title: Case C-424/11: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 11 August 2011 — Wheels Common Investment Fund Trustees Ltd, National Association of Pension Funds Ltd, Ford Pension Fund Trustees Ltd, Ford Salaried Pension Fund Trustees Ltd, Ford Pension Scheme for Senior Staff Trustee Ltd v Commissioners for Her Majesty's Revenue and Customs

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/23

         Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 11 August 2011 — Wheels Common Investment Fund Trustees Ltd, National Association of Pension Funds Ltd, Ford Pension Fund Trustees Ltd, Ford Salaried Pension Fund Trustees Ltd, Ford Pension Scheme for Senior Staff Trustee Ltd v Commissioners for Her Majesty's Revenue and Customs
   (Case C-424/11)
   2011/C 311/39
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicants: Wheels Common Investment Fund Trustees Ltd, National Association of Pension Funds Ltd, Ford Pension Fund Trustees Ltd, Ford Salaried Pension Fund Trustees Ltd, Ford Pension Scheme for Senior Staff Trustee Ltd

      Defendant: Commissioners for Her Majesty's Revenue and Customs

      Questions referred

               1.

               Are the words ‘special investment funds’ in Article 13B(d)(6) of the Sixth VAT Directive (1) and Article 135(1)(g) of Directive 2006/112 (2) capable of including (i) an occupational pension scheme established by an employer that is intended to provide pension benefits to employees and/or (ii) a common investment fund in which the assets of several such pension schemes are pooled for investment purposes in circumstances where, in relation to the pension schemes in question:

                           (a)

                           the pension benefits receivable by a member are defined in advance in the legal documents creating the scheme (by reference to a formula based on the length of the member's service with the employer and the member's salary and not by reference to the value of the scheme assets;

                           (b)

                           the employer is obliged to make contributions to the scheme;

                           (c)

                           only employees of the employer can participate in the scheme and obtain pension benefits under it (a participant in the scheme is here referred to as a ‘member’);

                           (d)

                           an employee is free to decide whether or not to be a member;

                           (e)

                           an employee who is a member is normally obliged to make contributions to the scheme based on a percentage of his salary;

                           (f)

                           the contributions of the employer and the members are pooled by the scheme trustee and are invested (generally in securities) in order to provide a fund out of which the benefits provided for in the scheme are paid to the members;

                           (g)

                           if the scheme assets are greater than what is required to fund the benefits provided for under the scheme, the trustee of the scheme and/or the employer may, in accordance with the terms of the scheme and relevant provisions of national law, do anyone or combination of the following: (i) reduce the employer's contributions to the scheme; (ii) transfer all or a part of the benefit of the surplus to the employer; (iii) improve the benefits to members under the scheme;

                           (h)

                           if the scheme assets are less than what is required to fund the benefits provided for under the scheme, the employer is normally obliged to make up the deficit and, if the employer does not, or is unable to do so, the benefits received by members are reduced;

                           (i)

                           the scheme permits members to make additional voluntary contributions (‘AVCs’) which are not held by the scheme but are transferred to a third party for investment and the provision of additional benefits based on the performance of the investment made (such arrangements are not subject to VAT);

                           (j)

                           members have the right to transfer their accrued benefits under the scheme (valued by reference to the actuarial value of those benefits at the time of transfer) to other pension schemes;

                           (k)

                           the employer's and members' contributions to the scheme are not treated for the purposes of income tax levied by the Member State as income of the members;

                           (l)

                           pension benefits received by members under the scheme are treated for the purposes of income tax levied by the Member State as income of the members; and

                           (m)

                           the employer, and not the members of the scheme, bears the cost of charges made for the management of the scheme?

               2.

               In the light of (i) the objective of the exemption in Article 13B(d)(6) of the Sixth VAT Directive and Article 135(l)(g) of Directive 2006/112, (ii) the principle of fiscal neutrality and (iii) the circumstances set out in Question 1 above:

                           (a)

                           is a Member State entitled to define, in national law, the funds that fall within the concept of ‘special investment funds’ in such a way as to exclude funds of the type referred to in Question I above while including collective investment undertakings as defined in Directive 85/611, as amended?

                           (b)

                           to what extent (if at all) are the following relevant to the question whether or not a fund of the type referred to in Question 1 above is to be identified by a Member State in its national law as ‘special investment fund’:

                                       (i)

                                       the features of the fund (set out in Question 1 above);

                                       (ii)

                                       the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’?

               3.

               If in answer to Question 2(b)(ii) above it is relevant to determine the degree to which the fund is ‘similar to and thus in competition with’ investment vehicles that have already been identified by the Member State as ‘special investment funds’, is it necessary to consider the existence or extent of ‘competition’ between the fund in question and those other investment vehicles as a separate question from the question of ‘similarity’?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment
   OJ L 145, p. 1

      (2)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
   OJ L 347, p. 1


title: Case T-109/07: Action brought on 11 April 2007 — L'Oréal v OHIM — Spa Monopole (SPA THERAPY)

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/25

         Action brought on 11 April 2007 — L'Oréal v OHIM — Spa Monopole (SPA THERAPY)
   (Case T-109/07)
   (2007/C 140/45)
   Language in which the application was lodged: French
   Parties

      Applicant: L'Oréal SA (Paris, France) (represented by: E. Baud, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: SA Spa Monopole, Compagnie fermière de Spa, en abrégé SA Spa Monople NV (Spa, Belgium)
   Form of order sought

               —

               Annulment of the decision of the Fourth Board of Appeal of OHIM given on 24 January 2007 (Case R 468/2005-4);

               —

               The defendant and, where appropriate the intervener, to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘SPA THERAPY’ for goods in Class 3 — application No 1 975 283

      Proprietor of the mark or sign cited in the opposition proceedings: SA Spa Monopole, Compagnie fermière de Spa, en abrégé SA Spa Monopole NV

      Mark or sign cited in opposition: The Benelux word mark ‘SPA’ for goods in Class 3

      Decision of the Opposition Division: Opposition upheld in respect of all the disputed goods

      Decision of the Board of Appeal: Dismissal of the applicant's appeal

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) in so far as the Board of Appeal erred in finding that the signs at issue are similar and in that, according to the applicant, there is no likelihood of confusion in the present case

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)


title: Case T-337/08: Judgment of the General Court of 17 December 2010 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of a reindeer made of chocolate) (Community trade mark — Application for a three-dimensional Community trade mark — Representation of a reindeer made of chocolate — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009))

text:
               12.2.2011

               EN

               Official Journal of the European Union

               C 46/9

         Judgment of the General Court of 17 December 2010 — Chocoladefabriken Lindt & Sprüngli v OHIM (Representation of a reindeer made of chocolate)
   (Case T-337/08) (1)

   (Community trade mark - Application for a three-dimensional Community trade mark - Representation of a reindeer made of chocolate - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009))
   2011/C 46/15
   Language of the case: German

      Parties

      Applicant: Chocoladefabriken Lindt & Sprüngli AG (Kilchberg, Switzerland) (represented by: R. Lange, E. Schalast and G. Hild, lawyers)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 12 June 2008 (Case R 780/2005-4), concerning an application for registration as a Community trade mark of a three-dimensional sign consisting of the representation of a reindeer made of chocolate.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Chocoladefabriken Lindt & Sprüngli AG to pay the costs.

      (1)  OJ C 260, 11.10.2008.


title: Case C-318/13: Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 11 June 2013 — X

text:
               10.8.2013

               EN

               Official Journal of the European Union

               C 233/4

         Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 11 June 2013 — X
   (Case C-318/13)
   2013/C 233/06
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

      Applicant: X

      Questions referred

               1.

