title: Case T-310/07: Action brought on 17 August 2007 — gardeur v OHIM — Blue Rose (g)

text:
               20.10.2007

               EN

               Official Journal of the European Union

               C 247/36

         Action brought on 17 August 2007 — gardeur v OHIM — Blue Rose (g)
   (Case T-310/07)
   (2007/C 247/59)
   Language in which the application was lodged: English
   Parties

      Applicant: gardeur AG (Mönchengladbach, Germany) (represented by: A. Beschorner, B. Glaser, C. Thomas, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Blue Rose Inc. (Nashville Tennessee, United States)
   Form of order sought

               —

               annul the decision of the Second Board of Appeal No R 878/2006 2 of 15 June 2007, regarding Community trademark No 1153741 ‘g’ in so far as it dismisses the appeal in relation to goods in Class 25;

               —

               order the defendant to pay the costs incurred in the proceedings before the court and to order the intervener to pay the costs of the administrative proceedings before the Board of Appeal.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The figurative mark consisting of a circle containing the letter ‘g’ for goods and services in Classes 9, 25, and 41

      Proprietor of the Community trade mark: Blue Rose Inc.

      Party requesting the declaration of invalidity of the Community trade mark: Gardeur ag

      Trade mark right of the party requesting the declaration of invalidity: The Community figurative mark picturing a black square containing the letter ‘g’ for goods and services in Class 3, 18 and 25 — application No 1153741

      Decision of the Cancellation Division: Rejected the request for a declaration of invalidity

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 4 and Article 8(1)(b) of the CTMR.


title: Case C-354/04 P: Appeal brought on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti against the order delivered on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/9

         Appeal brought on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti against the order delivered on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom
   (Case C-354/04 P)
   (2004/C 251/17)
   An appeal against the order made on 7 June 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-333/02 between Gestoras Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti and the Council of the European Union, supported by the Kingdom of Spain and the United Kingdom, was brought before the Court of Justice of the European Communities on 17 August 2004 by Pro Amnistía, J.M. Olano Olano, J. Zelarain Errasti, represented by D. Rouget, avocat.
   The appellant claims that the Court should:

               1.

               hold that the present appeal is well-founded and annul the contested order;

               2.

               give, by virtue of Article 61 of the Protocol on the Statute of the Court of Justice, a final ruling on the present case and uphold the arguments put forward by the applicants at first instance, namely, to reiterate, ordering the defendant to pay compensation amounting to EUR 1 000 000 to the association Gestoras Pro Amnistía and EUR 100 000 to each of the other two applicants, Juan Mari Olano Olano and Julen Zelarain Errasti. Payment of default interest on those sums is sought at the rate of 4.5 % per annum from the date of the Court's judgment until payment is made. An order is sought that the Council bear its own costs and those of the applicants.

         Pleas and main arguments
   The Community Courts have jurisdiction to hear the actions for damages in respect of the loss caused by the inclusion of the applicant association on the list of persons, groups or entities drawn up under the legislation on the fight against terrorism.
   The legal basis for that jurisdiction is found in the present case in the Council Declaration of 18 December 2001, the eighth recital to Council Decision 2003/48/JHA (1) and Article 6 EU viewed together. In essence, at the time of adoption of Common Position 2001/931/CFSP, (2) the Council declared on 18 December 2001 that ‘any error as to persons, groups or entities named gives the injured party the right to seek legal compensation’. Furthermore, the right to an effective remedy against injurious acts of the institutions is one of the foundations of the European Union and the provisions which enshrine that right are therefore to be interpreted widely in order to fulfil the requirements arising out of Articles 1, 6(1) and 13 of the ECHR which must be applicable in the present case.
   With regard to the existence of a loss, the inclusion of the applicant association in the disputed list causes particularly serious harm to its reputation and to its freedom of expression in that it implies that the association is accused of being a terrorist organisation. In the same way, its inclusion in the list harms the reputation, the freedom of expression, the freedom of association and the private lives of the other two applicants, who are spokesmen for the association. With regard to the causal link between the Council's behaviour and the loss suffered, the repercussions on their reputation are an inescapable and immediate consequence of the inclusion in the list.
   Finally, the Council has fraudulently exploited the division into three pillars of European Union activities. In its choice of legal basis, the Council was guided by considerations of expediency such as the wish to avoid the scrutiny of the Parliament, the Ombudsman and the Court of Justice and therefore to deprive the persons concerned of the right to an effective remedy and in particular of the right to an action seeking compensation for the harm suffered. That behaviour constitutes an abuse of process.

      (1)  Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP (OJ L 16, 22.1.2003, p. 68).

      (2)  Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ L 344, 28.12.2001, p. 93).


title: Case C-297/07: Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Landgericht Regensburg — Germany) — Criminal proceedings against Klaus Bourquain (Convention implementing the Schengen Agreement — Article 54 — Ne bis in idem principle — Scope — Conviction in absentia in respect of the same acts — Concept of finally disposed of — Procedural rules of national law — Concept of penalty which can no longer be enforced )

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/5

         Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Landgericht Regensburg — Germany) — Criminal proceedings against Klaus Bourquain
   (Case C-297/07) (1)

   (Convention implementing the Schengen Agreement - Article 54 - ‘Ne bis in idem’ principle - Scope - Conviction in absentia in respect of the same acts - Concept of ‘finally disposed of’ - Procedural rules of national law - Concept of ‘penalty which can no longer be enforced’)
   (2009/C 32/08)
   Language of the case: German
   Referring court
   Landgericht Regensburg
   Defendant in the criminal proceedings
   Klaus Bourquain
   Re:
   Reference for a preliminary ruling — Landgericht Regensburg — Interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19) — Interpretation of ne bis in idem principle — Conviction in absentia in respect of same acts — No enforcement and conviction subsequently covered by general amnesty
   Operative part of the judgment
   The Court:
   The ne bis in idem principle, enshrined in Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen (Luxembourg) on 19 June 1990, is applicable to criminal proceedings instituted in a Contracting State against an accused whose trial for the same acts as those for which he faces prosecution was finally disposed of in another Contracting State, even though, under the law of the State in which he was convicted, the sentence which was imposed on him could never, on account of specific features of procedure such as those referred to in the main proceedings, have been directly enforced.

      (1)  OJ C 211, 8.9.2007.


title: JUDGMENT OF THE COURT of 16 July 1998 in Case C-355/96 (reference for a preliminary ruling from the Oberster Gerichtshof): Silhouette International Schmied GmbH & Co. KG v. Hartlauer Handelsgesellschaft mbH (Directive 89/104/EEC - Exhaustion of trade mark - Goods put on the market in the Community or in a non-member country)

