title: Case T-545/15: Action brought on 22 September 2015 — Pi-Design v OHIM — Nestlé (PRESSO)

text:
               9.11.2015

               EN

               Official Journal of the European Union

               C 371/43

         Action brought on 22 September 2015 — Pi-Design v OHIM — Nestlé (PRESSO)
   (Case T-545/15)
   (2015/C 371/44)
   Language in which the application was lodged: German

      Parties

      Applicant: Pi-Design AG (Triengen, Switzerland) (represented by: M. Apelt, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Société des produits Nestlé SA (Vevey, Switzerland)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: International registration designating the European Union in respect of the mark ‘PRESSO’ — International registration designating the European Union No 1 093 132

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 2 July 2015 in Case R 428/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs of the proceedings.

      Pleas in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Joined Cases C-680/15 and C-681/15: Judgment of the Court (Third Chamber) of 27 April 2017 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Asklepios Kliniken Langen-Seligenstadt GmbH v Ivan Felja (C 680/15), Asklepios Dienstleistungsgesellschaft mbH v Vittoria Graf (C 681/15) (References for a preliminary ruling — Transfer of undertakings — Safeguarding of employees’ rights — Directive 2001/23/EC — Article 3 — Contract of employment — Legislation of a Member State authorising the incorporation of clauses referring to collective labour agreements after the date of the transfer — Effects with regard to the transferee)

text:
               26.6.2017

               EN

               Official Journal of the European Union

               C 202/6

         Judgment of the Court (Third Chamber) of 27 April 2017 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Asklepios Kliniken Langen-Seligenstadt GmbH v Ivan Felja (C 680/15), Asklepios Dienstleistungsgesellschaft mbH v Vittoria Graf (C 681/15)
   (Joined Cases C-680/15 and C-681/15) (1)

   ((References for a preliminary ruling - Transfer of undertakings - Safeguarding of employees’ rights - Directive 2001/23/EC - Article 3 - Contract of employment - Legislation of a Member State authorising the incorporation of clauses referring to collective labour agreements after the date of the transfer - Effects with regard to the transferee))
   (2017/C 202/08)
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Applicants: Asklepios Kliniken Langen-Seligenstadt GmbH (C-680/15), Asklepios Dienstleistungsgesellschaft mbH (C-681/15)

      Defendants: Ivan Felja (C 680/15), Vittoria Graf (C-681/15)

      Operative part of the judgment

   Article 3 of Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses and Article 16 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the case of a transfer of a business, the continued observance of the rights and obligations of the transferor arising from a contract of employment, extends to the clause which the transferor and the worker agreed pursuant to the principle of freedom of contract, pursuant to which their employment relationship is governed not only by the collective agreement in force on the date of the transfer, but also by agreements subsequent to the transfer and which supplement it, amend it or replace it, if the national law provides for the possibility for the transferee to make adjustments both consensually and unilaterally.

      (1)  OJ C 118, 4.4.2016.


title: Case C-450/06: Judgment of the Court (Third Chamber) of 14 February 2008 (reference for a preliminary ruling from the Conseil d'État (Belgium)) — Varec SA v Belgian State (Public procurement — Review — Directive 89/665/EEC — Effective review — Meaning — Balance between the adversarial principle and the right to observance of business secrets — Protection, by the body responsible for the review, of the confidentiality of information provided by economic operators)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/6

         Judgment of the Court (Third Chamber) of 14 February 2008 (reference for a preliminary ruling from the Conseil d'État (Belgium)) — Varec SA v Belgian State
   (Case C-450/06) (1)

   (Public procurement - Review - Directive 89/665/EEC - Effective review - Meaning - Balance between the adversarial principle and the right to observance of business secrets - Protection, by the body responsible for the review, of the confidentiality of information provided by economic operators)
   (2008/C 79/09)
   Language of the case: French
   Referring court
   Conseil d'État
   Parties to the main proceedings

      Applicant: Varec SA

      Defendant: Belgian State

      Intervener: Diehl Remscheid GmbH & Co
   Re:
   Reference for a preliminary ruling — Conseil d'État (Belgium) — Interpretation of Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), read with Article 15(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and Articles 6 and 41(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Supply of military material — Balance between the principles that both parties be heard and that defence rights be complied with and the right to respect for business secrets and the protection of sensitive or confidential information.
   Operative part of the judgment
   Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, read in conjunction with Article 15(2) of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, as amended by European Parliament and Council Directive 97/52/EC of 13 October 1997, must be interpreted as meaning that the body responsible for the reviews provided for in Article 1(1) must ensure that confidentiality and business secrecy are safeguarded in respect of information contained in files communicated to that body by the parties to an action, particularly by the contracting authority, although it may apprise itself of such information and take it into consideration. It is for that body to decide to what extent and by what process it is appropriate to safeguard the confidentiality and secrecy of that information, having regard to the requirements of effective legal protection and the rights of defence of the parties to the dispute and, in the case of judicial review or a review by another body which is a court or tribunal within the meaning of Article 234 EC, so as to ensure that the proceedings as a whole accord with the right to a fair trial.

      (1)  OJ C 326, 30.12.2006.


title: Case C-357/99: Action brought on 23 September 1999 by the Italian Republic against Council of the European Union

