title: Case C-229/17: Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 2 May 2017 — Evonik Degussa GmbH v Bundesrepublik Deutschland

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/2

         Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 2 May 2017 — Evonik Degussa GmbH v Bundesrepublik Deutschland
   (Case C-229/17)
   (2017/C 256/02)
   Language of the case: German

      Referring court

   Verwaltungsgericht Berlin

      Parties to the main proceedings

      Applicant: Evonik Degussa GmbH

      Defendant: Bundesrepublik Deutschland

      Questions referred

               (1)

               Is there a ‘production of hydrogen’ within the meaning of Annex I, Part 2, to Decision 2011/278/EU (1) only in the case where an H2 hydrogen molecule is produced by chemical synthesis from two H hydrogen atoms, or does the concept of production also include the process whereby, in the case of a hydrogenous gas mixture, the relative share of H2 hydrogen in that mixture is increased — without synthesis — by removal of the other gas components — whether by physical or chemical means — in order to obtain a ‘product … expressed as saleable (net) production and to 100 % purity of the substance concerned’ within the meaning of Annex I, Part 2, to Decision 2011/278/EU?

               (2)

               If the answer to Question 1 is that the concept of production does not include the process of increasing the relative share of H2 hydrogen in a gas mixture, the following further question must be asked:
               Must the wording ‘relevant process elements directly or indirectly linked to the production of hydrogen and the separation of hydrogen and carbon monoxide’ be interpreted as meaning that only both elements together (‘and’) are covered by the system boundaries of the product benchmark for hydrogen described in Annex I, Part 2, to Commission Decision 2011/278/EU of 27 April 2011, or can the process element ‘separation of hydrogen and carbon monoxide’ also operate in isolation within the system boundaries as an independent process element in its own right?

               (3)

               If the answer to Question 2 is that the process element ‘separation of hydrogen and carbon monoxide’ can also operate in isolation within the system boundaries as an independent process element in its own right, the following further question must be asked:
               Is the process element ‘separation of hydrogen and carbon monoxide’ present only where H2 hydrogen is separated exclusively from CO carbon monoxide, or is the process element ‘separation of hydrogen and carbon monoxide’ also present where that process involves the separation of hydrogen not only from carbon monoxide but also from other substances, such as CO2 carbon dioxide or CnHn?

               (4)

               In the event that the applicant is to be recognised by judicial decision as being entitled to an additional allocation of free emission allowances, must paragraph 3 of the operative part of the judgment of the European Court of Justice of 28 April 2014 in Case C-191/14 be interpreted as meaning that:

                           (a)

                           the cross-sectoral correction factor provided for in Article 4 of, and Annex II to, Decision 2013/448/EU, in its original version, is applicable to allocations for the years 2013 to 2020 that were established by the competent authority of the Member State before 1 March 2017; and

                           (b)

                           the cross-sectoral correction factor provided for in Article 4 of, and Annex II to, Decision 2013/448/EU, in its original version, is applicable to additional allocations for the years 2013 to 2017 that were/are awarded by judicial decision after 1 March 2017; and

                           (c)

                           the cross-sectoral correction factor provided for in Article 4 of, and Annex II to, Decision 2013/448/EU, in the version of Decision 2017/126/EU, applicable after 1 March 2017, is applicable to additional allocations for the years 2018 to 2020 that were/are awarded by judicial decision after 1 March 2017?

      (1)  Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (notified under document C(2011) 2772) (OJ 2011 L 130, p. 1).


title: Case T-422/09: Action brought on 19 October 2009 — São Paulo Alpargatas v OHIM — Fischer (BAHANIAS LAS ORIGINALES)

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/33

         Action brought on 19 October 2009 — São Paulo Alpargatas v OHIM — Fischer (BAHANIAS LAS ORIGINALES)
   (Case T-422/09)
   2009/C 297/51
   Language in which the application was lodged: Spanish

      Parties

      Applicant: São Paulo Alpargatas, SA (represented by: P. Merino Baylos, 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: Enrique Fischer

      Form of order sought

               —

               uphold the application and annul the decision of the Second Board of Appeal of OHIM of 17 August 2009, with all the appropriate consequences under Community law;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Enrique Fischer

      Community trade mark concerned: Figurative mark containing the verbal component “BAHIANAS (LAS ORIGINALES)” (Application No 5 024 591) for goods in class 25.

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

      Mark or sign cited in opposition: Community figurative mark containing the verbal component “havaianas” (No 3 772 431), Spanish figurative mark containing the verbal component “havaianas” (M 2 341 904) and Spanish word mark “HAVAIANAS” (M 2 341 905), all for goods in class 25.

      Decision of the Opposition Division: Refusal of the application for a Community mark in its entirety.

      Decision of the Board of Appeal: Annulment of the contested decision.

      Pleas in law: Incorrect interpretation of Article 8(1)(b) of Regulation No 207/2009.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 27 February 1996 in Case T-235/95 R: Anthony Goldstein v. Commission of the European Communities

