title: Judgment of the Court of First Instance of 22 November 2001 in Case T-139/98: Amministrazione Autonoma dei Monopoli di Stato (AAMS) v Commission of the European Communities (Competition — Article 86 of the EC Treaty (now Article 82 EC) — Abuse of a dominant position — Italian cigarette sector — Distribution agreement — Abusive contract terms — Abusive conduct — Reduction of fine)

text:
16.2.2002               EN                      Official Journal of the European Communities                                           C 44/11
                                                          COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                      of 22 November 2001                                                         of 18 September 2001
in Case T-139/98: Amministrazione Autonoma dei Mono-                       in Case T-112/99 Métropole télévision (M6) and Others v
poli di Stato (AAMS) v Commission of the European                                   Commission of the European Communities (1)
                          Communities (1)
                                                                           (Actions for annulment — Competition — Pay television —
(Competition — Article 86 of the EC Treaty (now Article 82                 Joint venture — Article 85 of the EC Treaty (now Article 81
EC) — Abuse of a dominant position — Italian cigarette                     EC) — Article 85(1) of the Treaty — Negative clearance —
sector — Distribution agreement — Abusive contract terms                   Ancillary restrictions — Rule of reason — Article 85(3) of
           — Abusive conduct — Reduction of fine)                                   the Treaty — Exemption decision — Duration)
                          (2002/C 44/18)                                                              (2002/C 44/19)
                    (Language of the case: Italian)                                             (Language of the case: French)
In Case T-139/98: Amministrazione Autonoma dei Monopoli                    In Case T-112/99 Métropole télévision (M6), established in
di Stato (AAMS), represented by P.G. Ferri and D. Del Gaizo,               Neuilly sur Seine (France), Suez-Lyonnaise des eaux, established
lawyers, with an address for service in Luxembourg, against                in Nanterre (France), France Télécom, established in Paris
Commission of the European Communities (Agents: G. Mar-                    (France), represented by D. Théophile, lawyer, with an address
enco and L. Pignataro) supported by Rothmans International                 for service in Luxembourg, and Télévision française 1 SA
Europe BV, established in Amsterdam (Netherlands), represent-              (TF1), established in Paris, represented by P. Dunaud and
ed by S. Crosby, solicitor, with an address for service in                 P. Elsen, lawyers, with an address for service in Luxembourg,
Luxembourg, and JT International BV, formerly R.J. Reynolds                against Commission of the European Communities (Agents:
International BV, established in Hilversum (Netherlands), rep-             E. Gippini Fournier and K. Wiedner), supported by CanalSatel-
resented by O.W. Brouwer, J.-N. Louis and T. Janssens, lawyers,            lite, established in Paris, represented by L. Cohen-Tanugi and
with an address for service in Luxembourg — application for                F. Brunet, lawyers, with an address for service in Luxembourg
annulment of Commission Decision 98/538/EC of 17 June                      — application for annulment of Articles 2 and 3 of Com-
1998 relating to a proceeding pursuant to Article 86 of the EC             mission Decision 1999/242/EC of 3 March 1999 relating to a
Treaty (IV/36.010-F3 — Amministrazione Autonoma dei                        proceeding pursuant to Article 85 of the EC Treaty (IV/36.237
Monopoli di Stato) (OJ 1998 L 252, p. 47) and, in the                      — TPS) (OJ 1999 L 90, p. 6) — the Court of First Instance
alternative, for reduction of the fine imposed — the Court of              (Third Chamber), composed of J. Azizi, President, K. Lenaerts
First Instance (Fifth Chamber), composed of P. Lindh, President,           and M. Jaeger, Judges; D. Christensen, Administrator, for the
R. Garcı́a-Valdecasas and J.D. Cooke, Judges; E. Sheehan,                  Registrar, has given a judgment on 18 September 2001, in
Legal Secretary, for the Registrar, has given a judgment on                which it:
22 November 2001, in which it:
                                                                           1.     Dismisses the application;
1.    Dismisses the action;
                                                                           2.     Orders the applicants to bear their own costs and to pay those
2.    Orders AAMS to pay the costs of the Commission and of the                   incurred by the Commission and by the intervener.
      interveners and to bear its own costs.
(1) OJ C 358 of 21.11.1998.                                                (1) OJ C 226 of 7.8.1999.


title: Case C-452/07: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 October 2007 — Health Research Inc.

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/27

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 October 2007 — Health Research Inc.
   (Case C-452/07)
   (2007/C 297/44)
   Language of the case: German
   Referring court
   Bundesgerichtshof
   Parties to the main proceedings

      Applicant: Health Research Inc.
   Questions referred

               1.

               Is the ‘date on which the authorisation referred to in Article 3(b) to place the product on the market as a medicinal product was granted’, referred to in Article 7(1) of the Regulation (1), determined according to Community law or does that rule refer to the date on which the authorisation takes effect under the law of the Member State in question?

               2.

               If the Court's answer is that the date referred to in Question 1 is determined by Community law, which date must be taken into account for that purpose?

      (1)  OJ L 182, p. 1.


title: Case C-514/13: Request for a preliminary ruling from the Landgericht München I (Germany) lodged on 26 September 2013 — Ettayebi Bouzalmate v Kreisverwaltung Kleve

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/23

         Request for a preliminary ruling from the Landgericht München I (Germany) lodged on 26 September 2013 — Ettayebi Bouzalmate v Kreisverwaltung Kleve
   (Case C-514/13)
   2013/C 367/41
   Language of the case: German

      Referring court

   Landgericht München I

      Parties to the main proceedings

      Applicant: Ettayebi Bouzalmate

      Defendant: Kreisverwaltung Kleve

      Question referred

   Does it follow from Article 16(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (1) that a Member State is required, as a rule, to detain a person for the purposes of removal in a specialised detention facility if such facilities exist only in a part of the federal structure of the State, but not in another part in which the detention is carried out in accordance with the provisions governing the federal structure of that Member State?

      (1)  OJ 2008 L 348, p. 98.


title: Case F-67/11: Order of the Civil Service Tribunal (First Chamber) of 28 May 2013 — Marcuccio v Commission (Civil service — Officials — Annulment of the Commission’s decision — Compliance with the judgment of the Tribunal — Damage arising as a result of non-compliance — Conditions — Action manifestly lacking any basis in law)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/85

         Order of the Civil Service Tribunal (First Chamber) of 28 May 2013 — Marcuccio v Commission
   (Case F-67/11) (1)

   (Civil service - Officials - Annulment of the Commission’s decision - Compliance with the judgment of the Tribunal - Damage arising as a result of non-compliance - Conditions - Action manifestly lacking any basis in law)
   2013/C 225/197
   Language of the case: Italian

      Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cirpressa, lawyer)

      Defendant: European Commission (represented by: C. Berardis-Kayser and J. Banquero Cruz, Agents, and A. Dal Ferro, lawyer)

      Re:

   Civil service — Application for annulment of the Commission’s decision rejecting the applicant’s request relating, first, to compliance on the part of the Commission with paragraph 2 of the operative part of the judgment of the Civil Service Tribunal of 9 June 2010 in Case F-56/09 Marcuccio v Commission, and, second, compensation for the damage allegedly suffered by the applicant.

      Operative part of the order

               1.

               The action is dismissed as manifestly lacking any basis in law.

               2.

               Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission, including the costs relating to the interlocutory proceedings in Case F-67/11 R Marcuccio v Commission.

      (1)  OJ C 319, 29.10.2011, p. 29.


title: Case C-251/04: Judgment of the Court (Second Chamber) of 11 January 2007 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Articles 1 and 2(1) of Regulation (EEC) No 3577/92 — Transport — Freedom to provide services — Maritime cabotage — Towage services on open sea)

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/2

         Judgment of the Court (Second Chamber) of 11 January 2007 — Commission of the European Communities v Hellenic Republic
   (Case C-251/04) (1)

   (Failure of a Member State to fulfil obligations - Articles 1 and 2(1) of Regulation (EEC) No 3577/92 - Transport - Freedom to provide services - Maritime cabotage - Towage services on open sea)
   (2007/C 42/02)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: G. Zavvos and K. Simonsson, Agents)

      Defendant: Hellenic Republic (represented by: A. Samoni and S. Chala, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Breach of Article 1 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7) — National legislation granting only vessels flying the Greek flag the right to provide towage services on open sea.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the application;

               2.

               Orders the Commission of the European Communities to pay the costs.