text:
26.9.98               EN                  Official Journal of the European Communities                                      C 299/9
Ð compliance with that requirement must be proved                    That presupposes, however:
     within the time limits laid down in Article 28 of that
     Regulation, failing which the whole of the security
     becomes forfeit pursuant to Article 22(1) and (2) of            Ð that the good faith of the recipient has first been
     that Regulation.                                                     established, and
(1) OJ C 318, 26.10.1996.
(2) OJ L 205, 3.8.1985, p. 5.                                        Ð that the conditions prescribed are the same as those
(3) OJ L 159, 1.7.1993, p. 112.                                           which apply with respect to the recovery of purely
                                                                          national financial benefits.
                                                                     (1) OJ C 318, 26.10.1996.
               JUDGMENT OF THE COURT
                        (Fifth Chamber)
                        of 16 July 1998
                                                                                JUDGMENT OF THE COURT
in Case C-298/96 (reference for a preliminary ruling from                                    of 16 July 1998
the Verwaltungsgericht Frankfurt am Main): Oelmühle
Hamburg AG, Jb. Schmidt Söhne GmbH & Co. KG v.                       in Case C-355/96 (reference for a preliminary ruling from
     Bundesanstalt für Landwirtschaft und Ernährung (1)              the Oberster Gerichtshof): Silhouette International
                                                                                Schmied GmbH & Co. KG v. Hartlauer
(Unduly paid Community subsidy Ð Recovery Ð                                            Handelsgesellschaft mbH (1)
    Application of national law Ð Conditions and limits)
                                                                     (Directive 89/104/EEC Ð Exhaustion of trade mark Ð
                         (98/C 299/15)
                                                                     Goods put on the market in the Community or in a non-
                                                                                member country)
               (Language of the case: German)                                                 (98/C 299/16)
  (Provisional translation; the definitive translation will be                       (Language of the case: German)
          published in the European Court Reports)
                                                                       (Provisional translation; the definitive translation will be
In Case C-198/96: reference to the Court under Article 177
of the EC Treaty from the Verwaltungsgericht Frankfurt                         published in the European Court Reports)
am Main for a preliminary ruling in the proceedings
pending before that court between Oelmühle Hamburg
AG, Jb. Schmidt Söhne GmbH & Co. KG and                              In Case 355/96: reference to the Court under Article 177
Bundesanstalt für Landwirtschaft und Ernährung, on the               of the EC Treaty from the Oberster Gerichtshof for a
principles of Community law applicable to measures taken             preliminary ruling in the proceedings pending before that
by national authorities for the recovery of an unduly paid           court between Silhouette International Schmied GmbH &
Community subsidy Ð the Court (Fifth Chamber),                       Co. KG and Hartlauer Handelsgesellschaft mbH, on the
composed of: C. Gulmann, President of Chamber, M.                    interpretation of first Council Directive 89/104/EEC of
Wathelet, D. A. O. Edward, P. Jann (Rapporteur) and L.               21 December 1988 to approximate the laws of the
Sevón, Judges; P. LeÂger, Advocate General; H. von                   Member States relating to trade marks (2) as amended by
Holstein, Deputy Registrar, has given a judgment on                  the Agreement on the European Economic Area of 2 May
16 July 1998, in which it has ruled:                                 1992 (3) Ð the Court, composed of: G. C. Rodríguez
                                                                     Iglesias, President, C. Gulmann (Rapporteur), M. Wathelet
                                                                     and R. Schintgen, Presidents of Chambers, G. F. Mancini,
Community law does not in principle preclude national                L. Sevón and K. M. Ioannou, Judges; F. G. Jacobs,
legislation from allowing recovery of unduly paid                    Advocate General; H. von Holstein, Deputy Registrar, has
Community subsidies to be barred, on the basis of criteria           given a judgment on 16 July 1998, in which it has ruled:
such as loss of the enrichment, where:
                                                                     1. national rules providing for exhaustion of trade-mark
Ð the recipient of the subsidy had already, at the time                   rights in respect of products put on the market outside
     when it was granted, passed on the pecuniary                         the EEA under that mark by the proprietor or with its
     advantage resulting from it by paying the producer the               consent are contrary to Article 7(1) of first Council
     target price prescribed by Community law, and                        Directive 89/104/EEC of 21 December 1988 to
                                                                          approximate the laws of the Member States relating to
                                                                          trade marks, as amended by the Agreement on the
Ð any right or recourse against his suppliers is worthless.               European Economic Area of 2 May 1992;
 ---pagebreak--- C 299/10              EN                  Official Journal of the European Communities                                       26.9.98
2. Article 7(1) of Directive 89/104/EEC cannot be                        organisms, the Portuguese Republic has failed to fulfil
     interpreted as meaning that the proprietor of a trade               its obligations under Article 2 of that Directive;
     mark is entitled, on the basis of that provision alone,
     to obtain an order restraining a third party from using
     his trade mark for products which have been put on              2. orders the Portuguese Republic to pay the costs.
     the market outside the European Economic Area
     under that mark by the proprietor or with his consent.          (1) OJ C 295, 27.9.1997.
                                                                     (2) OJ L 297, 18.11.1994, p. 29.
(1) OJ C 388, 21.12.1996.
(2) OJ L 40, 11.12.1989, p. 1.
(3) OJ L 1, 3.1.1994, p. 3.
                                                                     Action brought on 9 July 1998 by the Hellenic Republic
                                                                        against the Commission of the European Communities
                                                                                (Case C-247/98)
                                                                                (98/C 299/18)
               JUDGMENT OF THE COURT
                        (Sixth Chamber)
                                                                     An action against the Commission of the European
                         of 16 July 1998                             Communities was brought before the Court of Justice of
in    Case   C-285/97: Commission of the European                    the European Communities on 9 July 1998 by the Hellenic
           Communities v. Portuguese Republic (1)                    Republic, represented by Dimitrios Papageorgopoulos,
                                                                     State Legal Adviser, and Ioannis-Konstantinos Khalkias,
(Failure of a Member State to fulfil its obligations Ð               Member of the State Legal Service, with an address for
Failure to transpose Directive 94/51/EC within the                   service in Luxembourg at the Greek Embassy, 117 Val
                       prescribed period)                            Sainte-Croix.
                          (98/C 299/17)
                                                                     The applicant claims that the Court should:
              (Language of the case: Portuguese)                     Ð hold the application admissible,
                                                                     Ð annul, or otherwise modify, Commission Decision 98/
  (Provisional translation; the definitive translation will be           358/EC of 6 May 1998 on the clearance of the
          published in the European Court Reports)                       accounts presented by the Member States in respect of
                                                                         the expenditure for 1994 of the Guarantee Section of
                                                                         the European Agricultural Guidance and Guarantee
In Case C-285/97: Commission of the European                             Fund (notified under document number C(1998)
Communities (Agent: Francisco de Sousa Fialho) v.                        1124) (1).
Portuguese Republic (Agents: Luís Fernandes and Pedro
Portugal) Ð application for a declaration that, by failing
                                                                     Pleas in law and main arguments adduced in support:
to adopt within the prescribed period the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 94/51/EC of 7 November 1994                     By its contested decision, the Commission, in clearing
adapting to technical progress Council Directive 90/219/             accounts for the 1994 financial year, did not recognise
EEC on the contained use of genetically modified micro-              various items of expenditure amounting to GRD
organisms (2) the Portuguese Republic has failed to fulfil           8 093 595 532 which relate to the beef and veal, fruit and
its obligations under the third paragraph of Article 189 of          vegetable, and wine sectors.
the EC Treaty and Article 2 of Directive 94/51/EC Ð the
Court (Sixth Chamber), composed of: H. Ragnemalm
(Rapporteur), Presidents of Chambers, G. F. Mancini, J. L.           The Hellenic Republic maintains that that decision of the
Murray, G. Hirsch and K. M. Ioannou, Judges; A. La                   Commission should be annulled because it is based on a
Pergola, Advocate General; R. Grass, Registrar, has given            misapprehension of the facts and on an incorrect, or
a judgment on 16 July 1998, in which it:                             otherwise insufficient, statement of reasons. In adopting
                                                                     that decision, the Commission exceeded the limits of its
                                                                     discretion, while, in particular in the compulsory
                                                                     distillation sector, it relied on a non-existent legal basis for
1. declares that, by failing to adopt within the prescribed          imposing the correction.
     period the laws, regulations and administrative
     provisions necessary to comply with Commission
     Directive 94/51/EC of 7 November 1994 adapting to               (1) OJ L 163, 6.6.1998, p. 28.
     technical progress Council Directive 90/219/EEC on
     the contained use of genetically modified micro-


title: Action brought on 14 September 1998 by Commission of the European Communities against French Republic (Case C-337/98)