text:
No C 108/ 10          EN                 Official Journal of the European Communities                                     13 . 4 . 96
Currall ) — application for the annulment of the decision of            ORDER OF THE COURT OF FIRST INSTANCE
the Commission of 18 January 1994, inasmuch as it does                                   of 15 February 1996
not reimburse to the applicant the full difference between
the medical expenses incurred by him for a dependent                in Case T-5/95 : Amicale des Résidents du Square
child and the amounts payable under the joint sickness                      d'Auvergne v. Commission of the European
insurance scheme — the Court of First Instance ( Fifth                                      Communitiesf 1 )
Chamber ), composed of: R. Schintgen, President, and                (Competition — Action for annulment — Action for failure
R. Garcia-Valdecasas and J. Azizi , Judges; H. Jung,                to act — Action for damages — Application for directions to
Registrar, has given a judgment on 7 March 19 96 , in               be issued to the Commission — Admissibility — No need to
which it :                                                                                give a decision)
                                                                                ( 96/C 108/22 )
1 , dismisses the application -,
                                                                                (Language of the case: French)
2 . orders the parties to bear their own costs.
(') OJ No C 380 , 31 . 12 . 1994 .                                  In Case T- 5/95 : Amicale des Résidents du Square
                                                                    d'Auvergne, established in Massy, France, represented by
                                                                    Jean-Marc Florand, of the Paris Bar, v . Commission of the
                                                                    European Communities ( Agents : Giuliano Marenco and
                                                                    Wouter Wils ) — application for ( 1 ) a declaration that the
                                                                    Commission has failed to act and an order directing it to
 JUDGMENT OF THE COURT OF FIRST INSTANCE                            continue its investigation of a complaint; (2 ) the annulment
                      of 12 March 1996                              of the Commission's decisions contained in its letters to the
in Case T-361 /94 : Henry A. Weir v. Commission of the              applicant of 20 September 1994, 5 October 1994 and
                  European Communities ( 1 )                        26 October 1994 , and ( 3 ) an order that the Commission pay
                                                                    ECU 10 million by way of damages — the Court of First
(Officials — Partial permanent invalidity — Equality of             Instance ( First Chamber), composed of: A. Saggio,
treatment — Change in purchasing power — Delay                      President, V. Tiili and R. M. Moura-Ramos , Judges;
in dealing with a matter — Default interest —                       H. Jung, Registrar, has made an order on 1 5 February 1 996 ,
                         Admissibility)                             in which it orders :
                          96/C 108 /21 )
                                                                    I . there is no need to give a decision on the claim for failure
               (Language of the case: German)                           to act;
In Case T-361 /94 : Henry A. Weir, a former official of the
Commission of the European Communities, residing at                 2 . the remainder of the application is dismissed as
                                                                        inadmissible;
Glasgow ( United Kingdom ), represented by Hans-Josef
Ruber, Rechtsanwalt, Cologne, with an address for service
in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue            3 , the parties shall bear their own costs, including the costs
Mathias Hardt, v . Commission of the European                           of the proceedings for interim measures.
Communities ( Agents : Julian Currall and Bertrand
Wàgenbaur ) — application, first, for the annulment of the          (') OJ No C 54, 4 . 3 . 1995 .
decision of the Commission of 25 February 1994, adopted
pursuant to Article 73 of the Staff Regulations of officials of
the European Communities, alternatively an award of
compensatory interest, and, second, an award of default
interest — the Court of First Instance ( Third Chamber ),
composed of: C. P. Briët, President, and B. Vesterdorf and
A. Potocki, Judges; H. Jung, Registrar, has given a judgment                       ORDER OF THE PRESIDENT
on 12 March 1996 , in which it:                                              OF THE COURT OF FIRST INSTANCE
                                                                                of 27 February 1996
 1 , dismisses the application as inadmissible, inasmuch as it      in Case T-235/95 R: Anthony Goldstein v. Commission of
     seeks directions to the Commission and an order
                                                                                the European Communities
     requiring the Commission to pay compensatory
     interest;
                                                                                ( 96/C 108/23 )
2 , dismisses the remainder of the application as                                  (Language of the case: English)
     unfounded;
                                                                    In Case T-235/95 R : Anthony Goldstein a medical
3 , orders the parties to bear their own costs.                     practitioner residing in London, represented by Raymond
                                                                    St John Murphy, Solicitor, against Commission of the
 O OJ No C 380 , 31 . 12 . 1994 .                                   European Communities ( Agent: Richard Lyal ) —
                                                                    application for an interlocutory order for interim measures
                                                                    — the President of the Court of First Instance made an order
 ---pagebreak---  13 . 4 . 96           EN                 Official Journal of the European Communities                               No C 108/11
on 27 February 1996 , the operative part of which is as              invitation to tender. The reasons given for this are
 follows :                                                           inadequate and entirely baseless. The applicants observe in
                                                                     this respect that the only change in practice to the new
 1 . the application for interim measures is dismissed;              procedure consisted in the exclusion of Kolprojekt from the
                                                                     short list. At the same time, however, the successful
                                                                     undertaking was recommended to allocate to Kolprojekt the
2,    costs are reserved.                                            role of subcontractor for up to 25 % of the amount of the
                                                                     offer .
                                                                     It follows that the contested acts — the decision to annul the
                                                                     procedure published on 13 June 1995 and the decision to
                                                                     put in motion a new procedure — do not achieve any of the
Action brought on 26 January 1996 by TEAM Sri and                    objective aims of general interest. On the contrary, they lead
Centralne Biuro Projektowo-Badawcze Budownictwa                      to an unjustified delay in awarding the contract as well as to
Kolejowego ( CBBBK KOLPROJECT) against the                           serious harm for the applicant undertakings .
          Commission of the European Communities
                        ( Case T-13/96 )                            The acts in question must therefore be annulled on the
                          ( 96/C 108/24                             grounds of misuse of powers and manifest breach of the
                                                                    principle of sound administration by the Commission .
                 (Language of the case: Italian)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 26 January 1996
by TEAM Sri and Centralne Biuro Projektowo-Badawcze
Budownictwa Kolejowego ( CBBBK Kolprojekt), whose                   Action brought on 1 February 1996 by Cityflyer Express
registered office is at Warsaw (Poland ), represented by                  Limited against the Commission of the European
                                                                                Communities
Antonio Tizzano and Gian Michele Roberti, of the Naples
Bar, with an address for service at 36 Place du Grand Sablon,                                Case T- 1 6/96 )
Brussels .                                                                                ( 96/C 108/25 )
The applicant claims that the Court should :
                                                                                (Language of the case: English)
— uphold the application for annulment of the decision of
     the Commission, contained in a letter of 16 November           An action against the Commission of the European
     1995 from the Head of Unit of the Directorate-General,         Communities was brought before the Court of First
     External Relations, Directorate B, annulling the award         Instance of the European Communities on 1 February 1996
     procedure concerning the 'Feasibility study for the            by Cityflyer Express Limited, represented by Charles Price,
     modernization of railway junction in Warsaw on the             with an address for service in Luxembourg at the Chambers
     E-20 TEN line ', and the subsequent tender notice of           of Lucy Dupong, 14a, rue des Bains .
     4 December 1995 , which also concerned the 'Feasibility
     study for the modernization of railway junction in
     Warsaw on the E-20 TEN line ',                                 The applicant claims that the Court should :
— uphold the application for compensation for the harm              — annul the Commission decision of 26 July 1995
     suffered by the applicants, and                                     concerning aid granted by the Flemish Region to the
                                                                         Belgian airline Vlaamse Luchttransportmaatschappij
— order the Commission to pay the costs .                                NV,
Pleas in law and main arguments adduced in support:                 — order the Commission to pay the costs .
The applicants, a design company, active in Italy and
abroad, which operates in the construction, management              Pleas in law and main arguments adduced in support:
and engineering maintenance sector, is a Polish share capital
company whose object is the provision of design services in         The applicant, an airline company registered in England,
the railway sector, complain that the defendant, instead of         which operates scheduled flights out of London Gatwick
proceeding to award the contract, notified in the context of        to Antwerp, Dublin, Diisseldorf, Guernsey, Jersey, Leeds/
the Phare programme, concerning the 'Feasibility Study for          Bradford , Newcastle and Rotterdam, challenges the
the Modernization of railway junction in Warsaw on the              Commission Decision of 26 July 1995 , concerning aid
E-20 TEN line', decided to annul the procedure and open a           granted by the Flemish Region to the Belgian airline
new procedure . The companies invited to tender in the first        Vlaamse Luchttransportmaatschappij NV (VLM), in the
procedure were included in a short list attached to the             form of an interest-free loan of Bfrs 20 million . In its


title: Case T-482/09: Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER Città) (Community trade mark — Opposition proceedings — Application for Community figurative mark BRICO CENTER Città — Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/28

         Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER Città)
   (Case T-482/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark BRICO CENTER Città - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 232/49
   Language of the case: Italian

      Parties

      Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 28 September 2009 (Case R 1047/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

      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 28 September 2009 (Case R 1047/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

               2.

               Dismisses the remainder of the action;

               3.

               Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

      (1)  OJ C 24, 30.1.2010.


title: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 7 March 1996 in the case of A. Racke GmbH & Co. v. Hauptzollamt Mainz (Case C-162/96)

