision cannot be applied
                                                                          only if it constitutes a barrier to trace of to the free
                                                                          movement of goods in a specific case, or should it be held
                                                                          that such a provision must be set aside if the provision
                                                                          generally, and thus irrespective of the specific case, has or
                                                                          may have the effect of a barrier to trade?
                                                                      (1) OJ 1983 L 109, p. 8.


title: Case C-234/11: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 16 May 2011 — TETS Haskovo AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ , gr. Varna, pri Sentralno Upravlenie na Natsionalna Agentsia po Prihodite

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/15

         Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 16 May 2011 — TETS Haskovo AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, gr. Varna, pri Sentralno Upravlenie na Natsionalna Agentsia po Prihodite
   (Case C-234/11)
   2011/C 232/26
   Language of the case: Bulgarian

      Referring court

   Administrativen Sad Varna

      Parties to the main proceedings

      Applicant: TETS Haskovo AD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’, gr. Varna, pri Sentralno Upravlenie na Natsionalna Agentsia po Prihodite

      Questions referred

               1.

               How is the expression ‘destruction of property’ for the purposes of Article 185(2) of Directive 2006/112 (1) to be interpreted, and are the motives for the destruction and/or the conditions under which it takes place relevant for the purposes of the adjustment to the deduction made upon acquisition of the property?

               2.

               Is the demolition of capital assets, duly proved, with the sole aim of creating new, more modern capital assets with the same purpose to be regarded as a modification of the factors used to determine the amount to be deducted within the meaning of Article 185(1) of Directive 2006/112?

               3.

               Is Article 185(2) of Directive 2006/112 to be interpreted as permitting the Member States to make adjustments in the case of the destruction of property where its acquisition remained totally or partially unpaid?

               4.

               Is Article 185(1) and (2) of Directive 2006/112 to be interpreted as precluding a national provision like Article 79(3) of the Law on VAT and Article 80(2)(1) of the Law on VAT, which provides for an adjustment of the deduction made in cases of destruction of property upon the acquisition of which a total payment of the basic amount and the tax calculated was made, and which makes the non-adjustment of a deduction dependent on a condition other than payment?

               5.

               Is Article 185(2) of Directive 2006/112 to be interpreted as ruling out the possibility of an adjustment to the deduction in the case of the demolition of existing buildings with the sole aim of creating new, more modern buildings in their place which fulfil the same purpose as the demolished buildings and [are used for transactions] which [give] entitlement to [deduction of input] VAT?

      (1)  OJ L 347, 11.12.2006, p. 1.


title: Case C-545/16: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 28 October 2016 — Kubota (UK) Limited, EP Barrus Limited v Commissioners for Her Majesty's Revenue & Customs

text:
               16.1.2017

               EN

               Official Journal of the European Union

               C 14/28

         Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 28 October 2016 — Kubota (UK) Limited, EP Barrus Limited v Commissioners for Her Majesty's Revenue & Customs
   (Case C-545/16)
   (2017/C 014/33)
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicants: Kubota (UK) Limited, EP Barrus Limited

      Defendant: Commissioners for Her Majesty's Revenue & Customs

      Questions referred

               1.

               Is Commission Implementing Regulation (EU) 2015/221 (1) concerning the classification of certain goods in the Combined Nomenclature invalid in so far as it classifies the vehicles specified in the Regulation under CN Code 8704 21 91, rather than CN Code 8704 10?

               2.

               In particular, is Commission Implementing Regulation (EU) 2015/221 concerning the classification of certain goods in the Combined Nomenclature invalid in so far as it: unduly restricts the scope of subheading 8704-10; takes into account impermissible factors; is internally inconsistent; does not take proper account of the Explanatory Notes, CN headings and GIRs; and/or fails to take account of the relevant requirements identified by case law of the Court of Justice of the European Union in relation to CN heading 8704 10?

      (1)  Commission Implementing Regulation (EU) 2015/221 of 10 February 2015 concerning the classification of certain goods in the Combined Nomenclature

      OJ L 37, p. 1


title: Case T-65/04: Judgment of the Court of First Instance of 27 June 2007 — Nuova Gela Sviluppo v Commission (ERDF — Conclusion of Community financial assistance — Action for annulment — Action for damages — Arbitration clause)

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/31

         Judgment of the Court of First Instance of 27 June 2007 — Nuova Gela Sviluppo v Commission
   (Case T-65/04) (1)

   (ERDF - Conclusion of Community financial assistance - Action for annulment - Action for damages - Arbitration clause)
   (2007/C 183/61)
   Language of the case: Italian
   Parties

      Applicant: Nuova Gela Sviluppo Soc. Cons. pa, formerly Gela Sviluppo Soc. Cons. pa (Gela, Italy) (represented by: P. Menchetti, lawyer)

      Defendant: Commission of the European Communities (represented by: L. Flynn and M. Velardo, acting as Agents, assisted by A. Dal Ferro, lawyer)
   Re:
   Primarily, annulment of the decision contained in the Commission's letter of 16 December 2003 concerning the closure of assistance ERDF 98.05.26.001, annulment of the Commission decisions reducing the assistance, withdrawing the assistance and recovering the balance of the assistance, and annulment of Article 6(2) of Commission Decision SEC (1999) 1316 of 9 September 1999 on guidelines for the financial closure of operational assistance (1994-1999) from the Structural Funds, and, in the alternative, compensation for the loss suffered by the applicant and performance of the agreement of 13 September 1999 between the applicant and the Commission.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 106, 30.4.2004.


title: Case T-312/06: Order of the Court of First Instance of 17 June 2008 — FMC Chemical v EFSA (Action for annulment — Action for damages — Directive 91/414/EEC — Plant protection products — Opinion of the European Food Safety Authority — Non-actionable measure — Preparatory measure — Inadmissibility)

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/53

         Order of the Court of First Instance of 17 June 2008 — FMC Chemical v EFSA
   (Case T-312/06) (1)

   (Action for annulment - Action for damages - Directive 91/414/EEC - Plant protection products - Opinion of the European Food Safety Authority - Non-actionable measure - Preparatory measure - Inadmissibility)
   (2008/C 209/95)
   Language of the case: English
   Parties

      Applicant: FMC Chemical SPRL (Brussels, Belgium) (represented by: C. Mereu and K. Van Maldegem, lawyers)

      Defendant: European Food Safety Authority (EFSA) (represented initially by: A. Cuvillier and D. Detken, and subsequently by A. Cuvillier and S. Gabbi, Agents)
   Intervener in support of the applicant: European Crop Protection Association (ECPA), (Brussels, Belgium) (represented by D. Waelbroeck and N. Rampal, lawyers)
   Intervener in support of the defendant: Commission of the European Communities, (represented by B. Doherty, Agent)
   Re:
   APPLICATION for (i) annulment of the opinion of EFSA of 28 July 2006 on the assessment of the active substance carbosulfan under Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1), and (ii) compensation for the damage sustained.
   Operative part of the order

               1.

               The action is dismissed.

               2.

               FMC Chemical SPRL, the European Food Safety Authority (EFSA), the European Crop Protection Association (ECPA) and the Commission shall each bear their own costs.

