title: Case T-256/08: Action brought on 24 June 2008 — Wrigley v OHIM — Mejerigaarden (POLAR ICE)

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/66

         Action brought on 24 June 2008 — Wrigley v OHIM — Mejerigaarden (POLAR ICE)
   (Case T-256/08)
   (2008/C 209/116)
   Language in which the application was lodged: English
   Parties

      Applicant: Wm. Wrigley Jr. Company (Chicago, United States) (represented by: M. Kinkeldey, S. Schäffler and A. Bognár, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Mejerigaarden Holding A/S (Thisted, Denmark)
   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 15 April 2008 in case R 845/2006-2; and

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘POLAR ICE’ for goods in classes 3, 5 and 30

      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: Community trade mark registration No 1 273 564 of the figurative mark ‘Polar is’ for goods in class 30; Danish trade mark registration No VR 1971 03528 of the word mark ‘POLAR IS’ for goods in class 30; Danish trade mark registration No VR 1994 07979 of the word mark ‘POLAR MAXI’ for goods in class 30

      Decision of the Opposition Division: Rejection of the Community trade mark application in its entirety

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1) of Council Regulation No 40/94 as the conflicting trade marks show relevant visual, phonetic and conceptual dissimilarities to avoid any likelihood of confusion.


title: Joined Cases C-53/09 and C-55/09: Judgment of the Court (Second Chamber) of 7 October 2010 (References for a preliminary ruling from the House of Lords, United Kingdom) — Commissioners for Her Majesty’s Revenue and Customs v Loyalty Management UK Ltd (C-53/09), Baxi Group Ltd (C-55/09) (Sixth VAT Directive — Taxable amount — Sales promotion scheme — Loyalty rewards scheme allowing customers to earn points from traders and to redeem them for loyalty rewards — Payments made by the operator of the scheme to redeemers supplying the loyalty rewards — Payments made by the trader to the operator of the scheme supplying the loyalty rewards)

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/4

         Judgment of the Court (Second Chamber) of 7 October 2010 (References for a preliminary ruling from the House of Lords, United Kingdom) — Commissioners for Her Majesty’s Revenue and Customs v Loyalty Management UK Ltd (C-53/09), Baxi Group Ltd (C-55/09)
   (Joined Cases C-53/09 and C-55/09) (1)

   (Sixth VAT Directive - Taxable amount - Sales promotion scheme - Loyalty rewards scheme allowing customers to earn points from traders and to redeem them for loyalty rewards - Payments made by the operator of the scheme to redeemers supplying the loyalty rewards - Payments made by the trader to the operator of the scheme supplying the loyalty rewards)
   2010/C 328/06
   Language of the case: English

      Referring court

   House of Lords

      Parties to the main proceedings

      Applicant: Commissioners for Her Majesty’s Revenue and Customs

      Defendants: Loyalty Management UK Ltd (C-53/09), Baxi Group Ltd (C-55/09)

      Re:

   References for a preliminary ruling — House of Lords — Interpretation of Articles 5, 6, 11A(1)(a) and 17(2) of the 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) — Taxable amount — Loyalty rewards scheme allowing users to earn points from participating traders and to redeem them for rewards or vouchers with approved traders — Redemption of points giving rise to payment by the operator of the scheme to the approved trader concerned — Loyalty rewards scheme enabling customers of a taxable undertaking to collect points when making purchases and to exchange them for rewards offered by a third party advertising and marketing company responsible for operating the scheme — Exchange of points entitling that third party company to payments by the taxable person corresponding to the recommended retail price of the reward goods.

      Operative part of the judgment

   In relation to a customer loyalty rewards scheme such as those at issue in the cases in the main proceedings, Articles 5, 6, 11A(1)(a) and — in the version resulting from Article 28f(1) — 17(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that:

               —

               payments made by the operator of the scheme concerned to redeemers who supply loyalty rewards to customers must be regarded, in Case C-53/09, as being the consideration, paid by a third party, for a supply of goods to those customers or, as the case may be, a supply of services to them. It is, however, for the referring court to determine whether those payments also include the consideration for a supply of services corresponding to a separate service; and

               —

               payments made by the sponsor to the operator of the scheme concerned who supplies loyalty rewards to customers must be regarded, in Case C-55/09, as being, in part, the consideration, paid by a third party, for a supply of goods to those customers and, in part, the consideration for a supply of services made by the operator of that scheme for the benefit of that sponsor.

      (1)  OJ 2009 C 90, 18.4.2009.

      OJ 2010 C 148, 5.6.2010.


title: Case C-46/06: Order of the President of the Court of 28 September 2006 — Commission of the European Communities v Czech Republic

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/53

         Order of the President of the Court of 28 September 2006 — Commission of the European Communities v Czech Republic
   (Case C-46/06) (1)

   (2006/C 326/110)

      Language of the case: Czech

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

      (1)  OJ C 74, 25.03.2006.


title: Case T-205/10: Judgment of the General Court of 31 January 2012 — Cervecería Modelo v OHIM — Plataforma Continental (LA VICTORIA DE MEXICO) (Community trade mark — Opposition procedure — Application for Community word mark LA VICTORIA DE MEXICO — Earlier Community figurative mark containing the word element ‘victoria’ and earlier national word mark VICTORIA — Registration refused in part — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/27

         Judgment of the General Court of 31 January 2012 — Cervecería Modelo v OHIM — Plataforma Continental (LA VICTORIA DE MEXICO)
   (Case T-205/10) (1)

   (Community trade mark - Opposition procedure - Application for Community word mark LA VICTORIA DE MEXICO - Earlier Community figurative mark containing the word element ‘victoria’ and earlier national word mark VICTORIA - Registration refused in part - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2012/C 73/54
   Language of the case: Spanish

      Parties

      Applicant: Cervecería Modelo, SA de CV (Mexico, Mexico) (represented by: C. Lema Devesa, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Plataforma Continental, SL (Madrid, Spain) (represented by: P. González-Bueno Catalán de Ocón, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 5 March 2010 (Case R 322/2009-2) in relation to opposition proceedings between Plataforma Continental, SL and Cervecería Modelo, SA de CV.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Cervecería Modelo, SA de CV to pay the costs.

      (1)  OJ C 179, 3.7.2010.


title: Case T-46/12: Order of the General Court of 5 March 2013  — Chrysamed Vertrieb v OHIM — Chrysal International (Chrysamed) (Community trade mark  — Opposition proceedings  — Withdrawal of the application for registration  — No need to adjudicate)

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/34

         Order of the General Court of 5 March 2013 — Chrysamed Vertrieb v OHIM — Chrysal International (Chrysamed)
   (Case T-46/12) (1)

   ((Community trade mark - Opposition proceedings - Withdrawal of the application for registration - No need to adjudicate))
   2014/C 142/44
   Language of the case: German

      Parties

      Applicant: Chrysamed Vertrieb GmbH (Salzburg, Austria) (represented by: initially T. Schneider, subsequently M. Koch and finally I. Rungg, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Chrysal International BV (Naarden, Netherlands) (represented by: A. Killan, M. Marell and M. Senftleben, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 22 November 2011 (Case R 64/2011-1), relating to opposition proceedings between Chrysal International BV and Chrysamed Vertrieb GmbH

      Operative part of the order

               1.

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

               2.

               Chrysamed Vertrieb GmbH shall pay the costs.

      (1)  OJ C 98, 31.3.2012.


title: Case C-197/15: Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 29 April 2015 — Juan Carlos Castrejana López v Ayuntamiento de Vitoria

text:
               20.7.2015

               EN

               Official Journal of the European Union

               C 236/26

         Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 29 April 2015 — Juan Carlos Castrejana López v Ayuntamiento de Vitoria
   (Case C-197/15)
   (2015/C 236/36)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

      Parties to the main proceedings

      Appellant: Juan Carlos Castrejana López

      Respondent: Ayuntamiento de Vitoria

      Questions referred

               1.

