title: Case C-132/06: Action brought on  7 March 2006  — Commission of the European Communities v Italian Republic

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/11

         Action brought on 7 March 2006 — Commission of the European Communities v Italian Republic
   (Case C-132/06)
   (2006/C 108/18)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa and M. Afonso, acting as Agents)

      Defendant: Italian Republic
   Form of order sought

               —

               A declaration that, by providing both expressly and in a general manner in Articles 8 and 9 of Law No 289 of 27 December 2002 (Finance Law for 2003) that assessment of taxable transactions effected in the course of a series of tax years is to be abandoned, the Italian Republic has failed to fulfil its obligations under Articles 2 and 22 of the Sixth Council Directive 77/388/EEC of 17 May 1977 (1) in conjunction with Article 10 of the EC Treaty;

               —

               An order that the Italian Republic should pay the costs.

         Pleas in law and main arguments
   The Commission points out that the Community legislature imposed a twofold obligation on Member States consisting not only in adopting all legislative measures required under national law to implement the Sixth VAT Directive but also in adopting all administrative measures necessary to ensure that taxable persons liable to VAT comply with the obligations arising under the Sixth Directive, primarily the obligation to pay the tax due as a result of effecting taxable transactions spanning a certain period of time. It would not have made any sense for the Community legislature to have provided for the harmonisation of VAT, nor would it have served any practical purpose, if national fiscal authorities were not required to implement a system of assessment and monitoring intended to ensure ‘the collection of taxes in a uniform manner in all Member States’, as stated in the fourteenth recital in the preamble to the Sixth Directive.
   The rules introduced by Articles 8 and 9 of Italian Law No 289/2002 went far beyond the bounds of administrative discretion conferred on the Member States by the Community legislature. In fact, instead of using that discretion to achieve more effective fiscal monitoring, by the above-mentioned law, the Italian State truly abandoned in a general, indiscriminate and preventive manner all forms of VAT assessment and verification, and is thus in direct breach of the requirements under Article 22 of the Sixth Directive and, as a consequence, of the general obligation under Article 2 to subject all taxable transactions to VAT. The Italian legislature has given all taxable persons liable to VAT and subject to its fiscal competence the possibility of bypassing entirely any form of fiscal control in relation to a series of tax years. A taxable person may acquire such a significant benefit by the payment of an amount calculated according to a standard method which no longer has any connection with the amount of VAT that would have been payable in respect of the cost of supplies of goods or services effected by the taxable person in the relevant tax year.
   A particularly striking example of this radical ‘separation’ between the tax liability that is calculated as being payable in accordance with normal VAT rules and the ‘quantum’ payable to qualify for the ‘graveyard amnesty’ is to be found in the case of a taxable person who has failed to file any tax return at all. The taxable person can regularise his position in respect of each tax year by a payment of Euro 1 500 in the case of a natural person or Euro 3 000 in the case of a company. A further example of the total absence of any link with the basis of assessment of transactions effected (but not declared) is to be found in the rules governing the ‘graveyard’ amnesty, which may be procured by submitting a supplementary statement. The amount payable by a taxpayer wishing to take advantage of the amnesty is calculated as a percentage (2 %) to be applied to the VAT that would have been payable in respect of the supply of goods or services effected in each tax year (or the VAT improperly deducted in respect of purchases in the same tax year).
   Such a general and preventive abandonment of any means of VAT verification is likely seriously to distort the proper functioning of the common VAT system. In particular, it would undermine the principle of fiscal neutrality, which precludes the different VAT treatment of traders effecting the same transactions. Any exception to the rule that VAT should be levied and collected effectively would result, on the one hand, in inflicting serious damage to the detriment of both Italian undertakings and those in other Member States which are subject to ordinary value added tax rules and, on the other hand, in seriously undermining the principle of ‘fair competition’ within the Community market, set out in the fourth recital to the preamble to the Sixth Directive.

      (1)  OJ L 145, p. 1


title: Case F-138/15: Action brought on 2 November 2015 — ZZ v Parliament

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/78

         Action brought on 2 November 2015 — ZZ v Parliament
   (Case F-138/15)
   (2016/C 027/100)
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: T. Bontinck and A. Guillerme, lawyers)

      Defendant: European Parliament

      Subject-matter and description of the proceedings

   Annulment of the decision to terminate the applicant’s contract of employment and claim for damages in respect of the non-material damage allegedly suffered.

      Form of order sought

               —

               Annul the decision dated 19 December 2014 to terminate the applicant’s contract of employment;

               —

               order the European Parliament to compensate the applicant for the non-material damage suffered, assessed provisionally on an ex aequo et bono basis at EUR 20 000;

               —

               order the defendant to pay the costs


title: Case C-43/15 P: Appeal brought on 4 February 2015 by BSH Bosch und Siemens Hausgeräte GmbH against the judgment of the General Court (Seventh Chamber) of 4 December 2014 in Case T-595/13 BSH Bosch und Siemens Hausgeräte GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/13

         Appeal brought on 4 February 2015 by BSH Bosch und Siemens Hausgeräte GmbH against the judgment of the General Court (Seventh Chamber) of 4 December 2014 in Case T-595/13 BSH Bosch und Siemens Hausgeräte GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-43/15 P)
   (2015/C 146/20)
   Language of the case: German

      Parties

      Appellant: BSH Bosch und Siemens Hausgeräte GmbH (represented by: S. Biagosch, Rechtsanwalt)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (Seventh Chamber) of 4 December 2014 in Case T-595/13;

               —

               annul the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 September 2013 and 3 December 2013 (Case R 1176/2012-1);

         in the alternative,

               —

               refer the case back to the General Court for judgment;

               —

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings at both instances.

      Grounds of appeal and main arguments

   The present appeal has been brought against the judgment of the General Court by which that court dismissed the action brought by the appellant against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 September 2013 in opposition proceedings R 1176/2012-1.
   The appellant relies upon two grounds of appeal:
   First, it alleges an infringement of Article 60 of Regulation (EC) No 207/2009 (1), in that the General Court failed to observe the fact that the Board of Appeal was not allowed to vary the decision of the Opposition Division to the detriment of the appellant, since no admissible complaint had been brought by the respondent and Article 8(3) of the Rules of Procedure of the Boards of Appeal does not provide for cross-appeals.
   Second, the appellant relies on an infringement of Article 8(1)(b) of Regulation (EC) No 207/2009. Where an earlier trade mark presents an easily recognisable alteration of a descriptive indication and the more recent trade mark itself contains that descriptive indication, even a high degree of similarity of the signs and identity of the goods cannot lead to a finding of a likelihood of confusion if the similarities of the signs are limited to the descriptive indication and relate only to goods which are described by that indication.

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


title: Case C-11/06: Reference for a preliminary ruling from the Verwaltungsgericht Aachen lodged on  11 January 2006  — Rhiannon Morgan v Bezirksregierung Köln

text:
               20.5.2006

               EN

               Official Journal of the European Union

               C 121/1

         Reference for a preliminary ruling from the Verwaltungsgericht Aachen lodged on 11 January 2006 — Rhiannon Morgan v Bezirksregierung Köln
   (Case C-11/06)
   (2006/C 121/01)
   Language of the case: German
   Referring court
   Verwaltungsgericht Aachen (Administrative Court, Aachen (Germany))
   Parties to the main proceedings

      Claimant: Rhiannon Morgan

      Defendant: Bezirksregierung Köln
   Question referred
   Does the freedom of movement guaranteed for citizens of the Union under Articles 17 EC and 18 EC prohibit a Member State, in a case such as the present, from refusing to award an education or training grant to one of its nationals for a full course of study in another Member State on the ground that the course does not represent the continuation of attendance at a German education or training establishment for a period of at least one year?


title: Case C-400/15: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 July 2015 — Landkreis Potsdam-Mittelmark v Finanzamt Brandenburg

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/19

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 July 2015 — Landkreis Potsdam-Mittelmark v Finanzamt Brandenburg
   (Case C-400/15)
   (2015/C 363/24)
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Appellant on a point of law: Landkreis Potsdam-Mittelmark

      Respondent in the appeal on a point of law: Finanzamt Brandenburg

      Question referred

   The second sentence of Paragraph 15(1) of the German Umsatzsteuergesetz (Law on turnover tax) provides that the intra-Community supply, importation or acquisition of goods which a commercial operator uses in the amount of less than 10 % for the purposes of his business does not count as being carried out for the purposes of his business — and to that extent excludes the right to deduct input tax.
   That rule is based on Article 1 of Council Decision 2004/817/EC (1) of 19 November 2004, which authorises the Federal Republic of Germany, by way of derogation from Article 17(2) of Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes, to exclude expenditure on goods and services from the right to deduct VAT when the goods and services in question are used more than 90 % for the private purposes of a taxable person or of his employees, or, more generally, for non-business purposes.
   Does this authorisation — in accordance with its wording — apply only to the cases covered by Article 6(2) of Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes (Article 26 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax), or does it apply, in addition, to all cases in which goods or services are used only partly for business purposes?

