title: Case C-207/02 P: Appeal brought on 4 June 2002 by Brugg Rohrsysteme GmbH against the judgment delivered on 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-15/99 between Brugg Rohrsysteme GmbH and the Commission of the European Communities

text:
24.8.2002               EN                     Official Journal of the European Communities                                        C 202/5
Infringement of the principles of legitimate expectations and             The appellant claims that the Court should:
of non-retroactivity: the Court of First Instance erred in law in
considering that the discretion of the Commission to set fines
and its right ‘to raise the general level of fines’ take precedence
                                                                          1.    At the same time as setting aside the judgment at first
over Article 7 of the European Convention of Human Rights
                                                                                instance of 20 March 2002, set aside Article 1 of the
and Fundamental Freedoms, as introduced in EC law by
                                                                                Commission Decisions of 21 October 1998 (Com(1998)
Article 49 of the Charter of Fundamental Rights of the
                                                                                3117 fin.) and 6 November 1998 (Com(1098) 3415 fin.
European Union. The Appellant was entitled to rely on the
                                                                                and Com(1998) 3117 fin. corrig.) (2) to the extent to
Commission’s practice on the setting of fines applicable at the
                                                                                which the appellant is therein accused of participating in
time when it approached the Commission. Moreover, a right
                                                                                an agreement and in the conduct of concerted practices
to increase the general level of fines within the prescribed
                                                                                against Powerpipe AB; annul Article 3 of those Com-
ceiling cannot be compared with the adoption in casu of a true
                                                                                mission decisions. In the alternative the appellant seeks a
quasi-legislation in the form of guidelines and notices which
                                                                                reduction, as the Court deems fit, of the fine imposed on
alter entirely the whole method of setting the fines.
                                                                                it in Article 3.
Insufficient regard to mitigating circumstances                           2.    Order the Commission to pay the appellant’s costs at first
                                                                                instance and on appeal.
Incorrect application of the Leniency Notice
(1) OJ C 86, 27.03.1999, p. 31.
(2) EEC Council: Regulation No 17: First Regulation implementing
    Articles 85 and 86 of the Treaty (OJ L 13, 21.02.1962, p. 204         Pleas and main arguments
    [SE SER1 (59-62) p. 87]).
                                                                          —     Infringements of the prohibition of retroactive effect, the
                                                                                principle of protection of legitimate expectations and the
                                                                                principle of sound administration in the setting of fines:
                                                                                the retroactive application of the ‘guidelines’ leads in the
                                                                                appellant’s case more or less to a trebling of the fine in
                                                                                consequence not of an individual assessment but of a
                                                                                regulation operating in the nature of a penalty.
Appeal brought on 4 June 2002 by Brugg Rohrsysteme                        —     Infringement of the principle of protection of legitimate
GmbH against the judgment delivered on 20 March 2002                            expectations as a result of the alteration of the method
by the Fourth Chamber of the Court of First Instance of                         for setting fines after cooperation with the appellant. An
the European Communities in Case T-15/99 between                                undertaking which cooperates has a legitimate expec-
Brugg Rohrsysteme GmbH and the Commission of the                                tation that the Commission will not subsequently alter
                     European Communities                                       the principles determining the calculation of fines in such
                                                                                a way that cooperation is in the end to no avail.
                         (Case C-207/02 P)
                                                                          —     Infringement of the rights of the defence as a result of
                          (2002/C 202/06)                                       application of the new guidelines on setting fines without
                                                                                affording the appellant the right to be heard.
                                                                          —     Infringement of the principle of equal treatment by failure
An appeal against the judgment delivered on 20 March 2002                       to reduce the starting amount for setting the appellant’s
by the Fourth Chamber of the Court of First Instance of the                     fine: the Court and the Commission are mistaken as to
European Communities in Case T-15/99 between Brugg                              the scope and significance of the 10 percent limit in
Rohrsysteme GmbH and the Commission of the European                             Article 15(2) of Regulation No 17. It is not only the final
Communities (1) was brought before the Court of Justice of the                  amount of the calculation which is decisive: rather in the
European Communities on 4 June 2002 by Brugg Rohrsysteme                        course of the calculation no amount may exceed the 10 %
GmbH, represented by Dr Thomas Jestaedt, Prof. Dr Hans-                         limit. On account of the ratio of 5 to 1 (which is not
Joachim Salger and Dr Martin Sura, of the law firm, Lovells, in                 disputed) between the third and fourth categories of the
Brussels, with an address for service in Luxembourg at the                      undertakings concerned the starting amount should also
Chambers of Philippe Dupont, of Arendt & Medernach.                             have been reduced for the appellant.
 ---pagebreak--- C 202/6                EN                    Official Journal of the European Communities                                       24.8.2002
—     Substantive errors in the application of Article 81(1) EC         Pleas and main arguments
      in relation to participation in the boycott of Powerpipe:
      since the appellant as a mere dealer was not able to
      contribute to a boycott its participation in a single             —     Infringement of substantive law
      meeting at which boycott measures by the others were
      discussed cannot be used as evidence of participation in                —     Infringement of the prohibition of retroactive effect
      such a boycott.                                                               and non-observance of the principle of protection
                                                                                of legitimate expectations
(1) Brugg Rohrsysteme GmbH v Commission [2002] ECR II-0000.
(2) OJ 1999, L 24, p. 1.                                                      —     By means of the ‘guidelines’ the Commission created
                                                                                a system of fines which is not within the limits of its
                                                                                authority under Article 15(2) of Regulation No 17
                                                                                and applied that new system to factual situations
                                                                                occurring before adoption of the ‘guidelines’. The
                                                                                applicant made the legitimate assumption that the
                                                                                practice in connection with the imposition of fines
                                                                                and the principles concerning assessment of cooper-
Appeal brought on 4 June 2002 by LR af 1998 (Germany)                               ation in administrative proceedings would not fun-
GmbH [formerly Lögstör Rör (Deutschland) GmbH]                                      damentally alter during the course of the adminis-
against the judgment of 20 March 2002 by the Fourth                                 trative proceedings concerned in this dispute and
Chamber of the Court of First Instance of the European                              that fundamental changes would at any rate not be
Communities in Case T-16/99 between Lögstör Rör                                     applied with retroactive effect.
(Deutschland) GmbH and the Commission of the Euro-
                       pean Communities
                                                                        —     Legally incorrect exercise of discretion in the application
                                                                              and interpretation of Article 15(2) of Regulation No 17:
                         (Case C-208/02 P)                                    First, adoption of the ‘guidelines’, together with the
                                                                              Commission’s new practice in setting fines, no longer
                          (2002/C 202/07)                                     comes within the margin of discretion permitted under
                                                                              Article 15(2) of Regulation No 17 and thus runs counter
                                                                              to the fundamental principle according to which the
                                                                              administration must act lawfully. Secondly, the actual
An appeal against the judgment delivered on 20 March 2002                     application of Article 15(2) of Regulation No 17 in regard
by the Fourth Chamber of the Court of First Instance of the                   to the applicant reveals a misuse of discretion in several
European Communities in Case T-16/99 between LR af 1998                       respects. In its decision the Commission did not appraise
(Germany) GmbH [formerly Lögstör Rör (Deutschland) GmbH]                      the individual differences in the duration of the infringe-
and the Commission of the European Communities (1) was                        ment and the intensity thereof. Furthermore, with the
brought before the Court of Justice of the European Communi-                  retroactive application of the ‘guidelines’ the Commission
ties on 4 June 2002 by LR af 1998 (Germany) GmbH [formerly                    is departing from its settled administrative practice in
Lögstör Rör (Deutschland) GmbH], represented by Hans-                         procedures leading to the imposition of fines whereby,
Joachim Hellmann, of Shearman & Sterlin in Mannheim, with                     until the well known cartonboard proceedings, it assessed
an address for service in Luxembourg at the Chambers of                       the individual contribution to the infringement in accord-
Linklaters Loesch.                                                            ance with the Court’s settled case-law. Finally, application
                                                                              of the ‘guidelines’ leads to imposition of an exorbitant
                                                                              fine in relation to other addressees of the decision.
The appellant claims that the Court should:
1.    Annul Commission Decision 1999/60/EC of 21 October                      —     Infringement of essential formal requirements
      1998, notified to the plaintiff on 12 November 1998 and
      published in the Official Journal of the EC of 30 January               —     Infringement of the requirement to provide a state-
      1999 (2), relating to a proceeding under Article 85 of the                    ment of reasons
      EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe
      Cartel) (OJ 1999 L 24, p. 1) in so far as it concerns the
      applicant,                                                              —     Infringement of the principle of the right to be heard
      in the alternative,
      reduce the fine.                                                  (1) Lögstör Rör (Deutschland) GmbH v Commission of the European
                                                                            Communities [2002] ECR II-0000.
2.    Order the defendant to pay the costs;                             (2) OJ 1999 L 24, p. 1.
      in the further alternative,
      set aside the judgment appealed against and refer the case
      back for a decision by the Court of First Instance.


