title: Case C-577/08: Judgment of the Court (Fourth Chamber) of 29 July 2010 (reference for a preliminary ruling from the Arbeidshof te Antwerpen — Belgium) — Rijksdienst voor Pensioenen v Elisabeth Brouwer (Equal treatment for men and women in matters of social security — Directive 79/7/EEC — Frontier workers — Calculation of pensions)

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/3

         Judgment of the Court (Fourth Chamber) of 29 July 2010 (reference for a preliminary ruling from the Arbeidshof te Antwerpen — Belgium) — Rijksdienst voor Pensioenen v Elisabeth Brouwer
   (Case C-577/08) (1)

   (Equal treatment for men and women in matters of social security - Directive 79/7/EEC - Frontier workers - Calculation of pensions)
   2010/C 246/04
   Language of the case: Dutch

      Referring court

   Arbeidshof te Antwerpen

      Parties to the main proceedings

      Applicant: Rijksdienst voor Pensioenen

      Defendant: Elisabeth Brouwer

      Re:

   Reference for a preliminary ruling — Arbeidshof te Antwerpen — Interpretation of Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24) — National legislation providing for notional and flat-rate daily wages that are lower for women than for men when calculating retirement pensions for salaried frontier workers

      Operative part of the judgment

   Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, precludes national legislation under which, for the years 1984 to 1994, the calculation of old-age and retirement pensions for female frontier workers, concerning equal work or work of equal value, was based on notional and/or flat-rate daily wages lower than those for male frontier workers.

      (1)  OJ C 55, 7.3.2009.


title: Case C-681/13: Judgment of the Court (First Chamber) of 16 July 2015 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Diageo Brands BV v Simiramida-04 EOOD (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Recognition and enforcement of judgments — Grounds for refusing enforcement — Infringement of public policy in the State in which recognition is sought — Judgment given by a court in another Member State contrary to EU law on trade marks — Directive 2004/48/EC — Enforcement of intellectual property rights — Legal costs)

text:
               21.9.2015

               EN

               Official Journal of the European Union

               C 311/6

         Judgment of the Court (First Chamber) of 16 July 2015 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Diageo Brands BV v Simiramida-04 EOOD
   (Case C-681/13) (1)

   ((Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Recognition and enforcement of judgments - Grounds for refusing enforcement - Infringement of public policy in the State in which recognition is sought - Judgment given by a court in another Member State contrary to EU law on trade marks - Directive 2004/48/EC - Enforcement of intellectual property rights - Legal costs))
   (2015/C 311/07)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Diageo Brands BV

      Defendant: Simiramida-04 EOOD

      Operative part of the judgment

               1.

               Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the fact that a judgment given in a Member State is contrary to EU law does not justify that judgment’s not being recognised in another Member State on the grounds that it infringes public policy in that State where the error of law relied on does not constitute a manifest breach of a rule of law regarded as essential in the EU legal order and therefore in the legal order of the Member State in which recognition is sought or of a right recognised as being fundamental in those legal orders. That is not the case of an error affecting the application of a provision such as Article 5(3) of 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.
               When determining whether there is a manifest breach of public policy in the State in which recognition is sought, the court of that State must take account of the fact that, save where specific circumstances make it too difficult, or impossible, to make use of the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing such a breach before it occurs.

               2.

               Article 14 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as applying to the legal costs incurred by the parties in the context of an action for damages, brought in a Member State, to compensate for the injury caused as a result of a seizure carried out in another Member State, which was intended to prevent an infringement of an intellectual property right, when, in connection with that action, a question arises concerning the recognition of a judgment given in that other Member State declaring that seizure to be unjustified.

      (1)  OJ C 71, 8.3.2014.


title: Case T-140/17: Action brought on 6 March 2017 — Kampete. v Council

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/31

         Action brought on 6 March 2017 — Kampete. v Council
   (Case T-140/17)
   (2017/C 129/46)
   Language of the case: French

      Parties

      Applicant: Ilunga Kampete (Kinshasa, Democratic Republic of the Congo) (represented by: O. Okito, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Regulation (EU) 2016/2230 implementing Council Decision (CFSP) 2016/2231 of 12 December 2016 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo, and amending Decision 2010/788/CFSP, in so far as it concerns Ilunga Kampete;

               —

               order the Council to bear its own costs, and to pay those of the applicant and of all the interveners.

      Pleas in law and main arguments

   In support of the action, the applicant relies on two pleas in law which are essentially identical or similar to those relied on in Case T-139/17, Kibelisa v Council.


title: Action brought on 21 August 1996 by the Commission of the European Communities against the French Republic (Case C-283/96)