      (1)  OJ C 326, 30.12.2006.


title: Case C-326/99: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 24 August 1999 in the case of Stichting 'Goed Wonen' (formerly Woningbouwvereniging 'Goed Wonen') against Staatssecretaris van Financiën

text:
C 333/16               EN                   Official Journal of the European Communities                                      20.11.1999
(4) What is the relationship between Article 5(6) and                  Reference for a preliminary ruling from the Hoge Raad
    Article 5(7)(c) of the Directive?                                  der Nederlanden by judgment of that court of 24 August
                                                                       1999 in the case of G. van de Water against Staatssecreta-
(5) If the answer to Question (1) is to the effect that the                                    ris van Financiën
    subsequent (tax deductible) work carried out (bodywork
    repairs and respraying) is not subject to tax on disposal of                                (Case C-325/99)
    the goods (car) under Article 5(6) of the Directive, is the
    deduction of input tax on these services to be adjusted                                     (1999/C 333/34)
    under Article 20(1)(b) of the Directive?
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Hoge Raad der
(1) OJ 1977 L 145, p. 1.                                               Nederlanden (Supreme Court of the Netherlands) of 24 August
                                                                       1999, received at the Court Registry on 31 August 1999, for
                                                                       a preliminary ruling in the case of G. van de Water against
                                                                       Staatssecretaris van Financiën on the following question:
                                                                       Can the (mere) holding of a product subject to excise duty
                                                                       within the meaning of Article 3(1) of Council Direc-
                                                                       tive 92/12/EEC (1) be regarded as a release for consumption
Reference for a preliminary ruling from the Bundes-                    within the meaning of Article 6(1) of that Directive, if and in
finanzhof (Federa1 Finance Court) by order of that court               so far as duty has not already been levied on it pursuant to
of 15 July 1999 in the case of Finanzamt Düsseldorf-                   the applicable provisions of Community law and national
              Mettmann v Klaus Brandenstein                            legislation?
                         (Case C-323/99)                               (1) OJ 1992 L 76, p. 1.
                         (1999/C 333/33)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Bundesfinanzhof              Reference for a preliminary ruling from the Hoge Raad
of 15 July 1999, which was received at the Court Registry on           der Nederlanden by judgment of that court of 24 August
27 August 1999, for a preliminary ruling in the case of                1999 in the case of Stichting ‘Goed Wonen’ (formerly
Finanzamt Düsseldorf-Mettmann v Klaus Brandenstein on the              Woningbouwvereniging ‘Goed Wonen’) against Staatsse-
following question:                                                                          cretaris van Financiën
Under the first sentence of Article 5(6) of Directive                                           (Case C-326/99)
77/388/EEC (1), the application by a taxable person of goods
forming part of his business assets for his private use, where                                  (1999/C 333/35)
the value added tax on the goods in question or the component
parts thereof was wholly or partly deductible, is to be treated        Reference has been made to the Court of Justice of the
as supplies made for consideration.                                    European Communities by judgment of the Hoge Raad der
                                                                       Nederlanden (Supreme Court of the Netherlands) of 24 August
1. Is this provision applicable where, although VAT on the             1999, received at the Court Registry on 31 August 1999, for
    goods themselves was not deductible, VAT was deductible            a preliminary ruling in the case of Stichting ‘Goed Wonen’
    on the services or supplies which the taxable person               (formerly Woningbouwvereniging ‘Goed Wonen’) against
    ordered or received in respect of those goods after their          Staatssecretaris van Financiën on the following questions:
    acquisition?
                                                                       1.     Is Article 5(3) of the Sixth Directive (1) to be interpreted
2. What does the term ‘component’ mean in the context of               as meaning that rights in rem entitling the holder thereof to
    this provision?                                                    use immovable property may be treated by the national
                                                                       legislature as corporeal rights only if the remuneration agreed
3. How is the basis of assessment to be determined for a               in respect of the grant, transfer, modification, waiver or
    disposal, where VAT is wholly or partly deductible, not on         termination of those rights is at least equivalent to the financial
    the goods disposed of, but on some of their components?            value of the property concerned?
4. Is the deduction of input tax which a taxable person has            2.     Are Article 13(B)(b) and Article 13(C)(a) of the Sixth
    claimed in respect of services or supplies for goods on the        Directive to be interpreted as meaning that the national
    purchase of which VAT was not deductible to be adjusted            legislature may treat the terms ‘leasing or letting’ as covering
    under Article 20 of Directive 77/388/EEC if the first sen-         not only leasing and/or letting in the sense applied to those
    tence of Article 5(6) of Directive 77/388/EEC is not appli-        terms by civil law but also any other form in which immovable
    cable?                                                             property is made available for use otherwise than by way of
                                                                       the supply thereof?
(1) OJ 1977 L 145, p. 1.
                                                                       (1) OJ 1977 L 145, p. 1.


title: Case C-324/08: Judgment of the Court (First Chamber) of 15 October 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Makro Zelfbedieningsgroothandel C.V., Metro Cash & Carry B.V., Remo Zaandam B.V. v Diesel S.P.A. (Directive 89/104/EEC — Trade-mark law — Exhaustion of trade mark proprietor’s rights — Placing of goods on the market in the European Economic Area by a third party — Implied consent — Conditions)

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/14

         Judgment of the Court (First Chamber) of 15 October 2009 (reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands)) — Makro Zelfbedieningsgroothandel C.V., Metro Cash & Carry B.V., Remo Zaandam B.V. v Diesel S.P.A.
   (Case C-324/08) (1)

   (Directive 89/104/EEC - Trade-mark law - Exhaustion of trade mark proprietor’s rights - Placing of goods on the market in the European Economic Area by a third party - Implied consent - Conditions)
   2009/C 297/15
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicants: Makro Zelfbedieningsgroothandel C.V., Metro Cash & Carry B.V., Remo Zaandam B.V.

      Defendant: Diesel S.P.A.

      Re:

   Reference for a preliminary ruling — Hoge Raad der Nederlanden Den Haag — Interpretation of Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Exhaustion of the right conferred by the mark — Product placed on the market in the Community or the EEA by the trade mark proprietor or with his consent — Implied consent — Conditions

      Operative part of the judgment

   Article 7(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, must be interpreted as meaning that the consent of the proprietor of a trade mark to the marketing of goods bearing that mark carried out directly in the European Economic Area by a third party who has no economic link to that proprietor may be implied, in so far as such consent is to be inferred from facts and circumstances prior to, simultaneous with or subsequent to the placing of the goods on the market in that area which, in the view of the national court, unequivocally demonstrate that the proprietor has renounced his exclusive rights.