      (1)  OJ 2004 L 357, p. 33.


title: Case T-437/04: Action brought on 1 November 2004 by Holger Standertskjöld-Nordenstam against the Commission of the European Communities

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/44

         Action brought on 1 November 2004 by Holger Standertskjöld-Nordenstam against the Commission of the European Communities
   (Case T-437/04)
   (2005/C 6/86)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 November 2004, by Holger Standertskjöld-Nordenstam, residing in Waterloo (Belgium), represented by T. Demaseure, lawyer.
   The applicant claims that the Court should:

               —

               Annul the Commission's decision not to include the applicant's name on the list, published in Administrative Notices No 84-2003 of 19 December 2003, of the officials most deserving of promotion to Grade A3 in the ‘second round’ of the 2003 promotion procedure;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant was proposed by his Directorate-General for promotion to Grade A3 in the 2003 procedure. The Consultative Committee on Appointments established a list of fourteen officials most deserving of promotion. The applicant was not on it, having been placed fifteenth. The Appointing Authority subsequently decided to add the names of 2 cabinet members to the list. On that basis the applicant alleges, in support of his action, that the contested decision infringes Article 45 of the Staff Regulations, since the merits of those 2 cabinet members were not compared with those of the other officials, including the applicant.
   The applicant also relies on a second plea in law alleging breach of Article 4.2 of the Commission's decision of 19 July 1988. In that context, the applicant alleges that the promotions were made without the prior opinion of the Consultative Committee on Appointments and that the list of the most deserving officials should have included a number of officials' names exceeding the possible promotions by 50 % and not, as in this case, a number of names equal to the number of available posts.
   The applicant pleads, lastly, breach of the duty to state reasons.


title: Case T-113/00: Action brought on 2 May 2000 by DuPont Teĳin Films Luxembourg S.A., Mitsubishi Polyester Film GmbH and Toray Plastics Europe S.A. against the Commission of the European Communities

text:
24.6.2000              EN                     Official Journal of the European Communities                                      C 176/31
— illegality of Commission Regulation (EC) No 2553/97 of                 It should be pointed out that the Commission rejected the
     17 December 1997 on rules for issuing import licences for           Community Producers’ complaint on the ground that the
     certain products covered by CN codes 1701, 1702,                    complaint was inadmissible, essentially by virtue of Article 27
     1703 and 1704 and qualifying as ACP/OCT originating                 of Regulation No 2820/98, which provides that ‘Preferences
     products (3), as a result of which Article 2(2) of the              shall normally be granted to producers which are subject to ...
     safeguard measure, which states that the provisions of              anti-subsidy measures’.
     Regulation No 2553/97 are to apply mutatis mutandis, is
     unlawful.
                                                                         In support of their action, the applicants make the following
                                                                         submissions:
(1) OJ L 56 of 1.3.2000, p. 39.
(2) OJ 1991 L 263, p. 1, as last amended by Decision 2000/168/EC.
(3) OJ 1997 L 349, p. 26.
                                                                         The contested decision is unlawful in that it is contrary to
                                                                         Community secondary legislation. Regulation No 2820/98
                                                                         does not provide that the existence of anti-subsidy measures
                                                                         precludes the opening of an investigation into the removal of
                                                                         GSP benefits. It provides that GSP benefits are not normally
                                                                         incompatible with anti-subsidy or anti-dumping measures but
                                                                         that those benefits can be withdrawn in manifest cases of
Action brought on 2 May 2000 by DuPont Teijin Films                      subsidisation or other unfair trading practices. The contested
Luxembourg S.A., Mitsubishi Polyester Film GmbH and                      decision, according to which benefits can never be withdrawn
Toray Plastics Europe S.A. against the Commission of the                 if anti-subsidy measures are in place, is therefore based upon a
                    European Communities                                 misinterpretation of Regulation No 2820/98. The Community
                                                                         Producers’ interpretation of this regulation is also consistent
                                                                         with trade policy, in that it would enable the Commission to
                         (Case T-113/00)                                 examine the possibility of withdrawing benefits from a trading
                                                                         partner who was persistently or grossly infringing international
                         (2000/C 176/54)                                 obligations or WTO rules.
                   (Language of the case: English)                       The Commission has failed to provide adequate reasoning for
                                                                         its decision rejecting the Community Producers’ complaint.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 May 2000 by DuPont Teijin                      (1) OJ L 357 of 30.12.1998, p. 1.
Films Luxembourg S.A. (Luxembourg), Mitsubishi Polyester
Film GmbH (Wiesbaden, Germany) and Toray Plastics Europe
S.A. (Miribel Cedex, France), represented by Mr. Ian S. Forrester
QC and Mr. James Killick, of White & Case LLP, Brussels.
The applicant claims that the Court should:
— annul the contested decision;
— order the Commission to pay the costs;
                                                                         Action brought on 11 May 2000 by Michael Nevin against
— take such other or further steps as justice may require.                      the Commission of the European Communities
Pleas in law and main arguments                                                                   (Case T-127/00)
On 17 September 1998 the Community producers requested                                            (2000/C 176/55)
the European Commission to investigate whether it was
appropriate to remove General System of Preferences (GSP)
tariff benefits from Indian polyethylene terephthalate film
(‘PET’ film), on the grounds that the subsidies being paid to                               (Language of the case: French)
Indian PET film producers constituted a ‘manifest case of
unfair trading practices’ under the current Article 22 of
Council Regulation (EC) No 2820/98, of 21 December 1998,                 An action against the Commission of the European Communi-
applying a multiannual scheme of generalised tariff preferences          ties was brought before the Court of First Instance of the
for the period 1 July 1999 to 31 December 2001 (1). The                  European Communities on 11 May 2000 by Michael Nevin,
present action is brought by the three major producers of PET            residing at Tervuren (Belgium), represented by Nicolas Lhoëst,
film in Europe against the rejection of that request.                    of the Brussels Bar.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 19 October 1995 in Case C-137/94 (reference for a preliminary ruling from the Divisional Court of the Queen's Bench Division of the High Court of Justice of England and Wales): The Queen v. Secretary of State for Health, ex-parte Cyril Richardson (Equal treatment for men and women - Exemption from prescription charges - Scope of Directive 79/7/EEC - Link with pensionable age - Temporal effects of judgment)

