title: Case T-472/04: Judgment of the Court of First Instance of 23 January 2007 — Tsarnavas v Commission (Officials — Article 45 of the Staff Regulations — Promotion — Judgment annulling the decision not to promote the applicant — Re-examination of the merits — Reasons)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/27

         Judgment of the Court of First Instance of 23 January 2007 — Tsarnavas v Commission
   (Case T-472/04) (1)

   (Officials - Article 45 of the Staff Regulations - Promotion - Judgment annulling the decision not to promote the applicant - Re-examination of the merits - Reasons)
   (2007/C 56/53)
   Language of the case: French
   Parties

      Applicant: Vassilios Tsarnavas (Volos, Greece) (represented by: N. Lhoëst, lawyer)

      Defendant: Commission of the European Communties (represented by: G. Berardis-Kayser and D. Martin, Agents)
   Re:
   Application for annulment of the Commission's decision of 23 December 2003 insofar as it did not include the applicant's name on the list of officials proposed for promotion for 1999, or on the list of officials considered the most deserving of promotion to grade A4 for 1998 and 1999, or on the list of officials promoted to grade A4 in 1998 or 1999
   Operative part of the judgment
   The Court:

               1.

               Annuls the decision of the Commission of 23 December 2003 insofar as it did not include the applicant's name on the list of officials considered the most deserving of promotion to grade A4 for 1998 and 1999, on the one hand, or on the list of officials promoted to grade A4 in 1998 or 1999, on the other;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Commission to pay the costs.

      (1)  OJ C 57, 5.3.2005.


title: Order of the President of the Court of First Instance of 30 October 2003 In Joined Cases T-125/03 R: Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission of the European Communities (Interim measures — Competition — Commission's powers of investigation — Protection of confidentiality — Communications between lawyers and clients — Limits)

text:
C 35/10                 EN                          Official Journal of the European Union                                             7.2.2004
    ORDER OF THE PRESIDENT OF THE COURT OF                                  4.    The application for interim measures in Case T-125/03 R is
                         FIRST INSTANCE                                           dismissed.
                                                                            5.    The Commission’s statement that it will not allow third parties
                        of 30 October 2003                                        to have access to the Set B documents pending judgment in the
                                                                                main proceedings in Case T-253/03 is noted.
In Joined Cases T-125/03 R: Akzo Nobel Chemicals Ltd                        6.    In Case T-253/03 R, the operation of Article 2 of the
and Akcros Chemicals Ltd v Commission of the European                             Commission’s decision of 8 May 2003 concerning a claim of
                            Communities                                           legal privilege (Case COMP/E-1/38.589) is suspended pending
                                                                                the judgment of the Court in the main proceedings.
(Interim measures — Competition — Commission’s powers                       7.    The sealed envelope containing the Set A documents will be
of investigation — Protection of confidentiality — Com-                           kept by the Registry of the Court of First Instance pending the
     munications between lawyers and clients — Limits)                            decision of the Court in the main action.
                                                                            8.    The remainder of the application for interim measures in Case
                           (2004/C 35/15)                                         T-253/03 R is dismissed.
                                                                            9.    The costs in Cases T-125/03 R and T-253/03 R are reserved.
                   (Language of the case: English)
In Joined Cases T-125/03 R and T-253/03 R, Akzo Nobel
Chemicals Ltd, established in London (United Kingdom),                          ORDER OF THE PRESIDENT OF THE COURT OF
Akcros Chemicals Ltd, established in Surrey (United Kingdom),                                        FIRST INSTANCE
represented by C. Swaak and M. Mollica, lawyers, v Com-
mission of the European Communities (Agents: R. Waiwright
and C. Ingen-Housz): Application for, first, suspension of the                                      of 7 November 2003
operation of the Commission’s decision of 10 February 2003
amending the decision of 30 January 2003 ordering Akzo                      in Case T-198/03 R Bank of Austria Creditanstalt AG v
Nobel Chemicals Ltd, Akcros Chemicals Ltd and Akcros                                 Commission of the European Communities
Chemicals and their subsidiaries to submit to an investigation
under Article 14(3) of Council Regulation No 17 of 6 February
1962, First Regulation implementing Articles [81] and [82] of               (Interim proceedings — Admissibility — Competition —
the Treaty (OJ, English Special Edition 1959-1962, p. 87), and              Publication of a decision imposing a fine — No Urgency —
also other interim measures to protect the applicants’ interests                                             Lack)
(Case T-125/03 R), and, second, suspension of the operation
of the Commission’s decision of 8 May 2003 rejecting a claim                                            (2004/C 35/16)
of legal privilege in respect of five documents copied during
an investigation and also other interim measures to protect
the applicants’ interests (Case T-253/03 R), the President of                                   (Language of the case: German)
the Court of First Instance has made an order on 30 October
2003, the operative part of which is as follows:
                                                                            In Case T-198/03 R Bank Austria Creditanstalt AG, established
                                                                            in Vienna (Austria), represented by C. Zschocke and J. Beninca,
1.   Cases T-125/03 R and T-253/03 R are joined for the                     lawyers, with an address for service in Luxembourg, against
     purposes of this order.                                                the Commission of the European Communities (Agent: S. Rat-
                                                                            ing) — application for suspension of the operation of the
2.   The Council of the Bars and Law Societies of the European              decision of the Commission’s Hearing Officer of 5 May 2003
     Union, the Algemene Raad van de Nederlandse Orde van                   to publish the non-confidential version of the Commission
     Advocaten and the European Company Lawyers Association                 decision of 11 June 2002 in Case COMP/36.571/D-1 —
     are granted leave to intervene in Cases T-125/03 R and                 Austrian Banks (‘Club Lombard’), the President of the Court of
     T-253/03 R.                                                            First Instance made an order on 7 November 2003, the
                                                                            operative part of which is as follows:
3.   At the stage of the application for interim measures, the requests
     for confidential treatment submitted by the applicants in respect      1)    The application for interim relief is rejected.
     of certain matters in the procedural documents in Cases T-125/
     03 R and T-253/03 R and referred to as such in the letter of           2)    The costs are reserved.
     16 September 2003 from the Registry to the applicants are
     granted.


title: Action brought on 6 July 1995 by the Commission of the European Communities against the Hellenic Republic (Case C-236/95)