      (1)  OJ C 272, 25.10.2008.


title: Case C-248/08: Action brought on 9 June 2008 — Commission of the European Communities v Hellenic Republic

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/29

         Action brought on 9 June 2008 — Commission of the European Communities v Hellenic Republic
   (Case C-248/08)
   (2008/C 209/44)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: E. Tserepa-Lacombe and A. Markoulli)

      Defendant: Hellenic Republic
   Form of order sought
   The Court is asked to:

               —

               declare that the Hellenic Republic has failed to fulfil its obligations under Article 4(2)(a) and (c), Article 5(2)(c), Article 6(2)(b) and Articles 10, 11, 12, 13, 14, 15, 17, 18 and 26 of Regulation (EC) No 1774/2002 (1) of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   By this action the Commission asks the Court to find that the Hellenic Republic has failed to fulfil its obligations under Article 4(2)(a) and (c), Article 5(2)(c), Article 6(2)(b) and Articles 10, 11, 12, 13, 14, 15, 17, 18 and 26 of Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (‘the animal by-products regulation’). It should be noted that this action concerns two sets of infringement proceedings (Infringements 2001/5217 and 2006/2221) which arose from breach of the Hellenic Republic's obligations under specific articles of that regulation.
   In particular the regulation states that once animal waste is collected, transported and identified without undue delay, it must, inter alia, be disposed of as waste, having been processed in the ways provided for in the Regulation in accordance with the category to which the waste belongs (Articles 4(2)(c), 5(2)(c) and 6(2)(b)). Procedures are also laid down for the disposal of specified risk material by incineration (Article 4(2)(a)). Further, the animal by-products regulation lays down the conditions governing the approval of waste processing plants, intermediate, storage, incineration and co-incineration plants, Category 1 and Category 2 processing plants, Category 2 and Category 3 oleochemical plants, biogas plants and composting plants (Articles 10-15). Similarly, the animal by-products regulation lays down the conditions governing the approval by the competent authorities of Category 3 material processing plants and the approval of petfood plants and technical plants (Articles 17-18). In addition, in accordance with the regulation, the competent authority must carry out at regular intervals inspections and supervision to ascertain that the regulation's provisions are being observed, on the basis of various criteria which are laid down, and to take the appropriate action in the case of non-compliance (Article 26).
   On the basis of a large number of reports drawn up by the Commission's Food and Veterinary Office (FVO), the Commission points out that neither at the end of the time-limits laid down in the reasoned opinion and in the supplementary reasoned opinion nor after those dates had the Hellenic Republic taken all the requisite measures to correct the infringements with which it was charged and consequently to comply with its obligations under the above-mentioned articles of the by-products regulation.
   Since 2004 the FVO has carried out a number of fact-finding trips in Greece to ascertain what defects there are in the application of the by-products regulation. Despite ascertaining that there had been some progress following the advice of the FVO and the adoption of specific legislation in October 2006 which aimed to introduce the requisite administrative measures to apply the provisions of the by-products regulation, in particular as regards the approval of waste processing plants, the FVO inspectors repeatedly found, on-the-spot and until April 2007, when the last fact-finding trip took place, that the Greek authorities had not taken the requisite action to comply with the obligations incumbent on them under the above-mentioned articles of the by-products regulation.
   It should also be pointed out that the non-implementation, or inadequate implementation, of the above-mentioned articles is due, to a large extent, to the ineffective coordination of the competent authorities at the level of the prefectural administration. Furthermore, as is clear from the response of the Greek authorities to the findings set out in the FVO's reports, the level of the controls carried out by the competent authorities and of the penalties imposed by the national legislation do not effectively ensure the effective application of the by-products regulation.

      (1)  OJ L 273 of 10.10.2002, p. 1.


title: Case C-201/04: Reference for a preliminary ruling by the Hof van Beroep te Antwerpen by order of 27 April 2004 in the case of Belgian State and Ministry of Finance v N.V. Molenbergnatie

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/5

         Reference for a preliminary ruling by the Hof van Beroep te Antwerpen by order of 27 April 2004 in the case of Belgian State and Ministry of Finance v N.V. Molenbergnatie
   (Case C-201/04)
   (2004/C 179/10)
   Reference has been made to the Court of Justice of the European Communities by order of 27 April 2004 of the Hof van Beroep te Antwerpen (Appeal Court, Antwerp), which was received at the Court Registry on 5 May 2004, for a preliminary ruling in the case of Belgian State and Ministry of Finance v N.V. Molenbergnatie on the following questions:

               1.

               Do Articles 217 to 232 of the Community Customs Code (Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code – these being the provisions of Chapter 3 (‘Recovery of the amount of the customs debt’) of Title VII (‘Customs debt’), the said Chapter 3 consisting of a Section 1 (‘Entry in the accounts and communication of the amount of duty to the debtor’ – Arts 217 to 221) and a Section 2 (‘Time limit and procedures for payment of the amount of duty’ – Arts 222 to 232) – apply to the recovery of a customs debt which was incurred prior to 1 January 1994 but recovery of which was not undertaken or initiated prior to 1 January 1994?

               2.

               If the first question is answered in the affirmative: must the notification prescribed in Article 221 of the Community Customs Code always take place after the amount of the duties has been entered in the accounts, or, in other words, must the notification prescribed in Article 221 of the Community Customs Code always be preceded by entry of the duties in the accounts?

               3.

               Does late notification of the amount of duties to the debtor – that is to say, notification made after expiry of the three-year period laid down in the original version of Article 221(3) of the Community Customs Code (in force prior to its replacement [effective from 19 December 2000] by Article 1.17 of Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000), even though the customs authorities were in fact in a position to determine, within that three-year period, the precise amount of the duties legally due – make it impossible to pursue recovery of the customs debt in question, lead to the cancellation of the customs debt in question, or have some other consequence in law?

               4.

               Must Member States determine the manner in which notification of the amount of duties, as laid down in Article 221 of the Community Customs Code, must be made to the debtor?
               If the previous question is answered in the affirmative, can the Member State which has failed to specify how notification of the amount of duties as laid down in Article 221 of the Community Customs Code should be made to the debtor argue that any document in which the amount of the duties is set out and which (following entry in the accounts) was notified to the debtor may constitute notification to the debtor of the amount of duties, as prescribed in Article 221 of the Community Customs Code, even though that document does not in any way refer to Article 221 of the Community Customs Code or indicate that it relates to notification to the debtor of the amount of duties owed?

      (1)  OJ L 302 of 19 October 1992, pp. 1-50.