text:
No C 315/8            EN                     Official Journal of the European Communities                                   25 . 11 . 95
Civile e Penale di Milano in its order for reference of                                JUDGMENT OF THE COURT
31 March 1994 .
                                                                                ( Sixth Chamber)
                                                                                of 19 October 1995
(') OJ No C 161 , 11 . 6 . 1994 .                                       in Case C-137/94 ( reference for a preliminary ruling from
                                                                        the Divisional Court of the Queen's Bench Division of the
                                                                        High Court of Justice of England and Wales ): The Queen v.
                                                                        Secretary of State for Health, ex-parte Cyril
                                                                                Richardson (')
                                                                        (Equal treatment for men and women — Exemption from
                                                                        prescription charges — Scope of Directive 79/7/EEC —
                                                                        Link with pensionable age — Temporal effects of
             JUDGMENT OF THE COURT                                                                   judgment)
                       ( Fourth Chamber )                                                         ( 95/C 315/ 15 )
                    of 19 October 1995
in Case C-128/94 ( reference for a preliminary ruling from
                                                                                (Language of the case: English)
the Bundesverwaltungsgericht ) Hans Honig v. Stadt
                            Stockach ( ! )
(Directive 88/166/EEC — Minimum standards for the
      protection of laying hens kept in battery cages)                  In Case C-137/94 : reference to the Court under Article 177
                                                                        of the EC Treaty from the Divisional Court of the Queen 's
                          ( 95/C 315/14 )
                                                                        Bench Division of the High Court of Justice of England and
                                                                        Wales for a preliminary ruling in the proceedings pending
                                                                        before that court between the Queen and the Secretary of
              (Language of the case: German)                            State for Health, ex-parte Cyril Richardson — on the
                                                                        interpretation of Council Directive 79/7/EEC of
                                                                        19 December 1978 on the progressive implementation of
(Provisional translation; the definitive translation will be            the principle of equal treatment for men and women in
        published in the European Court Reports)                        matters of social security ( OJ 1979 L 6 , p. 24 ) — the Court
                                                                        ( Sixth Chamber ), composed of: C. N. Kakouris, President of
                                                                        the Chamber, F. A. Schockweiler ( Rapporteur ), P. J. G.
In Case C-128/94 : reference to the Court under Article 177
                                                                        Kapteyn, J. L. Murray and H. Ragnemalm, Judges; M. B.
of the EC Treaty by the Bundesverwaltungsgericht for a                  Elmer , Advocate-General ; L. Hewlett, Administrator, for
preliminary ruling in the proceedings pending before that               the Registrar, gave a' judgment on 19 October 1995 , in
court between Hans Honig and Stadt Stockach — on the                    which it ruled :
interpretation of Article 3 ( 1 ) ( a ) of the Annex to Council
Directive 88/ 166/EEC of 7 March 1988 complying with the
judgment of the Court of Justice in Case 131 /86 ( annulment
of Council Directive 86/ 113/EEC of 25 March 1986 laying                 1 . Article 3 (1 ) of Council Directive 79/7/EEC of
down minimum standards for the protection of laying hens                     19 December 1978 on the progressive implementation
kept in battery cages ) ( OJ 1988 L 74, p. 83 ) — the Court                  of the principle of equal treatment for men and women
( Fourth Chamber ), composed of: C. N. Kakouris, President                   in matters of social security is to be interpreted as
of the Chamber, P. J. G. Kapteyn ( Rapporteur ), and J. L.                   meaning that a system such as that established by
Murray, Judges; Advocate-General : P. Leger, Registrar:                      Regulation 6 (1 ) of the National Health Service
H. A. Riihl, Principal Administrator, gave a judgment on                     (Charges for Drugs and Appliances) Regulations 1989,
 19 October 1995 , the operative part of which is as                         exempting various categories of persons, in particular
follows :                                                                    certain old people, from prescription charges falls
                                                                             within the scope of the Directive.
Article 3 (1 ) (a) of the Annex to Council Directive
88/1 66/EEC of 7 March 1 988 complying with the judgment
of the Court of Justice in Case 131 /86 (annulment of                   2 . Article 7 (1 ) (a) of Directive 79/7/EEC does not allow a
 Council Directive 86/113/EEC of 25 March 1986 laying                        Member State which, pursuant to that provision, has set
down minimum standards for the protection of laying hens                     the pensionble age for women at 60 years and for men at
kept in battery cages) is to be interpreted as permitting                    65 years also to provide that women are be exempt from
Member States to lay down stricter national rules regarding                  prescription charges at the age of 60 and men only at the
                                                                             age of 65.
cage area for laying hens kept in battery cages.
    OJ No C 174, 25 . 6. 1                                               ^ There is no reason to limit the temporal effect of this
                                                                             judgment, so that the direct effect of Article 4 (1 ) of
                                                                             Directive 79/7/EEC may also be relied on to support
                                                                             claims for damages in respect ofperiods prior to the date
 ---pagebreak--- 25 . 11 . 95           EN                   Official Journal of the European Communities                                     No C 315/9
     of the judgment by persons who have not brought legal             Action brought on 29 September 1995 by the Commission
     proceedings or made an equivalent claim prior to that             of the European Communities against the Council of the
     date.                                                                                European Union
                                                                                ( Case C-309/95 )
(') OJ No C 202 , 23 . 7. 1994 .                                                                ( 95/C 315/ 17 )
                                                                       An action against the Council of the European Union was
                                                                       brought before the Court of Justice of the European
                                                                       Communities on 29 September 1 995 by the Commission of
                                                                       the European Communities, represented by Gerard Rozet
                                                                       and Jean-Paul Keppenne, acting as Agents, with an address
                                                                       for service in Luxembourg at the office of Carlos Gomez de
                  ORDER OF THE COURT
                                                                       la Cruz, Wagner Centre, Kirchberg.
                       ( Second Chamber)
                                                                       The applicant claims that the Court should :
                      of 17 October 1995                               — annul the Council 's decision of 22 June 1995 on the
in Case C-62/94 P: Mariette Turner v. Commission of the                    granting of exceptional aid to producers of table wine in
                  European Communities ( 1 )                               France ,
(Official — Compulsory reassignment — Non-material
damage — Claim for compensation — Appeal manifestly                    — order the Council to pay the coses .
                 inadmissible and unfounded)
                           ( 95/C 315/ 16 )                            Pleas in law and main arguments adduced in support:
                                                                       — Misapplication of the third subparagraph of Article
                (Language of the case: French)                             93 ( 2 ) of the EC Treaty; abuse of process; lack of
                                                                           competence .
(Provisional translation; the definitive translation will be               The Council is not empowered to take decisions — on
          published in the European Court Reports)                         the basis of the third subparagraph of Article 93 ( 2 )
                                                                           which was extended to certain agriculturl products by a
                                                                           Regulation on the common organization of the relevant
In Case C-62/94 P : Mariette Turner, a former official of the              markets — derogating from provisions which are of
Commission of the European Communities, residing in                        central importance to the machinery for the common
Brussels , represented by Georges Vandersanden, of the                     organization of the market ( COM ), where the effect of
Brussels Bar, with an address for service in Luxembourg at                 those decisions is to impair the proper operation of the
the office of Fiduciaire Myson, 1 Rue Glesener — appeal                    principal mechanisms of the COM . State aid which
against the judgment of the Court of First Instance of the                 causes the purchase price of table wines delivered for
European Communities ( Fifth Chamber ) of 16 December                      preventive distillation to rise to the level of market prices
 1993 in Case T-80/92 Turner v. Commission ( 1993 ) ECR                    not only distorts competition between producers within
11-1465 , seeking to have that judgment set aside, the other               the meaning of Article 92 ( 1 ), but it lends greater support
party to the proceedings being Commission of the European                  to prices than that expressly envisaged by the COM and
Communities ( Agents: Gianluigi Valsesia and Denis                         counters the dissuasive effect expressly mentioned in the
Waelbroeck ) — the Court, composed of: G. Hirsch                           preamble to the basic Regulation, which is necessary to
 ( Rapporteur ), President of the Chamber, G. F. Mancini and               enable production to be controlled, and at the same time
F. A. Schockweiler, Judges; G. Cosmas, Advocate-General;                   makes the Commission 's management task impossible
R. Grass , Registrar, made an order on 17 October 1995 , the               to carry out .
 operative part of which is as follows:
                                                                           If the Council wished to change the common
                                                                           organization of the market in wine in order to obtain the
 1 . The appeal is dismissed.                                              result sought, it should have followed the procedural
                                                                           rules laid down by Article 43 ( 2 ) and ( 3 ) of the EC Treaty
                                                                           which ensure compliance with the institutional balance
 2 . Mrs Turner is ordered to pay the costs of these                       established by the Treaty . Consequently, the contested
     proceedings.                                                          decision is vitiated by lack of competence .
 (') OJ No C 103 , 11 . 4 . 1994 .                                          ( By way of subsidiary pleas )
                                                                        — Absence of 'exceptional circumstances' within the
                                                                            meaning of the third subparagraph of Article 93 ( 2 ) of


title: Case T-483/12: Judgment of the General Court of 15 September 2015 — Nestlé Unternehmungen Deutschland v OHIM — Lotte (Representation of a koala bear) (Community trade mark — Opposition proceedings — Application for the Community figurative mark representing koala bears — Earlier national three-dimensional mark KOALA-BÄREN and earlier national figurative mark KOALA — Genuine use of the mark — Article 42(2) and (3) of Regulation (EC) No 207/2009)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/27

         Judgment of the General Court of 15 September 2015 — Nestlé Unternehmungen Deutschland v OHIM — Lotte (Representation of a koala bear)
   (Case T-483/12) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark representing koala bears - Earlier national three-dimensional mark KOALA-BÄREN and earlier national figurative mark KOALA - Genuine use of the mark - Article 42(2) and (3) of Regulation (EC) No 207/2009))
   (2015/C 363/35)
   Language of the case: German

      Parties

      Applicant: Nestlé Unternehmungen Deutschland GmbH (Frankfurt am Main, Germany) (represented by: A. Jaeger-Lenz and P. Blumenthal, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka and D. Botis, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Lotte Co. Ltd (Tokyo, Japan) (represented by: M. Knitter and H. Bickel, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 3 September 2012 (Case R 2103/2010-4) relating to opposition proceedings between Nestlé Schöller GmbH & Co. KG and Lotte Co. Ltd

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 September 2012 (Case R 2103/2010-4) relating to opposition proceedings between Nestlé Schöller GmbH & Co. KG and Lotte Co. Ltd;

               2.