text:
No C 294/8                 EN                 Official Journal of the European Communities                                     5 . 10 . 96
       in its territory, or is Article 22 to be interpreted as           prescribed for doing so . That period expired on 1 January
       meaning that such entitlement exists so long as the               1986 without the Portuguese Republic having brought into
       person concerned fulfils all other conditions of the              force the necessary provisions .
       national legislation of the country which he or she
       leaves , apart from the residence requirement ?                   (') OJ No L 265 , 5 . 10 . 1984 , p . 1 .
(') Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on the
      application of social security schemes to employed persons, to
      self-employed persons and to members of their families moving
      within the Community ( OJ English Special Edition 1971 ( II ),
      p. 416 ).                                                          Action brought on 21 August 1996 by the Commission of
( 2 ) Council Regulation ( EEC ) No 574/72 of 21 March 1972 laying        the European Communities against the French Republic
      down the procedure for implementing Regulation ( EEC )
      No 1408/71 ( OJ English Special Edition 1972 ( I ), p. 159 ).                                Case C-282/96 )
                                                                                ( 96/C 294/ 16 )
                                                                         An action against the French Republic was brought before
                                                                         the Court of Justice of the European Communities on
                                                                         21 August 1996 by the Commission of the European
                                                                         Communities , represented by Gotz zur Flausen , acting as
Action brought on 14 August 1996 by the Commission of                    Agent, assisted by J. -J. Evrard, of the Brussels Bar, with an
the European Communities against the Portuguese                          address for service in Luxembourg at the office of Carlos
                                Republic                                 Gomez de la Cruz, Wagner Centre, Kirchberg.
                             Case C-276/96 )
                              96/C 294/ 1 5                              The applicant claims that the Court should :
                                                                         — declare that, by failing to adopt the laws, regulations or
An action against the Portuguese Republic was brought                        administrative provisions necessary to comply with
before the Court of Justice of the European Communities on                    Council Directive 91 / 157/EEC of 18 March 1991 on
14 August 1996 by the Commission of the European                              batteries and accumulators containing certain
Communities, represented by Thomas F. Cusack and Dr                           dangerous substances ('), or by failing to notify such
Francisco de Sousa Fialho, acting as Agents, with an address                 measures, the French Republic has failed to fulfil its
for service in Luxembourg at the office of Carlos Gomez de                    obligations under that Directive ,
la Cruz, of its Legal Service , Wagner Centre , Kirchberg.
                                                                         — order the French Republic to pay the costs .
The applicant claims that the Court should :                             Pleas in law and main arguments
— declare that, by failing to adopt the laws , regulations or            Under Article 189 of the EC Treaty, according to which a
       administrative provisions necessary to comply with                directive is to be binding, as to the result to be achieved , on
       Article 3 of Council Directive 84/466/Euratom of                  each Member State to which it is addressed, Member States
       3 September 1984 laying down basic measures for the               are required to observe the time limits laid down in
       radiation protection of persons undergoing medical                directives for their transposition . That time limit expired on
       examination or treatment ('), the Portuguese Republic             18 September 1992 without the French Republic having
       has failed to fulfil its obligations under the third              brought into force the necessary provisions in order to
       paragraph of Article 161 of the Euratom Treaty and                comply with the Directive referred to in the Commission 's
       Article 7 of Directive 84/466/Euratom , in conjunction            application .
       with Article 399 of the Act concerning the conditions of
       accession of the Portuguese Republic,                             (') OJ No L 78 , 26 . 3 . 1991 , p . 38 .
— declare , in the alternative , that, by failing to inform the
       Commission forthwith thereof, the Portuguese Republic
       failed to fulfil its obligations under the abovementioned
       provisions ,
                                                                         Action brought on 21 August 1996 by the Commission of
— order the Portuguese Republic to pay the costs .                         the European Communities against the French Republic
                                                                                Case C-283 /96 )
 Pleas in law and main arguments                                                                    ( 96/C 294/ 17 )
The mandatory nature of the provisions of the third                      An action against the French Republic was brought before
 paragraph of Article 161 of the Euratom Treaty requires                 the Court of Justice of the European Communities on
 Member States to adopt the measures necessary to transpose              21 August 1996 by the Commission of the European
 directives addressed to them before the expiry of the period             Communities , represented by Gotz zur Hausen , acting as
 ---pagebreak---   5 . 10 . 96              EN                   Official Journal of the European Communities                                    No C 294/9
  Agent, assisted by J. -J. Evrard, of the Brussels Bar, with an           — order the Italian Republic to pay the costs .
  address for service in Luxembourg at the office of Carlos
  Gomez de la Cruz, Wagner Centre, Kirchberg.
                                                                           Pleas in law and main arguments
  The applicant claims that the Court should :                             Article 7 of the Directive requires Member States to establish
                                                                           programmes in order to reduce pollution of the waters by
  — declare that, by failing to adopt the laws , regulations or            the substances within List II . The Directive did not expressly
        administrative provisions necessary to comply with                 provide for a date of entry into force . In a letter of
        Commission Directive 93/86/EEC of 4 October 1993 ( ] )             3 November 1976 , the Commission proposed the following
        adapting to technical progress Council Directive                   timetable to the Member States : an authorization system by
        91 / 157/EEC on batteries and accumulators containing               15 September 1978 ; programmes to reduce pollution by the
        certain dangerous substances ( 2 ), or by failing to notify        substances within List II by 15 September 1981 ;
        such measures, the French Republic has failed to fulfil its        programmes to take effect by 15 September 1986 . Those
        obligations under that Directive,                                  periods expired without the Italian Republic having
                                                                           adopted the programmes necessary to comply with the
  — order the French Republic to pay the costs .                           Directive .
- Pleas in law and main arguments                                          (M OJ No L 129 , 18 . 5 . 1976 , p . 23 .
  Under Article 189 of the EC Treaty, according to which a
  directive is to be binding, as to the result to be achieved, on
  each Member State to which it is addressed, Member States
  are required to observe the time limits laid down in
  directives for their transposition . That time limit expired on
  31 December 1993 without the French Republic having
  brought into force the necessary provisions in order to                  Action brought on 22 August 1996 by the Commission of
  comply with the Directive referred to the Commission 's                    the European Communities against the Italian Republic
  application .                                                                                Case C-286/96 )
                                                                                ( 96/C 294/ 19 )
  (') OJ No L 264 , 23 . 10 . 1993 , p . 51 .
  ( 2 ) OJ No L 78 , 26 . 3 . 1991 , p . 38 .
                                                                           An action against the Italian Republic was brought before
                                                                           the Court of Justice of the European Communities on
                                                                           22 August 1996 by the Commission of the European
                                                                           Communities , represented by Gotz zur Hausen, of its Legal
                                                                           Service, acting as Agent, with an address for service in
                                                                           Luxembourg at the office of Carlos Gomez de la Cruz, of its
  Action brought on 22 August 1996 by the Commission of                    Legal Service, Wagner Centre, Kirchberg.
     the European Communities against the Italian Republic
                              Case C-285/96 )                              The applicant claims that the Court should :
                               ( 96/C 294/ 18 )
                                                                           — declare that, by failing to adopt and bring into force
  An action against the Italian Republic was brought before                     within the prescribed period the laws , regulations or
  the Court of Justice of the European Communities on                           administrative provisions necessary to comply with :
  22 August 1996 by the Commission of the European
  Communities, represented by Gotz zur Hausen, of its Legal                    — Commission Directive 91 /410/EEC of 22 July 1991
  Service, acting as Agent, with an address for service in                         adapting to technical progress for the 14th time
  Luxembourg at the office of Carlos Gomez de la Cruz, of its                      Council      Directive        67/548/EEC      on     the
  Legal Service, Wagner Centre, Kirchberg.                                         approximation of laws, regulations and
                                                                                administrative provisions relating to the
  The applicant claims that the Court should :                                     classification , packaging and labelling of dangerous
                                                                                substances ('),
  — declare that, by failing to adopt programmes to reduce
                                                                               — Commission Directive 93 / 86/EEC of 4 October
        pollution containing quality objectives for the 99
        dangerous substances listed in the Annex, or by failing to                  1993 adapting to technical progress Council
                                                                                Directive 91 / 1 57/EEC on batteries and accumulators
        communicate to the Commission the programmes and
        the result of their application, contrary to Article 7 of                  containing certain dangerous substances ( 2 ),
        Commission Directive 76/464/EEC ( '), and by not
        providing the Commission with the information                           — Commission Directive 93/90/EEC of 29 October
        requested in that connection , contrary to Article 5 of the                 1993 concerning the list of substances referred to in
        EC Treaty, the Italian Republic has failed to fulfil its                   Article 13 ( 1 )         (5)      of Council   Directive
        obligations under that Treaty, and                                         67/548/EEC ( 3 ),


title: Case C-127/08: Judgment of the Court (Grand Chamber) of 25 July 2008 (reference for a preliminary ruling from the High Court of Ireland) — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform (Directive 2004/38/EC — Right of Union citizens and their family members to move and reside freely in the territory of a Member State — Family members who are nationals of non-member countries — Nationals of non-member countries who entered the host Member State before becoming spouses of Union citizens)

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/4

         Judgment of the Court (Grand Chamber) of 25 July 2008 (reference for a preliminary ruling from the High Court of Ireland) — Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska v Minister for Justice, Equality and Law Reform
   (Case C-127/08) (1)

   (Directive 2004/38/EC - Right of Union citizens and their family members to move and reside freely in the territory of a Member State - Family members who are nationals of non-member countries - Nationals of non-member countries who entered the host Member State before becoming spouses of Union citizens)
   (2008/C 236/07)
   Language of the case: English
   Referring court
   High Court of Ireland
   Parties to the main proceedings

      Applicants: Blaise Baheten Metock, Hanette Eugenie Ngo Ikeng, Christian Joel Baheten, Samuel Zion Ikeng Baheten, Hencheal Ikogho, Donna Ikogho, Roland Chinedu, Marlene Babucke Chinedu, Henry Igboanusi, Roksana Batkowska

      Defendant: Minister for Justice, Equality and Law Reform
   Re:
   Reference for a preliminary ruling — High Court of Ireland — Interpretation of Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Spouse who is a non-EU national — National legislation of the host Member State making the right of residence of family members subject to prior lawful residence in another Member State
   Operative part of the judgment

               1.

               Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive.

               2.

               Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.

      (1)  OJ C 116, 9.5.2008.


title: Judgment of the Court (Grand Chamber) of 8 June 2004 in Case C-220/02 (reference for a preliminary ruling from the Oberster Gerichtshof): Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v Wirtschaftskammer Österreich (Principle of equal pay for men and women — Concept of pay — Taking into account, for calculation of termination payments, of periods of military service — Possibility of comparing workers performing military service with women workers who, after their maternity leave, take parental leave the duration of which is not taken into account for calculating a termination payment)

text:
               24.7.2004

               EN

               Official Journal of the European Union

               C 190/2

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 8 June 2004
   in Case C-220/02 (reference for a preliminary ruling from the Oberster Gerichtshof): Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten v Wirtschaftskammer Österreich (1)

   (Principle of equal pay for men and women - Concept of pay - Taking into account, for calculation of termination payments, of periods of military service - Possibility of comparing workers performing military service with women workers who, after their maternity leave, take parental leave the duration of which is not taken into account for calculating a termination payment)
   (2004/C 190/04)
   Language of the case: German
   In Case C-220/02: REFERENCE to the Court under Article 234 EC from the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between Österreichischer Gewerkschaftsbund, Gewerkschaft der Privatangestellten and Wirtschaftskammer Österreich - on the interpretation of Article 141 EC and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, p. 19) - the Court, composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, J.-P. Puissochet (Rapporteur) and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric, S. von Bahr and R. Silva de Lapuerta, Judges; J. Kokott, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 8 June 2004, in which it has ruled:

               1.

               The benefit, for persons performing military service or, as an alternative, compulsory civilian service which may be extended voluntarily, consisting in the taking into account, for calculation of a termination payment they might subsequently be entitled to claim, of the duration of that service is to be regarded as part of their pay within the meaning of Article 141 EC.

               2.

               Article 141 EC and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women do not preclude the calculation of a termination payment from taking into account, as length of service, the duration of periods of military service or the civilian equivalent performed mainly by men but not of parental leave taken most often by women.