text:
C 352/26                 EN                    Official Journal of the European Communities                                       4.12.1999
The Applicant claims that the Court should:                               Pleas in law and main arguments
— declare that, in failing to take all the measures necessary to
     ensure a correct transposition of the notion ‘experiment’            Article 249 CE (ex Article 189 of the EC Treaty) under which
     as defined in Article 2 of Directive 86/609/EEC (1) and to           a directive shall be binding, as to the result to be achieved,
     take all the measures necessary to ensure a correct                  upon each Member State, carries by implication an obligation
     transposition of Articles 11 and 12 of Directive                     on the Member States to observe the period for compliance
     86/609/EEC concerning the approximation of the laws,                 laid down in the directive. That period expired on 30 June
     regulations and administrative provisions of the Member              1998 without Ireland having enacted the provisions necessary
     States regarding the protection of animals used for exper-           to comply with the directive referred to in the conclusions of
     imental and other scientific purposes and in failing to have         the Commission.
     an adequate system of penalties for non-compliance with
     the requirements of Directive 86/609/EEC, Ireland has                (1) Directive 97/68/EC of the European Parliament and of the Council
     failed to comply with Directive 86/609/EEC and in particu-               of 16 December 1997 on the approximation of the laws of the
     lar Article 25 thereof and with its obligations under the                Member States relating to measures against the emission of
     Treaty and in particular Article 10 thereof                              gaseous and particulate pollutants from internal combustion
                                                                              engines to be installed in non-road mobile machinery (OJ L 59 of
— order Ireland to pay the costs.                                             27.2.1998, p. 1).
Pleas in law and main arguments
The Commission considers that the Irish legislation fails to
achieve a correct transposal of directive 86/609/EEC because
it covered a narrower range of experiments than the directive,
because of a lack of coherence between the old and new                    Action brought on 23 September 1999 by the Italian
provisions of the Cruelty to Animals Act 1876, because of a                      Republic against Council of the European Union
failure to specify who or what is covered by certain key
concepts, because of a failure to establish procedures, and
because of inadequate penalty provisions.                                                           (Case C-357/99)
(1) Council Directive of 24 November 1986, on the approximation                                     (1999/C 352/41)
    of laws, regulations and administrative provisions of the Member
    States regarding the protection of animals used for experimental
    and other scientific purposes, OJ L 358, 18.12.1986, p. 1.
                                                                          An action against the Council of the European Union was
                                                                          brought before the Court of Justice on 23 September 1999 by
                                                                          the Italian Republic, represented by its Agent Professor
                                                                          Umberto Leanza, assisted by Danilo Del Gaizo, Avvocato dello
                                                                          Stato, with an address for service in Luxembourg at the Italian
                                                                          Embassy, 5 Rue Marie-Adélaide.
                                                                          The applicant claims that the Court should:
Action brought on 23 September 1999 by the Com-
   mission of the European Communities against Ireland
                                                                          — Annul Article 1 of Council Regulation No 1404/99 (1) in
                                                                               so far as it fails to fix the derived intervention price for
                          (Case C-355/99)                                      white sugar for all areas of Italy for the sugar-marketing
                                                                               year 1999-2000, and also Article 1(2) of Council Regu-
                          (1999/C 352/40)                                      lation No 1403/99 (2) in so far as it fixes the intervention
                                                                               price for Italy as well;
An action against Ireland was brought before the Court of
Justice of the European Communities on 23 September 1999                  — Order the Council to pay the costs.
by the Commission of the European Communities, represented
by Mr Richard Wainwright, Principal Legal Adviser, acting as
agent, with an address for service at the office of Mr Carlos             Contentions and principal arguments adduced in support
Gómez de la Cruz, a member of the Legal Service of the
Commission, Wagner Centre, Kirchberg, Luxembourg.                         (1) The Council infringed Article 3(4) and (5) of the basic
                                                                               regulation, Regulation No 1785/81 (3), by fixing inter-
The Applicant claims that the Court should:                                    vention prices in June 1999 whereas it should have done
                                                                               so before August 1998.
1. declare that, by failing to bring into force the laws,
     regulations and administrative provisions necessary to               (2) Regulation No 1404/99 gives no statement of reasons for
     comply fully with European Parliament and Council Direc-                  fixing the derived intervention price for five other Member
     tive 97/68/EC (1), Ireland has failed to fulfil its obligations           States without doing so for Italy. Nor are any reasons given
     under that Directive, and                                                 in Regulation No 1403/99 regarding the fixing of the
                                                                               intervention price. The contested regulations are therefore
2. order Ireland to pay the costs.                                             vitiated by the lack of any statement of reasons.
 ---pagebreak--- 4.12.1999               EN                      Official Journal of the European Communities                                     C 352/27
(3) Article 1 of Regulation No 1404/99, although failing to                Reference for a preliminary ruling by the Tribunale
      fix the derived intervention price for white sugar for Italy,        di Brescia, Seconda Sezione Stralcio (Second Chamber,
      confirmed it, and also the relevant quantities, for the              [Liquidations]) by order of 2 September 1999 in the case
      United Kingdom, Ireland, Portugal, Finland and Spain.                of Autogolf s.r.l. against Ministero delle Finanze, (Ministry
                                                                                of Finance)
      Not being apprised of the reasons which motivated the                                          (Case C-359/99)
      withholding of an intervention price for Italy or of those
      for doing so for the other Member States, the Italian                                          (1999/C 352/43)
      Government considers that there has been a breach of the
      principle of equality and an instance of unequal treatment.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Tribunale di Brescia,
                                                                           Seconda Sezione Stralcio, of 2 September 1999, received at
(1) OJ 1999 L 164, p. 15.                                                  the Court Registry on 24 September 1999, for a preliminary
(2) OJ 1999 L 164, p. 13.                                                  ruling in the case of Autogolf s.r.l. against Ministero delle
(3) OJ 1981 L 177, p. 4.                                                   Finanze on the following questions:
                                                                           Is Article 11(1) of Italian Law No 448 of 23 December 1998
                                                                           (G.U.R.I. No 302 of 29 December 1998, ordinary supplement)
                                                                           compatible with Community law, in particular with Articles 10
                                                                           and 12 of Council Directive 69/335/EEC (1) of 17 July 1969
                                                                           concerning indirect taxes on the raising of capital, inasmuch
                                                                           as it provides that the administrative charge is payable at a flat
                                                                           annual rate for registration of ‘other company documents’ for
                                                                           each of the years from 1985 to 1992, equal to the sum of
                                                                           the sum of ITL 750 000 for public limited companies and
Reference for a preliminary ruling by the Tribunale di                     partnerships limited by shares and ITL 400 000 for private
Brescia, Seconda Sezione Stralcio, (District Court, Brescia,               limited companies?
Second Chamber [Liquidations]) by order of 2 September
1999 in the case of T.M.A. Tecnologie Meccaniche Avanza-
te s.r.l. and Federchemicals s.r.l. against Ministero delle                Is Article 11(3) of Law No 448/98 compatible with Com-
                               Finanze                                     munity law, inasmuch as it provides that interest on the sums
                                                                           to be reimbursed in so far as they exceed the sum provided for
                                                                           by Article 11(1) should be calculated according to the legal
                          (Case C-358/99)                                  rate in force at the date on which that Law entered into force
                                                                           (2,5 % per annum) and not according to the rate provided for
                                                                           by Article 5 with respect to Article 1 of Law No 29 of
                          (1999/C 352/42)                                  26 January 1961, as subsequently amended?
Reference has been made to the Court of Justice of the                     (1) OJ, English Special Edition 1969 (11), p. 412.
European Communities by order of the Tribunale di Brescia,
Seconda Sezione Stralcio, of 2 September 1999, received at
the Court Registry on 24 September 1999, for a preliminary
ruling in the case of T.M.A. Tecnologie Meccaniche Avanzate
s.r.l. and Federchemicals s.r.l. against Ministero delle Finanze
on the following question:
Is Article 11(1) of Italian Law No 448 of 23 December 1998                 Reference for a preliminary ruling by the Tribunale di
(G.U.R.I. No 302 of 29 December 1998, ordinary supplement)                 Brescia, Terza Seconda Sezione Civile (District Court,
compatible with Community law, in particular with Articles 10              Brescia, Third Civil Chamber) by order of 2 September
and 12 of Council Directive 69/335/EEC (1) of 17 July 1969                 1999 in the case of Union Factor s.p.a. and Others, against
concerning indirect taxes on the raising of capital, inasmuch                                   Ministero delle Finanze
as it provides that the administrative charge is payable at a flat
annual rate for registration of ‘other company documents’ for
each of the years from 1985 to 1992, equal to the sum of                                             (Case C-360/99)
the sum of ITL 750 000 for public limited companies and
partnerships limited by shares and ITL 400 000 for private                                           (1999/C 352/44)
limited companies?
                                                                           Reference has been made to the Court of Justice of the
(1) OJ, English Special Edition 1969 (11), p. 412.                         European Communities by order of the Tribunale di Brescia,
                                                                           Terza Sezione Civile, of 2 September 1999, received at the
                                                                           Court Registry on 24 September 1999, for a preliminary ruling
                                                                           in the case of Union Factor s.p.a. and Others against Ministero
                                                                           delle Finanze on the following questions:


title: Case T-15/11: Judgment of the General Court of 11 December 2012 — Sina Bank v Council (Common foreign and security policy — Restrictive measures taken against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Actions for annulment — Duty to state reasons)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/41