               Orders OHIM to bear its own costs and to pay those incurred by Nestlé Unternehmungen Deutschland GmbH;

               3.

               Orders Lotte Co. Ltd to bear its own costs.

      (1)  OJ C 26, 26.1.2013.


title: Case C-282/06: Reference for a preliminary ruling from the Prague Regional Court lodged on 28 June 2006 — Ochranný Svaz Autorský pro Práva k Dilům Hudebním (OSA) v Miloslav Lev

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/22

         Reference for a preliminary ruling from the Prague Regional Court lodged on 28 June 2006 — Ochranný Svaz Autorský pro Práva k Dilům Hudebním (OSA) v Miloslav Lev
   (Case C-282/06)
   (2006/C 212/37)
   Language of the case: Czech
   Referring court
   Prague Regional Court (Krajský Soud v Praze)
   Parties to the main proceedings

      Applicant(s): Ochranný Svaz Autorský pro Práva k Dilům Hudebním (OSA)

      Defendant(s): Miloslav Lev
   Question(s) referred

               1.

               In accordance with European Union law — Directive EC 2001/29 — does an author have a right to remuneration in the case of the playing of a work on radio or television by an operator of an establishment used in connection with accommodation, even where the television or radio receiver is situated in a private part of the premises used for accommodation (in a room)?

               2.

               Does §23 of the Copyright Law No 121/2000 Coll., as amended by Law No 81/2005 Coll., conflict with Community law?


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 17 February 1998 in Case T-107/96: Pantochim SA v. Commission of the European Communities (State aid - Action for failure to act - No need to adjudicate - Action for damages - Claim for an order requiring a Member State to modify the conditions for the grant of aid already accorded - Factual circumstances - Commission's lack of competence)

text:
C 113/12               EN                 Official Journal of the European Communities                                 11.4.98
  JUDGMENT OF THE COURT OF FIRST INSTANCE                              JUDGMENT OF THE COURT OF FIRST INSTANCE
                      of 17 February 1998                                                of 19 February 1998
in Case T-107/96: Pantochim SA v. Commission of the                  in Joined Cases T-369/94 and T-85/95: DIR International
                   European Communities (1)                          Film Srl and Others v. Commission of the European
                                                                                Communities (1)
(State aid Ð Action for failure to act Ð No need to
adjudicate Ð Action for damages Ð Claim for an order                 (Action for annulment Ð Decision of the European Film
requiring a Member State to modify the conditions for the            Distribution Office (EFDO) Ð Instructions given by the
grant of aid already accorded Ð Factual circumstances Ð              Commission Ð Decisions imputable to the Commission Ð
              Commission's lack of competence)                       Action programme to promote the development of the
                                                                     European audiovisual industry (MEDIA) Ð Financing of
                         (98/C 113/29)
                                                                     film distribution Ð Criteria for assessment Ð Statement
                                                                                of reasons)
                                                                                (98/C 113/30)
                (Language of the case: French)
In Case T-107/96: Pantochim SA, established at Feluy                                (Language of the case: English)
(Belgium), represented by Jacques Bourgeois, of the
Brussels Bar, with an address for service in Luxembourg at
the Chambers of Marc Loesch, 11 rue Goethe, against
Commission of the European Communities (Agents:
GeÂrard Rozet and HerveÂ Lehman), supported by French                In Joined Cases T-369/94 and T-85/95: DIR International
Republic (Agents: initially Catherine de Salins and                  Film Srl, established in Rome, Nostradamus Enterprises
FreÂdeÂric Pascal, subsequently Kareen Rispal-Bellanger and          Ltd, established in London, Union PN Srl, established in
FreÂdeÂric Pascal) Ð application for (i) a declaration that          Rome, United International Pictures BV, established in
the Commission unlawfully failed to act in not deciding,             Amsterdam, United International Pictures AB, established
pursuant to Article 93(2) of the Treaty, that France should          in Stockholm, United International Pictures APS,
modify the conditions for the grant of aid which it had              established in Copenhagen, United International Pictures
accorded for biofuels and for (ii) an award of                       A/S, established in Oslo, United International Pictures
compensation for the damage allegedly caused to the                  EPE, established in Athens, United International Pictures
applicant by that failure to act Ð the Court of First                OY, established in Helsinki, and United International
Instance (Third Chamber), composed of: B. Vesterdorf,                Pictures y Cía SRC, established in Madrid, represented by
President, C. P. BrieÈt, P. Lindh, A. Potocki, and J. D.             Michel Waelbroeck, of the Brussels Bar, with an address
Cooke, Judges; J. Palacio GonzaÂlez, Administrator, for the          for service in Luxembourg at the Chambers of Ernest
Registrar, has given a judgment on 17 February 1998, in              Arendt, 8Ð10 rue Mathias Hardt, against Commission of
which it:                                                            the European Communities (Agents: Berend Jan Drijber
                                                                     and Peter Oliver) Ð applications for the annulment of,
                                                                     first, the letters from the European Film Distribution
                                                                     Office (EFDO) to the applicants of 12 September 1994
1. declares that there is no need to adjudicate on the               adjourning the procedure in relation to applications for
     application for a declaration of failure to act,                loans under the action programme to promote the
                                                                     development of the European audiovisual industry
                                                                     (MEDIA) for the distribution of two films and/or of the
                                                                     measure whereby the Commission instructed EFDO to
2. dismisses the action for damages as unfounded,                    take those decisions; and, secondly, the measure of
                                                                     5 December 1994 whereby EFDO rejected the applications
                                                                     for loans and/or the measure whereby the Commission
                                                                     instructed EFDO to adopt that measure Ð the Court of
3. orders the applicant to pay the costs, including those            First Instance (First Chamber), composed of: A. Saggio,
     relating to the interim proceedings,                            President, V. Tiili and R. M. Moura Ramos, Judges; J.
                                                                     Palacio GonzaÂlez, Administrator, for the Registrar, has
                                                                     given a judgment on 19 February 1998, in which it:
4. orders the Government of the French Republic to bear
     its own costs.
                                                                     1. rules that there is no need to adjudicate on the
                                                                          application in Case T-369/94,
(1) OJ C 269, 14.9.1996.
                                                                     2. dismisses the application in Case T-85/95,


title: Case C-391/09: Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Vilniaus miesto 1 apylinkės teismas (Republic of Lithuania)) — Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija, Lietuvos Respublikos teisingumo ministerija, Valstybinė lietuvių kalbos komisija, Vilniaus miesto savivaldybės administracijos Teisės departamento Civilinės metrikacijos skyrius (Citizenship of the Union — Freedom to move and reside in the Member States — Principle of non-discrimination on grounds of nationality — Articles 18 TFEU and 21 TFEU — Principle of equal treatment of persons irrespective of racial or ethnic origin — Directive 2000/43/EC — National rules requiring that the surnames and forenames of natural persons must be entered on certificates of civil status in a form which complies with the rules governing the spelling of the official national language)

text:
               2.7.2011

               EN

               Official Journal of the European Union

               C 194/4

         Judgment of the Court (Second Chamber) of 12 May 2011 (reference for a preliminary ruling from the Vilniaus miesto 1 apylinkės teismas (Republic of Lithuania)) — Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija, Lietuvos Respublikos teisingumo ministerija, Valstybinė lietuvių kalbos komisija, Vilniaus miesto savivaldybės administracijos Teisės departamento Civilinės metrikacijos skyrius
   (Case C-391/09) (1)