               Must clause 5(1) of the Framework Agreement (1) on fixed-term work concluded by ETUC, UNICE and CEEP be interpreted as precluding national legislation which, in a situation of abuse arising from the use of fixed-term employment contracts, does not acknowledge that funcionarios interinos (temporary civil servants regulated under administrative law), as opposed to staff who are in precisely the same position but who are employed by a public authority under contract, have a general right to remain in post on an indefinite but not permanent basis, in other words, to hold the temporary post until it is filled in the manner prescribed by law or eliminated in accordance with legally established procedures?

               2.

               If the previous question is answered in the negative, must the principle of equivalence be interpreted as meaning that the national court may regard the situation of staff who are employed by a public authority under a fixed-term contract and that of temporary civil servants as similar in cases where there has been misuse of fixed-term employment contracts, or, when assessing similarity, must the national court consider factors other than the fact that the employer is the same, the services provided are the same or similar and the contract of employment has a fixed term, such as the precise nature of the employee’s relationship, whether contractual or administrative, or the power of the public authorities to organise the way they function, which justify treating the two situations differently?

               3.

               If the previous questions are answered in the negative, must the principle of effectiveness be interpreted in such a way that the issue of the appropriate penalty is to be heard and determined within the same proceedings as those in which the misuse of fixed-term employment contracts is established, through interlocutory proceedings in which the parties may request, claim and prove what they deem to be appropriate in that regard, or, on the contrary, is it permissible for the injured party to be referred, for that purpose, to new administrative or, as the case may be, judicial proceedings?

      (1)  Annex to Council Directive 1999/70/EC of 28 June 1999 (OJ 1999 L 175, p. 43).


title: Case C-244/01: Action brought on 22 June 2001 by the Commission of the European Communities against the French Republic

text:
C 212/20               EN                      Official Journal of the European Communities                                        28.7.2001
of the project but also did not comply with Directive                     Action brought on 22 June 2001 by the Commission of
85/337/EEC, since Articles 5(2) and 6(2) of that directive were            the European Communities against the French Republic
not observed. First, in the procedure preceding the adoption
of the Study the file did not take account of the information
referred to in Article 5(2) of the directive (inter alia, the non-
technical summary of the information) and, second, the                                               (Case C-244/01)
information gathered was not made available to the public
before the Study was adopted, as required, in order to give
those concerned the opportunity to express an opinion.
                                                                                (2001/C 212/36)
(1) OJ L 175 of 5.7.1985, p. 40.
                                                                          An action against the French Republic was brought before the
                                                                          Court of Justice of the European Communities on 22 June
                                                                          2001 by the Commission of the European Communities,
                                                                          represented by D. Martin and M. França, acting as Agents, with
                                                                          an address for service in Luxembourg.
Action brought on 22 June 2001 by the Commission of
the European Communities against the Grand-Duchy of
                           Luxembourg
                                                                          The Commission of the European Communities claims that
                                                                          the Court should:
                         (Case C-242/01)
                                                                          —     Declare that, by failing to transpose in full Article 4(2) of
                         (2001/C 212/35)                                        Council Directive 93/13/EEC of 5 April 1993 on unfair
                                                                                terms in consumer contracts (1), the French Republic has
An action against the Grand-Duchy of Luxembourg was                             failed to fulfil its obligations under that directive;
brought before the Court of Justice of the European Communi-
ties on 22 June 2001 by the Commission of the European                    —     Order the French Republic to pay the costs.
Communities, represented by D. Martin and M. França, acting
as Agents, with an address for service in Luxembourg.
The Commission of the European Communities claims that
the Court should:
                                                                          Pleas in law and main arguments
—     Declare that, by failing to adopt all the measures necessary
      to implement fully and properly the provisions required
      to transpose Article 4(3) of Council Directive 90/314/EEC
      of 13 June 1990 on package travel, package holidays and
      package tours (1) in the Luxembourg legal system, the               The Commission points out that Article L-132-1, subpara-
      Grand-Duchy of Luxembourg has failed to fulfil its                  graph 7, of the French Code de la Consommation (Consumer
      obligations under that directive;                                   Affairs Code) does not contain the condition under which, in
                                                                          order to be excluded from assessment as to their potentially
—     Order the Grand-Duchy of Luxembourg to pay the costs.               unfair nature, fundamental terms must be ‘in plain intelligible
                                                                          language’. The Commission takes the view that reference to
                                                                          the actual concept of unfair terms is not a sufficient guarantee
                                                                          to prevent application of certain unfair terms which define the
Pleas in law and main arguments
                                                                          main subject-matter of the contract but which are drafted in
                                                                          unclear or unintelligible language.
The Commission takes the view that the directive was incor-
rectly transposed by Article 4 of the Grand-Ducal Regulation
of 4 November 1997 inasmuch as, by laying down a 21-day
period prior to departure, that article imposes unjustified
limitations on the right of transfer set out in Article 4(3) of the       (1) OJ L 95 of 21.4.1993, p. 29.
directive.
(1) OJ L 158 of 23.6.1990, p. 59.


title: Case C-23/13: Judgment of the Court (Sixth Chamber) of 7 November 2013 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Urban waste water treatment — Articles 3 and 4)

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/16

         Judgment of the Court (Sixth Chamber) of 7 November 2013 — European Commission v French Republic
   (Case C-23/13) (1)

   (Failure of a Member State to fulfil obligations - Directive 91/271/EEC - Urban waste water treatment - Articles 3 and 4)
   2014/C 9/25
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: J.-P. Keppenne and E. Manhaever, acting as Agents)

      Defendant: French Republic (represented by: D. Colas and S. Menez, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Breach of Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40) — Deficiencies in the collection and treatment of urban waste water in 8 agglomerations

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to provide for:

                           —

                           the collection of urban waste waters in the agglomeration of Basse-Terre, with a population equivalent of more than 15 000, and

                           —

                           the treatment of urban waste waters in the agglomerations of Ajaccio-Sanguinaires, Basse-Terre, Bastia-Nord, Cayenne-Leblond and Saint-Denis, with a population equivalent of more than 15 000,

                     the French Republic failed to fulfil its obligations under Articles 3, 4(1) and 4(3) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment.

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 79, 16.3.2013.


title: Case C-348/13: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 June 2013 — BestWater International GmbH v Michael Mebes, Stefan Potsch

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/8

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 25 June 2013 — BestWater International GmbH v Michael Mebes, Stefan Potsch
   (Case C-348/13)
   2013/C 325/12
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: BestWater International GmbH

      Defendants: Michael Mebes, Stefan Potsch

      Question referred

   Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website, in circumstances such as those in the main proceedings, constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, (1) even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?

      (1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).


title: Case T-267/99: Action brought on 29 October 1999 by Grooters Rekken B.V., Grooters Eibergen B.V., Tussenhoudstermaatschappĳ Wĳa B.V. and H. Grooters against the Commission of the European Communities