         Judgment of the General Court of 11 December 2012 — Sina Bank v Council
   (Case T-15/11) (1)

   (Common foreign and security policy - Restrictive measures taken against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Actions for annulment - Duty to state reasons)
   2013/C 26/79
   Language of the case: English

      Parties

      Applicant: Sina Bank (Tehran, Iran) (represented by: B. Mettetal and C. Wucher-North, lawyers)

      Defendant: Council (represented by: M. Bishop and G. Marhic, acting as Agents)

      Intervener in support of the defendant: European Commission (represented by: F. Erlbacher and M. Konstantinidis, acting as Agents)

      Re:

   Annulment of, first, Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), in so far as the latter concerns the applicant, and, second, the ‘decision’ in the Council’s letter of 28 October 2010 concerning the applicant; and a declaration of inapplicability, as regards the applicant, of, first, Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2007 L 195, p. 39), as resulting from Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), in so far as the latter concerns the applicant, second, Article 16(2) of Regulation No 961/2010 and, third, Article 20(1)(b) of Decision 2010/413.

      Operative part of the judgment

   The Court:

               1.

               Annuls Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, as resulting from Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413, and Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007, in so far as the latter concern Sina Bank;

               2.

               Orders that the effects of Annex II to Decision 2010/413, as resulting from Decision 2010/644, be maintained in relation to Sina Bank until annulment of Annex VIII to Regulation No 961/2010 takes effect;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders the Council to bear two thirds of the costs incurred by Sina Bank and two thirds of its own costs;

               5.

               Orders Sina Bank to bear one third of its own costs and one third of the Council’s costs;

               6.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 72, 5.3.2011.


title: Case F-72/09: Action brought on 17 August 2009 — Simone Daake v OHIM

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/38

         Action brought on 17 August 2009 — Simone Daake v OHIM
   (Case F-72/09)
   2009/C 256/68
   Language of the case: German

      Parties

      Applicant: Simone Daake (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

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

      Subject-matter and description of the proceedings

   Annulment of the decision of OHIM of 12 September 2008 terminating the applicant’s contract of employment and payment of damages; alleged circumvention of the provisions for an open-ended contract by means of successive fixed-term contracts.

      Forms of order sought

               —

               Set aside the OHIM’s declaration in its letter of 12 September 2008 according to which the applicant’s contract of employment with OHIM was to terminate on 31 October 2008,

               —

               Annul the decision of OHIM of 6 May 2009 by which OHIM rejected the applicant’s complaint of 12 December 2008 under Article 90(2) of the Staff Regulations,

               —

               Order OHIM to compensate the applicant for material damages amounting to the difference between:

                           —

                           on the one hand, her actual salary according to the formal classification as contract staff member under Article 3a of the Conditions of Employment of other Servants from 1 November 2005 until 31 October 2008 and the unemployment benefits paid to her from 1 November 2008 until today, and

                           —

                           on the other hand, the salary to which she is entitled as temporary staff member under Article 2(a) of the Conditions of Employment of other Servants from 1 November 2005 until today — in the alternative, at least the salary to which she is entitled as temporary staff member under Article 2(a) of the Conditions of Employment of other Servants from 1 November 2005 until 31 October 2008 and the unemployment benefits to which she was entitled calculated according to her salary for October 2008 under Article 2(a) of the Conditions of Employment of other Servants –

                           —

                           and the resulting losses to retirement pension and other indemnities, salary and benefits taking into account appropriate promotion based on her performance until 1 April 2008,

               —

               Order OHIM to compensate the applicant for the non-material damage caused by the discrimination vis-à-vis other OHIM employees in an amount to be calculated by the Court,

               —

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


title: Removal from the register of T-226/97

text:
10. 1. 98             EN                Official Journal of the European Communities                                  C 7/29
         Removal from the register of T-201/97 (1)                 Communities ordered the removal from the register of
                          (98/C 7/74)                              Case T-226/97: GueÂrin Automobiles v. Commission of the
                                                                   European Communities.
               (Language of the case: Spanish)
                                                                   (1) OJ C 318, 18. 10. 1997.
By order of 13 November 1997, the President of the
Second Chamber of the Court of First Instance of the
European Communities ordered the removal from the
register of Case T-201/97: Manuel Francisco Caballero
Montoya v. Commission of the European Communities.
(1) OJ C 252, 16. 8. 1997.                                                  Removal from the register of T-227/97 (1)
                                                                                (98/C 7/76)
                                                                                (Language of the case: French)
                                                                   By order of 6 November 1997, the President of the Second
         Removal from the register of T-226/97 (1)
                                                                   Chamber of the Court of First Instance of the European
                          (98/C 7/75)                              Communities ordered the removal from the register of
                (Language of the case: French)                     Case T-227/97: Christian Marion v. Economic and Social
                                                                   Committee.
By order of 5 November 1997, the President of the Third
Chamber of the Court of First Instance of the European             (1) OJ C 331, 1. 11. 1997.


title: Case T-662/11: Action brought on 28 December 2011 — Müller v OHIM — Loncar (Sunless)

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/32

         Action brought on 28 December 2011 — Müller v OHIM — Loncar (Sunless)
   (Case T-662/11)
   2012/C 49/58
   Language in which the application was lodged: German

      Parties

      Applicant: Thomas Müller (Gütersloh, Germany) (represented by: J. Schmidt, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Loncar, SL (Sabadell (Barcelona), Spain)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 September 2011 in Case R 2508/2010-2;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Thomas Müller

      Community trade mark concerned: Figurative mark containing the word element ‘Sunless’, for goods in Classes 6, 19, 22 and 24.

      Proprietor of the mark or sign cited in the opposition proceedings: Loncar, SL

      Mark or sign cited in opposition: Word marks ‘SUNLESS’ and ‘LONCAR-SUNLESS’ for goods in Classes 22, 23 and 24 and ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes); padding and stuffing materials (except of rubber or plastics); raw fibrous textile materials.

      Decision of the Opposition Division: Opposition allowed.

      Decision of the Board of Appeal: Appeal dismissed.

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


title: Case C-414/10: Judgment of the Court (First Chamber) of 29 March 2012 (reference for a preliminary ruling from the Conseil d’État — France) — Véleclair SA v Ministre du Budget, des Comptes publics et de la Réforme de l’État (VAT — Sixth Directive — Article 17(2)(b) — Taxation of a product imported from a third country — National legislation — Right to deduct VAT on importation — Condition — Actual payment of VAT by the taxable person)

text:
               26.5.2012

               EN

               Official Journal of the European Union

               C 151/5

         Judgment of the Court (First Chamber) of 29 March 2012 (reference for a preliminary ruling from the Conseil d’État — France) — Véleclair SA v Ministre du Budget, des Comptes publics et de la Réforme de l’État
   (Case C-414/10) (1)

   (VAT - Sixth Directive - Article 17(2)(b) - Taxation of a product imported from a third country - National legislation - Right to deduct VAT on importation - Condition - Actual payment of VAT by the taxable person)
   2012/C 151/08
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Véleclair SA

      Defendant: Ministre du Budget, des Comptes publics et de la Réforme de l’État

      Re:

   Reference for a preliminary ruling — Conseil d’État — Interpretation of Article 17(2)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — National legislation making the right to deduct value added tax on importation conditional on the actual payment of that tax by the taxable person

      Operative part of the judgment

   Article 17(2)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as not allowing a Member State to make the right to deduct value added tax on importation conditional upon the actual prior payment of that tax by the taxable person where that taxable person is also the holder of the right to deduction.