text:
No C 248/4              EN                 Official Journal of the European Communities                                     23 . 9 . 95
the reasoned opinion, the Greek authorities forwarded a               reduce pollution of the waters of the Pagassitikos Gulf by
technical report by the Ministry of the Environment, Town             the substances within List II . It should, in addition, have
and Country Planning and Public Works in which details                established quality objectives for the waters of the Gulf in
were set out of the measures taken . That reply did not               question and time-limits for achieving those objectives, and
satisfy the Commission , especially as concerns Directive             it should also have set as a condition for all discharges liable
76/464/EEC . In particular the Commission considered that             to contain any of the substances within List II the issue of
the measures provided for in Article 7 of the Directive, that         prior authorization in which emission standards are to be
is to say in respect of quality objectives and authorization of       laid down .
discharges in which emission standards are to be laid down,
as specified in Article 7 ( 2 ), were completely absent . For         From the evidence and studies available to the Commission
those reasons the Court is requested to declare that the              it would appear that the Greek authorities have not taken
Hellenic Republic is in breach of its obligations under the           the appropriate measures to control and limit the sources of
said Directive .                                                      pollution of the Pagassitikos Gulf, which is an enclosed gulf
                                                                      with a very small outlet into the Aegean and very slow
                                                                      renewal of water .
(') OJ No L 129 , 18 . 5 . 1976 , p . 23 .
                                                                      The Greek authorities accept that there are no specialized
                                                                      programmes and refer to the fact that they have asked the
                                                                      University of the Aegean to undertake a study of the sources
                                                                      discharging toxic substances within List II of Directive
                                                                      76/464/EEC .
Action brought on 5 July 1995 by the Commission of the
     European Communities against the Hellehic Republic               Consequently the Commission notes that the Greek
                         ( Case C-233/95 )                            authorities are in a purely preliminary stage as regards the
                                                                      measures which they are obliged to take under Article 7 of
                           ( 95/C 248/06 )                            the above Directive and accordingly have not fulfilled their
                                                                      obligations thereunder.
An action against the Hellenic Republic was brought before
 the Court of Justice on 5 July 1995 by the Commission                 ( ] ) OJ No L 129 , 18 . 5 . 1976 , p . 23 .
 of the European Communities, represented by Maria
 Kondou-Durande, of its Legal Service , with an address for
 service in Luxembourg at the office of Carlos Gomez de la
 Cruz, also of its Legal Service, Wagner Centre .
 The applicant claims that the Court:                                 Action brought on 6 July 1995 by the Commission of the
                                                                            European Communities against the Hellenic Republic
 ( 1 ) should declare that,                                                                      ( Case C-236/95 )
                                                                                ( 95/C 248/07)
        — by failing to establish programmes to include
            quality objectives and to lay down time-limits for
            achieving those objectives, in order to reduce             An action against the Hellenic Republic was brought before
                                                                       the Court of Justice on 6 July 1995 by the Commission of
            pollution of the waters of the Pagassitikos Gulf
            by the substances within List II of Directive              the European Communities, represented by Dimitrios
            76/464/EEC (*) of 4 May 1976 on pollution caused           Gouloussis, of its Legal Service, with an address for service
                                                                       in Luxembourg at the officie of Carlos Gomez de la Cruz,
            by certain dangerous substances discharged into the
                                                                        also of its Legal Service , Wagner Centre .
            aquatic environment of the Community, and
        — by not subjecting discharges into the Pagassitikos           The applicant claims that the Court should:
            Gulf which are liable to contain substances within
            List II to prior authorization by the competent             ( 1 ) declare that by failing to adopt and, in the alternative,
            authority in which emission standards are to be laid              to notify to the Commission within the prescribed
            down,                                                             period the laws, regulations and administrative
                                                                              provisions necessary to comply fully with Council
        the Hellenic Republic has failed to fulfil its obligations            Directive 89/665/EEC (*) of 21 December 1989 on
        under the Treaty and Article 7 of Council Directive                   the coordination of the laws, regulations and
        76/464/EEC;                                                           administrative provisions relating to the application of
                                                                               review procedures to the award of public supply and
  ( 2 ) order the Hellenic Republic to pay the costs .                         public works contracts, in particular, by not adopting
                                                                               and, in the alternative, by not notifying to the
                                                                               Commission within the prescribed period the necessary
  Pleas in law and main arguments adduced in support:                          laws, regulations and administrative provisions
                                                                               relating to the award of public supply contracts, the
  under Article 7 of Directive 76/464/EEC the Republic of                      Hellenic Republic has failed to fulfil its obligations
  Greece should have established programmes in order to                        under the EC Treaty;
 ---pagebreak--- 23 . 9 . 95             EN                   Official Journal of the European Communities                                  No C 248/5
( 2 ) order the Hellenic Republic to pay the costs .                        that surcharge levied since the Member State's accession
                                                                            to the EC Treaty or does it apply only to the increase in
Pleas in law and main arguments adduced in support:                         the surcharge which came into effect after that date ?
Under Article 5 of Directive 89/665/EEC the Member States               5 . Does Community law impose special requirements with
were to have adopted the laws, regulations and                              regard to national rules on the burden of proving that
administrative provisions necessary to comply with the                      the conditions for application of Article 86 of the EC
Directive before 2 1 December 1991 and to communicate the                   Treaty have been satisfied ?
relevant texts to the Commission .
                                                                        6 . If it is assumed that a public undertaking that owns and
The Commission notes that the Hellenic Republic has only                    operates a commercial port occupies a dominant
partially applied the above Directive with regard to public                 position, can it constitute an abuse of that position,
works contracts but that it has taken no steps at all as                    contrary to Article 86 of the Treaty, that the commercial
regards public supply contracts . In reply to the reasoned                  port levied the duties described above and laid down by
opinion, the Greek authorities informed the Commission                      the Minister for Transport for the use of public and
that they had drawn up a draft Presidential Order to                        private commercial ports ?
incorporate the Directive fully into the Greek legal order.
Since, however, that Presidential Order has not yet been                7. If question 6 is answered in the affirmative : do the
issued, the Commission decided to lodge the present                         persons or undertakings on whom the duty was imposed
application .                                                               have any right under Community law to seek
                                                                            reimbursement or compensation ?
(!) OJ No L 395 , 30 . 12 . 1989 , p . 33 .
                                                                        8 . If it is assumed that a public undertaking that owns and
                                                                            operates a commercial port occupies a dominant
                                                                            position , can an abuse of that position, contrary to
                                                                            Article 86 of the Treaty, lie in the fact that the
                                                                            commercial port does not impose the port duties
                                                                            described in this order for reference on its own ferry
Reference for a preliminary ruling by the 0stre Landsretby                  route or on that of its cooperation partner ?
decision of that court of 30 June 1995 in the Case of
            GT-Link A/S v. Danske Statsbaner DSB
                                                                        9 . If the answers to questions 1 , 2, 4 , 6 and/or 8 are in the
                         ( Case C-242/95 )                                  affirmative : can the particular duties and tasks assigned
                           ( 95/C 248/08 )                                  to the defendant result in a finding that the situation is
                                                                            none the less permissible under Article 90 ( 2 ) of the
                                                                            Treaty ?
Reference has been made to the Court of Justice of the
European Communities by decision of the 0stre Landsret
( Eastern Regional Court) by decision of 30 June 1995 ,
which was received at the Court Registry on 11 July 1995 ,
for a preliminary ruling in the case of GT-Link A/S v. Danske
Statsbaner DSB on the following questions :
                                                                        Reference for a preliminary ruling from the Conseil d'Etatoi
1 . is a special surcharge of 40 % of a goods duty which, as            the Kingdom of Belgium ( Sixth Chamber ) by judgment of
      described in this order for reference , is ordinarily levied      that court of 14 June 1995 in the case of Myrianne Coen
      for the use of ports authorized by the Danish Minister                                    v. Belgian State
      for Transport to operate as commercial ports to be                                       ( Case C-246/95 )
      regarded as coming under the EC Treaty rules on the
      Customs Union, including Articles 9 to 13 , or under                                       ( 95/C 248/09 )
      Article 95 of that Treaty ?
                                                                        Reference has been made to the Court of Justice of the
2 . Are the EC Treaty rules on the Customs Union,                       European Communities by a judgment of the Conseil d'Etat
      including Articles 9 to 13 , or Article 95 to be understood       ( Council of State ) of the Kingdom of Belgium ( Sixth
      as meaning that it is incompatible with those provisions          Chamber ) of 14 june 1995 , which was received at the Court
      to impose a special surcharge of 40 % of the goods duty           Registry on 17 July 1995 , for a preliminary ruling in the case
      ordinarily levied if that surcharge is imposed exclusively        of Myrianne Coen v. Belgian State on the following
      on goods imported from outside Denmark ?                          questions :
3 . If question 2 is answered in the affirmative : under what           ' On a proper cobstruction of the fifth paragraph of
      circumstances can such a duty be justified on the ground          Article 1 73 of the Treaty of Rome, with respect to the period
      that it represents consideration for a service provided or        of two months prescribed therein for contesting a Decision
      on grounds of transport policy pursuant to the Title in           of the Commission, may a decision of a court of a Member
      the EC Treaty dealing with transport ?                            State, finding an act of the State concerned unlawful , cause
                                                                        time to start running again where the act in question may
4 . If the special surcharge is held to be incompatible with            have influenced the Decision of the Commission which it is
      the EC Treaty, does that finding apply to the whole of            sought to contest ?'


title: Case C-265/05: Reference for a preliminary ruling from the Cour de cassation (France) by order of that court of 21 June 2005 in José Perez Naranjo v Caisse régionale d'assurance maladie (CRAM) Nord-Picardie

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/28

         Reference for a preliminary ruling from the Cour de cassation (France) by order of that court of 21 June 2005 in José Perez Naranjo v Caisse régionale d'assurance maladie (CRAM) Nord-Picardie
   (Case C-265/05)
   (2005/C 217/55)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by order of the Cour de cassation (France) of 21 June 2005, received at the Court Registry on 27 June 2005, for a preliminary ruling in the proceedings between José Perez Naranjo and Caisse régionale d'assurance maladie (CRAM) Nord-Picardie on the following question:
   Is Community law to be interpreted as meaning that the supplementary allowance at issue, listed in Annex IIa to Regulation 1408/71, is of a special and non-contributory character, thereby excluding, pursuant to Articles 10a and 95b of Regulation 1408/71 (1), its award to a non-resident who did not satisfy the age condition on 1 June 1992, or as meaning that it constitutes a social security benefit and must therefore, pursuant to Article 19(1) of that regulation, be provided to the person concerned who satisfies the conditions for its award, irrespective of the Member State in which that person is resident?