text:
5.2.2000              EN                     Official Journal of the European Communities                                     C 34/27
Action brought on 29 October 1999 by Grooters Rekken                    Action brought on 17 November 1999 by Association
B.V., Grooters Eibergen B.V., Tussenhoudstermaatschap-                  des Fonctionnaires Indépendants pour la Défense de la
pij Wija B.V. and H. Grooters against the Commission of                 Fonction Publique Européenne (TAO/AFI) and Rosario
                 the European Communities                               De Simone against Commission of the European Com-
                                                                                munities
                        (Case T-267/99)
                                                                                (Case T-324/99)
                         (2000/C 34/51)
                                                                                (2000/C 34/52)
                   (Language of the case: Dutch)                                           (Language of the case: French)
An action against the Commission of the European Communi-               An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              ties was brought before the Court of First Instance of the
European Communities on 29 October 1999 by Grooters                     European Communities on 17 November 1999 by the Associ-
Rekken B.V., Grooters Eibergen B.V., Tussenhoudstermaat-                ation des Fonctionnaires Indépendants pour la Défense de la
schappij Wija B.V. and H. Grooters, respectively established at         Fonction Publique Européenne (TAO/AFI) and Rosario De
Rekken and Eibergen (Netherlands), represented by H.G. Se-              Simone, residing in Brussels, represented by Eric Boigelot, of
venster and E.P. Jorritsma, of the Hague Bar, with an address           the Brussels Bar, with an address for service in Luxembourg at
for service in Luxembourg at the Chambers of M. Loesch,                 the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim.
11 Rue Goethe.
                                                                        The applicants claim that the Court should:
The applicants claim that the Court should:
                                                                        — annul the Commission’s decision to implement the elec-
                                                                            toral procedure for renewal of the local section of the
(a) order the Commission of the European Communities to                     Brussels Staff Committee, notified to the applicants on
    give the applicants’ advisers access to its file relating to            5 October 1999 by note of the Director-General of DG IX,
    its decision of 20 July 1999 (C(1999) 2539 final) (1)                   entailing the adoption of certain measures;
    concerning State aid granted by the Netherlands to 633 ser-
    vice stations in the region bordering Germany, and order            — annul the electoral procedure proper and all measures
    the adoption of all such further measures as may be                     taken by the Commission with a view to effecting the
    necessary;                                                              elections at issue, scheduled for 30 November 1999;
(b) annul Articles 2 and 3 of the Commission’s decision of              — order the Commission to pay the costs in their entirety.
    20 July 1999 (C(1999) 2539 final);
(c) order the Commission to pay the costs.                              Pleas in law and main arguments
                                                                        The applicants seek annulment of the contested decision in
                                                                        that it was accompanied inter alia by the following measures:
Pleas in law and main arguments
                                                                        — the note addressed to the Electoral Office appointed by the
                                                                            General Assembly of the Brussels staff, dated 19 January
This case is linked to Case T-210/99. The pleas in law and                  1999, calling upon it to resume its duties with a view to
main arguments are the same as those in Case T-250/99.                      organising a new ballot;
                                                                        — the note addressed to the Electoral Office calling upon it
                                                                            to re-open the possibility of introducing new candidatures
(1) OJ L 280 of 30.10.1999, p. 87.                                          and to publish an election notice amending and replacing
                                                                            the notice published on 27 January 1999; and
                                                                        — the note addressed to the administration calling upon it to
                                                                            proceed as soon as possible with the publication of an
                                                                            updated voters’ list.


title: Case F-44/07: Action brought on 14 May 2007 — Barbin v Parliament

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/45

         Action brought on 14 May 2007 — Barbin v Parliament
   (Case F-44/07)
   (2007/C 155/83)
   Language of the case: French
   Parties

      Applicant: Florence Barbin (Luxembourg, Luxembourg) (represented by: S. Orlandi, J.-N. Louis, A. Coolen and E. Marchal, lawyers)

      Defendant: European Parliament
   Form of order sought
   The applicant claims that the Tribunal should:

               —

               declare that paragraph I.2(c) of the ‘Implementing measures relating to the allocation of merit and promotion points’ of the European Parliament of 10 May 2006 is illegal;

               —

               annul the appointing authority's decision of 16 October 2006 to allocate the applicant one merit point under the 2005 promotion procedure;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, a European Parliament official of grade AD11, puts forward very similar pleas to those put forward in Case F-148/06 (1).

      (1)  OJ C 42 of 24.2.2007, p. 48.


title: Case T-20/09 P: Appeal brought on 16 January 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 4 November 2008 in Case F-41/06 Marcuccio v Commission

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/49

         Appeal brought on 16 January 2009 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 4 November 2008 in Case F-41/06 Marcuccio v Commission
   (Case T-20/09 P)
   (2009/C 55/87)
   Language of the case: Italian
   Parties

      Appellant: Commission of the European Communities (represented by A. Dal Ferro, lawyer, and by C. Berardis-Kayser and J. Currall, acting as Agents)

      Other party to the proceedings: Luigi Marcuccio (Triase, Italy)
   Form of order sought by the appellant

               —

               set aside the judgment under appeal;

               —

               refer the case back to the Civil Service Tribunal in order that it may adjudicate on the other pleas put forward by the appellant.

         Pleas in law and main arguments
   This appeal is directed against the judgment of the Civil Service Tribunal (CST) of 4 November 2008, by which it annulled the appellant's decision of 30 May 2005, ordering that the applicant at first instance should take compulsory retirement on grounds of his incapacity, which had been established by the Invalidity Committee. In addition, the CST fixed the compensation for non-material damage suffered at the sum of EUR 3 000.
   The annulment was granted in reliance exclusively on the first plea in law, based on a failure to state adequate reasons.
   In this regard, the appellant states that in reaching this result the tribunal hearing the case at first instance erred in law in holding, in essence, that doctors involved in incapacity proceedings based on Articles 53, 59 and 78 of the Staff Regulations are required to provide, in support of their findings, a statement of reasons similar to that required in the case of occupational disease or for the purposes of Article 73. In so doing, according to the Commission, the CST confused the two procedures, with the result that the incapacity procedure was made unduly cumbersome.


title: Case T-367/09: Action brought on 18 September 2009 — Tecnoprocess v Commission and Delegation of the European Commission to the Republic of Nigeria

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/82

         Action brought on 18 September 2009 — Tecnoprocess v Commission and Delegation of the European Commission to the Republic of Nigeria
   (Case T-367/09)
   2009/C 267/145
   Language of the case: Italian

      Parties

      Applicant: Tecnoprocess (Rome, Italy) (represented by A. Majoli, lawyer)

      Defendant: Commission of the European Communities and Delegation of the European Commission to the Republic of Nigeria

      Form of order sought

               —

               a declaration pursuant to Article 232 EC that the EU Delegation to Abuya and the Commission of the European Communities have failed to act;

               —

               a declaration, on the basis of Article 288 of the Treaty, that the Delegation and the Commission have incurred non-contractual liability vis-à-vis the applicant and an order that they should jointly and severally pay it compensation for damage in the sum of EUR 600 000 (six hundred thousand euro).

      Pleas in law and main arguments

   The company which is the applicant in these proceedings is the same as in Case T-264/09 Tecnoprocess v Commission of the European Communities and European Commission Delegation to Morocco. (1)

   The subject-matter of the dispute is the conditions surrounding the performance of the contract ‘EuropeAid 123511/D/SUP/NG — Supply, Installation, Delivery, Commissioning and After-Sale Service of 114 27 Kva Generators to the EC Assisted Prime Project in Nigeria’, designed to ensure the supply and installation of 114 27 KVA generators, and the performance of after-sales service assistance, for the National Authorising Officer, National Planning Commission and, especially for the offices of that body situated in six of the main geographic areas of Nigeria.
   The applicant claims that the Commission has not shown due care and attention in monitoring the conditions in which the contract at issue was carried out, failing to find a satisfactory solution for its interests faced with the serious breaches of obligations to be found in its performance.
   In support of its heads of claim, the applicant puts forward pleas in law and main arguments similar to those pleaded in Case T-264/09, cited above.

      (1)  OJ 2009 C 220, p. 16.


title: Case T-822/14: Judgment of the General Court of 23 October 2015 — Geilenkothen Fabrik für Schutzkleidung v OHIM (Cottonfeel) (Community trade mark — Application for Community word mark Cottonfeel — Absolute grounds for refusal — Lack of distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/31

         Judgment of the General Court of 23 October 2015 — Geilenkothen Fabrik für Schutzkleidung v OHIM (Cottonfeel)
   (Case T-822/14) (1)

   ((Community trade mark - Application for Community word mark Cottonfeel - Absolute grounds for refusal - Lack of distinctive character - Descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))
   (2015/C 414/41)
   Language of the case: German

      Parties

      Applicant: Geilenkothen Fabrik für Schutzkleidung GmbH (Gerolstein-Müllenborn, Germany) (represented by: M. Straub, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 2 October 2014 (Case R 2579/2013-1), concerning an application for registration of the word sign Cottonfeel as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Geilenkothen Fabrik für Schutzkleidung GmbH to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 46, 9.2.2015.


title: Case C-104/07: Action brought on 21 February 2007 — Commission of the European Communities v Italian Republic

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/26

         Action brought on 21 February 2007 — Commission of the European Communities v Italian Republic
   (Case C-104/07)
   (2007/C 82/49)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: M. Condou-Durande and E. De Persio, acting as Agents)

      Defendant: Italian Republic
   Form of order sought

               —

               Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/109/EC (1) of 25 November 2003 concerning the status of third-country nationals who are long-term residents or, in any event, by failing to communicate them to the Commission, the Italian Republic has failed to fulfil its obligations under that directive;

               —

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposition of Directive 2003/109/EC into domestic law expired on 23 January 2006.

