title: Case T-274/13: Judgment of the General Court of 4 December 2015 — Emadi v Council (Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Iran — Freezing of funds — Restrictions on the entry into and transit through European Union territory — Legal base — Obligation to state reasons — Right to be heard — Error of assessment — Ne bis in idem — Freedom of expression — Freedom of the media — Freedom to choose an occupation — Free movement — Right to property)

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/32

         Judgment of the General Court of 4 December 2015 — Emadi v Council
   (Case T-274/13) (1)

   ((Common foreign and security policy - Restrictive measures directed against certain persons and entities in view of the situation in Iran - Freezing of funds - Restrictions on the entry into and transit through European Union territory - Legal base - Obligation to state reasons - Right to be heard - Error of assessment - Ne bis in idem - Freedom of expression - Freedom of the media - Freedom to choose an occupation - Free movement - Right to property))
   (2016/C 027/36)
   Language of the case: German

      Parties

      Applicant: Hamid Reza Emadi (Tehran, Iran) (represented initially by: T. Walter, then by J.M. Viñals Camallonga, L. Barriola Urruticoechea and J.L. Iriarte Ángel, lawyers)

      Defendant: Council of the European Union (represented by: J.-P. Hix and Á. de Elera-San Miguel Hurtado, agents)

      Intervener in support of the defendant: Stiftung Organisation Justice for Iran (Amsterdam, the Netherlands) (represented by: initially, G. Pulles, then R. Marx, lawyers)

      Re:

   Application for the annulment in part, first, of Council Decision 2013/124/CSFP of 11 March 2013 amending Decision 2011/235/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Iran (OJ 2013 L 68, p. 57), second, of Council Implementing Regulation (EU) No 206/2013 of 11 March 2013 implementing Article 12(1) of Regulation (EU) No 359/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Iran (OJ 2013 L 68, p. 9), third, of Council Decision 2014/205/CFSP of 10 April 2014 amending Decision 2011/235/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Iran (OJ 2014 L 109, p. 25), fourth, Council Implementing Regulation (EU) No 371/2014 of 10 April 2014 implementing Article 12(1) of Regulation (EU) No 359/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Iran (OJ 2014 L 109, p. 9), in so far as those measures concern the applicant.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders Hamid Reza Emadi to pay his own costs and those incurred by the Council of the European Union;

               3.

               Orders Stiftung Organisation Justice for Iran to bear its own costs.

      (1)  OJ C 207, of 20.7.2013.


title: Case T-156/07: Action brought on 9 May 2007 — Spain v Commission

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/42

         Action brought on 9 May 2007 — Spain v Commission
   (Case T-156/07)
   (2007/C 140/69)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: F. Díez Moreno)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Notice of open competition EPSO/AD/94/07 published by the European Personnel Selection Office (EPSO) in OJEU 2007 C 45 A of 28 February 2007;

               —

               order the Commission to publish all notices of competitions to fill posts in the European Civil Service in the Official Journal in all languages;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The present action is brought against Notice of open competition EPSO/AD/94/07, published by the European Personnel Selection Office (EPSO) in OJEU 2007 C 45 A of 28 February 2007, in so far as that notice was published in only the English, French and German versions of the OJEU.
   The applicant contends that by acting in that manner the defendant has infringed Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community and Council Regulation No 259/68 of 29 February 1968 laying down the Staff Regulations of the European Civil Service. The defendant has also infringed the principles of equality and non-discrimination for European citizens, proportionality and legal certainty, recognised in the EC Treaty and in the consistent case-law of the Court of Justice.
   As regards, specifically, the principle of legal certainty, the applicant observes that the Staff Regulations of Officials provide, in Annex II, that notices of open competitions are to be published in the Official Journal of the European Communities. In fact, in accordance with Article 5 of Council Regulation No 1/58, the Official Journal is to be published in the 23 official languages. However, the notice in question was published in only three official languages.
   The applicant submits, last, that there has also been an interference with the exclusive competence of the Council, acting unanimously, to amend the rules on the languages to be used by the Community.


title: Case T-420/15: Judgment of the General Court of 14 July 2016 — Thun 1794 v EUIPO — Adekor (Decorative graphical symbols) (Community design — Proceedings for a declaration of invalidity — Registered Community design representing decorative graphical symbols — Earlier design — Ground for invalidity — Disclosure of earlier design — Lack of novelty — Articles 5, 7 and Article 25(1)(b) of Regulation (EC) No 6/2002)

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/32

         Judgment of the General Court of 14 July 2016 — Thun 1794 v EUIPO — Adekor (Decorative graphical symbols)
   (Case T-420/15) (1)

   ((Community design - Proceedings for a declaration of invalidity - Registered Community design representing decorative graphical symbols - Earlier design - Ground for invalidity - Disclosure of earlier design - Lack of novelty - Articles 5, 7 and Article 25(1)(b) of Regulation (EC) No 6/2002))
   (2016/C 305/44)
   Language of the case: Czech

      Parties

      Applicant: Thun 1794 a.s. (Nová Role, Czech Republic) (represented by: F. Steidl, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: D. Gája, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Adekor s.r.o. (Loket, Czech Republic) (represented by: V. Dohnalová, lawyer)

      Re:

   Action brought against the decision of the Third Board of Appeal of EUIPO of 29 April 2015 (Case R 1465/2014-3) relating to proceedings for a declaration of invalidity between Thun 1794 and Adekor.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Thun 1794 a.s. to pay the costs.

      (1)  OJ C 337, 12.10.2015.


title: Case T-601/13: Action brought on 12 November 2013 — Wilo v OHIM (Pioneering for You)

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/31

         Action brought on 12 November 2013 — Wilo v OHIM (Pioneering for You)
   (Case T-601/13)
   2014/C 24/56
   Language of the case: German

      Parties

      Applicant: Wilo SE (Dortmund, Germany) (represented by B. Schneiders, lawyer)

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

      Forms of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 September 2013 in Case R 555/2013-4;

               —

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘Pioneering for You’ for goods and services in Classes 7, 9, 11, 37 and 42 — Community trade mark application No 11 065 588

      Decision of the Examiner: rejection of the application

      Decision of the Board of Appeal: dismissal of the appeal

      Pleas in law: infringement of Article 7(1)(b) of Regulation (EC) No 207/2009.


title: Case C-513/03: Reference for a preliminary ruling by the Gerechthof Herzogenbusch by order of that Court of 5 November 2003 in the case of M.E.A. van Hilten-van der Heĳden against Inspecteur van de Belastingdienst/Particulieren/Ondernemingen Buitenland te Heerlen