      (1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1974 L 149, p. 2)


title: Case T-57/09: Action brought on 9 February 2009 — Alfastar Benelux v Conseil

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/19

         Action brought on 9 February 2009 — Alfastar Benelux v Conseil
   (Case T-57/09)
   2009/C 102/31
   Language of the case: English

      Parties

      Applicant: Alfastar Benelux (Ixelles, Belgium) (represented by: N. Keramidas, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul the Council’s decision to reject the bid of the applicant, filed in response to the open call for Tender UCA-218-07 for the provision of “Technical maintenance — help desk and on site intervention services for the PC’s, printers and peripherals of the general secretariat of the Council” (1) communicated to the applicant by letter dated 1 December 2008 and all further related decisions of the Council including the one to award the contract to the successful contractor;

               —

               order the Council to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 2 937 902 or the proportion of the above amount according to the date of annulment of the above decision of the Council;

               —

               order the Council to pay the applicant’s legal costs and expenses incurred in connection with this application, even if current application is rejected.

      Pleas in law and main arguments

   In the present case the applicant seeks the annulment of the defendant’s decision to reject its bid submitted in response to a call for an open tender UCA-218-07 for the provision of “Technical maintenance — help desk and on site intervention services for the PC’s, printers and peripherals of the general secretariat of the Council” and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages in account of the tender procedure.
   In support of its claims the applicant puts forward four pleas in law.
   First, it argues that the defendant committed several manifest errors of assessment concerning: the absence of certification of the winning tenderer, the absence of NATO security clearance of the personnel of the winning tenderer, the fact that the winning tenderer did not dispose of the personnel offered, the qualifications of the personnel of the winning tenderer as opposed to those of the applicant, the knowledge transfer marks and the evaluation of the number of staff proposed by the tenderers.
   Second, the applicant claims that the defendant failed to observe its obligations for equal treatment of the candidates and transparency.
   Third, it submits that the call for tender included numerous inconsistencies and inaccurate information.
   Last, the applicant contends that the defendant infringed its obligation to motivate its acts.

      (1)  OJ 2008/S 91-122796


title: Judgment of the Court (Sixth Chamber) of 17 October 2002 in Case C-339/99 [Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)]: Energie Steiermark Holding AG v Finanzlandesdirektion für Steiermark (Directive 69/335/EEC — Indirect taxes on the raising of capital — Capital duty — Increase in a company's capital by the issue of new shares — Payments made upon the entry of a new member as a shareholder in the company — Payments made by the parent company of the new member — Payments made to the subsidiaries of the company increasing its capital — Payments not yet made)

text:
C 305/2                  EN                      Official Journal of the European Communities                                          7.12.2002
                  JUDGMENT OF THE COURT                                     2.    Article 4(1)(c) of Directive 69/335, as amended by the
                                                                                abovementioned Act of Accession, is to be interpreted as
                                                                                meaning that the expression ‘contribution of assets of any kind’
                          (Sixth Chamber)                                         used therein covers additional payments which a new member
                                                                                makes not to the capital company which is increasing its capital,
                                                                                but to subsidiaries of that company, when it is clear from the
                        of 17 October 2002
                                                                                circumstances of the case that, from an economic point of view,
                                                                                the real recipient of those payments is that company.
in Case C-339/99 [Reference for a preliminary ruling from
the Verwaltungsgerichtshof (Austria)]: Energie Steier-                      3.    Payments made subject to the fulfilment of a condition precedent
mark Holding AG v Finanzlandesdirektion für Steier-                               amount to contributions within the meaning of Article 4(1)(c)
                                mark (1)                                          of Directive 69/335, as amended by the said Act of Accession,
                                                                                only after that condition has been fulfilled.
(Directive 69/335/EEC — Indirect taxes on the raising of                    4.    Capital duty does not amount to a ‘liability’ or an ‘expense’
capital — Capital duty — Increase in a company’s capital                          within the meaning of Article 5(1)(a) of Directive 69/335, as
by the issue of new shares — Payments made upon the entry                         amended by the Act of Accession mentioned in paragraph 1 of
of a new member as a shareholder in the company —                                 the operative part of this judgment.
Payments made by the parent company of the new member
— Payments made to the subsidiaries of the company
       increasing its capital — Payments not yet made)                      (1 ) OJ C 352 of 4.12.1999.
                           (2002/C 305/02)
                    (Language of the case: German)
                                                                                JUDGMENT OF THE COURT
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                     (Sixth Chamber)
                                                                                of 17 October 2002
In Case C-339/99: Reference to the Court under Article 234                  in Case C-71/00 (Reference for a preliminary ruling from
EC by the Verwaltungsgerichtshof (Austria) for a preliminary                the Verwaltungsgerichtshof): Develop Baudurchführungs-
ruling in the proceedings pending before that court between                 und Stadtentwicklungsgesellschaft mbH v Finanzlandes-
Energie Steiermark Holding AG and Finanzlandesdirektion für                  direktion für Wien, Niederösterreich und Burgenland ( 1)
Steiermark, on the interpretation of Articles 4(1)(c) and 5(1)(a)
of Council Directive 69/335/EEC of 17 July 1969 concerning                  (Directive 69/335/EEC — Indirect taxes on the raising of
indirect taxes on the raising of capital (OJ, English Special               capital — Capital duty — Contribution of assets of any kind
Edition 1969 (II), p. 412), as amended by the Act concerning                — Meaning — Payments made by the parent company of a
the conditions of accession of the Republic of Austria, the                 company which has acquired dividend certificates issued by
Republic of Finland and the Kingdom of Sweden and the                                                 a capital company)
adjustments to the Treaties on which the European Union is
founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the                                             (2002/C 305/03)
Court (Sixth Chamber), composed of: J.-P. Puissochet, President
of the Chamber, R. Schintgen (Rapporteur), V. Skouris,
F. Macken and J.N. Cunha Rodrigues, Judges; A. Tizzano,                                         (Language of the case: German)
Advocate General; D. Louterman-Hubeau, Head of Division,
for the Registrar, has given a judgment on 17 October 2002,                 (Provisional translation; the definitive translation will be published
in which it has ruled:                                                                          in the European Court Reports)
1.    Article 4(1)(c) of Council Directive 69/335/EEC of 17 July
      1969 concerning indirect taxes on the raising of capital, as          In Case C-71/00: Reference to the Court under Article 234 EC
      amended by the Act concerning the conditions of accession of          by the Verwaltungsgerichtshof (Austria) for a preliminary
      the Republic of Austria, the Republic of Finland and the              ruling in the proceedings pending before that court between
      Kingdom of Sweden and the adjustments to the Treaties on              Develop Baudurchführungs- und Stadtentwicklungsgesell-
      which the European Union is founded, is to be interpreted as          schaft mbH and Finanzlandesdirektion für Wien, Niederöster-
      meaning that the expression ‘contribution of assets of any kind’      reich und Burgenland,on the interpretation of Article 4(1)(d)
      used therein covers the payments which a parent company               of Council Directive 69/335/EEC of 17 July 1969 concerning
      makes to a capital company, which is increasing its capital by        indirect taxes on the raising of capital (OJ, English Special
      the issue of new shares, to enable the acquisition of those shares    Edition 1969 (II), p. 412), as amended by the Act concerning
      by a subsidiary of that parent company.                               the conditions of accession of the Republic of Austria, the


title: Action brought on 19 October 1998 by Salamander AG against the European Parliament and the Council of the European Union (Case T-172/98)