               Is Article 4(1) of Directive 79/7/EEC (1) (Directive on the progressive implementation of the principle of equal treatment of men and women in matters of social security) to be interpreted in such a way that it precludes national legislation on the basis of which the different life expectancies of men and women are used as an actuarial calculation criterion for a statutory social benefit payable due to an accident, when, by using this criterion, the lump sum benefit paid to a man is smaller than that paid to a woman of the same age and in a similar situation in other respects?

               2.

               If the answer to the first question is affirmative, does the case involve a sufficiently serious breach of EU law, this being a condition for Member State liability, particularly when account is taken of the following:

                           —

                           in its case-law, the CJEU has not taken a specific position on the question of whether sex-based actuarial factors may be taken into account in the determination of statutory social security benefits falling within the scope of application of Directive 79/7/EEC;

                           —

                           in its judgment issued in case C-236/09 Test-Achats the CJEU has stated that Article 5(2) of Directive 2004/113/EC (2) (Directive implementing the principle of equal treatment between men and women in the access to and supply of goods and services), which allows such factors to be taken into consideration, is invalid but has stipulated a transitional period prior to the provision becoming invalid; and

                           —

                           in Directives 2004/113/EC and 2006/54/EC (3) (Directive on the implementation of the principle of equal opportunity and equal treatment of men and women in matters of employment and occupation) the EU’s legislature has allowed, on certain conditions, sex-based actuarial factors to be taken into account in the calculation of benefits referred to in these Directives, and on the basis of this the national legislature has assumed that these factors can also be considered in the area of statutory social security referred to in this case?

      (1)  OJ 1979 L 6, p. 24.

      (2)  OJ 2004 L 373, p. 37.

      (3)  OJ L 204, p. 23.


title: Case T-344/02: Order of the Court of First Instance of 6 February 2009 — Air One v Commission

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/35

         Order of the Court of First Instance of 6 February 2009 — Air One v Commission
   (Case T-344/02) (1)

   (2009/C 82/60)

      Language of the case: Italian

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

      (1)  OJ C 31, 8.2.2003.


title: Case C-264/14: Judgment of the Court (Fifth Chamber) of 22 October 2015 (request for a preliminary ruling from the Högsta förvaltningsdomstolen — Sweden) — Skatteverket v David Hedqvist (Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Articles 2(1)(c) and 135(1)(d) to (f) — Services for consideration — Transactions to exchange the ‘bitcoin’ virtual currency for traditional currencies — Exemption)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/6

         Judgment of the Court (Fifth Chamber) of 22 October 2015 (request for a preliminary ruling from the Högsta förvaltningsdomstolen — Sweden) — Skatteverket v David Hedqvist
   (Case C-264/14) (1)

   ((Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Articles 2(1)(c) and 135(1)(d) to (f) - Services for consideration - Transactions to exchange the ‘bitcoin’ virtual currency for traditional currencies - Exemption))
   (2015/C 414/08)
   Language of the case: Swedish

      Referring court

   Högsta förvaltningsdomstolen

      Parties to the main proceedings

      Applicant: Skatteverket

      Defendant: David Hedqvist

      Operative part of the judgment

               1.

               Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that transactions such as those at issue in the main proceedings, which consist of the exchange of traditional currency for units of the ‘bitcoin’ virtual currency and vice versa, in return for payment of a sum equal to the difference between, on the one hand, the price paid by the operator to purchase the currency and, on the other hand, the price at which he sells that currency to his clients, constitute the supply of services for consideration within the meaning of that article.

               2.

               Article 135(1)(e) of Directive 2006/112 must be interpreted as meaning that the supply of services such as those at issue in the main proceedings, which consist of the exchange of traditional currencies for units of the ‘bitcoin’ virtual currency and vice versa, performed in return for payment of a sum equal to the difference between, on the one hand, the price paid by the operator to purchase the currency and, on the other hand, the price at which he sells that currency to his clients, are transactions exempt from VAT, within the meaning of that provision.
               Article 135(1)(d) and (f) of Directive 2006/112 must be interpreted as meaning that such a supply of services does not fall within the scope of application of those provisions.

      (1)  OJ C 245, 28.7.2014.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber) of 18 December 1997 in Case T-12/94: Frédéric Daffix v. Commission of the European Communities (Officials - Removal from post - Appeal - Case referred back to the Court of First Instance - Truth of the facts - Burden of proof - Misuse of discretion - Manifest error of assessment - Rights of the defence - Article 7 of Annex IX to the Staff Regulations)

text:
7.2.98                EN                 Official Journal of the European Communities                                   C 41/19
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           Chambers of Christian Kramer, 8Ð10 Rue Mathias
                    of 17 December 1997                             Hardt, against the Commission of the European
                                                                    Communities (Agents: Ana Maria Alves Vieira and
in Case T-217/95: Lucia Passera v. Commission of the                Fabrizio Minneci and, for the oral procedure, Gianluigi
                  European Communities (1)                          Valsesia) Ð application for annulment of the decision of
(Officials Ð Internal competition for advancement from              the selection board in internal competition COM/B/9/93
category C to category B Ð Decision of the selection                to award the applicant a mark in the oral test lower than
board failing candidates at the oral test Ð Scope of the            the minimum required and not to include her in the list of
obligation to state reasons Ð Assessment by the selection           successful candidates Ð the Court of First Instance
                            board)                                  (Fourth Chamber), composed of K. Lenaerts, President,
                                                                    and P. Lindh and J. D. Cooke, Judges; A. Mair,
                         (98/C 41/38)                               Administrator, for the Registrar, has given a judgment on
                                                                    17 December 1997, the operative part of which is as
               (Language of the case: French)                       follows:
In Case T-217/95: Lucia Passera, an official of the                 1. The application is dismissed.
Commission of the European Communities, residing at
Overijse (Belgium), represented by Marc-Albert Lucas, of            2. The parties are to bear their own costs.
the LieÁge Bar, with an address for service in Luxembourg
at the Chambers of Evelyne Korn, 21 Rue de Nassau, v.               (1) OJ C 77, 16.3.1996.
Commission of the European Communities (Agents:
Gianluigi Valsesia and Ana Maria Alves Vieira) Ð
application, first, for annulment of the decision of the
selection board in internal competition COM/B/9/93 not
to enter the applicant's name on the list of suitable
candidates and, second, for annulment of the notice of                JUDGMENT OF THE COURT OF FIRST INSTANCE
that competition Ð the Court of First Instance (Fourth                                    (Third Chamber)
Chamber), composed of: K. Lenaerts, President, and P.
                                                                                of 18 December 1997
Lindh and J. D. Cooke, Judges; A. Mair, Administrator,
for the Registrar, has given a judgment on 17 December              in Case T-12/94: FreÂdeÂric Daffix v. Commission of the
1997, in which it:                                                                    European Communities (1)
                                                                    (Officials Ð Removal from post Ð Appeal Ð Case
1. dismisses the action;                                            referred back to the Court of First Instance Ð Truth of
                                                                    the facts Ð Burden of proof Ð Misuse of discretion Ð
2. orders the parties to bear their own costs.                      Manifest error of assessment Ð Rights of the defence Ð
                                                                           Article 7 of Annex IX to the Staff Regulations)
(1) OJ C 16, 20.1.1996.                                                                     (98/C 41/40)
                                                                                (Language of the case: French)
                                                                    In Case T-12/94: FreÂdeÂric Daffix, a former official of the
                                                                    Commission of the European Communities, residing in
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           Brussels, represented by Georges Vandersanden and Laure
                                                                    Levi, of the Brussels Bar, with an address for service in
                      (Fourth Chamber)
                                                                    Luxembourg at the offices of Fiduciaire Myson SARL, 30
                    of 17 December 1997                             Rue de Cessange v. Commission of the European
                                                                    Communities (Agents: Dimitrios Gouloussis and Benoît
in Case T-225/95 Fotini Chiou v. Commission of the
                                                                    Cambier) Ð application for annulment of the
                  European Communities (1)
                                                                    Commission's decision of 18 March 1993 removing the
(Officials Ð Internal competition for movement of                   applicant from his post and, if necessary, the implied
officials from Category C to Category B Ð Decision of               rejection of his complaint Ð the Court of First Instance
the selection board noting the failure of candidates in the         (Third Chamber), composed of B. Vesterdorf, President,
oral test Ð Consistency between the complaint and the               C. P. BrieÈt and A. Potocki, Judges; A. Mair, Administrator,
application Ð Principle of equal treatment for men and              for the Registrar, gave a judgment on 18 December 1997,
women Ð Principle of non-discrimination Ð Assessment                the operative part of which is as follows:
                    of the selection board)
                                                                    1. The application is dismissed.
                         (98/C 41/39)
                                                                    2. Each of the parties shall bear all the costs which it has
               (Language of the case: French)                           incurred in the proceedings before the Court of First
                                                                        Instance and the Court of Justice.
In Case T-225/95: Fotini Chiou, official of the
Commission of the European Communities, residing in                 (1) OJ C 59, 26.2.1994.
Brussels, represented by Lucas Vogel, of the Brussels Bar,
with an address for service in Luxembourg at the


