title: Case C-331/01: Action brought on 6 September 2001 by Kingdom of Spain against Commission of the European Communities

text:
27.10.2001            EN                     Official Journal of the European Communities                                           C 303/13
Pleas in law and main arguments                                                1995, which, in its view, is not in compliance with the
                                                                               applicable legislation inasmuch as it became possible to
                                                                               make payments to recipients who in 1996 would have
Infringement of Article 24 of Regulation No 4253/88, in                        not been entitled to such additional payments. The
particular of the procedure laid down therein so far as concerns               Kingdom of Spain does not share that view. The need to
the request that the Member State concerned submit its                         supplement payments before 15 October 1996 prompted
comments within a specified period of time prior to the                        the Kingdom of Spain to make use of the derogation
adoption of by the Commission of a decision to reduce,                         provided for by Article 5 of Regulation No 1357/96, to
suspend or cancel assistance. When applying that provision,                    which end, appropriate objective criteria were laid down
the Court of First Instance not only failed to be faithful to its              in the aforementioned Ministerial Order. Thus, when
letter and spirit, which is based on the close cooperation                     granting the additional assistance provided for in Regu-
between Commission and Member State in the management                          lation No 1357/96, the Kingdom of Spain resorted to
and assessment of assistance granted, it also completely                       the derogation provided for in Article 5, so that the
ignored Community case-law which has considered para-                          requirements set down in Articles 1 and 2 did not apply.
mount the views of Member States in similar circumstances.                     In particular, that exonerated it from the obligation of
                                                                               carrying out the adjustments provided for in Article 1(3).
                                                                               That means that, contrary to the arguments of the
                                                                               Commission, there are no grounds for recovery of
                                                                               amounts paid to beneficiaries in 1996, given that Article 5
                                                                               provides that application of that article precludes that of
                                                                               Articles 1 to 4.
                                                                        —      Failure of the Commission to observe the time limits
Action brought on 6 September 2001 by Kingdom of                               regarding notification prescribed by the applicable Com-
Spain against Commission of the European Communities                           munity provisions: The expenditure which is the subject
                                                                               of the financial adjustment contested in the present action
                        (Case C-331/01)                                        was incurred by the Kingdom of Spain prior to the
                                                                               24 months provided for by Article 7(4) of Council
                                                                               Regulation 1258/99 (5) which preceded the communi-
                        (2001/C 303/21)                                        cation in writing by the Commission to the Member State
                                                                               concerned of the results of such inquiries.
An action against the Commission of the European Communi-
                                                                        (1) OJ 2001 L 200, p. 28.
ties was brought before the Court of Justice of the European
                                                                        (2) at issue is an adjustment amounting to ESP 185 046 088 referring
Communities on 6 September 2001 by the Kingdom of Spain,                    to additional payments to beef producers as a result of the bovine
represented by Mónica López-Monı́s Gallego, Abogado del                   spongiform encephalopathy (BSE) crisis.
Estado, acting as Agent, with an address for service in                 (3) Council Regulation (EC) No 1357/96 of 8 July 1996 providing
Luxembourg.                                                                 for additional payments to be made in 1996 with the premiums
                                                                            referred to in Regulation (EEC) No 805/68 on the common
                                                                            organization of the market in beef and veal and amending that
The applicant claims that the Court should:                                 Regulation. OJ L 175, 13.7.1996, p. 9.
                                                                        (4) BOE (Boletin del Estado) 228 of 20 September 1996 of the
                                                                            Ministerio de Agricultura, Pesca y Alimentación.
—     annul the decision of the Commission of 11 July 2001 (1)          (5) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
      excluding from Community financing certain expenditure                financing of the common agricultural policy (OJ 1999 L 160,
      incurred by the Member States under the Guarantee                     p. 103).
      Section of the European Agricultural Guidance and
      Guarantee Fund (EAGGF) so far as concerns the financial
      adjustments imposed on the Kingdom of Spain and
      challenged in the present application (2);
—     order the defendant institution to pay the costs.
                                                                        Action brought on 7 September 2001 by the Commission
                                                                        of the European Communities against the Council of the
                                                                                European Union
Pleas in law and main arguments
                                                                                (Case C-338/01)
—     Compliance with applicable Community legislation on                                          (2001/C 303/22)
      the granting of additional assistance: In the Commissions
      view, additional BSE payments in the Kingdom of Spain
      in 1996 under Council Regulation No 1357/96 (3), made             An action against the Council of the European Union was
      in accordance with the Ministerial Order of 19 September          brought before the Court of Justice of the European Communi-
      1996 (4), were based on the applications submitted in             ties on 7 September 2001 by the Commission of the European


title: Case T-341/16: Order of the General Court of 4 May 2017 — De Masi v Commission (Action for annulment — Access to documents — Request for access on the basis of the inter-institutional cooperation by virtue of Article 230 TFEU — Documents concerning the work of the ‘Code of conduct (Business Taxation)’ group instituted by the Council — Act not open to challenge — Inadmissibility)

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/28

         Order of the General Court of 4 May 2017 — De Masi v Commission
   (Case T-341/16) (1)

   ((Action for annulment - Access to documents - Request for access on the basis of the inter-institutional cooperation by virtue of Article 230 TFEU - Documents concerning the work of the ‘Code of conduct (Business Taxation)’ group instituted by the Council - Act not open to challenge - Inadmissibility))
   (2017/C 221/40)
   Language of the case: German

      Parties

      Applicant: Fabio De Masi (Brussels, Belgium) (represented by: A. Fischer-Lescano, professor)

      Defendant: European Commission (represented by: F. Erlbacher and J. Baquero Cruz, acting as Agents)

      Re:

   Application on the basis of Article 263 TFEU seeking the annulment of the decision contained in the Commission’s letter of 8 June 2016, responding to the request of the President of the European Parliament’s Special Committee on Tax Rulings and Other Measures Similar in Nature or Effect (TAXE2) for full access to the documents of the ‘Code of conduct (Business Taxation)’ group.

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Mr Fabio De Masi shall bear his own costs and pay those incurred by the European Commission.

      (1)  OJ C 287, 8.8.2016.