text:
6 . 7 . 96          I EN |                 Official Journal of the European Communities                                 No C 197/13
Reference for a preliminary ruling by the High Court of               persons residing in another Member State are liable to pay
Justice, Queen's Bench Division, by order of that court of            compulsory contributions, even though their entitlement to
3 May 1996, in the case of The Queen against Ministry of              benefits is simultaneously excluded or suspended because of
Agriculture Fisheries and Food and The Commissioners for              their place of residence ?
Customs & Excise, ex parte: The National Farmers' Union,
David Burnett and Sons Limited, R. S. and E. Wright
Limited, Anglo Beef Processors Limited, United Kingdom
Genetics (a firm), Wyjac Calves Limited, International
Traders Ferry Limited, MFP International Limited,                     Reference for a preliminary ruling from the
Interstate Truck Rental Limited and Vian Exports Limited,             Bundesfinanzhof by order of that court of 19 March 1996 in
Interveners: Anglo Dutch Meat Exports Limited, Beck Food              the case of Siidzucker AG Mannheim/Ochsenfurt v.
Group Limited, First City Trading Limited, Weddel Swift                                 Hauptzollamt Mannheim
Limited, Carrex August Limited, Meatal Supplies                                              ( Case C-161/96 )
(Wholesale Meats ) Limited, Meat Marketing Services ( UK )
Limited, NWL ( Ireland) Limited, Hibernia Foods pic, D. T.                                      ( 96/C 197/25 )
Duggins Limited, Swallow Foods International Limited and
          The British Association of Sheep Exporters                  Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of the Seventh Senate of
                         Case C-157/96 )                              the Bundesfinanzhof ( Federal Finance Court) of 19 March
                          ( 96/C 197/23 )                             1996 , which was received at the Court Registry on 13 May
                                                                      1 996, for a preliminary ruling in the case of Siidzucker AG
Reference has been made to the Court of Justice of the                Mannheim/Ochsenfurt v . Hauptzollamt Mannheim on the
European Communities by an order of the High Court of                 following question:
Justice, Queen's Bench Division, of 3 May 1996 , which was
received at the Court Registry on 8 May 1996 , for a                  Is    Commission     Regulation      ( EEC ) No 2670/81       of
preliminary ruling in the case of the Queen against Ministry          14 September 1981 laying down detailed implementing
of Agriculture Fisheries and Food and the Commissioners               rules in respect of sugar production in excess of the quota
for Customs & Excise, ex parte: The National Farmers'                 ( OJ L 262, 1981 , p . 14 ) in conjunction with Commission
Union and others , Interveners : Anglo Dutch Meat Exports             Regulation ( EEC ) No 3183/80 of 3 December 1980 laying
Limited and others, on the following question:                        down common detailed rules for the application of the
                                                                      system of import and export licences and advance fixing
Is Article 1 of Commission Decision 96/239/EC of 27 March             certificates for agricultural products ( OJ L 338 , 1980, p . 1 )
 1996 on emergency measures to protect against bovine                 valid, having regard in particular to the Community law
spongiform encephalopathy f 1 ), Official Journal 1996,               principle of proportionality, in so far as its result is that
No L 78 , p. 47, invalid in whole or in part, in particular           sugar is deemed to have been disposed of on the internal
because the Commission lacked the power or else misused               market — that being the basis for levying the charge on
the power to adopt the Commission Decision or because it              sugar production — if it has actually been exported but
infringes the principle of proportionality ?                          without completion of the customs formalities, and proof
                                                                      consequently cannot be furnished by means of copy No 1 of
 H OJ No L 78 , 28 . 3 . 1996 , p . 47 .                              the export licence with the attributions and endorsements of
                                                                      the customs authorities ?
 Reference for a preliminary ruling from the Sozialgericht
 Karlsruhe by order of that court of 28 March 1996 in the              Reference for a preliminary ruling from the
 case of Manfred Molenaar and Barbara Fath-Molenaar v.                Bundesfinanzhof by order of that court of 7 March 1996 in
      Allgemeine Ortskrankenkasse Baden-Wiirttemberg                   the case of A. Racke GmbH & Co. v. Hauptzollamt
                                                                                Mainz
                        ( Case C-160/96 )
                           ( 96/C 197/24 )                                                    ( Case C-162/96 )
                                                                                ( 96/C 197/26 )
 Reference has been made to the Court of Justice of the
 European Communities by an order of the Eleventh                      Reference has been made to the Court of Justice of the
 Chamber of the Sozialgericht ( Social Court) Karlsruhe of             European Communities by a an order of the Seventh Senate
 28 March 1996, which was received at the Court Registry               of the Bundesfinanzhof ( Federal Finance Court) of 7 March
 on 13 May 1996 , for a preliminary ruling in the case of              1996 , which was received at the Court Registry on 13 May
 Manfred      Molenaar       and   Barbara  Fath-Molenaar      v.      1996 , for a preliminary ruling in the case of A. Racke
 Allgemeine Ortskrankenkasse (general local health                     GmbH & Co . v . Hauptzollamt Mainz on the following
 insurance fund ) Baden-Wiirttemberg on the following                  questions :
 question :
                                                                        1 . Is Council Regulation (EEC ) No 3300/91 of
 Are Articles 6 and 48 ( 2 ) of the EEC Treaty to be interpreted            11 November 1991 suspending the trade concessions
 as restricting the right of a Member State to set up a social              provided for by the Cooperation Agreement between
 security system covering the risk of need of care as part of               the European Economic Community and the Socialist
 statutory compulsory insurance arrangements under which                    Federal Republic of Yugoslavia ( ] ) valid ?
 ---pagebreak--- No C 197/ 14             EN                    Official Journal of the European Communities                                       6 . 7. 96
2. If not, what are the consequences of invalidity for the                      terminal operator) gives rise to arrangements in the
      charging of customs duty in early May 1992 on wines                       market whereby users may have contractual
      originating in Serbia which were imported in the period                   relationships only with the terminal operator for the
      from mid-November 1991 to April 1992 and cleared for                      whole range of services which they need when visiting a
      warehousing in a customs warehouse ?                                      port in which the terminal operator or operators hold a
                                                                                dominant position in the market within the meaning of
      Are the quota-related preferential customs duties                         Article 86 of the Treaty ?
      granted in 1992 for wines from the territory of the
      former Yugoslavia other than Serbia applicable in that              3 . Do Articles 59 and 90 of the EC Treaty, in conjunction
      respect ?                                                                 with Article 86, in any event preclude national
                                                                                legislation which only allows an undertaking operating
                                                                                in a port to provide to other undertaking operating in
( ] ) OJ No L 315 , 15 . 11 . 1991 , p . 1 .
                                                                                the port, and in particular terminal operators, services
                                                                                limited to the mere supply of labour ?
Reference for a preliminary ruling by the Pretura
Circondariale di la Spezia by order of that court of 12 April             Reference for a preliminary ruling by the Consiglio di Stato
1996 in the criminal proceedings pending before it against                by order of that court of 9 January 1996 in the case of
                      Silvano Raso and Others                                          Regione Piemonte v. Sai Agricola SpA
                           ( Case C-163/96 )                                                         (Case C-164/96)
                             ( 96/C 197/27 )                                                           ( 96/C 197/28 )
Reference has been made to the Court of Justice of the                    Reference has been made to the Court of Justice of the
European Communities by an order of the Pretura                           European Communities by an order of the Consiglio di
Circondariale di la Spezia ( Magistrates' Court for the                   Stato ( Council of State ), of 9 January 1996, which was
District of La Spezia ) of 12 April 1996 , which was received             received at the Court Registry on 13 May 1996, for a
at the Court Registry on 13 May 1996, for a preliminary                   preliminary ruling in the case of Regione Piemonte v. Sai
ruling in the criminal proceedings pending before that court              Agricola SpA on the following question:
against Silvano Raso and Others on the following
questions :                                                               Whether, under Council Directive 72/159/EEC ( 1 ) and the
                                                                          subsequent Council Regulation No 797/85 (2 ) and having
1 . Does Article 5 9 of the Treaty preclude Italian legislation           regard to the aim of developing a common agricultural
      which prohibits an undertaking holding a port terminal              policy within a system free of discrimination between
      concession from having recourse to work done by other               farmers, there is room for the national or regional legislator
      undertakings — not set up by former port companies                  to provide for different treatment of individual farmers,
      and groups — comprising the supply of services of the               even if only in relation to the introduction of a special system
      kind provided for users including those belonging to                of identification based on a specific register set up solely for
      other Member States, with the further implication that,             that purpose ?
      as a result of the Italian legislation, the terminal operator
      itself is required to make available the whole range of             (*) OJ No English Special Edition 1972 (II), p. 324 .
      services that might be required by users in the port                ( 2 ) OJ No L 93 , 30 . 3 . 1985 , p. 1 .
      terminal, giving rise to the risk of hampering access to
      the market for the provision of individual services by
      undertakings authorized to operate in the port other
      than those referred to by Article 21 ( 1 ) ( b) of Law
      No 84/94 ?
2. Does Article 90 ( 1 ) of the EC Treaty, in conjunction with
      Article 86 , preclude national legislation which (by                Reference for a preliminary ruling by the Royal Court of
      reason of its effects on the market, namely, first, the fact        Jersey, by order of that court of 1 1 April 1996, in the case of
      that it prevents undertakings other than the terminal —             Rui Alberto Pereira Roque against His Excellency the
      not set up by former port companies and groups — from                                Lieutenant Governor of Jersey
      providing services within the confines of the port for                                         (Case C-171/96)
      would-be users; secondly, the fact that the terminal                                             ( 96/C 197/29 )
      operator is obliged to provide all port operations and
      services required at the terminal; and, thirdly, the fact
      that it is impossible for users to entrust certain services         Reference has been made to the Court of Justice of the
      to undertakings of their oWn choice other than the                  European Communities by an order of the Royal Court of


title: Case T-402/05: Action brought on  3 November 2005  — Italian Republic v Commission

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/16

         Action brought on 3 November 2005 — Italian Republic v Commission
   (Case T-402/05)
   (2006/C 22/31)
   Language of the case: Italian
   Parties

      Applicant(s): Italian Republic (represented by: Danilo Del Gaizo, Avvocato dello Stato)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               annul the note of 24 August 2005, No. 08799 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma POR Campania 2000-2006, No. CCI 1999 IT 16 1 PO 007);

               —

               annul the note of 30 August 2005, No. 08978 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Lombardia 2000-2006, No. CCI 2000 IT 16 2 DO 014);

               —

               annul the note of 19 September 2005, No. 09753 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Ob.2 Lazio 2000-2006, No CCI 2000 IT 16 2 DO 009);

               —

               annul the note of 23 September 2005, No. 09985 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Toscana Ob.2, No CCI 2000 IT 16 2 PO 001);

               —

               annul the note of 11 October 2005, No. 10654 of the European Commission, Directorate-General Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands, concerning payments by the European Commission different from the amount requested (Ref. Programma DOCUP Piemonte, No CCI 2000 IT 16 2 DO 007);

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are those raised in Case T-345/04 Italian Republic v Commission (1).