   (Citizenship of the Union - Freedom to move and reside in the Member States - Principle of non-discrimination on grounds of nationality - Articles 18 TFEU and 21 TFEU - Principle of equal treatment of persons irrespective of racial or ethnic origin - Directive 2000/43/EC - National rules requiring that the surnames and forenames of natural persons must be entered on certificates of civil status in a form which complies with the rules governing the spelling of the official national language)
   2011/C 194/04
   Language of the case: Lithuanian

      Referring court

   Vilniaus miesto 1 apylinkės teismas

      Parties to the main proceedings

      Applicants: Malgožata Runevič-Vardyn, Łukasz Paweł Wardyn

      Defendants: Vilniaus miesto savivaldybės administracija, Lietuvos Respublikos teisingumo ministerija, Valstybinė lietuvių kalbos komisija, Vilniaus miesto savivaldybės administracijos Teisės departamento Civilinės metrikacijos skyrius

      Re:

   Reference for a preliminary ruling — Interpretation of the first paragraph of Article 12 EC, of Article 18(1) EC, and of Article 2(2)(b) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) — National rules requiring that the surnames and forenames of persons of different nationality or citizenship must be entered on certificates of civil status issued by the State in question using the characters of the official language of that State

      Operative part of the judgment

               1.

               National rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language relate to a situation which does not come within the scope of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;

               2.

               Article 21 TFEU must be interpreted as:

                           —

                           not precluding the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend, on the birth certificate and marriage certificate of one of its nationals, the surname and forename of that person in accordance with the spelling rules of another Member State;

                           —

                           not precluding the competent authorities of a Member State from refusing, in circumstances such as those at issue in the main proceedings and pursuant to those same rules, to amend the joint surname of a married couple who are citizens of the Union, as it appears on the certificates of civil status issued by the Member State of origin of one of those citizens, in a form which complies with the spelling rules of that latter State, on condition that that refusal does not give rise, for those Union citizens, to serious inconvenience at administrative, professional and private levels, this being a matter which it is for the national court to decide. If that proves to be the case, it is also for that court to determine whether the refusal to make the amendment is necessary for the protection of the interests which the national rules are designed to secure and is proportionate to the legitimate aim pursued;

                           —

                           not precluding the competent authorities of a Member State from refusing, in circumstances such as those at issue in the main proceedings and pursuant to those same rules, to amend the marriage certificate of a citizen of the Union who is a national of another Member State in such a way that the forenames of that citizen are entered on that certificate with diacritical marks as they were entered on the certificates of civil status issued by his Member State of origin and in a form which complies with the rules governing the spelling of the official national language of that latter State.

      (1)  OJ C 312, 19.12.2009.


title: Case T-292/04: Action brought on 19 July 2004 by Caremar SpA against the Commission of the European Communities

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/26

         Action brought on 19 July 2004 by Caremar SpA against the Commission of the European Communities
   (Case T-292/04)
   (2004/C 251/48)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 July 2004 by Caremar SpA and others, represented by Gian Michele Roberti, Alessandra Franchi and Guido Bellitti, lawyers.
   The applicants claim that the Court should:

               —

               annul that part of the challenged decision in which the subsidies for public service obligations paid to Caremar, Toremar, Siremar and Saremar are regarded as State aid;

               —

               in the alternative, annul that part of the challenged decision in which the subsidies for public service obligations paid to Caremar, Toremar, Siremar and Saremar are classified as new aid, and not as existing aid;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   The pleas in law and main arguments are similar to those relied on in Case T-265/04 Adriatica di Navigazione and Others v Commission (1).

      (1)  Not yet published in the Official Journal.


title: Case C-375/10: Action brought on 27 July 2010 — European Commission v Kingdom of Spain

text:
               9.10.2010

               EN

               Official Journal of the European Union

               C 274/11

         Action brought on 27 July 2010 — European Commission v Kingdom of Spain
   (Case C-375/10)
   ()
   2010/C 274/16
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: G. Braun and E. Adsera Ribera, acting as Agents)

      Defendant: Kingdom of Spain

      Form of order sought

               —

               declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2007/36/CE (1) of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies or, in any event, by failing to communicate such measures to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 15 of the Directive.

               —

               order the Kingdom of Spain to pay the costs.

      Pleas in law and main arguments

   The period prescribed for transposition of Directive 2007/36/EC into national law expired on 3 August 2009.

      (1)  OJ L 184, p. 17


title: Case T-792/14 P: Appeal brought on 5 December 2014 by Eric Vanhalewyn against the judgment of the Civil Service Tribunal of 25 September 2014 in Case F-101/13, Osorio and Others v EEAS

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/57

         Appeal brought on 5 December 2014 by Eric Vanhalewyn against the judgment of the Civil Service Tribunal of 25 September 2014 in Case F-101/13, Osorio and Others v EEAS
   (Case T-792/14 P)
   (2015/C 046/73)
   Language of the case: French

      Parties

      Appellant: Eric Vanhalewyn (Grand Baie, Mauritius) (represented by S. Orlandi and T. Martin, lawyers)

      Other party to the proceedings: European External Action Service (EEAS)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               set aside the judgment of the Civil Service Tribunal (Third Chamber) of 25 September 2014 in Case F-101/13, Osorio and Others v EEAS;

               —

               give judgment itself:

                           —

                           annulling the contested decision;

                           —

                           ordering the EEAS to pay the costs of both proceedings.

      Pleas in law and main arguments

   It results from the appeal that the appellant applies to have set aside the judgment of the Civil Service Tribunal (Third Chamber) of 25 September 2014 in Case F-101/13, Osorio and Others v EEAS.

   In support of the appeal, the appellant relies on three pleas in law.

               1.

               First plea in law, alleging an error of law, since the Civil Service Tribunal (‘the CST’) held, first, that the failure, by the EEAS, to adopt the general provisions (‘GP’) of Article 10 of Annex X to the Staff Regulations of Officials of the European Union (‘the regulations’) was justified by the fact that the EEAS was still, as regards the application of that provision, in an adjustment period and, secondly, that the failure to fulfil the obligation to adopt the GP can be successfully invoked by the appellant only where he shows that the EEAS applied that provision arbitrarily.

               2.

               Second plea in law, alleging that the CST erred in law by holding that the EEAS had correctly reasoned the contested decision although the reasons which led the EEAS to diverge from the negative opinion of the Staff Committee were not set out.

               3.

               Third plea in law, alleging that the CST erred in law since it held that the EEAS could, in the absence of GP, take into account other parameters than those provided for by the regulations in order to assess the severity of the difficulty of the conditions of life in the places of employment of officials outside the European Union.


title: Case T-66/11: Judgment of the General Court of 31 January 2013 — Present-Service Ullrich v OHIM — Punt-Nou (babilu) (Community trade mark — Opposition proceedings — Application for Community word mark babilu — Earlier Community word mark BABIDU — Relative ground for refusal — Likelihood of confusion — Similarity of the services — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               16.3.2013

               EN

               Official Journal of the European Union

               C 79/13

         Judgment of the General Court of 31 January 2013 — Present-Service Ullrich v OHIM — Punt-Nou (babilu)
   (Case T-66/11) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark babilu - Earlier Community word mark BABIDU - Relative ground for refusal - Likelihood of confusion - Similarity of the services - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 79/22
   Language of the case: English

      Parties

      Applicant: Present-Service Ullrich GmbH & Co. KG (Erlangen, Germany) (represented by: A. Graf von Kalckreuth and I. Stein, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Punt-Nou, SL (Valencia, Spain) (represented by: I. Sempere Massa, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 19 November 2010 (Case R 773/2010-2), concerning opposition proceedings between Punt-Nou, SL and Present Service Ullrich GmbH & Co. KG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Present-Service Ullrich GmbH & Co. KG to pay the costs.