      (1)  OJ 2004 L 16, p. 44.


2.8.2003              EN                       Official Journal of the European Union                                   C 184/29
       Removal from the register of Case C-405/00 (1)                         Removal from the register of Case C-345/01 (1)
                         (2003/C 184/54)                                                        (2003/C 184/58)
By order of 9 April 2003 the President of the Court of Justice
of the European Communities ordered the removal from the               By order of 14 April 2003 the President of the Court of
register of Case C-405/00 (Reference for a preliminary ruling          Justice of the European Communities ordered the removal
by the Consiglio di Stato): Coopsette Scrl v ANAS, Impresa             from the register of Case C-345/01: Commission of the
Mambrini Costruzioni srl.                                              European Communities v Republic of Austria.
(1) OJ C 372 of 23.12.2000.                                            (1) OJ C 331 of 24.11.2001.
       Removal from the register of Case C-432/00 (1)
                                                                              Removal from the register of Case C-466/01 (1)
                         (2003/C 184/55)
                                                                                (2003/C 184/59)
By order of 13 May 2003 the President of the Court of Justice
of the European Communities ordered the removal from the               By order of 6 May 2003 the President of the Court of Justice
register of Case C-432/00 (Reference for a preliminary ruling          of the European Communities ordered the removal from the
by the Tribunale Amminstrativo Regionale per la Lombardia):            register of Case C-466/01: Commission of the European
Europetrol SpA v Azienda Lombarda Edilizia Residenziale                Communities v Hellenic Republic.
Milano (A.L.E.R.), Orion SCRL.
                                                                       (1) OJ C 84 of 06.04.2002.
(1) OJ C 28 of 27.01.2001.
Removal from the register of Joined Cases C-66/01 and
                            C-74/01 (1)                                       Removal from the register of Case C-146/02 (1)
                         (2003/C 184/56)                                                        (2003/C 184/60)
By order of 19 March 2003 the President of the Court of                By order of 6 May 2003 the President of the Court of Justice
Justice of the European Communities ordered the removal                of the European Communities ordered the removal from the
from the register of Joined Cases C-66/01 and C-74/01 (Refer-          register of Case C-146/02: Commission of the European
ence for a preliminary ruling by the Unabhängiger Verwal-              Communities v Republic of Austria.
tungssenat): Dr Manfred Hückel.
                                                                       (1) OJ C 131 of 01.06.2002.
(1) OJ C 118 of 21.04.2001.
       Removal from the register of Case C-179/01 (1)                         Removal from the register of Case C-267/02 (1)
                         (2003/C 184/57)
                                                                                (2003/C 184/61)
By order of 9 April 2003 the President of the Court of Justice
of the European Communities ordered the removal from the               By order of 16 April 2003 the President of the Court of
register of Case C-179/01 (Reference for a preliminary ruling          Justice of the European Communities ordered the removal
by the Consiglio di Stato): Impresa Binda & C. s.p.a. v Comune         from the register of Case C-267/02: Commission of the
di Torino, ED.ART. s.r.l.                                              European Communities v Italian Republic.
(1) OJ C 200 of 14.07.2001.                                            (1) OJ C 219 of 14.09.2002.


title: Case C-13/00: Action brought on 14 January 2000 by the Commission of the European Communities against Ireland

text:
C 63/20                  EN                    Official Journal of the European Communities                                       4.3.2000
Reference for a preliminary ruling by the Oberlandes-                     Pleas in law and main arguments
gericht Düsseldorf by order of that court of 23 December
1999 in the case of Michael Hölterhoff against Dr Ulrich
                             Freiesleben                                  Article 249 EC (ex Article 189 of the EC Treaty), under which
                                                                          a directive shall be binding, as to the result to be achieved,
                                                                          upon each Member State, carries by implication an obligation
                            (Case C-2/00)                                 on the Member States to observe the period for compliance
                                                                          laid down in the directive. That period expired on 17 Septem-
                           (2000/C 63/36)                                 ber 1997 without Ireland having enacted the provisions
                                                                          necessary to comply with the directive referred to in the
Reference has been made to the Court of Justice of the                    conclusions of the Commission.
European Communities by order of the Oberlandesgericht
Düsseldorf (Düsseldorf Higher Regional Court) — Twentieth
Civil Chamber — of 23 December 1999, received at the Court                (1) OJ L 235 of 17.9.1996, p. 59.
Registry on 5 January 2000, for a preliminary ruling in the
case of Michael Hölterhoff against Dr Ulrich Freiesleben on the
following question:
Does an infringement of a trade mark in the sense contem-
plated in the second sentence of Article 5(1) and Article 5(1)(a)
and (b) of Directive 89/104/EEC(1) occur where the defendant
reveals the origin of goods which he has produced himself and
uses the sign in respect of which the plaintiff enjoys protection         Action brought on 14 January 2000 by the Commission
solely to denote the particular characteristics of the goods he                   of the European Communities against Ireland
is offering for sale so that there can be no question of the trade
mark used being perceived in trade as a sign indicative of the
firm of origin?                                                                                (Case C-13/00)
(1) OJ 1989 L 40, p. 1; corrigendum in OJ 1989 L 159, p. 60.                                        (2000/C 63/38)
                                                                          An action against Ireland was brought before the Court of
                                                                          Justice of the European Communities on 14 January 2000 by
                                                                          the Commission of the European Communities, represented
                                                                          by Karen Banks, Legal Adviser, and Manuel Desantes, a
                                                                          national expert seconded to its Legal Service, acting as Agents,
Action brought on 11 January 2000 by the Commission                       with an address for service in Luxembourg at the office of
        of the European Communities against Ireland                       Carlos Gómez de la Cruz, a member of the Legal Service of the
                                                                          Commission, Centre Wagner.
                            (Case C-8/00)
                                                                          The Applicant claims that the Court should:
                           (2000/C 63/37)
                                                                          a) find that, by failing to obtain its adherence before 1 January
An action against Ireland was brought before the Court of                      1995 to the Paris Act of the Berne Convention for the
Justice of the European Communities on 11 January 2000 by                      Protection of Literary and Artistic Works, Ireland has failed
the Commission of the European Communities, represented                        to fulfil its obligations under Article 300(7) of the EC
by Marie Wolfcarius, Legal Adviser, acting as Agent, with an                   Treaty in conjunction with Article 5 of Protocol 28 to the
address for service in Luxembourg at the office of Carlos                      Agreement on the European Economic Area and
Gómez de la Cruz, a member of the Legal Service of the
Commission, Centre Wagner.                                                b) order Ireland to bear the costs of this procedure.
The Applicant claims that the Court should:
                                                                          Pleas in law and main arguments
(1) declare that by failing to adopt all the laws, regulations or
     administrative provisions necessary to comply with
     Council Directive 96/53/EC (1) of 25 July 1996 concerning            Under Article 5 of Protocol 28 to the Agreement on the
     the maximun authorised dimensions in national and                    European Economic Area (hereinafter ‘the EEA Agreement’)
     international traffic and the maximum authorised weights             Ireland was obliged to obtain its adherence, before 1 January
     in international traffic, or in any event by failing to inform       1995, to the Berne Convention for the Protection of Literary
     the Commission of those measures, Ireland has failed to              and Artistic Works (Paris Act, 1971). This obligation also rests
     fulfil its obligations under that Directive;                         on Article 300(7) EC (ex Article 228(7) of the EC Treaty)
                                                                          which provides that international agreements duly concluded
(2) order Ireland to pay the costs.                                       by the Community shall be binding on the Member States.
 ---pagebreak--- 4.3.2000                 EN                   Official Journal of the European Communities                                     C 63/21
Ireland has not informed the Commission of any measures                         Removal from the register of Case C-235/98 (1)
taken in order to comply with the abovementioned provisions,
and the Commission is in possession of no other information                                      (2000/C 63/40)
enabling it to conclude that Ireland has taken the necessary
steps. Therefore, the Commission is compelled to assume that             By order of 30 November 1999 the President of the Court of
Ireland has not yet taken such measures and that it has thus             Justice of the European Communities has ordered the removal
failed to fulfil its obligations under Article 5 of Protocol 28 to       from the register of Case-235/98 (reference for a preliminary
the EEA Agreement, taken in conjunction with Article 300(7)              ruling from l’Areios Pagos): Panagis Neofytos Pythagoras Pafitis
EC.                                                                      and Others v Trapeza Kentrikis Ellados and Others.
                                                                         (1) OJ C 278 of 5.9.1998.
       Removal from the register of Case C-122/97 (1)
                           (2000/C 63/39)
                                                                                Removal from the register of Case C-93/99 (1)
By order of 18 October 1999 the President of the Court of                                        (2000/C 63/41)
Justice of the European Communities has ordered the removal
from the register of Case C-122/97: Commission of the
European Communities v Federal Republic of Germany.                      By order of 6 December 1999 the President of the Court of
                                                                         Justice of the European Communities has ordered the removal
                                                                         from the register of Case-93/99: Commission of the European
(1) OJ C 166 of 31.5.1997.                                               Communities v Portuguese Republic.
                                                                         (1) OJ C 160 of 5.6.1999.