      (1)  OJ C 301, 6.11.2010.


title: Case T-336/10: Order of the General Court of 3 February 2011 — Abercrombie & Fitch Europe v OHIM — Gilli (GILLY HICKS) (Community trade mark — Opposition — Withdrawal of the opposition — No need to adjudicate)

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/13

         Order of the General Court of 3 February 2011 — Abercrombie & Fitch Europe v OHIM — Gilli (GILLY HICKS)
   (Case T-336/10) (1)

   (Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)
   2011/C 113/27
   Language of the case: English

      Parties

      Applicant: Abercrombie & Fitch Europe SA (Mendrisio, Switzerland) (represented by: S. Malynicz, Barrister, and D. Stone and L. Ritchie, Solicitors)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Gilli Srl (Milan, Italy)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 20 May 2010 (Case R 832/2008-1) concerning opposition proceedings between Gilli Srl and Abercrombie & Fitch Europe SA

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               The defendant shall bear its own costs and pay the defendant’s.

      (1)  OJ C 274, 9.10.2010.


title: Case T-286/14 R: Order of the President of the General Court of 4 September 2014 — Röchling Oertl Kunststofftechnik v Commission (Application for interim measures — State aid — National support for the generation of renewable electricity — Commission decision to open the State aid formal investigation procedure — Application for suspension of operation of a measure — Prima facie case)

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/23

         Order of the President of the General Court of 4 September 2014 — Röchling Oertl Kunststofftechnik v Commission
   (Case T-286/14 R)
   ((Application for interim measures - State aid - National support for the generation of renewable electricity - Commission decision to open the State aid formal investigation procedure - Application for suspension of operation of a measure - Prima facie case))
   (2014/C 431/40)
   Language of the case: German

      Parties

      Applicant: Röchling Oertl Kunststofftechnik GmbH (Brensbach, Germany) (represented by: T. Volz and B. Wißmann, lawyers)

      Defendant: European Commission (represented by: T. Maxian Rusche and R. Sauer, Agents)

      Re:

   Application to suspend the legal effects of the decision by which the Commission opened the State aid formal investigation procedure concerning the German law on renewable energy.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case C-109/99: Reference for a preliminary ruling by the Tribunal Administratif de Pau (First Chamber) by judgment of that court of 23 March 1999 in the case of Association basco-béarnaise des opticiens indépendants against Préfet des Pyrénées-Atlantiques in the presence of Mutualité 'Adour Mutualité' and Mutualité Française Union des Pyrénées-Atlantiques

text:
C 188/8                 EN                     Official Journal of the European Communities                                            3.7.1999
5. The solution opted for by the contested decision, based on             Reference for a preliminary ruling by the Tribunal Admin-
     entirely irrelevant criteria, breaches the principles of social      istratif de Pau (First Chamber) by judgment of that
     cohesion and of solidarity among the Member States. It               court of 23 March 1999 in the case of Association
     further breaches the principle of non-discrimination, given          basco-béarnaise des opticiens indépendants against Préfet
     that the reduction of the aid already granted to Italy was           des Pyrénées-Atlantiques in the presence of Mutualité
     greater than that applied to any other Member State.                 ‘Adour Mutualité’ and Mutualité Française Union des
                                                                                Pyrénées-Atlantiques
6. The applicant Government further submits that the Com-
     mission’s conduct is contradictory and is ultra vires.                                          (Case C-109/99)
     Moreover, the contested decision allegedly infringes
     Article 2 of Regulation No 1866/90, (4) as amended by
     Article 1 of Regulation No 2745/94. (5)                                                         (1999/C 188/18)
                                                                          Reference has been made to the Court of Justice of the
(1) Council Regulation (EEC) of 19 December 1988 (OJ 1988 L 374,          European Communities by judgment of the Tribunal Adminis-
    p. 1).                                                                tratif de Pau (Administrative Court, Pau) of 23 March 1999,
(2) Council Regulation (EEC) of 20 July 1993 (OJ 1993 L 193, p. 20).      received at the Court Registry on 29 March 1999, for a
(3) Council Regulation (EEC) of 24 June 1993 (OJ 1988 L 185, p. 9).
(4) Council Regulation (EEC) of 2 July 1990 (OJ 1990 L 170, p. 36).
                                                                          preliminary ruling in the case of Association basco-béarnaise
(5) Council Regulation (EEC) of 10 November 1994 (OJ 1994 L 290,          des opticiens indépendants against Préfet des Pyrénées-
    p. 4).                                                                Atlantiques in the presence of Mutualité ‘Adour Mutualité’
                                                                          and Mutualité Française Union des Pyrénées-Atlantiques. The
                                                                          Tribunal Administratif de Pau (First Chamber) requests a ruling
                                                                          from the Court of Justice of the following two questions:
                                                                          (1) Must Article 8(1)(b) of Council Directive 73/239/EEC (1)
                                                                               be interpreted as precluding the provisions of
                                                                               Articles L 123-1 and L 123-2 of the French Mutuality
                                                                               Code, which allow mutual benefit societies whose sole
Reference for a preliminary ruling by the High Court                           business is that of insurance to create between them
of Justice (England & Wales), Queen’s Bench Division,                          mutual benefit bodies which have legal personality and
Divisional Court, by order of that court of 2 September                        legal autonomy and engage in commercial business in the
1998, in the case of Commissioners of Customs and                              optical sector?
        Excise against Cantor Fitzgerald International
                                                                          (2) If the provisions of the directive are incompatible with
                                                                               French law, is the prohibition of commercial business
                          (Case C-108/99)                                      imposed on the mutual benefit body set up by mutual
                                                                               benefit societies whose sole business is that of insurance
                         (1999/C 188/17)                                       general and absolute, or is it open to the competent
                                                                               authorities of the Member State to define the conditions
                                                                               under which and the spheres in which a commercial
Reference has been made to the Court of Justice of the                         business may be pursued?
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division, Divisional
Court of 2 September 1998, which was received at the Court                (1) Of 24 July 1973 on the coordination of laws, regulations and
Registry on 30 March 1999, for a preliminary ruling in the                    administrative provisions relating to the taking-up and pursuit of
case of Commissioners of Customs and Excise against Cantor                    the business of direct insurance other than life insurance (OJ 1973
Fitzgerald International, on the following question:                          L 228 p. 3).
Following the decision of the Court in Case C-63/92 (Lubbock
Fine & Co v Customs and Excise Commissioners); (1) does
Article 13B(b) of the Sixth VAT Directive (2) exempt from VAT
a supply made by a person (‘the person’) who does not have
any interest in immovable property, where the person agrees
to accept an assignment of a lease of that immovable property
                                                                          Reference for a preliminary ruling by the Landgericht
from a lessee, and the lessee pays that person a sum of money
                                                                          Düsseldorf by order of that court of 19 January 1999 in
in return for that person taking the assignment of the lease in
                                                                          the case of Toshiba Europe GmbH against Katun Germany
that immovable property?
                                                                                GmbH
(1) ECR 1993 p. I-6665.                                                                              (Case C-112/99)
(2) Directive 77/388/EEC of the Council of 17 May 1977 on the
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform                                       (1999/C 188/19)
    basis of assessment (OJ L 145, 13.06.77, p. 1).
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Landgericht Düsseldorf
                                                                          (Higher Regional Court, Düsseldorf), Fourth Civil Chamber, of


title: Case C-266/12 P: Appeal brought on 29 May 2012 by Jarosław Majtczak against the judgment of the General Court (Fourth Chamber) delivered on 21 March 2012 in Case T-227/09: Feng Shen Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/10

