title: Case T-53/17: Action brought on 27 January 2017 — Austrian Power Grid v ACER

text:
               27.3.2017

               EN

               Official Journal of the European Union

               C 95/21

         Action brought on 27 January 2017 — Austrian Power Grid v ACER
   (Case T-53/17)
   (2017/C 095/30)
   Language of the case: English

      Parties

      Applicant: Austrian Power Grid AG (Vienna, Austria) (represented by: H. Kristoferitsch and S. Huber, lawyers)

      Defendant: Agency for the Cooperation of Energy Regulators

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the following parts of the Decision of the Agency for the Cooperation of Energy Regulators No 06/2016 of 17 November 2016 on the Electricity Transmission System Operator’s proposal for the determination of the Capacity Calculation Regions:

                           —

                           Article 1 of the Decision in conjunction with

                                       —

                                       Annex I, Article 1, paragraph 1, letter c;

                                       —

                                       the word ‘also’ and the text block ‘for the purposes of capacity allocation on the affected bidding zone borders until the requirements described in Article 5(3) of this document are fulfilled’ in Annex I, Article 2, paragraph 2, letter e;

                                       —

                                       Annex I, Article 5, paragraph 1, letter s;

                                       —

                                       Annex I, Article 5, paragraph 3;

                                       —

                                       Annex I, Map No 3;

                           —

                           Article 2 of the Decision;

                           —

                           Annex IV;

                           —

                           Annex V;

               —

               ACER shall bear the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that ACER lacks the competence to introduce new bidding zone borders and capacity allocation.

                           —

                           The applicant puts forward that ACER has no competence to introduce new bidding zone borders or capacity allocation in a procedure for the determination of the Capacity Calcul Region (CCR) as specified in Article 15 of the CACM regulation (1), respectively in a decision based on Article 8(1) of the ACER-Regulation (2). Also, so the applicant claims, the indication that the contested decision may be revised as indicated in its Article 2 (which in itself is unlawful and appealed) may not make up for this lack of competence.

               2.

               Second plea in law, alleging that the contested decision violates Regulation (EC) No 714/2009 and the CACM Regulation in several respects.

                           —

                           The applicant puts forward that ACER wrongfully applied the legal definition of congestion and that the DE-AT interconnector is not congested and thus may not be subject to capacity allocation.

                           —

                           The applicant further puts forward that splitting the common electricity market of Germany and Austria is diametrically opposed to the objectives pursued by Regulation (EC) No 714/2009 (3) and violates the principle that internal congestions may not be shifted to national borders.

                           —

                           The applicant finally puts forward that the decision is factually incorrect and applies the statutory criteria for the creation of a new bidding zone border in a wrongful manner, especially due to the fact that the DE-AT border is not structurally congested, that ACER does not consider alternative bidding zone borders, that less invasive technical measures would have been available, that the contested decision does not take into account future developments, that the decision violates the specification that bidding zones shall be of permanent nature and that ACER misjudges the nature of loop flows.

               3.

               Third plea in law, alleging that the contested decision violates European Union primary law.

                           —

                           The applicant puts forward that the contested decision violates the principle of proportionality because less intrusive but equally suitable measures were not considered and enacted.

                           —

                           The applicant further puts forward that the contested decision violates the fundamental freedoms, as the artificial separation of the joint Austrian-German electricity market results in quantitative restrictions on the trade in electricity between both Member States. In this respect, so the applicant states, the contested decision violates the free movement of goods enshrined in Articles 34 and 35 TFUE. Furthermore, according to the applicant, the limitations on transfer capacity resulting from the introduction of a bidding zone border and a capacity allocation mechanism unjustifiably impose restrictions on the applicants’ freedom to provide services (Article 56 TFUE).

                           —

                           Finally, the applicant puts forward that the contested decision violates EU competition law as separating the joint German-Austrian electricity market by introducing a bidding zone and a capacity calculation mechanism (CAM) amounts to market splitting, which is in violation of Article 101 TFUE.

               4.

               Fourth plea in law, alleging that in issuing the decision, ACER has violated several procedural requirements.

                           —

                           In this context, the applicant puts forward that in erroneously basing its decision on Article 15 of the CACM Regulation, ACER consequently followed the wrong procedure for the creation of new bidding zone borders and for the introduction of CAMs.

                           —

                           The applicant further puts forward that the application submitted by the Austrian regulator, E-Control, requesting that the All TSOs CCR Draft be amended was not dealt with in conformity with the procedure provided for under Article 9(12) of the CACM Regulation.

                           —

                           The applicant further alleges that ACER exceeds its competence by declaring that the non-binding Opinion 09/2015 issued in September 2015 has binding effect. Further, so the applicant claims, as the Opinion that was declared binding did not form part of the consultation procedure, the Claimant’s procedural rights were fundamentally violated.

                           —

                           The applicant further puts forward that ACER’s file for the preparation of the contested decision lacks technical studies, analyses and in-depth assessments. The applicant claims that either the Agency provided the applicant with significantly incomplete information and, by doing so, violated the applicant’s right to full access to the case file according to Article 41 of the Charta of Fundamental Rights, either the Agency did not at all prepare and/or consult technical expertise and analyses in order to put the contested decision on a factually sound basis (which would equally amount to a severe procedural error).

                           —

                           Finally, the applicant puts forward that the contested decision is based on facts that have not been sufficiently clarified since the Agency has in particular — but not only- failed to make observations as to where structural congestion exists in the joint German-Austrian market area and where this would to be managed most efficiently; to what extent loop flows take place and affect the German-Austrian border; what effects current and pending measures relating to network expansion and improving network security have; how much of the electricity flowing to Austria via other Member States subsequently continues to flow from there to Germany.

               5.

               Fifth plea in law, alleging a failure to state reasons.

      (1)  Commission Regulation (EU) 2015/1222 of 24 July 2015, establishing a guideline on capacity allocation and congestion management (OJ L 197, p. 24).

      (2)  Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ L 211, p. 1).

      (3)  Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ L 211, p. 15).


title: Action brought on 12 October 1998 by Cantina Sociale di Dolianova and Others against the Commission of the European Communities (Case T-166/98)

text:
C 378/24              EN                 Official Journal of the European Communities                                       5.12.98
The applicant accepts that the fact that a Member State                 by the applicants in respect of aid for distillation in
has no sea ports may make it necessary to finance the                   the 1982/1983 marketing year;
costs of transport between the place in which the cereals
the subject of the invitation to tender are situated and the
actual place of exit. That is not to say that this must             Ð order the European Commission, possibly also on the
happen automatically, but only in certain exceptional                   ground of unjust enrichment and/or by way of
cases. Consequently, the reason given in the penultimate                compensation for damage within the meaning of
recital in the preamble to Regulation (EC) No 1666/98,                  Article 178 of the Treaty, to pay the applicants a
justifying the appropriateness of financing such costs in              certain amount;
view of Austria's geographical position', appear to be too
abrupt. Luxembourg, which is the only other Community
country lacking a sea port, has never indicated any need
                                                                    Ð order the defendant to pay the cost.
for a similar exception to be provided. On the other hand,
the idea that, in those Member States which do not have
sea ports, the bids of competitors should be penalised by
higher transport costs is based on a conception still linked        Pleas in law and main arguments adduced in support:
to national markets. According to the applicant, the
defendant appears to forget that Austria now forms part
of a single territory for customs and commercial purposes.          The applicant wine-cellars in the present case contest the
                                                                    decision whereby the defendant refused to pay an amount
                                                                    due to them as Community aid for the 1982/1983
In conclusion, the applicant argues that the Community's            marketing year under the legislation in force concerning
assumption of all transport costs, irrespective of the port         preventive distillation in the wine sector. The applicants
in which the goods are to be loaded for export, authorises          state in this regard that the abovementioned aid was not
trade to be diverted towards the ports of northern Europe,          received as a result of an omission by the distillery which
to the detriment of those of the Mediterranean, thereby             had received the wine and that it was returned in full to
distorting competition even between the various ports and           the Commission itself as a result of the repayment of the
providers of services operating in each of those ports.             security lodged by AIMA, the intervention agency.
(1) OJ L 191, 31.7.1993, p. 76.
(2) OJ L 211, 29.7.1998, p. 12.
                                                                    The applicants challenge in the first place the defendant's
                                                                    argument that the aid concerned by Commission
                                                                    Regulation (EEC) No 2499/82 is payable to the distiller
                                                                    and not to the producers, since the provision of aid
                                                                    benefits, in the first place, distillers by enabling them to be
                                                                    compensated for the high buying-in price of the wine'. In
                                                                    their view, following perusal of that regulation and in the
Action brought on 12 October 1998 by Cantina Sociale di
                                                                    light of the general principles governing the system of aids
Dolianova and Others against the Commission of the
                                                                    in the wine sector, it is evident that the intended recipients
                    European Communities
                                                                    of the Community contribution are the producers
                       (Case T-166/98)                              supplying the wine. From that angle, it is clear that the
                                                                    scope of Council Regulation (EEC) No 2499/82, in
                        (98/C 378/43)
                                                                    conjunction with Article 11 of Regulation (EEC) No 337/
                                                                    79, is to pursue the general interest of the common market
                (Language of the case: Italian)                     in eliminating the production of low-quality wine within
                                                                    the Community, encouraging producers of low-quality
                                                                    wine to send it for preventive distillation by providing aid
An action against the Commission of the European                    enabling them to sell it at market prices.
Communities was brought before the Court of First
Instance of the European Communities on 12 October
1998 by Cantina Sociale di Dolianova, Cantina Sociale               In any event, the discretion enjoyed by the Member States
della Texenta, Cantina Sociale della Marmila U.V.A.,                as to the choice of modality provided for by Articles 9 and
Cantina Sociale di Santa Maria La Palma (formerly                   10 of Regulation (EEC) No 2499/82 cannot undermine its
Cantina Sociale della Riforma agraria di Alghero) and               purpose, as set out above. It is not possible to argue that
Cantina Sociale del Vermentino di Monti, represented by             the unlawful conduct of Distilleria Agricola Industriale,
Carlo Dore and Giovanni Dore, of the Cagliari Bar, with             which consisted solely in not providing AIMA with proof
an address for service in Luxembourg at the Chambers of             that payment of the price was made to the producers
Franco Colussi, 36 Rue de Wiltz.                                    (inasmuch as the full price was not paid), could to any
                                                                    extent have compromised the rights of the producers
The applicants claim that the Court should:                         themselves to receive such aid. In the view of the
                                                                    applicants, any interpretation to the contrary would entail
                                                                    a breach of the principle of equal treatment.
Ð declare unlawful Commission Decision VI B-I-3 M 4/
    97PVP of 31 July 1998, received by mail on 14 August
    1998, whereby it rejected the claim for payment sent