title: Case T-141/06: Action brought on  18 May 2006  — Glaverbel v OHIM (design applied to the surface of goods)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/33

         Action brought on 18 May 2006 — Glaverbel v OHIM (design applied to the surface of goods)
   (Case T-141/06)
   (2006/C 178/61)
   Language of the case: English
   Parties

      Applicant: Glaverbel SA (Brussels, Belgium) (represented by: S. Möbus, T. Koerl, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2006 (Case R 0986/2004-4) in so far as the decision applies to the contested goods; and

               —

               hold that, in respect of the contested goods, the evidence of use submitted was sufficient to demonstrate acquired distinctiveness in accordance with Article 7(3) CTMR, and that the Community trade mark application 003183068 has acquired distinctiveness in accordance with Article 7(3) CTMR;

               —

               remit Community trade mark application 003183068 to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) for acceptance and publication;

               —

               order the Office to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The figurative mark consisting of a design applied to the surface of goods for goods in classes 19 and 21 (unworked or semi-worked glass, patterned glass, glass sheets, etc.) (Community trade mark application 3 183 068)

      Decision of the examiner: Refusal of the Community trade mark application for all the goods

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: The applicant contests the decision of the Board of Appeal only in relation to certain goods in class 21. The applicant invokes in that respect a violation of Article 7(3) of Regulation No 40/94.


title: Case T-308/02: Action brought on 7 October 2002 by SGL Carbon AG against the Commission of the European Communities

text:
7.12.2002              EN                     Official Journal of the European Communities                                       C 305/27
The applicant claims that the Court should:                              Action brought on 7 October 2002 by SGL Carbon AG
                                                                           against the Commission of the European Communities
—     annul the decision of the First Board of Appeal of the
      Office for Harmonisation in the Internal Market (Trade,                                      (Case T-308/02)
      Marks and Designs) of 23 July 2002 (appeal No R 526/
      2001-1);
                                                                                (2002/C 305/58)
—     order the Office for Harmonisation in the Internal Market
      (Trade, Marks and Designs) to reject opposition                                        (Language of the case: German)
      No B 262651 filed by the opponent.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Pleas in law and main arguments                                          European Communities on 7 October 2002 by SGL Carbon
                                                                         AG, Wiesbaden (Germany), represented by M. Klusmann and
                                                                         F. Wiemer, Rechtsanwälte.
Party applying for regis-      The applicant (formerly Byk Guld-
tration of the Com-            en Lomberg Chemische Fabrik
munity trade mark:             GmbH)                                     The applicant claims that the Court should:
Trade mark in respect          Word mark ‘XION’ for goods in             —     Annul the decision of 24 July 2002 in so far as it refuses
of which registration is       Class 5 (Medicines) — Application               to facilitate the making of payments;
sought:                        No 1207976
                                                                         —     Annul the decision of 24 July 2002 in so far as it
Proprietor of the trade        N.V. Organon                                    seeks payment of default interest for the period from
mark or sign right relied                                                      24 October 2001 to the date of receipt of the declaration
on in the opposition                                                           of securities at a rate in excess of 6,04 %;
proceedings:
                                                                         —     In the alternative, reduce as appropriate the default
Trade mark or sign right       The national and international                  interest laid down in the decision;
relied on in the oppo-         word mark ‘XYVION’ for goods in
sition proceedings:            Class 5 (inter alia, medicines and        —     Order the defendant to pay the costs of the proceedings.
                               pharmaceutical preparations for
                               human use)
Decision of Opposition         Rejection of opposition
                                                                         Pleas in law and main arguments
Division:
Decision of Board of           The decision of the Opposition            By a decision of 18 July 2001 the Commission imposed a fine
Appeal:                        Division was annulled and the             on the applicant (1). The applicant requested the Commission
                               opposition allowed.                       in October 2001 to set aside the requirement that securities be
                                                                         lodged in respect of the fine claim and ancillary demands, and
Pleas in law:                  —    Infringement                 of      to facilitate the undertaking in making payments in view of
                                    Article 8(1)(b) of Regulation        the difficult economic situation. The Commission turned down
                                    No 40/94 ( 1);                       this request in the decision under challenge, whereupon the
                                                                         applicant lodged the required securities. The Commission is
                               —    The marks are not so similar         seeking increased interest of 8,04 % for the period up to the
                                    as to create a likelihood of         lodgment of the securities.
                                    confusion.
                                                                         The applicant challenges that decision and argues that the
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the         Commission committed errors of form and judgment in
     Community trade mark (OJ 1994 L 11, p. 1).                          turning down its request. On formal grounds alone, the
                                                                         Commission, it claims, failed to provide adequate grounds for
                                                                         its negative decision. That decision is also substantively
                                                                         defective in regard to the exercise of judgment as it is not clear
                                                                         that the Commission properly exercised its discretion.
 ---pagebreak--- C 305/28               EN                       Official Journal of the European Communities                                      7.12.2002
The applicant further takes issue with the supplementary fixing            applications was 18 March 2002. The Commission notified
of interest. The applicant invokes deferment of payment and                that vacancy notice to its staff on 14 March 2002. The
protection of legitimate expectations and raises the objection             deadline for the submission of applications, indicated in that
of misuse of powers. The Commission, it claims, did not make               publication, was 2 April 2002.
it clear during the period required by it for taking a decision
that it would be seeking increased interest for that period.
Instead, the Commission intimated that it would forego                     The applicant submitted his application after the deadline set
enforcement measures during its own decision-making period.                down in the Council’s vacancy notice expired, but before
The applicant regards the Commission’s decision as being at                the expiry of the deadline set down in the Commission’s
variance with this.                                                        publication. The applicant’s application was rejected by the
                                                                           Council as inadmissible.
( 1) The applicant has brought an action against that decision (Case
     T-239/01 SGL Carbon v Commission, OJ 2002 C 3, p. 34).                In support of his action, the applicant alleges breach of the
                                                                           principle of sound administration. According to the applicant,
                                                                           there cannot be contradictory decisions within a single admin-
                                                                           istrative authority and a single legal person, such as constituted
                                                                           by the European Communities. The applicant claims moreover
                                                                           that a more recent or more specific act, such as the Com-
                                                                           mission’s publication, prevails. In the applicant’s view, the
                                                                           principle of sound administration entails the application of the
Action brought on 30 September 2002 by Athanassios                         interpretation which is most plausible for the official.
     Theodorakis against Council of the European Union
                                                                           The applicant further alleges infringement of Article 29(1) of
                         (Case T-310/02)                                   the Staff Regulations and of Article 1(3) of Annex III to the
                                                                           Staff Regulations inasmuch as the same deadline did not apply
                                                                           to all the potential candidates, irrespective of which institution
                         (2002/C 305/59)
                                                                           they belonged to.
                    (Language of the case: French)
                                                                           Moreover, the result of applying the deadline in the Council’s
                                                                           vacancy notice was that officials of the Commission and the
                                                                           other institutions were discriminated against by comparison
An action against the Council of the European Union was                    with those of the Council inasmuch as officials at the Council
                                                                           had more time. Finally, the applicant alleges misuse of powers.
brought before the Court of First Instance of the European
Communities on 30 September 2002 by Athanassios Theodo-
rakis, residing in Uccle (Belgium), represented by Spyros
A. Pappas, lawyer.
The applicant claims that the Court should:
—      annul the decision of 10 July 2002 of the appointing                Action brought on 10 October 2002 by Vitaly Lissot-
       authority replying to his complaint of 24.05.2002;                  schenko and Joachim Hentze against the Office for
                                                                           Harmonisation in the Internal Market (Trade, Marks and
                                                                                Designs)
—      annul the decision of the appointing authority of the
       Council concerning the appointment of the RELEX
       Director General of the Council and recommence the                                          (Case T-311/02)
       selection procedure as initially requested by the applicant;
                                                                                (2002/C 305/60)
—      order the Council of the European Union to pay the costs.
                                                                                (Language of the case: German)
Pleas in law and main arguments
                                                                           An action against the Office for Harmonisation in the Internal
The applicant is an official in the Commission. He submitted               Market (Trade, Marks and Designs) was brought before the
an application for the post of Director General at the Council.            Court of First Instance of the European Communities on
That post was published on 25 February 2002 in Vacancy                     10 October 2002 by Vitaly Lissotschenko, of Dortmund
Notice 412/02. The same day the Council sent that vacancy                  (Germany), and Joachim Hentze, of Werl (Germany), represent-
notice to the other institutions. The deadline for submitting              ed by B. Hein, Rechtsanwalt.