               18.12.2004

               EN

               Official Journal of the European Union

               C 314/10

         Removal from the register of Case C-154/03 (1)

   (2004/C 314/22)
   By order of 15 September 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-154/03: Commission of the European Communities v Ireland.

      (1)   OJ C 146 of 21.6.2003.


title: Case T-123/14: Judgment of the General Court of 28 January 2015  — BSH v OHIM (AquaPerfect) (Community trade mark — Opposition proceedings — Application for Community word mark AquaPerfect — Earlier Community word mark waterPerfect — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/24

         Judgment of the General Court of 28 January 2015 — BSH v OHIM (AquaPerfect)
   (Case T-123/14) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark AquaPerfect - Earlier Community word mark waterPerfect - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 089/28)
   Language of the case: English

      Parties

      Applicant: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany) (represented by: S. Biagosch, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Arçelik A.Ş. (Istanbul, Turkey) (represented by: A. Franke, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 9 December 2013 (Case R 314/2013-4) concerning opposition proceedings between BSH Bosch und Siemens Hausgeräte GmbH and Arçelik A.Ş.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 9 December 2013 (Case R 314/2013-4) concerning opposition proceedings between BSH Bosch und Siemens Hausgeräte GmbH and Arçelik A.Ş.;

               2.

               Orders OHIM to bear its own costs and to pay those incurred by BSH Bosch und Siemens Hausgeräte;

               3.

               Orders Arçelik to bear its own costs.

      (1)  OJ C 129, 28.4.2014.


title: Joined Cases C-424/10 and C-425/10: Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10) v Land Berlin (Freedom of movement for persons — Directive 2004/38/EC — Right of permanent residence — Article 16 — Legal residence — Residence based on national law — Period of residence completed before the accession to the European Union of the State of origin of the citizen concerned)

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/9

         Judgment of the Court (Grand Chamber) of 21 December 2011 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10) v Land Berlin
   (Joined Cases C-424/10 and C-425/10) (1)

   (Freedom of movement for persons - Directive 2004/38/EC - Right of permanent residence - Article 16 - Legal residence - Residence based on national law - Period of residence completed before the accession to the European Union of the State of origin of the citizen concerned)
   2012/C 49/14
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicants: Tomasz Ziolkowski (C-424/10), Barbara Szeja, Maria-Magdalena Szeja, Marlon Szeja (C-425/10)

      Defendant: Land Berlin

      Intervener: Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

      Re:

   Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 16(1), first sentence, of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) — Union citizen having resided lawfully, in compliance with the law of the host Member State, for more than five years in that State, but never having satisfied, during his period of residence, the conditions laid down in Article 7 of Directive 2004/38/EC — Concept of ‘lawful residence’ — Period of residence which amounts to five years only if periods completed before the date of accession of the Member State of origin of the person concerned to the European Union are taken into account — Determination of the period of residence necessary in order to acquire a right of permanent residence

      Operative part of the judgment

               1.

               Article 16(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that a Union citizen who has been resident for more than five years in the territory of the host Member State on the sole basis of the national law of that Member State cannot be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not satisfy the conditions laid down in Article 7(1) of the directive.

               2.

               Periods of residence completed by a national of a non-Member State in the territory of a Member State before the accession of the non-Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.

      (1)  OJ C 301, 6.11.2010.


title: Case F-92/10: Action brought on 1 October 2010 — Dricot-Daniele and Others v Commission

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/40

         Action brought on 1 October 2010 — Dricot-Daniele and Others v Commission
   (Case F-92/10)
   ()
   2011/C 13/80
   Language of the case: French

      Parties

      Applicants: Luigia Dricot-Daniele (Overijse, Belgium) and Others (represented by: C. Mourato, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the applicants’ correcting pay slips for the period from July to December 2009 and the pay slips issued after 1 January 2010 in the context of the annual adjustment of remuneration and pensions of officials and other servants on the basis of Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

      Form of order sought

               —

               Annul the applicants’ RG 2009 pay slips, their pay slips of January 2010 and their subsequent pay slips, since those pay slips apply an adjustment rate of 1,85 %, while preserving the effect of those pay slips until the adoption of fresh pay slips;

               —

               Order the Commission to pay the costs.


title: Case C-235/06: Order of the President of the Court of 21 November 2006 — Commission of the European Communities v Republic of Austria

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/26

         Order of the President of the Court of 21 November 2006 — Commission of the European Communities v Republic of Austria
   (Case C-235/06) (1)

   (2006/C 331/57)

      Language of the case: French

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

      (1)  OJ C 165,15.7.2006.


title: Case C-539/14: Order of the Court (First Chamber) of 16 July 2015 (request for a preliminary ruling from the Audiencia Provincial de Castellón — Spain) — Juan Carlos Sánchez Morcillo, María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria SA (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Directive 93/13/EEC — Article 7 — Charter of Fundamental Rights of the European Union — Articles 7 and 47 — Consumer contracts — Mortgage loan contract — Unfair terms — Mortgage enforcement proceedings — Right of appeal)

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/12

         Order of the Court (First Chamber) of 16 July 2015 (request for a preliminary ruling from the Audiencia Provincial de Castellón — Spain) — Juan Carlos Sánchez Morcillo, María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria SA
   (Case C-539/14) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Directive 93/13/EEC - Article 7 - Charter of Fundamental Rights of the European Union - Articles 7 and 47 - Consumer contracts - Mortgage loan contract - Unfair terms - Mortgage enforcement proceedings - Right of appeal))
   (2015/C 320/17)
   Language of the case: Spanish

      Referring court

   Audiencia Provincial de Castellón

      Parties to the main proceedings

      Applicants: Juan Carlos Sánchez Morcillo, María del Carmen Abril García

      Defendant: Banco Bilbao Vizcaya Argentaria SA

      Operative part of the order

   Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in conjunction with Articles 47, 34(3) and 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a national provision of the kind at issue in the main proceedings, by which the consumer, as a mortgage debtor against whom enforcement proceedings are brought, may bring an appeal against the decision rejecting his objection to the enforcement only when the court of first instance has not upheld an objection based on the unfairness of the contractual term upon which the enforcement is based even though the sellers or suppliers may, by contrast, appeal against any decision terminating proceedings regardless of the ground of objection on which that decision is based.