text:
C 85/12               EN                        Official Journal of the European Union                                          3.4.2004
     case, namely the existence of a causal link between the            2.    Does Article 3(1) of the Successiewet constitute a pro-
     alleged conduct and the harm pleaded. As the Court of                    hibited means of arbitrary discrimination or a disguised
     First Instance observed, it is not disputed that there must              restriction on the free movement of capital within the
     be a direct link of cause and effect between the wrongful                meaning of Article 58(3) EC where applicable to a capital
     act of the institution concerned and the harm pleaded, a                 movement between a Member State and a non-member
     causal link in respect of which applicants bear the burden               country, having regard also to the Declaration on
     of proof. In addition, that causal link relates to the                   Article 73d of the Treaty establishing the European
     decisive cause of the harm. None the less, the Court of                  Community adopted on the occasion of the signature of
     First Instance confused decisive cause and exclusive cause.              the ‘Final Act and Declarations of the Intergovernmental
     It has never been claimed that the Commission’s conduct                  Conferences on the European Union’ of 7 February 1992.
     was the exclusive cause of the attack of 27 March 2002.
     On the other hand, it was amply demonstrated in the
     application that the Commission’s conduct was a decisive           (1) Law on Succession.
     cause. In attempting to show that the alleged conduct
     was not the exclusive cause of the harm pleaded the
     Court of First Instance committed a manifest error of law
     by which it deprived the appellants of a hearing which
     they could legitimately expect.
—    the Court of First Instance distorted the clear sense of the
     pleas put forward by the appellants in claiming, on the            Action brought on 19 December 2003 by the Commission
     one hand, that the appellants agreed that the attack had                   of the European Communities against Ireland
     not been financed by the funds in question and, on the
     other, that they had neither proved nor claimed that                                        (Case C-532/03)
     Palestinian education was exclusively dependent on the
     funds in question, merely stating that the European
     Community is the Palestinians’ largest provider of funds.                                    (2004/C 85/18)
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 19 December 2003
                                                                        by the Commission of the European Communities, represented
                                                                        by K. Wiedner, acting as agent, assisted by J. E. Flynn QC, with
                                                                        an address for service in Luxembourg.
Reference for a preliminary ruling by the Gerechthof                    The Applicant claims that the Court should:
Herzogenbusch by order of that Court of 5 November
2003 in the case of M.E.A. van Hilten-van der Heijden                   1.    declare that, in permitting emergency ambulance services
against Inspecteur van de Belastingdienst/Particulieren/                      to be provided by Dublin City Council without the
           Ondernemingen Buitenland te Heerlen                                Eastern Regional Health Authority undertaking any prior
                                                                              advertising, Ireland has failed to comply with its obli-
                                                                              gations under the Treaty; and
                        (Case C-513/03)
                                                                        2.    order Ireland to pay the Commission’s costs.
                         (2004/C 85/17)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the                  The Commission takes the view that, in the circumstances of
European Communities by order of the Gerechthof Herzogen-               the case, the maintaining of the arrangement for provision of
busch of 5 November 2003, received at the Court Registry on             ambulance services between Dublin City Council and the
8 December 2003, for a preliminary ruling in the case of                Eastern Regional Health Authority without undertaking any
M.E.A. van Hilten-van der Heijden against Inspecteur van                prior advertising is a breach of the free movement rules of the
de Belastingdienst/Particulieren/Ondernemingen Buitneland te            Treaty (notably Articles 43 and 49) and thereby of the general
Heerlen on the following questions:                                     principles of Community law (notably those of transparency
                                                                        and equality or non-discrimination) which are to be respected
                                                                        in situations to which Community law applies.
1.   Does Article 3(1) of the Netherlands Successiewet (1)
     constitute a permitted restriction within the meaning of
     Article 57(1) EC?


title: Case T-296/13: Action brought on 30 May 2013 — Adler Modemärkte v OHIM — Blufin (MARINE BLEU)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 226/21

         Action brought on 30 May 2013 — Adler Modemärkte v OHIM — Blufin (MARINE BLEU)
   (Case T-296/13)
   (2013/C 226/27)
   Language in which the application was lodged: German

      Parties

      Applicant: Adler Modemärkte AG (Haibach, Germany) (represented by: J. Plate and R. Kaase, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Blufin SpA (Carpi, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 April 2013 in Case R 386/2012-2 due to incompatibility with Article 8(1)(b) of Regulation No 40/94 on the Community trade mark;

               —

               Order OHIM to pay the costs including those incurred in the appeal proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the figurative mark including the word elements ‘MARINE BLEU’ for goods in Class 25 — Community trade mark application No 6 637 193

      Proprietor of the mark or sign cited in the opposition proceedings: Blufin SpA

      Mark or sign cited in opposition: the word mark ‘BLUMARINE’ for goods in Class 25

      Decision of the Opposition Division: the opposition was rejected

      Decision of the Board of Appeal: the appeal was upheld and the application was rejected

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 40/94


title: Judgment of the Court (First Chamber) of 14 November 2000 in Case C-142/99 (reference for a preliminary ruling from the Tribunal de Première Instance de Tournai): Floridienne SA, Berginvest SA v Belgian State (Sixth VAT Directive — Deduction of input tax — Undertaking subject to tax on only one part of its operations — Deductible proportion — Calculation — Holding company collecting share dividends and loan interest from its subsidiaries — Involvement in management of subsidiaries)

text:
27.1.2001               EN                      Official Journal of the European Communities                                             C 28/7
D. Waelbroeck) APPEAL against the judgment of the Court of                 1.    Orders Hitesys SpA to repay to the Commission of the European
First Instance of the European Communities (Fourth Chamber)                      Communities the sum of EUR 132 500, together with default
of 25 March 1999 in Case T-76/98 Hamptaux v Commission                           interest calculated in accordance with the second subparagraph
[1999] ECR-SC I-A-59 and II-303, seeking to have that                            of Article 8(4) of the general conditions forming Annex II to
judgment set aside, the other party to the proceedings being                     Contract JOU2-CT93-0417 from 8 January 1994 until full
Claudine Hamptaux an official of the Commission of the                           payment of the debt;
European Communities, residing in Brussels (Belgium), rep-
resented by L. Vogel, of the Brussels Bar, with an address for             2.    Orders Hitesys SpA to pay the costs.
service in Luxembourg at the Chambers of C. Kremer, 6 Rue
Heinrich Heine — the Court (Fifth Chamber), composed of:
A. La Pergola, President of the Chamber, M. Wathelet (Rappor-              (1) OJ C 6 of 8.1.2000.
teur), D.A.O. Edward, P. Jann and L. Sevón, Judges; P. Léger,
Advocate General; R. Grass, Registrar, has given a judgment
on 9 November 2000, in which it:
1.    Dismisses the appeal;
2.    Orders the Commission of the European Communities to pay
      the costs.
                                                                                JUDGMENT OF THE COURT
(1) OJ C 246 of 28.8.1999.
                                                                                (First Chamber)
                                                                                of 14 November 2000
                                                                           in Case C-142/99 (reference for a preliminary ruling
                 JUDGMENT OF THE COURT                                     from the Tribunal de Première Instance de Tournai):
                                                                                Floridienne SA, Berginvest SA v Belgian State (1)
                         (Third Chamber)
                                                                           (Sixth VAT Directive — Deduction of input tax — Undertak-
                       of 9 November 2000                                  ing subject to tax on only one part of its operations —
                                                                           Deductible proportion — Calculation — Holding company
in Case C-356/99: Commission of the European Communi-                      collecting share dividends and loan interest from its subsidi-
                       ties v Hitesys SpA (1)                                  aries — Involvement in management of subsidiaries)
(Arbitration clause — Non-performance of contract —                                                    (2001/C 28/13)
Recovery of moneys advanced — Procedure in default of
                              defence)
                                                                                (Language of the case: French)
                          (2001/C 28/12)
                    (Language of the case: Italian)                        (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published     In Case C-142/99: reference to the Court under Article 177 of
                   in the European Court Reports)                          the EC Treaty (now Article 234 EC) from the Tribunal de
                                                                           Première Instance (Court of First Instance), Tournai, Belgium,
In Case C-356/99: Commission of the European Communities                   for a preliminary ruling in the proceedings pending before that
(Agents: E. de March and A. Dal Ferro) v Hitesys SpA,                      court between Floridienne SA, Berginvest SA and Belgian State
established in Aprilia (Italy) — application by the Commission             — on the interpretation of Article 19 of the Sixth Council
of the European Communities under Article 238 EC to recover                Directive 77/388/EEC of 17 May 1977 on the harmonisation
moneys advanced in relation to Contract JOU2-CT93-0417,                    of the laws of the Member States relating to turnover taxes —
which was terminated by the applicant on the ground of the                 Common system of value added tax: uniform basis of assess-
defendant’s failure to perform its contractual obligations                 ment (OJ 1977 L 145, p. 1) — the Court (First Chamber),
— the Court (Third Chamber), composed of: C. Gulmann                       composed of: M. Wathelet, President of the Chamber, P. Jann
(Rapporteur), President of the Chamber, J.-P. Puissochet and               and L. Sevón (Rapporteur), Judges; N. Fennelly, Advocate
F. Macken, Judges; A. Saggio, Advocate General; R. Grass,                  General; H.A. Rühl, Principal Administrator, for the Registrar,
Registrar, has given a judgment on 9 November 2000, in                     has given a judgment on 14 November 2000, in which it has
which it:                                                                  ruled:
 ---pagebreak--- C 28/8                   EN                       Official Journal of the European Communities                                          27.1.2001
Article 19 of the Sixth Council Directive 77/388/EEC of 17 May               —     by fixing the amounts of the fees to be charged for health
1977 on the harmonisation of the laws of the Member States                         checks on the slaughter of animals and of those connected
relating to turnover taxes Common system of value added tax:                       with cutting operations of fresh meat at 50 % of the
uniform basis of assessment is to be interpreted as meaning that the               standard Community rates, without giving reasons for
following must be excluded from the denominator of the fraction used               that reduction in accordance with the requirements of
to calculate the deductible proportions:                                           Chapter I of the annex to Directive 93/118, and
—     share dividends paid by its subsidiaries to a holding company
      which is a taxable person in respect of other activities and which     —     by exempting poultrymeat from the fee for the cutting of
      supplies management services to those subsidiaries, and                      fresh meat,
—     interest paid by the subsidiaries to the holding company on
      loans it has made to them, where the loan transactions do not          the Hellenic Republic has failed to fulfil its obligations under
      constitute, for the purposes of Article 4(2) of the Sixth Directive,   the EC Treaty and the said directive, in particular points 1, 2
      an economic activity of the holding company.                           and 5 of Chapter I of the annex thereto — the Court
                                                                             (Sixth Chamber), composed of: C. Gulmann, President of the
                                                                             Chamber, V. Skouris, J.-P. Puissochet, R. Schintgen (Rappor-
                                                                             teur) and F. Macken, Judges; J. Mischo, Advocate General;
(1) OJ C 204 of 17.7.1999.                                                   R. Grass, Registrar, has given a judgment on 16 November
                                                                             2000, in which it:
                                                                             1.    Declares that,
                                                                                —     by failing to mention, among the meat to which the fees
                                                                                fixed by Council Directive 93/118/EEC of 22 December
                  JUDGMENT OF THE COURT                                                  1993 amending Directive 85/73/EEC on the financing
                                                                                of health inspections and controls of fresh meat and
                           (Sixth Chamber)                                               poultrymeat apply, the category corresponding to soli-
                                                                                peds/equidae, and
                        of 16 November 2000
                                                                                —     by not explicitly mentioning poultrymeat for the purposes
in Case C-214/98: Commission of the European Communi-                                    of the application of the fee for the cutting of fresh meat
                     ties v Hellenic Republic (1)                                        fixed by that directive,
(Failure of a Member State to fulfil its obligations — Failure
   to transpose certain provisions of Directive 93/118/EC)                         the Hellenic Republic has failed to fulfil its obligations under
                                                                                the provisions of the first and third subparagraphs of Article
                                                                                3(1) of Directive 93/118 and points (b) and (e) of the first
                            (2001/C 28/14)                                         indent of point 1 and point (a) of the first indent of point 2 of
                                                                                the annex thereto, taken together;
                      (Language of the case: Greek)
                                                                             2.    Dismisses the remainder of the application;
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           3.    Orders the Commission of the European Communities and the
                                                                                Hellenic Republic to bear their own costs.
In Case C-214/98: Commission of the European Communities
(Agents: M. Condou-Durande) v Hellenic Republic (Agents: I.K.
Chalkias and N. Dafniou) — application for a declaration that,
                                                                             (1) OJ C 258 of 15.8.1998.
—     by failing to mention, among the meat to which the fees
      fixed by Council Directive 93/118/EEC of 22 December
      1993 amending Directive 85/73/EEC on the financing
      of health inspections and controls of fresh meat and
      poultrymeat (OJ 1993 L 340 p. 15) apply, the category
      corresponding to solipeds/equidae,