title: Case T-719/16: Action brought on 7 October 2016 — Berliner Stadtwerke v EUIPO (berlinWärme)

text:
               28.11.2016

               EN

               Official Journal of the European Union

               C 441/32

      Action brought on 7 October 2016 — Berliner Stadtwerke v EUIPO (berlinWärme)
      (Case T-719/16)
      (2016/C 441/38)
      Language of the case: German

         Parties

         Applicant: Berliner Stadtwerke GmbH (Berlin, Germany) (represented by: O. Spieker and A. Schönfleisch, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: EU word mark ‘berlinWärme’ — Application for registration No 14 062 558

         Contested decision: Decision of the First Board of Appeal of EUIPO of 19 July 2016 in Case R 618/2016-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs of the proceedings.

         Pleas in law

                  —

                  Infringement of Article 7(1)(c), in conjunction with Article 7(2), of Regulation No 207/2009;

                  —

                  Infringement of Article 7(1)(b), in conjunction with Article 7(2), of Regulation No 207/2009.


title: Case T-181/04: Judgment of the Court of First Instance of 7 September 2005 — Heinen v Commission (Officials — Internal competition — Oral test — Non-placement on the reserve list — Choice of language — Breach of the notice of competition — Equality of treatment)

text:
               15.10.2005

               EN

               Official Journal of the European Union

               C 257/11

         Judgment of the Court of First Instance of 7 September 2005 — Heinen v Commission
   (Case T-181/04) (1)

   (Officials - Internal competition - Oral test - Non-placement on the reserve list - Choice of language - Breach of the notice of competition - Equality of treatment)
   (2005/C 257/20)
   Language of the case: French
   Parties:

      Applicant(s): Nathalie Heinen (Ottignies, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant(s): Commission of the European Communities (represented by L. Lozano Palacios and M. Velardo, Agents)
   Application for:
   Annulment of the decision of the Selection Board for internal competition COM/PB/02 awarding the applicant, for the oral test, insufficient marks for her to be placed on the reserve list for recruitment.
   Operative part of the judgment:
   The Court:

               1)

               Dismisses the action.

               2)

               Orders the Commission to pay the costs.

      (1)  OJ C 190 of 24.7.2004.


title: Case C-5/12: Reference for a preliminary ruling from the Juzgado de lo Social de Lleida (Spain) lodged on 3 January 2012 — Marc Betriu Montull v Instituto Nacional de la Seguridad Social (INSS)

text:
               31.3.2012

               EN

               Official Journal of the European Union

               C 98/11

         Reference for a preliminary ruling from the Juzgado de lo Social de Lleida (Spain) lodged on 3 January 2012 — Marc Betriu Montull v Instituto Nacional de la Seguridad Social (INSS)
   (Case C-5/12)
   2012/C 98/16
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social de Lleida

      Parties to the main proceedings

      Applicant: Marc Betriu Montull

      Defendant: Instituto Nacional de la Seguridad Social (INSS)

      Questions referred

               1.

               Does a national law, specifically Article 48(4) of the Estatuto de los Trabajadores, which, in the case of childbirth, recognises employed mothers as holders of a primary and separate right to maternity leave once the six week period following the birth has elapsed, except in cases where the mother’s health is at risk, and employed fathers as holders of a secondary right, which can be enjoyed only where the mother also has the status of an employed person and elects for the father to take a designated part of that leave, contravene Council Directive 76/207/EEC (1) and Council Directive 96/34/EC? (2)

               2.

               Does a national law, specifically Article 48(4) of the Estatuto de los Trabajadores, which, in the case of childbirth, recognises the primary right of mothers, but not of fathers, to suspend their contract of employment and to return to the same job, paid for by the social security system, even once the six week period following the birth has elapsed, except in cases where the mother’s health is at risk, so that the taking of leave by a male employee is dependent on the child’s mother also having the status of an employed person, contravene the principle of equal treatment, which prohibits discrimination on grounds of sex?

               3.

               Does a national law, specifically Article 48(4) of the Estatuto de los Trabajadores, which recognises employed fathers as holders of a primary right to suspend their contract of employment and to return to the same job, paid for by the social security system, when they adopt a child but, by contrast, when they have a child by birth, does not give employed fathers their own separate right, independent of that of the mother, to suspend the contract, recognising only a right deriving from that of the mother, contravene the principle of equal treatment, which prohibits discrimination?

      (1)  Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) (Spanish special edition: Chapter 5, Volume 2 p. 70).

      (2)  Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4).


title: Reference for a preliminary ruling from the Conseil d'État du Grand-duché de Luxembourg, Comité du Contentieux by judgment of that court of 12 July 1995 in the case of Futura Participations SA and Singer against Administration des Contributions (Case C-250/95)