      (1)  OJ C 201, 7.8.2004.


title: Case C-548/14 P: Appeal brought on 28 November 2014 by Arnoldo Mondadori Editore SpA against the judgment of the General Court (Fifth Chamber) delivered on 26 September 2014 in Case T-490/12: Arnoldo Mondadori Editore SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               2.3.2015

               EN

               Official Journal of the European Union

               C 73/10

      Appeal brought on 28 November 2014 by Arnoldo Mondadori Editore SpA against the judgment of the General Court (Fifth Chamber) delivered on 26 September 2014 in Case T-490/12: Arnoldo Mondadori Editore SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
      (Case C-548/14 P)
      (2015/C 073/16)
      Language of the case: English

         Parties

         Appellant: Arnoldo Mondadori Editore SpA (represented by: G. Dragotti, R. Valenti, S. Balice, E. Varese, avvocati)

         Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Grazia Equity GmbH

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside points 25 to 33 and 68 to 83 of the appealed judgment on all the grounds set out in the appeal;

                  —

                  uphold applicant’s action against the Board of Appeal decision or, alternatively, refer the case back to the General Court for reconsideration, and;

                  —

                  order OHIM to pay the costs of the Applicant, both at first instance and on appeal.

         Pleas in law and main arguments

      The Applicant maintains that the Appealed Judgment should be partially set aside on the following grounds:

                  A.

                  the General Court (‘GC’) erred in law in ruling out the application of Article 8(1)(b) of Council Regulation (EC) No 207/2009 (‘CTMR’) (1) without considering the case-law of this Court on the complementarity of goods and services and the principle of interdependence; the GC also disregarded or distorted the facts and evidence submitted to it by AME regarding the similarity of the goods and services concerned, at least in connection with the notion of complementarity.

                  B.

                  the GC infringed Article 8(5) CTMR on the following grounds:

                              i.

                              the GC erred in law in allotting a specific degree of reputation of AME's trademark, which is not required for the purpose of the implementation of the enhanced protection conferred by Article 8 (5) CTMR; furthermore, the GC did not comply with the criteria set out in the case-law of the Court of Justice for assessing the degree of reputation of a trademark.

                              ii.

                              the GC erred in law in ruling out the existence of a link between the marks on the basis of an assessment of the relevant factors (i.e. the nature of the goods or services concerned, the relevant section of the public, the strength of the earlier mark's reputation, the degree of the earlier mark's distinctive character) which is not compliant with the criteria set out by the case-law of the Court of Justice in the application of Article 8 (5) CTMR; the GC also erred in considering the existence of a likelihood of confusion between the marks at issue, which is not required for the application of Article 8 (5) CTMR.

                              iii.

                              the GC erred in law in denying the application of Article 8(5) CTMR without having assessed whether the applied for sign could take unfair advantage of or be detrimental to the earlier and reputed mark.

         (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark OJ L 78, p. 1.


title: Case C-320/15: Action brought on 26 June 2015 — European Commission v Hellenic Republic

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/2

         Action brought on 26 June 2015 — European Commission v Hellenic Republic
   (Case C-320/15)
   (2015/C 328/02)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: G. Zavvos and E. Manhaeve)

      Defendant: Hellenic Republic

      Form of order sought

               —

               declare that the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (3) of Directive 91/271/EEC (1) concerning urban waste-water treatment;

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

               1.

               By its action, the Commission specifies the plants of particular agglomerations in the Hellenic Republic which do not comply with the directive’s requirements, either because the necessary plants have not been constructed or upgraded in an appropriate manner (agglomerations of Prosotsani, Doxato, Eleftheroupoli, Vagia and Galatista), and therefore the urban waste water of those agglomerations is not subject before discharge to secondary treatment or an equivalent treatment, or because the samples which were taken (agglomerations of Desfina, Polikhrono and Khanioti) show that the plants do not operate in accordance with the directive’s requirements.

               2.

               Under Article 4(1) of Directive 91/271/EC, urban waste water (of agglomerations with a population equivalent (p.e.) of more than 2  000) entering collecting systems must before discharge be subject to secondary treatment or an equivalent treatment, whilst under Article 4(3) the discharges in question must satisfy the relevant requirements of Annex I.B (one of which is that representative samples of the incoming waste water and of treated effluent be obtained before discharge to receiving waters).

               3.

               The Commission notes that, in order for a Member State to be regarded as complying with the requirements of the directive concerning urban waste-water treatment, it must provide satisfactory information relating to the quality of its waste water after treatment. Furthermore, in order for there to be a reliable assessment of the quality of an agglomeration’s effluent in accordance with the directive, and therefore treatment thereof that complies with Article 4 of the directive, the Member States must produce satisfactory results for a period of at least a year after operation of the equipment has begun, by taking samples in accordance with the methodology set out in the directive.

         (Α)   Agglomerations of Prosotsani (p.e. 5 882), Doxato (p.e. 3 815), Eleftheroupoli (p.e. 4 934), Vagia (p.e. 4 509) and Galatista (p.e. 2 974)

               4.

               The Commission considers that, since the urban waste water of four agglomerations (Prosotsani, Doxato, Eleftheroupoli and Vagia) is not subject before discharge to secondary treatment or an equivalent treatment, Article 4 of the directive is infringed. Furthermore, the Greek authorities themselves acknowledge that those agglomerations will comply fully with the provisions of the directive only when the co-funded projects have been completed. According to the Commission, although the necessary projects have already been included in priority axis ‘02 Protection and Management of Water Resources’ of the operational programme ‘Environment and Sustainable Development’, it is not envisaged that they will be completed in good time in respect of the agglomerations of Eleftheroupoli and Prosotsani, whilst the Greek authorities did not give a clear date for the agglomerations of Vagia and Doxato. It is apparent from the Greek authorities’ responses that operation of the relevant plant of Galatitsa is problematic and that it will have to be upgraded in order to operate in accordance with the directive’s provisions.

         (Β)   Agglomerations of Desfina (p.e. 2 024), Polikhrono (p.e. 10 443) and Khanioti (p.e. 9 000)

               5.

               In relation to the three agglomerations (Desfina, Polikhrono and Khanioti), although the Greek authorities sent the results of the various samples that were taken in the waste water treatment plants, the Commission considers that the samples show that those plants do not operate in compliance with the directive’s requirements.

      Agglomeration of Polikhrono

               6.

               The Commission notes that the number of non-compliant samples, both for 2012 and for 2013, exceeds the permitted number and that sufficient samples were not collected for 2012 and for 2013.

      Agglomeration of Khanioti

               7.

               The samples which were sent to the Commission for this agglomeration cannot be regarded as representative and taken at regular intervals since no sample was taken between January and April 2012 and no relevant sample was sent for 2013 in respect of the agglomeration in question.

      Agglomeration of Desfina

               8.

               Given that the number of samples that were collected for 2012 and 2013 was insufficient, they could not therefore have been taken at regular intervals as required by the directive; only two samples were taken in 2012 instead of 12, meaning that 10 months were not covered, and in 2013 eight samples were taken, two of which relate to the month of July, meaning that five months were not covered.

      (1)  OJ 1991 L 135, p. 40.


title: Case F-87/06: Order of the Civil Service Tribunal (First Chamber) of 27 March 2007 — Manté v Council (Staff cases — Pay — Installation allowance — National expert on secondment who has been appointed an official — Recovery of sum not due — Manifest inadmissibility)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/42

         Order of the Civil Service Tribunal (First Chamber) of 27 March 2007 — Manté v Council
   (Case F-87/06) (1)

   (Staff cases - Pay - Installation allowance - National expert on secondment who has been appointed an official - Recovery of sum not due - Manifest inadmissibility)
   (2007/C 96/88)
   Language of the case: French
   Parties

      Applicant: Thierry Manté (Woluw-Saint-Pierre, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

      Defendant: Council of the European Union (represented by: M. Simm and I. Sulce, acting as Agents)
   Re:
   First, annulment of the decision of the Council's Appointing Authority of 22 August 2005 refusing to grant the applicant, a former national expert on secondment who became an official of the European Communities, the installation allowance and ordering its recovery, and secondly, an application for damages.
   Operative part of the order

               1.

               The application is dismissed as manifestly inadmissible;

               2.

               the Council of the European Union, in addition to bearing its own costs, is ordered to pay half those of Mr Manté.

      (1)  OJ C 237 of 30.9.2006, p. 19.


title: Case T-317/11 P: Appeal brought on 14 June 2011 by Ioannis Vakalis against the judgment of the Civil Service Tribunal of 13 April 2011 in Case F-38/10, Vakalis v Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/24

         Appeal brought on 14 June 2011 by Ioannis Vakalis against the judgment of the Civil Service Tribunal of 13 April 2011 in Case F-38/10, Vakalis v Commission
   (Case T-317/11 P)
   2011/C 282/52
   Language of the case: French

      Parties

      Appellant: Ioannis Vakalis (Luvinate, Italy) (represented by S.A. Pappas, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

               —

               Annul the contested judgment;

               —

               Uphold the claims submitted at first instance, except that correctly held to be inadmissible by the Tribunal;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The present appeal seeks the annulment of the judgment of the Civil Service Tribunal (First Chamber) of 13 April 2011, delivered in Case F-38/10 Vakalis v Commission.
   In support of the appeal, the appellant relies on four pleas in law.