      (1)  OJ C 262 of 23. 10. 2004, p. 55.


title: Order of the President of the Court of First Instance of 15 July 1999 in Case T-167/99 R: Carla Giulietti v Commission of the European Communities (Proceedings for interim relief - Officials)

text:
C 281/16               EN                     Official Journal of the European Communities                                     2.10.1999
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                             Boigelot, of the Brussels Bar, with an address for service in
                           INSTANCE                                      Luxembourg at the Chambers of Louis Schiltz, 2 Rue du Fort
                                                                         Rheinsheim, v European Parliament (Agents: Hannu von
                        of 30 June 1999                                  Hertzen and João Sant’Anna) — application for suspension of
                                                                         operation of the recruitment procedure commenced by vacan-
                                                                         cy notice No 8675 of 14 April 1999 — the President of the
in Case T-70/99 R: Alpharma Inc. v Council of the                        Court of First Instance made an order on 1 July 1999, the
                        European Union                                   operative part of which is as follows:
(Proceedings for interim relief — Suspension of operation of
Regulation (EC) No 2821/98 — Withdrawal of bacitracin                    1. The application for interim measures is dismissed;
zinc from the list of authorised additives — Directive
      70/524/EEC — Urgency — Balancing of interests)                     2. The costs are reserved.
                        (1999/C 281/31)
                  (Language of the case: English)
In Case T-70/99 R: Alpharma Inc., established at Fort Lee
(United States of America), represented by Gavin Robert,
Solicitor, and Bernard van de Walle de Ghelcke, of the Brussels
Bar, with an address for service in Luxembourg at the
Chambers of Freddy Brausch, 11 Rue Goethe, v Council of the              ORDER OF THE PRESIDENT OF THE COURT OF FIRST
European Union (Agents: John Carbery, Moyra Sims and                                                INSTANCE
Jorge Monteiro), supported by Commission of the European
Communities (Agents: Peter Oliver, Theofanis Christoforou
and Francesco Ruggeri Laderchi), Republic of Finland (Agents:                                     of 15 July 1999
Holger Rotkirch and Tuula Pynnä) and Kingdom of Sweden
(Agent: Anders Kruse) — application for suspension of the
operation of Council Regulation (EC) No 2821/98 of                       in Case T-167/99 R: Carla Giulietti v Commission of the
17 December 1998 amending, as regards withdrawal of the                                      European Communities
authorisation of certain antibiotics, Directive 70/524/EEC
concerning additives in feedingstuffs (OJ 1998 L 351, p. 4) or
for other interim measures — the President of the Court of                         (Proceedings for interim relief — Officials)
First Instance made an order on 30 June 1999, the operative
part of which is as follows:
                                                                                (1999/C 281/33)
1. The application for interim measures is dismissed.
2. The costs are reserved.
                                                                                (Language of the case: French)
                                                                         In Case T-167/99 R: Carla Giulietti, residing in Brussels,
                                                                         represented by Georges Vandersanden and Laure Levi, of the
                                                                         Brussels Bar, with an address for service in Luxembourg at the
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                             offices of Fiduciaire Myson SARL, 30 Rue de Cessange, v
                           INSTANCE                                      Commission of the European Communities (Agents: Gianluigi
                                                                         Valsesia and Julian Currall) — application for suspension,
                                                                         first, of the decision of the selection board in competition
                           of July 1999                                  COM/A/10/98 to exclude the applicant from the tests sub-
                                                                         sequent to the pre-selection tests and, second, of all of the
in Case T-111/99 R: Ignacio Samper v European Parlia-                    steps taken and acts done subsequently in the procedure
                               ment                                      relating to that competition — the President of the Court of
                                                                         First Instance made an order on 15 July 1999, the operative
(Officials — Procedure for interim relief — Urgency —                    part of which is as follows:
                               None)
                                                                         1. The application for interim measures is dismissed;
                        (1999/C 281/32)
                                                                         2. The costs are reserved.
                   (Language of the case: French)
In Case T-111/99 R: Ignacio Samper, an official of the
European Parliament, residing in Madrid, represented by Eric


title: Case C-213/13: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2013 — Impresa Pizzarotti & C. SpA v Comune di Bari

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/11

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 23 April 2013 — Impresa Pizzarotti & C. SpA v Comune di Bari
   (Case C-213/13)
   2013/C 207/20
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Impresa Pizzarotti & C. SpA

      Defendant: Comune di Bari

      Questions referred

               1.

               Is a contract to be concluded for the lease of something in the future — even in the form, suggested most recently, of an undertaking to lease — equivalent to a public works contract, albeit with certain characteristics of a lease contract, with the result that such a contract cannot be included among the contracts which are excluded, under Article 16 of Directive 2004/18/EC, (1) from the scope of the rules on public procedures?

               2.

               If the answer to Question 1 is in the affirmative, may a national court — specifically, this referring court — hold that the ruling made regarding the events under consideration … is ineffective in that it has enabled a situation which is contrary to Community law on public procurement to persist and, therefore, is it possible to enforce a final judgment which is contrary to Community law?

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).


title: Judgment of the Court of First Instance of 28 April 1999 in Case T-221/95: Endemol Entertainment Holding BV v Commission of the European Communities (Competition - Regulation (EEC) No 4064/89 - Decision declaring a concentration incompatible with the common market - Article 22 of Regulation No 4064/89 - Rights of the defence - Access to the file - Dominant position)