title: Case T-35/09: Action brought on 26 January 2009 — Procaps v OHIM — Bioframa (PROCAPS)

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/51

         Action brought on 26 January 2009 — Procaps v OHIM — Bioframa (PROCAPS)
   (Case T-35/09)
   (2009/C 69/112)
   Language in which the application was lodged: Spanish
   Parties

      Applicant: Procaps SA (Barranquilla, Colombia) (represented by: M. Vidal-Quadras Trias de Bes, 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: Biofarma SAS (Neuilly sur Seine, France)
   Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of OHIM (Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 November 2008 in Case R 867/2007-4 which was notified to the parties on 25 November 2008.

         Pleas in law and main arguments
   Applicant for a Community trade mark: The applicant

      Community trade mark concerned: Word mark ‘PROCAPS’ (Trade mark application No 3.519.394) for goods and services in Classes 5, 35, 39, 40, 44.
   Proprietor of the mark or sign cited in the opposition proceedings: BIOFARMA, société par actions simplifiée.
   Mark or sign cited in opposition: National and international word mark ‘PROCAPTAN’, for goods in Class 5.
   Decision of the Opposition Division: Opposition: Opposition rejected.

      Decision of the Board of Appeal: Appeal dismissed in part

      Pleas in law: Incorrect application of Article 9(1)(b) of Regulation No 40/94 on the Community trade mark.


               19.2.2011

               EN

               Official Journal of the European Union

               C 55/1

         2011/C 55/01
   Last publication of the Court of Justice of the European Union in the Official Journal of the European Union

         OJ C 46, 12.2.2011

      Past publications

      OJ C 38, 5.2.2011

      OJ C 30, 29.1.2011

      OJ C 13, 15.1.2011

      OJ C 346, 18.12.2010

      OJ C 328, 4.12.2010

      OJ C 317, 20.11.2010

   These texts are available on:
   EUR-Lex: http://eur-lex.europa.eu


title: Case C-429/06: Reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del Pais Vasco (Spain) lodged on 18 October 2006 — Comunidad Autónoma de La Rioja v Juntas Generales del Territorio Histórico de Vizcaya, Diputación Foral de Vizcaya, Cámara de Comercio, Industria y Navegación de Bilbao, Confederación Empresarial Vasca

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/31

         Reference for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del Pais Vasco (Spain) lodged on 18 October 2006 — Comunidad Autónoma de La Rioja v Juntas Generales del Territorio Histórico de Vizcaya, Diputación Foral de Vizcaya, Cámara de Comercio, Industria y Navegación de Bilbao, Confederación Empresarial Vasca
   (Case C-429/06)
   (2006/C 326/63)
   Language of the case: Spanish
   Referring court
   Tribunal Superior de Justicia de la Comunidad Autónoma del Pais Vasco
   Parties to the main proceedings

      Applicant: Comunidad Autónoma de La Rioja

      Defendants: Juntas Generales del Territorio Histórico de Vizcaya, Diputación Foral de Vizcaya, Cámara de Comercio, Industria y Navegación de Bilbao, Confederación Empresarial Vasca
   Question referred
   Must Article 87(1) EC be construed as meaning that, by providing for a rate of tax lower than the basic rate set in Spanish State legislation and for deductions from the amount of tax payable which do not exist in State tax legislation, provisions in the field of taxation adopted by the Juntas Generales del Territorio Histórico de Bizkaia amending Articles 29(1)(a), 37 and 39 of the Provincial Law on Company Tax, which take effect in the jurisdiction of that infra-State autonomous body, must be regarded as selective and as covered by the definition of State aid enshrined in Article 87(1) EC and, accordingly, must be notified to the Commission pursuant to Article 88(3) EC?


title: Case C-170/01 P: Appeal brought on 19 April 2001 by Compañía Internacional de Pesca y Derivados SA (INPESCA) against the judgment delivered on 7 February 2001 by the Court of First Instance of the European Communities (Second Chamber) in Case T-186/98 between Compañía Internacional de Pesca y Derivados SA (INPESCA) and the Commission of the European Communities