title: Case C-211/99: Action brought on 1 June 1999 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
C 204/34               EN                   Official Journal of the European Communities                                       17.7.1999
1. May Article 4, in conjunction with Article 1, of Council            Action brought on 1 June 1999 by the Commission of the
     Regulation No 3577/92 of 7 December 1992 applying the             European Communities against the Grand Duchy of
     principle of freedom to provide services to maritime                                         Luxembourg
     transport within Member States (maritime cabotage) (1) be
     interpreted as permitting the provision of island cabotage                                 (Case C-210/99)
     services by undertakings covering regular shipping lines
     to be made subject to obtaining prior administrative
     authorisation?                                                                             (1999/C 204/69)
                                                                       An action against the Grand Duchy of Luxembourg was
2. If so, may the grant and continuation of such administrat-          brought before the Court of Justice of the European Communi-
     ive authorisation be made subject to the satisfaction of          ties on l June 1999 by the Commission of the European
     conditions such as fulfilment of fiscal and social security       Communities, represented by Marie Wolfcarius, Legal Adviser,
     obligations, distinct from those set out in Article 4(2) of       acting as Agent, with an address for service in Luxembourg at
     the Regulation?                                                   the office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                       Wagner Centre, Kirchherg.
3. May Article 4(1) of Regulation No 3577/92 be interpreted
     as permitting, in relation to one line or maritime route,         The applicant claims that the Court should:
     public service obligations to be imposed on some shipping
     companies while, at the same time, public service contracts,      1. Declare that, by failing to adopt and/or communicate the
     within the meaning of Article 2(3) of the Regulation, are              laws, regulations and administrative provisions necessary
     concluded with others, in order to ensure regular services             to comply with Council Directive 95/18/EC of 19 June
     to, from or between islands?                                           1995 on the licensing of railway undertakings (1), the
                                                                            Grand Duchy of Luxembourg has failed to fulfil its
                                                                            obligations under that directive; and
(1) OJ No L 364 of 12 December.1992, p. 7.
                                                                       2. Order the Grand Duchy of̀ Luxembourg to pay the costs.
                                                                       The pleas in law and main arguments are similar to those
                                                                       submitted in Case C-168/99 (2), the period prescribed in
                                                                       Article 16(2) of the directive expired on 27 June 1997.
                                                                       (1) OJ 1995 L 143, p. 70.
                                                                       (2) See this OJ p. 28.
Reference for a preliminary ruling from the Arbeitsge-
richt Bonn by order of that court of 22 April 1999 in the
          case of Birgit Frings v Blendermann GmbH
                         (Case C-209/99)
                                                                       Action brought on 1 June 1999 by the Commission of the
                                                                       European Communities against the Grand Duchy of
                         (1999/C 204/68)                                                          Luxembourg
Reference has been made to the Court of Justice of the                                          (Case C-211/99)
European Communities by an order of the Third Chamber of
the Arbeitsgericht Bonn (Labour Court, Bonn) of 22 April                                        (1999/C 204/70)
1999, which was received at the Court Registry on 1 June
1999, for a preliminary ruling in the case of Birgit Frings v
Blendermann GmbH on the following question:                            An action against the Grand Duchy of Luxembourg was
                                                                       brought before the Court of Justice of the European Communi-
                                                                       ties on 1 June 1999 by the Commission of the European
Is there a breach of the prohibition under European law of             Communities, represented by Marie Wolfcarius, Legal Adviser,
indirect discrimination on grounds of sex if national appli-           acting as Agent, with an address for service in Luxembourg at
cation of the Kündigungsschutzgesetz (Law on Protection                the office of Carlos Gómez de la Cruz, of its legal Service,
against Dismissal) has the result that, where the amount of            Wagner Centre, Kirchberg.
work required is reduced for operational reasons, if the
employer has made a business decision to maintain the                  The applicant claims that the Court should:
full-time posts occupied, then because of lack of comparability
no selection on social grounds takes place between part-time           1. Declare that, by failing to adopt and/or communicate the
and full-time employees, even though the part-time employee                 laws, regulations and administrative provisions necessary
is prepared to accept a full-time post?                                     to comply with Council Directive 95/19/EC of 19 June
                                                                            1995 on the allocation of railway infrastructure capacity
                                                                            and the charging of infrastructure fees (1), the Grand Duchy
                                                                            of Luxembourg has failed to fulfil its obligations under
                                                                            that directive; and
 ---pagebreak--- 17.7.1999               EN                 Official Journal of the European Communities                                    C 204/35
2. Order the Grand Duchy of Luxembourg to pay the costs.                     Removal from the register of Case C-320/97 (1)
The pleas in law and main arguments are similar to those                                      (1999/C 204/74)
submitted in Case C-168/99 (2), the period prescribed in
Article 14(2) of the directive expired on 27 June 1997.               By order of 18 March 1999 the President of the Court of
                                                                      Justice of the European Communities has ordered the removal
                                                                      from the register of Case C-320/97: Commission of the
(1) OJ 1995 L 143, p. 75.                                             European Communities v Federal Republic of Germany.
(2) See this OJ, p. 28.
                                                                      (1) OJ No C 331 of 1.11.1997.
       Removal from the register of Case C-330/98 (1)
                                                                              Removal from the register of Case C-5/99 (1)
                         (1999/C 204/71)
                                                                                (1999/C 204/75)
By order of 10 March 1999 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 18 March 1999 the President of the Court of
from the register of Case C-330/98 (reference for a preliminary       Justice of the European Communities has ordered the removal
ruling from the Oberster Gerichtshof): The Wellcome Foun-             from the register of Case C-5/99 (reference for a preliminary
dation Ltd v Nycomed Austria GmbH.                                    ruling from the Landgericht Regensburg): Business registry
                                                                      case relating to Firma Wiesenhof Geflügelspezialitäten, a
                                                                      branch of Lohmann & Co. AG.
(1) OJ No C 340 of 7.11.1998.
                                                                      (1) OJ No C 86 of 27.3.1999.
       Removal from the register of Case C-186/97 (1)                        Removal from the register of Case C-245/98 (1)
                         (1999/C 204/72)                                                      (1999/C 204/76)
By order of 18 March 1999 the President of the Court of               By order of 19 April 1999 the President of the Court of Justice
Justice of the European Communities has ordered the removal           of the European Communities has ordered the removal from
from the register of Case C-186/97: Commission of the                 the register of Case C-245/98: Commission of the European
European Communities v Federal Republic of Germany.                   Communities v French Republic.
(1) OJ No C 212 of 12.7.1997.                                         (1) OJ No C 278 of 5.9.1998.
                                                                             Removal from the register of Case C-398/96 (1)
       Removal from the register of Case     C-192/97 (1)
                                                                                (1999/C 204/77)
                         (1999/C 204/73)
                                                                      By order of 21 April 1999 the President of the Court of Justice
By order of 18 March 1999 the President of the Second                 of the European Communities has ordered the removal from
Chamber of the Court of Justice of the European Communities           the register of Case C-398/96 (reference for a preliminary
has ordered the removal from the register of Case C-192/97:           ruling from Tribunale Amministrativo Regionale del Lazio):
Commission of the European Communities v Federal Republic             Associazione Produttori Vitivinicoli della Provincia di Treviso
of Germany.                                                           and Others v Ministero delle Risorse Agricole, Alimentari e
                                                                      Forestali (Ministero per le Politche Agricole).
(1) OJ No C 212 of 12.7.1997.                                         (1) OJ C 54 of 22.2.1997.


title: Case T-36/99: Action brought on 11 February 1999 by Lenzing Aktiengesellschaft against the Commission of the European Communities