title: Case T-526/15: Order of the General Court of 5 April 2016 — HK Intertrade v Council

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/46

         Order of the General Court of 5 April 2016 — HK Intertrade v Council
   (Case T-526/15) (1)

   (2016/C 191/65)
   Language of the case: English
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 371, 9.11.2015.


title: Case T-151/01: Judgment of the Court of First Instance of 24 May 2007 — Duales System Deutschland v Commission (Competition — Abuse of a dominant position — Collection and recovery system for packaging carrying the Der Grüne Punkt logo and put into circulation in Germany — Decision finding abuse of a dominant position — Barrier to entry — Fee payable under the Trade Mark Agreement )

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/19

         Judgment of the Court of First Instance of 24 May 2007 — Duales System Deutschland v Commission
   (Case T-151/01) (1)

   (Competition - Abuse of a dominant position - Collection and recovery system for packaging carrying the Der Grüne Punkt logo and put into circulation in Germany - Decision finding abuse of a dominant position - Barrier to entry - Fee payable under the ‘Trade Mark Agreement’)
   (2007/C 155/36)
   Language of the case: German
   Parties

      Applicant: Der Grüne Punkt — Duales System Deutschland GmbH, formerly Der Grüne Punkt — Duales System Deutschland AG (Cologne, Germany) (represented by: W. Deselaers, B. Meyring, E. Wagner and C. Weidemann, lawyers)

      Defendant: Commission of the European Communities (represented by: initially by S. Rating, and subsequently by P. Oliver, H. Gading and M. Schneider, and finally by W. Mölls and R. Sauer, Agents)

      Interveners in support of the defendant: Vfw AG (Cologne, Germany) (represented by H.F. Wissel and J. Dreyer, lawyers); Landbell AG für Rückhol-Systeme (Mayence, Germany); and BellandVision GmbH (Pegnitz, Germany) (represented by: A. Rinne and A. Walz, lawyers)
   Re:
   Application for annulment of Commission Decision 2001/463/EC of 20 April 2001 relating to a proceeding pursuant to Article 82 [EC] (Case COMP D3/34493 — DSD) (OJ 2001 L 166, p. 1)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant, Der Grüne Punkt — Duales System Deutschland GmbH, to bear its own costs and those incurred by the Commission, Landbell AG Rückhol Systeme and BellandVision GmbH, including those relating to the interlocutory proceedings;

               3.

               Orders Vfw AG to bear its own costs, including those relating to the interlocutory proceedings.

      (1)  OJ C 289, 13.10.2001.


title: Case T-57/13: Action brought on 29 January 2013 — Club Hotel Loutraki and Others v Commission

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/35

         Action brought on 29 January 2013 — Club Hotel Loutraki and Others v Commission
   (Case T-57/13)
   2013/C 114/57
   Language of the case: English

      Parties

      Applicants: Club Hotel Loutraki (Loutraki, Greece); Vivere Entertainment AE (Athens, Greece); Theros International Gaming, Inc. (Patra, Greece); Elliniko Casino Kerkyras (Athens); Casino Rodos (Rhodes, Greece); and Porto Carras AE (Alimos, Greece) (represented by: S. Pappas, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Annul Commission Decision COMP F3/MC/erg*2012/12.7386 dated 29 November 2012, by which the applicants’ complaint lodged on 4 April 2012 concerning the alleged granting of State aid to OPAP by the Greek State was rejected;

               —

               Order that the Commission bear the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on four pleas in law.
   First plea in law, alleging infringement of the applicants’ right to be heard as established in Article 108(2) TFEU by the Commission’s failure to initiate a formal investigation procedure according to Article 4(4), 6 and 20 of Regulation No 659/1999, which constitutes a misuse of power.

               —

               The Commission has infringed article 108(2) TFEU and Articles 4 et sec. of the Regulation, to the extent that it substantially conducted a formal investigation procedure without adhering to its formal requirements thus depriving the applicants-complainants, as well as other concerned parties, from their right to be heard.

               —

               The applicants plead to the alternative that their rights of association with the case during the preliminary investigation procedure have been infringed.

         Second plea in law, alleging infringement of the obligation to state reasons and the applicants’ right to good administration pursuant to Articles 296 TFEU and 41 of the Charter of Fundamental Rights of the European Union respectively.

               —

               By omitting all crucial economic data and figures, the contested decision fails to disclose in a clear and unequivocal fashion the reasoning followed by the Commission in such a way as to allow the applicants’ to ascertain the reasons that have lead to the conclusion that the measures in question do not constitute state aid. These deficiencies cannot be justified by reference to the duty to preserve business confidentiality.

               —

               The applicants also contest the confidential nature of the crucial economic sizes.

         Third plea in law, alleging infringement of the applicants’ right to effective judicial protection provided for in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and in Article 47 of the Charter of Fundamental Rights of the European Union.

               —

               For the same reasons set forward under plea No 2, the applicants’ right to effective judicial protection is being infringed. The applicants’ encounter difficulties in challenging directly the substance of the contested decision, as they are unable to ascertain, by any means, the reasoning behind it, this being solely based on economic data, all of which remains non-disclose.

         Fourth plea in law, alleging a manifest error in law in assessing the conformity of the VLT Agreement jointly with the Addendum and in reaching the conclusion that these do not confer an economic advantage on OPAP..

               —

               The conferral of economic advantages, a formal requirement for the existence of state aid, must be assessed within a distinct market and not after joint consideration with other similar measures granted to the same recipient but in a different market, irrespective of whether the alter is comparable to the former. Otherwise, the protection of competition would be highly incomplete.

               —

               At any rate, such a joint assessment may not be conducted on measures to be applied during different time periods.


title: Case C-28/15: Judgment of the Court (Second Chamber) of 15 September 2016 (request for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM) (Reference for a preliminary ruling — Common regulatory framework for electronic communications networks and services — Directive 2002/21/EC — Articles 4 and 19 — National Regulatory Authority — Harmonisation measures — Recommendation 2009/396/EC — Legal scope — Directive 2002/19/EC — Articles 8 and 13 — Operator designated as having significant market power on a market — Obligations imposed by national regulatory authorities — Price control and cost accounting obligations — Fixed and mobile call termination rates — Scope of the review that national courts can exercise over the decisions of national regulatory authorities)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/13

         Judgment of the Court (Second Chamber) of 15 September 2016 (request for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM)
   (Case C-28/15) (1)

   ((Reference for a preliminary ruling - Common regulatory framework for electronic communications networks and services - Directive 2002/21/EC - Articles 4 and 19 - National Regulatory Authority - Harmonisation measures - Recommendation 2009/396/EC - Legal scope - Directive 2002/19/EC - Articles 8 and 13 - Operator designated as having significant market power on a market - Obligations imposed by national regulatory authorities - Price control and cost accounting obligations - Fixed and mobile call termination rates - Scope of the review that national courts can exercise over the decisions of national regulatory authorities))
   (2016/C 419/15)
   Language of the case: Dutch

      Referring court

   College van Beroep voor het bedrijfsleven

      Parties to the main proceedings

      Applicants: Koninklijke KPN NV, KPN BV, T-Mobile Netherlands BV, Tele2 Nederland BV, Ziggo BV, Vodafone Libertel BV, Ziggo Services BV, formerly UPC Nederland BV, Ziggo Zakelijk Services BV, formerly UPC Business BV

      Defendant: Autoriteit Consument en Markt (ACM)

      Operative part of the judgment

               1.

               Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with Articles 8 and 13 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), as amended by Directive 2009/140, must be interpreted as meaning that a national court, hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority for the provision of fixed and mobile call termination services, may depart from Commission Recommendation 2009/396/EC of 7 May 2009 on the regulatory treatment of fixed and mobile termination rates in the EU advocating the ‘pure Bulric’ (Bottom-Up Long-Run Incremental Costs) cost model as the appropriate price regulation measure in the termination market only where it considers that this is required on grounds related to the facts of the individual case, in particular the specific characteristics of the market of the Member State in question.

               2.

               EU law must be interpreted as meaning that a national court hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority for the provision of fixed and mobile call termination services can assess the proportionality of that obligation in the light of the objectives set out in Article 8 of Directive 2002/21, as amended by Directive 2009/140, and Article 13 of Directive 2002/19, as amended by Directive 2009/140, and take into account the fact that the obligation has the effect of promoting the interests of end-users on a retail market which has not been earmarked for regulation.
               A national court may not, when carrying out a judicial review of a decision of the national regulatory authority, require that authority to demonstrate that the obligation actually attains the objectives set out in Article 8 of Directive 2002/21, as amended by Directive 2009/140.

      (1)  OJ C 138, 27.4.2015.


title: Reference for a preliminary ruling by the Pretura Circondariale di Milano by order of that court of 6 November 1998 in the case of Unilever Italia SpA against Central Food SpA (Case C-443/98)

text:
6.2.1999             EN                  Official Journal of the European Communities                                       C 33/5
2. If the first part of the first question is answered in the       Reference for a preliminary ruling by the Second Chamber
    affirmative, is a Member State in principle obliged to          of the Supremo Tribunal Administrativo by judgment of
    refund to a trader financial charges on the value of            that court of 28 October 1998, in the case of Fazenda
    exported goods which must be regarded as levied in                          PuÂblica v CaÃmara Municipal do Porto
    breach of Community law, on the basis that it is                                        (Case C-446/98)
    established that the person who was required to pay
    the charges at issue in fact passed them on to other                                     (1999/C 33/08)
    persons, namely the purchasers of the goods, and it
    does not follow, nor does the trader claim, that that
    charge caused an increase in the price of the products          Reference has been made to the Court of Justice of the
    and a reduction in the volume of his sales with the             European Communities by a judgment of the Second
    result that he suffered subsequent loss?                        Chamber of the Supremo Tribunal Administrativo
                                                                    (Supreme Administrative Court) of 28 October 1998,
                                                                    which was received at the Court Registry on 7 December
                                                                    1998, for a preliminary ruling in the case of Fazenda
                                                                    PuÂblica v CaÃmara Municipal do Porto, on the following
                                                                    questions:
Reference for a preliminary ruling by the Pretura                   (a) Does the expression activities or transactions in
Circondariale di Milano by order of that court of                         which they engage as public authorities' used in the
6 November 1998 in the case of Unilever Italia SpA                        first subparagraph of Article 4(5) of the Sixth VAT
                  against Central Food SpA                                Directive (1) cover the renting out of areas for the
                                                                          parking of vehicles (both on-street and off-street
                       (Case C-443/98)                                    parking) by the public authorities (a municipality)?
                        (1999/C 33/07)
                                                                    (b) May the significant distortions of competition
                                                                          referred to in the second subparagraph of Article 4(5)
                                                                          of the Sixth VAT Directive be defined case by case by
                                                                          the Minister of Finance of a Member State?
Reference has been made to the Court of Justice of the
European Communities by order of the Pretura
Circondariale di Milano (District Magistrate's Court,               (c)   If the national provision which empowers the
Milan) of 6 November 1998, which was received at the                      Minister of Finance to define, case by case,
Court Registry on 7 December 1998, for a preliminary                      significant     distortions     of    competition      is
ruling in the case of Unilever Italia SpA against Central                 unconstitutional, in that it infringes the principle that
Food SpA on the following question:                                       taxation must have a legislative basis, but conforms
                                                                          with Community law (with the Sixth Directive), must
                                                                          the national court comply with its Constitution or
                                                                          must it, first and foremost, comply with Community
May a national provision which has been promulgated                      law by virtue of the principle of the primacy of that
and entered into force in the Member State (Law No 313                    law over constitutions?
of 3 August 1998) be disapplied by a national court called
upon to issue an order for payment in relation to the
supply of extra virgin olive oil labelled in a manner not in        (d) Will the public authorities always be regarded as
accordance with the provisions of the aforementioned                      taxable persons provided that the activities in which
national provision, considering that, following the                       they engage are not insignificant, or are they taxable
notification and the subsequent examination of a draft                    persons only as regards the activities or transactions
national Law concerning the labelling of extra virgin olive               listed in Annex D, to which the third subparagraph
oil, virgin olive oil and olive oil, the European                         of Article 4(5) of the Sixth VAT Directive refers?
Commission, on the basis of Article 9(3) of Council
Directive 83/189/EEC (1) laying down a procedure for the
provision of information in the field of technical standards        (e)   May a national law authorise the Minister of Finance
and regulations, formally requested the notifying State not               to define, case by case, what activities are being
to legislate, prescribing a period (until 14 September                    engaged in on a basis that is not significant?
1999) in respect of the marketing rules for olive oil,
pending the adoption of a Community regulation on the
matter at issue?'                                                   (f)   For the purposes of the last subparagraph of
                                                                          Article 4(5) of the Sixth VAT Directive, may a
                                                                          Member State regard on activity of renting out areas
(1) OJ L 109, 26.4.1983, p. 8.                                            intended for the parking of vehicles, when it is
                                                                          carried on by a municipality, as an activity in which
                                                                          the municipality engages as a public authority, having
                                                                          regard to the provisions of Article 13B(b)(2) of the
                                                                          Sixth VAT Directive?


title: Case T-373/07: Judgment of the Court of First Instance of 12 November 2008 — EOS v OHIM (PrimeCast) (Community trade mark — Application for Community word mark PrimeCast — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/28

         Judgment of the Court of First Instance of 12 November 2008 — EOS v OHIM (PrimeCast)
   (Case T-373/07) (1)

   (Community trade mark - Application for Community word mark PrimeCast - Absolute grounds for refusal - Descriptive character - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)
   (2009/C 6/58)
   Language of the case: German
   Parties

      Applicant: EOS GmbH Electro Optical Systems (Krailling, Germany) (represented by: M. Mentjes, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Schäffner and G. Schneider, agents)
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 July 2007 (Case R 333/2005-4) concerning an application for registration of the word mark PrimeCast as a Community trade mark
   Operative part of the judgment
   The Court:

               1.

               Dismisses the application;

               2.

               orders EOS GmbH Electro Optical Systems to pay the costs.