15.8.98               EN                Official Journal of the European Communities                                 C 258/39
In the applicant's view, the notice of competition breaches        breached its obligations by failing to provide her with the
the principle of equal treatment, inasmuch as it excludes          working environment and support necessary in order to
from participation in the selection procedure officials            enable her satisfactorily to complete the tasks assigned to
possessing experience equivalent to that offered by                her.
officials who, at the time of publication of the notice of
competition, were employed in posts similar to the posts           The report prepared in relation to the applicant at the
to be filled.                                                      expiry of her probationary period is vitiated by a manifest
Lastly, the applicant argues that the contested decision is        error of assessment, inasmuch as it concerns duties
vitiated by a complete absence of any relevant statement           completely different from those for which she was
of reasons enabling him to consider whether it was                 recruited.
justified and permitting the Community judicature to
exercise it powers of review.                                      According to the applicant, the defendant has breached
                                                                   the rights of the defence and has committed an abuse of
                                                                   process, since it is only the Centre itself which is
                                                                   competent to adopt a decision dismissing a person and the
                                                                   decision adopted by the Director alone is therefore illegal.
                                                                   Finally, the defendant has not respected the notice periods
Action brought on 30 June 1998 by Tania Trigari-                   laid down by the Conditions of Employment of Other
Venturin against the Translation Centre for Bodies of              Servants and by the signed contract of employment
                     the European Union                            binding the parties.
                        (Case T-98/98)
                         (98/C 258/70)                             As regards the compensation claimed, the defendant's
                                                                   conduct has placed the applicant in a position of
                (Language of the case: French)
                                                                   uncertainty and has caused her to suffer concrete material
An action against the Translation Centre for Bodies of             damage, since she has been deprived of part of the
the European Union was brought before the Court of                 unemployment benefits to which she is entitled.
First Instance of the European Communities on 30 June
1998 by Tania Trigari-Venturin, residing at Sandweiler
(Luxembourg), represented by Jean-NoeÈl Louis, VeÂronique
Leclercq, Ariane Tornel and FrancËoise Parmentier, of the
Brussels Bar, with an address for service in Luxembourg at
the offices of Fiduciaire Myson SARL, 30 Rue de                           Removal from the register of Case T-229/95 (1)
Cessange.
                                                                                (98/C 258/71)
The applicant claims that the Court should:
                                                                                (Language of the case: Italian)
Ð annul the decision of the Translation Centre for Bodies
     of the European Union of 9 October 1997 dismissing
     the applicant with effect from 31 October 1997;               By order of 16 June 1998, the President of the Fourth
                                                                   Chamber (Extended) of the Court of First Instance of the
Ð order the defendant to pay to the applicant the token            European Communities has ordered the removal from the
     sum of one euro by way of compensation for the non-           register of Case T-229/95: Telecom Italia Mobile SpA v
     material damage suffered by her, together with                Commission of the European Communities.
     compensation for the material damage suffered by her
     in the estimated sum of BFR 500 000, subject to               (1) OJ C 46 of 17.2.1996.
     increase or decrease during the course of the
     proceedings;
Ð order the defendant to pay default interest on all sums
     due pursuant to the judgment to be given, calculated
     at the rate of 8 % per annum from the date on which
     the social benefits to which the applicant is entitled               Removal from the register of Case T-128/97 (1)
     became due until the date of payment;                                                 (98/C 258/72)
Ð order the defendant to pay the costs.
                                                                                (Language of the case: French)
Pleas in law and main arguments adduced in support:
                                                                   By order of 17 June 1998 the President of the Second
The applicant considers that, by adopting its decision to
                                                                   Chamber of the Court of First Instance of the European
dismiss her, the defendant infringed Articles 9 and 10 of
                                                                   Communities has ordered the removal from the register of
the Conditions of Employment of Other Servants and
                                                                   Case T-128/97: Lars Bösche v European Parliament.
breached the principle that a person's grade should be
consistent with the duties to be performed by that person,
in that it assigned to the applicant tasks of a higher level       (1) OJ C 212 of 12.7.1997.
than those for which she had been recruited, and failed to
draw up a rider to her contract. The defendant further


title: Action brought on 18 September 1996 by Monika Kawicki against the European Parliament (Case T-145/96)

text:
9 . 11 . 96                EN                     Official Journal of the European Communities                                  No C 336/31
were fulfilled in the present case and, therefore, that the aid              be based on a uniform assessment of all operational
provided was wholly compatible with the common                               disadvantages over a five-year period .
market .
                                                                             It was only in the light of the Commission's classification of
                                                                             Mosel II and Chemnitz II for aid purposes as new
3 . Infringements of the law and absence of reasons in the                   investments that VW initiated and carried on its investment
     application of Article 92 ( 3 ) of the EC Treaty                        plans in the form previously notified and assigned
                                                                             substantial funds of its own thereto .
Furthermore, the Commission has also infringed
Article 92 ( 3 ) of the EC Treaty, which it regards as                       Overall conclusion
applicable . Consequently, the decision should be annulled
even if it is held that Article 92 ( 2 ) ( c ) is inapplicable and that
                                                                             To sum up, the decision is therefore illegal, inasmuch as the
the compatibility of the aid should have been examined by
                                                                             aid compatible with the common market is limited in its
the Commission in the light of Article 92 ( 3 ).
                                                                             amount to the sums fixed by the Commission in the
                                                                             decision, the aid specific in Article 2 is stated to be
Since Saxony is a development region within the meaning of                   incompatible with the common market, the amount of the
Article 92 ( 3 ) ( a ) of the EC Treaty, the Commission should               aid for direct investment grants is limited by Articles 1 and
in any event have examined the compatibility of the aid                      3 ( 2 ) to DM 418,7 million and the combined effective aid
with the common market primarily in the light of                             intensity, expressed in terms of the gross subsidy equivalent,
Article 92 ( 3 ) ( a ) of the Treaty. The Commission unlawfully              is limited by Article 93 ( 2 ) to 22,3 % for Mosel II and 20,8 %
applied the second alternative in Article 92 ( 3 ) (c ) of the               for Chemnitz II .
Treaty instead of Article 92 ( 3 ) ( a ), despite the fact that
Article 92 ( 3 ) ( c ) is superseded by the latter provision and is
thus not applicable to the regional aid at issue in the present
case .
If Article 92 ( 3 ) ( a ) of the Treaty had been applied, the aid            Action brought on 18 September 1996 by Monika Kawicki
would necessarily have been found compatible with the                                       against the European Parliament
common market, without there being any need for
                                                                                Case T-145 /96 )
considerations relating specifically to the sector in issue .
                                                                                ( 96/C 336/65 )
Moreover, in applying Article 92 ( 3 ) ( c ) of the Treaty, the
Commission based its findings on a cost-benefit analysis in                                  (Language of the case: French)
which the Mosel II and Chemnitz II projects were wrongly
regarded not as wholly 'green-field' investments, despite                    An action against the European Parliament was brought
their having been treated as such over a period of several                   before the Court of First Instance of the European
years , but only in segments as investments in expansion . The               Communities on 18 September 1996 by Monika Kawicki,
Commission failed to see that, from the standpoint of                        residing in Luxembourg, represented by Marc Kleyr, of the
Volkswagen, as the investor, the typical drawbacks                           Luxembourg Bar, with an address for service in
associated with 'green-field ' investments applied . As a                    Luxembourg at his Chambers .
result of that incorrect classification, the disadvantages
which were to be offset by aid were substantially                            The applicant claims that the Court should :
underestimated .
                                                                             — annul :
4 . Breach of the principle of the protection of legitimate                       — the decision of the Invalidity Committee of
     expectations                                                                      31 January 1996
Lastly, on the basis of its previous handling of the aid                          — the decisions of the Head of the Personnel Division of
procedure in respect of the Mosel II/Chemnitz II project, in                           9 February 1996 and 7 May 1996
particular by reason of the cost-benefit analyses previously
carried out during the procedure from 1992 to 1994 , the                          — the decision of the Secretary-General of the
Commission prompted VW to entertain expectations                                       European Parliament of 20 June 1996
meriting protection . By altering its position immediately                        — the decision of the Director-General for Personnel,
before the adoption of its decision and thereby abandoning                             the Budget and Finance of 23 August 1996
its longstanding approach to the matter, without providing
any reasons or detailed explanation therefor, the                            — order the European Parliament to pay to the applicant
Commission violated expectations on the part of VW which                          the outstanding balance of her salary as an official from
merited protection .                                                              29 April 1996 , together with default interest from the
                                                                                date when each monthly salary payment respectively fell
The Commission should have found, on the basis of its                             due until final settlement,
handling of the matter over a number of years , that the
Mosel II and Chemnitz II projects fell to be regarded , in                   — order the European Parliament to pay to the applicant
terms of the law relating to aid, as wholly 'green-field'                         the sum of Bfrs 500 000 or such other sum, including
investments, and thus that the cost-benefit analysis was to                       any greater sum, as the Court may regard as fair and
 ---pagebreak--- No C 336/32           EN                 Official Journal of the European Communities                                      9 . 11 . 96
    reasonable, by way of compensation for the material and            her remuneration, in accordance with Article 60 of the
    non-material damage suffered by the applicant as a                 Staff Regulations .
    result of the contested decisions the annulment of which
    is sought,                                                      — Infringement of Article 25 of the Staff Regulations and
                                                                       Article 9 of Annex II thereto
— order the defendant to pay all the costs and expenses of             The applicant maintains that the Invalidity Committee's
    the proceedings .                                                  decision contains neither the statement of reasons which
                                                                       must accompany any decision           relating to a specific
Pleas in law and main arguments adduced in support:                    individual nor any reference to      the medical report on
                                                                       the basis of which the decision      was made . Moreover ,
The applicant, an official of the European Parliament who is           the report of the Invalidity         Committee which is
suffering from a serious illness, contests the Invalidity              communicated to the official concerned must be such as
Committee's decision of 31 January 1996 declining to                   to establish a comprehensible link between the medical
recognize her as suffering from permanent total invalidity,            findings which it contains, having regard to the existing
as well as the various decisions subsequently taken by                 medical file, and the conclusions which it draws . The
different departments of the European Parliament                       decision of the Head of the Personnel Division is
requesting the applicant to resume her duties and rejecting            unlawful because it puts forward, as the sole reason for
her medical certificates and reports .                                 the rejection of the medical certificates and the
                                                                       application of Article 60 of the Staff Regulations (which
The applicant advances the following pleas in support of her           deals with suspension of the payment of remuneration ),
action :
                                                                       the existence of the Invalidity Committee's decision of
                                                                       31 January 1996 .
— Infringement of the rules in respect of competence
    According to the applicant, the European Parliament             — Infringement of Article 24 of the Staff Regulations and
    endorsed the Invalidity Committee's conclusions of                 breach of the duty to have regard for the welfare and
                                                                       interests of officials
    31 January 1996 and justified its decision rejecting the
    medical certificates and reports produced by the                   The duty to have regard for the welfare and interests of
    applicant in respect of the period after 9 February 1996           officials requires the administration, when deciding on
    solely on the ground of the existence of the Invalidity            the situation of an official, to take into account not only
    Committee 's decision . The applicant contends that the            the interests of the service but also those of the official . In
    European Parliament is not the appointing authority;               the applicant's view, the European Parliament has failed
    according to Article 53 of the Staff Regulations and               to fulfil its obligations to provide assistance and to have
    Article 9 of Annex II thereto, that position is held by the        regard for her welfare and interests, since the rejection of
    Director of Personnel and Social Affairs . However, the            the medical certificates is based solely on the Invalidity
    Director    of Personnel    and   Social  Affairs   is  not        Committee's conclusions of 31 January 1996 and does
    empowered to withhold the payment to the applicant of              not provide any other statement of reasons .