title: Case T-20/05: Judgment of the General Court of 19 May 2010 — Outokumpu and Luvata v Commission (Competition — Agreements, decisions and concerted practices — Copper plumbing tube industry — Decision finding an infringement of Article 81 EC — Fines — Size of the relevant market — Aggravating circumstance — Repeat infringement)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/30

         Judgment of the General Court of 19 May 2010 — Outokumpu and Luvata v Commission
   (Case T-20/05) (1)

   (Competition - Agreements, decisions and concerted practices - Copper plumbing tube industry - Decision finding an infringement of Article 81 EC - Fines - Size of the relevant market - Aggravating circumstance - Repeat infringement)
   2010/C 179/50
   Language of the case: English

      Parties

      Applicants: Outokumpu Oyj (Espoo, Finland); and Luvata Oy, formerly Outokumpu Copper Products Oy (Espoo) (represented by: J. Ratliff, Barrister, F. Distefano and J. Luostarinen, lawyers)

      Defendant: European Commission (represented by: É. Gippini Fournier and S. Noë, Agents)

      Re:

   Application for cancellation or reduction of the fine imposed on the applicants under Article 2(j) of Commission Decision C(2004) 2826 of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 — Copper plumbing tubes).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Outokumpu Oyj and Luvata Oy to pay the costs.

      (1)  OJ C 82, 2.4.2005.


title: Case F-15/08: Action brought on 8 February 2008 — Wiame v Commission

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/51

         Action brought on 8 February 2008 — Wiame v Commission
   (Case F-15/08)
   (2008/C 92/105)
   Language of the case: French
   Parties

      Applicant: Valérie Wiame (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N Louis and E. Marchal, lawyers)

      Defendant: Commission of the European Communities
   The subject-matter and description of the proceedings
   Annulment of the decision of the EPSO/AST/7/05 selection board to award to the applicant a mark which was insufficient for entry on the reserve list.
   Form of order sought

               —

               Annul the decision of the EPSO/AST/7/05 selection board awarding to the applicant a mark which was insufficient for entry on the list of successful candidates;

               —

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


title: Case T-39/17: Action brought on 20 January 2017 — Chambre de commerce et d’industrie métropolitaine Bretagne ouest (port de Brest) v Commission

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/54

         Action brought on 20 January 2017 — Chambre de commerce et d’industrie métropolitaine Bretagne ouest (port de Brest) v Commission
   (Case T-39/17)
   (2017/C 104/75)
   Language of the case: French

      Parties

      Applicant: Chambre de commerce et d’industrie métropolitaine Bretagne ouest (port de Brest) (Brest, France) (represented by: J. Vanden Eynde, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the application admissible and well-founded and, consequently:

               —

               annul the European Commission decision of 22 November 2016 [C (2016) 7755 final] in order to grant the applicant’s initial request, that is to say: ‘First of all, the signatories of the present request wish to receive, in accordance with Regulation No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, the complete copy of the questionnaire and the answers to which the Commission refers in its opinion 2016/C 302/03 published in the Official Journal of the European Union on 19 August 2016.’

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law.

               1.

               First plea in law, alleging an overriding public interest in disclosure of the acquired information. The Commission was thus wrong to consider that the applicant had failed to show such an overriding public interest, although it is demonstrated by the European Treaties, namely Articles 10(3) and 11(2) of the Treaty on European Union (‘TEU’), but also Articles 15(1) and 298(1) and (2) of the Treaty on the Functioning of the European Union (‘TFEU’), as well as Article 42 of the Charter of Fundamental Rights of the European Union (‘Charter’).

               2.

               Second plea in law, alleging the primacy of the European Treaties and the Charter over Regulation No 1049/2001. The applicant considers that that regulation, which introduces lawful restrictions on the principles of transparency, participation and openness, must be interpreted and applied very restrictively taking account of the chronology of the adoption of the legal texts and of the Charter. Therefore, it considers that the defendant, first, should not have applied the general presumption that there is an undermining of the protection of the objectives of the investigation activities in so far as, in the present case, at issue is a cross-sectional enquiry and, secondly, it should have stated that the Member States had not requested that protection.

               3.

               Third plea in law, alleging infringement of Articles 41(2) and 42 of the Charter, which guarantees access to the documents affecting one of the interested parties.

               4.