      (1)  OJ C 283, 24.11.2007.


title: Case T-427/16: Action brought on 29 July 2016 — Martín Osete v EUIPO — Rey (AN IDEAL WIFE)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/46

         Action brought on 29 July 2016 — Martín Osete v EUIPO — Rey (AN IDEAL WIFE)
   (Case T-427/16)
   (2016/C 343/63)
   Language in which the application was lodged: English

      Parties

      Applicant: Isabel Martín Osete (Paris, France) (represented by: V. Wellens, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Daniella Rey (Toulouse, France)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘AN IDEAL WIFE’ — EU trade mark No 5 276 894

      Procedure before EUIPO: Cancellation proceedings

      Contested decision: Decision of the Second Board of Appeal of EUIPO of 21 April 2016 in Case R 1528/2015-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 55(1)(a) of Regulation No 207/2009.


title: Case T-436/16: Action brought on 3 August 2016 — AEIM and Kazenas v Commission

text:
               10.10.2016

               EN

               Official Journal of the European Union

               C 371/19

         Action brought on 3 August 2016 — AEIM and Kazenas v Commission
   (Case T-436/16)
   (2016/C 371/21)
   Language of the case: French

      Parties

      Applicants: Application électronique industrielle moderne (AEIM) (Algrange, France), Philippe Kazenas (Luxembourg, Luxembourg) (represented by: B. Wizel, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               order the defendant to pay to AEIM the sum of EUR 536 912 representing the financial losses suffered as a result of sunk investments made in respect of visits prior to the award of public contracts, which awards were carried out fraudulently;

               —

               order the defendant to pay to AEIM the sum of EUR 2 092 650 for loss of profit in respect of the public contracts which AEIM would have obtained had they been awarded fairly and without corruption;

               —

               order the defendant to reimburse Mr Kazenas the sum of EUR 85 000 in respect of the costs and fees of the lawyer that he was obliged to pay for conducting his defence, as a result of corruption on the part of the European official;

               —

               order the defendant to pay to Mr Kazenas the sum of EUR 150 000 in respect of non-material damage;

               —

               order the defendant to pay to AEIM compensatory interest on all those amounts from December 2005, being the end of the period of infringement;

               —

               order the defendant to reimburse lawyers’ costs and fees in respect of the present proceedings representing the sum of EUR 75 000;

               —

               order the defendant to pay default interest from the date on which judgment is delivered;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   The applicants claim that unlawful conduct on the part of an official of the European Commission in the context of the award of public contracts led to their suffering serious damage directly linked to that conduct, and they seek compensation in respect of that damage.
   They submit accordingly that the three conditions for invoking the non-contractual liability of the European Union are satisfied, namely unlawful conduct on the part of an institution or one of its servants, the fact of damage and a causal link between the conduct of that servant and the damage complained of.
   In the present case, they claim that acts of corruption on the part of a European official in the context of the award of public contracts constitute a sufficiently serious breach of the principles of equal treatment and transparency which the contracting authority must observe in relation to all tenderers in tendering procedures.
   The applicants submit that the fraudulent award of the public contracts in question led to the company AEIM suffering genuine damage since it was awarded contracts relating to countries deemed dangerous, which the other two — corrupting — tenderers did not wish to be awarded, whereas had all the contracts been awarded without corruption, that company, being the only one to have tendered with probity, would have obtained those contracts.
   They rely on the principle of good administration on the part of the Commission, in the observance of which there were serious shortcomings in this instance, as well as on the principle of the protection of legitimate expectations which extends to any trader in a situation in which an institution has caused it to entertain justified expectations.
   The applicants submit that, in addition to financial damage, they have suffered non-material damage, inter alia, as a result of damage to their reputation and the need to defend themselves against accusations that proved to be incorrect and imaginary.


title: Case C-458/12: Judgment of the Court (Ninth Chamber) of 6 March 2014 (request for a preliminary ruling from the Tribunale di Trento (Italy)) — Lorenzo Amatori and Others v Telecom Italia SpA, Telecom Italia Information Technology Srl (Request for a preliminary ruling — Social policy — Transfer of undertakings — Safeguarding of employees’ rights — Directive 2001/23/EC — Transfer of employment relationships in the event of a legal transfer of part of a business that cannot be identified as a pre-existing autonomous economic entity)

text:
               28.4.2014

               EN

               Official Journal of the European Union

               C 129/4

         Judgment of the Court (Ninth Chamber) of 6 March 2014 (request for a preliminary ruling from the Tribunale di Trento (Italy)) — Lorenzo Amatori and Others v Telecom Italia SpA, Telecom Italia Information Technology Srl
   (Case C-458/12) (1)

   ((Request for a preliminary ruling - Social policy - Transfer of undertakings - Safeguarding of employees’ rights - Directive 2001/23/EC - Transfer of employment relationships in the event of a legal transfer of part of a business that cannot be identified as a pre-existing autonomous economic entity))
   2014/C 129/04
   Language of the case: Italian

      Referring court

   Tribunale di Trento

      Parties to the main proceedings

      Applicants: Lorenzo Amatori, Adrian Gottardi

      Defendants: Telecom Italia SpA, Telecom Italia Information Technology Srl

      Re:

   Request for a preliminary ruling — Tribunale di Trento — Interpretation of Article 1(1)(a) and (b) and Article 3(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16) — Transfer to another undertaking, on the basis of an agreement, of a part of a business which cannot be identified as a pre-existing independent economic entity and over which, after the transfer, the transferring undertaking will exercise dominant control through commercial relations and a sharing of business risk — National rules under which the taking over of employment relations is not conditional upon the consent of the employees transferred.

      Operative part of the judgment

               1.

               Article 1(1)(a) and (b) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, which, on the transfer of part of the undertaking, permits the transferee to take over the employment relationship from the transferor if that part of the undertaking does not constitute a functionally autonomous economic entity existing before the transfer.

               2.

               Article 1(1)(a) and (b) must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which enables the transferee to take over the employment relationships from the transferor if, after the transfer of part of an undertaking concerned exercises extensive, overriding powers over the transferee.

      (1)  OJ C 389, 15.12.2012


title: Case T-9/10: Judgment of the General Court of 21 February 2013 — Evropaïki Dynamiki v Commission (Public service contracts — Tender procedure — Supply of external services relating to the provision of electronic publications — Rejection of a tenderer’s bid — Award of the contract to another tenderer — Selection and award criteria — Obligation to state reasons — Manifest error of assessment)

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/20

         Judgment of the General Court of 21 February 2013 — Evropaïki Dynamiki v Commission
   (Case T-9/10) (1)

   (Public service contracts - Tender procedure - Supply of external services relating to the provision of electronic publications - Rejection of a tenderer’s bid - Award of the contract to another tenderer - Selection and award criteria - Obligation to state reasons - Manifest error of assessment)
   2013/C 108/53
   Language of the case: English

      Parties

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

      Defendant: European Commission (represented: initially by E. Manhaeve and N. Bambara, Agents, assisted initially by E. Petritsi, lawyer, and subsequently by E. Petritsi and O. Graber-Soudry, Solicitor, and subsequently represented by E. Manhaeve, assisted by O. Graber-Soudry)

      Re:

   First, application for annulment of the decision of the Publications Office of the European Union of 29 October 2009 in that it rejects the tender submitted by the applicant for Lot 2, entitled ‘Electronic publishing based on Microsoft SharePoint Server’, and, inter alia, awards the contracts to the successful tenderers, and in that it awards two contracts from Lot 3, entitled ‘Electronic publishing based on open-source platforms’, to an undertaking belonging to two different consortia, within the framework of the call for tenders AO 10224 for the provision of electronic publications (OJ 2009/S 109-156511), and, secondly, a claim for damages pursuant to Articles 268 TFEU and 340 TFEU.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

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

      (1)  OJ C 80, 27.3.2010.


title: Case C-360/11: Judgment of the Court (Third Chamber) of 17 January 2013 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Value added tax — Directive 2006/112/EC — Application of a reduced rate — Articles 96 and 98(2) — Points 3 and 4 of Annex III — ‘Pharmaceutical products normally used for health care, prevention of illnesses and as treatment for medical and veterinary purposes’ — ‘Medical equipment, aids and other appliances normally intended to alleviate or treat disability, for the exclusive personal use of the disabled’ )

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/4

         Judgment of the Court (Third Chamber) of 17 January 2013 — European Commission v Kingdom of Spain
   (Case C-360/11) (1)

   (Failure of a Member State to fulfil obligations - Value added tax - Directive 2006/112/EC - Application of a reduced rate - Articles 96 and 98(2) - Points 3 and 4 of Annex III - ‘Pharmaceutical products normally used for health care, prevention of illnesses and as treatment for medical and veterinary purposes’ - ‘Medical equipment, aids and other appliances normally intended to alleviate or treat disability, for the exclusive personal use of the disabled’)
   2013/C 63/05
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: L. Lozano Palacios, acting as Agent)

      Defendant: Kingdom of Spain (represented by: S. Centeno Huerta, acting as Agent)

      Re:

   Failure of a Member State to fulfil its obligations — Infringement of Article 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), read in conjunction with Annex III thereto — Supplies of goods and services to which reduced rates may be applied

      Operative part of the judgment

   The Court:

               1.