text:
C 265/6                   EN                    Official Journal of the European Communities                                        18.9.1999
                                                          COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 3 June 1999
                           of 28 April 1999
                                                                           in Case T-17/96: Télévision Française 1 SA (TF1) v
                                                                                Commission of the European Communities (1)
in Case T-221/95: Endemol Entertainment Holding BV v
         Commission of the European Communities (1)
                                                                           (State aid — Public television broadcasting — Complaint —
                                                                           Action for failure to act — Commission’s obligation to carry
                                                                           out an investigation — Time-limits — Procedure under
(Competition — Regulation (EEC) No 4064/89 — Decision
                                                                           Article 88(2) EC (ex Article 93(2)) — Serious difficulties —
declaring a concentration incompatible with the common
                                                                           Article 81 EC (ex Article 85) — Service of formal notice —
market — Article 22 of Regulation No 4064/89 — Rights
                                                                           Adoption of a position — Article 86 EC (ex Article 90) —
  of the defence — Access to the file — Dominant position)
                                                                                Whether admissible)
                           (1999/C 265/09)                                                           (1999/C 265/10)
                                                                                (Language of the case: French)
                     (Language of the case: English)
                                                                           In Case T-17/96: Télévision Française 1 SA (TF1), whose
                                                                           registered office is in Paris represented by Georges Vandersan-
In Case T-221/95: Endemol Entertainment Holding BV, estab-                 den, Jean-Paul Hordies and Agnès Maqua, of the Brussels Bar,
lished in Zevenend, Netherlands, represented by Onno                       with an address for service in Luxembourg at the offices of
W. Brouver and Peter Wytinck, of the Brussels Bar, and Martijn             Fiduciaire Myson SARL, 30 Rue de Cessange v Commission of
van Empel, of the Amsterdam Bar, with an address for service               the European Communities (Agents: Gérard Rozet and Klaus
in Luxembourg at the Chambers of Jacques Loesch, 11 Rue                    Wiedner), supported by the French Republic (Agents Catherine
Goethe, v Commission of the European Communities (Agent:                   de Salins, Philippe Martinet and Frédérik Million) — application
Wouter Wils) — application for the annulment of Commission                 under Article 232 EC (ex Article 175) for a declaration that
Decision 96/346/EC of 20 September 1995 relating to a                      the Commission failed to fulfil its obligations under the Treaty
proceeding pursuant to Council Regulation (EEC) No 4064/89                 by not adopting a position on the complaint submitted by
(IV/M.553-RTL/Veronica/Endemol) (0J 1996 L 134, p. 32),                    the applicant against the French Republic concerning the
which declared the agreement creating the joint venture                    compatibility of the methods of financing the public television
Holland Media Groep to be incompatible with the common                     broadcasting channels, France 2 and France 3 (France Télé-
market — the Court of First Instance (Fourth Chamber,                      vision) with Articles 81 EC (ex Article 85), 86(1) EC (ex
Extended Composition), composed of: P. Lindh, President,                   Article 90(1)) and 92 of the EC Treaty (now, after amendment,
R. Garcia-Valdecasas, K. Lenaerts, J.D. Cooke and M. Jaeger,               Article 87 EC), and, in the alternative, an application under
Judges; H. Jung, Registrar, has given a judgment on 28 April               Article 173 of the EC Treaty (now, after amendment,
1999, in which it:                                                         Article 230 EC) for annulment of the purported decision
                                                                           rejecting the applicant’s complaint, set out in a letter from the
                                                                           Commission of 11 December 1995 — the Court of First
                                                                           Instance (Third Chamber, Extended Composition), composed
1. Dismisses the application.
                                                                           of M. Jaeger, President, K. Lenaerts V. Tiili, J. Azizi and P. Men-
                                                                           gozzi, Judges; H. Jung, Registrar, gave a judgment on 3 Juni
                                                                           1999, the operative part of which is as follows:
2. Orders the applicant to bear, in addition to its own costs, one
     fifth of the costs incurred by the defendant until the withdrawal
     of the parties on 7 October 1996 together with all of those           1. The Commission has failed to fulfil its obligations under the EC
     incurred subsequently.                                                     Treaty by not adopting a decision on the complaint lodged by
                                                                                Télévision Française 1 SA on 10 March 1993 concerning State
                                                                                aid.
(1) OJ C 64 of 2.3.1996.                                                   2. There is no need to adjudicate on the allegation that the
                                                                                Commission failed unduly to act under Articles 81 EC (ex
                                                                                Article 85) and 86 EC (ex Article 90).
                                                                           3. The action is inadmissible in so far as it is directed against the
                                                                                Commission’s failure to act under Article 82 EC (ex Article 86).


title: Case C-338/09: Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien — Austria) — Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien (Freedom to provide services — Freedom of establishment — Competition rules — Cabotage transport operations — National transportation of persons by bus service — Application to operate a service — Licence — Authorisation — Conditions — Requirement of a seat or permanent establishment in the national territory — Reduction of income compromising the profitability of a service already licensed)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/7

         Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien — Austria) — Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien
   (Case C-338/09) (1)

   (Freedom to provide services - Freedom of establishment - Competition rules - Cabotage transport operations - National transportation of persons by bus service - Application to operate a service - Licence - Authorisation - Conditions - Requirement of a seat or permanent establishment in the national territory - Reduction of income compromising the profitability of a service already licensed)
   2011/C 63/12
   Language of the case: German

      Referring court

   Unabhängiger Verwaltungssenat Wien

      Parties to the main proceedings

      Applicant: Yellow Cab Verkehrsbetriebs GmbH

      Defendant: Landeshauptmann von Wien

      Re:

   Reference for a preliminary ruling — Unabhängiger Verwaltungssenat Wien — Interpretation of Articles 49 et seq. EC and Article 81 et seq. EC — Legislation of a Member State subjecting the grant of a licence to operate a public transport service to the double condition that the applicant for that licence be established in that Member State and that the new service does not undermine the profitability of a similar existing transport service

      Operative part of the judgment

               1.

               Article 49 TFEU must be interpreted as opposing the legislation of a Member State, such as that at issue in the main proceedings, which, for the purposes of the grant of authorisation to operate a public urban bus service, where fixed stopping points are called at regularly in accordance with a timetable, requires applicant economic operators established in another Member State to hold a seat or another establishment in the territory of the host Member State even before being authorised to operate that service. By contrast, Article 49 TFEU must be interpreted as not precluding national legislation which provides for an establishment requirement where such a requirement does not apply until after that authorisation has been granted and before the applicant commences operation of that service.

               2.

               Article 49 TFEU must be interpreted as opposing national legislation which provides for the refusal of the grant of authorisation to operate a tourist bus service as a result of the reduced profitability of a competing undertaking which has been authorised to operate a service which is partially or entirely identical to the one applied for, on the sole basis of the statements of that competing undertaking.

      (1)  OJ C 282, 21.11.2009.


title: Case C-121/03: Action brought on 19 March 2003 by the Commission of the European Communities against the Kingdom of Spain