text:
C 48/26              EN                 Official Journal of the European Communities                                 20.2.1999
     ORDER OF THE COURT OF FIRST INSTANCE                              of the laws, regulations and administrative provisions
                    of 16 December 1998                                of the Member States relating to the advertising and
                                                                       sponsorship of tobacco products (OJ L 213,
in   Case    T-93/98:     Ioannis Rentzos      v.   European           30.7.1998);
                         Parliament (1)
(Staff report Ð Rejection of a request for revision of a
staff report Ð Action for annulment Ð Time-limits for              Ð in the alternative, annul Article 3; and
          bringing proceedings Ð Inadmissibility)
                        (1999/C 48/56)
                                                                   Ð order the Council to pay the costs of the proceedings.
                (Language of the case: French)
In Case T-93/98: Ioannis Rentzos, an official of the               Pleas in law and main arguments adduced in support
European       Parliament,     residing   at     Niederanven
(Luxembourg), represented by Carlo Revoldini, of the
Luxembourg Bar, with an address for service in                     The applicant has been manufacturing and marketing
Luxembourg at the latter's Chambers, 180 Route de                  under licence a range of high-quality shoes under the
Longwy, v. European Parliament (Agent: Yannis Pantalis)            Camel Boots trade mark since 1978. Camel Boots are
Ð application for annulment of the applicant's staff               extremely successful products and can be found all over
report for the period 1995-1997, of the defendant's                the world.
decision rejecting the request for revision of that report
and, in so far as might be necessary, of the defendant's
decision rejecting the applicant's complaint Ð the Court
of First Instance (Fifth Chamber), composed of: J. D.              Under Article 3(1) and (2) of Directive 98/43/EC, the
Cooke, President, R. García-Valdecasas and P. Lindh,               applicant will no longer be able to advertise its Camel
Judges; H. Jung, Registrar, made an order on 16 December           Boots shoes, unless the Member States elect to exempt
1998, the operative part of which is as follows:                   such advertising from the general advertising and
                                                                   sponsorship ban enacted by the Directive. The applicant
                                                                   seeks the annulment of Directive 98/43/EC or, failing that,
1. The application is dismissed as inadmissible.                   of Article 3 thereof.
2. The parties are to bear their own costs.
                                                                   The applicant's first plea is that Directive 98/43/EC lacks
(1) OJ C 234, 25.7.1998.                                           a legal basis and is ultra vires. Both the content and the
                                                                   legislative history of the Directive show that it is
                                                                   primarily, if not exclusively, a public health measure. By
                                                                   virtue of Article 129(4) of the EC Treaty, the Community
                                                                   may not adopt harmonising measures with respect to
                                                                   public health.
Action brought on 19 October 1998 by Salamander AG
against the European Parliament and the Council of the
                       European Union                              Article 100a cannot provide a legal basis for the Directive,
                       (Case T-172/98)                             as any effect that the Directive may have on the internal
                                                                   market will only be marginal. In fact, the Directive's
                        (1999/C 48/57)                             impact on the internal market will be negative. The same
                                                                   conclusion applies with respect to Articles 57(2) and 66 of
               (Language of the case: English)                     the EC Treaty, which are also mentioned as the legal basis
                                                                   for the Directive.
An action against the European Parliament and the
Council of the European Union was brought before the
Court of First Instance of the European Communities on             The applicant's second plea is that Directive 98/43/EC
19 October 1998 by Salamander AG, represented by                   creates unjustifiable obstacles to the free movement of
Onno W. Brouwer and FreÂdeÂric P. Louis, with an address           goods and the freedom to provide services and therefore
for service in Luxembourg at the Chambers of Loesch and            infringes Articles 30 and 59 of the EC Treaty.
Wolter, 11, rue Goethe.
The applicant claims that the Court should:                        The applicant's third plea is that the Directive provides
                                                                   insufficient reasoning for its harsh treatment of good-faith
                                                                   brand diversification advertising, and does not explain
Ð annul Directive 98/43/EC of the European Parliament              whether and how the Community legislature has taken
    and the Council of 6 July 1998, on the approximation           into account the subsidiarity principle.
 ---pagebreak--- 20.2.1999            EN                Official Journal of the European Communities                                   C 48/27
The applicant's fourth plea is that the treatment reserved        Action brought on 7 December 1998 by Vasilios
to good-faith brand diversification advertising is                       Boukouvalas against the European Parliament
disproportionate. In view of the fact that advertising for                             (Case T-193/98)
tobacco products is granted a milder treatment, the
treatment of good-faith brand diversification advertising is                            (1999/C 48/59)
also discriminatory.
                                                                                (Language of the case: Greek)
The applicant's fifth plea is that the advertising ban
enacted by the Directive infringes its right to freedom of
speech and in particular cannot be justified under                An action against the European Parliament was brought
Article 10(2) of the European Convention on Human                 before the Court of First Instance of the European
Rights.                                                           Communities on 7 December 1998 by Vasilios
                                                                  Boukouvalas, an official of the European Parliament,
The applicant's sixth plea is that the Directive deprives         resident in Brussels, represented by Professor Kharis
holders of trade-mark rights of the substance of their            Tagaras, of the Thessaloniki Bar, with an address for
rights and thus infringes the fundamental rights to               service in Luxembourg at the Office of VeÂronique
property and of freedom of trade, as well as the Paris            Duhaubois, 139 Rue Schetzel, L-2518.
Convention and the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS).
                                                                  The applicant claims that the Court should:
                                                                  Ð find the action admissible;
Action brought on 23 October 1998 by Alma Media                   Ð hold to be unlawful and annul (a) the implied refusal
Group Advertising SA & Co and Others against the                      of the defendant's staff to pay, in respect of the
European Parliament and the Council of the European                   applicant's father and mother, the allowance for
                           Union                                      persons treated as if they were dependent children,
                                                                      during the period from 1 August 1997 to 31 July
                      (Case T-176/98)                                 1998, notwithstanding the decision of the
                       (1999/C 48/58)                                 Secretary-General of 28 January 1998 and (b)
                                                                      Decision No 26039 of 9 September 1998, of the
                                                                      defendant finding that the applicant is not entitled to
               (Language of the case: English)
                                                                      the above allowance;
An action against the European Parliament and the
Council of the European Union was brought before the              Ð order the defendant to pay that allowance to the
Court of First Instance of the European Communities on                applicant for the abovementioned period, together
23 October 1998 by Alma Media Group Advertising SA &                  with interest for late payment at 8 % from the date
Co and Others, represented by Helen Papaconstantinou,                 upon which each monthly payment became due;
Eric Morgan de Rivery and Jacques Derenne, with an
address for service in Luxembourg at the Chambers of
Bonn & Schmitt, 7 Val Ste Croix.                                  Ð order the defendant to pay the applicant's legal costs,
                                                                      and to so order even if the action is dismissed, because
                                                                      there are exceptional circumstances within the
The applicants claim that the Court should:                           meaning of the first subparagraph of Article 87(3) of
                                                                      the Rules of Procedure, in particular circumstances of
Ð annul Directive 98/43/EC of the European Parliament                 personal impecuniosity, as set out in the main body of
    and of the Council of 6 July 1998 on the                          the application.
    approximation of the laws, regulations and
    administrative provisions of the Member States
    relating to the advertising and sponsorship of tobacco        Pleas in law and main arguments adduced in support
    products published (OJ L 213, 30.7.1998, p. 9), and
                                                                  Infringement of Article 90 of the Staff
Ð order the European Parliament and the Council of the            Regulations and of the principles of the
    European Union to pay the costs.                              protection of legitimate expectations and of
                                                                  proper administration
Pleas in law and main arguments adduced in support
                                                                  According to the applicant, any favourable reply by the
The grounds of the present application and its main               appointing authority to an official's administrative
arguments are those raised in Case T-172/98 Salamander            complaint must be binding on that body and, in any
v. Parliament and Council.                                        event, the subsequent revocation or amendment of the
                                                                  reply cannot retroactively deprive the official of the rights
                                                                  which flowed from it.


title: Case C-434/17: Request for a preliminary ruling from the Zalaegerszegi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 18 July 2017 — Human Operator Zrt. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/10

         Request for a preliminary ruling from the Zalaegerszegi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 18 July 2017 — Human Operator Zrt. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság
   (Case C-434/17)
   (2017/C 318/15)
   Language of the case: Hungarian

      Referring court

   Zalaegerszegi Közigazgatási és Munkaügyi Bíróság

      Parties to the main proceedings

      Applicant: Human Operator Zrt.

      Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság

      Question referred

   Must Council Implementing Decision (EU) 2015/2349 (1) of 10 December 2015 be interpreted as precluding the Hungarian practice of considering that the provision of national law, approval of which derives from the abovementioned Implementing Decision and which establishes a derogation from Article 193 of Council Directive 2006/112/EC, entered into force on 1 January 2015, the date from which it must be applied, when that Implementing Decision contains no provision concerning retroactivity of its effects or of its applicability and, in its request for authorisation to establish the derogation, Hungary indicated that date as the date of application?