title: Case C-313/11: Action brought on 21 June 2011 — European Commission v Republic of Poland

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/23

         Action brought on 21 June 2011 — European Commission v Republic of Poland
   (Case C-313/11)
   2011/C 252/44
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: D. Bianchi and A. Szmytkowska, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

               —

               declare that, by introducing a prohibition on the manufacture, placing on the market and use for animal nutrition in Poland of genetically modified feed and genetically modified organisms intended for feed use, the Republic of Poland has failed to fulfil its obligations under Articles 16(5), 19, 20 and 34 of Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed; (1)

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   The Commission complains that, by adopting the national Law on feed which prohibits the manufacture, placing on the market and use for animal nutrition in Poland of genetically modified feed and genetically modified organisms intended for feed use, the Republic of Poland has failed to fulfil its obligations under Regulation No 1829/2003. As a result of the adoption of that regulation, which introduces full harmonisation in the field of GMO feed authorisations at European Union level, Poland cannot adopt legal provisions prohibiting the placing on the market, use and manufacture in its territory of products that are the subject of such authorisations. Specifically, Poland has infringed:

               —

               Article 16(5) of Regulation No 1829/2003, in accordance with which authorisation for placing on the market, using or processing GMOs for feed use, feed containing or consisting of GMOs and feed produced from GMOs is to be granted, refused, renewed, modified, suspended or revoked only on the grounds given in the regulation and under the procedures set out therein;

               —

               Article 19 of the regulation, which provides that the powers to issue authorisations rest with the Commission;

               —

               Article 20 of the regulation, under which products already placed on the market and authorised pursuant to the law in force prior to the regulation’s entry into force are regarded as authorised pursuant to the regulation;

               —

               Article 34 of the regulation (clause concerning protective measures), a provision which, in view of the full harmonisation of the field in question, constitutes the only possibility for the adoption of emergency measures seeking to suspend or modify an authorisation that has been granted.

         It is irrelevant in this regard that the entry into force of the prohibition at issue has been postponed under national law, because the very adoption by the legislature of the contested provisions that are contrary to European Union law and their publication infringe the obligations owed by the Republic of Poland by virtue of the regulation.

      (1)  OJ 2003 L 268, p. 1.


title: Case T-832/14: Action brought on 30 December 2014  — Nutria v Commission

text:
               9.3.2015

               EN

               Official Journal of the European Union

               C 81/23

         Action brought on 30 December 2014 — Nutria v Commission
   (Case T-832/14)
   (2015/C 081/30)
   Language of the case: French

      Parties

      Applicant: Nutria AE (Agios Konstantinos Locrida, Greece) (represented by: M.-J. Jacquot, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               order the Commission to pay it the sum of EUR 5 2 04  350 for the harm suffered;

               —

               order the Commission to pay it additional compensation in the amount of EUR 12  000 for the costs of proceedings incurred.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law, alleging breach of Article 191 of Regulation (EC) No 1234/2007 (1), because of the Commission’s refusal to extend the deadline by which the Greek part of the food distribution programme for the most deprived people in the Community was to be implemented.

      (1)  Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).


title: Case C-137/12: Judgment of the Court (Grand Chamber) of 22 October 2013 — European Commission v Council of the European Union (Action for annulment — Council Decision 2011/853/EU — European Convention on the legal protection of services based on, or consisting of, conditional access — Directive 98/84/EC — Legal basis — Article 207 TFEU — Common commercial policy — Article 114 TFEU — Internal market)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/8

         Judgment of the Court (Grand Chamber) of 22 October 2013 — European Commission v Council of the European Union
   (Case C-137/12) (1)

   (Action for annulment - Council Decision 2011/853/EU - European Convention on the legal protection of services based on, or consisting of, conditional access - Directive 98/84/EC - Legal basis - Article 207 TFEU - Common commercial policy - Article 114 TFEU - Internal market)
   2013/C 367/13
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: E. Cujo, I. Rogalski, R. Vidal Puig and D. Stefanov, Agents)

      Defendant: Council of the European Union (represented by: R. Liudvinaviciute-Cordeiro, J.-P. Hix and H. Legal, Agents)

      Intervener in support of the applicant: European Parliament (represented by: D. Warin and J. Rodrigues, Agents)

      Interveners in support of the defendant: French Republic (represented by: G. de Bergues, D. Colas and N. Rouam, Agents); Kingdom of the Netherlands (represented by: C. Wissels, M. Bulterman and M. de Ree, Agents); Republic of Poland (represented by: M. Szpunar and B. Majczyna, Agents); Kingdom of Sweden (represented by: A. Falk and C. Stege, Agents); United Kingdom of Great Britain and Northern Ireland (represented by: A. Robinson, Agent, assisted by G. Facenna, Barrister)

      Re:

   Action for annulment — Council Decision 2011/853/EU of 29 November 2011 on the signing, on behalf of the Union, of the European Convention on the legal protection of services based on, or consisting of, conditional access (OJ 2011 L 336, p. 1) — Choice of legal basis — Replacement of the proposed legal basis, in the field of common commercial policy, with another legal basis, linked to the establishment and functioning of the internal market — Objective of promoting trade in services based on conditional access between the European Union and other European countries — Infringement of the European Union’s external competence

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Decision 2011/853/EU of 29 November 2011 on the signing, on behalf of the Union, of the European Convention on the legal protection of services based on, or consisting of, conditional access;

               2.