         Appeal brought on 29 May 2012 by Jarosław Majtczak against the judgment of the General Court (Fourth Chamber) delivered on 21 March 2012 in Case T-227/09: Feng Shen Technology Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-266/12 P)
   2012/C 258/16
   Language of the case: English

      Parties

      Appellant: Jarosław Majtczak (represented by: J. Radłowski, radca prawny)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Feng Shen Technology Co. Ltd

      Form of order sought

   By the present appeal the appellant asks the Court of Justice to:

               —

               annul in its entirety the judgment of the General Court of 21 March 2012 in case T-227/09 and dismiss the applicant's suit or in the alternative;

               —

               annul in its entirety the judgment of the General Court of 21 March 2012 in case T-227/09 and refer the case back to the General Court;

               —

               adjudicate the costs in favour of the appellant.

      Pleas in law and main arguments

   The appellant submits that the contested judgment infringes article 52(1)(b) of Council Regulation (EC) No 40/94 (1) on the Community trade mark, as amended (replaced by Council Regulation (EC) No 207/2009 (2) (on the Community trade mark), particularly with regard to the General Court's interpretation of the concept of ‘acting in bad faith’.
   The appellant also submits that the General Court has breached procedure by making erroneous findings of fact and by being selective in its assessment of the evidence produced.

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

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


title: Case T-395/09: Judgment of the General Court of 23 January 2014 — Gigaset v Commission (Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Imputability of the unlawful conduct — Obligation to state reasons — Fines — Duration of the infringement — Equal treatment — Mitigating circumstances — Cooperation during the administrative procedure — Joint and several liability for payment of a fine — 2006 guidelines on the method of setting fines)

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/15

      Judgment of the General Court of 23 January 2014 — Gigaset v Commission
      (Case T-395/09) (1)

      (Competition - Agreements, decisions and concerted practices - Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom - Decision finding an infringement of Article 81 EC - Price-fixing and market-sharing - Imputability of the unlawful conduct - Obligation to state reasons - Fines - Duration of the infringement - Equal treatment - Mitigating circumstances - Cooperation during the administrative procedure - Joint and several liability for payment of a fine - 2006 guidelines on the method of setting fines)
      (2014/C 71/25)
      Language of the case: German

         Parties

         Applicant: Gigaset AG, formerly Arques Industries AG (Munich, Germany) (represented by: C. Grave, B. Meyring and A. Scheidtmann, lawyers)

         Defendant: European Commission (represented by: N. von Lingen and R. Sauer, acting as Agents, and A. Böhlke, lawyer)

         Re:

      Application for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it relates to the applicant, and, in the alternative, for the reduction of the fine imposed on the applicant by that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Fixes the amount of the fine imposed on Gigaset AG under Article 2(f) of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) at EUR 12.3 million;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders Gigaset to bear 90 % of its own costs and 90 % of those incurred by the Commission, with the exception of the costs relating to the proceedings for interim measures. The Court orders the Commission to pay 10 % of its own costs and 10 % of the costs incurred by Gigaset, with the exception of the costs relating to the proceedings for interim measures.

         (1)  OJ C 297, 5.12.2009.


title: JUDGMENT OF THE COURT of 22 October 1998 in Joined Cases C-10/97 to C-22/97 (references for a preliminary ruling from the Pretura Circondariale di Roma): Ministero delle Finanze v. IN.CO.GE.'90 Srl and Others (Recovery of sums paid but not due - Treatment of a national charge incompatible with Community law)

text:
C 397/4               EN                  Official Journal of the European Communities                                     19.12.98
General; H. von Holstein, Deputy Registrar, has given a              Mafar Srl (C-22/97) Ð on the consequences arising under
judgment on 22 October 1998, in which it:                            national law from the incompatibility of a domestic
                                                                     charge with Community law Ð the Court, composed of:
                                                                     G. C. Rodríguez Iglesias, President, P. J. G. Kapteyn, J.-P.
1. It is not contrary to Articles 17 and 18 of Council               Puissochet (Rapporteur), G. Hirsch and P. Jann (Presidents
     Regulation (EEC) No 2328/91 of 15 July 1991 on                  of Chambers), G. F. Mancini, J. C. Moitinho de Almeida,
     improving the efficiency of agricultural structures or to       C. Gulmann, J. L. Murray, D. A. O. Edward, H.
     Article 1 of Council Directive 75/268/EEC of 28 April           Ragnemalm, L. Sevón, M. Wathelet, R. Schintgen and
     1975 on mountain and hill farming and farming in                K. M. Ioannou, Judges; D. Ruiz-Jarabo Colomer,
     certain less-favoured areas to grant a compensatory             Advocate-General; H. von Holstein, Deputy Registrar, for
     allowance for permanent natural handicaps to a                  the Registrar, has given a judgment on 22 October 1998,
     farmer whose home is not on the farm.                           in which it has ruled:
2. It is not contrary either to the principle of equal               The obligation on a national court to disapply national
     treatment or to that of legal certainty for a farmer            legislation introducing a charge contrary to Community
     claiming the compensatory allowance who does not                law must lead that court, in principle, to uphold claims
     live on his farm but more than 12 kilometres by road            for repayment of that charge. Such repayment must be
     from its operational centre to be required to work the          ensured in accordance with the provisions of its national
     farm himself, to derive at least 50 % of his income             law, on condition that those provisions are not less
     from farming or similar activities and, in addition, to         favourable than those governing similar domestic actions
     establish the existence of special grounds.                     and do not render virtually impossible or excessively
                                                                     difficult the exercise of rights conferred by Community
                                                                     law. Any reclassification of the legal relationship
(1) OJ C 74, 8.3.1997, and                                           established between the tax authorities of a Member State
    OJ C 166, 31.5.1997.
                                                                     and certain companies in that State when a domestic
                                                                     charge subsequently found to be contrary to Community
                                                                     law was levied is therefore a matter for national law.
                                                                     (1) OJ C 94, 22.3.1997.
               JUDGMENT OF THE COURT
                     of 22 October 1998
in Joined Cases C-10/97 to C-22/97 (references for a
preliminary ruling from the Pretura Circondariale di
Roma): Ministero delle Finanze v. IN.CO.GE.'90 Srl and                              JUDGMENT OF THE COURT
                           Others (1)
                                                                                (Sixth Chamber)
(Recovery of sums paid but not due Ð Treatment of a
    national charge incompatible with Community law)                                      of 22 October 1998
                         (98/C 397/06)                               in Joined Cases C-36/97 and C-37/97 (references for a
                                                                     preliminary ruling from the Schleswig-Holsteinisches
                                                                     Verwaltungsgericht): Hilmar Kellinghusen v. Amt für
                                                                     Land- und Wasserwirtschaft Kiel and Ernst-Detlef Ketelsen
                (Language of the case: Italian)
                                                                           v. Amt für Land- und Wasserwirtschaft Husum (1)
                                                                     (Common agricultural policy Ð Administrative fees Ð
                                                                                Charging to beneficiaries)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                                           (98/C 397/07)
In Joined Cases C-10/97 to C-22/97: references to the                               (Language of the case: German)
Court under Article 177 of the EC Treaty from the
Pretura Circondariale di Roma (District Magistrate's
Court, Rome) (Italy) for a preliminary ruling in the
proceedings pending before that court between Ministero
                                                                       (Provisional translation; the definitive translation will be
delle Finanze and IN.CO.GE.'90 Srl (C-10/97), Idelgard
                                                                               published in the European Court Reports)
Srl (C-11/97), Iris'90 Srl (C-12/97), Camed Srl (C-13/97),
Pomieza Progetti Appalti Srl (PPA) (C-14/97), Edilcam Srl
(C-15/97), A. Cecchini & C. Srl (C-16/97), EMO Srl
(C-17/97), Emoda Srl (C-18/97), Sappesi Srl (C-19/97),               In Joined Cases C-36/97 and C-37/97: references to
Ing. Luigi Martini Srl (C-20/97), Giacomo Srl (C-21/97),             the Court under Article 177 of the EC Treaty by the