text:
7.11.98                EN                  Official Journal of the European Communities                                   C 340/9
2. Whether in any event the award of reserved postal                      its action on the (more profitable) non-reserved
    monopoly services to a public undertaking, which                      services intended for the competition, and does so
    thereby occupies a dominant position in a substantial                 notwithstanding the express statutory commitments to
    part of the market, may be effected (without                          give absolute priority to the provision of services in
    Articles 86 and 90 of the Treaty being infringed)                     the public interest?
    without limitation as to time, directly by means of a
    law and implementing measures (in this case Article 2             5. Whether an infringement of Articles 85, 86 and 90 of
    of Law No 71/94); the foregoing in the absence of a                   the Treaty may derive (through confusion within the
    constitutive' State measure which Ð through                          same organisation between regulatory and operational
    impartial selection procedures Ð selects the most                     roles, inter alia through concession agreements that
    deserving undertaking which can most usefully                         self-selected the competition) form the fact that the
    respond to the public interest in having a more                       monopolistic operator of the general postal services (in
    efficient public service, the concession of the service               this case Ente Poste Italiane) notwithstanding the
    being for a limited period so that the results of the                 express statutory commitments to give absolute
    operation, upon which renewal might be made                           priority to the provision of those services rather than
    conditional, can be assessed?                                         to competing services, not only detaches itself from
                                                                          direct operation but also itself proceeds to appoint the
3. Whether the irregularity in paragraph 2 is aggravated                  outside concessionaires called on in turn to carry out
    by the fact that:                                                     the services covered by the monopoly, in breach of the
                                                                          very national law which reserves that power to the
    a) that public undertaking, appointed by legislative                  Member State (Article 111 of Law No 71/94)?
         measure to run all the reserved postal services, has
         not yet met the European standards by means of
         appropriate directions from the governing
         authority and the legislature intended to rationalise
         it (without any provision for cancellation in the
         event of failure to meet the objectives)?                    Action brought on 14 September 1998 by Commission of
                                                                          the European Communities against French Republic
    b) the State Ð pending the desired rationalisation Ð                                    (Case C-337/98)
         continues to allocate public money to deal with
         the undertaking's operating deficits?                                                (98/C 340/15)
    c) the State also proceeds to cover Ð again using                 An action against French Republic was brought before the
         public money Ð any non-profitable operations of              Court of Justice of the European Communities on
         the reserved service, without any comprehensive'            14 September 1998 by Commission of the European
         consideration of the profitability of that service,          Communities, represented by Michel Nolin, of its Legal
         which should, on the other hand, be assessed in              Service, acting as Agent, with an address for service in
         the context of the numerous territorial operations           Luxembourg at the office of Carlos Gómez de la Cruz,
         as a whole, without necessarily intervening in               Wagner Centre, Kirchberg.
         every area of difficulty, even though not reducing
         every entrepreneurial risk to zero?
                                                                      The applicant claims that the Court should:
    d) the EPI Ð by virtue of the combined effect of the
         provisions of the law establishing it, its statutes          Ð declare that, by adopting the Decision of 22 November
         and the programme contract Ð is at the same time                 1996 awarding Matra Transport the contract for the
         involved in the non reserved sector in (unequal?)                internal decoration of the light underground train
         competition       with    the    other     Community             project of the Greater Rennes District, the French
         undertakings, capitalising' to the maximum on its               Republic has failed to fulfil its obligations under
         role (its institutional role, deriving directly from a           Council Directive 93/38/EEC of 14 June 1993
         law) as a body in a dominant position covering the               coordinating the procurement procedures of entities
         entire postal monopoly?                                          operating in the water, energy, transport and
                                                                          telecommunications sectors (1), and in particular
                                                                          Articles 4(2) and 20(2)(c) thereof;
4. Whether Ð even if the foregoing points are
    disregarded Ð an infringement of Articles 85, 86 and              Ð order the French Republic to pay the costs.
    90 of the Treaty may derive from the fact that a public
    undertaking to which is entrusted by law without
    limitation as to time (and regardless of checks on                Pleas in law and main arguments adduced in support:
    productivity and efficiency) with the running of the
    general monopoly on postal services whilst at the same            The Commission considers that the contract in question
    time enjoying free access to the competing sectors (in            was concluded following a procedure without first being
    this case Ente Poste Italiane) may also, at its                   put up for tender even though the conditions set out in
    discretion, give up the direct operation of one or more           Article 20(2)(c) were not satisfied in the circumstances. It
    general services (subcontracting to third parties under           considers that the contract was awarded by resolution of
    concession agreements'), thus ultimately concentrating           the Greater Rennes District Council of 22 November 1996
 ---pagebreak--- C 340/10               EN                Official Journal of the European Communities                                        7.11.98
and not, as the French authorities maintain, by resolution          latter provision states that the invoice must be issued by a
of the Intercommunal Public Transport Board of                      taxable person to another taxable person and that it must
26 October 1989, that is to say before even Council                 relate to goods or services supplied by him to that other
Directive 90/531/EEC of 17 September 1990 on the                    person. The Netherlands rules at issue in the present case
procurement procedures of entities operating in the water,          do not refer to any such invoice.
energy, transport and telecommunications sectors (2)
entered into force.
                                                                    The economic considerations expounded by the
                                                                    Netherlands Government are not wholly without merit.
(1) OJ L 199 of 9.8.1993, p. 84.                                    However, they cannot result in the conclusion that the
(2) OJ L 297 of 29.10.1990, p. 1.
                                                                    legislation is to be interpreted in a manner contrary to its
                                                                    manifest provisions. Ratio legis non est lex.
                                                                    (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                        harmonisation of the laws of the Member States relating to
                                                                        turnover taxes Ð Common system of value added tax:
Action brought on 14 September 1998 by the Commission                   uniform basis of assessment (OJ L 145 of 13.6.1977, p. 1).
of the European Communities against the Kingdom of the
                           Netherlands
                        (Case C-338/98)
                          (98/C 340/16)
                                                                    Action brought on 17 September 1998 by Italian Republic
An action against the Kingdom of the Netherlands was                            against Council of the European Union
brought before the Court of Justice of the European                                         (Case C-340/98)
Communities on 14 September 1998 by the Commission
of the European Communities, represented by Emile                                             (98/C 340/17)
Mennens and Enrico Traversa, acting as Agents, with an
address for service in Luxembourg at the office of Carlos
                                                                    An action against the Council of the European Union was
Gómez de la Cruz, of its Legal Service, Wagner Centre,
                                                                    brought before the Court of Justice of the European
Kirchberg.
                                                                    Communities on 17 September 1998 by the Italian
                                                                    Republic, represented by Professor Umberto Leanza,
The applicant claims that the Court should:                         acting as Agent, assisted by Ivo Braguglia, Avvocato dello
                                                                    Stato, with an address for service in Luxembourg at the
Ð declare that, by providing, contrary to Articles 17(2)(a)         Italian Embassy, 5 rue Marie-AdeÂlaïde.
    and 18(1)(a) of the Sixth VAT Directive 77/388/
    EEC (1), that an employer subject to VAT may deduct             The applicant claims that the Court should:
    part of the expenses reimbursed to an employee for
    the use of a private motor vehicle for business
    purposes, the Kingdom of the Netherlands has failed             Ð annul Article 1 of Council Regulation (EC) No 1361/
    to fulfil its obligations under the EC Treaty;                       98 (1) in so far as it does not fix the derived
                                                                         intervention price for white sugar for all areas of Italy
                                                                         for the sugar-marketing year 1998/99; in addition, if
Ð order the Kingdom of the Netherlands to pay the                        need be, annul Article 1(2) of Council Regulation (EC)
    costs.                                                               No 1360/98 (2) in so far as it fixes the intervention
                                                                         price for Italy also;
Pleas in law and main arguments adduced in support:
                                                                    Ð order the Council of the European Union to pay the
The rule at issue, which is laid down in Article 23                      costs of the proceedings.
of the Netherlands Uitvoeringsbesluit Omzetbelasting
(Implementing Regulation concerning Turnover Taxes)                 Pleas in law and main arguments adduced in support:
1968, is contrary to a fundamental aspect of the Sixth
VAT Directive, since it permits the deduction of cost
elements other than the VAT charged at the previous stage           For the marketing year 1998/99 both the intervention
by a taxable person to the taxable person making the                price and the derived intervention prices were fixed by
deduction.                                                          Regulations (EC) No 1360/98 and (EC) No 1361/98,
                                                                    which entered into force on 1 July 1998.
That fundamental incompatibility between the system
operating in the Netherlands and the Sixth VAT Directive            By so doing, the Council acted in contravention of the
is complemented by an incompatibility as regards formal             provisions contained in Article 3(4) and (5) of the basic
requirements. Article 18(1)(a) of the Sixth VAT Directive           Regulation (EEC) No 1785/81 (3), since it fixed the
provides that, in order to exercise his right to deduct, the        intervention prices (including the derived intervention
taxable person must, prior to making the deduction, hold            prices) in June 1998, whereas it should have fixed them by
an invoice drawn up in accordance with Article 22(3); the           August 1997.