text:
C 135/10               EN                        Official Journal of the European Union                                             7.6.2003
The applicant claims that the Court should:                                     adjusted according to the evolution of the various
                                                                                elements. The completion of the transitional period
                                                                                provided for in the Act of Accession of Spain and,
—     annul Regulation (EC) No 2341/2002 ( 1) of 20 December                    consequently, Spain’s full integration in the Common
      2002 fixing for 2003 the fishing opportunities and                        Fisheries Policy, require that this allocation key be
      associated conditions for certain fish stocks and groups                  adjusted in so far as it refers to catches in the Community
      of fish stocks, applicable in Community waters and, for                   waters of the North Sea, and that Spanish vessels be
      Community vessels, in waters where catch limitations are                  allowed a percentage of the quotas distributed before
      required, in so far as it does not allocate to Spain quotas               Spain’s accession, account being taken of the criteria of
      in proportion to the fishing opportunities in North Sea                   the 1983 allocation key, namely historical fishing activi-
      waters allocated before its Accession;                                    ties (as the Spanish fleet engaged in significant fishing
                                                                                activities in those waters which were stopped by the
                                                                                transitional prohibition on access contained in the Act of
—     order the Council to pay the costs.                                       Accession), the loss of fishing opportunities in the waters
                                                                                of non-member countries and the special activities of
                                                                                zones especially dependent on fisheries and related
                                                                                activities.
                                                                                In connection with this last criterion for setting the
                                                                                allocation key, account must be taken of the fact that, in
Pleas in law and main arguments
                                                                                accordance with recitals 16, 17 and 18 of the Preamble
                                                                                to Regulation 2371/2002 (2), the concept of relative
                                                                                stability must be extended, account being taken, inter
—     Infringement of the principle of non-discrimination: with
                                                                                alia, of the ‘dependence of certain coastal communities
      the completion of the transitional period on 31 December
                                                                                on fishing’ and the ‘particular needs of regions where
      2002, the situation of Spanish fishermen is the same as
                                                                                local populations are especially dependent on fisheries
      that of fishermen of the rest of the Member States and
                                                                                and related activities as decided by the Council in its
      they must enjoy equal access to waters and resources.
                                                                                Resolution of 3 November 1976’; this means that when
      Although before 2003 Spain could not rely on the fishing
                                                                                allocating quotas, in accordance with the principle of
      activities which Spanish vessels carried out in the waters
                                                                                relative stability, it is necessary only to take into account
      of the North Sea during the reference period 1973-1978,
                                                                                the regions whose local populations are at that time
      as the exceptional rules laid down in the Act of Accession
                                                                                especially dependent on fisheries and related activities,
      applied, those activities must now be taken into consider-
                                                                                but that, owing to developments in the socio-economic
      ation for the purpose of adjusting the allocation key,
                                                                                situation of the Member States, that dependence has now
      since only in this way will the system not be contrary to
                                                                                disappeared.
      the principle of non-discrimination. Thus the fishermen
      of each Member State would be obliged to endeavour to
      limit catches in proportion to what they caught before
      the entry into force of the Community system of conser-            (1 ) OJ L 356, 31.12.2002, p. 12.
      vation of resources.                                               (2 ) Council Regulation of 20 December 2002 on the conservation
                                                                              and sustainable exploitation of fisheries resources under the
                                                                              Common Fisheries Policy, OJ L 358, 31.12.2002, p. 59.
—     Infringement of the Act of Accession of Spain: upon
      completion of the transitional period, Spain is fully
      integrated into the Common Fisheries Policy, so that a
      new allocation key for the resources of the North Sea is
      required, based on the criteria used in 1983: historical
      catches, loss of fishing opportunities in the fishing
      grounds of non-member countries and the concept of
      zones dependent on fisheries. The failure to allocate to
      Spain in the contested regulation a share of the quotas in
      the Community waters of the North Sea allocated before             Action brought on 19 March 2003 by the Commission of
      its accession has the effect of extending the transitional         the European Communities against the Kingdom of Spain
      period beyond that provided for in the Act and of
      infringing the provisions thereof.
                                                                                (Case C-121/03)
—     Infringement of the principle of relative stability: The
      principle of relative stability is something distinct from                                     (2003/C 135/15)
      the allocation key fixed by the Council in 1983 in order
      to apply that principle. The principle of relative stability
      is of general scope and applies to the allocation in
      national quotas of all catch opportunities subject to a
      TAC available to the Community, while the allocation               An action against the Kingdom of Spain was brought before
      balance established in the 1983 allocation key may be              the Court of Justice of the European Communities on 19 March
 ---pagebreak--- 7.6.2003                EN                        Official Journal of the European Union                                           C 135/11
2003 by the Commission of the European Communities,                            handling of waste from pig farms (particularly animal
represented by Gregorio Valero Jordana, of its Legal Service,                  carcasses and slurry) is subject to that directive since there
acting as Agent, with an address for service in Luxembourg.                    is no specific Community legislation to cover all aspects
                                                                               relating to the handling of such waste.
The applicant claims that the Court should:
                                                                               Pollution of waters in the Baix Ter catchment area caused
                                                                               by the increasing volume of slurry generated by the pig
—     Declare that
                                                                               farms in that area constitutes a result contrary to the
                                                                               requirements of Article 4 of Directive 75/442/EEC and is
                                                                               thus a clear infringement of that provision. The Spanish
      (a)   by failing to adopt the measures necessary to comply
            with Articles 4, 9 and 13 of Council Directive 75/                 authorities themselves in their documents have acknowl-
            442/EEC ( 1), amended by Directive 91/156/EEC ( 2),                edged such pollution, which may also be ascertained
                                                                               from the results of analyses provided by the Spanish
            inasmuch as it failed to take the necessary measures
            to ensure that waste from the pig farms located in                 authorities to the Commission.
            the Baix Ter area, Gerona, is recovered or disposed
            of without endangering human health and without
            harming the environment and in so far as the farms
            were not covered by the permit required under the                  On 26 September 2001, the date on which expired
            directive and by failing to carry out the requisite                the period prescribed by the reasoned opinion for the
            regular checks in respect of such installations;                   Kingdom of Spain to comply, many of the pig farms
                                                                               operating in the Baix Ter area were not covered by the
                                                                               permit required under Article 9 of Directive 75/442/EEC.
      (b) by failing to carry out an impact assessment prior to
            the construction or modification of the project,
            contrary to the requirements of Articles 2 and 4(2)
            of Council Directive 85/337/EEC (3), either in its
            original wording or as amended by Directive 97/11/                 The Spanish authorities have not been able to provide
            EC (4);                                                            evidence of the appropriate periodic inspections having
                                                                               taken place in all (over 220, according to the list of pig
                                                                               farms transmitted by document of 3 December 2001) or
      (c)   by failing to carry out the requisite hydrogeological              most of the existing installations, as provided for in
            studies in the area affected by pollution, in relation             Article 13 of Directive 75/442/EEC. So far as concerns
            to the pig farms which are the subject of these                    the pig farms which are the subject of the present case,
            proceedings, contrary to Articles 3(b), 5(1) and 7 of              Spain has failed to fulfil its obligations under Articles 2
            Council Directive 80/68/EEC (5);                                   and 4(2) of Directive 85/337/EEC, both in the original
                                                                               wording and as amended by Directive 97/11/EEC. The
                                                                               Spanish authorities themselves acknowledge, essentially
      (d) by exceeding, on various public water distribution                   in their reply to the reasoned opinion, that the pig farms
            networks in the Baix Ter area, the maximum admiss-                 with which these proceedings are concerned have not
            ible concentration for the nitrate parameters laid                 been the subject of an impact assessment prior to their
            down in Annex I(c)(20) to Directive 80/778/EEC (6),                construction or expansion.
            contrary to Article 7(6) of that directive;
      the Kingdom of Spain has failed to fulfil its obligations
      under the abovementioned directives; and                                 The argument put forward by the Spanish authorities that
                                                                               Directive 80/68/EEC has not been infringed ‘since all pig
                                                                               farms are subject to an administrative procedure aimed
—     Order the Kingdom of Spain to pay the costs.                             at ensuring that such farms are handling correctly the
                                                                               waste they produce and not affecting groundwater’ does
                                                                               not prove that the necessary hydrogeological studies have
                                                                               been carried out. Furthermore, on the final date of the
                                                                               period prescribed for Spain to comply, many of the pig
                                                                               farms in the Baix Ter area had still not been subjected to
                                                                               the abovementioned administrative procedure.
Pleas in law and main arguments
—     Infringements (a) to (c) relate to the construction, exten-
      sion and running of a large number of intensive pig farms
      situated in the area of Baix Ter, Gerona. Although
      the Spanish authorities claim that agricultural waste is            —    According to the information provided by the complain-
      excluded from the scope of Directive 75/442/EEC, the                     ant and to the replies and reports forwarded by the
 ---pagebreak--- C 135/12                EN                           Official Journal of the European Union                                         7.6.2003
       Spanish authorities to the Commission, it is clear that               Reference for a preliminary ruling by the Tribunale
       various municipalities in the Baix Ter area have exceeded             Ordinario di Torino — Sezione del giudice per le indagini
       on several occasions the maximum nitrate parameters                   preliminari by order of that Court of 25 February 2003 in
       laid down in Directive 80/778/EEC, in some cases                      the criminal proceedings against Alessandro Nizza and
       reaching extremely elevated concentrations.                                                    Giacomo Pizzi
( 1) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975
                                                                                (Case C-133/03)
     L 194, p. 39).
( 2) Council Directive 91/156/EEC of 18 March 1991 amending
     Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).
( 3) Council Directive 85/337/EEC of 27 June 1985 on the assessment                                  (2003/C 135/17)
     of the effects of certain public and private projects on the
     environment (OJ 1985 L 175, p. 40).
( 4) Directive 97/11/EC of 3 March 1997 amending Directive 85/337/
     EEC on the assessment of the effects of certain public and private
     projects on the environment (OJ 1997 L 73, p. 5).
( 5) Council Directive 80/68/EEC of 17 December 1979 on the                  Reference has been made to the Court of Justice of the
     protection of groundwater against pollution caused by certain           European Communities by order of the Tribunale Ordinario di
     dangerous substances (OJ 1980 L 20, p. 43).
                                                                             Torino — Sezione del giudice per le indagini preliminari
( 6) Council Directive 80/778/EEC of 15 July 1980 relating to the
     quality of water intended for human consumption (OJ 1980                (Turin District Court, Chamber of the Investigating Judge) of
     L 229, p. 11).                                                          25 February 2003, received at the Court Registry on 25 March
                                                                             2003, for a preliminary ruling in the criminal proceedings
                                                                             against Alessandro Nizza and Giacomo Pizzi on the following
                                                                             questions:
                                                                             1.   May Article 6 of Directive 68/151/EEC (1) be interpreted
                                                                                as imposing an obligation upon the Member States to
                                                                                establish appropriate penalties not only for failure on the
Reference for a preliminary ruling by the Consiglio di                            part of commercial companies to publish their balance
Stato, Sezione Quarta by decision and order of that Court                         sheet and profit and loss statement but also for publishing
of 28 January 2003 in the case of Ministry of Health                              inaccurate versions of those statements or of other
against Codacons and Federconsumatori, and concerning                             company information addressed to shareholders or the
                      Lega delle Cooperative                                      public or of any other information concerning their
                                                                                economic, asset or financial position which they are
                                                                                required to provide and which concern the company
                           (Case C-132/03)
                                                                                itself or the group of companies to which it belongs?
                           (2003/C 135/16)
                                                                             2.   With reference to the obligation upon each Member State
                                                                                to adopt ‘appropriate penalties’ for the infringements
                                                                                provided for in the First Directive 68/151/EEC and the
                                                                                Fourth Directive 78/660/EEC ( 2), must those directives
Reference has been made to the Court of Justice of the                            and, in particular, the combined provisions of
European Communities by decision and order of the Consiglio                       Article 44(2)(g) of the Treaty Establishing the European
di Stato, Sezione Quarta (Council of State, Fourth Chamber) of                    Community, Article 2(1)(f) and Article 6 of the First
28 January 2003, received at the Court Registry on 25 March                       Directive and Article 2(2), (3) and (4) of the Fourth
2003, for a preliminary ruling in the case of Ministry of Health                  Directive, as amended by Directive 83/349/EEC ( 3) and
against Codacons and Federconsumatori, and concerning Lega                        Directive 90/605/EEC ( 4), be interpreted as precluding the
delle Cooperative on the following question:                                      legislation of a Member State under which no penalty
                                                                                may be imposed for breach of the duty to publish true
Must Article 2(2)(b) of Regulation (EC) No 1139/98 ( 1), as                       and fair company documents and which lays down a
amended by Article 1 of Regulation (EC) No 49/2000 ( 2), apply                    system of penalties which are not responsive to the
also to baby foods for infants and for young children of up to                    criteria of effectiveness, proportionality and deterrent
three years of age, and, more specifically, in relation to such                   effect?
products, must the adventitious contamination by material
derived from genetically modified organisms in a proportion
                                                                             3.   Must the directives mentioned, and in particular the
of no more than 1 % be indicated on the labelling?                                provisions of Article 44(2)(g) of the Treaty Establishing
                                                                                the European Community, Article 2(1)(f) and Article 6 of
                                                                                the First Directive and Article 2 (2), (3) and (4) of the
( 1) OJ L 159 of 03.06.1998, p. 4.
                                                                                Fourth Directive, as amended by Directive 83/349/EEC
( 2) OJ L 6 of 11.01.2000, p. 13.
                                                                                and Directive 90/605/EEC, be interpreted as precluding
                                                                                the legislation of a Member State under which, in the case
                                                                                of breach of the duty to publish true and fair company