      (1)  OJ C 202 of 24.8.2002.


title: Case T-252/14: Order of the General Court of 8 September 2015 — Chemo Ibérica v OHIM — Novartis (EXELTIS)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/58

         Order of the General Court of 8 September 2015 — Chemo Ibérica v OHIM — Novartis (EXELTIS)
   (Case T-252/14) (1)

   (2015/C 381/73)
   Language of the case: Spanish
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 253, 4.8.2014.


title: Case C-13/15: Order of the Court (Sixth Chamber) of 8 September 2015 — (request for a preliminary ruling from the Cour de cassation — France) — Criminal proceedings against Cdiscount SA (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Directive 2005/29/EC — Consumer protection — Unfair commercial practices — Price reduction — Marking or display of reference price)

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/9

         Order of the Court (Sixth Chamber) of 8 September 2015 — (request for a preliminary ruling from the Cour de cassation — France) — Criminal proceedings against Cdiscount SA
   (Case C-13/15) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Directive 2005/29/EC - Consumer protection - Unfair commercial practices - Price reduction - Marking or display of reference price))
   (2015/C 398/11)
   Language of the case: French

      Referring court

   Cour de cassation

      Criminal proceedings against

   Cdiscount SA

      Operative part of the order

   Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as precluding provisions of national law, such as those at issue in the main proceedings, which lay down a general prohibition of announcements of price reductions which do not show the reference price when the price is marked or displayed, without providing for an assessment case by case allowing it to be determined whether the announcements are unfair, in so far as those provisions pursue objectives relating to consumer protection. It is for the referring court to determine whether that is so in the case in the main proceedings.

      (1)  OJ C 107, 30.3.2015.


title: Case C-251/99 P: Appeal brought on 6 July 1999 by ENICHEM SpA against the judgment delivered on 20 April 1999 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 between LVM NV, Elf Atochem SA, BASF AG, Shell International Chemical Company Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AG, S.A.V., Montedison SpA, I.C.I. plc, Hüls AG and Enichem SpA and the Commission of the European Communities

text:
4.12.1999             EN                    Official Journal of the European Communities                                      C 352/15
   The Court of First Instance was wrong to assume that the            — Error of law in respect of the Court’s assessment of the
   administrative phase of the proceedings lasted only ten                 breach of the rights of the defence resulting from the
   months, covering the period from the service of the                     granting of inadequate access to the documentation: con-
   statement of objections to the adoption of the decision,                trary to the verification carried out by the Court of First
   since it wrongly left out of account the duration of the first          Instance, the question whether the documents which were
   judicial proceedings. The Commission accepted that the                  not disclosed by the Commission during the administrative
   judicial proceedings brought against the 1988 decision                  procedure were in fact of an exonerating nature, as the
   should be limited to the procedural defects pleaded,                    Court of First Instance held them to be after the event,
   without indicating its intention to base a new decision on              cannot be decisive. In carrying out an ex post facto
   the old proceeding. It thereby consciously accepted that                assessment of those documents in the course of the judicial
   the appellant might bring a second action before the Court              proceedings, the Court of First Instance substituted its own
   of First Instance and, if necessary, before the Court of                view concerning their exonerating nature in place of that
   Justice, with a view to obtaining a decision on the substance           of the Commission; this cannot take the place of the
   of the case which would ultimately not be forthcoming                   opportunity, denied to the undertakings, to defend them-
   until over 20 years after the conduct alleged against the               selves with the help of those documents during the course
   appellant had taken place.                                              of the proceedings before the Commission.
                                                                       — Infringement of Article 253 EC (formerly Article 190 of
   The Court of First Instance wrongly took the view that the              the EC Treaty).
   breach of the general principle of law requiring proceedings
   to be of a reasonable duration did not in itself affect the         (1) OJ L 239 of 14.9.1994, p. 14.
   validity of the decision. In the absence of any recognition         (2) OJ C 33 of 6.2.1999, p. 1.
   of the illegality of a decision adopted after a reasonable          (3) OJ C 397 of 19.12.1999, p. 15.
   period of time, the basic law relating to undertakings
   would exist only on paper. Having regard to the primary
   importance attached to fundamental rights in Community
   law, such a situation is unacceptable.
                                                                       Appeal brought on 6 July 1999 by ENICHEM SpA against
   The view of the law taken by the Court of First Instance —
   according to which the legal consequences of a breach of            the judgment delivered on 20 April 1999 by the Third
   the right to expect proceedings to be of a reasonable               Chamber, Extended Composition, of the Court of First
                                                                       Instance of the European Communities in Joined Cases
   duration are limited, where it cannot be shown that there
                                                                       T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
   has been any infringement of the rights of the defence, to
                                                                       T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
   specific claims for damages — cannot be justified, having
   regard to the judgment of the Court of Justice of                   T-329/94 and T-335/94 between LVM NV, Elf Atochem
   17 December 1998 in Case C-185/95 Baustahlgewebe (2).               SA, BASF AG, Shell International Chemical Company Ltd,
                                                                       DSM NV and DSM Kunststoffen BV, Wacker-Chemie
   Even though the Court of First Instance may not have
                                                                       GmbH, Hoechst AG, S.A.V., Montedison SpA, I.C.I. plc,
   been obliged to accept the appellant’s argument that the
                                                                       Hüls AG and Enichem SpA and the Commission of the
   Commission’s decision should be annulled, it should at
   least have reduced the fine imposed on the appellant.                                   European Communities
                                                                                (Case C-251/99 P)
— Error of law with regard to the adoption of the 1994
   decision: the Court of First Instance wrongly considered                                    (1999/C 352/24)
   that the validity of the preparatory steps taken prior to the
   adoption of the 1988 decision remained unaffected by the            An appeal against the judgment delivered on 20 April 1999
   annulment of that decision, and that the Commission was             by the Third Chamber, Extended Composition, of the Court of
   therefore entitled to base the 1994 decision on those steps         First Instance of the European Communities in Joined Cases
   without carrying out a fresh administrative proceeding.             T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
                                                                       T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
                                                                       T-329/94 and T-335/94 between LVM NV, Elf Atochem SA,
   It cannot be concluded from the case-law of the Court of            BASF AG, Shell International Chemical Company Ltd, DSM
   Justice (Case C-415/96 (3) judgment of 12.11.1998)                  NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
   referred to by the Court of First Instance that procedural          Hoechst AG, S.A.V., Montedison SpA, I.C.I. plc, Hüls AG
   acts the regularity of which cannot be inferred from the            and Enichem SpA and the Commission of the European
   grounds contained in the judgment, or the regularity of             Communities was brought before the Court of Justice of the
   which, in any event, was called in question but not                 European Communities on 6 July 1999 by Enichem SpA, a
   examined, remain valid.                                             company whose registered office is in Milan (Italy), represented
                                                                       by Mario Siragusa, of the Rome Bar, and Francesca Maria
                                                                       Moretti, of the Venice Bar, with an address for service in
   Furthermore, the Court of First Instance disregards the             Luxembourg at Studio Elvinger, Hoss & Prussen, 2 Place
   scope of the Commission’s obligation to base its decision           Winston Churchill L-1450 Luxembourg.
   on a proper procedure conducted in accordance with the
   rules laid down in respect of formal and procedural                 The appellant claims that the Court should:
   requirements. In the present case, compliance with those
   rules would have meant, in particular, that the appellant           — set aside the judgment of the Court of First Instance in so
   should have been heard and that the hearing officer and                 far as it is contested by the applicant, and annul the
   the Advisory Committee should have been involved.                       Commission’s decision accordingly;
 ---pagebreak--- C 352/16               EN                     Official Journal of the European Communities                                    4.12.1999
— in the alternative, set aside the judgment of the Court of             6. Misinterpretation and misapplication of Community law,
    First Instance in so far as it is contested by the applicant,            and insufficient consideration of the evidence concerning
    and cancer or reduce accordingly the fine imposed on                     the relationship between the fine imposed on Enichem and
    Enichem by the decision;                                                 its market share.
— order the Commission to pay the costs of the present                   7. Misinterpretation and misapplication of Community law
    proceedings and of the proceedings at first instance.                    in relation to the principle of proportionality between
                                                                             infringement and fine.
Pleas in law and main arguments
A. Procedural grounds
                                                                         Appeal brought on 5 July 1999 by Wacker-Chemie GmbH
1. Misinterpretation and misapplication of Article 44(1)(c) of           and Hoechst AG against the judgment delivered on 20
    the Rules of Procedure of the Court of First Instance and            April 1999 by the Third Chamber, Extended Composition,
    Community case-law in relation to admissibility.                     of the Court of First Instance of the European Communi-
                                                                         ties in Joined Cases T-305/94, T-306/94, T-307/94,
                                                                         T-313/94, T-314/94, T-315/94, T-316/94, T-318/94,
2. Misinterpretation and misapplication of Community law                 T-325/94, T-328/94, T-329/94 and T-335/94 between Lim-
    in relation to the force of res judicata.                            burgse Vinyl Maatschappij NV, Elf Atochem SA, BASF
                                                                         AG, Shell International Chemical Company Ltd, DSM
3. Misinterpretation and misapplication of Community law                 NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
    in relation to the invalidity of the procedural steps leading        Hoechst AG, Société Artésienne de Vinyle, Montedison
    to the adoption of the decision.                                     SpA, Imperial Chemical Industries plc, Hüls AG and
                                                                         Enichem SpA, and the Commission of the European
4. Misinterpretation and misapplication of Community law                                         Communities
    in relation to the rights of defence in the event of the
    re-adoption of a annulled infringement decision.                                           (Case C-252/99 P)
5. Infringement of Article 190 of the EC Treaty: deficient                                      (1999/C 352/25)
    statement of reasons as regards the sufficiency of the
    reasons relied upon by the Commission in support of its
    re-adoption of the PVC decision.                                     An appeal against the judgment delivered on 20 April 1999
                                                                         by the Third Chamber, Extended Composition, of the Court of
                                                                         First Instance of the European Communities in Joined Cases
                                                                         T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
                                                                         T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
B. Substantive grounds                                                   T-329/94 and T-335/94 between Limburgse Vinyl Maatschap-
                                                                         pij NV, Elf Atochem SA, BASF AG, Shell International
1. Misinterpretation and misapplication of Community law                 Chemical Company Ltd, DSM NV and DSM Kunststoffen BV,
    in relation to the consequences flowing from the Court of            Wacker-Chemie GmbH, Hoechst AG, Société Artésienne de
    First Instance’s finding of inconsistency between the two            Vinyle, Montedison SpA, Imperial Chemical Industries plc,
    documents setting out the complaint against the Com-                 Hüls AG and Enichem SpA, and the Commission of the
    mission (‘planning documents’’).                                     European Communities was brought before the Court of
                                                                         Justice of the European Communities on 5 July 1999 by
2. Misapplication of Community law, including recent case-               Wacker-Chernie GmbH and Hoechst AG, represented by Hans
    law, in relation to individual liability for a collective            Hellmann, Rechtsanwalt, Amn Morsdorfer Hof 16, D-50933
    infringement.                                                        Cologne.
3. Infringement of Community law in relation to the parties’             The appellants claim that the Court should:
    rights of defence, in particular as regards access to the case
    file.                                                                1. set aside paragraphs 4 and 5 of the operative part of the
                                                                             judgment delivered by the Court of First Instance on
                                                                             20 April 1999 in Case T-315/94 Wacker-Chemie GmbH
4. Misinterpretation and misapplication to the present case                  v Commission and Case T-316/94 Hoechst AG v Com-
    of the principles relating to the fixing of the fines / Incor-           mission, and
    rect assessment of the relationship between turnover and
    the amount of the fine.                                                  (a) annul, in so far as it is addressed to the appellants,
                                                                                Commission Decision 94/599/EC of 27 July 1994 (1)
5. Misinterpretation and misapplication of Community law,                        in cartel proceeding IV/31.865 — PVC, constituting
    including recent case-law, in relation to the obligations of                 the subject-matter of the action, in accordance with
    the Commission concerning the statement of the criteria                      the application made therein, alternatively, reduce the
    for calculating the fines.                                                   fine imposed on them; or