title: Case C-28/17: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 19 January 2017 — NN A/S v Skatteministeriet

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/12

         Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 19 January 2017 — NN A/S v Skatteministeriet
   (Case C-28/17)
   (2017/C 121/18)
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: NN A/S

      Defendant: Skatteministeriet

      Questions referred

               1.

               What factors are to be taken into account in assessing whether resident companies in a situation such as the present one are subject to an ‘equivalent condition’ within the meaning of paragraph 20 of the Philips judgment, (1) with respect to the setting off of losses, to that applicable to branches of non-resident companies?

               2.

               If it is presumed that the Danish tax rules do not contain a difference of treatment as dealt with in the Philips case, does a prohibition of setting off similar to that described — in a case in which the loss in the non-resident company’s permanent establishment is also subject to the host country’s power of taxation — in itself constitute a restriction of the right of freedom of establishment under Article 49 TFEU, which has to be justified by reference to overriding reasons of the public interest?

               3.

               If so, can such a restriction then be justified by the interest in preventing the double use of losses, the objective of ensuring a balanced distribution of powers of taxation between the Member States, or a combination of both?

               4.

               If so, is such a restriction proportionate?

      (1)  Judgment of the Court of 6 September 2012, C-18/11 (EU:C:2012:532).


title: JUDGMENT OF THE COURT (Sixth Chamber) of 3 October 1996 in Case C-380/95: Commission of the European Communities v. Hellenic Republic (Failure by a Member State to fulfil its obligations - Directive 91/414/EEC - Failure to transpose)

text:
23 . 11 . 96          EN                    Official Journal of the European Communities                                 No C 354/ 11
1 . annuls Commission Decision 93/659/EC of                            Morocco, signed in Rabat on 27 April 1976 and concluded
     25 November 1993 on the clearance of the accounts                 on behalf of the Community by Council Regulation (EEC)
     presented by the Member States in respect of the                  No 2211 /78 of 26 September 1978, is to be interpreted as
     expenditure for 1990 of the European Agricultural                 precluding a Member State from refusing, on the ground
     Guidance and Guarantee Fund (EAGGF), Guarantee                    that the person concerned is of Moroccan nationality, to
     Section, in so far as it did not charge to the EAGGF the          grant benefits such as the transitional benefits established by
     sum of DM 838 636 in respect of expenses relating to              the AOW, which are provided for by its legislation in the
     the import into Germany of animals from Belgium and               case of nationals who satisfy certain residence conditions in
     France and the sum of DM 311 529 in respect of                    that State, to the spouse of a Moroccan worker who fulfils
     expenditure relating to the export of animals to Italy;           such residence conditions.
2 . dismisses the remainder of the application;                        (') OJ No C 159 , 24 . 6 . 1995 .
3 . orders the parties to bear their own costs.
(') OJ No C 90 , 26 . 3 . 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Sixth Chamber)
                                                                                of 3 October 1996
                                                                       in Case      C-3 80/95 :        Commission of the European
               JUDGMENT OF THE COURT                                               Communities v. Hellenic Republic ( ! )
                         ( Sixth Chamber)                              (Failure by a Member State to fulfil its obligations —
                       of 3 October 1996                                      Directive 91/414/EEC — Failure to transpose)
in Case C-126/95 (reference for a preliminary ruling from                                           ( 96/C 354/21
the Centrale Raad van Beroep ): A. Hallouzi-Choho v.
         Bestuur van de Sociale Verzekeringsbank ( 1 )                                 (Language of the case: Greek)
(EEC-Morocco Cooperation Agreement — Article 41 (1) —
Principle ofnon-discrimination in matters ofsocial security            (Provisional translation; the definitive translation will be
— Direct effect — Spouse ofa Moroccan migrant worker —                          published in the European Court Reports)
Special procedures for applying the Netherlands legislation
                 on general old-age insurance)
                                                                       In Case C-3 80/95 : Commission of the European
                            ( 96/C 354/20 )                            Communities ( Agent: Maria Condou-Durande ) v. Hellenic
                                                                       Republic ( Agents: Aikaterini Samoni-Rantou and Nana
                (Language of the case: Dutch)                          Dafniou ) — application for a declaration that, by failing to
                                                                       adopt within the prescribed period the laws, regulations or
                                                                       administrative provisions necessary to comply with Council
(Provisional translation; the definitive translation will be           Directive 91 /414/EEC of 15 July 1991 concerning the
          published in the European Court Reports)                     placing of plant protection products on the market, the
                                                                       Hellenic Republic has failed to fulfil its obligations under the
In Case C-126/95 : reference to the Court under Article 177            EC Treaty and that Directive — the Court ( Sixth Chamber ),
of the EC Treaty from the Centrale Raad van Beroep                     composed of: C. N. Kakouris, President of the Chamber, G.
[Higher Social Security Court] for a preliminary ruling in the         Hirsch ( Rapporteur), G. F. Mancini , P. J. G. Kapteyn and
proceedings pending before that court between A.                       H. Ragnemalm, Judges; P. Leger, Advocate-General; R.
Hallouzi-Choho         and        Bestuur   van      de   Sociale      Grass, Registrar, has given a judgment on 3 October 1996 ,
Verzekeringsbank — on the interpretation of Article 41 ( 1 )           in which it :
of the Cooperation Agreement between the European
Economic Community and the Kingdom of Morocco,                          I. declares that, by failing to adopt within the prescribed
signed in Rabat on 27 April 1976 and concluded on behalf                    period the laws, regulations or administrative provisions
of the Community by Council Regulation ( EEC )                              necessary to comply with Council Directive
No 2211 /78 of 26 September 1978 ( OJ No L 264 , 1978 ,                     91 /414/EEC of 15 July 1991 concerning the placing of
p. 1 ) — the Court ( Sixth Chamber ), composed of: G. Hirsch,               plant protection products on the market, the Hellenic
President of the Second Chamber, acting for the President of                Republic has failed to fulfil its obligations under
the Sixth Chamber, G. F. Mancini ( Rapporteur ) and J. L.                   Article 23 of that Directive;
Murray, Judges; G. Tesauro, Advocate-General; D.
 Louterman-Hubeau, Principal Administrator, for the
 Registrar, gave a judgment on 3 October 1996 , the operative           2 . orders the Hellenic Republic to pay the costs.
part of which is as follows:
                                                                        (') OJ No C 31 , 3 . 2 . 1996 .
Article 41 (1 ) of the Cooperation Agreement between the
 European Economic Community and the Kingdom of


title: Case T-451/11: Judgment of the General Court of 15 January 2013 — Gigabyte Technology v OHIM — Haskins (Gigabyte) (Community trade mark — Opposition proceedings — Application for Community word mark Gigabyte — Earlier Community word mark GIGABITER — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               23.2.2013

               EN

               Official Journal of the European Union

               C 55/11

         Judgment of the General Court of 15 January 2013 — Gigabyte Technology v OHIM — Haskins (Gigabyte)
   (Case T-451/11) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark Gigabyte - Earlier Community word mark GIGABITER - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 55/18
   Language of the case: English

      Parties

      Applicant: Gigabyte Technology Co., Ltd (Taipei, Taiwan) (represented by: F. Schwerbrock, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Robert A. Haskins (Quakertown, Pennsylvania, United States)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 20 May 2011 (Case R 2047/2010-2), concerning opposition proceedings between Robert A. Haskins and Gigabyte Technology Co., Ltd.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Gigabyte Technology Co., Ltd to pay the costs.