      (1)  OJ C 26, 26.1.2015.


title: Case C-133/16: Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 4 March 2016 — Christian Ferenschild v JPC Motor SA

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/12

         Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 4 March 2016 — Christian Ferenschild v JPC Motor SA
   (Case C-133/16)
   (2016/C 191/14)
   Language of the case: French

      Referring court

   Cour d’appel de Mons

      Parties to the main proceedings

      Applicant: Christian Ferenschild

      Defendant: JPC Motor SA

      Question referred

   Must Article 5(1) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, in conjunction with the second subparagraph of Article 7(1) thereof, (1) be interpreted as precluding a provision of national law which is interpreted as allowing, for second-hand goods, the limitation period for action by the consumer to expire before the end of the two-year period as from delivery of goods which are not in conformity with the contract, where the seller and the consumer have agreed on a guarantee period of less than two years?

      (1)  OJ 1999 L 171, p. 12.


title: Judgment of the Court (Second Chamber) of 12 October 2004 in Case C-106/03 P: Vedial SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 8(1)(b) of Regulation (EC) No 40/94 — Likelihood of confusion — Word and figurative mark HUBERT — Opposition of the proprietor of the national word mark SAINT-HUBERT 41 — Capacity of OHIM as defendant before the Court of First Instance)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/18

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 12 October 2004
   in Case C-106/03 P: Vedial SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Appeal - Community trade mark - Article 8(1)(b) of Regulation (EC) No 40/94 - Likelihood of confusion - Word and figurative mark HUBERT - Opposition of the proprietor of the national word mark SAINT-HUBERT 41 - Capacity of OHIM as defendant before the Court of First Instance)
   (2004/C 300/37)
   Language of the case: French
   In Case C-106/03 P: appeal under Article 56 of the Statute of the Court of Justice, lodged at the Court on 27 February 2003, Vedial SA, established in Ludres (France), (avocats: T. van Innis, G. Glas and F. Herbert) and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: O. Montalto and P. Geroulakos — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen, F. Macken (Rapporteur), and N. Colneric, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has given a judgment on 12 October 2004, in which it has ruled:

               1.

               Dismisses the appeal;

               2.

               Orders Vedial SA to pay the costs.

      (1)  OJ C 146 of 21.6.2003.


title: Case T-153/08: Judgment of the General Court of 22 June 2010 — Shenzhen Taiden v OHIM — Bosch Security Systems (Communications Equipment) (Community design — Invalidity proceedings — Registered Community design representing communications equipment — Earlier international design — Ground for invalidity — No individual character — No different overall impression — Informed user — Degree of freedom of the designer — Evidence that the earlier design was made available to the public — Article 4(1), Article 6(1)(b) and (2), Article 7(1) and Article 25(1)(b) of Regulation (EC) No 6/2002)

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/34

         Judgment of the General Court of 22 June 2010 — Shenzhen Taiden v OHIM — Bosch Security Systems (Communications Equipment)
   (Case T-153/08) (1)

   (Community design - Invalidity proceedings - Registered Community design representing communications equipment - Earlier international design - Ground for invalidity - No individual character - No different overall impression - Informed user - Degree of freedom of the designer - Evidence that the earlier design was made available to the public - Article 4(1), Article 6(1)(b) and (2), Article 7(1) and Article 25(1)(b) of Regulation (EC) No 6/2002)
   2010/C 209/49
   Language of the case: English

      Parties

      Applicant: Shenzhen Taiden Industrial Co. Ltd (Shenzhen, Guangdong, China) (represented by: M. Hartmann and M. Helmer, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Folliard-Monguiral, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Bosch Security Systems BV (Eindhoven, Netherlands) (represented by: C. Gielen, M. Bom and B. van Hunnik, lawyers)

      Re:

   Action brought against the decision of the Third Board of Appeal of OHIM of 11 February 2008 (Case R 1437/2006-3) relating to invalidity proceedings between Bosch Security Systems BV and Shenzhen Taiden Industrial Co. Ltd.

      Operative part of the order

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Shenzhen Taiden Industrial Co. Ltd to pay the costs, including the costs necessarily incurred by Bosch Security Systems BV for the purposes of the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 158, 21.6.2008.


title: Case C-504/06: Judgment of the Court (First Chamber) of 25 July 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 92/57/EEC — Implementation of minimum safety and health requirements at temporary or mobile construction sites — Article 3(1) — Incorrect transposition)

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/2

         Judgment of the Court (First Chamber) of 25 July 2008 — Commission of the European Communities v Italian Republic
   (Case C-504/06) (1)

   (Failure of a Member State to fulfil obligations - Directive 92/57/EEC - Implementation of minimum safety and health requirements at temporary or mobile construction sites - Article 3(1) - Incorrect transposition)
   (2008/C 236/02)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: L. Pignataro-Nolin and I. Kaufmann-Bühler, Agents)

      Defendant: Italian Republic (represented by: I. Braguglia, Agent and W. Ferrante, avvocato dello Stato)
   Re:
   Failure of a Member State to fulfil obligations — Incorrect transposition of Article 3(1) of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 245, p. 6) — Appointment of health and safety coordinators for a construction site where a number of undertakings are operating
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing correctly to transpose in Italian law Article 3(1) of Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Italian Republic has failed to fulfil its obligations under that directive;

               2.

               Orders each party to bear its own costs.

      (1)  OJ C 42, 24.2.2007.


title: Reference for a preliminary ruling by the Gerechtshof te 's-Gravenhage in the case of C. Baars Jr against Inspecteur der Belastingdienst Particulieren/Ondernemingen Gorinchem (Case C-251/98)