text:
C 160/22               EN                    Official Journal of the European Communities                                       5.6.1999
Action brought on 11 December 1998 by Ettlin Gesell-                    Hootz Hirsch Rechtsanwälte, Brussels, with an address for
schaft für Spinnerei und Weberei AG and others against                  service in Luxembourg at the Chambers of Loesch & Wolter,
              the Council of the European Union                         11, rue Goethe.
                         (Case T-195/98)
                                                                        The applicant claims that the Court should:
                        (1999/C 160/42)
                                                                        1. annul article 1 of the Decision of the Commission of
                                                                            28 October 1998 [State aid in favour of Sniace Spain —
                  (Language of the case: English)                           No C 68/97 (ex NN 118/97)], in so far as it contains
                                                                            findings by the Commission that
An action against the Council of the European Union was
brought before the Court of First Instance of the European                  — the non-recovery by the social insurance institution of
Communities on 11 December 1998 by Ettlin Gesellschaft für                       debts due, default surcharges and interest, and the debt
Spinnerei und Weberei AG and others, represented by Clive                        rescheduling agreements concluded between Sniace
Stanbrook QC and Professor Alan Dashwood with an address                         and the Social Insurance Institution on 8 March 1996,
for service in Luxembourg at the Chambers of Arsène Krons-                       7 May 1996 and 30 September 1997, together with
hagen, 22, rue Marie Adélaïde.
                                                                            — the non-recovery by the wage guarantee fund, Fogasa,
The applicant claims that the Court should:                                      of debts due and default interest, and the agreements
                                                                                concluded between Sniace and Fogasa on 5 November
— declare void, pursuant to articles 173 and 174 EC, the                         1993 and 31 October 1995
    Council’s decision to reject the Commission’s proposal for
    a Regulation (1) imposing definitive anti-dumping duties            do not constitute — apart from the charging of interest at
    on imports of unbleached cotton fabric from India,                  below market rates — State aid within the meaning of article
    Indonesia, Pakistan, Turkey, China and Egypt, and (2)               92(1) of the EC Treaty;
    collecting the provisional duties imposed by Regulation
    (EC) No 773/98 of 7 April 1998,
                                                                        2. order the Commission to pay the costs,
— determine, pursuant to articles 178 and 215 (2) EC, that
    the Council is liable to make good the damage caused to the         3. order the defendant, pursuant to article 21 if the EC Statute
    applicants by its unlawful rejection of the Commission’s                of the Court of Justice and article 65 of the Rules of
    proposal for a Regulation imposing anti-dumping duties,                 Procedure of the Court of First Instance, to produce the
    and                                                                     following documents:
— order that the costs of the proceedings be borne by the
    Council.                                                                — the Spanish Government’s statement of views on the
                                                                                applicant’s complaints dated 4 July 1996, 26 Novem-
                                                                                ber 1996 and 9 December 1996,
Pleas in law and main arguments
                                                                            — the Spanish Government’s statement of views on the
The grounds and arguments are similar to those invoked in                        applicant’s response dated 17 April 1997,
Case T-213/97 (1).
                                                                            — all statements of views issued by the Spanish Govern-
(1) OJ C 318, 18.10.1997, p. 23.                                                 ment in the proceeding under article 93(2) of the EC
                                                                                Treaty.
                                                                        Pleas in law and main arguments
Action brought on 11 February 1999 by Lenzing Aktien-                   By the contested decision, State aid granted by the Spanish
gesellschaft against the Commission of the European                     authorities in favour of the viscose fibre producer Sociedad
                           Communities                                  Nacional de Industrias y Aplicaciones de Celuloso Española
                                                                        SA (Sniace) was declared to be incompatible with the common
                          (Case T-36/99)                                market; however, following examination of the measures
                                                                        referred to in the form of order sought by the applicant, those
                        (1999/C 160/43)                                 measures were assessed as not constituting unlawful aid.
                  (Language of the case: German)                        The applicant, which is the largest producer of viscose and
                                                                        modal fibres in Europe and a competitor of Sniace, pleads the
An action against the Commission of the European Communi-               following infringements by the Commission:
ties was brought before the Court of First Instance of the
European Communities on 11 February 1999 by Lenzing                     — infringement of article 92(1) of the EC Treaty, in that the
Aktiengesellschaft, of Lenzing (Republic of Austria), represent-            contested decision limited the scope of the aid to the
ed by Hans-Jörg Niemeyer, Rechtsanwalt, of Messrs Gleiss Lutz               financial advantage accruing to Sniace from the charging
 ---pagebreak--- 5.6.1999               EN                    Official Journal of the European Communities                                     C 160/23
    of interest since 1991 at a rate below the market rate on           Action brought on 26 February 1999 by Albert Nardone
    the social insurance contributions due. A private creditor            against the Commission of the European Communities
    would have behaved completely differently from the social
    insurance authorities, and the non-recovery of the social                                    (Case T-57/99)
    insurance contributions therefore constitutes State aid,
                                                                                (1999/C 160/44)
— infringement of article 92(1) of the EC Treaty, in that the
    non-recovery by the social security authorities of default
    surcharges was held not to constitute State aid,                                       (Language of the case: French)
                                                                        An action against the Commission of the European Communi-
— wrongful limitation of State aid to the financial advantage           ties was brought before the Court of First Instance of the
    accruing to Sniace as a result of the charging of interest by       European Communities on 26 February 1999 by Albert
    Fogasa on the sums due to it at a rate below the market             Nardone, residing at Piétrain (Belgium), represented by Georges
    rate. A private creditor faced with the acute liquidity             Vandersanden and Laure Levi, of the Brussels Bar, with an
    problems of Sniace would not have tolerated that compa-             address for service in Luxembourg at Fiduciare Myson SARL,
    ny’s failure, for years on end, to comply with the redemp-          30 rue de Cessange.
    tion plan contained in the repayment agreements; instead,
    it would have foreclosed the mortgage provided as security          The applicant claims that the Court should:
    and would, in view of Fogasa’s prior-ranking position in
    the event of the bankruptcy of Sniace, have simply                  — order the defendant to pay damages assessed provisionally
    accepted Sniace’s insolvency. The non-recovery of the                    at BEF 25 000 000 by way of compensation for material
    outstanding sums due to Fogasa therefore constitutes State               damage and at BEF 7 500 000 by way of compensation
    aid, as does                                                             for non-material damage,
                                                                        — annul, in so far as necessary, the implied decision of the
— the fact that Fogasa refrained from enforcing its entitlement              appointing authority rejecting the applicant’s request of
    to default interest,                                                     16 October 1997 as well as the explicit decision of the
                                                                             appointing authority rejecting the applicant’s complaint of
— manifest error of assessment in the application of article                 30 November 1998,
    92(1) of the EC Treaty, in that the element of aid was
    limited to the difference between the interest rate actually        — order the defendant to pay the costs.
    agreed and the market rate on the ground that the scope
    of the unlawful aid was difficult to determine,
                                                                        Pleas in law and main arguments
— failure to comply with the obligation to provide a state-             The applicant has already brought an action (1) seeking the
    ment of reasons under article 190 of the EC Treaty, in that         annulment of the decision taken by the appointing authority
                                                                        following a request for recognition of an occupational disease
                                                                        (asbestosis) allegedly contracted during his employment in the
    — no reasons have been given as to why the non-recovery             Berlaymont building in Brussels and, in so far as necessary, the
        of sums due to the social security institution and              annulment of the implied decision rejecting the complaint
        Fogasa were regarded as corresponding to market                 lodged by the applicant against that decision.
        conditions,
                                                                        The present action seeks compensation for the damage suffered
    — the decision is in itself contradictory, because, in              by the applicant as a result of the Commission’s misconduct,
        the part of the decision dealing with the law, the              irrespective of whether or not the social security scheme
        Commission assessed the conditions of the debt                  organised by Article 73 of the Staff Regulations and by
        rescheduling agreements concluded with the social               the Rules on the Insurance of Officials of the European
        insurance authorities and with Fogasa as not corre-             Communities against the Risk of Accident and of Occupational
        sponding to market conditions, yet in the operative             Disease is applied.
        part of the decision it limited the element of aid to the
        interest rate difference, and                                   The applicant is of the view that, by operation of the ordinary
                                                                        law relating to liability, he may claim damages despite the
                                                                        services received by him under Article 73, following the
    — the reasons contained in the part of the decision                 decision of 29 May 1997 concerning his occupational disease.
        dealing with the law did not contain any examination
        of the question whether, in the context of the third
                                                                        In his view, the Commission was guilty of illegal misconduct (2)
        debt rescheduling agreement, the social insurance
                                                                        which provides a ground for the Commission to be held liable
        authorities refrained from insisting on the repayment
                                                                        and for the payment of the damages sought.
        of social insurance contributions by 24 monthly
        instalments.
                                                                        (1) T-27/98 Nardone v. Commission (OJ C 94, 28.3.1998, p. 38).
                                                                        (2) See Case T-27/98.


13.7.2002             EN                     Official Journal of the European Communities                                   C 169/43
The applicant claims that the Court should:                                    Removal from the register of Case T-203/00 (1)
—     partially annul Decision R 34/2000-1 of the First Board                                   (2002/C 169/76)
      of Appeal of 21 February 2002 to the extent that the
      applicant was ordered to bear half of the opposition fees                            (Language of the case: Dutch)
      as well as its owns costs in the opposition and appeal
      proceedings;
—     order the Office to pay the costs.                                By order of 25 February 2002 the President of the Third
                                                                        Chamber of the Court of First Instance of the European
                                                                        Communities ordered the removal from the register of Case
                                                                        T-203/00: Beemsterboer Coldstore Services B.V. v Commission
Pleas in law and main arguments                                         of the European Communities.
The applicant filed an application for registration of the word         (1) OJ C 302 of 21.10.2000.
mark ‘METABALANCE 44’ in respect of goods in Classes 5
and 29 at the Office for Harmonisation in the Internal Market
(application no 155747). Frieslands Brands B.V. opposed that
application. The opposition was based on various national and
international marks including, inter alia, ‘BALANCE’, ‘BALANS’
and ‘FRIESISCHE FLAGGE BALANCE’ in respect of, inter alia,                     Removal from the register of Case T-309/00 (1)
goods in Classes 5 and 29.
                                                                                (2002/C 169/77)
As a result of a private settlement with the opponent, the
applicant limited the category of goods by removing some of                                (Language of the case: French)
the goods claimed in Class 29. The opponent later withdrew
its opposition but sought a decision on costs.
                                                                        By order of 17 April 2002 the President of the First Chamber
The Opposition Division decided that the applicant should               of the Court of First Instance of the European Communities
bear the costs of the opposition procedure. The Board of                ordered the removal from the register of Case T-309/00: S.A.
Appeal set this decision aside and ordered each of the parties          Cimenteries CBR v Commission of the European Communities.
to pay its own costs in respect of the opposition and appeal
proceedings.                                                            (1) OJ C 335 of 25.11.2000.
The applicant is appealing against the decision of the Board of
Appeal and claims that the more specific Article 81(4) of
Council Regulation (EC) No 40/94 (1) , not Article 81(3), is
applicable in the present case. The defendant thus failed to
take into account the fundamental assessment criteria and to                   Removal from the register of Case T-14/02 (1)
observe the principle of proportionality.
                                                                                (2002/C 169/78)
Moreover, in the applicant’s opinion, the defendant also
wrongly applied the assessment criteria in Article 81(3) in                               (Language of the case: English)
conjunction with Article 81(2) of Council Regulation (EC)
No 40/94. In the applicant’s view, that provision requires
that a decision on costs should take into account general               By order of 9 April 2002 the President of the Fifth Chamber
considerations of equity and fairness.                                  of the Court of First Instance of the European Communities
                                                                        ordered the removal from the register of Case T-14/02:
                                                                        Agrofair Benelux BV and Others v Commission of the
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the         European Communities.
    Community trade mark (OJ 1994 L 11, p. 1).
                                                                        (1) OJ C 109 of 4.5.2002.