               Maintains the effects of Decision 2011/853 until the entry into force, within a reasonable period which is not to exceed six months, of a new decision based on the appropriate legal bases;

               3.

               Orders the Council of the European Union to pay the costs;

               4.

               Orders the French Republic, the Kingdom of the Netherlands, the Republic of Poland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

      (1)  OJ C 151, 26.5.2012.


title: Case T-614/14: Judgment of the General Court of 16 June 2016 — Fútbol Club Barcelona v EUIPO — Kule (KULE) (European Union trade mark — Opposition proceedings — Application for European Union word mark KULE — Earlier national word marks and well-known mark CULE — Relative grounds for refusal — No genuine use of the earlier trade marks — Article 42(2) of Regulation (EC) No 207/2009 — Article 8(1)(b) of Regulation No 207/2009 — Article 8(5) of Regulation No 207/2009)

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/40

         Judgment of the General Court of 16 June 2016 — Fútbol Club Barcelona v EUIPO — Kule (KULE)
   (Case T-614/14) (1)

   ((European Union trade mark - Opposition proceedings - Application for European Union word mark KULE - Earlier national word marks and well-known mark CULE - Relative grounds for refusal - No genuine use of the earlier trade marks - Article 42(2) of Regulation (EC) No 207/2009 - Article 8(1)(b) of Regulation No 207/2009 - Article 8(5) of Regulation No 207/2009))
   (2016/C 270/44)
   Language of the case: English

      Parties

      Applicant: Fútbol Club Barcelona (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Kule LLC (New York, New York, United States) (represented by: F. Rodgers, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 18 June 2014 (Case R 2375/2013-4), relating to opposition proceedings between Fútbol Club Barcelona and Kule.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Fútbol Club Barcelona to pay the costs.

      (1)  OJ C 351, 6.10.2014.


title: Case T-153/09: Action brought on 8 April 2009 — ISDIN v OHIM — Pfizer (ISDIN)

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/54

         Action brought on 8 April 2009 — ISDIN v OHIM — Pfizer (ISDIN)
   (Case T-153/09)
   2009/C 141/110
   Language in which the application was lodged: English

      Parties

      Applicant: ISDIN, SA (Barcelona, Spain) (represented by: M. Esteve Sanz, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Pfizer Ltd (Sandwich, United Kingdom)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2009 in case R 390/2008-1;

               —

               Alternatively, annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2009 in case R 390/2008-1, insofar as it invalidates the registered Community trade mark subject of the application for a declaration of invalidity for certain goods in class 5; and

               —

               Order the defendant and, as the case may be, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including those incurred before the Board of Appeal.

      Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark “ISDIN” for goods in classes 3 and 5

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Decision of the Cancellation Division: Declared the Community trade mark concerned partially invalid

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 73 of Council Regulation 40/94 (1) (which became Article 75 of Council Regulation 207/2009) and of Rule 50(2)(h) of Commission Regulation No 2868/95 (2) as the Board of Appeal failed to comply with the duty to state reasons on the risk of confusion between the trade marks concerned; Infringement of Article 51(1)(a) (which became Article 52(1)(a) of Council Regulation 207/2009), in relation with Article 8(1)(b) (which became Article 8(1)(b) of Council Regulation 207/2009) and Article 74 of Council Regulation 40/94 (which became Article 76 of Council Regulation 207/2009) insofar as the Board of Appeal refused to take into account the limitation made by the applicant in its statement of grounds, and thus considered in a general way that the goods in conflict were identical; Alternatively, infringement of Article 51(1)(a), in relation with Article 8(1)(b) of Council Regulation 40/94, insofar as the contested decision refers to certain goods in class 5; Infringement of Article 51(1)(a), in relation with Article 8(1)(b) of Council Regulation 40/94, insofar as the Board of Appeal upheld the validity of the decision of the Cancellation Division for all products initially covered by the contested trade mark.

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

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).


title: Case C-91/05: Judgment of the Court (Grand Chamber) of 20 May 2008 — Commission of the European Communities v Council of the European Union (Action for annulment — Article 47 EU — Common foreign and security policy — Decision 2004/833/CFSP — Implementation of Joint Action 2002/589/CFSP — Combating the proliferation of small arms and light weapons — Community competence — Development cooperation policy)

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/2

         Judgment of the Court (Grand Chamber) of 20 May 2008 — Commission of the European Communities v Council of the European Union
   (Case C-91/05) (1)

   (Action for annulment - Article 47 EU - Common foreign and security policy - Decision 2004/833/CFSP - Implementation of Joint Action 2002/589/CFSP - Combating the proliferation of small arms and light weapons - Community competence - Development cooperation policy)
   (2008/C 171/03)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: P.J. Kuijper, J. Enegren and M. Petite, Agents)

      Intervener in support of the applicant: European Parliament (represented by: R. Passos, K. Lindahl and D. Gauci, Agents)

      Defendant: Council of the European Union, (represented by: J.-C. Piris, R. Gosalbo Bono, S Marquardt and E. Finnegan, Agents)

      Interveners in support of the defendant: Kingdom of Denmark (represented by: A. Jacobsen, C. Thorning and L. Lander Madsen, Agents), Kingdom of Spain (represented by N. Díaz Abad, Agent), French Republic (represented by G. de Bergues, E. Belliard and C. Jurgensen, Agents), Kingdom of the Netherlands (represented by M. de Grave, C. Wissels and H.G. Sevenster, Agents), Kingdom of Sweden (represented by A. Falk, Agent), United Kingdom of Great Britain and Northern Ireland (represented by R. Caudwell and E. Jenkinson, Agents, assisted by A. Dashwood, Barrister)
   Re:
   Annulment of Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons (OJ 2004 L 359, p. 65) and a declaration of the unlawfulness of Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP (OJ 2002 L 191, p. 1)
   Operative part of the judgment

               1.

               Annuls Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons.

               2.

               Orders the Commission of the European Communities and the Council of the European Union to bear their own costs.

               3.

               Orders the Kingdom of Denmark, the Kingdom of Spain, the French Republic, the Kingdom of the Netherlands, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to bear their own costs.