text:
5.9.98                EN                Official Journal of the European Communities                                    C 278/23
The Commission of the European Communities claims                  1. Should Articles 6 and/or 52 of the EC Treaty be
that the Court should:                                                 interpreted as precluding as incompatible therewith a
                                                                       restriction resulting from the legislation of a Member
                                                                       State concerning the taxation of assets, which grants a
Ð declare that, by failing to adopt the laws, regulations              shareholder an exemption from wealth tax in respect
    and administrative measures necessary in order to                  of capital invested in shares in an undertaking Ð
    comply with Council Directive 89/594/EEC of                        provided the shares form part of a material
    30 October 1989 amending Directives 73/362/EEC,                    shareholding Ð but restricts that exemption to shares
    77/452/EEC, 78/686/EEC, 78/1026/EEC and 80/154/                    in a company established in that Member State?
    EEC relating to the mutual recognition of diplomas,
    certificates and other evidence of formal qualifications
    as doctors, nurses responsible for general care, dental        2. If question 1 is answered in the negative, should
    practitioners, veterinary surgeons and midwives,                   Articles 73b and 73d of the EC Treaty be interpreted
    together with Directives 75/363/EEC, 78/1027/EEC                   as precluding as incompatible therewith a restrictive
    and 80/155/EEC concerning the coordination of                      provision such as that described in question 1?
    provisions laid down by law, regulation or
    administrative action relating to the activities of
    doctors, veterinary surgeons and midwives (1), the
    French Republic has failed to fulfil its obligations
    under Directive 89/594/EEC,
                                                                   Action brought on 10 July 1998 by the Commission of the
Ð order the French Republic to pay the costs.                          European Communities against the French Republic
                                                                                (Case C-252/98)
Pleas in law and main arguments adduced in support:                                          (98/C 278/41)
Under the third paragraph of Article 189 and Article 5 of          An action against the French Republic was brought before
the EC Treaty, each Member State is required to take all           the Court of Justice of the European Communities on
necessary measures to transpose directives into its                10 July 1998 by the Commission of the European
domestic legal order prior to the expiry of the time limit         Communities, represented by Antonio Caeiro, Principal
prescribed for doing so. That time limit, laid down in             Legal Adviser, and Bernard Mongin, of its Legal Service,
Article 28 of Directive 89/594/EEC, expired on 8 May               acting as Agents, with an address for service in
1991, but France has not communicated the provisions of            Luxembourg at the office of Carlos Gómez de la Cruz,
domestic law to be adopted.                                        Wagner Centre, Kirchberg.
(1) OJ L 341, 23.11.1989, p. 19.
                                                                   The Commission of the European Communities claims
                                                                   that the Court should:
                                                                   Ð declare that, by failing to adopt the laws, regulations
                                                                       and administrative measures necessary in order to
Reference for a preliminary ruling by the Gerechtshof te               comply with Articles 48 and 52 of the EC Treaty, as
's-Gravenhage in the case of C. Baars Jr against Inspecteur            interpreted by the Court of Justice in its judgments in
der Belastingdienst Particulieren/Ondernemingen Gorin-                 Heylens (1) and Vlassopoulou (2), with regard to
                             chem                                      persons who hold a diploma as a specialist nurse
                                                                       obtained by the direct route' which has not been
                       (Case C-251/98)                                 officially approved in France and who wish to pursue
                                                                       in that country the profession of a nurse providing
                        (98/C 278/40)
                                                                       general care, and, in particular, by requiring such
                                                                       persons systematically to sit the final examinations
                                                                       covering the whole of the programme contained in the
Reference has been made to the Court of Justice of the                 three years of study required to qualify as a nurse,
European Communities by judgment of the Gerechtshof te                 without first taking into account the training already
's-Gravenhage (Regional Court of Appeal, The Hague) of                 acquired by the person concerned in another Member
8 July 1998, received at the Court Registry on 10 July                 State, albeit that a partial or total dispensation has
1998, for a preliminary ruling in the case of C. Baars Jr              been allowed by France, the French Republic has
against Inspecteur der Belastingdienst Particulieren/                  failed to fulfil its obligations under the Treaty,
Ondernemingen (Inspector, Head of the Tax Office Unit
responsible for Individuals/Undertakings) Gorinchem on
the following questions:                                           Ð order the French Republic to pay the costs.


title: Case C-53/06: Action brought on  1 February 2006  by the Commission of the European Communities against the Kingdom of Spain

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/10

         Action brought on 1 February 2006 by the Commission of the European Communities against the Kingdom of Spain
   (Case C-53/06)
   (2006/C 74/18)
   Language of the case: Spanish
   An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 1 February 2006 by the Commission of the European Communities, represented by U. Wölker and S. Pardo Quintillán, acting as Agents, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/4/EC (1) of the European Parliament and of the Council of 28 January 2003 on pub1ic access to environmental information and repealing Council Directive 90/313/EEC (2) or, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               2.

               order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposing Directive 2003/4 into national law expired on 14 February 2005.

      (1)  OJ L 41 of 14.2.2003, p. 26.

      (2)  OJ L 158 of 23.6.1990, p. 56.


title: Case T-32/05: Order of the Court of First Instance of 18 October 2006 — Staelen v Parliament (Officials — Enforcement of a judgment of the Court of First Instance — No need to adjudicate — Action for damages — No pre-litigation procedure — No direct link — Manifestly inadmissible)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/57

         Order of the Court of First Instance of 18 October 2006 — Staelen v Parliament
   (Case T-32/05) (1)

   (Officials - Enforcement of a judgment of the Court of First Instance - No need to adjudicate - Action for damages - No pre-litigation procedure - No direct link - Manifestly inadmissible)
   (2006/C 326/122)
   Language of the case: French
   Parties

      Applicant: Claire Staelen (Bridel, Luxembourg) (represented by: J. Choucroun, lawyer)

      Defendant: European Parliament (represented by: J. de Wachter and M. Mustapha-Pacha, Agents)
   Re:
   First, annulment of the decision of the Selection Board in Competition EUR/A/151/98, reopened following the judgment of the Court of First Instance of 5 March 2003 in Case T-24/01 Staelen v Parliament [2005] ECR-SC I-A-79 and II-423, not to enter the applicant in the reserve list for that competition and, second, a claim for damages
   Operative part of the order

               1.

               Declares that there is no longer any need to adjudicate on the claims for annulment.

               2.

               Rejects the claim for damages.

               3.

               Orders the Parliament to pay its own costs and two thirds of the costs incurred by the applicant.

      (1)  OJ C 115, of 14.5.2005.


22.1.2000              EN                     Official Journal of the European Communities                                    C 20/27
Pleas in law and main arguments                                                 Removal from the register of Case T-524/93 (1)
This case corresponds to Case T-210/99. The pleas in law and                                      (2000/C 20/55)
main arguments are the same as those in Case T-250/99.
                                                                                (Language of the case: English)
( 1) OJ L 280 of 30.10.1999, p. 87.
                                                                         By order of 25 October 1999, the President of the Fourth
                                                                         Chamber, Extended Composition, of the Court of First Instance
                                                                         of the European Communities has ordered the removal from
                                                                         the register of Case T-524/93: Patrick Wall v Council of the
                                                                         European Union and Commission of the European Communi-
                                                                         ties.
Action brought on 22 October 1999 by Total Nederland                     (1) OJ C 319 of 26.11.1993.
B.V. and Fina Nederland B.V. against the Commission of
                  the European Communities
                         (Case T-252/99)
                          (2000/C 20/54)                                 Removal from the register of Case T-195/94 and
                                                                                T-202/94 (1)
                    (Language of the case: Dutch)                                                 (2000/C 20/56)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                  (Language of the case: German)
European Communities on 22 October 1999 by Total Neder-
land B.V. and Fina Nederland B.V., respectively established in           By order of 29 September 1999, the President of the Fourth
Rotterdam and The Hague (Netherlands), represented by                    Chamber, Extended Composition, of the Court of First Instance
E.H. Pijnacker Hordijk and R. Wesseling, of the Hague Bar,               of the European Communities has ordered the removal from
with an address for service in Luxembourg at the Chambers of             the register of Joined Cases T-195/94 and T-202/94: Friedhelm
M. Maître, 11 Rue Goethe.                                                Quiller and Johann Heusmann v Council of the European
                                                                         Union and Commission of the European Communities.
The applicants claim that the Court should:
                                                                         (1) OJ C 188 of 9.7.1994 and C 218 of 6.8.1994.
(a) order the Commission of the European Communities to
     give the applicant’s advisers access to its file relating to
     its decision of 20 July 1999 (C(1999) 2539 final) (1)
     concerning State aid granted by the Netherlands to 633
     service stations in the region bordering Germany, and
     order the adoption of all such further measures as may be
     necessary;                                                                 Removal from the register of Case T-10/96 (1)
(b) annul Articles 2 and 3 of the Commission’s decision of
                                                                                (2000/C 20/57)
     20 July 1999 (C(1999) 2539 final);
(c) order the Commission to pay the costs.                                                  (Language of the case: English)
                                                                         By order of 10 November 1999, the President of the Fourth
Pleas in law and main arguments                                          Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the register of
This case is linked to Case T-210/99. The pleas in law and               Case T-10/96: Benjamin Laurence Lay v Council of the
main arguments are the same as those in Case T-250/99.                   European Union and Commission of the European Communi-
                                                                         ties.
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                         (1) OJ C 133 of 4.5.1996.