               Declares that, by applying a reduced rate of value added tax to

                           —

                           medicinal substances which can be used habitually and suitably in the manufacturing of medicinal products;

                           —

                           medical devices, material, equipment and appliances which, viewed objectively, can be used only to prevent, diagnose, treat, alleviate or cure human or animal illnesses or ailments, but which are not normally intended to alleviate or treat disability, for the exclusive personal use of the disabled;

                           —

                           aids and equipment which may be used essentially or primarily to treat physical disabilities in animals;

                           —

                           and, finally, to aids and equipment essentially or primarily used to treat human disabilities, but which are not intended for the exclusive personal use of the disabled,

                     the Kingdom of Spain has failed to fulfil its obligations under Article 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 282, 24.9.2011.


title: Case C-582/12 P: Order of the President of the Court of 5 June 2014  — El Corte Inglés, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Emilio Pucci International BV

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/45

         Order of the President of the Court of 5 June 2014 — El Corte Inglés, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Emilio Pucci International BV
   (Case C-582/12 P) (1)

   2014/C 315/72
   Language of the case: Spanish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 63, 2.3.2013.


title: Case F-36/07: Action brought on 19 April 2007 — Lebedef v Commission

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/27

         Action brought on 19 April 2007 — Lebedef v Commission
   (Case F-36/07)
   (2007/C 129/47)
   Language of the case: French
   Parties

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

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the applicant's career development report for the period from 1 January 2005 to 31 December 2005, in particular that part of the report drawn up by Eurostat for that period;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his application, the applicant relies on a single plea in law alleging an infringement of the general measures for the application of Article 43 of the Staff Regulations, specifically, the measures concerning union and statutory staff representatives, breach of the principle of legitimate expectations and of the rule ‘patere legem quam ipse fecisti’.


title: Reference for a preliminary ruling from the Oberlandesgericht Stuttgart by order of that court of 17 December 1997 in the case of Arbeitsgemeinschaft Deutscher Rundfunkanstalten (ARD) v. PRO Sieben Media AG, interveners: (1) SAT 1 Satellitenfernsehen GmbH and (2) Kabel 1, K 1 Fernsehen GmbH (Case C-6/98)

text:
7.3.98                EN                 Official Journal of the European Communities                                   C 72/11
Chamber of the Tribunal de Grande Instance (Regional                     primary Community law (Articles 5, 6, 30 et seq., 59
Court), AngouleÃme, of 8 January 1998, which was                         et seq. and 85 et seq. of the EC Treaty and the
received at the Court Registry on 12 January 1998, for a                 general principle of equality)?
preliminary ruling in the case of SA Otor Godard v.
Directeur des Services Fiscaux de la Charente (Director of          (1) OJ L 202, 30.7.1997, p. 60.
the Charente Tax Office) on the following question:
Must Article 5 of the EC Treaty and the principle of legal
certainty be interpreted as meaning that they preclude
Article L 190(3) of the Code of Fiscal Procedures from
limiting an action for recovery of amounts unduly paid to           Reference      for    a     preliminary   ruling   by    the
the period subsequent to 1 January of the fourth year               Bundesgerichtshof by order of that court of 4 December
prior to that in which the judgment establishing non-                1997 in the case of Dieter Krombach v. AndreÂ Bamberski
conformity was established, where that judgment is a                                        (Case C-7/98)
judgment of the Court of Justice delivered following
failure by a Member State to transpose a directly                                            (98/C 72/20)
applicable provision of a directive affecting the State
budget.'
                                                                    Reference has been made to the Court of Justice of the
                                                                    European Communities by order of the Ninth Civil Senate
                                                                    of the Bundesgerichtshof (Federal Court of Justice) of
                                                                    4 December 1997, received at the Court Registry on
                                                                    14 January 1998, for a preliminary ruling in the case of
                                                                    Dieter Krombach v. AndreÂ Bamberski on the following
Reference for a preliminary ruling from the                         questions:
Oberlandesgericht Stuttgart by order of that court of
17 December 1997 in the case of Arbeitsgemeinschaft                 1. May the provisions on jurisdiction form part of public
Deutscher Rundfunkanstalten (ARD) v. PRO Sieben                         policy within the meaning of Article 27(1) of the
Media AG, interveners: (1) SAT 1 Satellitenfernsehen                    Convention of 27 September 1968 on Jurisdiction and
        GmbH and (2) Kabel 1, K 1 Fernsehen GmbH                        the Enforcement of Judgments in Civil and
                         (Case C-6/98)                                  Commercial Matters where the State of origin has
                                                                        based its jurisdiction as against a person domiciled in
                          (98/C 72/19)                                  another contracting State (first paragraph of Article 2
                                                                        of the Convention) solely on the nationality of the
                                                                        injured party (as in the second paragraph of Article 3
Reference has been made to the Court of Justice of the
                                                                        of the Convention in relation to France)?
European Communities by an order of the Fourth Civil
Senate of the Oberlandesgericht Stuttgart (Higher
Regional Court, Stuttgart) of 17 December 1997, which                   If Question 1 is answered in the negative:
was received at the Court Registry on 12 January 1998,
for a preliminary ruling in the case of Arbeitsgemeinschaft         2. May the court of the State in which enforcement is
Deutscher Rundfunkanstalten (ARD) v. PRO Sieben                         sought (first paragraph of Article 31 of the
Media AG, interveners: (1) SAT 1 Satellitenfernsehen                    Convention) take into account under public policy
GmbH and (2) Kabel 1, K 1 Fernsehen GmbH, on the                        within the meaning of Article 27(1) that the criminal
following questions:                                                    court of the State of origin did not allow the debtor to
                                                                        be defended by a lawyer in a civil-law procedure for
(a) Does Article 11(3) of Directive 97/36/EC of the                     damages instituted within the criminal proceedings
      European Parliament and of the Council of 30 June                 (Article II of the Protocol of 27 September 1968 on
      1997 amending Council Directive 89/552/EEC (the                  the interpretation of the Convention) because he, a
      Television Amendment Directive') (1) or the identical             resident of another Contracting State, was charged
      Article 11(3) of Council Directive 89/552/EEC of                  with an intentional offence and did not appear in
      3 October 1989 on the coordination of certain                     person?
      provisions laid down by law, regulation or
      administrative action in Member States concerning                 If Question 2 is also answered in the negative:
      the pursuit of television broadcasting activities (the
      Television Directive') prescribe the gross principle or       3. May the court of the State in which enforcement is
      the net principle?                                                sought take into account under public policy within
                                                                        the meaning of Article 27(1) of the Convention that
(b) On the assumption that Article 44(4) of the Dritter                 the court of the State of origin based its jurisdiction
      Staatsvertrag zur ¾nderung rundfunkrechtlicher                    solely on the nationality of the injured party (see
      Staatsverträge (Third Treaty amending Treaties on                 Question 1 above) and additionally prevented the
      Broadcasting Law, Annex B 33, p. 437 of the case-                 defendant from being legally represented (see
      file) prescribes the net principle, is that then                  Question 2 above)?
      compatible with Article 11(3) in conjunction with
      Article 3(1) of the Television Directive or with


title: Action brought on 16 October 1997 by Società Ca' Pasta s.r.l. against the Commission of the European Communities (Case T-274/97)