Avis juridique important

|

E1997P0010

Action brought on 18 December 1997 by the EFTA Surveillance Authority against the Kingdom of Norway (Case E-10/97)

Official Journal C 084 , 19/03/1998 P. 0014 - 0014

Action brought on 18 December 1997 by the EFTA Surveillance Authority against the Kingdom of Norway (Case E-10/97) (98/C 84/06)An action against the Kingdom of Norway was brought before the EFTA Court on 18 December 1997 by the EFTA Surveillance Authority, represented by Håkan Berglin, Director of the Legal and Executive Affairs Directorate, acting as Agent, EFTA Surveillance Authority, 74, Rue de Trèves, B-1040 Brussels.The applicant claims that the Court should:1. Declare that, by failing to adopt, within the time limit prescribed, the national provisions necessary to comply with the Act referred to in point 2 of Annex XVIII of the EEA Agreement (Council Directive 78/610/EEC of 29 June 1978 on the approximation of the laws, regulations and administrative provisions of the Member States on the protection of the health of workers exposed to vinyl chloride monomer), as adapted by way of Protocol 1 to the EEA Agreement, the Kingdom of Norway has failed to fulfil its obligations within the meaning of Article 11 of that Act and Article 7 of the EEA Agreement.2. Order the Kingdom of Norway to pay the costs of the proceedings.Legal and factual background and pleas in law adduced in support:- Council Directive 78/610/EEC of 29 June 1978 sets out certain requirements on the protection of the health of workers exposed to vinyl chloride monomer,- According to Article 7 of the EEA Agreement, acts referred to or contained in the Annexes to the Agreement or in decisions of the EEA Joint Committee shall be binding on the Contracting Parties and be, or be made, part of the internal legal order,- Council Directive 78/610/EEC of 29 June 1978 on the approximation of the laws, regulations and administrative provisions of the Member States on the protection of the health of workers exposed to vinyl chloride monomer is referred to point 2 of Annex XVIII to the EEA Agreement,- It follows from Article 11 of the Act, as adapted by way of Protocol 1 to the EEA Agreement, that Norway was to bring into force the laws, regulations and administrative provisions necessary to comply with the Act by 1 January 1994 and to inform the EFTA Surveillance Authority forthwith of the measures taken to this end,- At the expiry of the abovementioned time limit, Norway had not taken the legislative measures necessary to comply with the Act. Nor had such measures been taken at the end of the time limit set by the EFTA Surveillance Authority in its reasoned opinion, in which it requested Norway to take the measures necessary to comply with the Act. Norway has, therefore, failed to comply with its obligations within the meaning of Article 11 of the Act and Article 7 of the EEA


title: Judgment of the Court (Grand Chamber) of 31 May 2005 in Case C-53/03: Reference for a preliminary ruling from the Epitropi Antagonismou in Synetairismos Farmakopoion Aitolias & Akarnanias (Syfait) and Others v GlaxoSmithKline plc and Others (Admissibility — Meaning of court or tribunal of a Member State — Abuse of a dominant position — Refusal to supply pharmaceutical products to wholesalers — Parallel trade)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/3

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 31 May 2005
   in Case C-53/03: Reference for a preliminary ruling from the Epitropi Antagonismou in Synetairismos Farmakopoion Aitolias & Akarnanias (Syfait) and Others v GlaxoSmithKline plc and Others (1)

   (Admissibility - Meaning of court or tribunal of a Member State - Abuse of a dominant position - Refusal to supply pharmaceutical products to wholesalers - Parallel trade)
   (2005/C 182/06)
   Language of the case: Greek
   In Case C-53/03: reference for a preliminary ruling under Article 234 EC from the Epitropi Antagonismou (Greece), made by decision of 22 January 2003, received at the Court on 5 February 2003, in the proceedings between Synetairismos Farmakopoion Aitolias & Akarnanias (Syfait) and Others, Panellinios syllogos farmakapothikarion, Interfarm, A. Agelakos & Sia OE and Others, K.P. Marinopoulos Anonymos Etairia emporias kai dianomis farmakeftikon proïonton and Others and GlaxoSmithKline plc, GlaxoSmithKline AEVE, formerly Glaxowellcome AEVE — the Court (Grand Chamber), composed of V. Skouris, President of the Chamber, P. Jann, C.W.A. Timmermans, A. Rosas and R. Silva de Lapuerta, Presidents of Chambers, C. Gulmann (Rapporteur), R. Schintgen, N. Colneric and S. von Bahr, Judges; F.G. Jacobs, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 31 May 2005, in which it ruled:
   The Court of Justice of the European Communities has no jurisdiction to answer the questions referred by the Epitropi Antagonismou by decision of 22 January 2003.