title: Case C-157/15: Request for a preliminary ruling from the Hof van Cassatie (Belgium) lodged on 3 April 2015 — Samira Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/17

         Request for a preliminary ruling from the Hof van Cassatie (Belgium) lodged on 3 April 2015 — Samira Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV
   (Case C-157/15)
   (2015/C 205/24)
   Language of the case: Dutch

      Referring court

   Hof van Cassatie

      Parties to the main proceedings

      Applicants: Samira Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding

      Defendant: G4S Secure Solutions NV

      Question referred

   Should Article 2(2)(a) of Council Directive 2000/78/EC (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?

      (1)  OJ 2000 L 303, p. 16.


title: Case T-355/15: Action brought on 30 June 2015 — Alpex Pharma v OHIM — Astex Pharmaceuticals (ASTEX)

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/79

         Action brought on 30 June 2015 — Alpex Pharma v OHIM — Astex Pharmaceuticals (ASTEX)
   (Case T-355/15)
   (2015/C 294/95)
   Language in which the application was lodged: English

      Parties

      Applicant: Alpex Pharma SA (Mezzovico-Vira, Switzerland) (represented by: C. Bacchini and M. Mazzitelli, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Astex Pharmaceuticals, Inc. (Pleasanton, United States)

      Details of the proceedings before OHIM

      Applicant: The other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community word mark ‘ASTEX’ — Application for registration No 1 0 8 05  281

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 28 April 2015 in Case R 593/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM and the other party to the proceedings before the Board of Appeal, should it intervene, to pay the costs.

      Plea in law

               —

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


title: Case C-46/16: Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 27 January 2016 — Valsts ieņēmumu dienests v SIA ‘LS Customs Services’

text:
               29.3.2016

               EN

               Official Journal of the European Union

               C 111/14

         Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 27 January 2016 — Valsts ieņēmumu dienests v SIA ‘LS Customs Services’
   (Case C-46/16)
   (2016/C 111/17)
   Language of the case: Latvian

      Referring court

   Augstākā tiesa

      Parties to the main proceedings

      Applicant: Valsts ieņēmumu dienests

      Defendant: SIA ‘LS Customs Services’

      Questions referred

               1.

               Should Article 29(1) of Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code be interpreted as meaning that the method laid down in that article is also applicable when the import of the goods and their release for free circulation in the customs territory of the Community took place as a consequence of the fact that during the transit procedure the goods were removed from customs supervision, the goods concerned being goods liable to import duties, and the goods were not sold for export to the customs territory of the Community but for export outside the Community?

               2.

               Should the expression ‘sequentially’ used in Article 30(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, in the light of the right to good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union read together with the principle that reasons must be stated for administrative measures, be interpreted as meaning that, in order to be able to conclude that the applicable method is that set out in Article 31 of the regulation, the customs authorities are under an obligation to state in all administrative measures why in those specific circumstances the methods for determination of customs value of goods set out in Articles 29 and 30 cannot be used?

               3.

               Should it be deemed to be sufficient, to exclude the application of the method in Article 30(2)(a) of the Customs Code, that the customs authority declare that it does not have in its possession the appropriate information, or is the customs authority obliged to obtain information from the producer?

               4.

               Must the customs authority state reasons why the methods established in Article 30(2)(c) and (d) of the Customs Code are not to be used, if it determines the price of similar goods on the basis of Article 151(3) of Regulation No 2454/93? (2)

               5.

               Must the decision of the customs authority contain a full statement of reasons as to what information is available in the Community, within the meaning of Article 31 of the Customs Code, or can it produce that statement of reasons subsequently, in legal proceedings, submitting more complete evidence?

      (1)  OJ 1992 L 302, p. 1.

      (2)  OJ 1993 L 253, p. 1.


title: Case F-121/10: Action brought on 19 November 2010 — Heath v ECB

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/67

         Action brought on 19 November 2010 — Heath v ECB
   (Case F-121/10)
   ()
   2011/C 30/133
   Language of the case: French

      Parties

      Applicant: Michael Heath (Southampton, United Kingdom) (represented by: L. Levi and M. Vandenbussche, lawyers)

      Defendant: European Central Bank

      Subject-matter and description of the proceedings

   Annulment of the applicant's pension slips for the month of January 2010 and the following months, in so far as these apply a pension increase of 0,6 % following the pensions adjustment procedure for 2010, and damages for loss suffered by the applicant.

      Form of order sought

               —

               Annul the salary slip for January 2010 and the following months, in so far as these apply a pension increase of 0,6 %, in order to apply an increase of 2,1 % calculated in accordance with a lawful GSA [General Salary Adjustment];

               —

               to the extent necessary, annul the decisions rejecting the requests for reconsideration and the complaints lodged by the applicant, decisions of 11 May 2010 and 9 September 2010 respectively;

               —

               order the defendant to pay the difference between the pension increase of 0,6 % granted unlawfully to the applicant as from January 2010 and that of 2,1 % to which he should have been entitled, namely a salary increase of 1,5 % per month as from January 2010. Those amounts should have interest applied as from their respective due dates until the date of actual payment, calculated on the basis of the rate set by the European Central Bank for main refinancing operations, applicable during the relevant period, plus 2 points;

               —

               order the defendant to pay EUR 5 000, to compensate for the applicant's material damage resulting from the loss in his purchasing power;

               —

               order the defendant to pay EUR 5 000, assessed ex aequo et bono to compensate for his non-material damage;

               —

               order the ECB to pay the costs.


title: Case T-261/05: Action brought on 8 July 2005 by Frank Sliggers against the Commission of the European Communities

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/29

         Action brought on 8 July 2005 by Frank Sliggers against the Commission of the European Communities
   (Case T-261/05)
   (2005/C 229/61)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 July 2005 by Frank Sliggers, resident in Schilde (Belgium), represented Lucas Vogel, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision adopted by the Authority Responsible for Concluding Contracts of Employment on 21 March 2005 by which it dismissed the applicant's application of 14 December 2004, reclassified as a claim, against the decision fixing the grade and remuneration determined for the applicant in his capacity as contract staff under the terms of the contract which entered into effect on 14 September 2004;

               —

               in so far as necessary, annul also the original decision, by which the grade and remuneration were fixed for the applicant in his capacity as a contract staff under the terms of the contract which entered into effect on 14 September 2004;

               —

               order the defendant to pay EUR 25 000 by way of damages, subject to an increase or decrease or further specifications;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are identical to those put forward in Case T-253/05 Fernandez Tunon v Commission.


title: Case F-45/14: Order of the Civil Service Tribunal (Third Chamber) of 20 July 2016 — Esen v Commission (Civil Service — Officials — Pensions — Article 11(2) of Annex VIII to the Staff Regulations — Pension rights acquired before entering the service of the European Union under a national pension scheme — Transfer to the EU pension scheme — Proposal concerning additional pensionable years — Plea of inadmissibility — Concept of measure adversely affecting a person — Article 83 of the Rules of Procedure)

text:
               3.10.2016

               EN

               Official Journal of the European Union

               C 364/49

      Order of the Civil Service Tribunal (Third Chamber) of 20 July 2016 — Esen v Commission
      (Case F-45/14) (1)