               Fourth plea in law, alleging infringement of the European Convention on Human Rights, which requires equality of access to documents in the context of legal proceedings, even if administrative, in order to ensure the rights of the defence of the interested parties, in particular Articles 6 and 13 of the Convention.


title: Case C-125/06 P: Appeal brought on  1 March 2006  by Commission of the European Communities against the judgment delivered on  15 December 2005  in Case T-33/01 Infront WM AG (formerly Kirchmedia WM AG) v Commission of the EC

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/7

         Appeal brought on 1 March 2006 by Commission of the European Communities against the judgment delivered on 15 December 2005 in Case T-33/01 Infront WM AG (formerly Kirchmedia WM AG) v Commission of the EC
   (Case C-125/06 P)
   (2006/C 108/12)
   Language of the case: English
   Parties

      Appellant: Commission of the European Communities (represented by: K. Banks and M. Huttunen, Agents)

      Other parties to the proceedings: French Republic, United Kingdom of Great Britain and Northern Ireland, European Parliament and Council of the European Union.
   The appellant claim that the Court should:

               —

               set aside the judgment of the CFI of 15 December 2005 in case T-33/01, Infront WM AG v. Commission of the European Communities;

               —

               give final judgment in the matter by declaring that the Applicant in Case T-33/01 was inadmissible;

               —

               order the Applicant in Case T-33/01 to pay the costs of the Commission arising from that case and the present appeal.

         Pleas in law and main arguments
   This appeal concerns the issues of direct and individual concern within the meaning of Article 230, fourth paragraph, EC. The Commission considers that, in the judgment under appeal, the Court of First Instance (hereinafter ‘the CFI’) has erred in law in its interpretation and application of those concepts. It has thereby upset the institutional balance which is reflected in the rules governing access to the Community courts in order to challenge the validity of a Community act. The CFI has treated as directly and individually concerned by a Commission decision an enterprise which could, at the very most, be considered to have suffered indirect economic damage as a result of the decision in question, and which has not even shown the likelihood of such damage. It has accepted as constituting individual concern elements common to many other operators finding themselves in situations comparable to that of the Applicant.


title: Case F-141/06: Action brought on 11 December 2006 — Hartwig v Commission and Parliament

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/40

         Action brought on 11 December 2006 — Hartwig v Commission and Parliament
   (Case F-141/06)
   (2007/C 20/61)
   Language of the case: French
   Parties

      Applicant: Marc Hartwig (Brussels, Belgium) (represented by: T. Bontinck, lawyer)

      Defendant: Commission of the European Communities and European Parliament
   Form of order sought

               —

               annul the individual decisions of the Commission of the European Communities and of the European Parliament of 12 April 2006 and of 27 March 2006 respectively, concerning a transfer from the status of a member of temporary staff to the status of official;

               —

               Order the defendants to pay the costs.

         Pleas in law and main arguments
   The applicant, after working for a number of years at the Commission as a member of temporary staff in Grade B*7, passed open competition PE/34/B of the European Parliament (Grade B5/B4). Subsequently, he was appointed as a probationary official in Grade B*3 by the latter institution, which immediately transferred him to the Commission, where he was classified in that same grade.
   In support of his action, the applicant pleads infringement of Articles 31 and 62 of the Staff Regulations and Articles 5 and 2 of Annex XIII thereto.
   The applicant pleads, moreover, breach of the principle of the protection of legitimate expectations and of the principle of maintenance of rights acquired.


title: Case C-191/16: Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 5 April 2016 — Romano Pisciotti v Bundesrepublik Deutschland

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/29

         Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 5 April 2016 — Romano Pisciotti v Bundesrepublik Deutschland
   (Case C-191/16)
   (2016/C 270/33)
   Language of the case: German

      Referring court

   Landgericht Berlin

      Parties to the main proceedings

      Applicant: Romano Pisciotti

      Defendant: Bundesrepublik Deutschland

      Questions referred

               1.

                           (a)

                           Is extradition between a Member State and a third country a matter which, irrespective of the facts of the individual case, never comes within the material scope of the Treaties, with the result that the EU-law prohibition of discrimination under the first paragraph of Article 18 TFEU is not to be taken into account in the application of a (literally interpreted) rule of constitutional law (in this case, the first sentence of Article 16(2) of the German Basic Law (Grundgesetz)), which prohibits extradition only of that Member State’s own nationals to third countries?

                           (b)

                           If that question is answered in the affirmative: is the first question to be answered differently if the matter of extradition between a Member State and the United States of America is based on the Agreement on extradition between the European Union and the United States of America?

               2.

               In so far as the applicability of the Treaties with regard to extradition between Member States and the United States of America is not excluded from the outset:
               Is the first paragraph of Article 18 TFEU and the case-law of the Court of Justice relating to that provision to be interpreted as meaning that a Member State unjustifiably breaches the prohibition of discrimination under the first paragraph of Article 18 TFEU in the case where, on the basis of a rule of constitutional law (the first sentence of Article 16(2) of the Grundgesetz), it treats, in the matter of requests for extradition received from third countries, its own nationals and nationals of other EU Member States differently inasmuch as it extradites only the latter?

               3.

               Should such cases be found to fall foul of the general prohibition of discrimination laid down in the first paragraph of Article 18 TFEU:
               Is the case-law of the Court of Justice to be interpreted as meaning that, in a case such as the present — in which, for extradition to be authorised by the competent authority, there must mandatorily be a prior judicial review of its legality, the result of which, however, binds the authority only if that extradition is declared to be impermissible — a mere breach of the prohibition of discrimination under the first paragraph of Article 18 TFEU may itself constitute a serious breach, or must the breach be manifest?

               4.

               If a manifest breach is not required:
               Is the case-law of the Court of Justice to be interpreted as meaning that there is a priori no sufficiently serious breach in a case such as that in the main proceedings, in which, in the absence of case-law of the Court of Justice with regard to the particular type of factual situation at issue (namely, the objective applicability of the general prohibition of discrimination under the first paragraph of Article 18 TFEU to matters relating to extradition between Member States and the United States of America), the highest national executive authority can, in support of its decision, point to the fact that its decision is in line with previous decisions of national courts in the same matter?


title: Case C-613/14: Reference for a preliminary ruling from Supreme Court (Ireland) made on 30 December 2014 — James Elliott Construction Limited v Irish Asphalt Limited

text:
               23.3.2015

               EN

               Official Journal of the European Union

               C 96/5

         Reference for a preliminary ruling from Supreme Court (Ireland) made on 30 December 2014 — James Elliott Construction Limited v Irish Asphalt Limited
   (Case C-613/14)
   (2015/C 096/07)
   Language of the case: English

      Referring court

   Supreme Court, Ireland

      Parties to the main proceedings

      Applicant: James Elliott Construction Limited

      Defendant: Irish Asphalt Limited

      Questions referred

               1

                           (a)

                           Where the terms of a private contract oblige a party to supply a product produced in accordance with a national standard, itself adopted in implementation of a European standard made pursuant to a mandate issued by the European Commission under the provisions of the Construction Products Directive (89/106/EEC) (1), is the interpretation of the said Standard a matter upon which a preliminary ruling may be sought from the Court of Justice of the European Union pursuant to Article 267 TFEU?

                           (b)

                           If the answer to question 1(a) is yes, does EN13242:2002 require that compliance, or breach of the said Standard, be established only by evidence of testing in accordance with the (unmandated) standards adopted by CEN (Le Comité Européen de Normalisation) and referred to in EN13242:2002, and where such tests are carried out at the time of production and/or supply; or may breach of the Standard (and accordingly breach of contract), be established by evidence of tests conducted later, if the results of such tests are logically probative of breach of the Standard?

               2

               When hearing a private-law claim for breach of contract in respect of a product manufactured pursuant to a European standard issued pursuant to a mandate from the European Commission under the Construction Products Directive, is a national court obliged to disapply the provisions of national law implying terms as to merchantability and fitness for purpose or quality, on the grounds that either the statutory terms, or their application, create standards or impose technical specifications or requirements which have not been notified in accordance with the provisions of the Technical Standards Directive (98/34/EC) (2)?