      (1)  OJ C 298, 8.10.2011.


4 . 5 . 96         UN                     Official Journal of the European Communities                             No C 133/33
        Removal from the register of Case T-516/93 ( )                    Removal from the register of Case T-263/94 ( 1 )
                          ( 96/C 133/67 )                                                     ( 96/C 133/69 )
               (Language of the case: Dutch)                                        (Language of tbe case: Dutch)
By order of 7 March 1996 the President of the Fourth                 By order of 19 March 1996 the President of the First
Chamber ( Extended Composition ) of the Court of First               Chamber ( Extended Composition ) of the Court of First
Instance of the European Communities ordered the removal             Instance of the European Communities ordered the removal
from the register of Case T-516/93 : Pacific Fruit Company           from the register of Case T-263/94 : J. van Rooy v. Council
NV and Pacific Fruit Company BV v. Council of the                    of the European Union and Commission of the European
European Union and Commission of the European                        Communities .
Communities .
                                                                     (M OJ No C 275 , 1 . 10 . 1994 .
(>) OJ No C 188 , 10 . 7 . 1993 .
        Removal from the register of Case T-517/93 ( )               Removal from the register of Joined Cases T-27/95 and
                          ( 96/C 133/68 )                                                        T-29/95 (*)
                                                                                ( 96/C 133/70 )
               (Language of the case: Dutch)
                                                                                (Language of the case: French)
By order of 7 March 1996 the President of the Fourth
Chamber (Extended Composition ) of the Court of First                By order of 28 February 1 996 the President of the Second
Instance of the European Communities ordered the removal             Chamber of the Court of First Instance of the European
from the register of Case T-517/93 : Leon Van Parijs NV v.           Communities ordered the removal from the register of
Council of the European Union and Commission of the                  Joined Cases T-27/95 and T-29/95 : Nicolas Wegter and
European Communities .
                                                                     Antonio B. de Menezes v. Commission of the European
                                                                     Communities .
(') OJ No C 188 , 10 . 7 . 1993 .
                                                                     (!) OJ No C 87, 8 . 4 . 1995 .


title: Case C-70/17: Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 9 February 2017 — NCG Banco, S.A. (now Abanca Corporación Bancaria, S.A.) v Alberto García Salamanca Santos

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/17

         Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 9 February 2017 — NCG Banco, S.A. (now Abanca Corporación Bancaria, S.A.) v Alberto García Salamanca Santos
   (Case C-70/17)
   (2017/C 121/24)
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Appellant: NCG Banco, S.A. (now Abanca Corporación Bancaria, S.A.)

      Respondent: Alberto García Salamanca Santos

      Questions referred

               1.

               Must Article 6(1) of Directive 93/13 (1) be interpreted to the effect that a national court, in appraising the unfairness of an accelerated repayment clause in a mortgage loan contract concluded with a consumer that provides for acceleration upon failure to pay an instalment, in addition to other cases of non-payment of further instalments, may assess the unfairness only of the contractual term or case of non-payment of an instalment and treat the accelerated repayment clause covering non-payment of instalments also laid down on a general basis in the clause as still valid, regardless of whether any specific finding of validity or unfairness has to be deferred to the time when the power is exercised?

               2.

               Does a national court have powers under Directive 93/13 — once an accelerated repayment clause in a loan or credit contract secured by a mortgage is declared unfair — whereby it may take the view that the supplementary application of a provision of national law, even though giving rise to the commencement or continuation of enforcement proceedings against the consumer, appears more favourable to the consumer than a stay of that special mortgage enforcement procedure and may allow the creditor to initiate proceedings to terminate the loan or credit contract, or to claim the sums owing, and ensure the subsequent enforcement of the adverse judgment, without the advantages which the special mortgage enforcement procedure makes available to consumers?

      (1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).


title: Case T-533/93: Order of the Court of First Instance of 23 July 2009 — Bouma and Others v Council and Commission

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/21

         Order of the Court of First Instance of 23 July 2009 — Bouma and Others v Council and Commission
   (Case T-533/93) (1)

   2009/C 233/39

      Language of the case: Dutch

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

      (1)  OJ C 334, 9.12.1993.


title: Case C-331/07: Action brought on 16 July 2007 — Commission of the European Communities v Hellenic Republic

text:
               20.10.2007

               EN

               Official Journal of the European Union

               C 247/4

         Action brought on 16 July 2007 — Commission of the European Communities v Hellenic Republic
   (Case C-331/07)
   (2007/C 247/06)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: E. Tserepa-Lacombe and F. Erlbacher)

      Defendant: Hellenic Republic
   Form of order sought

               —

               a declaration that, by not having adopted all the measures necessary to remedy the serious shortage of staff in the services responsible for veterinary controls in Greece, which is likely to undermine the correct and effective application of the Community veterinary legislation, the Hellenic Republic has failed to fulfil its obligations under that legislation

               —

               an order that the Hellenic Republic pay the costs.

         Pleas in law and main arguments
   By this action, the Commission asks the Court to find that by not having adopted the legal and administrative measures necessary first to comply with the obligation laid down by Article 4(2) of Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (OJ 2004 L 165, p. 1 as amended in OJ 2004 L 191, p. 1) (‘Regulation 882/2004’) and the obligation to have a sufficient number of properly qualified and experienced staff to be able effectively to carry out the official controls, and secondly to comply with the obligation laid down by the provisions of the Community veterinary legislation relating to the financing of the staff necessary to carry out the prescribed veterinary controls, the Hellenic Republic has failed to fulfil its obligations under that legislation.
   The Commission states that the Community veterinary legislation requires Member States to ensure that there are carried out a substantial number of checks and controls relating to the application of the prescribed conditions and requirements. Thus, certain provisions, in particular Article 4(2)(c) of Regulation 882/2004, lay down that Member States must have a sufficient number of properly qualified and experienced staff to be able to carry out the veterinary controls. Further, many of those provisions either expressly provide that certain veterinary controls — the procedures for implementation of which are more or less detailed — must be carried out, or define the conditions and specifications which presuppose the existence of veterinary controls.
   However, relying on a large number of inspection reports submitted by the Food and Veterinary Office (FVO) of the Commission, the Commission states that on expiry of the period specified in the reasoned opinion and beyond that date, and despite certain efforts of the Greek authorities, the Hellenic Republic has not adopted all the measures necessary to remedy the failings for which it has been criticised. Since 1998, the FVO has made a large number of inspection visits to Greece, and has found a serious shortage of staff in the services responsible for carrying out the official controls prescribed by the Community legislation, at all levels of administration. The shortage discovered was such that, according to the Commission experts, the official controls which are essential to the effective application of the Community legislation relating to animal protection could not be carried out, the programmes to combat and eradicate animal diseases have not been completed, and the rules relating to animal welfare have not been complied with.
   The majority of the recommendations addressed to the Greek authorities have been implemented either not at all or inadequately. Further, the inspection reports disclose a very worrying picture of the official controls carried out in Greece.