title: Action brought on 18 August 1995 by Lino Liao against the Council of the European Union (Case T-161/95)

text:
14 . 10 . 95          EN                 Official Journal of the European Communities                                 No C 268/27
contained in each consignment, the obligation to provide            reasons, contrary to the second paragraph of Article 25 of
security to each of the intervention agencies, and the              the Staff Regulations of officials .
requirement that tenderers must have a commercial
structure in each Member State . The refusal of the                 The applicants also plead an infringement of the terms of the
applicant's tender occurred during a period of one and a half       notice of competition, in that the selection board failed to
years throughout which the defendant, contrary to its               have regard to the nature of the oral test as described in the
former practice, either did not sell any intervention tobacco       said notice . They consider, first, that the candidates from the
at all or sold only to very large international undertakings,       Secretariat, into which category the applicants fall, were
thereby preventing small and medium-sized undertakings in           treated less favourably than their colleagues engaged in
the tobacco sector from obtaining any supplies whatever.            work falling directly within the administrative, budgetary,
                                                                    financial, accounting or technical fields, inasmuch as the
The applicant considers that the Commission has                     files to be dealt with for the purposes of the tests related only
committed a manifest breach of overriding principles of law,        to those fields and not to the Secretariat .
such as the principles of equality and proportionality, and
also a manifest error of assessment, by preventing the entire
class of small and medium-sized Greek undertakings from             They further point out that not all of the members of the
participating in the tendering procedures . The damage thus         selection board participated in all of the oral tests for all of
caused to the applicant goes far beyond the normal risks            the candidates; consequently, the contested decisions were
inherent in the      exercise   of activities  in the   sector      adopted in breach not only of the rules governing the
concerned .                                                         activities of selection boards but also of the principle of
                                                                    non-discrimination and equal treatment between
                                                                    candidates .
                                                                    Lastly, the applicants consider that the decision whereby,
                                                                    despite the defendant's undertaking to provide for 60 posts
Action brought on 10 August 1995 by Luigia Dricot and 29            with a view to upgrading category C posts to category B
others against the Commission of the European                       posts, the number of candidates admitted to the oral tests
                          Communities
                                                                    was limited to 120 constitutes evidence not only of a breach
                       ( Case T-159/95 )                            of the obligation laid down in the fifth paragraph of
                         ( 95/C 268/57 )                            Article 5 of Annex III to the Staff Regulations but also of an
                                                                    intention to limit in advance the number of successful
                                                                    candidates .
                (Language of the case: French)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 10 August 1995
by Luigia Dricot, Roland Cardoen, Carrelo da Cunha,
Martine Cluyssen, Marie de Wasseige, Rosa De Briones,
Marie-Thérèse De Smedt, Anna Maria Del Grande,                       Action brought on 18 August 1995 by Lino Liao against the
Pascaline Deuquet, Mari Doncel , Valente Erasmo, Karine                             Council of the European Union
 Eulaerts, Lorella Feltrin, Yolanda Focci , Christa Forman,                                 ( Case T-161 /95 )
 Rodriguez Guadalupe, Odette Hubert, Jocelyne Husson,                                         ( 95/C 268/58 )
 Sheila Kinsella , Rosario Martinez Berzal , Maria
 Maurer-Reichl , Giordano Merletti, Erik Neesgaard, Marina
 Ogle, Soren Sorensen, Luciana Tenivella, Christiane Unden,                          (Language of the case: French)
 Myriam Van Dam, Rita Verschuren and Aurore Zanchet,
 represented by Jean-Noël Louis, Thierry Demaseure,
 Véronique Leclercq and Ariane Tornel, of the Brussels Bar,          An action against the Council of the European Union was
 with an address for service in Luxembourg at the offices of         brought before the Court of First Instance of the European
 Fiduciaire Myson Sàrl, 1 Rue Glesener.                              Communities on 18 August 1995 by Lino Liao, residing in
                                                                     Brussels, represented by Pierre-Paul van Gehuchten and
                                                                     Constantin Nikis, of the Brussels Bar, with an address for
 The applicants claim that the Court should:                         service in Luxembourg at the Chambers of Louis Schiltz, 2
 — annul the decision of the selection board for internal            Rue du Fort Rheinsheim .
     competition COM/B/9/93 awarding the applicants a
     lower mark for the oral test than the minimum required          The applicant claims that the Court should :
     and excluding them from the list of successful
     candidates,                                                     — annul the contested staff report,
 — order the defendant to pay the costs .
                                                                     — award the sum of Bfrs 250 000, to be increased or
 Pleas in law and main arguments adduced in support:                      decreased as appropriate during the course of the
                                                                          proceedings, as compensation for the material damage
 The applicants maintain, first that the contested decisions              suffered by the applicant in consequence of his having
 are vitiated by the complete absence of any statement of                 been denied any chance of promotion,
 ---pagebreak--- No C 268/28           EN                 Official Journal of the European Communities                                     14 . 10 . 95
— award the sum of Bfrs 75 000, to be increased or                  The applicant claims that the Court should:
     decreased as appropriate during the course of the
     proceedings, as compensation for the non-material              — order the Commission to pay the difference between his
     damage suffered by the applicant,                                   salary as an official and his invalidity pension from
                                                                         1 August 1991 until the date when he reaches
— order the Council to pay all of the costs .                            pensionable age under the Staff Regulations of officials
                                                                         ( 31 January 2006 ), by way of compensation for the
Pleas in law and main arguments adduced in support:                      material damage suffered by the applicant, that
                                                                         difference amounting, on a provisional assessment, to
                                                                         Bfrs 15 000 000 + Bfrs 12 500 000, and order the
The applicant seeks the annulment of his staff report for the            Commission to calculate the first of those sums,
period from 1 July 1991 to 30 June 1993 .
                                                                    — order the Commission to pay ECU 1 000 000 by way of
The applicant states in that regard that at the time when, on            compenstion for the non-material damage suffered by
8 December 1994, he signed the draft staff report drawn up               the applicant,
by the first assessor, endorsing thereon the comment 'I do
not agree with the assessments made by the first assessor and      — order the Commission to pay interest at the rate of 10 %
wish to have a meeting with the-isecond assessor for the                 per annum on the capital sum of Bfrs 25 794 194
purposes of revising the report', the second assessor had                received by the applicant pursuant to Article 73 of the
already signed the report in question 10 days previously.                Staff Regulations, such interest, provisionally assessed in
                                                                         the sum of Bfrs 15 000 000, to be calculated from
Since the normal procedure had not been followed, the                    1 January 1990, alternatively from 10 June 1991 at the
defendant drew up a fresh report covering the same period.               latest, until payment in full of that capital sum,
That new report refers to a discussion on 17 May 1 995 and
purports to have been signed on the same date by the first         — in so far as may be necessary, annul the decision of the
and second assessors .
                                                                         Commission of 22 September 1994 refusing the
                                                                         applicant's request of 15 May 1994 ,
The applicant pleads, first, an infringement of Article 43 of
the Staff Regulations and of the guide to staff reports, in        — order the Commission to pay all of the costs .
that, despite the fact that those two instruments provide for
a periodical report to be drawn up at least once every two
years, on 1 July in every odd year, in the present case the         Pleas in law and main arguments adduced in support:
initial report was not communicated to the applicant until
November 1994 , that is to say, over 15 months late .               The applicant states that he worked in the Berlaymont
                                                                    building in Brussels from the time when it was constructed,
He further pleads that the procedure followed was irregular,        in 1967, until 1987, when he was transferred to another
in that it is apparent from an examination of the initial           building. As a result of his exposure to asbestos over a
report that it was signed by the first and second assessors        period of nearly twenty years, he developed an illness . On
before being signed by the applicant, despite the fact that the    26 November 1990 the applicant submitted a request for the
applicable rules provide for the report to be signed by the         recognition of his illness as an occupational disease . On
second assessor after the official concerned has been given         16 July 1991 the appointing authority decided to retire him
an opportunity of making comments or remarks thereon .              from 1 August 1991 and to grant him an invalidity pension
                                                                    determined on the basis of the third paragraph of Article 78
                                                                    of the Staff Regulations of officials . It was not until 15 April
                                                                    1994, after a lengthy and complex procedure, that the
                                                                    appointing authority finally acknowledged the occupational
                                                                   nature of the disease afflicting the applicant.
Action brought on 29 August 1995 by Arnaldo Lucaccioni             The applicant considers that the Commission's conduct in
  against the Commission of the European Communities                relation to him was unlawful, since it required him to work
                                                                    in an environment contaminated by asbestos,
                        Case T-165 /95 )                            notwithstanding that it knew of, or could not in any event
                         ( 95/C 268/59 )                            have been unaware of, the dangerous nature of that
                                                                    substance, particularly as regards persons performing tasks
                                                                    of an administrative nature in such an environment .
               (Language of tbe case: French)
                                                                    As a result of that misconduct on the part of the
An action against the Commission of the European                    Commission, the applicant has suffered material damage,
Communities was brought before the Court of First                   inasmuch as , first, he has received, since 1 August 1991 , an
Instance of the European Communities on 29 August 1995              invalidity pension in a sum lower than the remuneration
by Arnaldo Lucaccioni , residing in Paris, represented by           which he would have received if he had not been retired on
Georges Vandersanden, Laure Levi and Olivier Eben, of the           the ground of invalidity and, second, he has been forced to
Brussels Bar, with an address for service in Luxembourg at          sell his immovable property quickly, and thus at a reduced
the offices of Fiduciaire Myson Sàrl, 1 Rue Glesener.,              price, in order to make early repayment of the sums