      (1)  Council Implementing Decision (EU) 2015/2349 of 10 December 2015 authorising Hungary to apply a measure derogating from Article 193 of Directive 2006/112/EC on the common system of value added tax; OJ 2015 L 330, p. 53.


title: Case C-43/99: Reference for a preliminary ruling by the Conseil Supérieur des Assurances Sociales du Grand-Duché de Luxembourg, by judgment of that body of 10 February 1999 in the case of Ghislain Leclere and Alina Deaconescu against Caisse Nationale des Prestations Familiales

text:
10.4.1999            EN                   Official Journal of the European Communities                                 C 100/11
Appeal brought on 12 February 1999 by Sadam                          Reference for a preliminary ruling by the Supremo
Zuccherifici Divisione della SECI SpA, Sadam                         Tribunal Administrativo, Second Chamber, by judgment of
Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del              that court of 13 January 1999, in the case of FaÂbrica de
Molise SpA and SocietaÁ Fondiaria Industriale Romagnola              Queijo Eru Portuguesa Lda and Tribunal TeÂcnico de 2a
SpA against the order made on 8 December 1998 by the                                            InstaÃncia
Fourth Chamber (Extended Composition) of the Court of
                                                                                (Case C-42/99)
First Instance of the European Communities in Case T-39/
98 Sadam Zuccherifici Divisione della SECI SpA, Sadam                                       (1999/C 100/19)
Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del
Molise SpA and SocietaÁ Fondiaria Industriale Romagnola
            SpA v. Council of the European Union                     Reference has been made to the Court of Justice of the
                                                                     European Communities by an judgment of the Second
                      (Case C-41/99 P)                               Chamber of the Supremo Tribunal Administrativo
                      (1999/C 100/18)                                (Supreme Administrative Court) of 13 January 1999,
                                                                     which was received at the Court Registry on 12 February
                                                                     1999, for a preliminary ruling in the case of FaÂbrica de
                                                                     Queijo Eru Portuguesa Lda and Tribunal TeÂcnico de 2a
An appeal has been brought before the Court of Justice of            InstaÃncia, on the following questions:
the European Communities on 12 February 1999 by
Sadam Zuccherifici Divisione della SECI SpA, Sadam
Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del              1. Are the Explanatory Notes to the combined
Molise SpA and SocietaÁ Fondiaria Industriale Romagnola                   nomenclature (1), where they state that caseins
SpA, represented by Vincenzo Cerulli Irelli, Gualtiero                    containing by weight more than 15 % water are
Pittalis and Giancarlo Fanzini, of the Bologna Bar, with an               included under heading 0406 (cheese and curd)
address for service in Luxembourg at the Chambers of                      contrary to Commission Regulation (EEC) No 3174/
ArseÁne Kronshagen, 22 Rue Marie-AdeÂlaïde, against the                   88 (2) according to which (Chapter IV) they are to
order made on 8 December 1998 by the Fourth Chamber                       classified under heading 0406, as cheese, provided
(Extended Composition) of the Court of First Instance of                  that:
the European Communities in Case T-39/98 Sadam
Zuccherifici Divisione della SECI SpA, Sadam                              (a) they have a fat content of 5 % or more;
Castiglionese SpA, Sadam Abruzzo SpA, Zuccherificio del
Molise SpA and SocietaÁ Fondiaria Industriale Romagnola                   (b) they have a dry matter content, by weight, of at
SpA v. Council of the European Union.                                          least 70 % but not exceeding 85 %; and
                                                                          (c) they are moulded or capable of being moulded?
The appellants claim that the Court should set aside the
Court of First Instance's order of 8 December 1998 in
Case T-39/98 by declaring the application to be admissible           2. Having regard to Commission Regulation (EEC)
and refer the case back to the Court of First Instance for a              No 3174/88 are the imported goods (which have the
decision on the substance.                                                following composition: 54 % water, 0,9 % fat, 5,7 %
                                                                          phosphorus, 2 % salt and casein) to be classified
                                                                          under customs heading 3501 10 90 0 00 000 as
                                                                          casein Ð other Ð or under customs heading
Pleas in law and main arguments adduced in support                        0406 90 11 01 0 000 as other cheeses?
                                                                     (1) OJ C 342, 5.12.1994, p. 1.
The contested regulation (1) has direct, not indirect,               (2) OJ L 298, 31.10.1998, p. 1.
detrimental effects on the four plants of the appellant
sugar-producing undertakings operating in southern Italy.
Those four plants are effectively the sole specific
addressees of Article 2 of Regulation (EC) No 2613/97
and have individually been adversely affected.
                                                                     Reference for a preliminary ruling by the Conseil
                                                                     SupeÂrieur des Assurances Sociales du Grand-DucheÂ de
It follows     that  the   application    must    be  declared       Luxembourg, by judgment of that body of 10 February
admissible.                                                          1999 in the case of Ghislain Leclere and Alina Deaconescu
                                                                          against Caisse Nationale des Prestations Familiales
(1) Article 2 of Council Regulation (EC) No 2613/97 of                                       (Case C-43/99)
    15 December 1997 authorising Portugal to grant aid to sugar                             (1999/C 100/20)
    beet producers and abolishing all State aid from the 2001/
    2002 marketing year (OJ L 353, 24.12.1997, p. 3).
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by judgment of the Conseil
 ---pagebreak--- C 100/12               EN                    Official Journal of the European Communities                                 10.4.1999
SupeÂrieur des Assurances Sociales du Grand-DucheÂ de                   Action brought on 16 February 1999 by the Commission
Luxembourg (Supreme Council of Social Insurance of the                  of the European Communities against the French Republic
Grand Duchy of Luxembourg), received at the Court
Registry on 16 February 1999, for a preliminary ruling in                                      (Case C-44/99)
the case of Ghislain Leclere and Alina Deaconescu against
                                                                                (1999/C 100/21)
Caisse Nationale des Prestations Familiales (National
Family Benefits Fund) on the following questions:
                                                                        An action against the French Republic was brought before
1. Are Articles 1(u)(i) and 10a and Annexes II and IIa to               the Court of Justice of the European Communities on
     Regulation (EEC) No 1408/71 (1), which lay down the                16 February 1999 by the Commission of the European
     principle of the non-transferability of childbirth and             Communities, represented by Dimitrios Gouloussis, Legal
     maternity allowances, consistent with Article 48 and               Adviser, acting as Agent, with an address for service in
     51 of the EC Treaty?                                               Luxembourg at the Office of Carlos Gómez de la Cruz,
                                                                        Wagner Centre, Kirchberg.
2. Is Regulation (EEC) No 1408/71 to be interpreted as
     meaning that, in respect of dependant children, it                 The Commission of the European Communities claims
     grants workers in receipt of an invalidity pension who             that the Court should:
     reside in a different country from that which pays the
     invalidity pension, family allowances only, to the
     exclusion of the child-raising allowance which is not              1. declare that, by incorrectly applying the provisions of
     granted by reference to the number of children?                        Article 68(1) and Article 71(1)(b)(ii) of Council
                                                                            Regulation No 1408/71 (1) to employed persons other
                                                                            than frontier workers who, during their last
3. Is Article 73 of Regulation (EEC) No 1408/71 to be                       employment, were residing in a Member State other
     interpreted as meaning that the recipient of an                        than the competent Member State, and, in particular,
     invalidity pension who continues to make compulsory                    by calculating unemployment benefits on the basis of
     sickness insurance contributions in the country which                  the normal wage or salary corresponding, in the place
     provides the pension, may, notwithstanding his                         where the unemployed person is residing or staying, to
     pension, be considered in that country as an employee                  an equivalent or similar employment to his last
     who is entitled to receive family benefits, including the              employment in the territory of another Member State,
     child-raising allowance, and Ð in the event that the                   and not on the basis of the wage or salary actually
     non-transferability clause is held to be incompatible                  received by the person concerned in his last
     with the Treaty Ð childbirth allowances?                               employment in the Member State where he was
                                                                            working immediately prior to becoming unemployed,
                                                                            the French Republic has failed to fulfil its obligations
                                                                            under Article 68(1) and Article 71(1)(b)(ii) of Council
4. Does the concept of worker' within the meaning of
                                                                            Regulation No 1408/71 and under Article 48 and
     Regulation (EEC) No 1612/68 (2) include the recipient
                                                                            Article 51 of the EC Treaty;
     of an invalidity penison who resides in a different
     country from that which provides the pension?
                                                                        2. order the French Republic to pay the costs.
5. Is Article 7 of Regulation (EEC) No 1612/68 to be
     interpreted as meaning that the recipient of an
     invalidity pension or his spouse may, on the basis of
                                                                        Pleas in law and main arguments adduced in support
     that article, enjoy social advantages which are
     denied him by Regulation (EEC) No 1408/71,
     notwithstanding the principle of non-transferability
     laid down therein in the event that that principle is              The French institutions have conferred entitlement to
     found by the Court to be compatible with the EC                    unemployment benefit on persons other than frontier
     Treaty?                                                            workers who are regarded as employed and who, during
                                                                        their last employment, were risiding in a Member State
                                                                        (France) other than the competent Member State
(1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on              (Germany), but who cannot, nevertheless, be regarded as
    the application of social security schemes to employed persons      frontier workers.
    and their families moving within the Community (OJ L 149,
    5.7.1971, p. 2).
(2) Council Regulation (EEC) No 1612/68 of 15 October 1968
    on freedom of movement for workers within the Community             For the purposes of calculating that benefit, the competent
    (OJ L 257, 19.10.1968, p. 2).
                                                                        authority has taken as the reference wage or salary a wage
                                                                        or salary corresponding to that which the person
                                                                        concerned would have received if he had worked in
                                                                        France in an employment equivalent to his employment in