               3

               Is a national court hearing a claim for breach of a private contract alleged to arise from a breach of a term as to merchantability or fitness for use (implied by statute in a contract between the parties and not modified or disapplied by them) in respect of a product produced in accordance with EN13242:2002, obliged to presume that the product is of merchantable quality and fit for its purpose, and if so, may such a presumption only be rebutted by proof of non-compliance with EN13242:2002 by tests carried out in accordance with the tests and protocols referred to in EN13242:2002 and carried out at the time of supply of the product?

               4

               If the answers to questions 1(a) and 3 are both yes, is a limit for total sulphur content of aggregates prescribed by, or under, EN13242:2002 so that compliance with such a limit was required, inter alia, to give rise to any presumption of merchantability or fitness for use?

               5

               If the answers to 1(a) and 3 are both yes, is proof that the product bore the ‘CE’ marking necessary in order to rely on the presumption created by Annex ZA to EN13242:2002 and/or Article 4 of the Construction Products Directive (89/106/EEC)?

      (1)  Council Directive (89/106/EEC) of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, OJ L 40, p. 12.

      (2)  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ L 204, p. 37.


title: Case T-489/10: Judgment of the General Court of 16 September 2013 — Islamic Republic of Iran Shipping Lines and Others v Council (Common foreign and security policy — Restrictive measures against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Obligation to state reasons — Error of assessment)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/30

         Judgment of the General Court of 16 September 2013 — Islamic Republic of Iran Shipping Lines and Others v Council
   (Case T-489/10) (1)

   (Common foreign and security policy - Restrictive measures against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Obligation to state reasons - Error of assessment)
   2013/C 325/51
   Language of the case: English

      Parties

      Applicants: Islamic Republic of Iran Shipping Lines (Tehran (Iran)), and the 17 other applicants whose names appear in the annex to the judgment (represented by: F. Randolph QC, M. Lester, Barrister, and M. Taher, Solicitor)

      Defendant: Council of the European Union (represented by: M. Bishop and R. Liudvinaviciute-Cordeiro, Agents)

      Interveners in support of the defendant: European Commission (represented by: M. Konstantinidis and T. Scharf, Agents) and French Republic (represented by: G. de Bergues and É. Ranaivoson, Agents)

      Re:

   Application for annulment in part of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), of Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25), of Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413 (OJ 2010 L 281, p. 81), of Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), and of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1)

      Operative part of the judgment

   The Court:

               1.

               Annuls the following measures, in so far as they concern Islamic Republic of Iran Shipping Lines and the 17 other applicants whose names appear in the annex:

                           —

                           Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP;

                           —

                           the annex to Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran;

                           —

                           the annex to Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413;

                           —

                           Annex VIII to Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007;

                           —

                           Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010;

               2.

               Orders the effects of Decision 2010/413, as amended by Decision 2010/644, to be maintained as regards Islamic Republic of Iran Shipping Lines and the 17 other applicants whose names appear in the annex until the annulment of Regulation No 267/2012 takes effect;

               3.

               Orders the Council of the European Union to bear its own costs and to pay those incurred by Islamic Republic of Iran Shipping Lines and the 17 other applicants whose names appear in the annex;

               4.

               Orders the European Commission and the French Republic to bear their own costs.

      (1)  OJ 2011 C 30, 29.1.2011.


title: Joined Cases T-589/14 and T-772/14: Judgment of the General Court of 25 February 2016 — Musso v Parliament (Emoluments of Members of the Parliament — Old-age pension — Obligation for French Members to claim their pension rights from the national schemes — Rule against overlapping — Implementing measures for the Statute for Members — Decision adopted at the conclusion of the complaint procedure — Debit note — Decision to suspend payment of the pension — Adversarial principle — Reasonable period — Obligation to state reasons)

text:
               4.4.2016

               EN

               Official Journal of the European Union

               C 118/28

         Judgment of the General Court of 25 February 2016 — Musso v Parliament

   (Joined Cases T-589/14 and T-772/14) (1)

   ((Emoluments of Members of the Parliament - Old-age pension - Obligation for French Members to claim their pension rights from the national schemes - Rule against overlapping - Implementing measures for the Statute for Members - Decision adopted at the conclusion of the complaint procedure - Debit note - Decision to suspend payment of the pension - Adversarial principle - Reasonable period - Obligation to state reasons))
   (2016/C 118/31)
   Language of the case: French

      Parties

      Applicant: François Musso (Ajaccio, France) (represented by: A. Gross and L. Stachnik, lawyers)

      Defendant: European Parliament (represented by: G. Corstens and S. Seyr, acting as Agents)

      Re:

   First, application for annulment of the decision of the Bureau of the Parliament of 26 June 2014 confirming the decision of the Secretary-General of the Parliament of 17 October 2011 which determined the monthly amount of pension rights, taking into account the sums received from two French pension schemes, and by which recovery of EUR 127 065,19 was determined and, second, application for annulment of the decision of the Parliament of 22 September 2014.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Mr François Musso to bear his own costs and to pay those of the European Parliament.

      (1)  OJ C 351 of 6.10.2014.


title: Case T-350/03: Order of the Court of First Instance of 18 September 2006 — Wirtschaftskammer Kärnten and best connect Ampere Strompool v Commission (Action for annulment — Competition — Decision declaring a concentration to be compatible with the common market — Legal persons — Acts of individual concern to them — Inadmissibility)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/47

         Order of the Court of First Instance of 18 September 2006 — Wirtschaftskammer Kärnten and best connect Ampere Strompool v Commission
   (Case T-350/03) (1)

   (Action for annulment - Competition - Decision declaring a concentration to be compatible with the common market - Legal persons - Acts of individual concern to them - Inadmissibility)
   (2006/C 294/100)
   Language of the case: German
   Parties

      Applicants: Wirtschaftskammer Kärnten and best connect Ampere Strompool GmbH (Klagenfurt, Austria) (represented by: M. Angerer, lawyer)

      Defendant: Commission of the European Communities (represented by: initially, A. Bouquet, S. Rating and K. Mojzesowicz, and subsequently, A. Bouquet and K. Mojzesowicz)

      Intervener in support of the applicants: Ampere AG (Berlin, Germany) (represented by: C. von Hammerstein and C.-S. Schweer, lawyers)

      Interveners in support of the defendant: Österreichische Elektrizitätswirtschafts-AG (Vienna, Austria); EVN AG (Maria Enzersdorf, Austria); Wien Energie GmbH (Vienna); Energie AG Oberösterreich (Linz, Austria); Burgenländische Elektrizitätswirtschafts-AG (Eisenstadt, Austria); and Linz AG für Energie, Telekommunikation, Verkehr und Kommunale Dienste (Linz) (represented by: S. Polster and H. Wollmann, lawyers)
   Re:
   Application for annulment of Commission Decision 2004/271/EC of 11 June 2003 declaring a concentration to be compatible with the common market and the EEA Agreement (Case COMP/M.2947 — Verbund/EnergieAllianz) (OJ 2004 L 92, p. 91)
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               The applicants are ordered to bear their own costs and jointly and severally the costs incurred by the Commission and by the interveners Österreichische Elektrizitätswirtschafts-AG, EVN AG, Wien Energie GmbH, Energie AG Oberösterreich, Burgenländische Elektrizitätswirtschafts-AG and Linz AG für Energie, Telekommunikation, Verkehr und Kommunale Dienste.

               3.

               The intervener Ampere AG is ordered to bear its own costs.