      (1)  OJ C 89, 19.3.2011.


title: Case T-463/12: Judgment of the General Court of 6 November 2014  — Popp and Zech v OHIM — Müller-Boré & Partner (MB) (Community trade mark — Opposition proceedings — Application for the Community word mark MB — Earlier Community figurative mark MB&P — Genuine use of the earlier mark — Article 42(2) and Article 15(1) of Regulation (EC) No 207/2009 — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 207/2009)

text:
               15.12.2014

               EN

               Official Journal of the European Union

               C 448/20

         Judgment of the General Court of 6 November 2014 — Popp and Zech v OHIM — Müller-Boré & Partner (MB)
   (Case T-463/12) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community word mark MB - Earlier Community figurative mark MB&P - Genuine use of the earlier mark - Article 42(2) and Article 15(1) of Regulation (EC) No 207/2009 - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation No 207/2009))
   (2014/C 448/25)
   Language of the case: German

      Parties

      Applicants: Eugen Popp (Munich, Germany) and Stefan M. Zech (Munich) (represented by: C. Rohnke and M. Jacob initially, then M. Jacob and F. Thiering)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Müller-Boré & Partner Patentanwälte (Munich) (represented by: T. Koerl and E. Celenk initially, then K. Kern and B. Maneth, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 19 July 2012 (Case R 506/2011-1), relating to opposition proceedings between Müller-Boré & Partner Patentanwälte, on the one hand, and Eugen Popp and Stefan M. Zech, on the other hand.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Eugen Popp and Stefan M. Zech to pay the costs.

      (1)  OJ C 379, 8.12.2012.


title: Case C-516/09: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 11 December 2009 — Tanja Borger v Tiroler Gebietskrankenkasse

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/25

         Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 11 December 2009 — Tanja Borger v Tiroler Gebietskrankenkasse
   (Case C-516/09)
   2010/C 63/41
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Claimant: Tanja Borger

      Defendant: Tiroler Gebietskrankenkasse

      Questions referred

               1.

               Is Article 1(a) of 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 (1) to be interpreted as meaning that it also covers — for a period of six months — a person who, following the end of the two-year statutory suspension of her employment relationship following the birth of a child, agrees a further six-month period of unpaid leave with her employer in order to draw childcare allowance or a corresponding compensatory benefit for the maximum statutory period, and then terminates the employment relationship?

               2.

               If Question 1 is answered in the negative:
               Is Article 1(a) of Regulation (EEC) No 1408/71 to be interpreted as meaning that it also covers — for a period of six months — a person who, following the end of the two-year statutory suspension of her employment relationship, agrees a further six-month period of unpaid leave with her employer, if she draws childcare allowance or a corresponding compensatory benefit during that period?

      (1)  OJ, English Special Edition 1971 (II), p. 416.


title: Case T-70/14: Judgment of the General Court of 14 January 2015  — Melt Water v OHIM (Shape of a transparent cylindrical bottle) (Community trade mark — Application for a three-dimensional Community trade mark — Shape of a transparent cylindrical bottle — Absolute grounds for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/34

         Judgment of the General Court of 14 January 2015 — Melt Water v OHIM (Shape of a transparent cylindrical bottle)
   (Case T-70/14) (1)

   ((Community trade mark - Application for a three-dimensional Community trade mark - Shape of a transparent cylindrical bottle - Absolute grounds for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 065/47)
   Language of the case: Lithuanian

      Parties

      Applicant: Research and Production Company ‘Melt Water’ UAB (Klaipėda, Lithuania) (represented by: V. Viešūnaitė, lawyer)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 26 November 2013 (Case R 481/2013-5), concerning an application for registration of a three-dimensional sign comprising the shape of a transparent cylindrical bottle as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Research and Production Company ‘Melt Water’ UAB to pay the costs.

      (1)  OJ C 112, 14.4.2014.


title: Case F-45/09: Judgment of the Civil Service Tribunal (Second Chamber) of 15 June 2010 — Lebedef-Caponi v Commission (Staff case — Officials — Appraisal — Career development review — 2007 appraisal procedure — Action for annulment — Manifest error of assessment — Staff representatives — Opinion of ad hoc group)

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/53

         Judgment of the Civil Service Tribunal (Second Chamber) of 15 June 2010 — Lebedef-Caponi v Commission
   (Case F-45/09) (1)

   (Staff case - Officials - Appraisal - Career development review - 2007 appraisal procedure - Action for annulment - Manifest error of assessment - Staff representatives - Opinion of ad hoc group)
   2010/C 209/82
   Language of the case: French

      Parties

      Applicant: Lebedef-Caponi (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

      Defendant: European Commission (represented by: C. Berardis-Kayser and G. Berscheid, agents)

      Re:

   Annulment of the applicant’s career development report for 2007.

      Operative part of the judgment

   The Tribunal:

               1.

               dismisses the action;

               2.

               orders the applicant to pay the costs.

      (1)  OJ C 153 of 04.07.2009, p. 51.


title: Case C-297/11: Judgment of the Court (Sixth Chamber) of 19 April 2012 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — European Union water policy — River basin management plan — Publication — Public information and consultation — Failure to notify the Commission)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/7

         Judgment of the Court (Sixth Chamber) of 19 April 2012 — European Commission v Hellenic Republic
   (Case C-297/11) (1)

   (Failure of a Member State to fulfil obligations - Directive 2000/60/EC - European Union water policy - River basin management plan - Publication - Public information and consultation - Failure to notify the Commission)
   2012/C 165/11
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: A. Marghelis and I. Hadjiyiannis, acting as Agents)

      Defendant: Hellenic Republic (represented by: G. Karipsiadis, acting as Agent)

      Re:

   Failure of Member State to fulfil its obligations — Infringement of Articles 13(1), (2), (3) and (6), 14(1)(c) and 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1) — River basin management plans — Publication — Information and consultation of public — Failure to send copies of management plans to the Commission

      Operative part of the judgment

   The Court:

               1.

               Declares that, by having failed to draw up, by 22 December 2009, the river basin management plans for both river basins located entirely within its own territory and international river basins, and by having failed to send copies of those plans, by 22 March 2010, to the European Commission, the Hellenic Republic has failed to fulfil its obligations under Articles 13(1) to (3) and (6) and 15(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy and, in addition, by having failed to institute, by 22 December 2008, the public information and consultation procedure regarding the draft river basin management plans, the Hellenic Republic has failed to fulfil its obligations under Article 14(1)(c) of that directive;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 238, 13.8.2011.


title: Case T-99/05: Judgment of the Court of First Instance of 10 May 2007 — Spain v Commission (Fisheries — Regulation (EC) No 494/2002 — Conservation of the resources of the sea — Legal basis — Principle of non-discrimination — Obligation to state reasons)

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/21

         Judgment of the Court of First Instance of 10 May 2007 — Spain v Commission
   (Case T-99/05) (1)

   (Fisheries - Regulation (EC) No 494/2002 - Conservation of the resources of the sea - Legal basis - Principle of non-discrimination - Obligation to state reasons)
   (2007/C 140/35)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

      Defendant: Commission of the European Communities (represented by: T. van Rijn, F. Jimeno Fernández and S. Pardo Quintillán, Agents)
   Re:
   Action for annulment of Commission Regulation (EC) No 494/2002 of 19 March 2002 establishing additional technical measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e (OJ 2002 L 77, p. 8)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Kingdom of Spain to bear its own costs and to pay those of the Commission.

      (1)  OJ C 144, 15.6.2002 (formerly Case C-165/02).


title: Case F-106/07: Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Giaprakis v Committee of the Regions (Staff case — Officials — Remuneration — Transfer of part of the emoluments outside the country of employment — Article 17(2)(b) of Annex VII to the old Staff Regulations — Building savings account — Recovery of amounts wrongly paid — Conditions — Irregularity of the transfers — Obvious nature of the irregularity)

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/38

         Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Giaprakis v Committee of the Regions
   (Case F-106/07) (1)

   (Staff case - Officials - Remuneration - Transfer of part of the emoluments outside the country of employment - Article 17(2)(b) of Annex VII to the old Staff Regulations - Building savings account - Recovery of amounts wrongly paid - Conditions - Irregularity of the transfers - Obvious nature of the irregularity)
   2009/C 102/56
   Language of the case: French

      Parties

      Applicant: Stavros Giaprakis (Brussels, Belgium) (represented by: M.-A. Lucas, lawyer)

      Defendant: Committee of the Regions of the European Union (represented by: P. Cervilla, agent, and B. Wägenbaur, lawyer)

      Re:

   Annulment of the decision of 21 November 2006 to recover the amounts paid to the applicant in respect of the correction coefficient on part of his emoluments transferred to France from April 2004 to June 2005 because of the alleged failure to comply with the conditions required for that transfer — Application for damages

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the Committee of the Regions of the European Union of 21 November 2006 ordering the recovery of sums resulting from the application of the correction coefficient to part of the emoluments of Mr Giaprakis transferred to France from April 2004 to June 2005, amounting to EUR 1 246,06;

               2.