      ((Civil Service - Officials - Pensions - Article 11(2) of Annex VIII to the Staff Regulations - Pension rights acquired before entering the service of the European Union under a national pension scheme - Transfer to the EU pension scheme - Proposal concerning additional pensionable years - Plea of inadmissibility - Concept of measure adversely affecting a person - Article 83 of the Rules of Procedure))
      (2016/C 364/63)
      Language of the case: French

         Parties

         Applicant: Kerim Esen (Maputo, Mozambique) (represented initially by: D. de Abreu Caldas, M. de Abreu Caldas and J.-N. Louis, lawyers, and subsequently by J.-N. Louis, lawyer)

         Defendant: European Commission (represented initially by: J. Currall and G. Gattinara, acting as Agents, and subsequently by G. Gattinara and F. Simonetti, acting as Agents)

         Re:

      Application for annulment of the decision concerning the transfer of the applicant’s pension rights to the EU pension scheme which applies the new GIP relating to Articles 11 and 12 of Annex VIII to the Staff Regulations.

         Operative part of the order

                  1.

                  The action is dismissed as inadmissible.

                  2.

                  Mr Kerim Esen shall bear his own costs and pay the costs incurred by the European Commission.

         (1)  OJ C 212, 7.7.2014, p. 46.


title: Case T-270/10: Judgment of the General Court of 3 May 2012 — Conceria Kara v OHIM — Dima (KARRA) (Community trade mark — Opposition proceedings — Application for Community word mark KARRA — Earlier national and Community figurative marks Kara — Company name Conceria Kara Srl and trade name Kara — Relative grounds for refusal — First sentence of Article 75 of Regulation (EC) No 207/2009 — Article 42(2) and (3) of Regulation (EC) No 207/2009 — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 8(4) of Regulation (EC) No 207/2009 — Article 8 of the Paris Convention — Bad faith)

text:
               16.6.2012

               EN

               Official Journal of the European Union

               C 174/21

         Judgment of the General Court of 3 May 2012 — Conceria Kara v OHIM — Dima (KARRA)
   (Case T-270/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark KARRA - Earlier national and Community figurative marks Kara - Company name Conceria Kara Srl and trade name Kara - Relative grounds for refusal - First sentence of Article 75 of Regulation (EC) No 207/2009 - Article 42(2) and (3) of Regulation (EC) No 207/2009 - Article 8(1)(b) of Regulation (EC) No 207/2009 - Article 8(4) of Regulation (EC) No 207/2009 - Article 8 of the Paris Convention - Bad faith)
   2012/C 174/32
   Language of the case: Italian

      Parties

      Applicant: Conceria Kara Srl (Trezzano sul Naviglio, Italy) (represented by P. Picciolini, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by G. Mannucci, agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Dima — Gida Tekstil Deri Insaat Maden Turizm Orman Urünleri Sanayi Ve Ticaret Ltd Sti (Istanbul, Turkey)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 29 March 2010 (Case R 1172/2009-2) relating to opposition proceedings between Conceria Kara Srl and Dima — Gida Tekstil Deri Insaat Maden Turizm Orman Urünleri Sanayi Ve Ticaret Ltd Sti.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Conceria Kara Srl to pay the costs.

      (1)  OJ C 221, 14.8.2010.


title: Case T-426/04: Order of the Court of First Instance of  21 November 2004  — Tramarin v Commission (Action for annulment — Admissibility — State aid — Commission request to amend a notified aid scheme — Actionable measure — Measure having legal effect — Time-limit — Point from which time starts to run — Summary publication in the Official Journal — Internet site)

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/31

         Order of the Court of First Instance of 21 November 2004 — Tramarin v Commission
   (Case T-426/04) (1)

   (Action for annulment - Admissibility - State aid - Commission request to amend a notified aid scheme - Actionable measure - Measure having legal effect - Time-limit - Point from which time starts to run - Summary publication in the Official Journal - Internet site)
   (2006/C 36/67)
   Language of the case: Italian
   Parties

      Applicant: Tramarin Snc di Tramarin Andrea e Sergio (Montagnana, Italy) (represented by: M. Calabrese, lawyer)

      Defendant: Commission of the European Communities (represented by: V. Di Bucci, Agent)
   Application for
   Annulment, first, of a Commission letter requesting the Italian authorities to amend an aid project notified and, second, of the decision of the Commission of 12 July 2000 declaring compatible with the common market an aid scheme for investment in depressed regions of Italy (State aid N 715/99 — (SG 2000 D/105754)
   Operative part of the Order

               1.

               The application is dismissed as inadmissible.

               2.

               The applicant shall pay its own costs in addition to those of the Commission.

      (1)  OJ C 314, 18.12.2004.


title: Case T-407/12: Order of the General Court of 7 February 2013 — Ubee Interactive v OHIM — Augere Holdings (Netherlands) (Ubee Interactive) (Community trade mark — Opposition — Opposition withdrawn — No need to adjudicate)

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/18

         Order of the General Court of 7 February 2013 — Ubee Interactive v OHIM — Augere Holdings (Netherlands) (Ubee Interactive)
   (Case T-407/12) (1)

   (Community trade mark - Opposition - Opposition withdrawn - No need to adjudicate)
   2013/C 101/39
   Language of the case: English

      Parties

      Applicant: Ubee Interactive Corp. (Jhubei City, Taiwan) (represented by: M. Nentwig, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Augere Holdings (Netherlands) BV (Amsterdam, Netherlands)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 12 July 2012 (Case R 1849/2011-2) relating to opposition proceedings between Augere Holdings (Netherlands) BV and Ubee Interactive Corp.

      Operative part of the order

               1.

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

               2.

               The applicant and the other party to the proceedings before the Board of Appeal shall bear their own costs and each shall pay one half of the costs incurred by the defendant.

      (1)  OJ C 355, 17.11.2012.


title: Case C-71/16 P: Appeal brought on 9 February 2016 by Comercializadora Eloro, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 9 December 2015 in Case T-354/14 Comercializadora Eloro v OHIM — Zumex Group (Zumex)

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/6

         Appeal brought on 9 February 2016 by Comercializadora Eloro, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 9 December 2015 in Case T-354/14 Comercializadora Eloro v OHIM — Zumex Group (Zumex)

   (Case C-71/16 P)
   (2016/C 191/09)
   Language of the case: Spanish

      Parties

      Appellant: Comercializadora Eloro, S.A. (represented by: J.L. de Castro Hermida, lawyer)

      Other parties to the proceedings: European Union Intellectual Property Office (EUIPO) and Zumex Group, S.A.

      Form of order sought

   The appellant claims that the Court should:

               —

               as regards the submission of evidence, deem adduced and admitted the documentary evidence submitted at the end of the appeal procedure which was resubmitted with the application initiating the action and is numbered from Document No 1 to Document No 7, as specified in the list of annexes appended to that application.

               —

               hold, on the basis of the documents filed in the administrative procedure, that the applicant (Comercializadora Eloro, S.A.) has provided sufficient proof of real and genuine use in the relevant period and territory of its mark JUMEX for fruit juices in Class 32.

               —

               on account of the opponent — who is the appellant in the present proceedings — having proved use of the earlier mark, refuse registration of the mark applied for, ZUMEX, for all goods in Class 32 because of the likelihood of confusion on the part of consumers arising from the coexistence in the market of both marks, the similarity of the words and their identity in application.