      (1)  OJ C 7, 10.01.2004.


title: Joined Cases T-322/14 and T-325/14: Judgment of the General Court of 12 May 2016 — mobile.international v EUIPO — Rezon (mobile.de) (EU trade mark — Invalidity proceedings — EU word and figurative trade marks mobile.de — Earlier national figurative mark mobile — Genuine use of the earlier mark — Article 15(1), Article 57(2) and Article 76(2) of Regulation (EC) No 207/2009 — Rule 40(6) of Regulation (EC) No 2868/95)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/9

         Judgment of the General Court of 12 May 2016 — mobile.international v EUIPO — Rezon (mobile.de)
   (Joined Cases T-322/14 and T-325/14) (1)

   ((EU trade mark - Invalidity proceedings - EU word and figurative trade marks mobile.de - Earlier national figurative mark mobile - Genuine use of the earlier mark - Article 15(1), Article 57(2) and Article 76(2) of Regulation (EC) No 207/2009 - Rule 40(6) of Regulation (EC) No 2868/95))
   (2016/C 232/10)
   Language of the case: German

      Parties

      Applicant: mobile.international GmbH (Kleinmachnow, Germany) (represented by: T. Lührig, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: M. Fischer, Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Rezon OOD (Sofia, Bulgaria) (represented by: P. Kanchev and T. Ignatova, lawyers)

      Re:

   Two actions brought against the decisions of the First Board of Appeal of EUIPO of 9 January (Case R 922/2013-1) and 13 February 2014 (Case R 951/2013-1) relating to two cancellation proceedings between mobile.international GmbH and Rezon OOD.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders mobile.international GmbH to pay the costs.

      (1)  OJ C 235, 21.7.2014.


title: Judgment of the Court (Second Chamber) of 1 July 2004 in Case C-295/02 (reference for a preliminary ruling from the Niedersächsisches Oberverwaltungsgericht): Gisela Gerken v Amt für Agrarstruktur Verden (Common agricultural policy — Integrated administration and control system for certain Community aid schemes — Regulations (EEC) No 3887/92 and (EC) No 2419/2001 — Applications for ‘livestock’ aid — Irregularities — Reduction in the amount of aid — Article 2(2) of Regulation (EC, Euratom) No 2988/95 — Retroactive application of a less stringent provision)

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/3

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 1 July 2004
   in Case C-295/02 (reference for a preliminary ruling from the Niedersächsisches Oberverwaltungsgericht): Gisela Gerken v Amt für Agrarstruktur Verden (1)

   (Common agricultural policy - Integrated administration and control system for certain Community aid schemes - Regulations (EEC) No 3887/92 and (EC) No 2419/2001 - Applications for ‘livestock’ aid - Irregularities - Reduction in the amount of aid - Article 2(2) of Regulation (EC, Euratom) No 2988/95 - Retroactive application of a less stringent provision)
   (2004/C 217/05)
   Language of the case: German
   In Case C-295/02: Reference to the Court under Article 234 EC from the Niedersächsisches Oberverwaltungsgericht (Germany) for a preliminary ruling in the proceedings pending before that court between Gisela Gerken and Amt für Agrarstruktur Verden — on the interpretation of Article 10(2)(a) of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36), Articles 44, 53 and 54 of Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 1992 L 327, p. 11), and Article 2(2) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the financial interests of the European Communities (OJ 1995 L 312, p. 1) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, R. Schintgen, F. Macken (Rapporteur) and N. Colneric, Judges; P. Léger, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 1 July 2004, in which it has ruled:
   Article 2(2) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the financial interests of the European Communities is to be interpreted as meaning that where, in an application for ‘livestock’ aid covered ratione temporis by Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes, there is an irregularity giving rise to a penalty under Article 10(2)(a) of that regulation, the competent authorities must apply retroactively the provisions of Article 44(1) of Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92, on the ground that those provisions are less severe as regards the conduct in question.

      (1)  OJ C 261 of 26.10.2002.


title: Case C-160/16: Action brought on 18 March 2016 — European Commission v Hellenic Republic

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/3

         Action brought on 18 March 2016 — European Commission v Hellenic Republic
   (Case C-160/16)
   (2016/C 251/04)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: G. Ζavvos and K. Talabér-Ritz, acting as Agents)

      Defendant: Hellenic Republic

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that, since the Hellenic Republic has failed to submit a report on cost-optimal levels, as is laid down in Article 5(2) of Directive 2010/31/ΕU (1) of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings, as supplemented by Commission Delegated Regulation (EU) No 244/2012 (2) of 16 January 2012 establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements, the Hellenic Republic has failed to fulfil its obligations under those provisions;

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

               1.

               On 18 March 2016 the European Commission brought an action against the Hellenic Republic which seeks a declaration from the Court of Justice that the Hellenic Republic, by failing to submit a report on cost-optimal levels, as is laid down in Article 5(2) of Directive 2010/31/ΕU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings, as supplemented by Commission Delegated Regulation (EU) No 244/2012 of 16 January 2012 establishing a comparative methodology framework for calculating cost-optimal levels of minimum energy performance requirements for buildings and building elements, has failed to fulfil its obligations under those provisions.

               2.

               By it action the Commission submits that, with respect to its abovementioned claims, the Greek authorities have not yet communicated the final report on cost-optimal levels of minimum energy performance requirements for buildings and building elements, using the comparative methodology framework established by Commission Delegated Regulation (EU) No 244/2012 and that consequently there is an infringement of Article 5(2) of Directive 2010/31/ΕU.

      (1)  OJ 2010 L 153, p. 13.

      (2)  OJ 2012 L 81, p. 18.


title: Case T-342/12: Judgment of the General Court of 8 October 2014  — Fuchs v OHIM — Les Complices ( Star within a circle ) (Community trade mark — Opposition proceedings — Application for a Community figurative mark representing a star within a circle — Earlier Community and national figurative marks representing a star within a circle — Relative ground for refusal — Likelihood of confusion — Distinctive character of the earlier mark — Article 8(1)(b) of Regulation No 207/2009 — Revocation of the earlier Community mark — Continued interest in bringing proceedings — Failure to find that there was no need to adjudicate in part)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/32

         Judgment of the General Court of 8 October 2014 — Fuchs v OHIM — Les Complices (Star within a circle)
   (Case T-342/12) (1)

   ((Community trade mark - Opposition proceedings - Application for a Community figurative mark representing a star within a circle - Earlier Community and national figurative marks representing a star within a circle - Relative ground for refusal - Likelihood of confusion - Distinctive character of the earlier mark - Article 8(1)(b) of Regulation No 207/2009 - Revocation of the earlier Community mark - Continued interest in bringing proceedings - Failure to find that there was no need to adjudicate in part))
   2014/C 421/43
   Language of the case: English

      Parties

      Applicant: Max Fuchs (Freyung, Germany) (represented by: C. Onken, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Les Complices SA (Montreuil-sous-Bois, France)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 8 May 2012 (Case R 2040/2011-5), relating to opposition proceedings between Les Complices SA and Max Fuchs.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Max Fuchs to pay the costs.

      (1)  OJ C 295, 29.9.2012.


title: Case T-278/03: Action brought on 8 August 2003 by Van Mannekus & Co. B.V. against the Council of the European Union