text:
20 . 12 . 97            EN                 Official Journal of the European Communities                                     C 387/23
Pleas in law and main arguments adduced in support:                   Action brought on 16 October 1997 by Societa Ca'
                                                                      Pasta s.r.l . against the Commission of the European
                                                                                Communities
The applicant, an official in Grade A 4, takes issue with
the appointing authority's refusal to promote him to                                          ( Case T-274/97 )
Grade A 3 , rejecting his application for the post advertised                                   ( 97/C 387/43 )
in Notice of Vacancy No 8011 . A Swedish woman who
passed an open competition and was placed third on the
reserve list was appointed in his place .                                              (Language of the case: Italian)
The applicant puts forward the following pleas in support             An action against the Commission of the European
of his claims :
                                                                      Communities was brought before the Court of First
                                                                      Instance on 16 October 1997 by Societa Ca ' Pasta s.r.l .,
— infringement of Article 29 ( 1 ) of the Staff Regulations,          represented by Paolo Piva , of the Venice Bar, and Guy
     in that, in contravention of that provision , the                Arendt, of the Luxembourg Bar, with an address for
     appointing authority opened the external recruitment             service in Luxembourg at the latter's chambers, 62 Avenue
                                                                      Guillaume .
     procedure without first considering the possibility of
     filling the vacant post through the various internal
     recruitment procedures . The different selection criteria
     by which the appointing authority is bound under                 The applicant claims that the Court of First Instance
     Articles 7 and 27 of the Staff Regulations make it               should annul the measure in the form of a letter of reply
     impossible to compare directly internal applications             dated 4 August 1997 ( File No 11423 ) from Directorate
     with external applications in that the appointing                General XIV ( Fisheries ) relating to ' Project IT/ 166/91 —
     authority's decisions on promotion and transfer must             Your letter of 21 July 1997'.
     be based on the interest of the service while
     recruitment must be on the basis of the criteria of
     ' ability, efficiency and integrity, ... on the broadest         Contentions and principal arguments adduced in support:
     possible geographical basis',
                                                                      This action derives from the grant of aid to the applicant
— breach of the obligation to state reasons under                     in connection with structural incentives for the fisheries
     Article 25 of the Staff Regulations,                             and agricultural sector. With a view to implementation of
                                                                      a project for modernization of an aquaculture unit in
                                                                      Contarina ( Veneto ), the applicant sought and obtained a
— infringement of Article 7 of the Staff Regulations in               Community contribution of Lit 942 300 004, equal to
     that the applicant's candidature was rejected and the            40 % of the approved cost. Following an administrative
     candidate ultimately chosen was appointed not on the             check, involving Commission representatives, it was noted
     basis of the criterion of the interest of the service but        that the business had been transferred without the prior
     of considerations relating to the nationality of the             authorization considered necessary under Article 24 of
     candidates in question,                                          Regulation No 4253/88 ('). After completing the
                                                                      procedure provided for in Article 44 of Regulation
                                                                      No 4028/86 (-), the head of Directorate General XIV
— existence, in this case, of a manifest error of                     issued the contested measure, confirming 'continuation of
     assessment and failure to take account of the selection
                                                                      the internal procedure with a view to cancelling the
     criteria published in the Notice of Vacancy, in that, as         contribution and recovering the amount already paid '.
     regards the specifications set out in that notice,
     external candidates inevitably did not have knowledge
     of the specific nature of the Parliament's departments           In support of its claims, the applicant relies on the
     or of the practical operation of internal administrative         following pleas in law:
     procedures or rules,
                                                                      — breach of essential procedural requirements, in that
— the decision complained of is contrary to the interest                  the principle of collegiality was not observed in
     of the service in that, despite the applicant's                      relation to the adoption of the contested measure;
     experience, the post in question was not satisfactorily
      filled,
                                                                      — inappropriate investigation, lack of a statement of
— the contested decision was made on the basis of data                     reasons and misuse of powers . According to the
     which were manifestly not comparable, in that the                     applicant, there was a clear distortion of the facts
      successful candidate chosen was on a reserve list while              owing essentially to an improper and inadequate
     the applicant's qualifications were of necessity assessed             investigation, the purpose of which was to check
                                                                           whether there had been a transfer of the business
      on the basis of his staff reports .
                                                                           without prior authorization from the Commission and
                                                                           the Italian Government ( the described as 'a significant
                                                                           alteration ') rather than , possibly, consistent use of the
 ---pagebreak--- C 387/24                   EN                    Official Journal of the European Communities                                      20 . 12 . 97
       investment which had been made in full long before.                   Pleas in law and main arguments adduced in support:
       The applicant considered that it did not conclude a
       separate sale of the installations and equipment but
       transferred its entire business, comprising the fish                  The pleas in law and main arguments are similar to those
       hatchery, clearly maintaining the undertaking as a                    submitted in Cases T- 186/97, T- 187/97, T-l 90/97, T-191/
       going concern.                                                        97, T-l 92/97, T-210/97, T-211 /97, T-216/97, T-217/97
                                                                             and T-2 18/97 ( 1 ).
— breach of the principle of legal certainty and of
       Articles 38 and 44 of Regulation No 4028/86 . The                     (') OJ C 318 , 18 . 10 . 1997, p . 17—25 .
       applicant observes in that connection that, in the light
       of the exhaustive manner in which that regulation lays
       down the conditions for initiation of the procedure for
       suspension/cancellation/reduction of the contributions,
       it can hardly be said that the term 'significant
       alteration of the project' covers a mere change in the
       ownership of the business.                                            Action brought on 24 October 1997 by Wilson Holland
                                                                             BV against the Commission of the European Communities
(') Council Regulation ( EEC ) No 4253/88 of 19 December 1988                                           ( Case T-280/97)
      laying down provisions for implementing Regulation (EEC )
      No 2052/88 as regards coordination of the activities of                                             ( 97/C 387/45 )
      different Structural Funds between themselves and with the
      operations of the European Investment Bank and other
      existing financial instruments ( OJ L 374 , 31 . 12 . 1988 , p. 1 ).                     (Language of the case: English)
( 2 ) Council Regulation ( EEC ) No 4028/86 of 18 December 1986
      on Community measures to improve and adapt structures in
      the fisheries and aquaculture sector ( OJ L 376 , 31 . 12 . 1986 ,     An action against the Commission of the European
      p. 7 ).                                                                Communities was brought before the Court of First
                                                                             Instance of the European Communities on 24 October
                                                                             1997 by Wilson Holland BV, represented by Catherine
                                                                             Grisart, of the Brussels Bar, with an address for service in
                                                                             Luxembourg at the office of Stef Oostvogels, 13 Rue
                                                                             Aldringen, Luxembourg.
Action brought on 24 October 1997 by DFDS Transport
 BV against the Commission of the European Communities                       The applicant claims that the Court should:
                            ( Case T-279/97
                              ( 97/C 387/44 )                                — annul the decision of the European Commission of
                                                                                June 5 , 1997 No C(97 ) 1636 def./2, under reference
                    (Language of the case: English)                                 REM 26/96 ( not published in the Official Journal of
                                                                                the European Communities ), based on Article 173 of
                                                                                the Rome Treaty,
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 24 October                           — acknowledge that the applicant reserves all its rights to
 1997 by by DFDS Transport BV, represented by Catherine                             bring at a later stage an action for damages against the
 Grisart, of the Brussels Bar, with an address for service in                       defendant,
 Luxembourg at the office of Stef Oostvogels, 13 Rue
Aldringen, Luxembourg.
                                                                             — order         the   defendant      to  bear all costs   of    the
 The applicant claims that the Court should :                                       proceedings, including all costs fees and expenses of
                                                                                the applicant.
— annul the decision of the European Commission of
        5 June 1997, No C(97 ) 1636 def./l , under reference                 Pleas in law and main arguments adduced in support:
        REM 26/96 ( not published in the Official Journal of
        the European Communities ), based on Article 173 of
        the Rome Treaty,                                                     The pleas in law and main arguments are similar to those
                                                                              submitted in Cases T-l 86/97, T-l 87/97, T-l 90/97, T-191 /
                                                                              97, T-192/97, T-210/97, T-211 /97, T-216/97, T-217/97
 — acknowledge that the applicant reserves all its rights to                  and T-2 18/97 (') and T-279/97 ( 2 ).
        bring at a later stage an action for damages against the
        defendant,
                                                                              (') OJ C 318 , 18 . 10 . 1997, p. 17—25 .
                                                                              ( : ) See page 24 of this Official Journal .
 — order         the   defendant     to   bear    all    costs     of    the
        proceedings, including all costs fees and expenses of
        the applicant .