               1.

               First plea in law, alleging inconsistency in the reasoning of the Civil Service Tribunal in that no conclusions are drawn from its findings, since it found that it is for the Commission to take account of exchange rate movements. The Commission does not take that question into account. The contested judgment is therefore vitiated by inconsistent reasoning.

               2.

               Second plea in law, alleging that the Civil Service Tribunal misconstrued the question put to it. It is apparent from the contested judgment that the Tribunal understood that the applicant asked it whether the difference in treatment of officials subject to the general implementing provisions in Articles 11 and 12 of Annex VIII to the Staff Regulations (‘the GIPs’) of 1969 and those subject to those of 2004 was unlawful, while the question asked of the Tribunal was whether ‘the new GIPs are discriminatory in that they treat different factual situations identically’. In that regard, the applicant submits that the Tribunal was incorrect to reject the plea in law alleging infringement of the principle of equal treatment.

               3.

               Third plea in law, alleging a substitution of grounds by the Tribunal. The applicant submits, firstly, that the budgetary grounds for the GIPs emerged only at the hearing and, secondly, that that ground is different from that given to the applicant in the rejection of his claim (a ground which the Tribunal, moreover, accepted was inadequate). In accordance with the case-law, it is not for the Tribunal to remedy any lack of grounds or to supplement the Commission’s grounds by adding to them or by substituting for them elements which are not apparent from the contested decision itself.

               4.

               Fourth plea in law, alleging a manifest error of assessment, since the Civil Service Tribunal rejected the ground relating to the principle of equal treatment since the applicant failed to show that there was an unjustified difference in treatment. The applicant demonstrated that the difference in treatment at issue was not justified by the introduction of the Euro, the original ground for rejection of the claim.


               3.9.2009

               EN

               Official Journal of the European Union

               C 208/5

         Request for an Advisory Opinion to the EFTA Court by Beschwerdekommission der Finanzmarktaufsicht dated 27 March 2009 in the case of Inconsult Anstalt v Finanzmarktaufsicht
   (Case E-4/09)
   2009/C 208/05
   A request has been made to the EFTA Court by a letter of 27 March 2009 from Beschwerdekommission der Finanzmarktaufsicht (the Appeals Commission of the Financial Market Authority), which was received at the Court Registry on 14 April 2009, for an Advisory Opinion in the case of Inconsult Anstalt v Finanzmarktaufsicht, on the following questions:

               1.

               How is Article 2(12) of Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation to be interpreted as to the criteria by which a website may be regarded as constituting a ‘durable medium’?


title: Case C-67/02: Action brought on 28 February 2002 by the Commission of the European Communities against Ireland

text:
4.5.2002               EN                   Official Journal of the European Communities                                            C 109/33
Action brought on 28 February 2002 by the Italian                            under Article 87(3) of the Treaty. That constitutes not
Republic against the Commission of the European Com-                         only a methodological error but also a failure to state
                              munities                                       reasons.
                          (Case C-66/02)                               (d) Specifically as regards the reference to Article 87(3)(b) of
                                                                             the Treaty, reconstruction of the origins of the Ciampi
                                                                             law and of Legislative Decree No 153/99 clearly shows
                         (2002/C 109/56)                                     how the Italian legislature sought, by means of the
                                                                             various measures adopted, to bring about a significant
                                                                             structural change in the Italian market for banking
                                                                             services: the full and final privatisation of all Italian banks.
An action against the Commission of the European Communi-                    In order to achieve that objective it was necessary for the
ties was brought before the Court of Justice of the European                 banks to divest themselves of any controlling interests
Communities on 28 February 2002 by the Italian Republic,                     still held in savings banks and local banks. The elimination
represented by U. Leanza, acting as Agent, and M. Fiorilli,                  or reduction of the Italian banks’ substantial and persist-
avvocato dello Stato.                                                        ent holdings of public funds, or at least of funds that are
                                                                             not attractive to private investors did not, contrary to
                                                                             the Commission’s clear finding, distort competition by
The applicant claims that the Court should:                                  favouring the recipient undertakings over others but, as
                                                                             in the case of the southern Italian public banks, resulted
                                                                             in the reduction of distortions existing prior to the reform
—     Annul the Commission’s Decision of 11 December 2001                    in question between genuinely private banks and those
      in proceeding no C-54/A/2000/EC against the Italian                    which are private in form only, but not as regards
      Republic, notified on 13 January 2002, in that there are               the control of capital. In the opinion of the Italian
      insufficient grounds for holding that the fiscal measures              Government, the full and final privatisation of the Italian
      accompanying the reform of the Italian banking system                  banks constitutes a ‘project of common European interest’
      constitute ‘State aid’;                                                which, under Article 87(3)(b), justifies a system of aid to
                                                                             promote its implementation.
—     Order the Commission to pay the costs.
Pleas in law and main arguments
The Italian Government claims that the contested decision is
unlawful for the following reasons:
                                                                       Action brought on 28 February 2002 by the Commission
(a)   The Commission failed to comply with the obligation to                   of the European Communities against Ireland
      state the reasons upon which the adopted decision was
      based.
                                                                                (Case C-67/02)
(b) The law, which has been called in question with regard
      to the effect on competition of the accompanying fiscal                                    (2002/C 109/57)
      measure, must be regarded as the final part of a process
      of reform of the Italian system of credit and, therefore, as
      part of an economic reform which should be assessed in
      its general and Community law context. The relevance of
      that law cannot be appreciated unless the state of the           An action against Ireland was brought before the Court of
      sector prior to the reform is taken into account. The            Justice of the European Communities on 28 February 2002 by
      contested decision wholly fails to consider those aspects.       the Commission of the European Communities, represented
                                                                       by Michael Shotter, acting as agent, with an address for service
(c)   In addressing the Italian Government’s counter-argu-             in Luxembourg
      ments the Commission does not distinguish between
      those concerned with the issue whether the fiscal
      measures under investigation may be characterised as             The Applicant claims that the Court should:
      ‘State aid’ and those concerned with the alternative issue
      whether, if those measures are found to be ‘State aid’,
      they qualify for exemption. The Commission possessed             —     declare that Ireland has failed to fulfill its obligations
      all the information required to assess whether the law in              under Council Directive 79/923/EEC (1) on the quality
      question constituted a prohibited ‘State aid’ within the               required of shellfish waters by reason of its failure to
      meaning of Article 87(1) of the Treaty, or whether it may              adopt programmes for all of its designated shellfish
      be considered to be compatible with the common market                  waters in accordance with Article 5 of the Directive;
 ---pagebreak--- C 109/34                 EN                     Official Journal of the European Communities                                          4.5.2002
—     order Ireland to pay the costs.                                      The applicant claims that the Court should:
                                                                           (1) declare that, by failing to adopt the laws, regulations and
                                                                                administrative provisions necessary in order to comply
                                                                                with Council Directive 96/48/EC of 23 July 1996 on the
Pleas in law and main arguments                                                  interoperability of the trans-European high-speed rail
                                                                                system (1), or at any rate to communicate the same to the
                                                                                Commission, the Republic of Austria has failed to fulfil
The adoption by Ireland of the Quality of Shellfish Waters                       its obligations under that directive;
(Amendment) Regulations 2001 brought its legislation into
conformity with Article 5 of Directive 79/923/EEC by requir-               (2) order the defendant to pay the costs.
ing programmes in respect of all designated waters. The
Commission is not, however, in possession of any information
indicating that Ireland has similarly rectified its position with
regard to its failure to adopt all the programmes required by              Pleas in law and main arguments
Article 5 of the directive. It is not sufficient merely to introduce
the requirement into national law — the programmes must be                 The third paragraph of Article 249 EC provides that a directive
established in practice in accordance with Article 5.                      is to be binding, as to the result to be achieved, on each
                                                                           Member State to which it is addressed. According to the first
                                                                           paragraph of Article 10 EC, Member States are to take all
The Commission is in possession of official confirmation by                appropriate measures, whether general or specific, to ensure
the Irish authorities that no pollution prevention programme               fulfilment of the obligations arising out of the Treaty or
for designated shellfish waters had been adopted as of                     resulting from actions taken by the institutions of the Com-
14 December 2000. Subsequently, the Commission has not                     munity.
been informed of any change to this position, whereas,
pursuant to Article 5 of the directive, programmes should
                                                                           The Member States are obliged to transpose the directive into
have been in place for all designated waters within six years of
                                                                           national law by the due date, in such a way that the
the designation.
                                                                           transposition process is completed before the expiry of the
                                                                           time-limit fixed for transposition. That time-limit expired on
                                                                           8 April 1999, but Austria has not adopted the necessary
The Commission is, therefore, of the opinion that Ireland has              measures.
failed to fulfill its obligations under the directive.
                                                                           (1) OJ 1996 L 235, p. 6.
(1) OJ L 281, 10.11.1979, p. 47.
                                                                           Action brought on 1 March 2002 by the Commission of
                                                                             the European Communities against the Italian Republic
                                                                                (Case C-70/02)
Action brought on 28 February 2002 by the Commission
of the European Communities against the Republic of                                                   (2002/C 109/59)
                                Austria
                            (Case C-68/02)                                 An action against the Italian Republic was brought before the
                                                                           Court of Justice of the European Communities on 1 March
                           (2002/C 109/58)                                 2002 by the Commission of the European Communities,
                                                                           represented by A. Aresu and M. Shotter, acting as Agents.
                                                                           The applicant claims that the Court should:
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on                 —     Declare that, by not having adopted all the measures
28 February 2002 by the Commission of the European                               necessary to implement Articles 8(6) and 9(b) of Directive
Communities, represented by Claudia Schmidt, of the Com-                         97/66/EC of the European Parliament and of the
mission’s Legal Service, and Marie Wolfcarius, Legal Adviser,                    Council (1) of 15 December 1997 concerning the pro-
with an address for service in Luxembourg at the office of Luis                  cessing of personal data and the protection of privacy in
Escobar Guerrero, Legal Adviser, Wagner Centre C 254,                            the telecommunications sector, the Italian Republic has
Kirchberg.                                                                       failed to fulfil its obligations under that directive;