title: Case T-128/01: Action brought on 7 June 2001 by DaimlerChrysler Corporation against the Office for Harmonisation in the Internal Market

text:
C 245/24               EN                     Official Journal of the European Communities                                     1.9.2001
Action brought on 7 June 2001 by DaimlerChrysler                         Action brought on 11 June 2001 by José Alejandro S.L.
Corporation against the Office for Harmonisation in the                  against Office for the Harmonization of the Internal
                         Internal Market                                           Market (trade marks and designs) (OHIM)
                         (Case T-128/01)                                                         (Case T-129/01)
                                                                                (2001/C 245/39)
                         (2001/C 245/38)
                                                                                (Language of the case: Spanish)
                   (Language of the case: English)
                                                                         An action against Office for Harmonization in the Internal
                                                                         Market (trade marks and designs (OHIM) was brought before
An action against the Office for Harmonisation in the Internal           the Court of First Instance of the European Communities on
Market was brought before the Court of First Instance of the             11 June 2001 by José Alejandro S.L., whose registered office is
European Communities on 7 June 2001 by DaimlerChrysler                   at Elche (Spain), represented by Ignacio Temiño Ceniceros.
Corporation, having its registered office in Michigan (USA),
represented by T. Cohen Jehoram of De Brauw Blackstone
                                                                         The applicant claims that the Court should:
Westbroek, The Hague (Netherlands).
                                                                         —     uphold the present application and alter the contested
                                                                               decision of 20 March 2001 of the First Board of Appeal
The applicant claims that the Court should:                                    (R 230/2001-1) dismissing the appeal against the decision
                                                                               to accept the opposition submitted by Anheuser-Bush,
—     annul the decision of the Board of Appeal in so far as it                Inc. against the application to register ‘Budmen’ as a
      finds that the mark does not satisfy the conditions as laid              Community trade mark (Application No 30.221) submit-
      down in article 7(1)b and /or Article 7(3) of Regulation                 ted by José Alejandro S.L. for goods in Class 25, and
      no 40/94 (1);                                                            grant registration of Community trade mark application
                                                                               No 30221 in Class 25 as applied for;
—     order the OHMI to accord a date of registration in respect         —     in the alternative, uphold the present application and
      of the application for a Community trade mark; and                       alter the content of the contested administrative act, and
                                                                               grant registration of Community trade mark application
—     order the OHMI to compensate DaimlerChrysler for the                     No 30221 in Class 25 only in respect of footwear.
      costs of these proceedings.
                                                                         —     so far as concerns costs, order the parties to bear their
                                                                               own costs and each pay half of the common costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
Applicant for the Com-         DaimlerChrysler Corporation               Applicant for the Com-        José Alejandro S.L.
munity trade mark:                                                       munity trade mark:
The Community trade            Figurative      trademark     (grille     The Community trade           Word mark ‘BUDMEN’ — Appli-
mark concerned:                design) — Application no 525048           mark concerned:               cation No 30.221 for certain
                               for goods in class 12                                                   goods in Classes 10, 16 and 25
Decision of the Exam-          Rejection of the application              Proprietor of the right to    The opponent
iner:                                                                    the trade mark or sign
                                                                         asserted by way of oppo-
Decision of the Board of       Rejection of the appeal                   sition in the opposition
Appeal:                                                                  proceedings:
                                                                         Trade mark or sign            Word mark ‘BUD’ registered in
Grounds of claim:              Incorrect      interpretation     of      asserted by way of oppo-      Denmark, United Kingdom and
                               Articles 7(1)b and 7(3) of Council        sition in the opposition      Ireland for goods in Classes 16
                               Regulation no 40/94.                      proceedings:                  and 25
                                                                         Decision of the Oppo-         Acceptance of the opposition
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          sition Division:              with respect to the goods in
    Community trade mark (OJ 11, p. 1).                                                                Class 25
                                                                         Decision of the Board of      Dismissal of the appeal
                                                                         Appeal:


               3.9.2005

               EN

               Official Journal of the European Union

               C 217/63

         Removal from the Register of Case T-67/97 (1)

   (2005/C 217/133)

      (Language of the case: Dutch)

   By order of 16 June 2005, the President of the Fifth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-67/97, J.P.M. Wolfs v Council of the European Union and Commission of the European Communities.

      (1)  OJ C 142 of 10.5.1997


title: Case T-123/05: Action brought on 11 March 2005 by Olivier Chassagne against the Commission of the European Communities

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/36

         Action brought on 11 March 2005 by Olivier Chassagne against the Commission of the European Communities
   (Case T-123/05)
   (2005/C 115/65)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 March 2005 by Olivier Chassagne, residing in Brussels, represented by Stéphane Rodrigues and Yola Minatchy, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               annul the appointing authority's decision of 9 December 2004 responding to the applicant's complaint of 28 May 2004 and require the appointing authority to take whatever action is dictated by that annulment;

               2.

               rule that any unjustified and objectively unjustifiable discrimination based on whether or not the place of origin and/or place of employment belongs, in the geographical sense, to the continent of Europe is unlawful and accordingly declare that Article 8(4) of Annex VII to the old Staff Regulations is unlawful;

               3.

               recall, irrespective of the foregoing, that Réunion is an integral part of the Community under Article 299(2) of the EC Treaty and is also subject, through the accession of its Member State, to the EAEC Treaty and the Treaty on European Union and point out in that regard that European officials originating from that territory are entitled to equal treatment vis-à-vis those originating from a European territory, in the geographical sense, of a Member State;

               4.

               award the applicant EUR 1 as token compensation for the non-material damage suffered and EUR 7 200 to compensate for the financial damage suffered.

               5.

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant contests the Commission's decision not to acknowledge his entitlement, as an official originating from a French Overseas Department, to be covered by Article 8(1) to (3) of Annex VII to the Staff Regulations in the version in force before 1 May 2004.
   In support of his action, the applicant pleads unlawfulness of the legal basis of the contested decision, namely Article 8(4) of Annex VII to the old Staff Regulations of Officials. According to the applicant, that provision is invalidated by the absence of a statement of reasons, is discriminatory and infringes Article 21(1) of the European Charter of fundamental rights of the European Union.
   The applicant also alleges breach of the obligation to state reasons and breach of a number of rules and general principles of Community law, such as the duty to have regard to the welfare of officials, as well as manifest error of assessment, breach of the principle of equal treatment and breach of the principle of good administration


title: Case T-245/12: Action brought on 4 June 2012 — Gamesa Eólica v OHIM — Enercon (horizontal combination of green colours)

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/24

         Action brought on 4 June 2012 — Gamesa Eólica v OHIM — Enercon (horizontal combination of green colours)
   (Case T-245/12)
   2012/C 243/43
   Language in which the application was lodged: English

      Parties

      Applicant(s): Gamesa Eólica, SL (Sarriguren, Spain) (represented by: E. Armijo Chávarri and A. Sanz Cerralbo, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Enercon GmbH (Aurich, Germany)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 March 2012 in case R 260/2011-1;

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The figurative mark representing a horizontal combination of green colours, for goods in class 7 — Community trade mark registration No 2346542

      Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Applicant for the declaration of invalidity of the Community trade mark: The applicant

      Grounds for the application for a declaration of invalidity: The party requesting the declaration of invalidity based its request on Article 52(1)(a) and on Article 52(1)(b) of Council Regulation (EC) No 207/2009

      Decision of the Cancellation Division: Declared the Community trade mark invalid

      Decision of the Board of Appeal: Annulled the contested decision and rejected the request for a declaration of invalidity

      Pleas in law:

               —

               Infringement of Article 7(1)(b) of Council Regulation No 207/2009;

               —

               Infringement of Article 62 of the Community trade mark Regulation; and

               —

               Infringement of Article 52(1)(b) of Council Regulation No 207/2009.