text:
No C 248/6                EN                  Official Journal of the European Communities                                       23 . 9 . 95
If that question is answered in the affirmative, the following           Reference for a preliminary ruling from the Conseil d'Etat
question is referred to the Court of Justice of the European             du Grand-duche de Luxembourg, Comite du Contentieux
Communities for a preliminary ruling:                                    by judgment of that court of 12 July 1995 in the case of
                                                                         Futura Participations SA and Singer against Administration
'In the case of a request that candidates be proposed for                                        des Contributions
posts in the administration of the Commission of the                                               ( Case C-250/95 )
European Communities, made during a meeting between
the Permanent Representatives and the Secretary:General of                                            ( 95/C 248/ 11 )
the Commission and directly addressed to the Member
States with no other form of publicity, or outhwith a                    Reference has been made to the Court of Justice of the
recruitment procedure published in the Official Journal of               European Communities by a judgment of the Conseil d'Etat
the European Communities, is such a request valid,                       du Grand-duche de Luxembourg, Comite du Contentieux
particularly having regard to the rules governing the                    ( Council of State of the Grand-Duchy of Luxembourg,
recruitment of members of the temporary staff and officials              Judicial Division ) of 12 July 1995 , which was received at the
of the Commission ?'                                                     Court Registry on 19 July 1995 , for a preliminary ruling in
                                                                         the case of Futura Participations SA and Singer against
                                                                         Administration des Contributions on the following
                                                                         question :
                                                                         Are Article 157 of the Law on income tax and, in so far as is
Reference for a preliminary ruling from the Oberverwal                  necessary, Article 4 and the second subparagraph of
tungsgerichtNordrhein- Westfalen by orders of that court of              Article 24 ( 2 ) of the France-Luxembourg Convention on
29 May 1995 in the cases of Firirta SAM Schiffahrt GmbH v.               double taxation compatible with Article 52 of the EC Treaty
Federal Republic of Germany and Heinz Stapf v. Federal                   inasmuch as they make the application to non-resident
                        Republic of Germany                              taxpayers having a permanent business'in Luxembourg of
                ( Cases C-248/95 and C-249/95 )                          provisions on the carrying forward of losses subject to the
                                                                         condition that the losses should be related to income
                              ( 95/C 248/10
                                                                         received locally and that accounts should be duly made up
Reference has been made to the Court of Justice                          and kept within the country ?
of the European Communities by orders of the
 Oberverwaltungsgericht Nordrhein-Westfalen ( Higher
Administrative Court, North Rhine Westphalia ) of 29 May
 1995 , which were received at the Court Registry on 19 July
 1995 , for a preliminary ruling in the cases of Firma SAM               Reference for a preliminary ruling from the Bundes
Schiffahrt GmbH v. Federal Republic of Germany and                       gerichtshof by order of that court of 29 June 1995 in the
                                                                                case of Sabel BY v. Puma AG
Heinz Stapf v. Federal Republic of Germany on the
following questions :                                                                               ( Case C-251/95 )
                                                                                ( 95/C 248/12 )
 1 . was     the adoption of Council Regulation ( EEC )
       No    1101 /89 (*), Commission Regulation ( EEC )                  Reference has been made to the Court of Justice of the
       No   1102/89 ( 2 ) and Commission Regulation ( EEC )               European Communities by an order of the First Civil Senate
       No   3685/89 ( 3 ) appropriate within the meaning of               of the Bundesgerichtshof ( Federal Court of Justice ) of
       Article 75 ( 1 ) ( c ) of the EC Treaty ?                          29 June 1995 , which was received at the Court Registry on
                                                                          20 July 1995 , for a preliminary ruling in the case of Sabel BV
 2 . If the answer to question 1 is in the affirmative, can those         v. Puma AG on the following questions :
       regulations become invalid if, subsequently to their
       adoption, they cease to be appropriate within the                  With reference to the interpretation of Article 4 ( 1 ) ( b )
       meaning of Article 75 ( 1 ) ( c ) of the EC Treaty ?               of the First Council Directive of 21 December 1988 to
                                                                          approximate the laws of the Member States relating to trade
 3 . If the answer to question 2 is in the affirmative, were the          marks ( 89/104/EEC ) ('):
       Regulations still appropriate at the relevant time for the
       levying of the 1990 contributions to the Scrapping                 is it sufficient for a finding that there is a risk of confusion
       Fund ?                                                             between a sign composed of text and picture and a sign
                                                                          consisting merely of a picture, which is registered for
 4. Does the obligation laid down in the Regulations to                   identical and similar goods and is not especially well known
       pay contributions for 1990 infringe fundamental                    in commerce, that the two signs coincide as to their
       Community rights or other Community law, in                        signification ( in this case, a leaping feline beast of prey )?
       particular the right to property, the right to pursue a
       trade or profession, the principle of equality and the             What is the significance in this connection of the wording of
       principle of proportionality ?                                     the Directive, according to which the risk of confusion
                                                                          includes the likelihood that a mark may be associated with
 0 ) OJ No L 116 , 28 . 4 . 1989 , p . 25 .                                an earlier mark ?
 ( 2 ) OJ No L 116 , 28 . 4 . 1989 , p . 30 .
 ( 3 ) OJ No L 360 , 9 . 12 . 1989 , p . 20 .                              (') OJ No L 40 , 11 . 2 . 1989 , p . 1 .


title: Case C-204/99: Action brought on 27 May 1999 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
C 226/20               EN                     Official Journal of the European Communities                                       7.8.1999
Question 3:                                                              The applicant claims that the Court should:
                                                                         1. Declare that, by failing to adopt the laws, regulations
Does Community law impose requirements as to how Member                      and administrative provisions necessary to comply with
States should define the expressions ‘damage caused by death                 European Parliament and Council Directive 95/26/EC of
or by personal injuries’ and ‘damage to, or destruction of, any              29 June 1995 amending Directives 77/780/EEC and
item of property’ in Article 9 of Council Directive 85/374/EEC               89/646/EEC in the field of credit institutions, Directives
of 25 July 1985, or are individual Member States free to decide              73/239/EEC and 92/49/EEC in the field of non-life
what meaning is to be attached to those expressions?                         insurance, Directives 79/267/EEC and 92/96/EEC in the
                                                                             field of life assurance, Directive 93/22/EEC in the field of
                                                                             investment firms and Directive 85/611/EEC in the field of
                                                                             undertakings for collective investment in transferable
Question 4:                                                                  securities (Ucits), with a view to reinforcing prudential
                                                                             supervision, (1) the Grand Duchy of Luxembourg has failed
                                                                             to fulfil its obligations under that directive; and
Must Article 9(a) of Council Directive 85/374/EEC of 25 July
1985 be construed as meaning that damage to a human organ                2. Order the Grand Duchy of Luxembourg to pay the costs.
which, at the time when the damage occurred, had been
removed from a donor’s body for immediate transplant into a
certain other person’s body is covered by the expression                 Pleas in law and main arguments
‘damage caused by ... personal injuries’ in relation to the
intended recipient of the organ?                                         The pleas in law and main arguments are similar to those
                                                                         submitted in Case C-168/99 (2) the period prescribed in Article
                                                                         6 of the directive expired on 18 July 1996.
Question 5:
                                                                         (1) OJ 1995 L 168, p. 7.
                                                                         (2) OJ C 264, p. 28.
Must Article 9(b) of Council Directive 85/374/EEC of 25 July
1985 be construed as meaning that damage to a human organ
which, at the time when the damage was occasioned, had been
removed from a donor’s body for immediate transplant into a
certain other person’s body is covered by the expression
‘damage to, or destruction of, any item of property’ in relation
to the intended recipient of the organ?                                  Reference for a preliminary ruling by the First Chamber
                                                                         of the First Division of the Tribunal Tributário de 1a
                                                                         Instância do Porto, by order of that court of 16 April
                                                                         1999 in the case of SONAE — Tecnologia de Informação
(1) On the approximation of the laws, regulations and administrative            S.A. v Direcção Geral dos Registos e Notariado
    provisions of the Member States concerning liability for defective
    products (OJ 1985 L 210, p. 29).
                                                                                (Case C-206/99)
                                                                                (1999/C 226/33)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the First Chamber of the
                                                                         First Division of the Tribunal Tributário de 1a Instância do
                                                                         Porto (Tax Court of First Instance, Oporto) of 16 April 1999,
                                                                         which was received at the Court Registry on 31 May 1999, for
                                                                         a preliminary ruling in the case of SONAE — Tecnologia de
Action brought on 27 May 1999 by the Commission of                       Informação S.A. v Direcção Geral dos Registos e Notariado
the European Communities against the Grand Duchy of                      (Directorate General of Registries and of the Notariat), on the
                          Luxembourg                                     following questions:
                        (Case C-204/99)                                  1. May the fees paid for the services of the Directorate General
                                                                             of Registries and of the Notariat be calculated and collected
                                                                             by reference to the amount to which the document relates?
                        (1999/C 226/32)
                                                                             (a) May that amount be unlimited?
An action against the Grand Duchy of Luxembourg was                          (b) May that amount be calculated in the manner to which
brought before the Court of Justice of the European Communi-                      Question 1relates if there is an upper limit?
ties on 27 May 1999 by the Commission of the European
Communities, represented by Christina Tufvesson, Legal                   2. In compliance with Directive 69/335/EEC of 17 July 1969
Adviser, and Bernard Mongin, of its Legal Service, acting as                 concerning indirect taxes on the raising of capital,(1) must
Agents, with an address for service in Luxembourg at the office              the court of the Member State reduce the amount payable
of Carlos Gómez de la Cruz, of its Legal Service, Wagner                    in accordance with the upper limit laid down in national
Centre, Kirchberg.                                                           legislation after the action was taken?