title: Case C-389/11 P: Order of the Court of 4 July 2012 — Région Nord-Pas-de-Calais v Communauté d’Agglomération du Douaisis, European Commission (Appeal — State aid — Construction of railway equipment — Decisions declaring aid incompatible with the common market and ordering its recovery)

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/4

         Order of the Court of 4 July 2012 — Région Nord-Pas-de-Calais v Communauté d’Agglomération du Douaisis, European Commission
   (Case C-389/11 P) (1)

   (Appeal - State aid - Construction of railway equipment - Decisions declaring aid incompatible with the common market and ordering its recovery)
   2012/C 303/06
   Language of the case: French

      Parties

      Appellant: Région Nord-Pas-de-Calais (represented by: M. Cliquennois and F. Cavedon, avocats)

      Other parties to the proceedings: Communauté d’Agglomération du Douaisis, European Commission (represented by: C. Giolito and B. Stromsky, Agents)

      Re:

   Appeal against the judgment of the General Court (Eighth Chamber) of 12 May 2011 in Joined Cases T-267/08 and T-279/08 Région Nord-Pas-de-Calais v Commission and Communauté d’agglomération du Douaisis v Commission dismissing the actions, initially, for annulment of Commission Decision C(2008) 1089 final of 2 April 2008, then for annulment of Commission Decision C(2010) 4112 final of 23 June 2010, on State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail SA — Construction of railway equipment — Recovery of aid incompatible with the common market — Infringement of the rights of the defence and the principle of the right to be heard

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               The Région Nord-Pas-de-Calais is ordered to pay the costs.

      (1)  OJ C 290, 1.10.2011.


title: Case C-281/05: Judgment of the Court (Second Chamber) of 9 November 2006 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Montex Holdings Ltd v Diesel SpA (Trade marks — Directive 89/104/EEC — Right of the proprietor of a trade mark to prohibit the transit of goods bearing an identical sign through the territory of a Member State in which the mark enjoys protection — Unlawful manufacture — Associated State)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/16

         Judgment of the Court (Second Chamber) of 9 November 2006 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Montex Holdings Ltd v Diesel SpA
   (Case C-281/05) (1)

   (Trade marks - Directive 89/104/EEC - Right of the proprietor of a trade mark to prohibit the transit of goods bearing an identical sign through the territory of a Member State in which the mark enjoys protection - Unlawful manufacture - Associated State)
   (2006/C 326/31)
   Language of the case: German
   Referring court
   Bundesgerichtshof
   Parties to the main proceedings

      Applicant: Montex Holdings Ltd

      Defendant: Diesel SpA
   Re:
   Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Articles 28, 29 and 30 of the EC Treaty and of Article 5(1) and (3) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Right of the proprietor of a trade mark to prohibit the transit of goods bearing an identical sign across the territory of a Member State where that mark is protected — No protection in the country of destination
   Operative part of the judgment

               1.

               Article 5(1) and (3) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks is to be interpreted as meaning that the proprietor of a trade mark can prohibit the transit through a Member State in which that mark is protected (the Federal Republic of Germany in the present case) of goods bearing the trade mark and placed under the external transit procedure, whose destination is another Member State where the mark is not so protected (Ireland in the present case), only if those goods are subject to the act of a third party while they are placed under the external transit procedure which necessarily entails their being put on the market in that Member State of transit.

               2.

               It is in that regard, in principle, irrelevant whether goods whose destination is a Member State come from an associated State or a third country, or whether those goods have been manufactured in the country of origin lawfully or in infringement of the existing trade mark rights of the proprietor in that country.

      (1)  OJ C 243, 01.10.2005.


title: Joined Cases C-247/15 P, C-253/15 P and C-259/15 P: Judgment of the Court (Fourth Chamber) of 26 January 2017 — Maxcom Ltd, Chin Haur Indonesia PT, Council of the European Union, European Commission (Appeal — Dumping — Implementing Regulation (EU) No 501/2013 — Imports of bicycles consigned from Indonesia, Malaysia, Sri Lanka and Tunisia — Extension to such imports of the definitive anti-dumping duty imposed on imports of bicycles originating in China — Regulation (EC) No 1225/2009 — Article 13 — Circumvention — Article 18 — Lack of cooperation — Evidence — Body of consistent evidence)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/13

         Judgment of the Court (Fourth Chamber) of 26 January 2017 — Maxcom Ltd, Chin Haur Indonesia PT, Council of the European Union, European Commission
   (Joined Cases C-247/15 P, C-253/15 P and C-259/15 P) (1)

   ((Appeal - Dumping - Implementing Regulation (EU) No 501/2013 - Imports of bicycles consigned from Indonesia, Malaysia, Sri Lanka and Tunisia - Extension to such imports of the definitive anti-dumping duty imposed on imports of bicycles originating in China - Regulation (EC) No 1225/2009 - Article 13 - Circumvention - Article 18 - Lack of cooperation - Evidence - Body of consistent evidence))
   (2017/C 104/20)
   Language of the case: English

      Parties

      (Case C-247/15 P)

      Appellant: Maxcom Ltd (represented by: L. Ruessmann, avocat, and J. Beck, Solicitor)

      Other parties to the proceedings: Chin Haur Indonesia PT (represented by: T. Müller-Ibold, Rechtsanwalt, and F.-C. Laprévote, avocat), Council of the European Union, (represented initially by: S. Boelaert, and subsequently by H. Marcos Fraile and B. Driessen, acting as Agents, and by R. Bierwagen and C. Hipp, Rechtsanwälte), European Commission (represented by: J.-F. Brakeland and M. França, acting as Agents)

      (Case C-253/15 P)

      Appellant: European Commission (represented by: J.-F. Brakeland and M. França, acting as Agents)

      Other parties to the proceedings: Chin Haur Indonesia PT (represented by: T. Müller-Ibold, Rechtsanwalt, and F.-C. Laprévote, avocat), Council of the European Union, (represented initially by: S. Boelaert, and subsequently by H. Marcos Fraile and B. Driessen, acting as Agents, and by R. Bierwagen and C. Hipp, Rechtsanwälte), Maxcom Ltd (represented by: L. Ruessmann, avocat, and J. Beck, Solicitor)

      (Case C-259/15 P)

      Appellant: Council of the European Union, (represented initially by: S. Boelaert, and subsequently by H. Marcos Fraile and B. Driessen, acting as Agents, and by R. Bierwagen and C. Hipp, Rechtsanwälte)

      Other parties to the proceedings: Chin Haur Indonesia PT (represented by: T. Müller-Ibold, Rechtsanwalt, and F.-C. Laprévote, avocat), European Commission (represented by: J.-F. Brakeland and M. França, acting as Agents), Maxcom Ltd (represented by: L. Ruessmann, avocat, and J. Beck, Solicitor)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the General Court of the European Union of 19 March 2015, Chin Haur Indonesia v Council, (T-412/13, EU:T:2015:163);

               2.