               Orders the Committee of the Regions of the European Union to reimburse Mr Giaprakis EUR 1 246,06, together with default interest from the date of the recovery until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders the Committee of the Regions of the European Union to pay all the costs.

      (1)  OJ C 297, 8.12.2007, p. 49.


title: Judgment of the Court (First Chamber) of 21 October 2004 in Case C-445/03: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a State to fulfil obligations — Freedom to provide services — Requirements imposed by the host Member State on undertakings which deploy within its territory salaried workers who are nationals of non-member countries)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/22

      JUDGMENT OF THE COURT

   (First Chamber)
   of 21 October 2004
   in Case C-445/03: Commission of the European Communities v Grand Duchy of Luxembourg (1)

   (Failure of a State to fulfil obligations - Freedom to provide services - Requirements imposed by the host Member State on undertakings which deploy within its territory salaried workers who are nationals of non-member countries)
   (2004/C 300/46)
   Language of the case: French
   In Case C-445/03: Commission of the European Communities (Agents: M. Patakia) v Grand Duchy of Luxembourg (Agents: S. Schreiner, assisted by A. Rukavina) — action under Article 226 EC for failure to fulfil obligations, brought on 21 October 2003 — the Court (First Chamber), composed of: P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), K. Schiemann, E. Juhász and M. Ilešič, Judges; Advocate General: D. Ruiz-Jarabo Colomer, Registrar: R. Grass, has given a judgment on 21 October 2004, in which it:

               1.

               Declares that, by imposing on service providers established in another Member State who wish to deploy in its territory workers who are nationals of non-member countries a requirement of individual work permits, the issuance of which is subject to considerations relating to the employment market, or a requirement of a collective work permit, which is granted only in exceptional cases and only when the workers concerned have, for at least six months prior to the deployment, been in a relationship with their undertaking of origin through a contract of employment of indefinite duration, and by requiring those service providers to provide a bank guarantee, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC;

               2.

               Orders the Grand Duchy of Luxembourg to pay the costs.

      (1)  OJ C 289 of 29.11.2003.


title: Case C-366/12: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 1 August 2012 — Finanzamt Dortmund-West v Klinikum Dortmund gGmbH

text:
               24.11.2012

               EN

               Official Journal of the European Union

               C 366/23

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 1 August 2012 — Finanzamt Dortmund-West v Klinikum Dortmund gGmbH
   (Case C-366/12)
   2012/C 366/40
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Defendant and appellant: Finanzamt Dortmund-West

      Claimant and respondent: Klinikum Dortmund gGmbH

      Question referred

               1.

               Must a closely related activity be a service in accordance with Article 6(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment Council Directive 77/388/EEC? (1)

               2.

               If question 1 is to be answered in the negative, is an activity closely related to hospital or medical care only if it was performed by the same taxable person as also provides the hospital or medical care?

               3.

               If question 2 is to be answered in the negative, is an activity closely related even if the care is exempt from tax not under Article 13A(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes but under subparagraph (c) of that provision?

      (1)  OJ L 145, p. 1.


title: Case T-405/04: Judgment of the Court of First Instance of 23 October 2007 — Borco-Marken-Import Mathiessen v OHIM (Caipi) (Community trade mark — Application for the Community word mark Caipi — Absolute ground for refusal — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/38

         Judgment of the Court of First Instance of 23 October 2007 — Borco-Marken-Import Mathiessen v OHIM (Caipi)
   (Case T-405/04) (1)

   (Community trade mark - Application for the Community word mark Caipi - Absolute ground for refusal - Descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)
   (2007/C 297/78)
   Language of the case: German
   Parties

      Applicant: Borco-Marken-Import Mathiessen GmbH & Co KG (Hamburg, Germany) (represented by: M. Wolter, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)
   Re:
   Action brought against the decision of the Second Board of Appeal of OHIM of 6 August 2004 (Case R 912/2002-2) concerning the application for registration as a Community trade mark of the word sign Caipi.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 314 of 18.12.2004.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/58

         Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-59/04)
   (2004/C 94/150)
   Language of the case: French
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.
   Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

               —

               reject the application for the registration of BUDWEISER for Classes 35, 38, 41 and 42 filed on 1 April 1996 on behalf of Anheuser-Busch;

               —

               order Anheuser-Busch to pay the costs.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               Anheuser-Busch, Incorporated

               Community trade mark sought:

               Word mark ‘BUDWEISER’ — Application No 927533 in respect of goods in Classes 35, 38, 41 and 42

               Proprietor of mark or sign cited in the opposition proceedings:

               Applicant

               Mark or sign cited in opposition:

               Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’

               Decision of the Opposition Division:

               Opposition rejected

               Decision of the Board of Appeal:

               Appeal dismissed

               Pleas in law:

               Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

      (1)   Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/47

         Action brought on 2 February 2004 by the Autonomous Region of the Azores against the Council of the European Union
   (Case T-37/04)
   (2004/C 94/131)
   Language of the case: English
   An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 2 February 2004 by the Autonomous Region of the Azores, (Portugal), represented by M. Renouf, S. Crosby and C. Bryant, Solicitors.
   The applicant claims that the Court should:

               —

               Annul Articles 3 and 11 and the Annex to Council Regulation 1954/2003 in so far as: a) They provide for the fishing effort under the Regulation to be determined by reference only to the target species and the ICES/CECAF area but not also by reference to the type of fishing gear used, whether fixed or towed; b) They exclude from the operation of Articles 3 and 11 demersal species covered by Regulation 2347/2002.

               —

               Annul Article 15 of Council Regulation 1954/2003 in so far as the repeal of Council Regulations 685/95 and 2027/95: a) Removes the power of the Community to determine fishing effort by reference not only to target species and ICES/CECAF area but also by reference to the type of fishing gear used (Articles 3(1), 6 and Annex 1 of Regulation 685/95 and Article 2 and Annex of Regulation 2027/95) and removes the determination of same which had been effected by Regulation 2027/95; b) Removes the power to determine a maximum annual fishing effort by area in respect of demersal species covered by Regulation 2347/2002 and removes the determination of same which had been effected by Regulation 2027/95; c) Removes the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species (Annex III, para. 3 of Regulation 685/95); d) Is capable of taking effect on 1 August 2004, whether or not a Regulation under Articles 11(2) or (3) of Regulation 1954/2003 has entered into force.

               —

               Annul Article 5(1) of Council Regulation 1954/2003 in so far as it does not maintain the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species.

               —

               Annul Article 13(b) of Council Regulation 1954/2003 insofar as it exempts Articles 19a(3), 19b, 19c, 18d and 19e(3) of Regulation (EEC) No. 2847/93 from application in the waters under the sovereignty or jurisdiction of Portugal around the Azores.

               —

               Order the Council to pay the costs incurred by the Applicant in the present proceedings.

         Pleas in law and main arguments:
   The Applicant claims the partial annulment of Council Regulation 1954/2003 (1) which replaces the fishing regime governing the Azorean fisheries. The applicant invokes a number of alleged procedural violations in the adoption of the regulation, which would justify its annulment as requested by the applicant. These procedural violations comprise failure to properly consult the European Parliament; failure to take into account evidence of an economic, technical, scientific and environmental nature; and failure to provide an adequate statement of reasons for the act adopted.
   The Applicant further invokes a number of alleged substantive law violations by the contested regulation, namely:

               —

               breach of the principle of relative stability and related provisions of the Common Fisheries Policy, in particular Article 33 EC and Regulation 2371/2002 (2) Official Journal L 358, 31/12/2002 P. 0059 - 0080

               —

               breach of Article 299 paragraph 2 EC

               —

               breach of Articles 6 and 174 EC, and of the environmental law principles that is to say, the precautionary principle, the principle of preventive action, the principle of rectification of damage at source and the principle that the polluter should pay.