title: Removal from the register of C-319/95

text:
No C 40/ 14           1 EN                   Official Journal of the European Communities                                       8 . 2 . 97
the cover capital of the pension less the accrued rights ) or                     Removal from the register of C-290/95 (')
only to the subrogation as such ?                                                                    ( 97/C 40/30 )
(') Offical Journal, English Special Edition 1971 ( II ), p. 416 .
                                                                        By order of 2 October 1996 the President of the Court of
                                                                        Justice of the European Communities has ordered the
                                                                        removal from the register of Case C-290/95 : Commission
                                                                        of the European Communities v. Italian Republic .
                                                                        (') OJ No C 286 , 28 . 10 . 1995 .
Reference for a preliminary ruling by the Cour du Travail
( Fourth Chamber), Brussels, by judgment of that court of
11 December 1996 in the case of Europieces SA against
Wilfried Sanders and Automotive Industries Holding
                             Company SA
                          ( Case C-399/96 )                                       Removal from the register of C-3 19/95 (')
                              97/C 40/28 )                                                           ( 97/C 40/31 )
Reference has been made to the Court of Justice of the                  By order of 23 September 1 996 the President of the Court
European Communities by judgment of the Cour du                         of Justice of the European Communities has ordered the
Travail (Higher Labour Court ) ( Fourth Chamber ),                      removal from the register of Case C-319/95 : Commission
Brussels, of 11 December 1996 , which was received at the               of the European Communities v. Ireland .
 Court Registry on 17 December 1996 , for a preliminary
 ruling in the case of Europieces SA against Wilfried                   (') OJ No C 333 , 9 . 12 . 1995 .
 Sanders and Automotive Industries Holding Company SA
 on the following question :
 Does Council Directive 77/ 187/EEC (') of 14 February
 1977 on the approximation of the laws of the Member
 States relating to the safeguarding of employees' rights in                      Removal from the register of C-4 10/95 (')
 the event of transfers of undertakings, businesses or parts                                          ( 97/C 40/32 )
 of businesses apply where a company in liquidation
 transfers all or part of its assets to another company                  By order of 27 September 1996 the President of the Court
 which then issues orders to a worker which the company                  of Justice of the Fluropean Communities has ordered the
 in liquidation says must be carried out ?                               removal from the register of Case C-410/95 ( reference for
                                                                         a preliminary ruling from the Tribunal de Commerce de
 O O J No L 61 , 5 . 3 . 1977, p . 26 .                                  Nice ): SA Societe des Grands Garages Mediterraneens ,
                                                                         Societe Nissan France v. Societe Nice Ouest Automobiles .
                                                                         (") OJ No C 46 , 17 . 2 . 1996 .
 Reference for a preliminary ruling by the Tribunal
 Correctionnel, Charleroi, by judgment of that court of
  21 October 1996 in the case of Ministere Public v. Jean
                                Harpegnies                                         Removal from the register of C- 18/96 (')
                           ( Case C-400/96 )                                                           ( 97/C 40/33 )
                              ( 97/C 40/29 )
                                                                          By order of 8 October 1 996 the President of the Court of
  Reference has been made to the Court of Justice of the
                                                                         Justice of the European Communities ordered the removal
                                                                         from the register of Case C- 18/96 : Commission of the
  European Communities by a judgment of the Tribunal
  Correctionnel ( Criminal Court ), Charleroi , of 21 October            European Communities v. Kingdom of Belgium .
  1996 , which was received at the Court Registry on
                                                                          (■) OJ No C 77, 16 . 3 . 1996 .
  17 December 1996, for a preliminary ruling in the case of
  Ministere Public ( Public Prosecutor ) v. Jean Harpegnies on
  the following question :
  Is Belgian legislation, in so far so it still requires approval
  by the Belgian authorities of plant-protection products                          Removal from the register of C-l 34/96 ( 1 )
  marketed in another Member State, in ' breach of the rules
  on the free movement of goods in the Community, as laid                                               ( 97/ C 40/34 )
  down in Article 30 of the EEC Treaty ?
                                                                          By order of 3 October 1996 the President of the Court of
                                                                          Justice of the European Communities ordered the removal


title: Case F-59/10: Order of the Civil Service Tribunal (Second Chamber) of 10 May 2011 — Barthel, Reiffers and Massez v Court of Justice (Civil Service — Preliminary issues — Plea of inadmissibility — Complaint out of time — Inadmissibility)