      (1)  OJ C 101 of 26.04.2003.


title: Case T-15/14: Action brought on 6 January 2014 — Simet v Commission

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/51

         Action brought on 6 January 2014 — Simet v Commission
   (Case T-15/14)
   2014/C 52/100
   Language of the case: Italian

      Parties

      Applicant: Simet SpA (Rossano Calabro, Italy) (represented by: A. Clarizia and P. Clarizia, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Commission Decision C(2013) 6251 final of 2 October 2013, relating to a proceeding under Article 108 of the Treaty on the Functioning of the European Union and Article 62 of the Agreement on the European Economic Area — State aid Measure SA.33037 (C/2012) — Italy — Compensation of SIMET SpA for public transport services provided between 1987 and 2003;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The present action has been brought against Decision C(2013) 6251 final of the European Commission of 2 October 2013, which states that the payments made to SIMET of the compensation awarded by a judgment of the Italian Consiglio di Stato and notified by the Italian authorities constitute State aid within the meaning of Article 107(1) TFEU and that that State aid was not exempt from prior notification on the basis of Article 17(2) of Regulation (EEC) No 1191/69.
   In that regard, SIMET points out that the case giving rise to that judgment of the national court concerned compensation for the damage which it had suffered as a result of the unlawful aspects of measures adopted by the Ministero delle Infrastrutture e dei Trasporti (Italian Ministry of Infrastructure and Transport) (MIT) with regard to the provision of inter-regional public transport by road between 1987 and 2003.
   In support of its claims, the applicant alleges that:

               1.

               the national legislation, on the basis of which the MIT managed SIMET’s business activity during the period examined by the Consiglio di Stato in its judgment, is incompatible with Regulation (EEC) No 1191/69, which, following the amendments made by Regulation (EEC) No 1893/91, prohibited Member States from subjecting businesses which, like SIMET, provide inter-regional bus transport services to individuals to any public service obligations;

               2.

               contrary to the Commission’s assertions, SIMET was subjected to public service obligations, as the administrative concessionary measures adopted by the MIT for the provision of inter-regional bus passenger transport services, in accordance with the requirements of national legislation, clearly deprived SIMET of any autonomy in carrying on its own business activity as that activity was directly shaped and dictated by the authorities;

               3.

               the principles relating to compensation for damage suffered by individuals as a result of breaches of European Union law — on the basis of which, if the authorities of a Member State adopt an administrative measure within their sphere of competence which is contrary to European Union law, those authorities are obliged to pay compensation for any damage suffered by addresses of that measure owing to its unlawfulness — have been infringed;

               4.

               in any event, no State aid was granted to SIMET, as the method — which refers to the criteria set out in Regulation (EEC) No 1191/69 — of determining the amounts to be awarded to it by way of compensation for the road transport service which it provided from 1987 to 2003 and which was made subject to public service obligations is such as to rule out any risk that SIMET might receive surplus compensation, since the compensation being received corresponds only to the additional costs incurred by that company in fulfilling the public service obligations which were imposed on it unlawfully.


title: Case T-20/06: Action brought on  11 January 2006  — Dimitrios Grammatikopoulos v OHIM

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/41

         Action brought on 11 January 2006 — Dimitrios Grammatikopoulos v OHIM
   (Case T-20/06)
   (2006/C 131/77)
   Language in which the application was lodged: Greek
   Parties

      Applicant: Dimitrios Grammatikopoulos (represented by: Konstantinos Taoulas, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: National Academy of Recording Arts and Sciences (Santa Monica, USA)
   Form of order sought

               —

               Annul and set aside the decision of 18 August 2005 of the Fourth Board of Appeal of OHIM in Case R 1062/2000-4 and grant the applicant's application for registration of the word mark GRAMMY as a Community mark outright, as filed, or — in the alternative — in amended form as suggested in the present application to the Court.

         Pleas in law and main arguments
   Applicant for a Community trade mark: Dimitrios Grammatikopoulos.

      Community trade mark concerned: Word mark GRAMMY for goods in Classes 25 and 28 — Application No 19315.
   Proprietor of the mark or sign cited in the opposition proceedings: National Academy of Recording Arts and Sciences.

      Mark or sign cited in opposition: National mark GRAMMY for goods in Classes 9, 35, 41 and 42.
   Decision of the Opposition Division: Opposition rejected.

      Decision of the Board of Appeal: Appeal upheld. Application for registration rejected.

      Pleas in law: Infringement of Articles 8(5) and 43(3) of Council Regulation No 40/94. The applicant pleads that genuine commercial use of the mark cited in opposition was not proved, while he also contests the Board of Appeal's assessment that the mark cited in opposition has a reputation.


title: Judgment of the Court (Grand Chamber) of 24 May 2005 in Case C-244/03: French Republic v European Parliament and Council of the European Union (Cosmetic products — Testing on animals — Directive 2003/15/EC — Partial annulment — Article 1(2) — Non-severability — Inadmissibility)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/6

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 24 May 2005
   in Case C-244/03: French Republic v European Parliament and Council of the European Union (1)

   (Cosmetic products - Testing on animals - Directive 2003/15/EC - Partial annulment - Article 1(2) - Non-severability - Inadmissibility)
   (2005/C 182/11)
   Language of the case: French
   In Case C-244/03: French Republic (Agents: F. Alabrune, C. Lemaire and G. de Bergues, and subsequently the latter, J. L. Florent and D. Petrausch) v European Parliament (Agents: J.L. Rufas Quintana and M. Moore, and subsequently the latter and K. Bradley) and Council of the European Union (Agents: J.-P. Jacqué and M.C. Giorgi Fort) — Action for annulment under Article 230 EC, brought on 3 June 2003 — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann and C.W.A. Timmermans, Presidents of Chambers, C. Gulmann, A. La Pergola, J.-P. Puissochet, R Schintgen, K. Schiemann (Rapporteur), J. Makarczyk, P. Kūris, U. Lõhmus, E. Levits and A. Ó Caoimh, Judges; L.A. Geelhoed, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 24 May 2005, in which it:

               1.

               Dismisses the action;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 171 of 19.07.2003.


title: ORDER OF THE COURT OF FIRST INSTANCE of 13 March 1998 in Case T-247/97: Maria Lonuzzo-Murgante v. European Parliament (Officials - Application for person to be treated as dependent child - Time limit for bringing an action - Council Regulation No 1182/71 - Inadmissibility)

text:
2.5.98               EN                  Official Journal of the European Communities                                 C 137/15
Ferro) Ð application for, first, a declaration that the             1. The action is dismissed as inadmissible.
Commission failed to act by failing to rule on Camar's
application for the allocation of licences to import                2. Each party is to bear its own costs.
bananas from non-member countries or non-traditional
ACP bananas for 1997 and subsequent years on the basis
                                                                    (1) OJ C 331, 1.11.1997.
of the quantities which it had marketed in 1988, 1989 and
1990, and, second, an order requiring the Commission to
pay compensation for the damage occasioned by that
failure Ð the Court of First Instance (Fourth Chamber),
composed of: P. Lindh, President, K. Lenaerts and J. D.
Cooke, Judges; H. Jung, Registrar, has made an order on
28 January 1998, the operative part of which is as                                 ORDER OF THE PRESIDENT
follows.                                                                      OF THE COURT OF FIRST INSTANCE
                                                                                of 10 December 1997
1. It is unnecessary to adjudicate in the action for a              in Case T-260/97 R: Camar Srl v. Commission of the
    declaration of failure to act.                                                      European Communities
                                                                    (Common organisation of the markets Ð Bananas Ð
2. Case T-172/97 is removed from the Register of the                Application for interim measures Ð Request for the issue
    Court of First Instance.                                                              of import licences)
                                                                                (98/C 137/33)
3. Each party shall bear its own costs, including those
    relating to the application for interim measures.                               (Language of the case: Italian)
4. The intervener in the proceedings for interim measures           In Case T-260/97 R: Camar Srl, established in Florence
    shall bear its own costs.                                       (Italy), represented by Wilma Viscardini DonaÁ, assisted by
                                                                    Mariano Paolin and Simonetta DonaÁ, of the Padua Bar,
(1) OJ C 271, 6.9.1997.
                                                                    with an address for service in Luxembourg at the
                                                                    Chambers of Ernest Arendt, 8-10, rue Mathias Hardt,
                                                                    against Commission of the European Communities
                                                                    (Agents: Jan-Peter Hix and Antonio Tanca), supported by
                                                                    the French Republic (Agent: FreÂdeÂric Pascal), application
                                                                    to the President of the Court of First Instance pursuant to
                                                                    Articles 185 and 186 to the EC Treaty for an order (a)
     ORDER OF THE COURT OF FIRST INSTANCE                           suspending the Commission's decision of 17 July 1997
                      of 13 March 1998                              rejecting the application submitted by Camar seeking the
                                                                    adoption of specific measures within the meaning of
in Case T-247/97: Maria Lonuzzo-Murgante v. European                Article 30 of Council Regulation (EEC) No 404/93 of
                        Parliament (1)                              13 February 1993 on the common organisation of the
(Officials Ð Application for person to be treated as                market in bananas (1) and, furthermore, (b) requiring the
dependent child Ð Time limit for bringing an action Ð               Commission to calculate the number of category B
    Council Regulation No 1182/71 Ð Inadmissibility)                licences, to which Camar is entitled in respect of 1998, by
                                                                    reference to the quantities of bananas imported in the
                        (98/C 137/32)                               three-year period from 1988 to 1990, and, in the
                                                                    alternative, to calculate the said licences by reference to
               (Language of the case: French)                       the quantities of bananas imported in the three-year
                                                                    period from 1989 to 1991, or by applying the criteria
                                                                    pointed out by the European Parliament and its
In Case T-247/97: Maria Lonuzzo-Murgante, official of               Amendment No 8 to the proposal of the Commission,
the European Parliament, residing in Luxembourg,                    submitted on 8 March 1996, to amend Regulation (EEC)
represented by Jean-NoeÈl Louis, Thierry Demaseure and              No 404/93 and, in the further alternative, to grant to
Ariane Tornel, of the Brussels Bar, with an address for             Camar financial aid equal to the market value of the
service in Luxembourg at Fiduciaire Myson SARL, 30, rue             category B licences to be calculated according to one of
de Cessange, against European Parliament (Agents:                   the criteria set out above Ð the President of the Court of
Manfred Peter and Yannis Pantalis) Ð application for the            First Instance made an order on 10 December 1997, the
annulment of the decision of the Parliament of 6 February           operative part of which is as follows.
1997 rejecting the applicant's application for her daughter
to be treated as a dependent child and, in so far as                1. The application for interim measures is dismissed.
necessary, an application for annulment of the implied
decision of 6 September 1997 rejecting the applicant's
complaint against the abovementioned decision Ð the                 2. Costs are reserved.
Court of First Instance (Fourth Chamber), composed of P.
Lindh, President, K. Lenaerts and J. D. Cooke, Judges; H.           (1) OJ L 47, 25.2.1993, p. 1.
Jung, Registrar, made an order on 13 March 1998, the
operative part of which is as follows.