      (1)  OJ C 82, 14.4.2007.


title: Case C-118/01: Action brought on 16 March 2001 by the Commission of the European Communities against the French Republic

text:
5.5.2001                EN                    Official Journal of the European Communities                                       C 134/11
Question 2                                                               Pleas in law and main arguments
Does the fact that the office of departure did not follow an             The mandatory nature of the provisions of Articles 10 and
administrative instruction for the transmission of information           249 EC is such as to oblige Member States to adopt the
laid down in the Customs Code Committee (early warning                   measures necessary in order to transpose directives which are
system) or that the authorities in the office of departure can be        addressed to them into their national legal order prior to the
criticised for failure to notify in good time have any bearing           expiry of the time-limits prescribed for so doing. Those time-
on the answer to Question 1?                                             limits, laid down in Article 5 of Directive 1999/20/EC and in
                                                                         Article 2 of Directive 96/51/EC, expired on 30 September and
                                                                         1 October 1999 respectively.
(1) Council Regulation (EEC) No 2913/92 of 12 October 1992
    establishing the Community Customs Code (OJ 1992 L 302,
    p. 1).                                                               (1) OJ L 80 of 25.3.1999, p. 20.
(2) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying         (2) OJ L 235 of 17.9.1996, p. 39.
    down provisions for the implementation of Council Regulation
    (EEC) No 2913/92 (OJ 1993 L 253, p. 1).
                                                                         Action brought on 19 March 2001 by Commission of the
Action brought on 16 March 2001 by the Commission of                                European Communities against Finland
 the European Communities against the French Republic
                                                                                (Case C-119/01)
                          (Case C-118/01)
                                                                                (2001/C 134/18)
                          (2001/C 134/17)
                                                                         An action against Finland was brought before the Court of
An action against the French Republic was brought before the             Justice of the European Communities on 19 March 2001 by
Court of Justice of the European Communities on 16 March                 the Commission of the European Communities, represented
2001 by the Commission of the European Communities,                      by Lena Ström, acting as Agent, with an address for service in
represented by A. Bordes, acting as Agent, with an address for           Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
service in Luxembourg.                                                   Center, Kirchberg, Luxembourg.
The Commission of the European Communities claims that
                                                                         The Commission claims that the Court should:
the Court should:
1.    declare that, by failing to bring into force within the            —     declare that, by failing to adopt all the laws, regulations,
      prescribed time-limits the laws, regulations and adminis-                and administrative provisions necessary to implement
      trative measures necessary in order to comply with:                      Directive 96/61/EC (1) concerning integrated pollution
                                                                               prevention and control with regard to the province of
      —     Council Directive 1999/20/EC of 22 March 1999                      Åland, or in any case by failing to communicate them to
            amending Directives 70/524/EEC concerning addi-                    the Commission, Finland has failed to fulfil its obligations
            tives in feedingstuffs, 82/471/EEC concerning cer-                 under the directive;
            tain products used in animal nutrition, 95/53/EC
            fixing the principles governing the organisation of          —     order Finland to pay the costs.
            official inspections in the field of animal nutrition
            and 95/69/EC laying down the conditions and
            arrangements for approving and registering certain           Pleas in law and main arguments
            establishments and intermediaries operating in the
            animal feed sector (1);                                      The period for implementing the directive expired on 30 Octo-
                                                                         ber 1999. As regards the province of Åland the Commission
      —     Council Directive 96/51/EC of 23 July 1996                   was informed that a provincial law on the protection of the
            amending Directive 70/524/EEC concerning addi-               environment and environmental planets was adopted by the
            tives in feedingstuffs (2),                                  Lagtinget, but that it does not depend upon the Finnish
                                                                         president’s ratification.
      the French Republic has failed to fulfil its obligations
      under the abovementioned directives and under the third
      paragraph of Article 249 and the first paragraph of                (1) Text of 24.9.1996 (OJ L 257 of 10.10.1996, p. 26).
      Article 10 of the EC Treaty;
2.    order the French Republic to pay the costs.


title: Case C-272/99: Action brought on 20 July 1999 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
C 281/6               EN                     Official Journal of the European Communities                                     2.10.1999
Action brought on 20 July 1999 by the Commission of                     Appeal brought on 20 July 1999 by Mr B. Connolly
the European Communities against the Grand Duchy of                     against the judgment delivered on 19 May 1999 by the
                          Luxembourg                                    First Chamber of the Court of First Instance of the
                                                                        European Communities in Case T-203/95 between Mr
                                                                        Connolly and the Commission of the European Communi-
                        (Case C-272/99)                                                                ties
                        (1999/C 281/11)                                                         (Case C-273/99 P)
An action against the Grand Duchy of Luxembourg was                                              (1999/C 281/12)
brought before the Court of Justice of the European Communi-
ties on 20 July 1999 by the Commission of the European
Communities, represented by Lena Ström, Legal Adviser, and              An appeal against the judgment delivered on 19 May 1999 by
Olivier Couvert-Castéra, of its Legal Service, acting as Agent,         the First Chamber of the Court of First Instance of the European
with an address for service in Luxembourg at the office of              Communities in Case T-203/95 between Mr B. Connolly and
Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                     the Commission of the European Communities was brought
                                                                        before the Court of Justice of the European Communities on
                                                                        20 July 1999 by Mr Connolly, represented by Jacques Sambon
The Commission of the European Communities claims that                  and Pierre-Paul van Gehuchten, both of the Brussels Bar, with
the Court should:                                                       an address for service in Luxembourg at the Chambers of Louis
                                                                        Schiltz, 2 rue du Fort Rheinsheim.
(1) declare that, by adopting the Law of 15 March 1983 to
    protect the life and well-being of animals, which does              The appellant claims that the Court should:
    not correctly transpose Council Directive 86/609/EEC of
    24 November 1986 regarding the protection of animals
    used for experimental purposes (1), the Grand Duchy of                  Set aside the judgment of the Court of First Instance of the
    Luxembourg has failed to fulfil its obligations under that              European Communities of 19 May 1999.
    directive and, in particular, Articles 5, 7(2), 8(1) and (3)
    and 19(5) thereof;                                                      And, ruling on the merits of the forms of order sought by
                                                                            the applicant
(2) order the Grand Duchy of Luxembourg to pay the costs.
                                                                            — annul the decision of 6 September 1995 to commence
                                                                                disciplinary proceedings against him, the decision of
                                                                                27 September 1995 to suspend him from his duties,
Pleas in law and main arguments                                                  and the decision of 4 October 1995 to refer the matter
                                                                                to the Disciplinary Board;
— Infringement of Article 5 of the directive: the abovemen-
    tioned Luxembourg law falls short in numerous respects
    of the obligations expressly imposed by the directive.                  — order the Commission to pay him compensation of
                                                                                BFR 750 000 for the material and non-material dam-
— Infringement of Article 7(2) of the directive: the Luxem-                      age suffered by him following the press campaign and
    bourg law does not clearly provide that the use of                           the defamatory allegations to which he was subject;
    an ‘animal with the lowest degree of sensitivity and
    psychological development’ may constitute an alternative                — order that publication of the operative part of the
    to a ‘reasonable alternative solution’ only in cases concern-                judgment to be given take place in the following
    ing animals not referred to in Article 2(a) of the directive.                newspapers at the Commission’s expense: The Times,
                                                                                The Daily Telegraph, The Financial Times;
— Infringement of Article 19(5) of the directive: the absence
    of any obligation to keep records showing the provenance                — order the Commission to pay the costs.
    and date of arrival of all animals acquired prevents the
    competent authorities to a considerable extent from being
    able to check that the animals used come from breeding
    establishments or supplying establishments or from estab-           Pleas in law and main arguments
    lishments approved in accordance with Article 15 of the
    directive, or that they have been properly bred in the
    user establishment in accordance with Article 20 of the             Infringement of Community law:
    directive.
                                                                        — Insufficient statement of reasons, misinterpretation of the
                                                                            first paragraph of Article 88 of the Staff Regulations of
                                                                            Officials: The Commission infringed the requirement upon
(1) OJ L 358 of 18.12.1986, p. 1.                                           the appointing authority not only to state the serious
                                                                            misconduct alleged against the official concerned but also
                                                                            to justify in what way that serious misconduct made it
                                                                            necessary to suspend the official immediately from his
                                                                            prerogatives.