               22.1.2005

               EN

               Official Journal of the European Union

               C 19/16

         Removal from the register of Case C-177/02 (1)

   (2005/C 19/32)

      (Language of the case: Italian)

   By order of 19 October 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-177/02 (reference for a preliminary ruling from the Corte Suprema di cassazione): Agenzia per le Erogazioni in Agricoltura – AGEA v Azienda Agricola Fava Allessandro e Delledonne Carla.

      (1)  OJ C 156 of 29.6.2002.


title: Case C-515/07: Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 22 November 2007 — Vereniging Noordelijke Land- en Tuinbouw Organisatie v Staatssecretaris van Financiën

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/33

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden lodged on 22 November 2007 — Vereniging Noordelijke Land- en Tuinbouw Organisatie v Staatssecretaris van Financiën
   (Case C-515/07)
   (2008/C 22/60)
   Language of the case: Dutch
   Referring court
   Hoge Raad der Nederlanden
   Parties to the main proceedings

      Appellant: Vereniging Noordelijke Land- en Tuinbouw Organisatie

      Respondent: Staatssecretaris van Financiën
   Questions referred

               1.

               Are Articles 6(2) and 17(1), (2) and (6) of the Sixth VAT Directive (1) to be interpreted as permitting a taxable person to allocate wholly to his business not only capital goods but all goods and services used both for business purposes and for purposes other than business purposes and to deduct immediately and in full the VAT due on the acquisition of those goods and services?

               2.

               If the answer to Question 1 is affirmative, does the application of Article 6(2) of the Sixth Directive to services and goods other than capital goods mean that VAT is collected once during the tax period over which the deduction in respect of those services and goods is enjoyed, or must collection also occur in ensuing periods and, if so, how is the taxable amount to be determined in respect of goods and services which the taxable person does not write off?

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


title: Case T-369/10: Action brought on 2 September 2010 — Handicare v OHIM — Apple Corps (BEATLE)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/35

         Action brought on 2 September 2010 — Handicare v OHIM — Apple Corps (BEATLE)
   (Case T-369/10)
   ()
   2010/C 301/59
   Language in which the application was lodged: English

      Parties

      Applicant: Handicare Holding BV (Helmond, The Netherlands) (represented by: G. van Roeyen, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Apple Corps Ltd (London, United Kingdom)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 May 2010 in case R 1276/2009-2; and

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘BEATLE’, for goods in class 12

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited: United Kingdom trade mark registration No 1341242 of the figurative marks ‘BEATLES’ and ‘THE BEATLES’, for goods in class 9; Spanish trade mark registration No 1737191 of the figurative mark ‘BEATLES’, for goods in class 9; German trade mark registrations No 1148166 and No 2072741 of the figurative marks ‘BEATLES’, for goods in class 9; Portuguese trade mark registration No 312175 of the figurative mark ‘BEATLES’, for goods in class 9; French trade mark registration No 1584857 of the figurative mark ‘BEATLES’, for goods in class 9; Italian trade mark registration No 839105 of the figurative mark ‘BEATLES’, for goods in class 9; Community trade mark registration No 219048 of the word mark ‘BEATLES’, for goods in classes 6, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 34, and 41; Community trade mark registration No 219014 of the figurative mark ‘BEATLES’, for goods in classes 6, 9, 14, 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 34, and 41

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Upheld the appeal and annulled the decision of the Opposition Division

      Pleas in law: Infringement of Articles 8(1)(b) and 8(4) of Council Regulation No 207/2009, as the Board of Appeal failed to reject the opposition on these grounds notwithstanding that it established that there is not any real similarity between the concerned products; infringement of Article 8(5) of Council Regulation No 207/2009, as the Board of Appeal erroneously concluded that the conditions for the application of this Article were fulfilled.


title: Action brought on 14 April 1997 by Kneissl Dachstein Sportartikel AG against the Commission of the European Communities (Case T-110/97)