      Grounds of appeal and main arguments

      First ground: infringement of Article 42(2) of the Community Trade Mark Regulation
       (1)
      and Rules 22(2) and 22(3) of the Community Trade Mark Implementing Regulation
       (2)

   The EUIPO Opposition Division found that the proof of use submitted by the opponent reached the minimum level required to declare that there had been genuine use of the mark during the relevant period and in the relevant territory.
   The doubts expressed in the contested decision as to whether the goods sold to the Dutch firm ‘Nidera General Merchandise, B.V.’ actually entered EU territory are solely based on one piece of documentary evidence, namely: that firm’s website (available at www.ngm-int.com), in which it is stated that it is West African countries that are the destination for its commercial transactions
   In that regard, the evidentiary value of the print-outs from that website must be rejected, since these date from the time when that evidence was first submitted and reviewed, that is, on or around 5 August 2011, which is eight years after the beginning of the relevant period for proof of use and three years following the end of that period. During that interval the trading activity and geographical ambit of the company in question could have varied significantly. Legal logic requires evidence adduced to refute the use of the mark to relate to the relevant period and not to several years after the end of that period.
   The invoices submitted as evidence show that the Dutch firm ‘Nidera General Marchandise, B.V.’, established in Rotterdam, is not only the purchaser of the goods but also the consignee of the goods sold, which suggests that those goods entered EU territory.
   The opponent has provided evidence that that firm belongs to the ‘Nidera’ corporate group that operates in several European countries, including Spain, through its subsidiary ‘Nidera Agro Comercial, S.A.’, which is a strong indication that the goods it purchased were destined for the European market.
   The opponent having borne the burden of proof of use of its mark, and that use having been established by the provision of invoices of the sale of goods bearing the mark, the burden of proof must be reversed when the virtuality of that proof is argued. Thus the burden of proving, beyond mere conjectures and assumptions, that the proof adduced is insufficient must be borne by the trade mark applicant.

      Second ground: infringement of Article 15(1)(b) of the Community Trade Mark Regulation

   The fact that the Dutch firm ‘Nidera General Merchandise, B.V.’ appears in invoices as the consignee of the goods means that the goods cannot have been dispatched from the customs territory of the European Union under the external transit procedure, and implies that the goods actually entered the relevant territory, even though they were subsequently re-exported to Africa.
   The judgment under appeal rejects the argument that import for the sole purpose of re-export constitutes genuine use of the mark, on the grounds that such an activity does not enable market share to be created and maintained. Nevertheless, this is analogous to the situation provided for in Article 15(1)(b) of the Community Trade Mark Regulation: affixing of the mark for the sole purpose of exportation, an activity which does not enable the creation and maintenance of a market share in the territory of the European Union either.

      Third ground: infringement of Article 76(2) of the Community Trade Mark Regulation

   It is clear from the provision and from the case-law that the general rule is the admission of allegations and evidence even when submitted out of time. Accordingly, the discretion conferred on EUIPO must be interpreted narrowly and require an explanation justifying refusal. Discretion does not mean arbitrariness or subjectivity.
   The new invoices and packaging labels submitted at the end of the appeal procedure, numbered from Document No 1 to Document No 7, were fundamental for, having been issued by other European firms, they were capable of dispelling the doubts raised as regards the invoices issued by the Dutch firm ‘Nidera General Merchandise, B.V.’.
   When providing proof of use of its mark, the opponent faced chronological difficulties: the evidence had to be gathered three years after such use, and geographical difficulties: the opponent is a Mexican company and its interests are mainly situated in the American continent.
   Consideration of the chronological and geographical circumstances, and the fundamental importance of the documents submitted out of time for the resolution of the proceedings, should have led to those documents being admitted, resulting in a finding that there was proof of real and genuine use of the opponent’s earlier mark and enabling the required comparison of the marks at issue to be carried out in order to determine the existence of likelihood of confusion on the part of the consumer.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version)

      OJ 2009 L 78, p. 1

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

      OJ 1995 L 303, p. 1


title: Case T-303/09: Action brought on 3 August 2009 — CIVR and Others v Commission

text:
               10.10.2009

               EN

               Official Journal of the European Union

               C 244/11

         Action brought on 3 August 2009 — CIVR and Others v Commission
   (Case T-303/09)
   2009/C 244/17
   Language of the case: French

      Parties

      Applicants: Conseil interprofessionnel des vins du Roussillon — CIVR (Perpignan, France), Comité national des interprofessions des vins à appellation d’origine et à indication géographique — CNIV (Paris, France), Interprofession nationale porcine — Inaporc (Paris) and Others (Perpignan, France) (represented by: H. Calvet, O. Billard and Y. Trifounovitch, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul the decision of the European Commission of 10 December 2008 State aid N 561/2008 — France — Actions led by inter-branch organisations, C(2008) 7846 final, (1) inasmuch as it found the actions led by the agricultural inter-branch organisations in technical assistance, production and marketing aid for quality products, research and development and marketing to be State aid and inasmuch as it found compulsory voluntary levies used to finance those actions to be State resources;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   By the present action, the applicants seek partial annulment of Commission Decision C(2008) 7846 final of 10 December 2008, by which the Commission had found that the framework scheme of actions liable to be carried out by the French agricultural inter-branch organisations, consisting in aid for technical assistance, for production and marketing for quality products, for research and development and marketing for primary producers and undertakings engaged in processing and marketing agricultural products, financed through voluntary levies made compulsory by inter-ministerial decree, to be collected from the members of those inter-branch organisations, were a measure constituting State aid compatible with the common market.
   The pleas in law and principal arguments relied on by the applicant are essentially identical or similar to those put forward in Case T-293/09 CNIEL v Commission.

      (1)  OJ 2009, C 116, p. 14.


title: Case T-407/05: Judgment of the Court of First Instance of 6 November 2007 — SAEME v OHIM — Racke (REVIAN's) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark REVIAN's — Earlier non-Community trade mark evian — Late submission of the translation of the registration certificate for an earlier mark — Discretion granted by Article 74(2) of Regulation (EC) No 40/94)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/35

         Judgment of the Court of First Instance of 6 November 2007 — SAEME v OHIM — Racke (REVIAN's)
   (Case T-407/05) (1)

   (Community trade mark - Opposition proceedings - Application for figurative Community trade mark REVIAN's - Earlier non-Community trade mark evian - Late submission of the translation of the registration certificate for an earlier mark - Discretion granted by Article 74(2) of Regulation (EC) No 40/94)
   (2007/C 315/66)
   Language of the case: German
   Parties

      Applicant: Société anonyme des eaux minérales d'Évian (SAEME) (Évian-les-Bains, France) (represented by: C. Hertz-Eichenrode, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM and intervener before the Court of First Instance: A. Racke GmbH & Co. OHG (Bingen, Germany) (represented by: N. Schindler, lawyer)
   Re:
   Action against the decision of the Fourth Board of Appeal of OHIM of 22 July 2005 (Case R 82/2002 4) relating to opposition proceedings between Société anonyme des eaux minérales d'Évian (SAEME) and A. Racke GmbH & Co. OHG, and also against decision No 2754/2001 of the Opposition Division of OHIM of 23 November 2001.
   Operative part of the judgment

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 July 2005 (Case R 82/2002 4);

               2.

               Orders OHIM to pay its own costs and those incurred by the applicant;

               3.

               Orders the intervener to bear its own costs.

      (1)  OJ C 22, 28.1.2006.