text:
14.7.2001              EN                     Official Journal of the European Communities                                    C 200/41
2.    Are the provisions of Article 9 of the Staff Regulations                meaning that the said Articles 43 and 48 do not affect
      of the European Communities (Article 2 of Council                       the applicability of the Netherlands rules laid down in
      Regulation (EEC, Euratom, ECSC) No 259/68 of 29 Febru-                  that law, on the ground that the provisions in question
      ary 1968) and those contained in Annex II to the Staff                  are justified for the reasons stated by the Netherlands
      Regulations concerning the Staff Committee, which also                  legislature?
      represents the interests of local staff of the Communities,
      to be interpreted as laying down exhaustive rules on
      collective employment law and the powers of co-decision
      of local staff and thus as precluding the application of the
      law on labour relations in the workplace laid down in the
      Austrian Labour Constitution Act to local staff serving in
      the Vienna representation of the Commission of the                 Reference for a preliminary ruling by the Hoge Raad der
      European Communities?                                              Nederlanden by decision of 11 April 2001 in the case of
                                                                            Bosal Holding BV and Staatssecretaris van Financiën
(1) OJ 1968, L 56, p. 1.
                                                                                (Case C-168/01)
                                                                                (2001/C 200/76)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by decision of 11 April 2001 by
                                                                         the Hoge Raad der Nederlanden (Supreme Court of the
                                                                         Netherlands), which was received at the Court Registry on
Reference for a preliminary ruling by the Kantongerecht                  19 April 2001, for a preliminary ruling in the case of Bosal
te Amsterdam by order of 5 February 2001 in the case of                  Holding BV and Staatssecretaris van Financiën on the following
Kamer van Koophandel en Fabrieken voor Amsterdam                         questions:
                       and Inspire Art Ltd                               1.   Does Article 52 of the EC Treaty, read in conjunction
                                                                              with Article 58 thereof (now, following amendment,
                          (Case C-167/01)                                     Article 43 EC, read in conjunction with Article 48
                                                                              thereof), or any other rule of EC law, preclude a Member
                                                                              State from granting a parent company subject to tax in
                         (2001/C 200/75)                                      that Member State a deduction on costs relating to a
                                                                              holding owned by it only if the relevant subsidiary
Reference has been made to the Court of Justice of the                        company makes profits which are subject to tax in
European Communities by order of 5 February 2001 by the                       the Member State in which the parent company is
Kantongerecht te Amsterdam (Amsterdam Cantonal Court),                        established?
which was received at the Court Registry on 19 April 2001,
for a preliminary ruling in the case of Kamer van Koophandel             2.   Does it make any difference to the answer to Question 1
en Fabrieken voor Amsterdam and Inspire Art Ltd on the                        if, where the subsidiary company is subject to tax based
following questions:                                                          on its profits in the Member State concerned but the
                                                                              parent company is not, the relevant Member State takes
1.    Is (the new) Article 43 in conjunction with Article 48 of               no account of the abovementioned costs in levying tax
      the Treaty establishing the European Community to be                    on the subsidiary company?
      interpreted as precluding the Netherlands, pursuant to
      the Wet op de formeel buitenlandse vennootschappen of
      17 December 1997, from attaching additional conditions,
      such as those laid down in Articles 2 to 5 of that law, to
      the establishment in the Netherlands of a branch of a
      company which has been set up in the United Kingdom
      with the sole aim of securing the advantages which that            Appeal brought on 19 April 2001 by Compañı́a Interna-
      offers compared to incorporation under Netherlands law,            cional de Pesca y Derivados SA (INPESCA) against the
      given that Netherlands law imposes stricter rules than             judgment delivered on 7 February 2001 by the Court of
      those applying in the United Kingdom with regard to the            First Instance of the European Communities (Second
      setting-up of companies and payment for shares, and                Chamber) in Case T-186/98 between Compañı́a Interna-
      given that the Netherlands law infers that aim from the            cional de Pesca y Derivados SA (INPESCA) and the
      fact that the company carries on its activities entirely or                 Commission of the European Communities
      almost entirely in the Netherlands and, furthermore, does
      not have any real connection with the State in which the                                 (Case C-170/01 P)
      law under which it was formed applies?
2.    If, on a proper construction of those articles of the Treaty,                             (2001/C 200/77)
      it is held that the provisions of the Wet op de formeel
      buitenlandse vennootschappen are incompatible with                 An appeal against the judgment delivered on 7 February 2001
      them, must Article 46 of the Treaty be interpreted as              by the Court of First Instance of the European Communities
 ---pagebreak--- C 200/42               EN                    Official Journal of the European Communities                                      14.7.2001
(Second Chamber) in Case T-186/98 between Compañı́a                    Appeal brought on 20 April 2001 by International Power
Internacional de Pesca y Derivados SA (INPESCA) and the                 plc (formerly National Power plc) against the judgment
Commission of the European Communities was brought                      delivered on 7 February 2001 by the Second Chamber of
before the Court of Justice of the European Communities on              the Court of First Instance of the European Communities
19 April 2001 by Compañı́a Internacional de Pesca y Deriva-            in case T-89/98 (1) between National Association of
dos SA (INPESCA), represented by M.I. Angulo Fuertes and                Licensed Opencast Operators (NALOO) and Commission
M.B. Angulo Fuertes, abogadas, with an address for service in           of the European Communities, supported by British Coal
Luxembourg at the Chambers of Arendt & Medernach, 8-109                    Corporation, National Power plc and PowerGen plc
Mathias Hardt.
The appellant claims that the Court of Justice should:                                           (Case C-172/01 P)
1.    set aside in its entirety the judgment delivered by the
      Court of First Instance on 7 February 2001, and in its
      place:                                                                                (2001/C 200/78)
      1)    declare that the ‘further observations’ filed by the
            applicant on 21 July 1999 are inadmissible;                 An appeal against the judgment delivered on 7 February 2001
      2)    declare that the plea of inadmissibility raised by the      by the Second Chamber of the Court of First Instance of the
            Commission pursuant to Article 114(1) of the Rules          European Communities in case T-89/98 between National
            of Procedure of the Court of First Instance is              Association of Licensed Opencast Operators (NALOO) and
            inadmissible;                                               Commission of the European Communities, supported by
                                                                        British Coal Corporation, National Power plc and PowerGen
      3)    uphold the application made by ‘INPESCA’ for                plc, was brought before the Court of Justice of the European
            annulment of the Commission’s decision of 16 Sep-           Communities on 20 April 2001 by International Power plc
            tember 1998 refusing to grant it the Community              (formerly National Power plc), having its registered office in
            funding sought pursuant to Regulations (EC)                 London, represented by S. Ramsay, solicitor, D. Anderson QC
            Nos 4028/86 (1) of 18 December 1986 and                     and M. Chamberlain, barrister.
            1263/1999 (2) of 21 June 1999 and the Financial
            Regulation of 21 December 1977;
                                                                        The Appellant claims that the Court should:
2.    uphold all the claims made by the present appellant in its
      application in the proceedings at first instance;
                                                                        (1) set aside the judgment of the Court of First Instance of
3.    order the Commission to pay the costs since it has acted                7 February 2001 in Case T-89/98;
      in breach of Community law.
                                                                        (2) give final judgment dismissing NALOO’s application for
                                                                              the annulment of the 1998 decision; and
Pleas in law and main arguments
—     Procedural irregularities which prejudice the rights of the       (3) order NALOO and/or the Commission to pay IP’s costs
      appellant. Article 58 of the Protocol on the Statute of the             of the proceedings in Case T-89/98 and in this case.
      Court of Justice. Since Articles 5, 7 and 8 of Regulation
      No 1263/1999 and Article 52 of Regulation
      1260/1999 (3) set out new facts and principles of law
      applicable to the action brought, they constituted ‘new
                                                                        Pleas in law and main arguments
      pleas in law’ which should have been taken into account
      by the Court of First Instance (Article 48(2) of the Rules
      of Procedure),
                                                                        The central error in the judgment of the CFI, so far as it
—     Breach of Community law: Article 58 of the Protocol on            concerns IP, is the conclusion that the CFI and the Commission
      the Statute of the Court of Justice. Under the ‘regulatory        had, after 1994, the power to investigate NALOO’s complaint
      framework’ applicable to the action, the Commission is            relating to infringements of Article 63 CS allegedly committed
      not only perfectly well able to reconsider its 1991               during the years 1986-1990.
      decision on the basis of the ‘new and fundamental facts’
      relied upon by the appellant but is also obliged to do
      so under Article 7(7) of the Financial Regulation of              That conclusion is erroneous for two principal reasons, which
      21 December 1977 and Article 5(1) and (2) of Regulation           constitute IP’s first two pleas in law:
      (EC) No 1263/1999.
                                                                        The 1994 complaint in substance repeated a complaint
(1) OJ L 376 of 31.12.1986, p. 7.
(2) OJ L 161 of 26.6.1999, p. 54.                                       which the Commission had already decided, in 1991, not to
(3) OJ L 161 of 26.6.1999, p. 1.                                        investigate. That 1991 decision was reviewable but unre-
                                                                        viewed. In those circumstances, the Commission had no power
                                                                        to revisit its earlier decision, and to do so would have infringed
                                                                        the principle of legal certainty.


title: Case C-550/10 P: Appeal brought on 24 November 2010 by the Kingdom of the Netherlands against the judgment delivered by the General Court( Seventh Chamber) on 9 September 2010 in Case T-348/07 Stichting Al-Aqsa v Council of the European Union

text:
               12.2.2011

               EN

               Official Journal of the European Union

               C 46/3

         Appeal brought on 24 November 2010 by the Kingdom of the Netherlands against the judgment delivered by the General Court( Seventh Chamber) on 9 September 2010 in Case T-348/07 Stichting Al-Aqsa v Council of the European Union

   (Case C-550/10 P)
   2011/C 46/05
   Language of the case: Dutch

      Parties

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

      Other parties to the proceedings: Stichting Al-Aqsa, Council of the European Union, European Commission

      Form of order sought

               —

               set aside the judgment under appeal in Case T-348/07 and refer the case back to the General Court; and

               —

               order the other party to the proceedings to pay the costs.

      Pleas in law and main arguments

   The General Court misinterpreted Article 1(4) and (6) of Common Position 2001/931 and Article 2(3) of Regulation No 2580/2001 (1) in finding that the order of the court hearing the application for interim measures could no longer, following the repeal of the Sanctieregeling terrorisme 2003 (2003 Netherlands regulation on sanctions for the suppression of terrorism), serve as a basis for placing Al-Aqsa on the EU asset-freezing list.