               Dismisses the action for annulment brought by Chin Haur Indonesia PT before the General Court of the European Union in Case T-412/13;

               3.

               Orders Chin Haur Indonesia PT to bear its own costs and to pay the costs incurred by Maxcom Ltd and the Council of the European Union in both the proceedings at first instance in Case T-412/13 and the appeal proceedings;

               4.

               Orders Chin Haur Indonesia PT to pay the costs incurred by the European Commission in relation to the appeal in Case C-253/15 P;

               5.

               Orders the European Commission to bear its own costs in relation to the appeal proceedings in Cases C-247/15 P and C-259/15 P and the proceedings at first instance in Case T-412/13.

      (1)  OJ C 262, 10.8.2015.

      OJ C 254, 3.8.2015.


title: Case C-245/99 P: Appeal brought on 1 July 1999 by Montedison SpA against the judgment delivered on 20 April 1999 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-325/94 (Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94) between LVM NV, Elf Atochem SA, BASF AG, Shell International Chemical Company Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AG, S.A.V., Montedison SpA, I.C.I. plc, Hüls AG and Enichem SpA and the Commission of the European Communities

text:
C 352/12                EN                    Official Journal of the European Communities                                     4.12.1999
European Communities was brought before the Court of                     Appeal brought on 1 July 1999 by Montedison SpA
Justice of the European Communities on 28 June 1999 by (1)               against the judgment delivered on 20 April 1999 by the
DSM N.V. and (2) DSM Kunststoffen B.V., represented by                   Third Chamber, Extended Composition, of the Court of
I.G.F. Cath, Advocaat with a right of audience before the                First Instance of the European Communities in Case
Hoge Raad der Nederlanden, with an address for service in                T-325/94 (Joined Cases T-305/94, T-306/94, T-307/94,
Luxembourg at the Chambers of L. Dupong, 4-6 Rue de la                   T-313/94, T-314/94, T-315/94, T-316/94, T-318/94,
Boucherie.                                                               T-325/94, T-328/94, T-329/94 and T-335/94) between
                                                                         LVM NV, Elf Atochem SA, BASF AG, Shell International
                                                                         Chemical Company Ltd, DSM NV and DSM Kunststoffen
The appellants claim that the Court should:                              BV, Wacker-Chemie GmbH, Hoechst AG, S.A.V., Montedi-
                                                                         son SpA, I.C.I. plc, Hüls AG and Enichem SpA and the
                                                                                Commission of the European Communities
1. set aside, either wholly or in part, the judgment delivered
     by the Court of First Instance of the European Communities                                 (Case C-245/99 P)
     on 20 April 1999 against which the present appeal has
     been brought, and terminate the proceedings,                                                (1999/C 352/21)
                                                                         An appeal against the Judgment delivered on 20 April 1999
2. alternatively: set aside the contested judgment, either wholly        by the Third Chamber, Extended Composition, of the Court of
     or in part, and refer the case back to the Court of First           First Instance of the European Communities in Case T-325/94
     Instance in order for the proceedings to be resumed;                (Joined Cases T-305/94, T-306/94, T-307/94, T-313/94,
                                                                         T-314/94, T-315/94, T-316/94, T-318/94, T-325/94,
                                                                         T-328/94, T-329/94 and T-335/94) between LVM NV, Elf
3. annul, alternatively declare void, either wholly or in part,          Atochem SA, BASF AG, Shell International Chemical Company
     the contested decision of the Commission of 27 July 1994;           Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie
                                                                         GmbH, Hoechst AG, S.A.V., Montedison SpA, I.C.I. plc, Hüls
                                                                         AG and Enichem SpA and the Commission of the European
4. annul, alternatively reduce, the fine imposed on the                  Communities was brought before the Court of Justice of the
     appellant by the Commission’s decision of 27 July 1994;             European Communities on 1 July 1999 by Montedison SpA, a
                                                                         company whose registered office is in Milan (Italy), represented
                                                                         by Giuseppe Celona, of the Milan Bar, and Piero A.M. Ferrari,
5. adopt such further measures as the Court may think fit;               of the Rome Bar, with an address for service in Luxembourg at
                                                                         the Chambers of George Margue, 20 Rue Philippe II, L-2340
                                                                         Luxembourg.
6. order the Commission, as the party at fault, to pay the
     costs of both sets of proceedings.                                  The appellant claims that the Court should:
                                                                         Organisation:
                                                                         — assign the case to the Court of Justice sitting in plenary
Pleas in law and main arguments                                              session;
— Inviolability of the home: in accordance with the Niemietz             Jurisdiction:
     judgment of the European Court of Human Rights (1), the             — declare all the actions admissible;
     exercise by the Commission of its powers in the context
     of investigations within the meaning of Article 14 of               Legality:
     Regulation No 17 is subject to the guarantees provided in
     that connection by Article 8 of the European Convention             — annul the contested decision on the grounds of:
     on Human Rights and the interpretation thereof by the
     European Court of Human Rights, which differs from that                 — complete lack of the power exercised;
     of the Court of Justice (2).                                            — and/or absence of the procedure laid down for the
                                                                                exercise of such power;
— The first to sixth pleas and the eighth to eleventh pleas are              — and/or lapse of the right;
     the same as those advanced in Case C-238/99 P.
                                                                             — and/or any of the other grounds set out in the
                                                                                application;
                                                                         Substance:
(1) Judgment of the European Court of Human Rights of 16 December
    1992 in Niemietz v Germany, Series A, No 251-B.                      — return the case file to the Court of First Instance so that it
(2) Judgment of 21.9.1989 in Joined Cases 46/87 and 227/88, (1989)           may consider the pleas raised by the applicant at first
    ECR 2859.                                                                instance but not considered by the Court, evaluate the
                                                                             documentary evidence not considered by the Court, allow
                                                                             the witness evidence submitted but rejected, cancel the fine
                                                                             imposed or reduce it to such amount as is proportional to
                                                                             the duration and seriousness of the matters for which
                                                                             Montedison was held liable;
 ---pagebreak--- 4.12.1999               EN                       Official Journal of the European Communities                                        C 352/13
— reduce the amount of the fine by a sum which corresponds                  Appeal brought on 2 July 1999 by Elf Atochem SA against
    to the damage sustained by Montedison by reason of the                  the judgment delivered on 20 April 1999 by the Third
    duration of the proceeding, the issue of a fresh decision in            Chamber (Extended Composition) of the Court of First
    lieu of the annulled decision, and the cost of the security             Instance of the European Communities in Joined Cases
    guarantee;                                                              T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
                                                                            T-315/94, T-316/94, T-318/94, T-325/4, T-328/4, T-329/94
Costs:                                                                      and T-335/94 between LVM NV, Elf Atochem SA, BASF
                                                                            AG, Shell International Chemical Company Ltd, DSM
— order the Commission to pay the applicant the whole of                    NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
    the costs and fees relating to the proceedings at first                 Hoechst AG, Société Artésienne de Vinyle, Montedison
    instance and on appeal.                                                 SpA, Imperial Chemical Industries plc, Hüls AG and
                                                                            Enichem SpA and the Commission of the European
                                                                                Communities
Pleas in law and main arguments
                                                                                (Case C-247/99 P)
1. The Court of First Instance failed to consider the first
    ground of challenge raised by the applicant (the fact that
    the Commission exercised and exhausted its powers in                                             (1999/C 352/22)
    relation to the facts at issue); definitive conferment upon
    the Court of First Instance and the Court of Justice of the
    powers relating to the fines; infringement of Article 172 of            An appeal against the judgment delivered on 20 April 1999
    the EC Treaty (now Article 229 EC) and Article 17 of                    by the Third Chamber (Extended Composition) of the Court of
    Council Regulation No 17/62 (1) in relation to                          First Instance of the European Communities in Joined Cases
    Article 87(2)(d) of the EC Treaty (now, after amendment,                T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
    Article 83 EC).                                                         T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
                                                                            T-329/94 and T-335/94 between LVM NV, Elf Atochem SA,
2. Failure to give reasons in relation to the second ground of              BASF AG, Shell International Chemical Company Ltd, DSM
    challenge (non-existence of the proceeding).                            NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
                                                                            Hoechst AG, Société Artésienne de Vinyle, Montedison SpA,
3. Fai1ure to consider the economic context. Breach of the                  Imperial Chemical Industries plc, Hüls AG and Enichem SpA
    principle of Community law according to which, whenever                 and the Commission of the European Communities was
    an assessment is made of competitive conduct, an evalu-                 brought before the Court of Justice of the European Communi-
    ation of the economic and legislative context must first be             ties on 2 July 1999 by Elf Atochem SA, represented by Xavier
    carried out. Breach of the principle of Community law                   de Roux, of the Paris Bar, with an address for service in
    according to which, where an undertaking is able to offer               Luxembourg at the Chambers of Jacques Loesch, 11 Rue
    a non-anticompetitive justification for its conduct, it                 Goethe.
    cannot be held to have infringed Article 85 and 86 of the
    EC Treaty (now Articles 81 and 82 EC).
4. The Court of First Instance appears to have misapplied the               The appellant claims that the Court should:
    rules laid down by Regulation No 2988/74 (2) as regards
    time-limits.
                                                                            — annul the judgment of the Court of First Instance of
                                                                                20 April 1999 in Joined Cases T-305/94, T-306/94,
5. Infringement of the right to an individual defence rather
                                                                                T-307/94, T-313/94, T-314/94, T-315/94, T-316/94,
    than a collective defence.                                                   T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94,
                                                                                drawing the legal consequences from such annulment, and
6. Infringement of Article 6(1) of the European Convention                       in particular ruling definitively on the dispute itself;
    on Human Rights in that the Court of First Instance
    to consider documentary evidence for the defence and
    excluded, without valid reasons, additional documentary                 — order the Commission to pay the costs.
    evidence in favour of Montedison.
7. Clear lack of logic, and/or failure to consider defence
    arguments put forward to the effect that the amount of the
    fine was out of proportion to the seriousness and duration              Pleas in law and main arguments
    of the conduct.
8. Failure to consider evidence of the damage sustained by                  — Error of law in that the Court of First Instance refrained
    Montedison and breach of the principle of the Com-                           from finding that the Commission adopted a new decision
    mission’s responsibility for unlawful conduct.                               on 27 July 1994. The annulment of the 1988 decision by
                                                                                the judgment of the Court of Justice of 19 April 1994
                                                                                necessarily entailed the annulment of the whole of the
(1) OJ, English Special Edition (59-62), I, p. 87.                               prior administrative procedure. The Commission could
(2) OJ L 319 of 29.11.1974, p. 1.                                                therefore take a new decision, distinct from that of 1988,
                                                                                only at the conclusion of a new proceeding. The 1994
                                                                                decision did not have the same addressees, Norsk Hydro
                                                                                and Solvay not being among them. However, the conduct