text:
1.11.2003             EN                          Official Journal of the European Union                                           C 264/31
The applicant claims that the Court should:                               Action brought on 8 August 2003 by Van Mannekus &
                                                                              Co. B.V. against the Council of the European Union
—     Annul or vary Commission Decision E(2003)738 Final                                           (Case T-278/03)
      of 25 March 2003 concerning recovery of amounts
      unduly paid to Dionisia Vlakhaki, formerly an auxiliary
                                                                                (2003/C 264/54)
      agent, so as to remove from it Article 1(b) thereof and
      not to require her to pay to the defendant any of the
      amounts mentioned therein in addition to the principal                                 (Language of the case: German)
      sum claimed by the defendant and, specifically, not to
      require payment of interest on late payment together
      with additional amounts calculated up to 23 July 2003
      in the amount of two thousand eight hundred and forty-              An action against the Council of the European Union was
      seven euros and 32 cents (EUR 2 847,32) which is broken             brought before the Court of First Instance of the European
      down in accordance with Article 1 of the contested                  Communities on 8 August 2003 by Van Mannekus & Co. B.V.,
      decision into one thousand three hundred and forty-four             Schiedam (Netherlands), represented by H. Bleier, lawyer.
      cents (EUR 1 344,04) for the period until 10 April 2001,
      one thousand and twenty-three euros and eighty-eight
      cents (EUR 1 023,88) for the period from 11 April 2001              The applicant claims that the Court should:
      until 31 December 2002 and four hundred and seventy-
      nine euros and 40 cents (EUR 479,40) for the period                 —     annul Council Regulation (EC) No 985/2003 of 5 June
      from 1 January 2003 to 23 July 2003 (204 days at                          2003 amending the antidumping duty measures imposed
      EUR 2,35 per day = EUR 479,40).                                           by Council Regulation (EC) No 1334/1999 on imports of
                                                                                magnesium oxide originating in the People’s Republic of
                                                                                China (1);
—     In the alternative, annul or vary contested Decision
      E(2003)738 Final of 25 March 2003.                                  —     order the Council of the European Union to pay all the
                                                                                costs.
—     Order the defendant to pay the applicant’s costs.
                                                                          Pleas in law and main arguments
                                                                          By the contested regulation the Council altered the nature of
                                                                          the antidumping duties on imports of magnesium oxide
                                                                          originating in the People’s Republic of China on the basis of a
                                                                          partial interim review. The applicant participated in the review
Pleas in law and main arguments
                                                                          procedure which preceded the contested regulation as an
                                                                          importer. It claims that the regulation infringes substantive
                                                                          Community law in that Council Regulation (EC) No 384/96 (2)
                                                                          was misapplied to a significant degree.
By the contested decision the applicant was required to repay
to the defendant EUR 13 182,18 by way of principal sum in                 The applicant argues that it was a misuse of discretion to
respect of amounts unduly paid to her after the expiry of her             initiate a partial interim review ex officio at all. The grounds
contract with the Commission, together with interest in respect           set out in the Commission’s notice do not in any event justify
of late payment. The action is directed against the part of the           a review. The Commission claimed that the fact that there was
contested decision concerning payment of interest in respect              no differentiation between sales made to related parties and
of late payment. The applicant maintains that she was wrongly             sales made to unrelated parties and between direct and indirect
required to pay interest since her inability to repay the principal       sales could ‘lead to difficulties in applying the legal provisions’.
sum due is attributable to her severe financial problems and              That is not true however. There could be no more difficulty in
her family’s health problems which constitute grounds of force            applying the legal provision.
majeure. Furthermore, she also alleges that she was not invited
to put forward her views before the contested decision was
adopted. Finally, she maintains that, in any event, she cannot            Further the statement of reasons given in the contested
be required to pay interest in respect of the period up to                regulation is different from that which had been set out in the
10 April 2001 because the Commission had tacitly waived its               notice relating to the initiation of the partial interim review.
claim to interest in respect of that period.                              That means that there was either a lack of formal reasons or a
                                                                          lack of sufficient grounds for altering the type of duty
                                                                          substantively. It was a misuse of discretion to differentiate in
                                                                          the contested regulation between trade with related parties and
                                                                          trade with unrelated parties and between direct and indirect
                                                                          sales in the Community.
 ---pagebreak--- C 264/32                EN                          Official Journal of the European Union                                          1.11.2003
The applicant further claims that the contested regulation                  Pleas in law and main arguments
infringes Regulation (EC) No 384/96 because the partial
interim review does not justify altering the amount of duty.
According to the notice the review should be confined to the
nature of the applicable measure but it went further than that.             The applicant provides private medical insurance in Ireland. In
In addition the amount of the duty was set entirely arbitrarily.            the contested decision, the Commission decided not to raise
Regulation (EC) No 384/96 does not provide for the possibility              any objections to the risk equalisation scheme to be
of using the results of reviews that are over 12 years old. It              implemented by the Irish authorities in the Irish market for
does not allow the results of reviews that are older than five              private medical insurance. According to the applicant, the
years to be used.                                                           effect of this scheme is to grant a subsidy to the dominant
                                                                            provider of medical insurance, the Voluntary Health Insurance
                                                                            Board; the subsidy would be funded by a charge to be imposed
Finally no specific dumping margin was laid down in the final               on the applicant.
review and it is impossible to see how a duty of 27,1 % could
be arrived at based on that review.
                                                                            In support of its application, the applicant invokes, firstly, the
(1) OJ L 143, p. 1.
                                                                            misapplication by the Commission of Article 87(1) EC. The
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on                applicant submits that the Commission considered that the
    protection against dumped imports from countries not members            risk equalisation scheme did, in principle, satisfy the conditions
    of the European Community (OJ L 56, p. 1), most recently                for aid under Article 87(1) EC. However, it decided that the
    amended by Regulation (EC) No 1972/2002 (OJ L 305, p. 1).               scheme compensated the Voluntary Health Insurance Board
                                                                            for public service obligations.
                                                                            According to the applicant, the Commission misapplied the
                                                                            public service compensation test as set out in the jurisprudence
                                                                            of the Court of Justice (1). The applicant states that the
                                                                            obligations identified by the Commission were the require-
                                                                            ments for private medical insurers in Ireland to follow the
Action brought on 19 August 2003 by British United
                                                                            principles of open enrolment, community rating, minimum
Provident Association Limited, BUPA Insurance Limited
                                                                            benefits and lifetime cover. These are, according to the
and BUPA Ireland Limited against Commission of the
                                                                            applicant, not to be considered as public service obligations or
                     European Communities
                                                                            obligations following the operation of services of general
                                                                            economic interest. These obligations would rather represent
                         (Case T-289/03)                                    general regulation of the private medical insurance market,
                                                                            applicable to all insurers. The applicant furthermore submits
                                                                            that the Commission did not consider whether these obli-
                         (2003/C 264/55)                                    gations imposed a financial burden on the Voluntary Health
                                                                            Insurance Board.
                    (Language of the case: English)
                                                                            The applicant states that the Commission’s alternative basis
                                                                            for the contested decision was that the risk equalisation scheme
                                                                            could be approved under Article 86(2) EC. The applicant
An action against the Commission of the European Communi-                   submits that the Commission failed to ensure that the con-
ties was brought before the Court of First Instance of the                  ditions for approval under that article were satisfied. According
European Communities on 19 August 2003 by British United                    to the applicant, the relevant private medical insurance obli-
Provident Association Limited, London, (United Kingdom) and                 gations were not services of general economic interest. The
BUPA Insurance Limited, London, (United Kingdom) and                        applicant furthermore submits that the Commission’s argu-
BUPA Ireland Limited , Dublin, (Ireland), all represented by                ments on necessity and proportionality were based on both
Mr N. Green QC, Mr K. Bacon Barrister, Mr B. Amory, lawyer                  errors of reasoning and manifest errors of fact. The applicant
and Mr J. Burke, Barrister.                                                 also claims that the Commission did not consider whether the
                                                                            scheme would affect the development of trade contrary to the
                                                                            interests of the Community.
The applicant claims that the Court should:
—     annul the Commission decision C(2003)1322 fin of                      The applicant also submits that the Commission erred in
      13 May 2003;                                                          failing to consider whether the risk equalisation scheme
                                                                            infringed Article 82 EC taken together with Article 86(1) EC,
—     order that the Commission pays the applicant’s costs.                 Articles 43 and 49 EC and Council Directive 92/49/EEC (2).


title: Case T-474/11: Order of the General Court of 12 April 2013 — Oster Weinkellerei v OHIM — Viñedos Emiliana (Igama) (Community trade mark — Annulment of the opposing trade mark — No need to adjudicate)

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/17

         Order of the General Court of 12 April 2013 — Oster Weinkellerei v OHIM — Viñedos Emiliana (Igama)
   (Case T-474/11) (1)

   (Community trade mark - Annulment of the opposing trade mark - No need to adjudicate)
   2013/C 164/31
   Language of the case: German

      Parties

      Applicant: Andreas Oster Weinkellerei KG (Cochem, Germany) (represented by: N. Schindler, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Viñedos Emiliana, SA (Las Condes, Santiago, Chili)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 22 June 2011 (Case R 637/2010-2) relating to opposition proceedings between Andreas Oster Weinkellerei KG and Viñedos Emiliana, SA.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               The applicant and OHIM shall bear their own costs.