      (1)  Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).


title: Case C-161/09: Judgment of the Court (First Chamber) of 3 March 2011 (Reference for a preliminary ruling from the Symvoulio tis Epikratias (Greece)) — Kakavetsos-Fragkopoulos AE Epexergasias kai Emporias Stafidas, formerly K. Fragkopoulos kai SIA OE v Normarchiaki Aftodioikisi Korinthias (Free movement of goods — Measures having an effect equivalent to quantitative restrictions — Currants — National legislation aimed at protecting the quality of the product — Restrictions imposed on marketing according to different areas of production — Justification — Proportionality)

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/3

         Judgment of the Court (First Chamber) of 3 March 2011 (Reference for a preliminary ruling from the Symvoulio tis Epikratias (Greece)) — Kakavetsos-Fragkopoulos AE Epexergasias kai Emporias Stafidas, formerly K. Fragkopoulos kai SIA OE v Normarchiaki Aftodioikisi Korinthias
   (Case C-161/09) (1)

   (Free movement of goods - Measures having an effect equivalent to quantitative restrictions - Currants - National legislation aimed at protecting the quality of the product - Restrictions imposed on marketing according to different areas of production - Justification - Proportionality)
   2011/C 130/05
   Language of the case: Greek

      Referring court

   Symvoulio tis Epikratias

      Parties to the main proceedings

      Applicant: Kakavetsos-Fragkopoulos AE Epexergasias kai Emporias Stafidas, formerly K. Fragkopoulos kai SIA OE

      Defendant: Normarchiaki Aftodioikisi Korinthias

      intervening parties: Ypourgos Georgias, Enosis Agrotikon Synaiterismon Aigialeias tou Nomou Achaïas

      Re:

   Reference for a preliminary ruling — Simvoulio tis Epikratias — Free movement of goods — Quantitative restrictions on exports– Measures having equivalent effect — National legislation distinguishing between regions producing dried grapes according to their quality — Prohibition on bringing drying grapes from Region B, where the drying grapes are of inferior quality, into Region A, where they are of superior quality, to be processed and marketed — Prohibition on bringing into Region A best drying grapes from a particular area of that region to be processed and marketed — Compatibility with Articles 29 EC and 30 EC

      Operative part of the judgment

   Article 29 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which lays down an absolute prohibition on bringing in, storing, processing and packing for export dried grapes both as between the two sub-areas of area A and as between the second sub-area of area A and area B, since it does not enable the legitimate objectives pursued to be met consistently and goes beyond what is necessary to ensure the attainment of those objectives.

      (1)  OJ C 153, 4.7.2009.


title: Case C-296/10: Judgment of the Court (Second Chamber) of 9 November 2010 (reference for a preliminary ruling from the Amtsgericht Stuttgart — Germany) — Bianca Purrucker v Guillermo Vallés Pérez (Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation (EC) No 2201/2003 — Lis pendens — Substantive proceedings relating to rights of custody in respect of a child and application for provisional measures relating to rights of custody in respect of the same child)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/15

         Judgment of the Court (Second Chamber) of 9 November 2010 (reference for a preliminary ruling from the Amtsgericht Stuttgart — Germany) — Bianca Purrucker v Guillermo Vallés Pérez
   (Case C-296/10) (1)

   (Judicial cooperation in civil matters - Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility - Regulation (EC) No 2201/2003 - Lis pendens - Substantive proceedings relating to rights of custody in respect of a child and application for provisional measures relating to rights of custody in respect of the same child)
   2011/C 13/25
   Language of the case: German

      Referring court

   Amtsgericht Stuttgart

      Parties to the main proceedings

      Applicant: Bianca Purrucker

      Defendant: Guillermo Vallés Pérez

      Re:

   Reference for a preliminary ruling — Amtsgericht Stuttgart — Interpretation of Article 19(2) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 388, p. 1) — Jurisdiction of a court of a Member State to rule on the substance of an action relating to parental custody of a child who is habitually resident in that State, in a case where a court in another Member State has previously been seised, in a dispute between the same parties concerning parental custody of the same child, of an application for interim measures — Meaning of ‘court first seised’

      Operative part of the judgment

   The provisions of Article 19(2) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, are not applicable where a court of a Member State first seised for the purpose of obtaining measures in matters of parental responsibility is seised only for the purpose of its granting provisional measures within the meaning of Article 20 of that regulation and where a court of another Member State which has jurisdiction as to the substance of the matter within the meaning of the same regulation is seised second of an action directed at obtaining the same measures, whether on a provisional basis or as final measures.
   The fact that a court of a Member State is seised in the context of proceedings to obtain interim relief or that a judgment is handed down in the context of such proceedings and there is nothing in the action brought or the judgment handed down which indicates that the court seised for the interim measures has jurisdiction within the meaning of Regulation No 2201/2003 does not necessarily preclude the possibility that, as may be provided for by the national law of that Member State, there may be an action as to the substance of the matter which is linked to the action to obtain interim measures and in which there is evidence to demonstrate that the court seised has jurisdiction within the meaning of that regulation.
   Where, notwithstanding efforts made by the court second seised to obtain information by enquiry of the party claiming lis pendens, the court first seised and the central authority, the court second seised lacks any evidence which enables it to determine the cause of action of proceedings brought before another court and which serves, in particular, to demonstrate the jurisdiction of that court in accordance with Regulation No 2201/2003, and where, because of specific circumstances, the interest of the child requires the handing down of a judgment which may be recognised in Member States other than that of the court second seised, it is the duty of that court, after the expiry of a reasonable period in which answers to the enquiries made are awaited, to proceed with consideration of the action brought before it. The duration of that reasonable period must take into account the best interests of the child in the specific circumstances of the proceedings concerned.

      (1)  OJ C 221, 14.08.2010.


title: JUDGMENT OF THE COURT (Third Chamber) of 17 April 1997 in Case C-336/95 (reference for a preliminary ruling from the Juzgado de lo Social No 16, Barcelona): Pedro Burdalo Trevejo and Others v. Fondo de Garantía Salarial (Directive 77/187/EEC - Transfers of undertakings - Experience taken into account by a guarantee institution for calculating redundancy payments)

text:
 14 . 6 . 97           EN                   Official Journal of the European Communities                                No C 181 / 1
                                                                    I
                                                             (Information)
                                                 COURT OF JUSTICE
                                                          COURT OF JUSTICE
                JUDGMENT OF THE COURT                                  an undertaking which took place before the Directive had
                        (Third Chamber)                                begun to produce legal effects in the Member State
                                                                       concerned.
                        of 17 April 1997
in Case C-336/95 ( reference for a preliminary ruling from             (') OJ No C 351 , 30 . 12 . 1995 .
the Juzgado de lo Social N° 16, Barcelona ): Pedro Burdalo
     Treveio and Others v. Fondo de Garantía Salarial ( 1 )
 (Directive 77/187/EEC — Transfers of undertakings —
Experience taken into account by a guarantee institution               Action brought on 17 March 1997 by the Kingdom of the
             for calculating redundancy payments)                         Netherlands against the Council of the European Union
                          ( 97/C 181 /01 )                                                     ( Case C-l 10/97 )
                                                                                ( 97/C 181 /02 )
                 (Language of the case: Spanish)
                                                                       An action against the Council of the European Union was
                                                                       brought before the Court of Justice of the European
                                                                       Communities on 17 March 1997 by the Kingdom of the
  (Provisional translation; the definitive translation will be
                                                                       Netherlands, represented by Marc Fierstra , acting as
           published in the European Court Reports)
                                                                       Agent.
In Case C-336/95 : reference to the Court under Article 177
                                                                       The applicant claims that the Court should :
of the EC Treaty by the Juzgado de lo Social N° 16 , Barce            — annul Council Regulation ( EC ) No 304/97 of
lona ( Spain ) for a preliminary ruling in the proceedings                  17 February 1997 introducing safeguard measures in
pending before that court between Burdalo Trevejo and                      respect of imports of rice originating in the overseas
Others     and    Fondo   de   Garanti'a   Salarial —    on  the
                                                                           countries and territories ('),
interpretation of Article 1 ( 1 ) and the second
subparagraph of Article 3 ( 3 ) of Council Directive 77/187/          — order the Council to pay the costs of the proceedings .
EEC of 14 February 1977 on the approximation of the
laws of the Member States relating to the safeguarding of              Pleas in law and main arguments adduced in support:
employees' rights in the event of transfers of undertakings,
businesses or parts of business ( OJ No L 61 , 5 . 3 . 1977,          — Breach of Article 109 ( 1 ) of Council Decision 91 /482/
p. 26 ) — the Court (Third Chamber ), composed of J. C.                    EEC of 25 July 1991 on the association of the
Moitinho de Almeida , President of the Chamber, C.                         overseas countries and territories with the European
Gulmann and J. -P. Puissochet ( Rapporteur ), Judges; G.                   Economic Community (2 ) ( hereafter referred to as 'the
Cosmas, Advocate-General; R. Grass, Registrar, has given                   OCT Decision '): in the first place, it is wrongly
a judgment on 17 April 1997, in which it has ruled:                        assumed    that    Article     109  of the OCT Decision
                                                                           provides authorization for taking safeguard measures
                                                                           by reason of the scale or price of products imported
Council Directive 77/187/EEC of 14 February 1977 on                        from the OCT; second, it is patently incorrect to speak
the approximation of the laws of the Member States                         of rice originating in the OCT being imported at such
relating to the safeguarding of employees ' rights in the                  low prices and in such large quantities as to cause an
event of transfers of undertakings, businesses or parts of                 actual or potential distortion of the Community
businesses cannot be relied on in relation to a transfer of                market in rice .