title: Case C-541/12: Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 28 November 2012 — Ralf Schuster v Federal Republic of Germany

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/14

         Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 28 November 2012 — Ralf Schuster v Federal Republic of Germany
   (Case C-541/12)
   2013/C 46/27
   Language of the case: German

      Referring court

   Verwaltungsgericht Berlin

      Parties to the main proceedings

      Applicant: Ralf Schuster

      Defendant: Federal Republic of Germany

      Questions referred

               1.

               Is European primary and/or secondary law, here in particular Directive 2000/78/EC, (1) to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Federal civil servants?

               2.

               If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a civil servant on establishment of the status of civil servant is substantially dependent on his age and also, in particular, rises according to the duration of civil servant status constitutes direct or indirect age discrimination?

               3.

               If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience?

               4.

               If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?
               Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?

               5.

               Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the civil servants’ having enforced that claim in good time?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16)


title: Case C-219/07: Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 27 April 2007 — VZW de Nationale Raad van Dierenkwekers en Liefhebbers and VZW Andibel v Belgische Staat

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/13

         Reference for a preliminary ruling from the Raad van State (Belgium) lodged on 27 April 2007 — VZW de Nationale Raad van Dierenkwekers en Liefhebbers and VZW Andibel v Belgische Staat
   (Case C-219/07)
   (2007/C 155/25)
   Language of the case: Dutch
   Referring court
   Raad van State (Belgium)
   Parties to the main proceedings

      Applicants: VZW de Nationale Raad van Dierenkwekers en Liefhebbers and VZW Andibel

      Defendant: Belgische Staat
   Questions referred

               1.

               Must Article 30 of the Treaty of 25 March 1957 establishing the European Community, in itself or in conjunction with Council Regulation (EC) No 338/97 (1) of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, be interpreted as meaning that a prohibition on the import of or trade in fauna, imposed in implementation of Article 3bis(1) of the Law of 4 August 1986 on the protection and welfare of animals (Wet betreffende de bescherming en het welzijn der dieren), is not justified in respect of mammals which are imported from another EU Member State and which come under category B, C or D in the Regulation or are not referred to in the Regulation, where those mammals are held in that Member State in accordance with the legislation of that State and that legislation complies with the provisions of the Regulation?

               2.

               Does Article 30 EC of the EC Treaty or Regulation No 338/97 preclude the adoption by a Member State of rules which, under existing legislation on animal welfare, prohibit any commercial use of specimens, save where those specimens are explicitly referred to in those national rules, where the objective of the protection of those species, as referred to in Article 30 EC, can be achieved just as effectively by measures which obstruct intra-Community trade less?

      (1)  OJ 1997 L 61, p. 1.


title: Case C-548/12: Judgment of the Court (Seventh Chamber) of 13 March 2014 (request for a preliminary ruling from the Landgericht Krefeld — Germany) — Marc Brogsitter v Fabrication de Montres Normandes EURL, Karsten Fräßdorf (Area of freedom, security and justice  — Jurisdiction in civil and commercial matters  — Regulation (EC) No 44/2001 — Special jurisdiction  — Article 5(1) and (3)  — Civil liability claim  — Tortious or contractual nature)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/10

         Judgment of the Court (Seventh Chamber) of 13 March 2014 (request for a preliminary ruling from the Landgericht Krefeld — Germany) — Marc Brogsitter v Fabrication de Montres Normandes EURL, Karsten Fräßdorf
   (Case C-548/12) (1)

   ((Area of freedom, security and justice - Jurisdiction in civil and commercial matters - Regulation (EC) No 44/2001 — Special jurisdiction - Article 5(1) and (3) - Civil liability claim - Tortious or contractual nature))
   2014/C 135/10
   Language of the case: German

      Referring court

   Landgericht Krefeld

      Parties to the main proceedings

      Applicant: Marc Brogsitter

      Defendants: Fabrication de Montres Normandes EURL, Karsten Fräßdorf

      Re:

   Request for a preliminary ruling — Landgericht Krefeld — Interpretation of Article 5(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Special jurisdiction — Action brought before a court with jurisdiction in matters of tort or delict — Situation in which the tortious or delictual act was committed in the course of the performance of the contract between the tortfeasor and the victim and the court pertaining to the place of performance of the underlying obligation is situated in another Member State — Determination of the court with jurisdiction.

      Operative part of the judgment

   Civil liability claims such as those at issue in the main proceedings, which are made in tort under national law, must nonetheless be considered as concerning ‘matters relating to a contract’ within the meaning of Article 5(1)(a) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, where the conduct complained of may be considered a breach of the terms of the contract, which may be established by taking into account the purpose of the contract.

      (1)  OJ C 101, 6.4.2013.


title: Case C-126/06: Reference for a preliminary ruling from the Diikitiko Protodikio Tripoleos lodged on  3 March 2006 , Carrefour — Marinopoulos v Nomarkhiaki Aftodiikisi Tripoleos

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/8

         Reference for a preliminary ruling from the Diikitiko Protodikio Tripoleos lodged on 3 March 2006, Carrefour — Marinopoulos v Nomarkhiaki Aftodiikisi Tripoleos
   (Case C-126/06)
   (2006/C 108/13)
   Language of the case: Greek
   Referring court
   Diikitiko Protodikio Tripoleos
   Date lodged: 3 March 2006
   Parties to the main proceedings

      Applicant: Carrefour — Marinopoulos AE

      Defendant: Nomarkhiaki Aftodiikisi Tripoleos
   Questions referred

               (a)

               Does the requirement for the prior licence referred to in the grounds of the decision in order to market ‘bake-off’ products constitute a measure equivalent to a quantitative restriction within the meaning of Article 28 of the EC Treaty?

               (b)

               If it were considered to be a quantitative restriction, does the requirement for a prior licence in order to make bread pursue a purely qualitative objective, that is to say establish a mere qualitative differentiation with regard to the characteristics of the bread marketed (of smell, taste, colour and the appearance of the crust) and its nutritional value (judgment of the Court of Justice in Case C 325/00 Commission v Germany [2002] ECR I-9977) or does it seek to protect consumers and public health from any deterioration in the bread's quality (Simvoulio tis Epikratias (Council of State) 3852/2002)?