title: Case F-67/05 RENV: Judgment of the Civil Service Tribunal (Third Chamber) of 14 December 2010 — Michail v Commission (Staff case — Officials — Referral back to the Tribunal after setting aside — Career development report — 2003 appraisal exercise — Action for annulment — Action for damages)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/47

         Judgment of the Civil Service Tribunal (Third Chamber) of 14 December 2010 — Michail v Commission
   (Case F-67/05 RENV)
   (Staff case - Officials - Referral back to the Tribunal after setting aside - Career development report - 2003 appraisal exercise - Action for annulment - Action for damages)
   2011/C 252/99
   Language of the case: French

      Parties

      Applicant: Christos Michail (Brussels, Belgium) (represented by: C. Meïdanis, lawyer)

      Defendant: European Commission (represented by: initially J. Currall and K. Herrmann, agents, then by J. Currall and K. Herrmann, agents, and by E. Bourtzalas and I. Antypas, lawyers)

      Re:

   Application for the annulment of the applicant’s career development report for the appraisal period from 1 April 2003 to 31 December 2003 and a claim for damages (formerly T-284/05) — Case T-49/08 P referred back after appeal.

      Operative part of the judgment

   The Tribunal:

               1.

               annuls Mr Michail’s career development report for the period from 1 April to 31 December 2003;

               2.

               orders the European Commission to pay Mr Michail damages of EUR 1 000;

               3.

               orders the European Commission to pay the costs.


title: Case C-289/04 P: Appeal brought on 1 July 2004 by Showa Denko K.K. against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/1

         Appeal brought on 1 July 2004 by Showa Denko K.K. against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities
   (Case C-289/04 P)
   (2004/C 239/01)
   An appeal against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 1 July 2004 by Showa Denko K.K. (case T-245/01 (1)), established in Tokyo (Japan), represented by M. Dolmans, J. Temple Lang and P. Werdmuller, lawyers.
   The Appellant claims that the Court should:

               —

               set aside the judgment in case T-245/01 Showa Denko K.K. v. Commission of the European Communities in part;

               —

               reduce the amount of the Appellant's fine to EUR 6,960,000 or by an amount considered appropriate by the Court of Justice in the exercise of its discretion; and

               —

               take any other measure that the Court of Justice deems appropriate.

         Pleas in law and main arguments:
   The Appellant submits that there is no indication that the Appellant's group or top management was involved in the cartel, no evidence that the Appellant engaged in the infringements calculatedly, deliberately and knowingly, and certainly no evidence that this was more so for the Appellant than for the other participants. There is therefore no justification for singling out the Appellant and imposing a special ‘deterrence factor’ on it.
   If a fine otherwise calculated needs to be increased for deterrence on this ground, then the amount of the increase must be rationally based on the benefit which the company expected to obtain from the infringement. This increase can only be based on the company's turnover in the market affected by the infringement, adjusted for the probability or otherwise of detection.
   The ‘size’ of the company or group in markets not affected by the infringement are not relevant to the expected benefits and incentives that a company might have to infringe the law, nor do they relate to risk of detection. Economic analysis confirms this. Conglomerate size and finances are therefore not relevant for the calculation of any increase which is needed for deterrence.
   In other words, conglomerate size and finances cannot be a reason to single out the Appellant and increase the fine on it. Doing so is discriminatory, disproportionate, arbitrary, and not supported by adequate reasoning.
   The Appellant therefore maintains that the Commission and the Court of First Instance were wrong to base the increase in the Appellant's fine for ‘deterrence’ on the Appellant's group turnover in products not affected by the infringement, without any finding that deterrence was necessary or identifying any rational basis for the amount of the increase.

      (1)  OJ C 17, 19.1.2002, p. 15.


title: Judgment of the Court (Sixth Chamber) of 12 February 2004 in Case C-363/99 (Reference for a preliminary ruling from the Gerechtshof te's-Gravenhage): Koninklĳke KPN Nederland NV v Benelux-Merkenbureau (Approximation of laws — Trade marks — Directive 89/104/EEC — Article 3(1) — Grounds for refusal to register — Taking account of all the relevant facts and circumstances — Prohibition on registering a mark in respect of certain goods or services if they do not possess a particular characteristic — Word made up of components each of which describes characteristics of the goods or services concerned)