title: Case C-16/06 P: Appeal brought on  13 January 2006  by Les Éditions Albert René SARL against the judgment of the Court of First Instance (Third Chamber) delivered on  27 October 2005  in Case T-336/03: Les Éditions Albert Réné SARL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/21

         Appeal brought on 13 January 2006 by Les Éditions Albert René SARL against the judgment of the Court of First Instance (Third Chamber) delivered on 27 October 2005 in Case T-336/03: Les Éditions Albert Réné SARL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-16/06 P)
   (2006/C 143/38)
   Language of the case: English
   Parties

      Appellant: Les Éditions Albert René SARL (represented by: J. Pagenberg, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Orange A/S
   Form of order sought
   The applicant claims that the Court should:

               —

               annul the Judgment of the Court of First Instance of 27 October 2005 in Case T-336/03;

               —

               annul the decision of the Board of Appeal of OHIM of 14 July 2003 in Case R 559/2002-4;

               —

               reject the application for registration of MOBILIX Nr. 671396 for all the goods and services for which it has bee applied;

               —

               order the OHIM to pay the costs in relation to the proceedings before the Court of First Instance and before the Court of Justice.

         Pleas in law and main arguments
   The Appellant claims that the Judgment of the Court of First Instance violates Article 63 CTMR and general principles of Community administrative and procedural law in that it concluded, contrary to the contested Board decision, that the conflicting marks, OBELIX and MOBILIX, are not similar, thereby taking a decision to the detriment of the Appellant on an issue that had not been properly raised, and thereby exceeding the competence of the Court of First Instance when reviewing decisions of OHIM Boards of Appeal in a case like the present one.
   The Appellant further claims that the Court of First Instance, even if that Court was entitled to decide the issue of similarity of the conflicting marks to the detriment of the Appellant, violated Article 8(1)(b) CTMR in that it applied erroneous legal criteria in determining that the conflicting marks, OBELIX and MOBILIX, are not similar, as well as in determining that some of the conflicting goods and services are similar, while others are not.
   The Appellant further claims that the Court of First Instance violated Article 74 CTMR in refusing to accept that the OBELIX mark was well-known and highly distinctive.
   The Appellant further claims that the Court of First Instance violated Article 63 CTMR and its own Rules of Procedure in that it declared inadmissible the Appellants claim before that Court to annul the contested Board decision on the grounds that it had not applied Article 8(5) CTMR to the case at hand.
   The Appellant further claims that the Court of First Instance violated articles 44 and 48 of its own Rules of Procedure in that it declared inadmissible the claim, presented in the alternative at the hearing, that the Court remand the case to the Board in order to allow the Appellant to establish the reputation of the mark OBELIX.
   The Appellant finally claims that the Court of First Instance violated Article 63 CTMR and its own Rules of Procedure, in particular Article 135(4) thereof, in that it declared inadmissible certain documents introduced before the Court of First Instance.


title: Case T-274/13: Action brought on 17 May 2013 — Emadi v Council

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/48

         Action brought on 17 May 2013 — Emadi v Council
   (Case T-274/13)
   2013/C 207/80
   Language of the case: German

      Parties

      Applicant: Hamid Reza Emadi (Teheran, Iran) (represented by: T. Walter, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Regulation (EU) No 206/2013 of 11 March 2013 implementing Article 12(1) of Regulation (EU) No 359/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Iran, in so far as it affects Mr Hamid Reza Emadi;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the applicant’s rights of defence

                           —

                           The Council infringed the applicant’s right to effective legal protection and in particular the obligation to state reasons because it failed to provide sufficient reasons for including the applicant in the annex to the contested implementing regulation;

                           —

                           The Council infringed the applicant’s right to a hearing by denying him the possibility which is provided for in Article 12(2) of Regulation (EU) No 359/2011 (1) to present observations regarding inclusion in the sanctions list and thereby to have the Council review its decision.

               2.

               Second plea in law, alleging the lack of any basis for the applicant’s inclusion in the sanctions list

                           —

                           The reasons given by the Council for the applicant’s inclusion in the sanctions list do not reveal upon what legal basis the Council actually relied in that respect;

                           —

                           The Council clearly misinterpreted the facts by including the applicant in the list in the annex to the implementing regulation in question;

                           —

                           In particular, the one specific reason given by the Council in the sanctions list cannot justify including the applicant in that list.

               3.

               Third plea in law, alleging infringement of the prohibition on double jeopardy (ne bis in idem)

                           —

                           The one specific reason given by the Council for the applicant’s inclusion in the sanctions list has already been the subject of a sanction by the UK media supervisory authority;

                           —

                           The Council does not claim that notwithstanding that sanction or following its imposition other infringements occurred which would justify inclusion in the sanctions list.

               4.

               Fourth plea in law, alleging infringement of the applicant’s fundamental rights to freedom of reporting by broadcasts or freedom of opinion, freedom of movement and property

                           —

                           The applicant’s inclusion in the sanctions list represents an unjustified and disproportionate infringement of his right to freedom of reporting by media and freedom of opinion and aims in particular to create obstacles for him or the broadcaster for which he works in reporting from and to Europe;

                           —

                           The applicant’s inclusion in the sanctions list is an unjustified and disproportionate infringement of further protected fundamental rights (right to property, right to exercise a profession, right to freedom of movement).

      (1)  Council Regulation (EU) No 359/2011 of 12 April 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Iran (OJ 2011 L 100, p. 1).


title: Case C-352/99 P: Appeal brought on 22 September 1999 by Società Eridania SpA, Industria Saccarifera Italiana Agoindustriale SpA (ISI), Sadam Zuccherifici, a division of Società Esercizi Commerciali Industriali SpA (SECI), Sadam Castiglionese SpA, Sadam Abruzzo SpA, Società Zuccherificio del Molise SpA and Società Fondiaria Industriale Romagnola SpA (SFIR) against the judgment delivered on 8 July 1999 by the First Chamber of the Court of First Instance of the European Communities in Case T-168/95 between Eridania Zuccherifici Nazionali SpA and Others and the Council of the European Union, supported by the Commission of the European Communities