title: Case C-171/08: Judgment of the Court (First Chamber) of 8 July 2010 — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Articles 56 EC and 43 EC — Free movement of capital — Portuguese State’s ‘golden’ shares in Portugal Telecom SGPS SA — Restrictions on the acquisition of holdings and on the management of a privatised company — State measure)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/4

         Judgment of the Court (First Chamber) of 8 July 2010 — European Commission v Portuguese Republic
   (Case C-171/08) (1)

   (Failure of a Member State to fulfil obligations - Articles 56 EC and 43 EC - Free movement of capital - Portuguese State’s ‘golden’ shares in Portugal Telecom SGPS SA - Restrictions on the acquisition of holdings and on the management of a privatised company - State measure)
   2010/C 234/05
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: E. Montaguti, M. Teles Romão and P. Guerra e Andrade, acting as Agents)

      Defendant: Portuguese Republic (represented by: L. Inez Fernandes, acting as Agent, and by M. Gorjão Henriques, advogado)

      Re:

   Failure of a Member State to fulfil its obligations — Infringement of Articles 43 EC and 56 EC — Special shares (‘golden shares’) held by the Portuguese State in Portugal Telecom S.A.

      Operative part of the judgment

   The Court:

               1.

               Declares that, by maintaining in Portugal Telecom SGPS SA special rights, such as those provided for in that company’s articles of association for the State and other public sector bodies, allocated in connection with the State’s golden shares in Portugal Telecom SGPS SA, the Portuguese Republic has failed to fulfil its obligations under Article 56 EC;

               2.

               Orders the Portuguese Republic to pay the costs.

      (1)  OJ C 171, 05.07.2008.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 4 March 1998 in Case T-146/96: Maria da Graça De Abreu v. Court of Justice of the European Communities (Probationary officials - Appointment of a former member of the temporary staff - Maintenance of seniority in step - Principle of equality of treatment - Objection of illegality)

text:
C 113/14              EN                 Official Journal of the European Communities                                  11.4.98
the decision of the Central Staff Committee of the                  2. orders the parties to bear their own costs.
Commission rejecting the proposals of Mr Chambellant
concerning appointments to organs set up under the Staff            (1) OJ C 74, 8.3.1997.
Regulations and to administrative bodies, and, in so far as
may be necessary, annulment of the decision of the
Commission expressly rejecting the applicant's complaint
Ð the Court of First Instance (Fourth Chamber),
composed of: P. Lindh, President, and K. Lenaerts and
J. D. Cooke, Judges; A. Mair, Administrator, for the
                                                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
Registrar, has given a judgment on 19 February 1998, in
which it:                                                                                of 19 February 1998
                                                                    in Case T-196/97: Donato Continolo v. Commission of
                                                                                the European Communities (1)
1. declares that there is no need to adjudicate on the
     present case,                                                  (Officials Ð Thermal cure Ð Article 59 of the Staff
                                                                             Regulations Ð Sick leave Ð Special leave)
                                                                                (98/C 113/35)
2. orders the Commission to bear its own costs and to
     pay half of the applicant's costs, and the applicant to
     bear the other half of his own costs.                                          (Language of the case: French)
                                                                    In Case T-196/97: Donato Continolo, an official of the
(1) OJ C 388, 21.12.1996.
                                                                    Commission of the European Communities, represented
                                                                    by Jean-NoeÈl Louis, Thierry Demaseure, Ariane Tornel
                                                                    and FrancËoise Parmentier, of the Brussels Bar, with an
                                                                    address for service in Luxembourg at the offices of
                                                                    Fiduciaire Myson SARL, 30 rue de Cessange, v.
                                                                    Commission of the European Communities (Agents:
                                                                    Christine Berardis-Kayser and Florence Duvieusart-
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                    Clotuche) Ð application for annulment of the decision of
                     of 19 February 1998                            the Commission of 24 June 1996 not to grant the
                                                                    applicant additional leave for the purposes of undergoing
in Case T-3/97: Anna Maria Campogrande v. Commission
                                                                    a thermal cure, as confirmed by the decision of 30 January
              of the European Communities (1)
                                                                    1997 rejecting the applicant's complaint Ð the Court of
(Officials Ð Vacancy notice Ð Level of the post to be               First Instance (Fourth Chamber), composed of: P. Lindh,
filled Ð Appointment to a grade A 4/A 5 post of head of             President, and K. Lenaerts and J. D. Cooke, Judges; A.
unit Ð Illegality of the decision of the Commission of              Mair, Administrator, for the Registrar, has given a
      19 July 1988 Ð Rejection of application for post)             judgment on 19 February 1998, in which it:
                        (98/C 113/34)
                                                                    1. dismisses the application,
               (Language of the case: French)                       2. orders the parties to bear their own costs.
                                                                    (1) OJ C 7, 10.1.1998.
In Case T-3/97: Anna Maria Campogrande, an official
of the Commission of the European Communities,
represented by Marc-Albert Lucas, of the LieÁge Bar, with
an address for service in Luxembourg at the Chambers of
Evelyne Korn, 21 avenue de Nassau, v. Commission of the
European Communities (Agents: Gianluigi Valsesia and
Denis Waelbroeck) Ð application for annulment of the                  JUDGMENT OF THE COURT OF FIRST INSTANCE
decision of the Commission appointing Mr Cesare De                                         of 4 March 1998
Montis to the post of Head of Unit 2 (Andean Pact) of
                                                                    in Case T-146/96: Maria da GracËa De Abreu v. Court of
Directorate A (Latin America) of Directorate-General IB
                                                                              Justice of the European Communities (1)
(External relations: Southern Mediterranean, Middle and
Near East, Latin America, South and South-East Asia and             (Probationary officials Ð Appointment of a former
North-South Cooperation) and of the Commission's                    member of the temporary staff Ð Maintenance of
decision rejecting the applicant's application for that post        seniority in step Ð Principle of equality of treatment Ð
Ð the Court of First Instance (Fourth Chamber),                                         Objection of illegality)
composed of: P. Lindh, President, and K. Lenaerts and                                       (98/C 113/36)
J. D. Cooke, Judges; A. Mair, Administrator, for the
Registrar, has given a judgment on 19 February 1998, in
which it:                                                                           (Language of the case: French)
                                                                    In Case T-146/96: Maria da GracËa De Abreu, an official
1. dismisses the action,                                            of the Court of Justice of the European Communities,
 ---pagebreak--- 11.4.98              EN                  Official Journal of the European Communities                                  C 113/15
residing at Luxembourg, represented by Jean-NoeÈl Louis,            the Commission's decision published on 9 April 1996 in
of the Brussels Bar, with an address for service in                 so far as it refuses to promote the applicant to grade C 1
Luxembourg at the offices of Fiduciaire Myson, 30 rue de            in the 1996 promotions exercise Ð the Court of First
Cessange, v. Court of Justice of the European                       Instance (Fourth Chamber), composed of P. Lindh,
Communities (Agent: Timothy Millett) Ð application for              President, K. Lenaerts and J. D. Cooke, Judges; B. Pastor,
annulment of the decision of the Court of Justice of                Principal Administrator, gave a judgment on 5 March
5 December 1995 appointing the applicant an official and            1998, in which it:
assigning her to the post of typist, in so far as that
decision classified her in grade C 4, step 3 Ð the Court of
First Instance (Second Chamber), composed of A.                     1. dismissed the application,
Kalogeropoulos, President, and C. W. Bellamy and J.
Pirrung, Judges; A. Mair, Administrator, for the Registrar,
has given a judgment on 4 March 1998, in which it:                  2. ordered the Commission to pay the costs.
                                                                    (1) OJ C 54, 22.2.1997.
1. annuls the decision of the Court of Justice of
    5 December 1995 appointing the applicant to the post
    of typist in grade C 4, in so far as it classifies her in
    step 3 of that grade,
2. orders the Court of Justice to pay the costs, apart
    from those incurred by the Council of the European                   ORDER OF THE COURT OF FIRST INSTANCE
    Union and those incurred by the applicant as a result                                of 13 February 1998
    of the Council's intervention,
                                                                          in Case T-275/97: GueÂrin Automobiles EURL v.
                                                                           Commission of the European Communities (1)
3. orders the Council to bear its own costs and to pay              (Action for annulment Ð Time limit for bringing
    the costs incurred by the applicant as a result of its                    proceedings Ð Manifest inadmissibility)
    intervention.
                                                                                (98/C 113/38)
(1) OJ C 354, 23.11.1996.
                                                                                (Language of the case: French)
                                                                    In Case T-275/97: GueÂrin Automobiles EURL, a company
                                                                    in judicial liquidation, established at AlencËon (France),
                                                                    acting in the person of Xavier LemeÂe, liquidator,
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           represented by Jean-Claude Fourgoux, of the Paris and
                                                                    Brussels Bar, with an address for service in Luxembourg at
                      (Fourth Chamber)                              the Chambers of Pierrot Schiltz, 4 rue BeÂatrix de Bourbon,
                       of 5 March 1998                              v. Commission of the European Communities Ð
                                                                    application for annulment of Decision SG(97) D/3183 of
      in Case T-221/96: Immacolata Manzo-Tafaro v.                  the Commission of 25 April 1997 rejecting GueÂrin
       Commission of the European Communities (1)                   Automobiles' complaint concerning the standard-form
                                                                    dealership agreement for Nissan motor vehicles in France
(Officials Ð Refusal to promote an official Ð                       and the application thereof (Case IV-35.095 GueÂrin/
Consideration of comparative merits Ð Age and seniority             Nissan France) Ð the Court of First Instance (Second
                  taken into consideration)                         Chamber), composed of A. Kalogeropoulos, President, and
                        (98/C 113/37)                               C. W. Bellamy and J. Pirrung, Judges; H. Jung, Registrar,
                                                                    made an order on 13 February 1998, the operative part of
                                                                    which is as follows:
               (Language of the case: French)
                                                                    1. the application is dismissed as manifestly inadmissible,
In Case T-221/96: Immacolata Manzo-Tafaro, official
working for the Commission of the European
                                                                    2. the applicant is ordered to bear its own costs.
Communities, residing at Brussels, represented by Lucas
Vogel, of the Brussels Bar, with an address for service in
Luxembourg at the Chambers of Christian Kremer, 8Ð10                (1) OJ C 7, 10.1.1998.
rue Mathias Hardt, against the Commission of the
European Communities (Agents: Julian Currall and
Christine Berardis-Kayser) Ð application for annulment of