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/29

         Order of the Civil Service Tribunal (Second Chamber) of 10 May 2011 — Barthel, Reiffers and Massez v Court of Justice
   (Case F-59/10) (1)

   (Civil Service - Preliminary issues - Plea of inadmissibility - Complaint out of time - Inadmissibility)
   2012/C 138/63
   Language of the case: French

      Parties

      Applicants: Yvette Barthel (Arlon, Belgium), Marianne Reiffers (Olm, Luxembourg) and Lieven Massez (Luxembourg, Luxembourg) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal, lawyers)

      Defendant: Court of Justice (represented by: A. V. Placco, acting as Agent)

      Re:

   Action for annulment of the decision of the Court of Justice rejecting the claim by the applicants for payment of the allowance for continuous work or shiftwork provided for in the first indent of Article 1(1) of Council Regulation (ECSC, EEC, Euratom) No 300/76 of 9 February 1976, determining the categories of officials entitled to allowances for shiftwork, and the rates and conditions thereof (OJ 1976 L 38, p. 1)

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               The Court of Justice of the European Union is ordered to pay its own costs as well as those incurred by the applicants.

      (1)  OJ C 260, 25/09/2010, p. 28.


title: Case T-63/07: Action brought on 1 march 2007 — Mülhens v OHIM — Exportaciones Aceiteras Fedeoliva (tosca de FEDEOLIVA)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/50

         Action brought on 1 march 2007 — Mülhens v OHIM — Exportaciones Aceiteras Fedeoliva (tosca de FEDEOLIVA)
   (Case T-63/07)
   (2007/C 95/101)
   Language in which the application was lodged: English
   Parties

      Applicant: Mülhens GmbH & Co. KG (Köln, Germany) (represented by: D. Eickemeier, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Exportaciones Aceiteras Fedeoliva, A. I. E. (Jaen, Spain)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the defendant dated 18 December 2006 in Case R 761/2006-2;

               —

               reject the application of the Community trade mark No 3 467 651.

         Pleas in law and main arguments

      Applicant for the Community trade mark: Exportaciones Aceiteras Fedeoliva, A. I. E.

      Community trade mark concerned: The figurative Community trademark ‘tosca de FEDEOLIVA ’for goods and services in classes 16, 29, 35 and 39 Application No 3 467 651

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

      Mark or sign cited: The community and national word marks ‘TOSCA ’for goods and services in class 3 (perfumeries, essential oils, non-medicated toilet preparations and cosmetics, preparations for hair, toothpastes, toilet soaps)

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b), 8(2)(c) and 8(5) of Council Regulation (EC) No 40/94 (‘CTMR’) and of the essential procedural requirements enshrined in Articles 43(1), 73 and 74(1)(2) of the CTMR.


title: Case T-340/14: Judgment of the General Court of 15 September 2016 –Klyuyev v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Inclusion of the applicant’s name — Rights of the defence — Obligation to state reasons — Legal basis — Right to effective judicial protection — Failure to comply with the listing criteria — Manifest error of assessment — Right to property — Right to reputation)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/34

         Judgment of the General Court of 15 September 2016 –Klyuyev v Council
   (Case T-340/14) (1)

   ((Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the applicant’s name - Rights of the defence - Obligation to state reasons - Legal basis - Right to effective judicial protection - Failure to comply with the listing criteria - Manifest error of assessment - Right to property - Right to reputation))
   (2016/C 402/37)
   Language of the case: English

      Parties

      Applicant: Andriy Klyuyev (Donetsk, Ukraine) (represented by: B. Kennelly and J. Pobjoy, Barristers, and by R. Gherson and T. Garner, Solicitors)

      Defendant: Council of the European Union (represented by: Á. De Elera-San Miguel Hurtado and J.-P. Hix, acting as Agents)

      Intervener in support of the defendant: European Commission (represented by: D. Gauci and T. Scharf, acting as Agents)

      Re:

   Application under Article 263 TFEU seeking the annulment of (i) Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1), and (ii) Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1), in so far as the applicant’s name was included or maintained in the list of persons, entities and bodies subject to those restrictive measures, and, in the alternative, a declaration that Article 1(1) of Decision 2014/119 as amended by Council Decision (CFSP) 2015/143 of 29 January 2015 (OJ 2015 L 24, p. 16), and Article 3(1) of Regulation No 208/2014, as amended by Council Regulation (EU) 2015/138 of 29 January 2015 (OJ 2015 L 24, p. 1) do not apply to the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls — until the entry into force of Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 — Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in their initial versions, in so far as Mr Andriy Klyuyev was named in the list of persons, entities and bodies subject to those restrictive measures;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Mr Klyuyev, with respect to the claim for annulment stated in the application;

               4.

               Orders Mr Klyuyev to bear his own costs and to pay the costs incurred by the Council, with respect to the claim for annulment stated in the statement of modification of the form of order sought;

               5.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 261, 11.8.2014.


title: Case T-784/14: Order of the General Court of 14 September 2015 — Romania v Commission (Action for annulment — European Union’s own resources — Financial liability of the Member States — Obligation to pay the Commission the amount corresponding to a loss of own resources — Amount of default interest — Letter from the Commission — Act not subject to appeal — Inadmissible)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/38

         Order of the General Court of 14 September 2015 — Romania v Commission
   (Case T-784/14) (1)

   ((Action for annulment - European Union’s own resources - Financial liability of the Member States - Obligation to pay the Commission the amount corresponding to a loss of own resources - Amount of default interest - Letter from the Commission - Act not subject to appeal - Inadmissible))
   (2015/C 381/44)
   Language of the case: Romanian

      Parties

      Applicant: Romania (represented by: R. Radu, I. Haţieganu, and A. Buzoianu, acting as Agents)

      Defendant: European Commission (represented by: A. Caeiros and A. Stefanuc, acting as Agents)

      Re:

   Application for annulment of the decision allegedly made by the Commission’s Directorate-General for Budget contained in the letter BUDG/B/03MV D(2014) 3079038 of 19 September 2014, by which the Commission ordered Romania to provide it with the gross amount of EUR 14  883,79 (from which 25 % should be deducted for collection costs corresponding to a loss of traditional own resources, at the latest on the first working day following the nineteenth day of the second month following the dispatch of that letter.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               There is no need to adjudicate on the applications for leave to intervene by the Slovak Republic and the Federal Republic of Germany.

               3.

               Romania shall bear its own costs and pay those incurred by the Commission.

               4.

               Romania, the Commission, the Slovak Republic and the Federal Republic of Germany shall each bear their own costs relating to the applications for leave to intervene.

      (1)  OJ C 65, 23.3.2015.