               (c)

               On the basis that the abovementioned restriction concerns both domestic and Community ‘bake-off’ products without distinction, is there a link with Community law and is that restriction capable of affecting, whether directly or indirectly, actually or potentially, the free trading of those products between Member States?


title: Reference for a preliminary ruling from the Centrale Raad van Beroep by order of that court of 10 July 1997 in the case of Landelijk Instituut Sociale Verzekeringen v. (1) C.J. Voeten and (2) J. Beckers (Case C-279/97)

text:
6 . 9 . 97               lEN ]                Official Journal of the European Communities                                     C 271 /13
( iii ) The starting date of 28 May 1992 for which the                   Reference for a preliminary ruling from the Centrale Raad
         Defendants contend is neither that laid down in the             van Beroep by order of that court of 10 July 1997 in the
         loan agreement nor that purportedly suggested by the            case of Landelijk Instituut Sociale Verzekeringen v. ( 1 ) C.J.
         Commission in its letter of 23 January 1995 . The                                  Voeten and ( 2 ) J. Beckers
         notion that the assessment period commenced on                                           (Case C-279/97)
         28 May 1992 thus has no basis in law.
                                                                                ( 97/C 271 /22 )
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by the Centrale Raad van Beroep
                                                                         ( Court of last instance in social security matters) by order
Action brought on 30 July 1997 by the Commission of the                  of that court of 10 July 1997 in the case of Landelijk
   European Communities against the Kingdom of Belgium                   Instituut Sociale Verzekeringen v. ( 1 ) C.J. Voeten and (2 ) J.
                            ( Case C-277/97)                             Beckers on the following questions:
                              ( 97/C 271/21 )                            1 . Does Article 51 ( 1 ) of Regulation ( EEC ) No 547/72 ( ] )
                                                                              preclude the competent institution from carrying out
An action against the Kingdom of Belgium was brought                          in the country of the competent institution a medical
before the Court of Justice of the European Communities                       examination on a person in receipt of benefit for
on 30 July 1997 by the Commission of the European                             incapacity for work as part of checking the employee's
Communities, represented by Lena Strom and Gotz zur                           degree of incapacity in the absence of a prior medical
Hausen, acting as Agents, with an address for service in                      examination carried out by the institution of the place
Luxembourg at the office of Carlos Gomez de la Cruz,                          of stay or residence, where the employee is a frontier
Wagner Centre, Kirchberg.                                                     worker and, as a result, it can be taken that the
                                                                              distance between his place of residence and the
The applicant claims that the Court should:                                   competent institution is not necessarily greater than
                                                                              the distance between his place of residence and the
 1 . declare that, by failing to implement within the                         institution of the place of residence ?
        prescribed period all measures necessary to comply
                                                                         2.   In the case of determination for the first time of
        with Council Directive 92/3/Euratom of 3 February
        1992 on the supervision and control of shipments of                   entitlement to benefit, does Article 40 of Regulation
        radioactive waste between Member States and into                      ( EEC ) No 574/72 preclude the competent institution
        and out of the Community ('), the Kingdom of                          from assessing the incapacity for work on the basis of
        Belgium has failed to fulfil its obligations under the                its own medical examination, without a prior medical
        EAEC Treaty;                                                          examination by the institution of the place of
                                                                              residence ?
2 . order the Kingdom of Belgium to pay the costs.
                                                                         3 . If the answer to question 2 is in the negative: does that
Pleas in law and main arguments adduced in support:                           also apply where the competent institution has not
                                                                              requested and hence not taken account of medical
The pleas in law and main arguments are similar to those                      documents and reports and also information from the
in Case C-220/97 (2 ).                                                        institution of the place of residence, but only apprised
                                                                              itself of medical information from the attending
H OJ L 35 , 12 . 2 . 1992, p . 24 .                                           practitioner in the country where the employee is
( 2 ) OJ C 252 , 16 . 8 . 1997, p. 15 .                                       undergoing medical treatment ?
                                                                         (') OJ, English Special Edition, 1972 ( I ), p. 160 .


title: Case T-304/05: Action brought on 4 August 2005 — Cain Cellars v OHIM

text:
               15.10.2005

               EN

               Official Journal of the European Union

               C 257/15

         Action brought on 4 August 2005 — Cain Cellars v OHIM
   (Case T-304/05)
   (2005/C 257/29)
   Language in which the application was lodged: German
   Parties:

      Applicant: Cain Cellars, Inc. (St. Helena, United States) (represented by: W.-W. Wodrich, lawyer, and J.K.F. Albrecht, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought:
   The applicant claims that the Court should:

               —

               annul the decision of the defendant (First Board of Appeal) of 23 May 2005 in Case R 0975/2004-1;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:

      Community trade mark concerned: The figurative mark in the form of a pentagon for ‘Wine’ goods in Class 33 — Application No 3 425 121

      Decision of the Examiner: Rejection of the application

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

      Pleas in law: It is irrelevant from a legal viewpoint that the mark applied for is a geometric figure, since in respect of the role of trade marks and their capability of working as company signs, only the assessment of the average consumer who is reasonably well informed and reasonably observant and circumspect is relevant. The defendant has breached that principle of assessment in the contested decision. The figure in the form of a pentagon is unusual and striking and therefore has distinctive character and indicates the company origin. Article 7(1)(b) of Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark does not thereby preclude registration of the mark of the applicant for which protection is sought.


title: Case F-21/13: Action brought on 8 March 2013 — ZZ v Commission

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/55

         Action brought on 8 March 2013 — ZZ v Commission
   (Case F-21/13)
   2013/C 156/101
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: T. Bontinck and S. Greco, lawyers)

      Defendant: Commission

      Subject-matter and description of the proceedings

   The annulment of the decision relating to the transfer of the applicant’s pension rights to the European Union pension scheme on the basis of the proposed calculation applying the new GIP relating to Articles 11 and 12 of Annex VIII to the Staff Regulations of Officials.

      Form of order sought

               —

               Declare Article 9 of the general implementing provisions of Article 11(2) of Annex VIII to the Staff Regulations of Officials unlawful;

               —

               In consequence, annul the decision of the Secretariat General of the Council of 23 May 2012 establishing a proposal for the transfer of pension rights under Article 11(2) of Annex VIII of the Staff Regulations on the basis of the GIP of 11.10.2011 to the applicant as signed by her on 19 July 2012;

               —

               Order the defendant to pay all the costs, in accordance with Article 87(1) of the Rules of Procedure of the Civil Service Tribunal.


title: Case C-68/15: Request for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 13 February 2015 — X; other party: Ministerraad

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/16

         Request for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 13 February 2015 — X; other party: Ministerraad
   (Case C-68/15)
   (2015/C 146/24)
   Language of the case: Dutch

      Referring court

   Grondwettelijk Hof

      Parties to the main proceedings

      Applicant: X

      Defendant: Ministerraad

      Questions referred

               1.

               Must Article 49 of the Treaty on the Functioning of the European Union be interpreted as precluding national rules under which:

                           (a)

                           companies established in another Member State and having a Belgian permanent establishment are subject to a tax if they decide to distribute profits which are not included in the final taxable profits of the company, irrespective of whether profits have flowed from the Belgian permanent establishment to the main establishment, whereas companies established in another Member State and having a Belgian subsidiary are not subject to such a tax if they decide to distribute profits which are not included in the final taxable profits of the company, irrespective of whether or not the subsidiary has distributed a dividend;

                           (b)

                           companies established in another Member State and having a Belgian permanent establishment are, if they retain the Belgian profits in full, subject to a tax if they decide to distribute profits which are not included in the final taxable profits of the company, whereas Belgian companies are not subject to such a tax if they retain their profits in full?

               2.

               Must Article 5(1) of Council Directive 2011/96/EU (1) of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States be interpreted as meaning that there is withholding tax in the case where a provision of national law requires that a tax be imposed on a distribution of profits by a subsidiary to its parent company in that, in the same taxable period, dividends are distributed and the taxable profits are wholly or partly reduced by the deduction for risk capital and/or by tax losses carried forward, whereas under national law the profits would not be taxable if they remained with the subsidiary and were not distributed to the parent company?

               3.

               Must Article 4(3) of Directive 2011/96/EU be interpreted as precluding national legislation under which a tax is levied on the distribution of dividends if that legislation has the effect that, in the case where a company distributes a received dividend in a year subsequent to the year in which it received that dividend itself, it is taxed on a portion of the dividend which exceeds the threshold laid down in the aforementioned Article 4(3) of the Directive, whereas that is not the case if that company redistributes a dividend in the year in which it receives it?