text:
4.12.1999             EN                     Official Journal of the European Communities                                      C 352/25
— insofar as it is held that Article 4 of Regulation No 1534/95         The appellant claims that the Court should:
    is not of individual concern to the appellants, and the
    fourth paragraph of Article 173 of the EC Treaty (now,              1. Set aside the judgment under appeal in so far as it declared
    after amendment, Article 230 EC), as interpreted by the                 inadmissible the action brought by the appellants for
    case-law of the Court of Justice, is thereby breached;                  annulment of Regulation No 1534/95 (1), specifically
                                                                            Article 1(f) thereof, and for a declaration that Regulation
                                                                            No 1785/81 (2), specifically Articles 3, 5 and 6 thereof, is
                                                                            unlawful;
The appellants submit that the decision of the Court of First
Instance is flawed and erroneous and therefore incompatible
                                                                        2. Set aside the judgment under appeal in so far as it ordered
with Community rules.                                                       the appellants to pay the costs incurred by the Council;
                                                                        3. Refer the case back to the Court of First Instance for a
                                                                            ruling on the application made in Case T-168/95 for
(1) OJ 1995 L 148 of 30.6.1995, p. 11.                                      annulment of Regulation (EEC) No 1534/95, specifically
(2) OJ 1995 L 110 of 17.5.1995, p. 1.                                       Article 1(f) thereof, and for a declaration that Regulation
(3) OJ 1981 L 177 of 1.7.1981, p. 4.                                        (EEC) No 1785/81, specifically Articles 3, 5 and 6 thereof,
                                                                            is unlawful;
                                                                        4. Should the Court of Justice deem it appropriate to
                                                                            adjudicate on the merits of Case T-168/95, in accordance
                                                                            with Article 54 of the Statute of the Court of Justice, admit
                                                                            the oral and written pleadings specifically related thereto;
                                                                        5. Order the Council to pay the costs.
Appeal brought on 22 September 1999 by Società Eridan-                  Pleas and main arguments
ia SpA, Industria Saccarifera Italiana Agoindustriale SpA
(ISI), Sadam Zuccherifici, a division of Società Esercizi               As grounds for the present appeal, the appellants allege various
Commerciali Industriali SpA (SECI), Sadam Castiglionese                 infringements of Community law by the Court of First Instance.
SpA, Sadam Abruzzo SpA, Società Zuccherificio del                       In particular, they maintain that, in finding that the applicants
Molise SpA and Società Fondiaria Industriale Romagnola                  were not individually concerned by Article 1(f) of the contested
SpA (SFIR) against the judgment delivered on 8 July 1999                Regulation, the Court of First Instance infringed the fourth
by the First Chamber of the Court of First Instance of                  paragraph of Article 230 EC (formerly Article 173 of the EC
the European Communities in Case T-168/95 between                       Treaty) as interpreted in the case-law of the Court of Justice.
Eridania Zuccherifici Nazionali SpA and Others and
the Council of the European Union, supported by the
        Commission of the European Communities                          The appellants maintain that the judgment under appeal is
                                                                        flawed and erroneous, hence incompatible with Community
                                                                        law.
                       (Case C-352/99 P)
                                                                        (1) OJ L 148 of 30.6.1995, p. 11.
                        (1999/C 352/38)                                 (2) OJ L 177 of 1.7.1981, p. 4.
An appeal against the judgment delivered on 8 July 1999 by
the First Chamber of the Court of First Instance in Case
T-168/95 between Società Eridania Spa and Others and the
Council of the European Union, supported by the Commission,
was brought before the Court of Justice on 22 September
1999 by Società Eridania SpA, whose registered office is in
Genoa, Industria Saccarifera Italiana Agroindustriale SpA (ISI),        Action brought on 23 September 1999 by the Com-
whose registered office is in Padua, Sadam Zuccherifici, a                 mission of the European Communities against Ireland
division of Società Esercizi Commerciali Industriali SpA (SECI),
whose registered office is in Bologna, Sadam Castiglionese SpA                                  (Case C-354/99)
and Sadam Abruzzo SpA, whose registered offices are in
Bologna, Società Zuccherificio del Molise SpA, whose regis-
tered office is at Termoli, and Società Fondiaria Industriale                                   (1999/C 352/39)
Romagnola SpA (SFIR), whose registered office is at Cesena,
incorporating, following a merger, Ponteco Zuccheri SpA,                An action against Ireland was brought before the Court of
whose registered office is also at Cesena, all represented by           Justice of the European Communities on 23 September 1999
Bernard O’Connor, Solicitor with a right of audience before             by the Commission of the European Communities, represented
the High Court of Ireland, and Ivano Vigliotti, of the Genoa            by Mr Richard Wainwright, Principal Legal Adviser, acting as
Bar, with an address for service in Luxembourg at the                   agent, with an address for service at the office of Mr Carlos
Chambers of Arsène Kronshagen, 22 Rue Marie Adélaide,                   Gómez de la Cruz, a member of the Legal Service of the
L-2128 Luxembourg.                                                      Commission, Wagner Centre, Kirchberg, Luxembourg.


title: Case C-218/09: Judgment of the Court (Fourth Chamber) of 18 March 2010 (reference for a preliminary ruling from the Hof van beroep te Brussel (Belgium)) — SGS Belgium NV, Firme Derwa NV, Centraal Beheer Achmea NV v Belgisch Interventie- en Restitutiebureau, Firme Derwa NV, Centraal Beheer Achmea NV, SGS Belgium NV, Belgisch Interventie- en Restitutiebureau (Reference for a preliminary ruling — Regulation (EEC) No 3665/87 — Export refunds — Article 5(3) — Conditions for granting — Exception — Force majeure — Products which perished in transit)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/8

         Judgment of the Court (Fourth Chamber) of 18 March 2010 (reference for a preliminary ruling from the Hof van beroep te Brussel (Belgium)) — SGS Belgium NV, Firme Derwa NV, Centraal Beheer Achmea NV v Belgisch Interventie- en Restitutiebureau, Firme Derwa NV, Centraal Beheer Achmea NV, SGS Belgium NV, Belgisch Interventie- en Restitutiebureau
   (Case C-218/09) (1)

   (Reference for a preliminary ruling - Regulation (EEC) No 3665/87 - Export refunds - Article 5(3) - Conditions for granting - Exception - Force majeure - Products which perished in transit)
   2010/C 134/13
   Language of the case: Dutch

      Referring court

   Hof van beroep te Brussel

      Parties to the main proceedings

      Applicants: SGS Belgium NV, Firme Derwa NV, Centraal Beheer Achmea NV

      Defendants: Belgisch Interventie- en Restitutiebureau, Firme Derwa NV, Centraal Beheer Achmea NV, SGS Belgium NV, Belgisch Interventie- en Restitutiebureau

      Re:

   Reference for a preliminary ruling — Hof van beroep te Brussel — Interpretation of Article 5(3) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) — Conditions for granting export refunds — Exception — Product which has perished in transit for reasons of force majeure.

      Operative part of the judgment

   Article 5(3) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 1384/95 of 19 June 1995, must be interpreted as meaning that damage to a consignment of beef in the conditions described by the national court does not constitute force majeure within the meaning of that provision.

      (1)  OJ C 220, 12.09.2009.


title: Case C-155/14 P: Judgment of the Court (Fifth Chamber) of 16 June 2016 — Evonik Degussa GmbH, AlzChem AG, formerly AlzChem Trostberg GmbH v European Commission (Appeal — Competition — Article 81 EC — Agreements, decisions and concerted practices — Markets for calcium carbide powder, calcium carbide granulates and magnesium granulates in a substantial part of the European Economic Area — Price fixing, market sharing and exchange of information — Liability of a parent company for infringements of the competition rules committed by its subsidiaries — Decisive influence exercised by the parent company over its subsidiary — Rebuttable presumption in the case of a 100 % shareholding — Condition for the rebuttal of that presumption — Disregard of an express instruction)

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/3

         Judgment of the Court (Fifth Chamber) of 16 June 2016 — Evonik Degussa GmbH, AlzChem AG, formerly AlzChem Trostberg GmbH v European Commission
   (Case C-155/14 P) (1)

   ((Appeal - Competition - Article 81 EC - Agreements, decisions and concerted practices - Markets for calcium carbide powder, calcium carbide granulates and magnesium granulates in a substantial part of the European Economic Area - Price fixing, market sharing and exchange of information - Liability of a parent company for infringements of the competition rules committed by its subsidiaries - Decisive influence exercised by the parent company over its subsidiary - Rebuttable presumption in the case of a 100 % shareholding - Condition for the rebuttal of that presumption - Disregard of an express instruction))
   (2016/C 305/03)
   Language of the case: German

      Parties

      Appellants: Evonik Degussa GmbH, AlzChem AG, formerly AlzChem Trostberg GmbH (represented by: C. Steinle and I. Bodenstein, Rechtsanwälte)

      Other party to the proceedings: European Commission (represented by: G. Meessen and R. Sauer, acting as Agents, and A. Böhlke, Rechtsanwalt)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Evonik Degussa GmbH and AlzChem AG to bear their own costs and pay those of the European Commission.

      (1)  OJ C 184, 16.6.2014.


title: Appeal brought on 10 February 1995 by the Commission of the European Communities against the judgment delivered on 6 December 1994 by the First Chamber of the Court of First Instance of the European Communities in Case T-450/93 between Lisrestal - Organização e Gestão de Restaurantes Colectivos Lda, GTI - Gabinete Técnico de Informática Lda, Lisnico - Serviço Marítimo Internacional Lda, Rebocalis - Rebocagem e Assistência Marítima Lda and Gaslimpo - Sociedade de Desgasificação de Navios SA and the Commission of the European Communities (Case C-32/95 P)