title: Case C-395/02: Reference for a preliminary ruling by the Rechtbank van Eerste Aanleg (Antwerpen) by judgment of that Court of 4 November 2002 in the case of NV Transport service against 1. The Belgian State, and 2. BVBA Bea Cars

text:
C 7/14                EN                     Official Journal of the European Communities                                        11.1.2003
Reference for a preliminary ruling by the Rechtbank van                 Are vehicles which are designed for off-highway use and
Eerste Aanleg (Antwerpen) by judgment of that Court of                  intended for the transport and dumping of materials, and, in
4 November 2002 in the case of NV Transport service                     particular, are equipped for that purpose with an intricate,
     against 1. The Belgian State, and 2. BVBA Bea Cars                 versatile and precise tipping function, excluded from the scope
                                                                        of the term ‘dumper’ contained in heading 8704 10 of the
                                                                        CCT?
                       (Case C-395/02)
                         (2003/C 7/24)
                                                                        Reference for a preliminary ruling by the La Cour d’appel
Reference has been made to the Court of Justice of the                  de Bruxelles by order of that Court of 6 November 2002
European Communities by judgment of the Rechtbank van                   in the case of 1. Clinique la Ramee, a non-profit-making
Eerste Aanleg (Court of First Instance) of 4 November 2002,             associationy, and 2. Winterthur Europe Assurance SA
received at the Court Registry on 11 November 2002, for a               against 1. Jean-Pierre Riehl, and 2. the Council of the
preliminary ruling in the case of NV Transport service against                                      European Union
1. The Belgian State, and 2. BVBA Bea Cars on the following
question:
                                                                                (Case C-397/02)
                                                                                (2003/C 7/26)
Does the principle of the neutrality of value added tax preclude
a Member State from claiming additional VAT from a taxable
person which has issued an invoice, correctly or otherwise, in
accordance with the VAT exemption applicable to intra-
Community supplies (Article 39a of the BTW-Wetboek                      Reference has been made to the Court of Justice of the
(Belgian VAT Code)) where it is evident that the VAT has been           European Communities by order of the La Cour d’appel de
paid by the end user and transferred to the Member State by             Bruxelles (Court of Appeal, Brussels) of 6 November 2002,
the person who drew up the invoice issued to that end user?             received at the Court Registry on 11 November 2002, for a
                                                                        preliminary ruling in the case of 1. Clinique la Ramee, a
                                                                        non-profit-making associationy, and 2. Winterthur Europe
                                                                        Assurance SA against 1. Jean-Pierre Riehl, and 2. the Council
                                                                        of the European Union on the following question:
                                                                        Must Article 85a of the Staff Regulations of officials of the
                                                                        European Communities, as laid down by Articles 2 and 3 of
                                                                        Regulation (EEC, Euratom, ECSC) No 259/68 (1) of the Council
                                                                        of 29 February 1968 and by the regulations amending that
Reference for a preliminary ruling by the Gerechtshof                   regulation, be interpreted as conferring on the Communities
(Douanekamer) te Amsterdam by judgment of that Court                    the right to claim from a third party liable for the death of an
of 6 November 2002 in the case of DFDS B.V. against                     official reimbursement in full of the survivor’s pension paid to
          Head of the Rotterdam Customs District                        the surviving spouse pursuant to Articles 79 and 79a of those
                                                                        Staff Regulations, although the legislation applicable to the
                                                                        right to receive payment of compensation for the damage
                                                                        provides that the right to a survivor’s pension is unconnected
                       (Case C-396/02)                                  with the obligation of the perpetrator of a wrongful act to
                                                                        compensate in full for the damage, and although the damage
                                                                        suffered by the surviving husband as a result of the loss of the
                         (2003/C 7/25)                                  deceased wife’s income is less than the amount of the survivor’s
                                                                        pension paid to him?
                                                                        (1 ) Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of
Reference has been made to the Court of Justice of the                       29 February 1968 laying down the Staff Regulations of Officials
European Communities by judgment of the Gerechtshof                          and the Conditions of Employment of Other Servants of the
                                                                             European Communities and instituting special measures tempor-
(Douanekamer) te Amsterdam (Amsterdam Regional Court of
                                                                             arily applicable to officials of the Commission (English special
Appeal — Customs Chamber) of 6 November 2002, received                       edition: Series-I 68(I) P. 30).
at the Court Registry on 11 November 2002, for a preliminary
ruling in the case of DFDS B.V. against Head of the Rotterdam
Customs District on the following question:


title: Case T-155/15: Judgment of the General Court of 26 October 2016 — Kaddour v Council (Common Foreign and Security Policy — Restrictive measures taken against Syria — Freezing of funds — Annulment of prior measures by a judgment of the General Court — New measures including the applicant's name on the lists — Action for annulment — Article 76(d) of the Rules of Procedure — Content of the application — Admissibility — Obligation to state reasons — Burden of proof — Right to property — Freedom to conduct a business)

text:
               12.12.2016

               EN

               Official Journal of the European Union

               C 462/18

         Judgment of the General Court of 26 October 2016 — Kaddour v Council
   (Case T-155/15) (1)

   ((Common Foreign and Security Policy - Restrictive measures taken against Syria - Freezing of funds - Annulment of prior measures by a judgment of the General Court - New measures including the applicant's name on the lists - Action for annulment - Article 76(d) of the Rules of Procedure - Content of the application - Admissibility - Obligation to state reasons - Burden of proof - Right to property - Freedom to conduct a business))
   (2016/C 462/22)
   Language of the case: French

      Parties

      Applicant: Khaled Kaddour (Damascus, Syria) (represented: initially by A. Boesch, D. Amaudruz, M. Ponsard, lawyers, V. Davies, Solicitor, and T. Eicke, QC, then by V. Davies, T. Eicke and V. Wilkinson, Solicitor)

      Defendant: Council of the European Union (represented by: G. Étienne and S. Kyriakopoulou, acting as Agents)

      Re:

   Action brought on the basis of Article 263 TFEU seeking the annulment of Council Implementing Decision 2015/117/CFSP of 26 January 2015 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015, L 20, p. 85), and of Council Implementing Regulation (EU) 2015/108 of 26 January 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2015, L 20, p. 2), in so far as the name of the applicant is included in the list of persons and entities subject to the restrictive measures.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Mr Khaled Kaddour to bear his own costs and those incurred by the Council of the European Union in the context of the present proceedings and the proceedings for an interim order.

      (1)  OJ C 190, 8.6.2015.


title: Case T-426/09: Judgment of the General Court of 26 October 2011 — Bayerische Asphaltmischwerke v OHIM — Koninklijke BAM Groep (bam) (Community trade mark — Opposition proceedings — Application for the Community figurative mark BAM — Earlier national figurative mark BAM — Relative ground for refusal — Likelihood of confusion — No similarity of the goods — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               3.12.2011

               EN

               Official Journal of the European Union

               C 355/17

         Judgment of the General Court of 26 October 2011 — Bayerische Asphaltmischwerke v OHIM — Koninklijke BAM Groep (bam)
   (Case T-426/09) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark BAM - Earlier national figurative mark BAM - Relative ground for refusal - Likelihood of confusion - No similarity of the goods - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 355/29
   Language of the case: English

      Parties

      Applicant: Bayerische Asphaltmischwerke GmbH & Co. KG für Straßenbaustoffe (Hofolding, Germany) (represented by: G. Würtenberger and R. Kunze, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Koninklijke BAM Groep NV (Bunnik, Netherlands) (represented by: initially, J. van Manen, subsequently, J. van Manen and M. van de Braak, and lastly, J. van Manen and R. Sjoerdsma, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 11 August 2009 (Case R 1005/2008-2), relating to opposition proceedings between Bayerische Asphaltmischwerke GmbH & Co. KG für Straßenbaustoffe and Koninklijke BAM Groep NV

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Bayerische Asphaltmischwerke GmbH & Co. KG für Straßenbaustoffe to pay, in addition to its own costs, the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by Koninklijke BAM Groep NV, including, as regards the latter, the costs necessarily incurred for the purposes of the proceedings before the Board of Appeal.