               —

               breach of the fundamental objectives of the Treaty, of Article 158 EC and of the principle of proportionality

               —

               breach of mandatory public international law requirements and thus of Article 300(7) EC

               —

               breach of Regulation 1275/94 (3) Official Journal L 140, 03/06/1994 P. 0001-0002 adopted to facilitate the integration of Spain and Portugal into the general scheme of the Common Fisheries Policy.

      (1)  Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 Official Journal L 289 , 07/11/2003 P. 0001 - 0007

      (2)  Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy

      (3)  Council Regulation (EC) No 1275/94 of 30 May 1994 on adjustments to the arrangements in the fisheries chapters of the Act of Accession of Spain and Portugal


title: Case C-212/13: Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 19 April 2013 — František Ryneš v Úřad pro ochranu osobních údajů

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/11

         Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 19 April 2013 — František Ryneš v Úřad pro ochranu osobních údajů
   (Case C-212/13)
   2013/C 207/19
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Applicant: František Ryneš

      Defendant: Úřad pro ochranu osobních údajů

      Question referred

   Can the operation of a camera system installed on a family home for the purposes of the protection of the property, health and life of the owners of the home be classified as the processing of personal data ‘by a natural person in the course of a purely personal or household activity’ within the meaning of Article 3(2) of Directive 95/46/EC, (1) even though such a system monitors also a public space?

      (1)  OJ 1995 L 281, p. 31.


title: Case T-370/09: Action brought on 18 September 2009 — GDF Suez v Commission

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/54

         Action brought on 18 September 2009 — GDF Suez v Commission
   (Case T-370/09)
   2009/C 282/102
   Language of the case: French

      Parties

      Applicant: GDF Suez (Paris, France) (represented by: J.-P. Gunther and C. Breuvart, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul, entirely or in part, Article 1 of the Decision insofar as it makes GDF Suez liable for having infringed the provisions of Article 81(1) EC by participating in an agreement and in concerted practices in the natural gas sector from at least 1 January 1980 until 30 September 2005, with regard to the infringement in Germany, and from 10 August 2000 at least until 30 September 2005, with regard to the infringement in France and, as a consequence, in addition annul Article 3 of the Decision insofar as it requires GDF Suez to cease the infringements referred to in Article 1 or with an identical or similar object or effect;

               —

               in the alternative, annul or substantially reduce the amount of the fine imposed on GDF Suez under Article 2 of the Decision;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   By its present application, GDF Suez seeks, principally, the annulment, total or partial, of Decision C(2009) 5355 final adopted by the European Commission on 8 July 2009 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/39.401 — E.ON/GDF), concerning an agreement and concerted practices in the natural gas sector. In the alternative, the applicant seeks the annulment of or, failing that, a reduction in the fine imposed on it by that decision.
   In support of its principal application for annulment of the Decision, the applicant raises four pleas in law, alleging:

               —

               infringement of Article 81 EC, of the rules on collection of evidence and the duty to give reasons with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas before August 2000, because of:

                           —

                           the lack of anticompetitive subject-matter and effect of the 1975 side letters before August 2000;

                           —

                           the lack of effect on intra-Community trade before August 2000; and

                           —

                           the lack of any proof of the alleged infringement between January 1980 and February 1999;

               —

               infringement of Article 81 EC, the rules on collection of evidence and the duty to give reasons with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas after August 2000, because of:

                           —

                           the lack of a single and continuous infringement between 1 January 1980 and 30 September 2005 and, as a consequence, the time-barring of the 1975 side letters;

                           —

                           the lack of concurrence of wills between the parties seeking application of the 1975 side letters after August 2000;

                           —

                           a manifestly incorrect assessment of the meetings and exchanges between GDF Suez and E.ON/E.ON Ruhrgas; and

                           —

                           the failure to assess the autonomous conduct of GDF Suez in Germany and of E.ON/E.ON Ruhrgas in France;

               —

               a manifest lack of evidence with regard to the existence of an agreement and/or a concerted practice seeking to restrict the use in France by E.ON/E.ON Ruhrgas of gas transported by the MEGAL gas pipeline, because of:

                           —

                           the lack of any infringement on the French market caused by the letter from ‘Direktion G’;

                           —

                           a manifestly incorrect assessment of the meetings and exchanges between GDF Suez and E.ON/E.ON Ruhrgas regarding France;

                           —

                           the exception based on the legal monopoly of GDF Suez on importation and supply of gas in France before the liberalisation of the gas market in January 2003;

                           —

                           errors in fact and in law in the application of Article 81 EC with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas after August 2004.

         In support of its application, in the alternative, for annulment of the fine, the application puts forward a single plea alleging breach of the principles of equal treatment, of proportionality and of non-retroactivity.
   In support of its application, very much in the alternative, for a reduction in the fine, the applicant puts forward six pleas in law, alleging:

               —

               that the alleged infringement concerning the gas markets in France has not been proved sufficiently in law and that the contested decision is vitiated by a lack of reasoning on that point;

               —

               breach of the principles of equal treatment and proportionality in that an identical fine has been imposed on GDF Suez and on E.ON/E.ON Ruhrgas;

               —

               incorrect assessment of the duration of the infringement;

               —

               incorrect assessment of the seriousness of the infringement;

               —

               incorrect assessment of the need to apply a load of 15 % to GDF Suez; and

               —

               incorrect assessment of the attenuating circumstances.


title: Case T-165/04: Judgment of the Court of First Instance of 13 July 2006 — Vounakis v Commission (Officials — Career development review — 2001/2002 assessment exercise — Incompetence of the appeal assessor — Manifest error of assessment — Duty to state reasons)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/36

         Judgment of the Court of First Instance of 13 July 2006 — Vounakis v Commission
   (Case T-165/04) (1)

   (Officials - Career development review - 2001/2002 assessment exercise - Incompetence of the appeal assessor - Manifest error of assessment - Duty to state reasons)
   (2006/C 224/78)
   Language of the case: French
   Parties

      Applicant: Hippocrate Vounakis (Wezembeek-Oppem, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Commission of the European Communities (represented by: G. Berscheid and V. Joris, Agents)
   Re:
   Action for annulment of the decision of 23 May 2003 establishing the applicant's career development review for the period from 1 July 2001 to 31 December 2002.
   Operative part of the judgment
   The Court:

               1.

               Annuls the decision of 23 May 2003 establishing the applicant's career development review for the period from 1 July 2001 to 31 December 2002 in so far as it concerns the section ‘Conduct in the service’;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Commission to bear its own costs and one third of those incurred by the applicant;

               4.

               Orders the applicant to bear two thirds of his own costs.

      (1)  OJ C 179, 10.7.2004.


title: Judgment of the Court (Second Chamber) of  27 October 2005  in Joined Cases C-187/04 and C-188/04: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 93/37/EEC — Public works contracts — Public works concessions — Rules on advertising)

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/11

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 27 October 2005
   in Joined Cases C-187/04 and C-188/04: Commission of the European Communities v Italian Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 93/37/EEC - Public works contracts - Public works concessions - Rules on advertising)
   (2006/C 36/20)
   Language of the case: Italian
   In Joined Cases C-187/04 and C-188/04 Commission of the European Communities (Agent: K. Wiedner, Lawyer: G. Bambara) v Italian Republic (Agent: I.M. Braguglia, Lawyer: M. Fiorilli) — two actions under Article 226 EC for failure to fulfil obligations, brought on 22 April 2004 — the Court (Second Chamber), composed of C.W.A Timmermans, President of the Chamber, J. Makarczyk (Rapporteur), R. Silva de Lapuerta, P. Kūris and J. Klučka, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 27 October 2005, in which it:

               1.

               Declares that, since the public invitation ANAS S.p.A. awarded the contract for the construction and management of the Valtrompia and Pedemontana Veneta Ovest motorways to the Società per l'autostrada Brescia-Verona-Vicenza-Padova p.a. by direct concession without prior publication of a contract notice, where the requirements for such a concession were not met, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC of 14 June 1993 coordinating the procedures for the award of public works contracts and in particular Articles 3(1) and 11(3), (6) and (7) thereof;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 179 of 10.7.2004

      OJ C 168 of 26.6.2004.