text:
8 . 4 . 95              EN                 Official Journal of the European Communities                                    No C 87/5
Eerste Aanleg te Antwerpen ( Court of First Instance,                      Court of First Instance on 27 June 1994 inadmissible,
Antwerp) of 31 January 1995 , which was received at the                    and    order  that     the  substance   of  the   case  be
Court Registry on 8 February 1995 , for a preliminary ruling              considered;
in the case of ( 1 ) E. Pastoors and (2 ) Trans-Cap GmbH v.
Belgian State on the following question:                              2. grant the form of order sought at first instance, as set out
                                                                           in the application lodged at the Registry of the Court of
Should the prohibition on discrimination contained in                      First Instance on 27 June 1994 and supplemented by a
Article 6 of the EC Treaty or the general principle of equality            statement lodged on 8 September 1994, and hereby
enshrined in Community law be interpreted as precluding                    resubmitted in its entirety, and order the Commission to
the national legislation of a Member State, adopted in                     pay the whole of the costs.
implementation of Council Regulations ( EEC ) No 3820/85
and ( EEC ) No 3821/85 , from providing for a system of               Pleas in law and main arguments adduced in support:
sanctions whereby natural or legal persons charged with
infringements of that legislation are given the choice                — A defect which vitiates the procedure constitutes an
between:                                                                  objective and significant ground for judicial review with
                                                                          respect also to other candidates in the same legal
(a ) immediate payment of a given sum, in this case Bfrs                  position. The procedural defect may be transferable and
       10 000 per infringement, whereupon the prosecution is              apply also in the case of the present applicant for the
       as a rule discontinued;                                            purposes of reopening the proceedings. Whether that
                                                                          assumption is well founded may be definitively
       or                                                                 established only through an examination of the
                                                                          substance of the case, the exclusion of which on the basis
( b ) the continuation against them of the normal criminal                of a procedural objection which is open to challenge can
       proceedings; subject to the proviso, however, that, in             only lead to a denial of jurisdiction, to the serious
       the event of the second of those options being chosen, it          detriment of the applicant's position in so far as concerns
       is only defendants having no place of residence or fixed           the rights of the defence.
       abode in Belgium who are obliged, whether or not they
       are nationals of another Member State, to lodge a sum          — The pleas in law and main arguments adduced in
       — in this case Bfrs 15 000 — by way of deposit in                  support are identical to those in Case T-242/94 (*).
       respect of each offence with which they are charged, to
       cover any fines or legal costs which they may be ordered       (!) OJ No C 275 , 1 . 10 . 1994, p. 26 .
       to pay, and subject to the impounding of the vehicle
       driven by the accused until such time as the deposit is
       lodged ?
                                                                      Appeal brought on 10 February 1995 by the Commission of
                                                                      the European Communities against the judgment delivered
                                                                      on 6 December 1994 by the First Chamber of the Court of
                                                                      First Instance of the European Communities in Case
Action brought on 9 February 1995 by Sergio Del Plato                 T-450/93 between Lisrestal — Organizagao e Gestao de
against the order of inadmissibility made on 7 December               Restaurantes Colectivos Lda, GTI — Gabinete Tecnico de
1994 by the First Chamber of the Court of First Instance of           Informatica Lda, Lisnico — Servigo Maritimo Internacional
the European Communities in Case T-242/94 between                     Lda, Rebocalis — Rebocagem e Assistencia Maritima Lda
Sergio Del Plato and the Commission of the European                   and Gaslimpo — Sociedade de Desgasificagao de Navios SA
                           Communities
                                                                          and the Commission of the European Communities
                         (Case C-31/95 P)                                                    (Case C-32/95 P)
                           ( 95/C 87/09 )                                                        ( 95/C 87/10 )
An appeal against the order made on 7 December 1994 by                An appeal against the judgment delivered on 6 December
the First Chamber of the Court of First Instance of the               1994 by the First Chamber of the Court of First Instance of
European Communities in Case T-242/94 between Sergio                  the European Communities in Case T-450/93 between
Del Plato and the Commission of the European                          Lisrestal — Organiza^ao e Gestao de Restaurantes
Communities was brought before the Court of Justice of the            Colectivos Lda, GTI — Gabinete Tecnico de Informatica
European Communities on 9 February 1995 by Sergio Del                 Lda, Lisnico — Servi^o Maritimo Internacional Lda,
Plato, represented by Luigi Bonomi, with an address for               Rebocalis — Rebocagem e Assistencia Maritima Lda and
service in Varese, at the latter's Chambers at 6 Via                  Gaslimpo — Sociedade de Desgasifica§ao de Navios SA and
Orrigoni.                                                             the Commission of the European Communities was brought
                                                                      before the Court ofJustice of the European Communities on
The appellant claims that the Court should:                           10 February 1995 by the Commission of the European
                                                                      Communities, represented by Ana Maria Alves Vieira and
1 . annul the order of the Court of First Instance of                 Nicholas Khan, of its Legal Service, acting as Agents, with
      7 December 1994 in Case T-242/94, notified to the               an address for service in Luxembourg at the office of
      appellant on 12 December 1994, declaring the action             Georgios Kremlis, of the Legal Service, Wagner Centre,
      brought by application lodged at the Registry of the            Kirchberg.
 ---pagebreak---  No C 87/6             EN                 Official Journal of the European Communities                                      8 . 4 . 95
 The appellants claim that the Court should :                        scope of Council Regulation ( EEC) No 3821/85 of
                                                                     20 December 1985 on recording equipment in road
 1 . set aside paragraphs 2 and 3 of the operative part of the       transport (2), vehicles belonging to private companies
      judgment of the Court of First Instance ( x );                 engaged in the collection and treatment of waste which
                                                                     transport waste skips or industrial waste, including cases
 2 . refer the case back to the Court of First Instance for          where such transport is effected over long distances ?
      examination of the fourth plea in law relied upon by the
      appellants in Case T-450/93 ;                                  (!) OJ No L 370, 31 . 12 . 1985 , p. 1 .
                                                                     (2 ) OJ No L 370, 31 . 12 . 1985 , p. 8 .
 3 . reserve the costs.
 Pleas in law and main arguments adduced in support:
Infringement of Community law:
                                                                     Action brought on 17 February 1995 by the Council of the
— The condition laid down by the Court of First Instance in                European Union against the European Parliament
     the judgment appealed against, namely that the                                            (Case C-41/95 )
     Commission should previously have consulted the                                            ( 95/C 87/12 )
     appellants in the present case, modifies the system in
     force concerning the administration of the European
     Social Fund ( ESF) as provided for in Council Regulation        An action against the European Parliament was brought
     (EEC) No 2950/83 (2 ). The ESF deals only with the              before the Court ofJustice of the European Communities on
     Member State. The appellants' contacts are directly with        17 February 1995 by the Council of the European Union,
     the Member State concerned. Consequently, the                   represented by Jean-Paul Jacque, Felix Van Craeyenest and
     Commission, in accordance with the regulation, is               Yves Cretien, acting as Agents, with an address for service in
     required to consult only the Member State prior to the          Luxembourg at the office of Bruno Eynard, European
   . adoption of a definitive decision to reduce assistance .        Investment Bank, 100 Boulevard Konrad Adenauer.
     The condition laid down by the Court of First Instance is
     also contrary to the principle of subsidiarity.                 The applicant claims that the Court should:
— As regards the finding that the reasons stated were                1 . annul the act of the President of the European
     insufficient, the Court of First Instance has not taken               Parliament of 15 December 1994 declaring the final
     into account the appellants' prior awareness of the                   adoption of the budget for the financial year
     background to the Commission's justified doubts and                   1995 (!);
     suspicions that they had not complied with the
     conditions for the grant of the disputed decision.              2. consequently, declare that budget, as adopted by the
                                                                           European Parliament on the same day, invalid;
(*) Judgment of 6 December 1994, in Case T-450/93 .
(2 ) OJ No L 289, 22 . 10 . 1983 .                                   3 . state that the acts implementing the budget which have
                                                                           been adopted up until the date when judgment is
                                                                           delivered are retained in their entirety;
                                                                    4. order the European Parliament to pay the costs .
                                                                    Pleas in law and main arguments adduced in support:
Reference for a preliminary ruling by the Tribunal de Police,
La Rochelle, by decision of that court of 31 January 1995 in
         the case of Ministere Public v. Pierre Goupil              — Infringement of Article 203 of the EC Treaty: the
                                                                          Parliament adopted 'amendments' relating to budget
                        (Case C-39/95 )                                   headings classified as compulsory expenditure, namely
                           (95/C 87/11 )                                  certain items of agricultural guarantee expenditure. In so
                                                                          doing, it compromised the division of powers between
                                                                          the two arms of the budgetary authority arising by virtue
Reference has been made to the Court of Justice of the                    of Article 203 (4), (5 ) and ( 6 ) of the EC Treaty.
European Communities by a decision of the Tribunal de
Police (Local Criminal Court), La Rochelle, of 31 January
                                                                    — Breach of the undertakings agreed to by the European
1995 , which was received at the Court Registry on                        Parliament in the context of the Joint Declaration of
17 February 1995 , for a preliminary ruling in the case of                30 June 1982 on various measures to improve the
Ministere Public (Public Prosecutor's Office ) v. Pierre
                                                                          budgetary procedure (2) and the Interinstitutional
Goupil on the following question:                                         Agreement of 29 October 1993 on budgetary discipline
                                                                          and improvement of the budgetary procedure ( 3), and
Does Article 4 of Council Regulation (EEC ) No 3820/85 of                 consequently of the institutions' duty to cooperate in a
20 December 1985 on the harmonization of certain social                   straightforward manner with each other: by proceeding
legislation relating to road transport ( x ), exempt from the             to classify existing headings in the budget, and by laying