text:
No C 199/26            EN                 Official Journal of the European Communities                                    28 . 6 . 97
by Molkerei Großbraunshain GmbH, whose registered                    In this action, the applicants challenge the entry
office is at Harta bei Altenburg, Thüringen ( Germany),              of the designation 'Altenburger Ziegenkäse ', with an
and Bene Nahrungsmittel GmbH, whose registered office                excessively widely-drawn geographical area pursuant to
is at Lumpzig bei Altenburg, Thüringen ( Germany ),                  the notification given by the Federal Republic of Germany,
represented by Michael Loschelder, Rechtsanwalt,                     in the register of designations which are protected
Cologne, with an address for service in Luxembourg at the            designations of origin under Article 17 of Regulation
Chambers of Marc Loesch, 11 Rue Goethe .                             ( EEC ) No 2081/92 . Such registration would lead to
                                                                     undertakings not established in the Altenburg Land being
The applicants claim that the Court should :                         able to use that designation for their products, thereby
                                                                     causing continual damage to the applicants such as to
— annul Commission Regulation ( EC ) No 123/97 of                    threaten their existence . Through the use of the simplified
     23 January 1997 supplementing the Annex to                      procedure under Article 17 of Regulation ( EEC ) No 2081 /
     Commission Regulation ( EC ) No 1107/96 on the                  92 , which the applicants maintain was an erroneous
     registration of geographical indications and                    choice in both substantive and procedural law, the
     designations of origin under the procedure laid down            applicants were unlawfully deprived of their right to a
     in Article 17 of Regulation ( EEC ) No 2081 /92 in so           proper hearing. They were also unlawfully discriminated
     far as, in respect of the product 'Altenburger                  against, since the facts in this case reveal similar treatment
     Ziegenkäse ( PDO )' referred to in Part A of the Annex          being unjustifiably given to dissimilar situations and also a
     to the regulation, the notification by the Federal              misleading of consumers incompatible with Article 2 ( 1 )
     Republic of Germany of 26 January 1994, as                      ( a ) of Directive ( EEC ) No 79/ 112 .
     supplemented on 7 August 1 996 , includes in the
     designation of the relevant geographical area under
     para . 5 (c ) of such notification the Landkreise ( rural       The applicants maintain that the question at issue is not
     districts ) of Gera, Zeitz, Geithain, Grimma, Wurzen,           whether the designation ' Altenburger Ziegenkäse ' had
     Borna and the City of Gera ( or, to use the                     become ' normal' for the competition 'through use', since
     nomenclature arising from the redrawing of                      that designation was not registered under the trade mark
     boundaries and renaming of districts pursuant to                law of the former German Democratic Republic.
     administrative reforms in the relevant Bundesländer of           Regulation ( EEC ) No 2081 /92 protected only designations
     Thüringen, Sachsen and Sachsen-Anhalt, in so far as              or statements of geographical origin and not trademarks
     it includes the Landkreise Greiz and Muldentalkreis,             or generic names .
     parts of the Kreise Leipziger Land and Burgenlandkreis
     and the City of Gera );
                                                                      Finally, the applicants argue that the adoption of
     or, in the alternative                                           Regulation ( EC ) No 123/97 constitutes a misuse of powers
                                                                      by the Commission, since, by simply adopting the
     annul Commission Regulation ( EC ) No 123/97 of                  notification by the Federal Republic of Germany, the
     23 January 1997 supplementing the Annex to                       Commission thereby adopted the extraneous consideration
     Commission Regulation ( EC ) No 1107/96 on the                   in that notification, allowing an undertaking outside the
     registration     of geographical       indications    and        area to use the designation. The decision was also legally
     designations of origin under the procedure laid down             erroneous since the Commission clearly made no use of its
     in Article 17 of Regulation ( EEC ) No 2081 /92 in so            discretion provided for in Article 15 of Regulation ( EEC )
                                                                      No 2081 /92 .
      far as the product 'Altenburger Ziegenkäse ( PDO )' is
      named in Part A of the Annex to the regulation, with
     the proviso that, until such time as the register is
      altered pursuant to an application by the Federal
      Republic of Germany to alter the designation on
      account of a fresh delimination of the geographical
      area, the description of the geographical area in the
      notification by the Federal Republic of Germany of              Action brought on 14 April 1997 by Kneissl Dachstein
      26 January 1994, as supplemented on 7 August 1996,              Sportartikel AG against the Commission of the European
      is to be retained in relation to the Landkreise of                                         Communities
      Altenburg and Schmolln ( or, under the new
                                                                                Case T-l 10/97 )
      nomenclature, in relation to the Landkreis Altenburger
      Land ) and in relation to the description of the product                                  ( 97/C 199/72 )
      in other respects,
 — order the Commission to pay the costs.                                             (Language of the case: German)
 Pleas in law and main arguments adduced in support:
                                                                       An action against the Commission of the European
 Großbraunshain GmbH is the only undertaking in the                    Communities was brought before the Court of First
 Altenburger Land region which produces 'Altenburger                   Instance of the European Communities on 14 April 1997
 Ziegenkäse' ( Altenburg goats' cheese ) on an industrial              by Kneissl Dachstein Sportartikel AG, whose registered
 basis . Bene Nahrungsmittel GmbH holds all the shares in              office is at Molln, Austria, represented by Georg Diwok,
 Großbraunshain GmbH .                                                 Rechtsanwalt, Vienna .
 ---pagebreak--- 28 . 6 . 97               EN                Official Journal of the European Communities                                No C 199/27
The applicant claims that the Court should :                           with the wording of the Treaty, rescue aids are
                                                                       incompatible with the common market.
— annul Commission Decision 97/8 1/EC of 30 July
     1996 ,                                                            The applicant further maintains that the Commission has
                                                                       misused its powers, since no sufficient reduction in
                                                                       capacity was required and the inadequate restructuring
                                                                       programme was being financed de facto by means of the
— order the Commission to pay the costs .
                                                                       aid. A private shareholder as seller would have required
                                                                       the purchaser to assume a significantly greater degree of
                                                                       risk and a significantly higher degree of performance on
Pleas in law and main arguments adduced in support:                    the purchaser's part.
In     the   contested        decision ('), subsidies   of   OS        Finally, the applicant argues that none of the conditions
1 590 000 000 ( ECU 118 000 000 ) in the form of capital               for exemption under Article 92 ( 3 ) (c ) of the EC Treaty
injections from the wholly state-owned company Austria                 have been fulfilled . The aid to HTM facilitates the
Tabakwerke ('AT') to the Austrian company Head Tyrolia                 development not of an economic activity but only of a
Mares ('HTM ') were described as State aid within the                  single undertaking; there is no question of facilitating the
meaning of Article 92 ( 1 ) of the EC Treaty, and yet                  development of a certain economic area, since HTM 's
regarded as compatible with the common market within                   production sites are located in various regions, and the
the meaning of Article 92 ( 3 ) ( c ), subject to the fulfilment       necessary common interest is lacking.
of certain requirements by the Austrian Government.
                                                                       (') OJ No L 25 , 28 . 1 . 1997, p . 26 .
                                                                       ( 2 ) OJ No C 368 , 23 . 12 . 1994 , p . 12 .
The applicant, which is one of HTM's fiercest
competitors, argues that the subsidy leads to an unjustified
improvement in HTM's position, distorts competition, and
is incompatible which the common market for violation of
Article 92 ( 3 ) ( c ) of the EC Treaty.
                                                                       Action brought on 14 April 1997 by Monsanto Company
Its first argument is that the Commission has infringed its                 against the Commission of the European Communities
own Guidelines on State Aid for Rescuing and                                                     ( Case T-l 12/97)
Restructuring Firms in Difficulty ( 2 ), in that it:
                                                                                ( 97/C 199/73 )
— ignored a shareholder contribution which should be
     regarded as a subsidy and other payments made by AT                                (Language of the case: English)
     to HTM as early as 1993 (which could in themselves
     also be regarded as an existing aid scheme for the
     purposes of Article 93 of the EC Treaty ), even though            An action against the Commission of the European
     the combined amount of the aids thereby exceeded the              Communities was brought before the Court of First
     bounds of what was appropriate . Furthermore, those               Instance of the European Communities on 14 April 1997
     payments infringed both the GATT and the free trade               by Monsanto Company, represented by Clive Stanbrook
     agreement between the EEC and Austria in force at                 QC, of the Inner Temple, and Dr. Robert MacLean ,
     the time,                                                         Scotland, both of Stanbook and Hooper, Brussels, with an
                                                                       address for service in Luxembourg at the offices of Arsene
                                                                       Kronshagen, Rue Marie-Adelaide 22, Luxembourg.
— tolerated the bringing forward of losses for tax
     purposes into 1994, despite receipt of the aid in 1993 ,
                                                                       The applicant claims that the Court should:
— wrongly assumed that the insolvency of HTM would
     contribute to the formation of a narrow oligopoly,                — annul the Commission Decision of 14 January 1997
                                                                              concerning a definition of a position, in accordance
                                                                              with Article 175 of the EC Treaty, on the referral of
                                                                              the applicant's application to the Committee for
— failed sufficiently to consider the question of an                          Adaptation to Technical Progress and on the inclusion
     appropriate minimum rate of interest.                                    of bovine somatotrophin in Annex II to Council
                                                                              Regulation ( EEC ) No 2377/90, and
Furthermore, the above guidelines themselves infringed
Article 92 ( 3 ) ( c ) of the EC Treaty, since, in accordance          — order the Commission to pay the costs .