title: Case C-206/06: Judgment of the Court (Third Chamber) of 17 July 2008 (reference for a preliminary ruling from the Rechtbank Groningen — Netherlands) — Essent Netwerk Noord BV, Nederlands Elektriciteit Administratiekantoor BV, Aluminium Delfzijl BV v Aluminium Delfzijl BV, Staat der Nederlanden, Nederlands Elektriciteit Administratiekantoor BV, Saranne BV (Internal market in electricity — National legislation permitting the levy of a surcharge on the price for electricity transmission in favour of a statutorily-designated company which is required to pay stranded costs — Charges having equivalent effect to customs duties — Discriminatory internal taxation — Aid granted by the Member States)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/4

         Judgment of the Court (Third Chamber) of 17 July 2008 (reference for a preliminary ruling from the Rechtbank Groningen — Netherlands) — Essent Netwerk Noord BV, Nederlands Elektriciteit Administratiekantoor BV, Aluminium Delfzijl BV v Aluminium Delfzijl BV, Staat der Nederlanden, Nederlands Elektriciteit Administratiekantoor BV, Saranne BV
   (Case C-206/06) (1)

   (Internal market in electricity - National legislation permitting the levy of a surcharge on the price for electricity transmission in favour of a statutorily-designated company which is required to pay stranded costs - Charges having equivalent effect to customs duties - Discriminatory internal taxation - Aid granted by the Member States)
   (2008/C 223/06)
   Language of the case: Dutch
   Referring court
   Rechtbank Groningen
   Parties to the main proceedings

      Applicants: Essent Netwerk Noord BV, Nederlands Elektriciteit Administratiekantoor BV, Aluminium Delfzijl BV

      Defendants: Aluminium Delfzijl BV, Staat der Nederlanden, Nederlands Elektriciteit Administratiekantoor BV, Saranne BV
   Re:
   Preliminary ruling — Rechtbank Groningen — Interpretation of Articles 25 EC, 87(1) EC and 90 EC — National legislation establishing a surcharge on the price of electricity and payable, during a transitional period, to the net operator by consumers established in the Netherlands — Obligation on the net operator to pay that surcharge to a statutorily designated undertaking of the national electricity generators for the purpose of defraying a sum representing the amount of obligations incurred and investments made by that undertaking prior to liberalisation of the market — Payment by that undertaking of any surplus to the competent ministry
   Operative part of the judgment

               1.

               Article 25 EC is to be construed as precluding a statutory rule under which domestic purchasers of electricity are required to pay to their net operator a price surcharge on the amounts of domestic and imported electricity which are transmitted to them, where that surcharge is to be paid by that net operator to a company designated by the legislature, with that company being the joint subsidiary of the four domestic generating undertakings and having previously managed the costs of all the electricity generated and imported, and where that surcharge is to be used in its entirety to pay non-market-compatible costs for which that company is personally responsible, with the result that the sums received by that company wholly offset the burden borne by the domestic electricity transmitted.
               The same applies where the national electricity generating undertakings are required to bear those costs and where, by reason of existing agreements, by the payment of a purchase price for electricity produced in the Member State, by the payment of dividends to the various domestic electricity generating undertakings of which the designated company is the subsidiary or by any other means, the advantage which that price surcharge constitutes could be passed on in its entirety by the designated company to the domestic electricity generating undertakings.
               Article 90 EC is to be construed as meaning that it precludes such a statutory rule where the revenue from the charge levied on the electricity transmitted is used only in part to pay non-market-compatible costs, that is to say where the amount levied by the designated company only partly offsets the burden borne by the national electricity transmitted.

               2.

               Article 87 EC must be construed as meaning that the amounts paid to the designated company under Article 9 of the Transitional Law on the electricity generating sector (Overgangswet Elektriciteitsproductiesector) of 21 December 2000 constitute ‘State aid’ for the purposes of that provision of the EC Treaty in so far as they represent an economic advantage and not compensation for the services provided by the designated company in order to discharge public service obligations.

      (1)  OJ C 178, 29.7.2006.


title: Case C-261/13 P: Appeal brought on 8 May 2013 by Peter Schönberger against the judgment of the General Court (Sixth Chamber) delivered on 7 March 2013 in Case T-186/11 Peter Schönberger v European Parliament

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/27

         Appeal brought on 8 May 2013 by Peter Schönberger against the judgment of the General Court (Sixth Chamber) delivered on 7 March 2013 in Case T-186/11 Peter Schönberger v European Parliament
   (Case C-261/13 P)
   2013/C 207/44
   Language of the case: German

      Parties

      Appellant: Peter Schönberger (represented by: O. Mader, Rechtsanwalt)

      Other party to the proceedings: European Parliament

      Form of order sought

               —

               Set aside the judgment of the General Court of 7 March 2013 in Case T-186/11;

               —

               Uphold the application made by the appellant at first instance. Annul the respondent’s decision, communicated to the appellant by letter of 25 January 2011, by which the examination of his petition No 1188/2010 was terminated, without the Committee on Petitions examining the substance of the petition;

               —

               Order the respondent to pay the costs.

      Pleas in law and main arguments

   In its presentation of the facts, the General Court suppressed the fact that the chairperson of the Committee on Petitions informed the appellant without giving further reasons that, although his petition was admissible, the Committee on Petitions could not examine its substance. Subsequently the General Court assumed — thereby distorting the facts — that the petition had been examined.
   The General Court misrepresented the scope of protection of the fundamental right of petition by unlawfully presuming that it was limited to the examination of the admissibility of a petition. The scope of protection also however encompasses the right to a substantive examination of the petition and to a decision on the substance, if the petition is admissible (right to have case examined).
   The General Court contradicted itself by holding that the Parliament’s failure to examine an admissible petition, unlike the failure to examine an inadmissible petition, does not produce any legal effects.
   The General Court ruled in a manner contrary to its own case-law in Case T-308/07 Tegebauer. (1) It held in that case that the effectiveness of the right of petition can be impaired where the substance of a petition has not been examined.
   The General Court overlooked the legal infringement constituted by the deficient reasoning of the European Parliament’s decision. It instead substituted its own reasoning for the deficient reasons given for the failure to deal with the petition.
   The General Court failed to take due account of the fact that the appellant was denied the possibility of presenting his case to the Committee on Petitions in an undistorted way.

      (1)  Judgment of the General Court of 14 September 2011 (not yet published in the ECR).