      (1)  OJ C 319, 29.10.2011.


title: Case T-122/14: Judgment of the General Court of 9 June 2016 — Italy v Commission (Failure to comply with a judgment of the Court of Justice finding that a Member State has failed to fulfil its obligations — Periodic penalty payment — Judgment quantifying the amount of the periodic penalty payment — Method of calculating the interest applicable to the recovery of unlawful aid — Compound interest)

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/39

         Judgment of the General Court of 9 June 2016 — Italy v Commission
   (Case T-122/14) (1)

   ((Failure to comply with a judgment of the Court of Justice finding that a Member State has failed to fulfil its obligations - Periodic penalty payment - Judgment quantifying the amount of the periodic penalty payment - Method of calculating the interest applicable to the recovery of unlawful aid - Compound interest))
   (2016/C 270/43)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, and by S. Fiorentino, avvocato dello Stato)

      Defendant: European Commission (represented by: V. Di Bucci, G. Conte and B. Stromsky, acting as Agents)

      Re:

   Application under Article 263 TFEU for annulment of Commission Decision C(2013) 8681 final of 6 December 2013, by which, in order to comply with the judgment of 17 November 2011 in Commission v Italy (C-496/09, EU:C:2011:740), the Commission fixed the amount of the periodic penalty owed by the Italian Republic for the six months from 17 May to 17 November 2012.

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision C(2013) 8681 final of 6 December 2013;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 102, 7.4.2014.


               28.1.2006

               EN

               Official Journal of the European Union

               C 22/10

         Removal from the register of Case C-109/05 (1)

   (2006/C 22/19)

      Language of the case: German

   By order of 11 October 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-109/05: Commission of the European Communities v Republic of Austria.

      (1)  OJ C 132 of 28.5.2005.


title: Case F-76/14: Action brought on 7 August 2014  — ZZ v Commission

text:
               3.11.2014

               EN

               Official Journal of the European Union

               C 388/30

         Action brought on 7 August 2014 — ZZ v Commission
   (Case F-76/14)
   2014/C 388/38
   Language of the case: Spanish

      Parties

      Applicant: ZZ (represented by: G. Suárez de Castro and M. Orman, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision not to include the applicant on the reserve list for competition EPSO/AD/248/13.

      Form of order sought

               —

               Since there is a place on the reserve list for competition EPSO/AD/248/13 to constitute a reserve from which to recruit administrators in Field 1 (‘Security of Buildings’) and since the applicant was awarded a mark of 53,38, which is higher than the minimum mark set by EPSO of 51,01, include the applicant on the reserve list for that competition;

               —

               Alternatively, in the light of the many irregularities in the marking of test (d), annul the marking of test (d) and re-rank the candidates in the competition on the basis of the other marks awarded, which were not vitiated by irregularities;

               —

               If the application is upheld, order the applicant to pay the costs.


title: Case T-134/15: Judgment of the General Court of 28 June 2016 — salesforce.com, Inc. v EUIPO (SOCIAL.COM) (European Union trade mark — Application for European Union word mark SOCIAL.COM — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

text:
               8.8.2016

               EN

               Official Journal of the European Union

               C 287/21

         Judgment of the General Court of 28 June 2016 — salesforce.com, Inc. v EUIPO (SOCIAL.COM)
   (Case T-134/15) (1)

   ((European Union trade mark - Application for European Union word mark SOCIAL.COM - Absolute grounds for refusal - Descriptive character - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))
   (2016/C 287/26)
   Language of the case: English

      Parties

      Applicant: salesforce.com, Inc. (San Francisco, California, United States) (represented by: A. Nordemann and M. Maier, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: M. Fischer, acting as Agent)

      Re:

   Action against the decision of the Fourth Board of Appeal of EUIPO of 20 January 2015 (Case R 1752/2014-4), concerning an application for registration of the word mark SOCIAL.COM as a European Union trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders salesforce.com, Inc., to pay the costs.

      (1)  OJ C 171, 26.4.2015.


title: Case C-406/13: Order of the President of the Second Chamber of the Court of 11 November 2014  — European Commission v Romania

text:
               16.2.2015

               EN

               Official Journal of the European Union

               C 56/10

         Order of the President of the Second Chamber of the Court of 11 November 2014 — European Commission v Romania
   (Case C-406/13) (1)

   (2015/C 056/13)
   Language of the case: Romanian
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 260, 7.9.2013.


title: Case T-81/13: Judgment of the General Court of 21 March 2014  — FTI Touristik v OHIM (BigXtra) (Community trade mark  — Application for Community word mark BigXtra  — Absolute ground for refusal  — No distinctive character  — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/34

         Judgment of the General Court of 21 March 2014 — FTI Touristik v OHIM (BigXtra)
   (Case T-81/13) (1)

   ((Community trade mark - Application for Community word mark BigXtra - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   2014/C 142/43
   Language of the case: German

      Parties

      Applicant: FTI Touristik GmbH (Munich, Germany) (represented by A. Parr, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 29 November 2012 (case R 2521/2011-1), relating to an application for registration of the word sign BigXtra as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders FTI Touristik GmbH to pay the costs.

      (1)  OJ C 108, 13.4.2013.


title: Case T-241/16: Action brought on 13 May 2016 — El Corte Inglés v EUIPO — WE Brand (EW)

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/40

         Action brought on 13 May 2016 — El Corte Inglés v EUIPO — WE Brand (EW)
   (Case T-241/16)
   (2016/C 251/46)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: J. Rivas Zurdo, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: WE Brand Sàrl (Luxembourg, Luxembourg)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU figurative mark containing the word element ‘EW’ — Application for registration No 12 326 468

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of EUIPO of 11 February 2016 in Case R 426/2015-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the party or parties opposing this action to pay the costs.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-508/08: Action brought on 20 November 2008 — Commission of the European Communities v Republic of Malta

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/18

         Action brought on 20 November 2008 — Commission of the European Communities v Republic of Malta
   (Case C-508/08)
   (2009/C 32/28)
   Language of the case: Maltese
   Parties

      Applicant: Commission of the European Communities (represented by: J. Aquilina, K. Simonsson, acting as Agents)

      Defendant: Republic of Malta
   Form of order sought

               —

               declare that, by signing an exclusive public service contract with ‘Gozo Channel Company Ltd’ (GCCL) on 16 April 2004, without having undertaken a prior call for tenders, the Republic of Malta has failed to fulfil its obligations, in particular under Articles 1 and 4 of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (1);

               —

               order the Republic of Malta to pay the costs.

         Pleas in law and main arguments
   So as to be able to conclude a public service contract for the provision of cabotage services between Malta and Gozo, the Maltese authorities have to demonstrate that such a contract is necessary so as to impose those public service obligations that it deems necessary to ensure an appropriate service for the abovementioned route, and that the contract is adequate in the light of its aims.
   While the Commission readily acknowledges that a satisfactory service is paramount for the Malta-Gozo route, it states on the other hand that the Maltese authorities have in no manner provided this proof; in this sense, they have not even sought to establish if one or more private operators were capable of providing this service on the same conditions on a purely commercial basis. In addition, they have not shown that the exclusivity given to GCCL is an appropriate and adequate means to achieve this end.
   In addition, the fact that this contract was concluded without a prior open call for Community tenders, so as to ensure access on a non-discriminatory basis in respect of all Community shipowners, runs counter to the requirements of Regulation No 3577/92.

      (1)  OJ 1992 L 364, p. 7.


title: Case C-274/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 18 May 2017 — Margarethe Yüce, Ali Yüce, Emin Yüce, Emre Yüce v TUIfly GmbH

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/32

         Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 18 May 2017 — Margarethe Yüce, Ali Yüce, Emin Yüce, Emre Yüce v TUIfly GmbH
   (Case C-274/17)
   (2017/C 239/40)
   Language of the case: German

      Referring court

   Amtsgericht Hannover

      Parties to the main proceedings

      Applicants: Margarethe Yüce, Ali Yüce, Emin Yüce, Emre Yüce

      Defendant: TUIfly GmbH

      Questions referred

               1.

               Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

               2.

               In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

               3.

               In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

               4.

               In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

      (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJ 2004 L 46, p. 1.