      (1)  OJ 2011 L 345, p. 8.


title: Case T-103/05: Judgment of the Court of First Instance of 20 November 2007 — P v Commission (Civil service — Remuneration — Improper absence — Loss of the benefit of remuneration — Article 59 of the Staff Regulations — Medical certificate)

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/12

         Judgment of the Court of First Instance of 20 November 2007 — P v Commission
   (Case T-103/05) (1)

   (Civil service - Remuneration - Improper absence - Loss of the benefit of remuneration - Article 59 of the Staff Regulations - Medical certificate)
   (2008/C 8/22)
   Language of the case: Spanish
   Parties

      Applicant: P (Barcelona, Spain) (represented by: M. Griful i Ponsati, lawyer)

      Defendant: Commission of the European Communities (represented initially by J. Currall and L. Lozano Palacios, and later by J. Currall and I. Martínez del Peral, Agents)
   Re:
   Annulment of the Commission's decision of 10 May 2004 declaring the applicant's absence improper from 16 March 2004 and suspending payment her salary from 15 April 2004 until the date on which she commenced performing her duties at the DG Press and Communication in Brussels.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the application;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 132 of 28.5.2005.


title: Case T-387/08: Judgment of the General Court of 9 September 2010 — Evropaïki Dynamiki v Commission (Public service contracts — Publications Office’s tendering procedure — Provision of computing services — Rejection of a tenderer’s bid — Action for annulment — Award criteria and sub-criteria — Obligation to state the reasons on which the decision is based — Equal treatment — Transparency — Manifest error of assessment — Misuse of powers — Claim for damages)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/35

      Judgment of the General Court of 9 September 2010 — Evropaïki Dynamiki v Commission
      (Case T-387/08) (1)

      (Public service contracts - Publications Office’s tendering procedure - Provision of computing services - Rejection of a tenderer’s bid - Action for annulment - Award criteria and sub-criteria - Obligation to state the reasons on which the decision is based - Equal treatment - Transparency - Manifest error of assessment - Misuse of powers - Claim for damages)
      (2010/C 288/66)
      Language of the case: English

         Parties

         Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and P. Katsimani, lawyers)

         Defendant: European Commission (represented by: E. Manhaeve and N. Bambara, Agents, and by J. Stuyck, lawyer)

         Re:

      Application (i) for annulment of the decision of the Publications Office of the European Union of 20 June 2008 rejecting the tender submitted by the applicant in Call for Tender AO 10185 for computing services — maintenance of the SEI-BUD/AMD/CR systems and related services (OJ 2008/S 43-058884) and of the decision to award the contract to another tenderer, and (ii) for damages

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear 90 % of its own costs and to pay 90 % of the costs incurred by the European Commission, and the latter to bear 10 % of its own costs and to pay 10 % of the costs incurred by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE.

         (1)  OJ C 301, 22.11.2008.


title: Judgment of the Court of First Instance of 16 March 2005 in Case T-283/02 EnBW Kernkraft GmbH v Commission of the European Communities (TACIS Programme — Services provided in connection with a nuclear power station in Ukraine — Not paid for — Jurisdiction of the Court of First Instance — Action for compensation — Non-contractual liability)

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/24

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 16 March 2005
   in Case T-283/02 EnBW Kernkraft GmbH v Commission of the European Communities (1)

   (TACIS Programme - Services provided in connection with a nuclear power station in Ukraine - Not paid for - Jurisdiction of the Court of First Instance - Action for compensation - Non-contractual liability)
   (2005/C 132/44)
   Language of the case: German
   In Case T-283/02: EnBW Kernkraft GmbH, fomerly Gemeinschaftskernkraftwerk Neckar GmbH, established in Neckarwestheim (Germany), represented by S. Zickgraf, lawyer, against Commission of the European Communities (Agents: S. Fries and F. Hoffmeister, with an address for service in Luxembourg) — application for compensation under Article 288 EC in respect of damage allegedly suffered by the applicant following failure by the Commission to pay for the services provided by it under the TACIS programme in relation to the Zaporozhe nuclear power station (Ukraine) — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and V. Vadapalas, Judges; D. Christensen, Administrator, for the Registrar, gave a judgment on 16 March 2005, in which it:

               1.

               Dismisses the application;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 289 of 23.11.2002.


title: Joined Cases T-37/07 and T-323/07: Judgment of the Court of First Instance of 2 September 2009 — El Morabit v Council (Common Foreign and Security Policy — Restrictive measures with a view to combating terrorism — Freezing of funds — List of persons, groups and entities — Action for annulment)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/23

         Judgment of the Court of First Instance of 2 September 2009 — El Morabit v Council
   (Joined Cases T-37/07 and T-323/07) (1)

   (Common Foreign and Security Policy - Restrictive measures with a view to combating terrorism - Freezing of funds - List of persons, groups and entities - Action for annulment)
   2009/C 256/42
   Language of the case: Dutch

      Parties

      Applicant: Mohamed El Morabit (Amsterdam, Netherlands) (represented by: U. Sarikaya, lawyer)

      Defendant: Council of the European Union (represented by: E. Finnegan, G. Van Hegelsom and B. Driessen, Agents)

      Interveners in support of the defendant: Kingdom of the Netherlands (represented by: C. Wissels and M. De Mol, and, in Case T-37/07, M. de Grave and, in Case T-323/07, Y. de Vries and M. Noort, Agents); and Commission of the European Communities (represented: in Case T-37/07 by S. Boelaert and J. Aquilina, and in Case T-323/07 by P. van Nuffel and S. Boelaert, Agents)

      Re:

   Action for the annulment, in part, of, first, Council Decision 2007/445/EC of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58) and, second, Council Decision 2006/1008/EC of 21 December 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2006 L 379, p. 123), in so far as the name of the applicant appears on the lists of persons, groups and entities to which those provisions apply.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Mr Mohamed El Morabit to bear his own costs and pay those of the Council;

               3.

               Orders the Commission of the European Communities and the Kingdom of the Netherlands to bear their own costs.

      (1)  OJ C 82, 14. 4. 2007.


title: Case C-229/10: Order of the Court (Second Chamber) of 21 March 2013 (request for a preliminary ruling from the Tribunal Cível da Comarca do Porto — Portugal) — Maria Alice Pendão Lapa Costa Ferreira, Alexandra Pendão Lapa Ferreira v Companhia de Seguros Tranquilidade SA (Article 99 of the Rules of Procedure — Insurance against civil liability in respect of the use of motor vehicles — Directives 72/166/EEC, 84/5/EEC and 90/232/EEC — Right to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles — Civil liability of the insured person — Victim’s contribution to loss or injury — Exclusion or limitation of the right to compensation)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/39

         Order of the Court (Second Chamber) of 21 March 2013 (request for a preliminary ruling from the Tribunal Cível da Comarca do Porto — Portugal) — Maria Alice Pendão Lapa Costa Ferreira, Alexandra Pendão Lapa Ferreira v Companhia de Seguros Tranquilidade SA
   (Case C-229/10) (1)

   (Article 99 of the Rules of Procedure - Insurance against civil liability in respect of the use of motor vehicles - Directives 72/166/EEC, 84/5/EEC and 90/232/EEC - Right to compensation by means of compulsory insurance against civil liability in respect of the use of motor vehicles - Civil liability of the insured person - Victim’s contribution to loss or injury - Exclusion or limitation of the right to compensation)
   2013/C 225/66
   Language of the case: Portuguese

      Referring court

   Tribunal Cível da Comarca do Porto

      Parties to the main proceedings

      Applicants: Maria Alice Pendão Lapa Costa Ferreira, Alexandra Pendão Lapa Ferreira

      Defendant: Companhia de Seguros Tranquilidade SA

      Re:

   Reference for a preliminary ruling — Tribunal Cível da Comarca do Porto — Interpretation of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360); Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17); Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33, and in particular of Article 1a thereof); Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive) (OJ 2000 L 181, p. 65); and Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles (OJ 2005 L 149, p. 14) — Provision of national law which, in the case of an accident caused by the conduct of the pedestrian alone who is the victim of the accident, excludes the liability for risk posed by the use of motor vehicles, and which allows the right to compensation of accident victims to be excluded or reduced, where there is concurrent fault, because the victim has contributed to the loss.

      Operative part of the order

   Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability, Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17), and the Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles must be interpreted as not precluding national provisions falling within civil liability law that allow exclusion or limitation of the right of the victim of an accident to claim compensation under the civil liability insurance of the motor vehicle involved in the accident, on the basis of an individual assessment of the exclusive or partial contribution of that victim to his own loss or injury.

      (1)  OJ C 195, 17.7.2010.