text:
3.4.2004                EN                           Official Journal of the European Union                                                  C 85/1
                                                                          I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       court between Koninklijke KPN Nederland NV and Benelux-
                                                                             Merkenbureau, on the interpretation of Articles 2 and 3 of
                                                                             First Council Directive 89/104/EEC of 21 December 1988 to
                         (Sixth Chamber)                                     approximate the laws of the Member States relating to trade
                                                                             marks (OJ 1989 L 40, p. 1), the Court (Sixth Chamber),
                                                                             composed of: V. Skouris, acting for the President of the Sixth
                                                                             Chamber, C. Gulmann, J. N. Cunha Rodrigues, R. Schintgen
                       of 12 February 2004                                   and F. Macken (Rapporteur), Judges; D. Ruiz-Jarabo Colomer,
                                                                             Advocate General; H. von Holstein, Deputy Registrar, has
                                                                             given a judgment on 12 February 2004, in which it has ruled:
in Case C-363/99 (Reference for a preliminary ruling
from the Gerechtshof te’s-Gravenhage): Koninklijke KPN
         Nederland NV v Benelux-Merkenbureau (1)
(Approximation of laws — Trade marks — Directive 89/
104/EEC — Article 3(1) — Grounds for refusal to register                     1.    Article 3 of First Council Directive 89/104/EEC of 21 Decem-
— Taking account of all the relevant facts and circumstances                       ber 1988 to approximate the laws of the Member States
— Prohibition on registering a mark in respect of certain                          relating to trade marks is to be interpreted as meaning that a
goods or services if they do not possess a particular character-                   trade mark registration authority must have regard, in addition
istic — Word made up of components each of which describes                         to the mark as filed, to all the relevant facts and circumstances.
      characteristics of the goods or services concerned)
                          (2004/C 85/01)                                           It must have regard to all the relevant facts and circumstances
                                                                                before adopting a final decision on an application to register a
                                                                                trade mark. A court asked to review a decision on an application
                                                                                to register a trade mark must also have regard to all the relevant
                    (Language of the case: Dutch)                                  facts and circumstances, subject to the limits on the exercise of
                                                                                its powers as defined by the relevant national legislation.
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                             2.    The fact that a trade mark has been registered in a Member
                                                                                State in respect of certain goods or services has no bearing on
                                                                                the examination by the trade mark registration authority of
In Case C-363/99: Reference to the Court under Article 234                         another Member State of an application for registration of a
EC by the Gerechtshof te ’s-Gravenhage (Netherlands) for a                         similar mark in respect of goods or services similar to those in
preliminary ruling in the proceedings pending before that                          respect of which the first mark was registered.
 ---pagebreak--- C 85/2                  EN                            Official Journal of the European Union                                              3.4.2004
3.  Article 3(1)(c) of Directive 89/104 precludes registration of a                 For the purposes of determining whether Article 3(1)(c) of
    trade mark which consists exclusively of signs or indications                   Directive 89/104 applies to such a mark, it is irrelevant
    which may serve, in trade, to designate characteristics of the                  whether or not there are synonyms capable of designating the
    goods or services in respect of which registration is sought, and               same characteristics of the goods or services mentioned in the
    that is the case even when there are more usual signs or                        application for registration or that the characteristics of the
    indications for designating the same characteristics and regard-                goods or services which may be the subject of the description are
    less of the number of competitors who may have an interest in                   commercially essential or merely ancillary.
    using the signs or indications of which the mark consists.
                                                                              6.    Directive 89/104 prevents a trade mark registration authority
                                                                                from registering a mark for certain goods or services on
                                                                                condition that they do not possess a particular characteristic.
    Where the applicable national law provides that the exclusive
    right conferred by registration, by a competent authority in an           7.    The practice of a trade mark registration authority which
    area in which a number of officially recognised languages                       concentrates solely on refusing to register >manifestly inadmis-
    coexist, of a word mark expressed in one of those languages                     sible marks is incompatible with Article 3 of Directive 89/104.
    extends automatically to its translation in the other languages,
    the authority must ascertain as regards each of those translations
    whether the mark actually consists exclusively of signs or                (1) OJ C 47 of 19.2.2000.
    indications which may serve, in trade, to designate characteristics
    of those goods or services.
4.  Article 3(1) of Directive 89/104 must be interpreted as
    meaning that a mark which is descriptive of the characteristics
                                                                                JUDGMENT OF THE COURT
    of certain goods or services but not of those of other goods or
    services for the purposes of Article 3(1)(c) of Directive 89/104
    cannot be regarded as necessarily having distinctive character in                                   (Sixth Chamber)
    relation to those other goods or services for the purposes of
    subparagraph (b) of the provision.
                                                                                of 5 February 2004
                                                                              in Case C-24/00: Commission of the European Communi-
    It is of no relevance that a mark is descriptive of the                                        ties v French Republic (1)
    characteristics of certain goods or services under Article 3(1)(c)
    of Directive 89/104 when it comes to assessing whether the
    same mark has distinctive character in relation to other goods            (Failure of a Member State to fulfil obligations — Articles 30
    or services for the purposes of Article 3(1)(b) of the Directive.         and 36 of the EC Treaty (now, after amendment, Articles 28
                                                                              EC and 30 EC) — National legislation exhaustively listing
                                                                              the nutrients which may be added to foodstuffs — Measure
                                                                              having equivalent effect — Justification — Public health —
                                                                                Consumer protection — Proportionality)
5.  Article 3(1)(c) of Directive 89/104 must be interpreted as
    meaning that a mark consisting of a word composed of                                                 (2004/C 85/02)
    elements, each of which is descriptive of characteristics of the
    goods or services in respect of which registration is sought, is
    itself descriptive of the characteristics of those goods or services                           (Language of the case: French)
    for the purposes of that provision, unless there is a perceptible
    difference between the word and the mere sum of its parts: that           (Provisional translation; the definitive translation will be published
    assumes either that because of the unusual nature of the                                      in the European Court Reports)
    combination in relation to the goods or services the word creates
    an impression which is sufficiently far removed from that
    produced by the mere combination of meanings lent by the
    elements of which it is composed, with the result that the word
    is more than the sum of its parts, or that the word has become            In Case C-24/00, Commission of the European Communities
    part of everyday language and has acquired its own meaning,               (Agents: R. B. Wainwright and O. Couvert-Castéra) with an
    with the result that it is now independent of its components. In          address for service in Luxembourg, v French Republic (Agents:
    the latter case, it is necessary to ascertain whether a word which        initially R. Abraham and R. Loosli-Surrans, and, subsequently,
    has acquired its own meaning is not itself descriptive for the            J.-F. Dobelle andR. Loosli-Surrans) with an address for service
    purposes of the same provision.                                           in Luxembourg: Application for a declaration that:


title: Case C-2/06: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of  21 November 2005  in Willy Kempter KG v Hauptzollamt Hamburg-Jonas — Ausfuhrerstattung

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/25

         Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 21 November 2005 in Willy Kempter KG v Hauptzollamt Hamburg-Jonas — Ausfuhrerstattung
   (Case C-2/06)
   (2006/C 60/47)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg of 21 November 2005, received at the Court Registry on 4 January 2006, for a preliminary ruling in the proceedings between Willy Kempter KG and Hauptzollamt Hamburg-Jonas — Ausfuhrerstattung (Main Customs Office Hamburg-Jonas, Export Refunds Section) on the following questions:

               1.

               Is the review and amendment of a final administrative decision in order to take account of the interpretation of the relevant Community law carried out by the Court of Justice of the European Communities in the meantime subject to the requirement that the party concerned relied on Community law when contesting the administrative decision before the national courts?

               2.

               Is an application for the review and amendment of a final administrative decision which is contrary to Community law subject to a restriction in time for overriding reasons of Community law, apart from the conditions set out in Case C-453/00 Kühne & Heitz [2004] ECR I-837?


title: Case T-266/10: Action brought on 16 June 2010 — Spain v Commission

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/54

         Action brought on 16 June 2010 — Spain v Commission
   (Case T-266/10)
   ()
   2010/C 221/86
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: Mrs Nuria Díaz Abdal, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the European Commission’s decision of 11 May 2010 declaring the suspension of the interim payment application submitted by Spain on 10 December 2009 on the grounds stated in Part I of the legal reasoning set out in the originating application;

               —

               Uphold the claim that the European Commission should pay interest on account of the delay in the actual payment of the interim sums applied for and improperly suspended;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The present action is brought against the Commission’s decision to interrupt the payment deadline in respect of the interim payment application submitted by Spain on 10 December 2009. That interim payment application, for a total amount of EUR 6 509 540,26, relates to the Operational Programme for Community Assistance of the European Social Fund in the framework of the Objectives of Convergence for the Basque Country (CCI 2007ES052PO010).
   The pleas in law and main arguments are the same as those already raised in Case T-263/10 Spain v Commission.


title: Case C-280/08 P: Appeal brought on 26 June 2008 by Deutsche Telekom AG against the judgment delivered by the Court of First Instance on 10 April 2008 in Case T-271/03 Deutsche Telekom v Commission

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/31

         Appeal brought on 26 June 2008 by Deutsche Telekom AG against the judgment delivered by the Court of First Instance on 10 April 2008 in Case T-271/03 Deutsche Telekom v Commission

   (Case C-280/08 P)
   (2008/C 223/48)
   Language of the case: German
   Parties

      Appellant: Deutsche Telekom AG (represented by: U. Quack, Rechtsanwalt, S. Ohlhoff, Rechtsanwalt, M. Hutschneider, Rechtsanwalt)

      Other parties to the proceedings: Commission of the European Communities, Arcor AG & Co. KG, Versatel NRW GmbH, formerly Tropolys NRW GmbH, formerly CityKom Münster GmbH Telekommunikationsservice, EWE TEL GmbH, HanseNet Telekommunikation GmbH, Versatel Nord-Deutschland GmbH, formerly KomTel Gesellschaft für Kommunikations- und Informationsdienste mbH, NetCologne Gesellschaft für Telekommunikation mbH, Versatel Süd-Deutschland GmbH, formerly tesion Telekommunikation GmbH, Versatel West-Deutschland GmbH & Co. KG, formerly VersaTel Deutschland GmbH & Co. KG
   Form of order sought

               —

               Set aside the judgment of the Court of First Instance of 10 April 2008 in Case T-271/03;

               —

               annul Commission Decision 2003/707/EC (1) of 21 May 2003, notified under document number C(2003)1536;

               —

               in the alternative, reduce, at the Court's discretion, the fine imposed on Deutsche Telekom AG in Article 3 of the contested Commission decision;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The appellant bases its appeal against the above mentioned judgment of the Court of First Instance on the following grounds of appeal.