title: Case C-40/11: Judgment of the Court (Third Chamber) of 8 November 2012 (reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — Yoshikazu Iida v Stadt Ulm (Articles 20 TFEU and 21 TFEU — Charter of Fundamental Rights of the European Union — Article 51 — Directive 2003/109/EC — Third-country nationals — Right of residence in a Member State — Directive 2004/38/EC — Third-country nationals who are family members of Union citizens — Third-country national neither accompanying nor joining a Union citizen in the host Member State and remaining in the citizen’s Member State of origin — Right of residence of a third-country national in the Member State of origin of a citizen residing in another Member State — Citizenship of the Union — Fundamental rights)

text:
               12.1.2013

               EN

               Official Journal of the European Union

               C 9/10

         Judgment of the Court (Third Chamber) of 8 November 2012 (reference for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — Yoshikazu Iida v Stadt Ulm
   (Case C-40/11) (1)

   (Articles 20 TFEU and 21 TFEU - Charter of Fundamental Rights of the European Union - Article 51 - Directive 2003/109/EC - Third-country nationals - Right of residence in a Member State - Directive 2004/38/EC - Third-country nationals who are family members of Union citizens - Third-country national neither accompanying nor joining a Union citizen in the host Member State and remaining in the citizen’s Member State of origin - Right of residence of a third-country national in the Member State of origin of a citizen residing in another Member State - Citizenship of the Union - Fundamental rights)
   2013/C 9/14
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof Baden-Württemberg

      Parties to the main proceedings

      Applicant: Yoshikazu Iida

      Defendant: Stadt Ulm

      Re:

   Reference for a preliminary ruling — Verwaltungsgerichtshof Baden-Württemberg — Interpretation, in the light of Articles 7 and 24 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, of Article 21(1) TFEU and Articles 2(2)(d), 3(1), 7(2) and 10(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) — Interpretation of Article 6(1) and (3) TEU, and Article 24(3), Article 45(1) and the first sentence of Article 51(1) of the Charter of Fundamental Rights of the European Union — National of a Member State (a minor), who has moved her principal place of residence together with her mother to another Member State — Right to reside, in the Member State of origin of the child, of the father, a third-country national with custody rights — Scope of the Charter of Fundamental Rights of the European Union — Concept of ‘implementation of Union law’

      Operative part of the judgment

   Outside the situations governed by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC and where there is no other connection with the provisions on citizenship of European Union law, a third-country national cannot claim a right of residence derived from a Union citizen.

      (1)  OJ C 145, 14.5.2011.


title: Case T-386/07: Action brought on 4 October 2007 — Peek & Cloppenburg v OHIM — Redfil (Agile)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/44

         Action brought on 4 October 2007 — Peek & Cloppenburg v OHIM — Redfil (Agile)
   (Case T-386/07)
   (2007/C 297/89)
   Language in which the application was lodged: English
   Parties

      Applicant: Peek & Cloppenburg (KG) (Hamburg, Germany) (represented by: T. Dolde, A. Renck and V. von Bomhard, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Redfil SL (Barcelona, Spain)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 July 2007 in Case No R 1324/2006-2; and

               —

               order that the costs of the proceedings be borne by the defendant.

         Pleas in law and main arguments

      Applicant for the Community trade mark: Redfil SL

      Community trade mark concerned: The figurative mark ‘Agile’ for goods in classes 18, 25 and 28 — application No 2 659 456

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

      Mark or sign cited: The community and national word mark ‘Aygill's’ for goods in classes 3, 6, 8, 9, 11, 14, 16, 18, 20, 21, 24, 25, 26, 27 and 28

      Decision of the Opposition Division: Opposition upheld in its entirety

      Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition in its entirety

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94


title: Case C-125/07 P: Appeal brought on 2 March 2007 by Erste Bank der österreichischen Sparkassen AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities concerning Case T-264/02

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/7

         Appeal brought on 2 March 2007 by Erste Bank der österreichischen Sparkassen AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities concerning Case T-264/02
   (Case C-125/07 P)
   (2007/C 117/10)
   Language of the case: German
   Parties

      Appellant: Erste Bank der österreichischen Sparkassen AG (represented by: F. Montag, Rechtsanwalt)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               Partial annulment of the judgment of the Court of First Instance of the European Communities (Second Chamber) of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1) in so far as it dismissed the action in Case T-264/02 against Commission Decision C (2002) 2091 final of 11 June 2002 relating to a proceeding under Article 81 of the EC Treaty and annul the aforementioned Commission Decision in so far as it imposes a fine on the applicant;

               —

               In the alternative, an appropriate reduction in the fine imposed on the applicant in Article 3 of Commission Decision C (2002) 2091 final of 11 June 2002 relating to a proceeding under Article 81 of the EC Treaty;

               —

               In the further alternative, annulment of the judgment of the Court of First Instance mentioned in Point 1 and reference of the case back to the Court of First Instance;

               —

               The defendant to pay the costs in any event.

         Pleas in law and main arguments

               1.

               It is submitted that the contested judgment failed to have regard to the scope of the right to be heard. The applicant did not receive a proper hearing with respect to the planned attribution by the Commission of the market shares for the Austrian savings bank sector. The Court erred in law in assuming in its judgment that the defendant's reference in the statement of objections to the applicant as the lead institution of the savings bank sector was sufficient to safeguard the applicant's right to a fair hearing. The defendant should also have pointed out to the applicant the conclusions it intended to draw from that factor.

               2.

               As regards the substance of the case, it is contended that the Court failed to appreciate that the defendant's Decision

                           a.

                           infringed Article 15(2) of Regulation No 17/1962 because the conduct of GiroCredit in respect of the period before its takeover by the applicant was attributed to the applicant. Instead GiroCredit's conduct with regard to that period should have been attributed to the Bank Austria group as it (i) controlled GiroCredit and influenced its participation in the Lombard Club, (ii) took part in the agreements of the Lombard Club through another group member company and (iii) still legally existed at the time when the Decision was adopted.

                           b.

                           infringed Article 15(2) of Regulation No 17/1962 because the market shares of the savings banks, which were legally and economically independent during the period when the infringement occurred (1995 to June 1998), were attributed to the applicant. There was no legal basis for the attribution of the savings bank sector to the applicant. Furthermore, there were no preconditions for the legal bases which the Court and the defendant took into consideration.

                           c.

                           infringed Article 81(1) EC as the attribution to the applicant of the market shares for the savings bank sector meant that, in the final analysis, the conduct of the legally and economically independent savings banks was attributed to the applicant without regard to the strict preconditions which the Court has set out concerning the attribution of conduct by others.

                           d.

                           infringed Article 15(2) of Regulation No 17/1962 as the fine should not have been imposed on account of the unlawful attribution to the applicant of GiroCredit and the savings bank sector and was in any event too high.

                           e.

                           infringed Article 15(2) of Regulation No 17/1962 even if the attribution to the applicant of the savings bank sector had occurred lawfully, which it did not, as the attribution to the applicant of the entire savings bank sector was unlawful because a separate fine was imposed on Bank Austria and Erste österreichische Sparkasse — Bank AG respectively with the result that their market shares should not also have been taken into account again, and thus twice, in fixing the fine to be paid by the applicant.

                           f.

                           infringed Article 81(1) EC as the agreements of the Lombard Club did not result in any ‘perceptible ’effect on trade between Member States with the result that Article 81(1) EC should not have been applied in the present case.

      (1)  OJ C 331, p. 29.