title: Case C-195/04: Action brought on 29 April 2004 by the Commission of the European Communities against the Republic of Finland

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/4

         Action brought on 29 April 2004 by the Commission of the European Communities against the Republic of Finland
   (Case C-195/04)
   (2004/C 179/08)
   An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 29 April 2004 by the Commission of the European Communities, represented by K. Wiedner and M. Huttunen, acting as Agents, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1.

               Declare that the Republic of Finland has failed to fulfil its obligations under Article 28 EC, since Senaatti-kiinteistöt, when procuring institutional kitchen equipment, infringed fundamental provisions of the EC Treaty, in particular the principle of non-discrimination, which includes the obligation of publicity, and

               2.

               Order the Republic of Finland to pay the costs.

         Pleas in law and main arguments
   Although the Community directives concerning public procurement do not apply to contracts whose value is less than their threshold of application, fundamental provisions of the EC Treaty must be complied with, in particular the principle of non-discrimination, which includes the obligation of publicity.
   The Court of Justice has held that, even though certain contracts concerning public procurement are outside the scope of the procurement directives, the procurement authorities which conclude them must nevertheless comply with the fundamental provisions of the Treaty. Even though the Community legislature considered that the detailed procedures laid down in the directives concerning public procurement are not regarded as applicable to public contracts below the threshold values in accordance with those provisions, that alone does not mean, however, that such procurement contracts do not fall within the scope of Community law.
   The case-law clearly shows that a procurement must be made public to a reasonable extent and that that obligation of publicity must be complied with even in the case of contracts whose estimated values are below the threshold of application of the EC procurement directives.


title: Case T-68/10: Judgment of the General Court of 14 June 2011 — Sphere Time v OHIM — Punch (Watch attached to a lanyard) (Community design — Invalidity proceedings — Registered Community design representing a watch attached to a lanyard — Prior design — Disclosure of prior design — Individual character — Misuse of powers — Articles 4, 6, 7 and 61 to 63 of Regulation (EC) No 6/2002)

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/15

         Judgment of the General Court of 14 June 2011 — Sphere Time v OHIM — Punch (Watch attached to a lanyard)
   (Case T-68/10) (1)

   (Community design - Invalidity proceedings - Registered Community design representing a watch attached to a lanyard - Prior design - Disclosure of prior design - Individual character - Misuse of powers - Articles 4, 6, 7 and 61 to 63 of Regulation (EC) No 6/2002)
   2011/C 219/19
   Language of the case: English

      Parties

      Applicant: Sphere Time (Windhof, Luxembourg) (represented by: C. Jäger, N. Gehlsen and M.-C. Simon, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Punch SAS (Nice, France)

      Re:

   ACTION brought against the decision of the Third Board of Appeal of OHIM of 2 December 2009 (case R 1130/2008-3), concerning invalidity proceedings between Punch SAS and Sphere Time.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Sphere Time to pay the costs.

      (1)  OJ C 100, 17.4.2010.


title: Case T-217/15: Judgment of the General Court of 30 November 2016 — Fiesta Hotels & Resorts v EUIPO — Residencial Palladium (PALLADIUM PALACE IBIZA RESORT & SPA) (EU trade mark — Invalidity proceedings — EU figurative mark PALLADIUM PALACE IBIZA RESORT & SPA — Earlier national trade name GRAND HOTEL PALLADIUM — Relative ground for refusal — Use in the course of trade of a sign of more than mere local significance — Article 8(4) and Article 53(1)(c) of Regulation (EC) No 207/2009)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/24

         Judgment of the General Court of 30 November 2016 — Fiesta Hotels & Resorts v EUIPO — Residencial Palladium (PALLADIUM PALACE IBIZA RESORT & SPA)
   (Case T-217/15) (1)

   ((EU trade mark - Invalidity proceedings - EU figurative mark PALLADIUM PALACE IBIZA RESORT & SPA - Earlier national trade name GRAND HOTEL PALLADIUM - Relative ground for refusal - Use in the course of trade of a sign of more than mere local significance - Article 8(4) and Article 53(1)(c) of Regulation (EC) No 207/2009))
   (2017/C 022/30)
   Language of the case: Spanish

      Parties

      Applicant: Fiesta Hotels & Resorts (Ibiza, Spain) (represented by: J.-B. Devaureix, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: J. Crespo Carrillo, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Residencial Palladium, SL (Ibiza, Spain) (represented by: D. Solana Giménez, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 23 February 2015 (Case R 2391/2013-2) relating to invalidity proceedings between Residencial Palladium and Fiesta Hotels & Resorts.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Fiesta Hotels & Resorts, SL to pay the costs.

      (1)  OJ C 205, 22.6.2015.


title: Case C-351/17: Request for a preliminary ruling from the Consiglio di Stato (Italy), lodged on 12 June 2017 — Autolinee Toscane SpA v Mobit Soc.cons. a.r.l.

text:
               2.10.2017

               EN

               Official Journal of the European Union

               C 330/5

         Request for a preliminary ruling from the Consiglio di Stato (Italy), lodged on 12 June 2017 — Autolinee Toscane SpA v Mobit Soc.cons. a.r.l.
   (Case C-351/17)
   (2017/C 330/06)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Appellant: Autolinee Toscane SpA

      Respondent: Mobit Soc.cons. a.r.l.

      Questions referred

               1.

               Does Article 5(2) of Regulation (EC) No 1370/2007 (1) (in particular, the prohibition, laid down in subparagraphs (b) and (d), on the participation of internal operators in extra moenia tendering procedures) apply equally where a contract has been awarded prior to the entry into force of that regulation?

               2.

               May a legal person governed by public law which has been directly awarded a contract by a State authority for the provision of local transport services and which has a direct relationship with the State authority in terms of organisation and control and whose capital is owned by the State (either wholly or in part, together with other public entities) be regarded, in the abstract, as an ‘internal operator’ within the meaning of the regulation and, as the case may be, by analogy with the case-law on the subject of ‘in house provision’?

               3.

               In the case of the direct award of a contract for the provision of services falling within the scope of Regulation (EC) No 1370/2007, if, after that award, the State authority in question (while itself retaining sole power to award concessions) establishes a public administrative authority that has power to organise the services in question but does not have ‘similar control’ over the contractor, does that fact take the award in question outside the scope of the rules in Article 5(2) of the regulation?

               4.

               If the date of expiry of a directly awarded contract falls after the end of the 30-year period ending on 3 December 2039 (that period commencing on the date of entry into force of Regulation (EC) No 1370/2007) does that render the award inconsistent with the principles laid down in the combined provisions of Articles 5 and 8(3) of the regulation, or may such an irregularity be regarded as automatically remedied, for all legal purposes, by an implied shortening of the length of the contract by operation of law (Article 8(3)), so as to fall within the 30-year period?