      (1)  OJ C 11, 16.1.2010.


title: Case C-60/07: Judgment of the Court (Seventh Chamber) of 8 November 2007 — Commission of the European Communities v Czech Republic (Failure of a Member State to fulfil obligations — Directive 2004/33/EC — Technical requirements for blood and blood components — Failure to transpose within the period prescribed)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/22

         Judgment of the Court (Seventh Chamber) of 8 November 2007 — Commission of the European Communities v Czech Republic
   (Case C-60/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2004/33/EC - Technical requirements for blood and blood components - Failure to transpose within the period prescribed)
   (2007/C 315/37)
   Language of the case: Czech
   Parties

      Applicant: Commission of the European Communities (represented by: M. Šimerdová and L. Pignataro, Agents)

      Defendant: Czech Republic (represented by: T. Boček, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components (OJ 1998 L 91, p. 25)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components, the Czech Republic has failed to fulfil its obligations under that directive;

               2.

               Orders the Czech Republic to pay the costs.

      (1)  OJ C 69, 24.3.2007.


title: Case C-4/16: Judgment of the Court (Second Chamber) of 2 March 2017 (request for a preliminary ruling from the Sąd Apelacyjny w Warszawie Wydział Cywilny — Poland) — J. D. v Prezes Urzędu Regulacji Energetyki (Reference for a preliminary ruling — Environment — Directive 2009/28/EC — The second subparagraph of Article 2(a) — Energy from renewable sources — Hydropower — Meaning — Energy produced in a small-scale hydropower plant located at the point of discharge of industrial waste water from another plant)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/7

         Judgment of the Court (Second Chamber) of 2 March 2017 (request for a preliminary ruling from the Sąd Apelacyjny w Warszawie Wydział Cywilny — Poland) — J. D. v Prezes Urzędu Regulacji Energetyki
   (Case C-4/16) (1)

   ((Reference for a preliminary ruling - Environment - Directive 2009/28/EC - The second subparagraph of Article 2(a) - Energy from renewable sources - Hydropower - Meaning - Energy produced in a small-scale hydropower plant located at the point of discharge of industrial waste water from another plant))
   (2017/C 121/09)
   Language of the case: Polish

      Referring court

   Sąd Apelacyjny w Warszawie Wydział Cywilny

      Parties to the main proceedings

      Applicant: J. D.

      Defendant: Prezes Urzędu Regulacji Energetyki

      Operative part of the judgment

   The concept of ‘energy from renewable sources’, in the second subparagraph of Article 2(a) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, must be interpreted as covering energy generated by a small-scale hydropower plant, which is not a pumped-storage power station or a hydropower plant with a pumping installation, located at the point of discharge of industrial waste water from another plant which previously used the water for its own purposes.

      (1)  OJ C 111, 29.3.2016.


title: Case T-596/15: Action brought on 19 October 2015 — Batmore Capital v. OHIM — Univers Poche (POCKETBOOK)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/37

         Action brought on 19 October 2015 — Batmore Capital v. OHIM — Univers Poche (POCKETBOOK)
   (Case T-596/15)
   (2015/C 414/48)
   Language in which the application was lodged: English

      Parties

      Applicant: Batmore Capital Ltd (Tortola, British Virgin Islands) (represented by: D. Masson, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Univers Poche (Paris, France)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: International registration designating the European Union in respect of the figurative mark containing the word element ‘POCKETBOOK’ — Application for registration No 1 034 872

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 30 July 2015 in Case R 1952/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               consider the present appeal admissible;

               —

               annul the contested decision in its entirety;

               —

               register the Community part of the International trademark registration No 1 034 872;

               —

               order OHIM to pay the fees and costs incurred by the applicant in the course of the present proceedings.

      Pleas in law

               —

               Wrong appreciation of the similarity of the products and services;

               —

               Wrong appreciation of the likelihood of confusion between the signs in conflict.


title: Case C-131/11: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 17 March 2011 — Pfeifer & Langen KG v Hauptzollamt Aachen

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/8

         Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 17 March 2011 — Pfeifer & Langen KG v Hauptzollamt Aachen
   (Case C-131/11)
   2011/C 179/12
   Language of the case: German

      Referring court

   Finanzgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Pfeifer & Langen KG

      Defendant: Hauptzollamt Aachen

      Question referred

   Must Article 3(4) of Commission Regulation (EEC) No 1443/82 (1) of 8 June 1982 laying down detailed rules for the application of the quota system in the sugar sector be interpreted as extending also to the additional quantities subsequently found by the authorities in the context of an inspection at the producer’s premises?

      (1)  OJ 1982 L 158, p. 17.


title: Case T-520/14: Action brought on 11 July 2014  — bd breyton-design v OHIM (RACE GTP)

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/50

         Action brought on 11 July 2014 — bd breyton-design v OHIM (RACE GTP)
   (Case T-520/14)
   2014/C 303/59
   Language of the case: German

      Parties

      Applicant: bd breyton-design GmbH (Stockach, Germany) (represented by T. Raab and H. Lauf, lawyers)

      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 First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 March 2014 in case R 1230/2013-1 in its entirety;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘RACE GTP’ for goods in class 12 — Community trade mark application No 1 1 0 18  918

      Decision of the Examiner: Application rejected

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 and infringement of Article 7(2) of Regulation No 207/2009


title: Case C-362/02: Reference for a preliminary ruling by the Diikitiko Efetio, Piraeus by judgment of that Court of 28 June 2002 in the case of Ellenikon Dimosion against Konstantinos Diamantakis

text:
C 305/14               EN                   Official Journal of the European Communities                                        7.12.2002
Reference for a preliminary ruling by the Diikitiko Efetio,            The question in this case is identical to the question in Case
Piraeus by judgment of that Court of 28 June 2002 in the               C-361/02.
    case of Ellenikon Dimosion against Nikolaos Tsapalos
                         (Case C-361/02)
                         (2002/C 305/23)
                                                                       Action brought on 9 October 2002 by the Commission
                                                                       of the European Communities against the Portuguese
Reference has been made to the Court of Justice of the
                                                                                Republic
European Communities by order of the Diikitiko Efetio
(Administrative Court of Appeal), Piraeus of 28 June 2002,
received at the Court Registry on 8 October 2002, for a                                          (Case C-363/02)
preliminary ruling in the case of Ellenikon Dimosion (Greek
State) against Nikolaos Tsapalos on the following question:
                                                                                (2002/C 305/25)
Is Article 1 of  Council Directive 76/308/EEC (1) to be interpret-
ed as meaning that the provisions of the directive also cover
claims which arose in a Member State before entry into force
of the directive under a document whose issuance by the                An action against the Portuguese Republic was brought
competent authorities of that State also predated entry into           before the Court of Justice of the European Communities
force of the directive, such as the document issued by the             on 9 October 2002 by the Commission of the European
Italian authorities in the present case and that, accordingly,         Communities, represented by António Caeiros, acting as
following the entry into force of the directive, the end of the        Agent, with an address for service in Luxembourg.
relevant transitional period and compliance by the other
Member States with the duty to enact the provisions required
for application of the directive, recovery may henceforth lie,
on request to the competent authority by the applicant                 The applicant claims that the Court should:
authority as mentioned in Article 3 of the directive, in respect
of pending claims for which recovery had not hitherto been             —     Declare that, by failing to adopt and bring into force
available in the other Member State?                                         within the prescribed period the laws, regulations and
                                                                             administrative provisions necessary to comply with Com-
                                                                             mission Directive 2001/8/EC of 8 February 2001 replac-
( 1) OJ L 73 of 19.3.1976.                                                   ing Annex I to Council Directive 92/109/EEC on the
                                                                             manufacture and placing on the market of certain sub-
                                                                             stances used in the illicit manufacture of narcotic drugs
                                                                             and psychotropic substances ( 1), the Portuguese Republic
                                                                             has failed to fulfil its obligations under Article 2(1) of the
                                                                             directive;
                                                                       —     In the alternative, declare that, by failing to inform the
Reference for a preliminary ruling by the Diikitiko Efetio,                  Commission of such provisions, the Portuguese Republic
Piraeus by judgment of that Court of 28 June 2002 in                         failed to fulfil its obligations under Article 2(1) of the
the case of Ellenikon Dimosion against Konstantinos                          directive;
                           Diamantakis
                                                                       —     Order the Portuguese Republic to pay the costs.
                         (Case C-362/02)
                         (2002/C 305/24)                               Pleas in law and main arguments
                                                                       The period prescribed for transposition expired on 1 March
Reference has been made to the Court of Justice of the                 2001.
European Communities by order of the Diikitiko Efetio
(Administrative Court of Appeal), Piraeus of 28 June 2002,
received at the Court Registry on 8 October 2002, for a                (1 ) OJ 2001 L 39, p. 31.
preliminary ruling in the case of Ellenikon Dimosion (Greek
State) against Konstantinos Diamantakis on the following
question:


title: Case C-328/08: Action brought on 17 July 2008 — Commission of the European Communities v Republic of Finland

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/12

         Action brought on 17 July 2008 — Commission of the European Communities v Republic of Finland
   (Case C-328/08)
   (2008/C 236/20)
   Language of the case: Finnish
   Parties

      Applicant: Commission of the European Communities (represented by: U. Wölker and I. Koskinen, acting as Agents)

      Defendant: Republic of Finland
   Form of order sought

               —

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/CE (1) of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage and, in any event, by failing to communicate such measures to the Commission, the Republic of Finland has failed to fulfil its obligations under that directive;

               —

               order Republic of Finland to pay the costs.

         Pleas in law and main arguments
   The period prescribed for implementation of the directive expired on 30 April 2007.

      (1)  OJ 2004 L 143, p. 56.


title: Case C-78/16: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 10 February 2016 — Giovanni Pesce and Others v Presidenza del Consiglio dei Ministri — Dipartimento della Protezione Civile and Others

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/25

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 10 February 2016 — Giovanni Pesce and Others v Presidenza del Consiglio dei Ministri — Dipartimento della Protezione Civile and Others
   (Case C-78/16)
   (2016/C 156/34)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicants: Giovanni Pesce, Cosima Tomaselli, Angela Tomaselli

      Defendants: Presidenza del Consiglio dei Ministri — Dipartimento della Protezione Civile, Commissario delegato OCDPC No 225/2015, Ministero delle Politiche Agricole e Forestali, Regione Puglia

      Questions referred

               1.

               Do Directive 2000/29/EC, (1) as subsequently supplemented and amended, in particular Articles 11(3), 13c(7), and 16(1), (2), (3) and (5) thereof, and the principles of proportionality, logic and reasonableness preclude the application of Article 6(2) and (4) of European Commission Implementing Decision 2015/789/EU, (2) as implemented in the Italian legal order by Article 8(2) and (4) of the Decree of the Ministero delle politiche agricole alimentari e forestali (Ministry of Agriculture, Food and Forestry), in so far as it requires that host plants, regardless of their health status, be immediately removed within a radius of 100 metres around the plants which have been tested and found to be infected by the specified organism, and at the same time provides that the Member State is to carry out appropriate phytosanitary treatments prior to the removal of plants referred to in paragraph 2 against the vectors of the specified organism and plants that may host those vectors and that those treatments may include, as appropriate, removal of plants?

               2.

               Does Directive 2000/29/EC, as subsequently supplemented and amended, in particular Article 16(1) thereof, preclude, by use of the phrase ‘necessary measures to eradicate, or if that is impossible, inhibit the spread of the harmful organisms concerned’, the application of Article 6(2) of European Commission Decision 2015/789/EU, as implemented in the Italian legal order by Article 8(2) of the Decree of the Ministero delle politiche agricole alimentari e forestali, in so far as it provides for the immediate removal of host plants, regardless of their health status, within a radius of 100 metres around the plants which have been tested and found to be infected?

               3.

               Do Articles 16(1), (2), (3) and (5) of Directive 2000/29/EC and the principles of proportionality and logic and the right to due process preclude an interpretation of Article 6(2) and (4) of European Commission Implementing Decision 2015/789/EU — as implemented in the Italian legal order by Article 8(2) and (4) of the Decree of the Ministero delle politiche agricole alimentari e forestali — to the effect that the eradication measure referred to in Article 6(2) can be imposed before and independently of the preventive measures provided for in Articles 6(3) and (4)?

               4.

               Do the precautionary principle and the principles of adequacy and proportionality preclude the application of Article 6(2), (3) and (4) of European Commission Implementing Decision 2015/789/EU, as implemented in the Italian legal order by Article 8(2) and (4) of the Decree of the Ministero delle politiche agricole alimentari e forestali, in so far as it imposes measures to eradicate host plants within a radius of 100 metres around the plants which have been found to be infected by the organism ‘Xylella fastidiosa (Wells et al.)’, without adequate scientific evidence to demonstrate with certainty the causal relationship between the presence of the organism and the desiccation of the plants deemed to be infected?

               5.

               Do the second paragraph of Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union preclude the application of Article 6(2) and (4) of European Commission Implementing Decision 2015/789/UE, in so far as it provides for the immediate removal of the hosts plants, regardless of their health status, within a radius of 100 metres around the plants which have been tested and found to be infected, since it fails to provide an adequate statement of reasons?

               6.

               Do the principles of adequacy and proportionality preclude the application of European Commission Implementing Decision 2015/789/EU — as implemented in the Italian legal order by the Decree of the Ministero delle politiche agricole alimentari e forestali — which provides measures for the removal of host plants, regardless of their health status, of plants known to be infected by the specified organism, and of plants showing symptoms indicating possible infection by the organism ‘Xylella fastidiosa (Wells et al.)’, or suspected of being infected by that organism, without providing for any form of compensation for the owners not responsible for the spread of the organism in question?

      (1)  Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ 2000 L 169, p. 1).

      (2)  Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) (OJ 2015 L 125, p. 36).


title: Case T-71/08: Judgment of the Court of First Instance of 8 July 2009 — Promat v OHIM — Prosima Comercial (PROSIMA PROSIMA COMERCIAL S.A.) (Community trade mark — Opposition proceedings — Application for Community figurative mark PROSIMA PROSIMA COMERCIAL S.A. — Earlier national word mark PROMINA — Relative ground for refusal — Likelihood of confusion — Absence of similarity between the goods — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation No 207/2009))

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/34

         Judgment of the Court of First Instance of 8 July 2009 — Promat v OHIM — Prosima Comercial (PROSIMA PROSIMA COMERCIAL S.A.)
   (Case T-71/08) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark PROSIMA PROSIMA COMERCIAL S.A. - Earlier national word mark PROMINA - Relative ground for refusal - Likelihood of confusion - Absence of similarity between the goods - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation No 207/2009))
   2009/C 205/62
   Language of the case: German

      Parties

      Applicant: Promat GmbH (Ratingen, Germany) (represented initially by S. Beckmann, and subsequently by H. Alt, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by A. Poch, and subsequently by G. Schneider, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Prosima Comercial, SA (Barcelona, Spain)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 27 November 2007 (Case R 574/2007-2) relating to opposition proceedings between Promat GmbH and Prosima Comercial, SA.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Promat GmbH to pay the costs.

      (1)  OJ C 92, 12.4.2008.