title: Case C-462/99: Reference for a preliminary ruling by the Verwaltungsgerichtshof (Austria) by order of 24 November 1999 in the appeal brought by Connect Austria Gesellschaft für Telekommunikation GmbH against the Telekom-Control-Kommission (intervening party: Mobilkom Austria Aktiengesellschaft)

text:
C 47/20                  EN                     Official Journal of the European Communities                                       19.2.2000
— None of the existing general or toxic waste plans submitted              brought by an aggrieved party against a decision taken by the
      by Ireland contain a specific chapter on the management              national regulatory authority?
      of packaging and packaging waste. They thus fail to
      comply with Article 14 of Directive 94/62/EC;
                                                                           2.     If the answer to the first question is in the affirmative:
— With regard to Article 6 of Directive 91/689/EEC, the                    are Articles 82 EC and 86(1) EC, Article 2(3) and 4 of
      existing general waste plans submitted by Ireland do not             Commission Directive 96/2/EC (3), and Articles 9(2) and 11(2)
      cover hazardous waste;                                               of Directive 97/13/EC (4) of the European Parliament and of
                                                                           the Council, or the other provisions of Community law, to be
— With regard to Article 7 of Directive 75/442/EEC, as                     construed as precluding a provision of national law under
      amended by Directive 91/156/EEC, the general waste                   which existing holders of a licence for the provision of reserved
      management plans submitted by Ireland were prepared                  mobile telecommunications services within the digital cellular
      pursuant to Irish implementing legislation for Directive             mobile communications sector may, prior to the expiry of
      75/442/EEC before it was amended by Directive                        three years from the entry into force of the decision granting
      91/156/EEC. They were not prepared by reference to the               the DCS-1800 licence in 1997 to an applicant, be granted
      specific requirements of the Irish implementing legislation          additional frequencies from the frequency band reserved for
      for amendments to Directive 75/442/EEC effected by                   DCS-1800 if it is established that, despite employing all
      Directive 91/156/EEC. They therefore cannot be con-                  commercially viable technical possibilities, their user capacity
      sidered as fulfilling the obligations which Ireland has              has been exhausted, where those additional frequencies may
      under Directive 75/442/EEC, as amended by Directive                  be allocated without a requirement that a separate fee for their
      91/156/EEC.                                                          use be paid and may also be allocated to a public undertaking
                                                                           holding a dominant market position within the 900 MHz
                                                                           sector?
( 1) of the Council, of 15 July 1975 (OJ L 194, 25.7.1975, p. 39).
( 2) of 18.3.1991 (OJ L 78, 26.3.1991, p. 32).
( 3) of 12 December 1991 (OJ L 377, 31.12.1991, p. 48).                    ( 1) OJ L 192 of 24.7.1990, p. 1.
( 4) European Parliament and Council Directive of 20 December 1994         ( 2) OJ L 295 of 29.10.1997, p. 23.
     (OJ L 365, 31.12.1994, p. 10).                                        ( 3) OJ L 20 of 26.1.1996, p. 59.
                                                                           ( 4) OJ L 117 of 7.5.1997, p. 15.
Reference for a preliminary ruling by the Verwaltungsge-
richtshof (Austria) by order of 24 November 1999 in                        Action brought on 2 December 1999 by the Commission
the appeal brought by Connect Austria Gesellschaft für                     of the European Communities against the Hellenic Repub-
Telekommunikation GmbH against the Telekom-Control-                                                          lic
Kommission (intervening party: Mobilkom Austria
                         Aktiengesellschaft)
                                                                                (Case C-463/99)
                           (Case C-462/99)
                                                                                (2000/C 47/33)
                            (2000/C 47/32)
                                                                           An action against the Hellenic Republic was brought before the
                                                                           Court of Justice of the European Communities on 2 December
Reference has been made to the Court of Justice of the                     1999 by the Commission of the European Communities,
European Communities by order of 24 November 1999 from                     represented by Gregorio Valero Jordana, of its Legal Service,
the Verwaltungsgerichtshof (Federal Administrative Court)                  and Panagiotis Panagiotopoulos, a national expert on
(Austria), which was received at the Court Registry on                     secondment to that service, with an address for service in
2 December 1999, for a preliminary ruling in the appeal                    Luxembourg at the office of Carlos Gómez de la Cruz, of its
brought by Connect Austria Gesellschaft für Telekommunika-                 Legal Service, Wagner Centre, Kirchberg.
tion GmbH against the Telekom-Control-Kommission (Tele-
com Monitoring Commission) (intervening party: Mobilkom
Austria Aktiengesellschaft) on the following questions:                    The Commission claims that the Court should:
                                                                           — declare that, by not adopting and, as a subsidiary claim,
1.      On a proper construction of Article 5a(3) of Council                    by not communicating to the Commission, within the
Directive 90/387/EEC (1), as amended by Directive 97/51/EC (2)                  time-limit laid down the laws, regulations and administrat-
of the European Parliament and of the Council, does that                        ive provisions necessary to comply fully with Council
provision have direct effect in the sense that, overriding                      Directive 96/62/EC (1) of 27 September 1996 on ambient
a contrary domestic rule of jurisdiction, it establishes the                    air quality assessment and management, the Hellenic
jurisdiction of a specific ‘independent body’ at national level to              Republic has failed to fulfil its obligations under the Treaty
implement a ‘suitable mechanism’ for dealing with an appeal                     and that directive;


title: Order of the Court of First Instance of 8 October 1999 in Case T-89/99 R: Oliver Valk v European Parliament (No need to adjudicate)

text:
C 20/20               EN                       Official Journal of the European Communities                                     22.1.2000
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               at Winksele (Belgium), represented by Jean-Noël Louis and
                                                                          Françoise Parmentier, of the Brussels Bar, with an address for
                     of 23 November 1999                                  service in Luxembourg at the offices of Fiduciaire Myson SARL,
                                                                          30 Rue de Cessange, v European Centre for the Development
                                                                          of Vocational Training (Cedefop) (Agent: Bertrand Wägenbaur)
in Case T-129/98: Enrico Sabbioni v Commission of the                     — application for annulment of the decision of the European
                  European Communities (1)                                Centre for the Development of Vocational Training of 9 March
                                                                          1998 demanding reimbursement of a sum corresponding to
(Officials — Automatic transfer — Act adversely affecting                 two thirds of the installation allowance paid to the applicant
   an official — Statement of reasons — Misuse of powers)                 upon her entry into service — the Court of First Instance,
                                                                          composed of C.W. Bellamy, sitting as a single Judge; J. Palacio
                                                                          González, Administrator, for the Registrar, has given a judg-
                         (2000/C 20/39)                                   ment on 28 October 1999, in which it:
                                                                          1. Dismisses the action;
                   (Language of the case: Italian)
                                                                          2. Orders the parties to bear their own costs.
In Case T-129/98: Enrico Sabbioni, an official of the Com-
mission, employed at the Joint Research Centre at Ispra,
residing at Biandronno, Italy, represented by Giuseppe Marche-            (1) OJ C 397 of 19.12.1998.
sini, of the Vicenza Bar, with an address for service in
Luxembourg at the Chambers of Arendt and Medernach, 8-10
Rue Mathias Hardt v Commission of the European Community
(Agent: Gianluigi Valsesia) — application for annulment of the
decisions whereby the Commission transferred the applicant
of its own motion to another division and removed from his
initial duties, and a claim for damages — the Court of First
Instance (Fifth Chamber), composed of J.D. Cooke, President,                    ORDER OF THE COURT OF FIRST INSTANCE
R. Garcı́a-Valdecasas and P. Lindh, Judges; J. Palacio González,
Administrator, for the Registrar, gave a judgment on 23 No-
vember 1999, the operative part of which is as follows:                                          of 8 October 1999
1. The application is dismissed.                                           in Case T-89/99 R: Oliver Valk v European Parliament (1)
2. Each of the parties shall bear its own costs.
                                                                                (No need to adjudicate)
(1) OJ C 327 of 24.10.1998.
                                                                                (2000/C 20/41)
                                                                                (Language of the case: German)
                                                                          In Case T-89/99 R: Oliver Valk, represented by Joachim Kayser,
                                                                          Rechtsanwalt, Körnerstrasse 5, 10785 Berlin, v European
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               Parliament (Agents: Hans Krück and Evelyn Waldherr) —
                                                                          application for interim measures seeking, first, the withdrawal
                      of 28 October 1999                                  of the decision of the selection board of 9 February 1999
                                                                          refusing to admit the applicant to the written tests in Compe-
                                                                          tition PE/86/A (OJ 1998 C 77 A, p. 1) and, second, to allow
in Case T-180/98: Elizabeth Cotrim v European Centre for                  the applicant to take part in the competition procedure — the
   the Development of Vocational Training (Cedefop) (1)                   President of the Court of First Instance has made an order on
                                                                          8 October 1999, the operative part of which is as follows:
(Temporary staff — Installation allowance — Early termi-
      nation of contract — Recovery of undue payment)                     1. It is unnecessary to adjudicate in the application for interim
                                                                               measures;
                         (2000/C 20/40)
                                                                          2. Each party shall bear its own costs.
                   (Language of the case: French)                         (1) OJ C 160 of 5.6.1999.
In Case T-180/98: Elizabeth Cotrim, a probationary official of
the Commission of the European Communities, residing