      (1)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).


title: Case T-423/08: Judgment of the General Court of 24 March 2010 — Inter-Nett 2000 v OHIM — Unión de Agricoltores (HUNAGRO) (Community trade mark — Opposition proceedings — Application for Community figurative mark HUNAGRO — Earlier Community figurative mark UNIAGRO — Partial refusal to register — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) and Article 12 (a) and (b) of Regulation (EC) No 40/94 (now Article 8(1)(b) and Article 12 (a) and (b) of Regulation (EC) No 207/2009))

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/32

         Judgment of the General Court of 24 March 2010 — Inter-Nett 2000 v OHIM — Unión de Agricoltores (HUNAGRO)
   (Case T-423/08) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark HUNAGRO - Earlier Community figurative mark UNIAGRO - Partial refusal to register - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) and Article 12 (a) and (b) of Regulation (EC) No 40/94 (now Article 8(1)(b) and Article 12 (a) and (b) of Regulation (EC) No 207/2009))
   2010/C 134/54
   Language of the case: Hungarian

      Parties

      Applicant: Inter-Nett 2000 Kereskedelmi és Szolgáltató kft (Inter-Nett 2000 kft) (Mór, Hungary) (represented by: E. Petruska, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially P. Sipos, subsequently P. Sipos and O. Montalto, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: Unión de Agricoltores, SA (El Ejido, Spain)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 22 July 2008 (Case R 71/2008-2) relating to opposition proceedings between Unión de Agricoltores, SA and Inter-Nett 2000 Kereskedelmi és Szolgáltató kft.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders Inter-Nett 2000 Kereskedelmi és Szolgáltató kft (Inter-Nett 2000 kft) to pay the costs.

      (1)  OJ C 313 of 6.12.2008.


title: Case T-31/04: Action brought on 28 January 2004 by Eurodrive Services and Distribution N.V. against the Office for Harmonisation in the Internal Market (OHIM)

text:
               24.7.2004

               EN

               Official Journal of the European Union

               C 190/16

         Action brought on 28 January 2004 by Eurodrive Services and Distribution N.V. against the Office for Harmonisation in the Internal Market (OHIM)
   (Case T-31/04)
   (2004/C 190/26)
   Language of the case: Spanish
   An action against the Office for Harmonisation in the Internal Market (OHIM) was brought before the Court of First Instance of the European Communities on 28 January 2004 by Eurodrive Services and Distribution N.V., established in Amsterdam (Netherlands), represented by E. Armijo Chávarri and A. Castán Pérez-Gómez, letrados en ejercicio.
   The applicant claims that the Court should:

               —

               Annul the OHMI decision (First Board of Appeal) of 12 November 2003 in joined cases R 419/2001-1 and R 530/2001-1;

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments:

               Applicant for the Community trade mark:

               Jesús Gómez Frías

               Community trade mark applied for:

               Figurative mark 'EUROMASTER' – Application No 728.295 for services in Classes 39 (transport and storage of vehicles and accessories therefor) and 41 (organisation of sports competitions)

               Proprietor of the opposing trade mark or sign:

               The applicant

               Opposing trade mark or sign:

               Word marks 'EUROMASTER': Spanish (Nos 1.613.599 and 1.613.600), French (No 1.624.667), Austrian (172.243), Benelux (No 495.020), Danish (No VR 08 0221991), Finnish (No 119.689), English (Nos 1.454.805 and 1.455.074), Greek (No 109.184), Irish (No B 146.109), Italian (No 608.701), Portuguese (Nos 270.847 and 270.848) and Swedish (No 245.822) for goods and services in Classes 12, 16 and 37

               Decision of Opposition Division:

               Upheld for opposition in respect of services in Class 39 and dismissal thereof in respect of services in Class 41

               Decision of Board of Appeal:

               Dismissal of the appeal

               Pleas in law:

               Incorrect implementation of Article 8(1)(b) of Regulation (EC) No 40/94 and infringement of Article 73 thereof


title: Case C-89/03: Action brought on 27 February 2003 by the Commission of the European Communities against the Grand-Duchy of Luxembourg

text:
C 101/26               EN                        Official Journal of the European Union                                           26.4.2003
            Article 1(3) thereof private-law undertakings fulfil-              for civil uses ( 1), or in any event by failing to inform the
            ling the criteria referred to in the three indents of              Commission of those provisions, the Grand-Duchy of
            the second subparagraph of Article 1(b) of each of                 Luxembourg has failed to fulfil its obligations under that
            the abovementioned directives;                                     directive;
      —     by providing an absolute exclusion from the scope            —     order the Grand-Duchy of Luxembourg to pay the costs.
            of the Public Contracts Law by Article 3(1)(c)
            thereof for cooperation agreements between public
            authorities and other public undertakings including,
            therefore, agreements which are public contracts for         Pleas in law and main arguments
            the purposes of the directives; and
                                                                         The period within which the directive had to be transposed
      —     by permitting, in Article 141(a) and Article 182(a)
            and (g) of the Public Contracts Law, the negotiated          expired on 30 June 1994.
            procedure to be used in two cases which are not
            provided for in the directives;                              (1 ) OJ L 121 of 15.5.1993, p. 20.
      the Kingdom of Spain has failed to fulfil its obligations
      under Community law;
2.    order the Kingdom of Spain to pay the costs.
                                                                         Action brought on 28 February 2003 by Commission of
Pleas in law and main arguments                                           the European Communities against Portuguese Republic
                                                                                (Case C-93/03)
These are apparent from the form of order sought.
                                                                                (2003/C 101/44)
( 1) OJ L 199 of 9.8.1993, p. 1.
( 2) OJ L 199 of 9.8.1993, p. 54.
                                                                         An action against the Portuguese Republic was brought
                                                                         before the Court of Justice of the European Communities on
                                                                         28 February 2003 by the Commission of the European
                                                                         Communities, represented by Karen Banks and Miguel França,
                                                                         acting as Agents, with an address for service in Luxembourg.
Action brought on 27 February 2003 by the Commission
of the European Communities against the Grand-Duchy                      The applicant claims that the Court should:
                         of Luxembourg
                                                                         —     declare that, by failing to adopt and bring into force the
                                                                               laws, regulations and administrative provisions necessary
                          (Case C-89/03)
                                                                               to comply with Directive 98/71/EC (1) of the European
                                                                               Parliament and of the Council of 13 October 1998 on
                         (2003/C 101/43)                                       the legal protection of designs or, in any event, by failing
                                                                               to communicate those provisions to the Commission, the
                                                                               Portuguese Republic has failed to fulfil its obligations
                                                                               under Article 19 of that directive;
An action against the Grand-Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-             —     order the Portuguese Republic to pay the costs.
ties on 27 February 2003 by the Commission of the European
Communities, represented by L. Ström and B. Stromsky, acting
as Agents, with an address for service in Luxembourg.
                                                                         Pleas in law and main arguments
The Commission of the European Communities claims that
the Court should:                                                        The period prescribed for implementation of the directive
                                                                         expired on 28 October 2001.
—     declare that, by failing to bring into force the laws,
      regulations and administrative provisions necessary to
      comply with Council Directive 93/15/EEC of 5 April                 (1 ) OJ L 289 of 28 october 1998, p. 28.
      1993 on the harmonisation of the provisions relating to
      the placing on the market and supervision of explosives


title: Case C-97/13: Request for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 27 February 2013 — Silvia Georgiana Câmpean v Administrația Finanțelor Publice a Municipiului Mediaș, Administrația Fondului pentru Mediu

text:
               4.5.2013

               EN

               Official Journal of the European Union

               C 129/9

         Request for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 27 February 2013 — Silvia Georgiana Câmpean v Administrația Finanțelor Publice a Municipiului Mediaș, Administrația Fondului pentru Mediu
   (Case C-97/13)
   2013/C 129/16
   Language of the case: Romanian

      Referring court

   Tribunalul Sibiu

      Parties to the main proceedings

      Applicant: Silvia Georgiana Câmpean

      Defendants: Administrația Finanțelor Publice a Municipiului Mediaș, Administrația Fondului pentru Mediu

      Questions referred

               1.

               Is the body of rules introduced by Law No 9/2012 in breach of Article 110 TFEU, and does it amount to the introduction of a measure which is manifestly discriminatory?

               2.