C 113/22             EN                 Official Journal of the European Communities                                11.4.98
      Removal from the register of Case T-193/97 (1)                     Removal from the register of Case T-245/97 (1)
                        (98/C 113/55)                                                      (98/C 113/57)
               (Language of the case: German)                                     (Language of the case: English)
By order of 30 January 1998 the President of the First             By order of 3 March 1998 the President of the Second
Chamber of the Court of First Instance of the European             Chamber, Extended Composition, of the Court of First
Communities has ordered the removal from the register of           Instance of the European Communities has ordered the
Case T-193/97: Heinrich Mehlhop v. Council of the                  removal from the register of Case T-245/97: Kaufhof
European Union and Commission of the European                      Warenhaus AG v. Commission of the European
Communities.                                                       Communities.
(1) OJ C 252, 16.8.1997.                                           (1) OJ C 357, 22.11.1997.
      Removal from the register of Case T-239/97 (1)                     Removal from the register of Case T-265/97 (1)
                        (98/C 113/56)                                                      (98/C 113/58)
                (Language of the case: French)
                                                                                (Language of the case: Italian)
By order of 11 February 1998 the President of the First
Chamber of the Court of First Instance of the European             By order of 5 March 1998 the President of the Third
Communities has ordered the removal from the register of           Chamber of the Court of First Instance of the European
Case T-239/97: Christos Venetidis v. European Parliament.          Communities has ordered the removal from the register of
                                                                   Case T-265/97: Region of Tuscany v. Commission of the
(1) OJ C 331, 1.11.1997.                                           European Communities.
                                                                   (1) OJ C 387, 20.12.1997.


C 71/6                EN                 Official Journal of the European Communities                                   13.3.1999
    the facts found by it, that the applicant must be              (c) Is the Combined Nomenclature (Council Regulation
    deemed to have been given the possibility of effectively             2658/87 (1) (as amended)) to be interpreted as
    expressing its views on the envisaged reductions in                  requiring that those goods set out in the schedule
    assistance, in accordance with the judgment in                       attached hereto be classified as Automatic data
    Lisrestal v Commission'.                                             processing machines and units thereof; magnetic or
                                                                         optical readers, machines for transcribing data onto
                                                                         data media in coded form and machines for processing
                                                                         such data, not elsewhere specified or included . . .'
Ð Second, the applicant maintains, with regard to
                                                                         under tariff heading 8471 either (i) post 1 January
    sub-heading 14.3.1a (remuneration of the teaching
                                                                         1996, or (ii) between 28 April 1993 and 31 December
    staff) and sub-heading 14.3.13 (taxes and charges),
                                                                         1995, or (iii) for both periods of time?
    that it is clear from the documentary evidence in the
    file that the findings of fact made by the Court of First
    Instance in relation to those sub-headings are
    incorrect.                                                      (d) If the answer to any part of question (c) is in the
                                                                         negative in respect of one or more of the goods set out
                                                                         in the schedule attached hereto, is the Combined
Ð Third, the applicant maintains that the incorrectness                  Nomenclature to be interpreted as requiring that such
    of the findings of fact made by the Court of First                   goods to be classified, ante 1 January 1996, as
    Instance       concerning       sub-headings      14.3.1a            Electrical apparatus for line telephony or line
    (remuneration of the teaching staff) and sub-heading                 telegraphy, including such apparatus for carriercurrent
    14.3.13 (taxes and charges) led the Court of First                   line systems . . .' under tariff heading 8517 or, post
    Instance misapply the law to its case, in breach of the              1 January 1996, as Electrical apparatus for line
    principle of proportionality and to give contradictory               telephony or line telegraphy, including line telephone
    grounds for the judgment.                                            sets with cordless handsets and telecommunication
                                                                         apparatus for carriercurrent line systems or for digital
                                                                         line systems; video phones . . .' under tariff heading
                                                                         8517?
                                                                    (1) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
                                                                        tariff and statistical nomenclature and on the Common
                                                                        Customs Tariff (OJ L 256, 7.9.1987, p. 1).
Reference for a preliminary ruling by the Appeal
Commissioners, Dublin, by request of that court of
15 December 1998, in the case of Cabletron Systems Ltd
             against the Revenue Commissioners
                       (Case C-463/98)
                        (1999/C 71/10)
                                                                    Reference for a preliminary ruling from the Landesgericht
                                                                    für Zivilrechtssachen Wien, by order of that court of
                                                                    28 October 1998 in the case of Westdeutsche Landesbank
Reference has been made to the Court of Justice of the              Girozentrale against Friedrich Stefan, intervener: Republic
European Communities by a request of the Appeal                                                of Austria
Commissioners, Dublin, of 15 December 1998, which was
received at the Court Registry on 17 December 1998, for                                     (Case C-464/98)
a preliminary ruling in the case of Cabletron Systems Ltd                                    (1999/C 71/11)
against the Revenue Commissioners, on the following
questions:
                                                                    Reference has been made to the Court of Justice of the
(a) Is Commission Regulation (EC) No 1638/94 of 5 July              European Communities by order of the Landesgericht für
    1994 (OJ L 172, 7.7.1994, p. 5) concerning the                  Zivilrechtssachen Wien (Regional Civil Court, Vienna), of
    classification of certain goods in the Combined                 28 October 1998, received at the Court Registry on
    Nomenclature, valid insofar as it classifies under CN           18 December 1998, for a preliminary ruling in the case of
    Code 8517 82 90 the goods respectively described at             Westdeutsche Landesbank Girozentrale against Friedrich
    items 1, 2 and 3 of the annex to the said Regulation?           Stefan, intervener: Republic of Austria, on the following
                                                                    questions:
(b) Is Commission Regulation (EC) No 1165/95 of 23 May
    1995 (OJ L 117, 24.5.1995, p. 15), concerning the               (a) Does a refusal to allow a mortgage to be created to
    classification of certain goods in the Combined                      cover an existing foreign-currency debt (in this case in
    Nomenclature, valid insofar as it classifies under CN                German marks (DM)) constitute a restriction on the
    Code 8517 82 90 the goods described at item 4 of the                 movement of capital and payments compatible with
    annex to the said Regulation?                                        Article 73b of the EC Treaty?'


title: Case T-343/14: Judgment of the General Court of 29 June 2017 — Cipriani v EUIPO — Hotel Cipriani (CIPRIANI) (EU trade mark — Invalidity proceedings — EU word mark CIPRIANI — No bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009 — No breach of the right to a name of a well-known person — Article 53(2)(a) of Regulation No 207/2009)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/31

         Judgment of the General Court of 29 June 2017 — Cipriani v EUIPO — Hotel Cipriani (CIPRIANI)
   (Case T-343/14) (1)

   ((EU trade mark - Invalidity proceedings - EU word mark CIPRIANI - No bad faith - Article 52(1)(b) of Regulation (EC) No 207/2009 - No breach of the right to a name of a well-known person - Article 53(2)(a) of Regulation No 207/2009))
   (2017/C 277/45)
   Language of the case: English

      Parties

      Applicant: Arrigo Cipriani (Venice, Italy) (represented by: A. Vanzetti, G. Sironi and S. Bergia, lawyers)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Hotel Cipriani Srl (Venice) (represented: initially by C. Hoole, Solicitor, and subsequently by T. Alkin, B. Brandreth, Barristers, W. Sander, P. Cantrill, M. Pearce, A. Hall and A. Ward, Solicitors, and finally by B. Brandreth, Barrister, and A. Poulter and P. Brownlow, Solicitors)

      Re:

   Action brought against the decision of the fourth Board of Appeal of EUIPO of 14 March 2014 (Case R 224/2012-4), relating to proceedings for a declaration of invalidity between Arrigo Cipriani and Hotel Cipriani

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Arrigo Cipriani to bear his own costs and to pay the costs incurred by the European Union Intellectual Property Office (EUIPO) and those of Hotel Cipriani Srl.

      (1)  OJ C 261, 11.8.2014.


title: Case C-84/08 P: Appeal brought on 21 February 2008 by Athanasios Pitsiorlas against the judgment of the Court of First Instance (Fifth Chamber) delivered on 27 November 2007 in Joined Cases T-3/00 and T-337/04 Athanasios Pitsiorlas v Council of the European Union and European Central Bank

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/15

         Appeal brought on 21 February 2008 by Athanasios Pitsiorlas against the judgment of the Court of First Instance (Fifth Chamber) delivered on 27 November 2007 in Joined Cases T-3/00 and T-337/04 Athanasios Pitsiorlas v Council of the European Union and European Central Bank
   (Case C-84/08 P)
   (2008/C 285/25)
   Language of the case: Greek
   Parties

      Appellant: Athanasios Pitsiorlas (represented by: D. Papafilippou, dikigoros)

      Other parties to the proceedings: Council of the European Union, European Central Bank

      By order of 3 July 2008, the Court of Justice (Second Chamber) dismissed the appeal and ruled that Athanasios Pitsiorlas had to bear the costs.