title: Case C-153/16: Judgment of the Court (Seventh Chamber) of 6 April 2017 — European Commission v Republic of Slovenia (Failure of a Member State to fulfil obligations — Inappropriate storage of a large number of used tyres — Landfill not complying with the requirements fixed by Directives 2008/98/EC and 1999/31/EC — Persistent and continuous danger to the environment and human health)

text:
               29.5.2017

               EN

               Official Journal of the European Union

               C 168/16

         Judgment of the Court (Seventh Chamber) of 6 April 2017 — European Commission v Republic of Slovenia
   (Case C-153/16) (1)

   ((Failure of a Member State to fulfil obligations - Inappropriate storage of a large number of used tyres - Landfill not complying with the requirements fixed by Directives 2008/98/EC and 1999/31/EC - Persistent and continuous danger to the environment and human health))
   (2017/C 168/20)
   Language of the case: Slovenian

      Parties

      Applicant: European Commission (represented by: E. Sanfrutos Cano and D. Kukovec, acting as Agents)

      Defendant: Republic of Slovenia (represented by: A. Grum, acting as Agent)

      Operative part of the judgment

   The Court:

               1)

               Declares that, by accepting in a gravel mine situated on the territory of the municipality of Lovrenc na Dravskem polju (Slovenia) a persistent and continuous danger to the environment and human health, as a result of the inappropriate storage of large quantities of disused tyres, of the mixture of the latter with other waste and the landfill thereof in infringement of the requirements of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, the Republic of Slovenia failed to fulfil its obligations under Article 5(3)(d) of that directive, as well as Articles 12 and 13 and Article 36(1) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives.

               2)

               Dismisses the action as to the remainder.

               3)

               Orders the Republic of Slovenia to bear its own costs and to pay two0thirds of those of the European Commission.

               4)

               Orders the European Commission to bear one-third of its own costs.

      (1)  OJ C 222, 20.6.2016.


title: JUDGMENT OF THE COURT of 14 December 1995 in Joined Cases C-163/94, C-165/94 and C-250/94 (references for a preliminary ruling from the Juzgado Central de lo Penal de la Audiencia Nacional): criminal proceedings against Lucas Emilio Sanz de Lera and Others (Capital movements - Non-member countries - National authorization for the transfer of banknotes)

text:
 No C 64/4              EN                 Official Journal of the European Communities                                       2 . 3 . 96
      1991 laying down the principles governing the                         the internal market, Ireland has failed to fulfil its
      organization of veterinary checks on animals entering                 obligations under Article 26 of that Directive;
      the Community from third countries and amending
      Directives 89/662/EEC, 90/425/EEC and 90/675/EEC,
      Ireland has failed to fulfil its obligations under              2 . orders Ireland to pay the costs.
      Article 30 (1 ) of that Directive;
                                                                      (') OJ No C 202 , 23 . 7 . 1994 .
 2 . orders Ireland to pay the costs.
 (') OJ No C 174, 25 . 6 . 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                of 14 December 1995
                                                                     in Joined Cases C-163/94, C-165/94 and C-250/94
                                                                      ( references for a preliminary ruling from the Juzgado
                                                                      Central de lo Penal de la Audiencia Nacional ): criminal
                                                                     proceedings against Lucas Emilio Sanz de Lera and
                                                                                Others (M
               JUDGMENT OF THE COURT                                  (Capital movements — Non-member countries — National
                         ( Fifth Chamber )                                     authorization for the transfer of banknotes)
                      of 14 December 1995                                                        ( 96/C 64/08 )
in Case C-161/94: Commission of the European
                  Communities v. Ireland (')
                                                                                (Language of the case: Spanish)
 (Failure to fulfil obligations — Directive 90/425/EEC —
           Veterinary checks — Failure to transpose)
                            ( 96/C 64/07 )                           (Provisional translation; the definitive translation will be
                                                                               published in the European Court Reports)
                (Language of the case: English)                      In Joined Cases C-163/94, C-165/94 and C-250/94 :
                                                                     references to the Court under Article 177 of the EC Treaty
                                                                     from the Juzgado Central de lo Penal de la Audiencia
In Case C-161/94 : Commission of the European                        Nacional ( High Court, Criminal Section ), Spain, for a
Communities ( Agents: Jose Luis Iglesias Buhigues and James          preliminary ruling in the criminal proceedings pending
Macdonald Flett) v. Ireland ( Agent: Michael A. Buckley) —           before that court against Lucas Emilio Sanz de Lera ,
application for a declaration that, by failing to bring into         Raimundo Diaz Jimenez and Figen Kapanoglu — on the
force the laws, regulations and administrative provisions            interpretation of Articles 73b, 73c ( 1 ) and 73d ( 1)(b ) of the
necessary to comply with Council Directive 90/425/EEC of             EC Treaty — the Court, composed of G. C. Rodriguez
26 June 1990 concerning veterinary and zootechnical                  Iglesias, President, C. N. Kakouris and G. Hirsch ( Presidents
checks applicable in intra-Community trade in certain live           of Chambers ), G. F. Mancini, F. A. Schockweiler, P. J. G.
animals and products with a view to the completion of the            Kapteyn ( Rapporteur), C. Gulmann, J. L. Murray, P. Jann,
internal market ( OJ No L 224, 1990, p. 29 ), Ireland has            H. Ragnemalm and L. Sevón, Judges; G. Tesauro,
failed to fulfil its obligations under that Directive, in            Advocate-General ; D. Louterman-Hubeau, Principal
particular Article 26 thereof, and under the Treaty                  Administrator, for the Registrar, gave a judgment on
establishing the European Community — the Court ( Fifth              14 December 1995 , the operative part of which is as
                                                                     follows :
Chamber ), composed of: D. A. O. Edward ( Rapporteur ),
President of the Chamber, J. C. Moitinho de Almeida , C.
Gulmann, L. Sevón and M. Wathelet, Judges; C. O. Lenz,
Advocate-General ; R. Grass, Registrar, has given a                  1 . Articles 73b (1 ) and 73d (1)(b) of the EC Treaty
judgment on 14 December 1995 , in which it:                                preclude rules which make the export of coins,
                                                                           banknotes or bearer cheques conditional on prior
                                                                           authorization but do not by contrast preclude a
                                                                           transaction of that nature being made conditional on a
1 . declares that, by failing to bring into force all the laws,            prior declaration. Such rules do not fall within the scope
     regulations and administrative provisions necessary to                of Article 73c (1 ) of the Treaty;
     comply with Council Directive 90/425/EEC of 26 June
     1990 concerning veterinary and zootechnical checks
     applicable in intra-Community trade in certain live             2 . Article 73b (1 ), in conjunction with Articles 73c and
     animals and products with a view to the completion of                 73d (1)(b) of the Treaty, may be relied on before
 ---pagebreak--- 2. 3 . 96            lENj                  Official Journal of the European Communities                                   No C 64/5
      national courts and. may render inapplicable national                          JUDGMENT OF THE COURT
      rules inconsistent therewith .
                                                                                ( Fifth Chamber)
                                                                                of 14 December 1995
(') OJ No C 218 , 6 . 8 . 1994 .
      OJ No C 304, 29 . 10 . 1994 .                                   in    Case    C- 16/95 : Commission of the European
                                                                                Communities v. Kingdom of Spain ( J )
                                                                      (Failure to fulfil obligations not contested — Delay in the
                                                                      refund of VA T to taxable persons not established in the
                                                                                territory of the country)
                                                                                ( 96/C 64/ 10
               JUDGMENT OF THE COURT                                                  (Language of the case: Spanish)
                     of 14 December 1995
in Case C-267/94: French Republic v. Commission of the
                   European Communities ( 1 )                         (Provisional translation; the definitive translation will be
(Residues of starch manufacture — Corn gluten feed —                           published in the European Court Reports)
                     Customs classification)
                            ( 96/C 64/09 )
                                                                      In Case C-16/95 : Commission of the European
                                                                      Communities ( Agents : Blanca Rodriguez Galindo and
                (Language of the case: French)                        Enrico Traversa ) v. Kingdom of Spain ( Agents : Alberto
                                                                      Navarro Gonzalez and Miguel Bravo-Ferrer Delgado ) —
                                                                      application for a declaration that, by disregarding the
(Provisional translation; the definitive translation will be          six-month time limit for the refund of value added tax to
          published in the European Court Reports)                    taxable persons not established in the territory of the
                                                                      country, in accordance with Article 7 ( 4 ) of the Eighth
                                                                      Council Directive ( 79/1072/EEC ) of 6 December 1979 on
In Case C-267/94 : French Republic ( Agents : Catherine de
                                                                      the harmonization of the laws of the Member States relating
Salins and Jean-Louis Falconi ) v. Commission of the
                                                                      to turnover taxes — arrangements for the refund of value
European Communities ( Agents: Francisco de Sousa Fialho
                                                                      added tax to taxable persons not established in the territory
and Jean-Francis Pasquier ) — application for the annulment
                                                                      of the country ( OJ No L 331 , 1979 , p. 11 ), and by failing to
of Commission Regulation (EC ) No 1641 /94 of 6 July 1994             comply with the duty of cooperation imposed on Member
amending Council Regulation ( EEC ) No 2658/87 on the                 States by Article 5 of the EC Treaty, the Kingdom of Spain
tariff and statistical nomenclature and on the Common
                                                                      has failed to fulfil its obligations under the EC Treaty — the
Customs Tariff ( OJ No L 172, 1994 , p. 12 ) — the Court,
                                                                      Court, composed of: D. A. O. Edward, President of the
composed of: G. C. Rodriguez Iglesias, President, C. N.               Chamber, J. -P. Puissochet, J. C. Moitinho de Almeida, P.
Kakouris and G. Hirsch ( Presidents of Chambers ), G. F.
                                                                      Jann ( Rapporteur) and M. Wathelet, Judges; N. Fennelly,
Mancini, F. A. Schockweiler, P.J. G. Kapteyn ( Rapporteur ),
                                                                      Advocate-General ; R. Grass, Registrar, gave a judgment on
C. Gulmann, J. L. Murray, P. Jann, H. Ragnemalm and L.                14 December 1995 , in which it:
Sevon, Judges; D. Ruiz-Jarabo Colomer, Advocate-General;
H. von Holstein, Deputy Registrar, gave a judgment on
14 December 1995 , in which it:
                                                                      1 . declares that, by disregarding the six-month time limit
                                                                          for the refund of value added to tax to taxable persons
1 . annuls Commission Regulation (EC) No 1641 /94 of                      not established in the territory of the country, the
      6 July 1994 amending Council Regulation (EEC)                       Kingdom of Spain has failed to fulfil its obligations
      No 2658/87 on the tariff and statistical nomenclature               under Article 7 (4) of the Eighth Council Directive
      and on the Common Customs Tariff inasmuch as it                      (79/1072/EEC) of 6 December 1979 on the
      provides that residues from the manufacture of starch               harmonization ofthe laws of the Member States relating
      from maize may contain residues resulting from the                   to turnover taxes — Arrangements for the refund of
      screening of maize used in the wet process in a                      value added tax to taxable persons not established in the
      proportion not exceeding 15% by weight and residues                  territory of the country;
      of steep-water used in the manufacture of alcohol or
      other starch-derived products;
                                                                      2 . orders the Kingdom of Spain to pay the costs.
2 . orders the Commission to pay the costs.
                                                                      (!) OJ No C 54 , 4 . 3 . 1995 .
f 1 ) OJ No C 316 , 12 . 11 . 1994 .


title: Case C-173/00: Reference for a preliminary ruling by the Fourth Chamber of the Consiglio di Stato, sitting in its judicial capacity, by order of that court of 12 November 1999 in the case of ANAS — Ente Nazionale per le Strade against SCA RL CMC Cooperativa Muratori Cementisti Ravenna and SpA ICLA Costruzioni Generali and SpA Impresa Toto e Toto

text:
C 192/12              EN                   Official Journal of the European Communities                                         8.7.2000
Reference for a preliminary ruling from the Landesgericht             Pleas in law and main arguments
Linz, Austria, by order of that court of 6 April 2000 in
the case of Simone Leitner, a minor, v TUI Deutschland                — Infringement of Article 14(2)(2)(a) of the Rules of Pro-
                        GmbH & Co KG                                      cedure of the Court of First Instance, as amended by the
                                                                          decision adopted by the Court of First Instance of the
                                                                          European Communities on 17 May 1999 with a view to
                        (Case C-168/00)
                                                                          enabling it to give decisions in cases when constituted by
                                                                          a single judge (2): the case was delegated by the First
                        (2000/C 192/20)                                   Chamber to the Judge-Rapporteur sitting as a single judge
                                                                          and determined by that judge in that capacity, despite the
Reference has been made to the Court of Justice of the                    fact that it raised the question of the legality of points 2.3
European Communities by an order of the Landesgericht                     and 3.2 of the document entitled ‘Requests and Complaints
(Regional Court), Linz, of 6 April 2000, which was received at            pursuant to Article 90 of the Staff Regulations’, published
the Court Registry on 8 May 2000, for a preliminary ruling in             by the Commission in Administrative Notices No 635 of
the case of Simone Leitner, a minor, v TUI Deutschland GmbH               16.7.1990. In addition, the case raised the question of the
& Co KG, on the following question:                                       legality of the second paragraph of Article 3 of the
                                                                          Commission’s decision of 1 September 1983 on the
                                                                          criteria applicable to appointment in grade and classifi-
Is Article 5 of Council Directive 90/314/EEC of 13 June 1990              cation in step on recruitment.
on package travel, package holidays and package tours (1) to
be interpreted as meaning that compensation is in principle           — Infringement of the second paragraph of Article 2 of the
payable in respect of claims for damages for non-material                 Commission’s decision of 1 September 1983 on the
damage?                                                                   criteria applicable to appointment in grade and classifi-
                                                                          cation in step on recruitment, and of Articles 31 and 32 of
                                                                          the Staff Regulations, which apply to members of the
(1) OJ 1990 L 158, p. 59.
                                                                          temporary staff by virtue of Article 5 of that decision: both
                                                                          Article 31 and Article 32 of the Staff Regulations are
                                                                          designed, in particular, to permit the appointing authority
                                                                          to take into account qualifications and professional experi-
                                                                          ence gained prior to recruitment by the Communities.
                                                                          Consequently, a provision having the object or effect of
                                                                          restricting that possibility, by prohibiting the taking into
                                                                          account of the experience acquired by the person con-
Appeal brought on 10 May 2000 by Alain Libéros against                    cerned between the date of his being offered employment
the judgment delivered on 9 March 2000 by the Court of                    and the date of his entry into the service of the Communi-
First Instance of the European Communities (single judge)                 ties, would be contrary to those articles.
in Case T-29/97 between Alain Libéros and the Com-
           mission of the European Communities                        — Breach of the obligation to provide reasons for judgments,
                                                                          according to which, in particular, the grounds stated must
                       (Case C-171/00 P)                                  be legally permissible, that is to say, adequate, relevant, not
                                                                          vitiated by errors of law or of fact and not inconsistent.
                        (2000/C 192/21)
                                                                      (1) OJ C 122 of 29.4.2000, p. 30.
                                                                      (2) OJ L 135 of 29.5.1999, p. 92.
An appeal against the judgment delivered on 9 March 2000
by the Court of First Instance of the European Communities
(single judge) in Case T-29/97 between Alain Libéros and the
Commission of the European Communities was brought
before the Court of Justice of the European Communities on
10 May 2000 by Alain Libéros, represented by Marc-Albert
Lucas, of the Liège Bar, with an address for service in
Luxembourg at the Chambers of Luc Tecqmenne, 3 Rue des                Reference for a preliminary ruling by the Fourth Chamber
Capucins.                                                             of the Consiglio di Stato, sitting in its judicial capacity, by
                                                                      order of that court of 12 November 1999 in the case of
                                                                      ANAS — Ente Nazionale per le Strade against SCA RL
The appellant claims that the Court should:                           CMC Cooperativa Muratori Cementisti Ravenna and SpA
                                                                      ICLA Costruzioni Generali and SpA Impresa Toto e Toto
— annul the judgment delivered on 9 March 2000 by the
    Court of First Instance in Case T-29/97 Libéros v Com-
    mission of the European Communities (1);                                                   (Case C-173/00)
— allow the claims put forward in the proceedings at first                                     (2000/C 192/22)
    instance;
                                                                      Reference has been made to the Court of Justice of the
— order the Commission to pay the costs.                              European Communities by order of the Fourth Chamber of
 ---pagebreak--- 8.7.2000               EN                      Official Journal of the European Communities                                        C 192/13
the Consiglio di Stato, sitting in its judicial capacity, of              Reference for a preliminary ruling by the Hoge Raad der
12 November 1999, received at the Court Registry on 10 May                Nederlanden (Supreme Court of the Netherlands) by
2000, for a preliminary ruling in the case of ANAS — Ente                 judgment of that court of 3 May 2000 in the case
Nazionale per le Strade against SCA RL CMC Cooperativa                    of Kennemer Golf & Country Club against Inspecteur
Muratori Cementisti Ravenna and SpA ICLA Costruzioni                        Belastingdienst Particulieren/Ondernemingen Haarlem
Generali and SpA Impresa Toto e Toto on the following
questions:
                                                                                (Case C-174/00)
(1) In calls for tenders for public works contracts, do clauses
     excluding undertakings which have not submitted with
     their tenders explanations concerning components of the                                        (2000/C 192/23)
     price indicated, amounting to at least 75 % of the figure
     specified in the tender conditions, represent an obstacle to
     the application of Article 30(4) of Directive 93/37? (1)             Reference has been made to the Court of Justice of the
                                                                          European Communities by judgment of the Hoge Raad der
                                                                          Nederlanden (Supreme Court of the Netherlands) of 3 May
(2) Does the establishment of a mechanism for determining                 2000, received at the Court Registry on 9 May 2000, for a
     the threshold indicative of irregularity, below which the            preliminary ruling in the case of Kennemer Golf & Country
     validity of tenders falls to be verified, on the basis of an ad      Club against Inspecteur Belastingdienst Particulieren/Onder-
     hoc criterion and an arithmetical mean, automatically so             nemingen Haarlem on the following questions:
     that undertakings are unable to ascertain the threshold in
     advance, represent an obstacle to the application of
     Article 30(4) of Directive 93/37?                                    1. (a) Where it is necessary to establish whether or not
                                                                                a body aims to make a profit as referred to in
                                                                                Article 13(A)(1)(m) of the Sixth Directive, must
                                                                                account be taken solely of earnings from the services
(3) Does the fact that the exchange of views is to take place at                  referred to in that provision or must earnings from
     an earlier stage, without the undertaking which has                          other benefits provided by it also be taken into
     allegedly submitted an irregular tender being assured of an                  consideration?
     opportunity to state its reasons, after the opening of the
     envelopes and before the adoption of the measure exclud-
     ing it, represent an obstacle to the application of                      (b) If, in determining whether or not the aim is to make a
     Article 30(4) of Directive 93/37?                                            profit, account must be taken solely of the services
                                                                                supplied by the body as referred to in
                                                                                Article 13(A)(1)(m) of the Sixth Directive and not total
                                                                                earnings, must only the costs incurred directly for
(4) Does a provision under which the contracting authority                        the services be taken into consideration or also a
     may take account of explanations relating solely to the                      proportion of the body’s other costs?
     economy of the construction method or the technical
     solutions adopted or the exceptionally favourable con-
     ditions available to the tenderer represent an obstacle to           2. (a) Is there a direct link, within the meaning of inter alia
     the application of Article 30(4) of Directive 93/37?                         the judgment of the Court of Justice of the European
                                                                                Communities in Case 102/85 Apple and Pear Develop-
                                                                                ment Council [1988] ECR 1443, in the case of
(5) Does the [exclusion] of explanations relating exclusively to                  subscription fees charged by an association which,
     items for which minimum values have been established by                      pursuant to the object laid down in its articles of
     administrative provisions or can be inferred from official                   association, provides its members with sports facilities
     lists represent an obstacle to the application of                            in the context of an association and, if not, is the
     Article 30(4) of Directive 93/37?                                            association to be regarded as a taxable person within
                                                                                the meaning of Article 4(1) of the Sixth Directive only
                                                                                in so far as it also provides benefits for which it receives
                                                                                direct consideration?
(1) Council Directive 93/37/EEC of 14 June 1993 concerning the
    coordination of procedures for the award of public works                  (b) Must the total amount of the annual subscription fees
    contracts (OJ L 199 of 9.8.1993, p. 54).                                      from the members whom the association provides
                                                                                with sports facilities be included in the earnings of a
                                                                                body in the form of an association which are to be
                                                                                taken into account in determining whether or not the
                                                                                aim is to make a profit as described in the first question
                                                                                even where no direct link exists between the various
                                                                                benefits provided by the association for its members
                                                                                and the subscription fee paid by them?


title: Case C-208/07: Judgment of the Court (Third Chamber) of 16 July 2009 (reference for a preliminary ruling from the Bayerisches Landessozialgericht (Germany)) — Petra von Chamier Glisczinski v Deutsche Angestellten-Krankenkasse (Social security — Regulation (EEC) No 1408/71 — Title III, Chapter 1 — Articles 18 EC, 39 EC and 49 EC — Benefits in kind intended to cover the risk of reliance on care — Residence in a Member State other than the competent State — Social security system of the Member State of residence not including benefits in kind linked to the risk of reliance on care)

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/2

         Judgment of the Court (Third Chamber) of 16 July 2009 (reference for a preliminary ruling from the Bayerisches Landessozialgericht (Germany)) — Petra von Chamier Glisczinski v Deutsche Angestellten-Krankenkasse
   (Case C-208/07) (1)

   (Social security - Regulation (EEC) No 1408/71 - Title III, Chapter 1 - Articles 18 EC, 39 EC and 49 EC - Benefits in kind intended to cover the risk of reliance on care - Residence in a Member State other than the competent State - Social security system of the Member State of residence not including benefits in kind linked to the risk of reliance on care)
   2009/C 220/02
   Language of the case: German

      Referring court

   Bayerisches Landessozialgericht

      Parties to the main proceedings

      Applicant: Petra von Chamier Glisczinski

      Defendant: Deutsche Angestellten-Krankenkasse

      Re:

   Reference for a preliminary ruling — Bayerisches Landessozialgericht — Interpretation of Article 19(1)(a) and 19(2) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971(II), p. 416) in the light of Articles 18 EC, 39 EC and 49 EC and in conjunction with Article 10 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475) — National legislation under which a member of the family of an employed person residing in a Member State other than the competent State and in receipt in the competent Member State of combined benefits (cash benefits and benefits in kind) is entitled only to be paid a care allowance (‘Pflegegeld’), calculated in accordance with the law of the competent State, where the legislation of the State of residence does not provide for benefits in kind in respect of care received in that Member State — Export of benefits in kind to another Member State whose social security system provides only for cash benefits.

      Operative part of the judgment

               1.

               Where, unlike the social security system of the competent State, that of the Member State of residence of a person reliant on care, insured as a member of the family of an employed or self-employed person within the meaning of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended in turn by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, does not provide for the provision of benefits in kind in situations of reliance on care such as those of that person, Articles 19 or 22(1)(b) of that regulation do not of themselves require the provision of such benefits outside the competent State by or on behalf of the competent institution.;

               2.

               Where, unlike the social security system of the competent State, that of the Member State of residence of a person reliant on care, insured as a member of the family of an employed or self-employed person within the meaning of Regulation No 1408/71, as amended and updated by Council Regulation No 118/97, as amended in turn by Regulation No 1386/2001, does not provide for the provision of benefits in kind in given situations of reliance on care, Article 18 EC does not preclude, in circumstances such as those of the main proceedings, legislation such as that introduced by Paragraph 34 of Book XI of the Social Security Code (Sozialgesetzbuch), on the basis of which a competent institution refuses in such circumstances to pay, independently of the mechanisms introduced by Article 19 or, as the case may be, Article 22(1)(b) of that regulation and for an unlimited period, the costs linked to a stay in a care home situated in the Member State of residence up to an amount equal to the benefits to which that person would have been entitled if he had received the same care in a care home — party to a service agreement — situated in the competent State.

      (1)  OJ C 155, 07.07.2007.