               Must Article 110 TFEU be interpreted as precluding the body of rules introduced by Law No 9/2012 (in its original wording) establishing a tax on pollutant emissions from motor vehicles, if that tax is structured in such a way as to discourage the putting into circulation in that Member State of second-hand vehicles purchased in other Member States, but without discouraging the purchase of second-hand vehicles of the same age and condition on the domestic market?


title: Case C-563/15: Action brought on 4 November 2015 — European Commission v Kingdom of Spain

text:
               18.1.2016

               EN

               Official Journal of the European Union

               C 16/21

         Action brought on 4 November 2015 — European Commission v Kingdom of Spain
   (Case C-563/15)
   (2016/C 016/27)
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: L. Pignataro-Nolin and E. Sanfrutos Cano, acting as Agents)

      Defendant: Kingdom of Spain

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that, in relation to the following landfill sites: Torremolinos (Malaga); Torrent de S’Estret (Andratx, Mallorca); Hoya de la Yegua de Arriba (Yaiza, Lanzarote); Barranco de Butihondo (Pájara, Fuerteventura); La Laguna-Tiscamanita (Tuineje, Fuerteventura); Lomo Blanco (Antigua, Fuerteventura); Montaña de Amagro (Galdar, Gran Canaria); Franja Costera de Botija (Galdar, Gran Canaria); Cueva Lapa (Galdar, Gran Canaria); La Colmena (Santiago del Teide, Tenerife); Montaña Los Giles (La Laguna, Tenerife); Las Rosas (Güimar, Tenerife); Barranco de Tejina (Guía de Isora, Tenerife); Llano de Ifara (Granadilla de Abona, Tenerife); Barranco del Carmen (Sta. Cruz de la Palma, La Palma); Barranco Jurado (Tijarafe, La Palma); Montaña Negra (Puntagorda, La Palma); Lomo Alto (Fuencaliente, La Palma); Arure/Llano Grande (Valle Gran Rey, La Gomera); El Palmar — Taguluche (Hermigua, La Gomera); Paraje de Juan Barba (Alajeró, La Gomera); El Altito (Valle Gran Rey, La Gomera); Punta Sardina (Agulo, La Gomera); Los Llanillos (La Frontera, El Hierro); Faro de Orchilla (La Frontera, El Hierro); Montaña del Tesoro (Valverde, El Hierro); Arbancón; Galve de Sorbe; Hiendelaencina; Tamajón; El Casar; Cardeñosa (Àvila); Miranda de Ebro (Burgos); Poza de la Sal (Burgos); Acebedo (León); Bustillo del Páramo (León); Cármenes (León); Gradefes (León); Noceda del Bierzo (León); San Millán de los Caballeros (León); Santa María del Páramo (León); Villaornate y Castro (León); Cevico de la Torre (Palencia); Palencia (Palencia); Ahigal de los Aceiteros (Salamanca); Alaraz (Salamanca); Calvarrasa de Abajo (Salamanca); Hinojosa de Duero (Salamanca); Machacón (Salamanca); Palaciosrubios (Salamanca); Peñaranda de Bracamonte (Salamanca); Salmoral (Salamanca); Tordillos (Salamanca); Basardilla (Segovia); Cabezuela (Segovia); Almaraz del Duero (Zamora), Cañizal (Zamora); Casaseca de las Chanas (Zamora); La Serratilla (Abanilla); Las Rellanas (Santomera) and El Labradorcico (Águilas), the Kingdom of Spain has failed to fulfil its obligations under Articles 13 and 15 of Directive 2008/98/EC (1) of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives

               —

               order the Kingdom of Spain to pay the costs.

      Pleas in law and main arguments

               1.

               Infringement of Article 13 of the Directive:
               Article 13 of Directive 2008/98 provides that Member States must take the necessary measures to ensure that waste management is carried out without endangering human health and without harming the environment. The information available to the Commission confirms the continuation at the date of the supplementary reasoned opinion of 61 illegal landfill sites which are still unsealed and unregenerated. The continuation of that situation over a prolonged period of time leads necessarily to a significant deterioration in the environment. The Commission, therefore, concludes that in respect of each of those landfill sites the Kingdom of Spain has failed to fulfill its obligations under Article 13 of Directive 2008/98.

               2.

               Infringement of Article 15 of the Directive:
               Article 15(1) of Directive 2008/98 requires Member States to take the necessary measures to ensure that any original waste producer or other holder carries out the treatment of waste himself or has the treatment handled by a dealer or an establishment or an undertaking which carries out waste treatment operations or arranged by a private or public waste collector, in accordance with Articles 4 and 13 of that directive. The continuation of 61 illegal landfill sites that remain unsealed and unregenerated allows the Commission to find that the Spanish authorities have not taken all the necessary measures required by that provision, in so far as over a prolonged period those authorities did not prevent illegal dumping of waste in those landfill sites and, therefore, did not ensure that that waste was treated in accordance with those provisions.

      (1)  OJ 2008 L 312, p. 3.


title: Case C-344/10 P: Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-109/08 Freixenet v OHIM

text:
               9.10.2010

               EN

               Official Journal of the European Union

               C 274/8

         Appeal brought on 8 July 2010 by Freixenet, SA against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Case T-109/08 Freixenet v OHIM
   (Case C-344/10 P)
   ()
   2010/C 274/12
   Language of the case: French

      Parties

      Appellant: Freixenet, SA (represented by: F. de Visscher, E.Cornu and D. Moreau, lawyers)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

               —

               principally: set aside the judgment of the General Court of 27 April 2010 and annul the decision of the First Board of Appeal of OHIM of 30 October 2007, and decide that the application for Community trade mark No 32 532 satisfies the conditions for publication under Article 40 of Regulation No 40/94 (now Article 39 of Regulation No 207/2009);

               —

               in the alternative, set aside the judgment of the General Court of 27 April 2010;

               —

               in any event, order OHIM to pay the costs.

      Pleas in law and main arguments

   The appellant relies on the following three pleas in support of its appeal.
   By its first plea, the appellant essentially alleges an infringement of the rights of the defence and the right to a fair hearing, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 73 (second sentence) and 38(3) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) (now Articles 75 (second sentence) and 37(3) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark). (2)

   The first part of this plea alleges the breach of the audi alteram partem rule. According to the appellant, contrary to what the General Court found in the judgment under appeal, the First Board of Appeal of OHIM, in the decision that was brought before the General Court, undertook a new appraisal of the distinctive character of the appellant’s trade mark without allowing the appellant to make observations on that new appraisal. In this respect the reasons given by the General Court in support of the decision of the First Board of Appeal are incorrect and insufficient in the light of the principle of procedural fairness and respect for the rights of the defence. The judgment under appeal furthermore infringes the principle of the rights of the defence and procedural fairness, in deciding that the Office could communicate to the appellant a series of facts, indicating that it would base its refusal decision on those facts and then, after receiving the appellant’s written observations on those facts, decided, at least in part, to disregard them and to found its decision on an evaluation that was factually and conceptually different, without giving the appellant the opportunity to submit any observations.
   In the second part, the appellant principally alleges a breach by the General Court of the requirement to state reasons, in that the judgment under appeal could not consider that a sufficient statement of reasons was given for the decision of the First Board of Appeal on the application of Article 7(1)(b), a decision which does not specify any of the documents upon which it seeks to rely, and could not consider that it was unnecessary to refer to items of evidence because the First Board of Appeal allegedly relied upon “deductions made from practical experience”. Furthermore, the uncertainty of the facts and the documents upon which the Office and the General Court relied affect both the rights of the defence and the requirement under Article 73 of Regulation No 40/94 to state reasons.
   By its second plea, the appellant argues a breach by the General Court of Article 7(1)(b) of Regulation No 40/94. Although the appellant established, supported by documents, that the trade mark applied for consists of a combination of very characteristic elements which distinguish it significantly from the presentation of other products on the market, the General Court, in finding that the trade mark applied for did not have any distinctive character, only referred to the vague and general denials of the Office. The General Court was stricter in its appraisal of the distinctive character of the trade mark in question than in the case of other more traditional trade marks. The judgment under appeal thus infringed the obligation to carry out a specific assessment of the distinctive character of a trade mark. Moreover, in finding that the great majority of consumers do not perceive the original appearance of the trade mark as a useful factor in determining the origin of the sparkling wine in question, but prefer to refer to the label, the General Court ruled out the protection of the shape of a product’s packaging, even though that possibility is expressly envisaged by Article 4 of the Regulation.
   By its third plea, the appellant alleges a breach by the General Court of Article 7(3) of Regulation No 40/94 in that the judgment under appeal imposes a requirement that the trade mark applied for has acquired a distinctive character through use in each of the Member States of the European Union. By refusing to acknowledge recognition of its distinctive character through its use by a significant proportion of the relevant class of persons, whilst at the same time acknowledging that the appellant’s trade mark had at least acquired such character in Spain, the General Court formulated a rule that was excessive and incorrect in the light of the Regulation.

      (1)  OJ 1994, L 11, p. 1.

      (2)  OJ 2009, L 78, p. 1.