      The judgment infringes Article 82 EC and the principle of the protection of legitimate expectations because in the present case, there has been no objective infringement of Article 82 EC attributable to the appellant and the appellant has also not been at fault. The judgment fails to take into account, in the manner required by law, repeated examinations of the purported margin squeeze by the German regulatory authority for telecommunications and post (‘RegTP’), which was responsible at that time for regulating the appellant. RegTP repeatedly examined whether there was an anti-competitive margin squeeze in respect of local loops and found that there was none. In a situation like that, the responsibility of the relevant regulatory authority overrides and restricts the regulated undertaking's special responsibility for maintaining the structure of the market. In the light of the regulatory decisions, the appellant had a right to assume that its conduct was not anti-competitive. The assumption that the appellant could have reduced the purported margin squeeze by increasing its ADSL charges is contrary to the Court's own position that, in the context of examining a margin squeeze, ‘cross-subsidisation’ between different markets is not to be taken into account. In addition, the Court of First Instance was wrong not to object to the fact that the Commission failed to examine whether an increase in ADSL charges would have actually reduced the purported margin squeeze.

      The judgment also infringes Article 82 EC because the Court of First Instance erred in examining whether the conditions for the application of Article 82 EC were met. In the present case, a margin squeeze test is inherently unsuitable to establish abuse. In a situation where charges for wholesale access were imposed by the relevant regulatory authority — as is the case here — the test in itself could produce anti-competitive results.
   In this context, the Court of First Instance also infringed its obligation to state the reasons for its judgment.

   In the context of examining the methodology used by the Commission to establish that there had been a margin squeeze, the contested judgment also contains errors of law on essential points. First of all, the so-called ‘as-efficient-competitor-test’, which the Court of First Instance used as a generally applicable standard of comparison, can in any event not be used in a situation in which the dominant undertaking and its competitors operate under different regulatory and actual competitive conditions — as is the case here. Second, the margin squeeze test only takes into account charges for access, while charges for additional telecommunication services (especially telephone calls) that require the same wholesale service, were not considered. The judgment's findings on the effects of the purported margin squeeze suffered from several errors in law and the judgment failed to examine whether the purported margin squeeze supported the Court of First Instance's findings on the structure of the market.

      Further, the judgment fails to observe the requirements of Article 253 EC as regards the Commission's obligation to state the reasons on which its decisions are based.

      Finally, the Court of First Instance also wrongly applied Article 15(2) of Regulation 17 when it failed to object to the Commission's calculation of the fine, even though the Commission wrongly assumed that there had been a serious infringement, failed to take proper account of the sector specific regulation of the appellant's charges and should not have imposed more than a symbolic fine. In doing so, the Court of First Instance failed to take into account, in a legally correct manner, all relevant factors and to deal to the requisite legal standard with the appellant's arguments concerning cancellation or reduction of the fine.

      (1)   OJ 2003 L 263, p. 9.


title: Case T-371/08 P: Appeal brought on 8 September 2008 by Bart Nijs against the order of the Civil Service Tribunal delivered on 26 June 2008 in Case F-5/07 Nijs v Court of Auditors

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/45

         Appeal brought on 8 September 2008 by Bart Nijs against the order of the Civil Service Tribunal delivered on 26 June 2008 in Case F-5/07 Nijs v Court of Auditors
   (Case T-371/08 P)
   (2008/C 301/77)
   Language of the case: French
   Parties

      Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by F. Rollinger and A. Hertzog, lawyers)

      Other party to the proceedings: Court of Auditors of the European Communities
   Form of order sought by the appellant

               —

               Declare the appeal admissible;

               —

               Declare the appeal well-founded;

               —

               Consequently, annul the order of 26 June 2008 in Case F-5/07 Bart Nijs v Court of Auditors of the European Communities.

         Pleas in law and main arguments
   The applicant claims that the Civil Service Tribunal's order is vitiated by a manifest error in the assessment of procedural provisions inasmuch as it regards the action as inadmissible by reason of a failure to comply with the requirements of clarity, an infringement of the principle of the protection of legitimate expectations and an erroneous application of the presumption of legality to the defendant's contentions inasmuch as the order was made after a single exchange of written pleadings.
   In addition, the applicant considers that the contested order is lacking in clarity, is unsupported by evidence, is vitiated by a manifest error in the consideration of the pleas in law raised in the application and does not consider certain matters which the Tribunal should have considered of its own motion.
   The applicant also claims that the contested order should have taken account of the lack of a statement of reasons at the pre-litigation stage and that it was wrongly based on a failure to comply with time-limits, inasmuch as the Tribunal had not carried out a suficient investigation to reach that conclusion.


title: ORDER OF THE COURT (First Chamber) of 28 June 1995 in Case C-258/94 P: Paulo Branco v. Court of Auditors of the European Communities (Appeal manifestly inadmissible)

text:
No C 229/10             EN                   Official Journal of the European Communities                                       2 . 9 . 95
4. a taxable person may claim, with retroactive effect from             (b) on the ground that the new presentation gives the
      the date on which the national legislation contrary to the               impression to the consumer that the volume and the
      Sixth Directive came into force, a refund of VAT paid                    weight of the product have been considerably
      without being due, by following the procedural rules                     increased.
      laid down by the domestic legal system of the Member
      State concerned, provided that those rules are not less
      favourable than those relating to similar, domestic               ( ] ) OJ No C 43 , 12 . 2 . 1994 .
      actions nor framed in a way such as to render virtually
      impossible the exercise of rights conferred by
      Community law.
(') OJ No C 124, 6 . 5 . 1993 .
( 2 ) OJ No L 145 , 13 . 6 . 1977, p . 1 .
                                                                                ORDER OF THE COURT
                                                                                ( First Chamber )
                                                                                of 28 June 1995
                                                                        in Case C-258/94 P: Paulo Branco v. Court of Auditors of
                                                                                the European Communities ( 1 )
                JUDGMENT OF THE COURT                                                    (Appeal manifestly inadmissible)
                          (Fifth Chamber)                                                             95/C 229/ 19
                            of 6 July 1995
in Case C-470/93 ( reference for a preliminary ruling from
the Landgericht Köln ): Verein gegen Unwesen in Handel                                  (Language of the case: Portuguese)
           und Gewerbe Köln eV v. Mars GmbH ( 1 )
 (Free movement of goods — Measures having an effect
equivalent to quantitative restrictions — Presentation of a              (Provisional translation; the definitive translation will be
product likely to restrict freedom to fix retail prices and                        published in the European Court Reports)
                     mislead the consumer)
                             ( 95/C 229/18 )
                                                                         In Case C-25 8/94 P : Paulo Branco, an official of the Court of
                                                                         Auditors of the European Communities, and subsequently
                 (Language of the case: German)                          of the Commission of the European Communities, resident
                                                                         in Brussels, represented by Raoul Wagener and David
                                                                         M. Travessa Mendes, both of the Luxembourg Bar, 6-12,
 In Case C-470/93 : reference to the Court under Article 177             Place d'Armes, Luxembourg — appeal against the order of
 of the EC Treaty by the Landgericht Koln ( Germany ) for a              the Court of First Instance of the European Communities of
 preliminary ruling in the proceedings pending before that               20 July 1994 in CaseT-45/93 between Paulo Branco and the
 court between Verein gegen Unwesen in Handel und                         Court of Auditors of the European Communities ([ 1994]
 Gewerbe Koln eV v. Mars GmbH — on the interpretation of                 ECR-SC 11-641 ), seeking to have that order set aside, the
 Article 30 of the EC Treaty, the Court ( Fifth Chamber ),               other party to the proceedings being the Court of Auditors
 composed of: C. Gulmann ( Rapporteur ), President of the                 of the European Communities ( Agents : Jean-Marie Stenier
 Chamber, P. Jann, J. C. Moitinho de Almeida, D. A. O.                    and Jan Inghelram ) — the Court ( First Chamber ), composed
 Edward and L. Sevon, Judges; P. Leger, Advocate-General;                 of: P. Jann , President of the Chamber ( Rapporteur ), D. A. O.
 H. A. Riihl , Principal Administrator, has given a judgment              Edward and L. Sevon, Judges; A. M. La Pergola,
 on 6 July 1995 , in which it rules :                                     Advocate-General; R. Grass, Registrar , made an order on
                                                                          28 June 1995 , the operative part of which is as follows :
 Article 30 ofthe EC Treaty is to be interpreted as precluding
 a national measure from prohibiting the importation and                  1 . the appeal is dismissed;
 marketing of a product lawfully marketed in another
 Member State, the quantity of which was increased during a
 short publicity campaign and the wrapping of which bears                 2 . the appellant is ordered to pay the costs.
  the marking '+ 10% ':
                                                                          (') OJ No C 331 , 26 . 11 . 1994 .
  (a) on the ground that that presentation may induce the
        consumer into thinking that the price of the goods
        offered is the same as that at which the goods had
        previously been sold in their old presentation;