title: Case T-541/15: Action brought on 17 September 2015 — Industrie Aeronautiche Reggiane v OHIM — Audi (NSU)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/51

         Action brought on 17 September 2015 — Industrie Aeronautiche Reggiane v OHIM — Audi (NSU)
   (Case T-541/15)
   (2015/C 381/62)
   Language in which the application was lodged: English

      Parties

      Applicant: Industrie Aeronautiche Reggiane Srl (Reggio Emilia, Italy) (represented by: M. Gurrado, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Audi AG (Ingolstadt, Germany)

      Details of the proceedings before OHIM

      Applicant: Applicant

      Trade mark at issue: Community word mark ‘NSU’ — Application for registration No 9 593 492

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 6 July 2015 in Case R 2132/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and, as a result, the OHIM shall proceed with the registration of the application for CTM;

               —

               order AUDI to bear its own costs and pay those of the Applicant, also for the proceedings before the OHIM Opposition Division and the Board of Appeal.

      Pleas in law

               —

               Audi failed to demonstrate genuine use of the earlier mark;

               —

               Existence of a difference between components and finished products;

               —

               Existence of a difference between bicycles and the goods indicated in the request of limitation dated 16 October 2014.


title: Judgment of the Court (Fifth Chamber) of 29 November 2001 in Case C-202/99: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Directive 78/687/EEC — Maintenance of a second system of training leading to entry to the profession of dentist — Maintenance of the possibility of dual registration in the register of doctors and in that of dentists for doctors mentioned in Article 19 of Directive 78/686/EEC)

text:
C 84/4                   EN                      Official Journal of the European Communities                                            6.4.2002
2.    The fact that, in concluding a collective agreement specific to       1.    Declares that, by providing for a second system of training
      one undertaking, a domestic employer can pay wages lower                    leading to entry to the profession of dentist, which does not
      than the minimum wage laid down in a collective agreement                   comply with Council Directive 78/687/EEC of 25 July 1978
      declared to be generally applicable, whilst an employer estab-              concerning the coordination of provisions laid down by law,
      lished in another Member State cannot do so, constitutes an                 regulation or administrative action in respect of the activities of
      unjustified restriction on the freedom to provide services.                 dental practitioners, the Italian Republic has failed to fulfil its
                                                                                obligations under that directive.
(1) OJ C 204 of 17.7.1999.                                                  2.    Dismisses the remainder of the action.
                                                                            3.    Orders the Italian Republic and the Commission of the
                                                                                European Communities to pay their own costs.
                                                                            (1) OJ C 226 of 7.8.1999.
                  JUDGMENT OF THE COURT
                            (Fifth Chamber)
                       of 29 November 2001
in Case C-202/99: Commission of the European Communi-                                        JUDGMENT OF THE COURT
                      ties v Italian Republic (1)
                                                                                (Fifth Chamber)
(Failure by a Member State to fulfil its obligations —
Directive 78/687/EEC — Maintenance of a second system of
training leading to entry to the profession of dentist —                                          of 29 November 2001
Maintenance of the possibility of dual registration in the
register of doctors and in that of dentists for doctors                     in Case C-221/99 (reference for a preliminary ruling from
      mentioned in Article 19 of Directive 78/686/EEC)                      the Giudice di Pace di Genova ): Giuseppe Conte v
                                                                                Stefania Rossi (1)
                             (2002/C 84/06)
                                                                            (Architects’ fees — Summary procedure for the recovery of
                     (Language of the case: Italian)                        debts — Opinion of the professional association — Articles 5
                                                                              and 85 of the EC Treaty (now Articles 10 EC and 81 EC))
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                     (2002/C 84/07)
                                                                                (Language of the case: Italian)
In Case C-202/99: Commission of the European Communities
(Agents: E. Traversa and B. Mongin) v Italian Republic (Agent:              (Provisional translation; the definitive translation will be published
U. Leanza, assisted by P. G. Ferri) — application for a                                        in the European Court Reports)
declaration that, by maintaining a second system of training
for entry into the dental profession, which is contrary to
Council Directive 78/687/EEC of 25 July 1978 concerning the
coordination of provisions laid down by law, regulation or                  In Case C-221/99: reference to the Court under Article 234
administrative action in respect of the activities of dental                EC from the Giudice di Pace di Genova (Magistrate’s Court,
practitioners (OJ 1978 L 233, p. 10), and by maintaining the                Genoa) (Italy) for a preliminary ruling in the proceedings
possibility for doctors who practise as dentists to be doubly               pending before that court between Giuseppe Conte and
registered in the registers of medical and dental practitioners,            Stefania Rossi — on the interpretation of Articles 5 and 85 of
the Italian Republic has failed to fulfil its obligations under             the EC Treaty (now Articles 10 EC and 81 EC) — the Court
that directive — the Court (Fifth Chamber), composed of:                    (Fifth Chamber), composed of: S. von Bahr, President of the
P. Jann, President of the Chamber, D.A.O. Edward (Rappor-                   Fourth Chamber, acting for the President of the Fifth Chamber,
teur), A. La Pergola, L. Sevón and C.W.A. Timmermans, Judges;              D.A.O. Edward, A. La Pergola, M. Wathelet (Rapporteur) and
P. Léger, Advocate General; L. Hewlett, Administrator, for the              C.W.A. Timmermans, Judges; P. Léger, Advocate General;
Registrar, has given a judgment on 29 November 2001, in                     H. von Holstein, Deputy Registrar, for the Registrar, has given
which it:                                                                   a judgment on 29 November 2001, in which it has ruled: