title: Case T-188/12: Action lodged on 30 April 2012 — Breyer v Commission

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/24

         Action lodged on 30 April 2012 — Breyer v Commission
   (Case T-188/12)
   2012/C 194/41
   Language of the proceedings: German

      Parties

      Applicant: Patrick Breyer (Wald-Michelbach, Germany) (represented by: M. Starostik, lawyer)

      Defendant: European Commission

      Form of order sought by the applicant

               —

               Annul the Decision of the Commission of 16 March 2012 on Az. Ares(2012)313186;

               —

               Annul the Decision of the Commission of 3 April 2012 on Az. Ares(2012)399467 in so far as access to the written submissions of Austria in proceedings C-189/09 has not been granted;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant claims with regard to the Decision of the Commission of 16 March 2012:

               1.

               First plea in law, alleging incorrect application of the second indent of Article 4(2) of Regulation (EC) No 1049/2001 (1) (protection of legal advice)

                           —

                           According to the applicant, it does not adversely affect the protection of legal advice to publish legal opinion Ares(2010) 828204 of the Commission’s legal service, which discusses the question of whether Directive 2006/24/EC (2) can be amended so that it is left to Member States of the European Union whether or not to ‘retain’ telecommunications data of all citizens without suspicion and cause for a hypothetical case of need.

                           —

                           In any case, the public interest outweighs the knowledge of the opinion.

               2.

               Second plea in law, alleging incorrect application of Article 4(3) first sub paragraph of Regulation No 1049/2001 (protection of the decision-making process)

                           —

                           According to the applicant, it does not adversely affect the protection of the decision-making process of the Commission to publish the legal opinion mentioned above of the Commission’s legal service.

                           —

                           In any case, the public interest outweighs the knowledge of the opinion.

         In support of the action, with regard to the Decision of the Commission of 3 April 2012, the applicant pleads the incorrect application of Article 2(3) of Regulation No 1049/2001. In that regard, the applicant claims that, contrary to the view of the Commission, the written submissions of a Member State (here: Austria) to the European Court of Justice (here: in proceedings C-189/09), copies of which the Commission received as a party to the proceedings, are subject to the scope of application of Regulation No 1049/2001.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

      (2)  Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).


title: Case T-526/11: Order of the General Court of 30 April 2012 — Igcar Chemicals v ECHA

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/20

         Order of the General Court of 30 April 2012 — Igcar Chemicals v ECHA
   (Case T-526/11) (1)

   2012/C 184/41
   Language of the case: Spanish
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 347, 26.11.2011.


title: Case T-140/17 R: Order of the President of the General Court of 23 March 2017 — Kampete v Council (Application for interim measures — Restrictive measures — Democratic Republic of the Congo — Application for suspension of operation of a measure — No urgency)

text:
               6.6.2017

               EN

               Official Journal of the European Union

               C 178/23

         Order of the President of the General Court of 23 March 2017 — Kampete v Council
   (Case T-140/17 R)
   ((Application for interim measures - Restrictive measures - Democratic Republic of the Congo - Application for suspension of operation of a measure - No urgency))
   (2017/C 178/33)
   Language of the case: French

      Parties

      Applicant: Ilunga Kampete (Kinshasa, Democratic Republic of the Congo) (represented by: O. Okito and A. Ouannès, lawyers)

      Defendant: Council of the European Union

      Re:

   Application based on Articles 278 TFEU and 279 TFEU, seeking suspension of the operation of Council Regulation (EU) 2016/2230 of 12 December 2016 amending Council Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2016 L 336 I, p. 1).

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case C-278/02: Reference for a preliminary ruling by the Berufungssenat I der Region Linz bei der Finanzlandesdirektion für Oberösterreich mit Sitz in Linz by order of that Court of 11 July 2002 in the appeal bought by Herbert Handlbauer GmbH

text:
23.11.2002              EN                      Official Journal of the European Communities                                       C 289/7
Reference for a preliminary ruling by the Berufungssenat I                 Action brought on 14 August 2002 by the Commission
der Region Linz bei der Finanzlandesdirektion für Ober-                    of the European Communities against (1) Alcatel Microe-
österreich mit Sitz in Linz by order of that Court of                      lectronics N.V., (2) A-Consult EDV-Beratungsgesellschaft
11 July 2002 in the appeal bought by Herbert Handlbauer                    mbH, (3) Intracom S.A. Hellenic Telecommunications &
                                GmbH                                       Electronic Industry, (4) Ision Sales & Services GmbH &
                                                                           Co. KG, (5) Euram-Kamino GmbH, (6) Landesbank Kiel,
                                                                              Girozentrale and (7) InterTeam GmbH in liquidation
                          (Case C-278/02)
                                                                                (Case C-294/02)
                          (2002/C 289/11)                                                          (2002/C 289/12)
                                                                           An action against (1) Alcatel Microelectronics N.V., (2)
                                                                           A-Consult EDV-Beratungsgesellschaft mbH, (3) Intracom S.A.
                                                                           Hellenic Telecommunications & Electronic Industry, (4) Ision
Reference has been made to the Court of Justice of the                     Sales & Services GmbH & Co. KG, (5) Euram-Kamino GmbH,
European Communities by order of the Berufungssenat I der                  (6) Landesbank Kiel, Girozentrale and (7) InterTeam GmbH in
Region Linz bei der Finanzlandesdirektion für Oberösterreich               liquidation was brought before the Court of Justice of the
mit Sitz in Linz (Linz Regional Appeal Board I at the Provincial           European Communities on 14 August 2002 (received at the
Finance Directorate for Upper Austria, in Linz) of 11 July                 Court of First Instance on 12 August 2002) by the Commission
2002, received at the Court Registry on 29 July 2002, for a                of the European Communities, represented by Günter Wilms,
preliminary ruling in the appeal brought by Herbert Handlbau-              of its Legal Service, assisted by Rolf Karpenstein, lawyer, with
er GmbH on the following questions:                                        an address for service in Luxembourg.
1.    Is Council Regulation (EC, Euratom) No 2988/95 of                    The Commission of the European Communities claims that
      18 December 1995 on the protection of the European                   the Court should:
      Communities’ financial interests (1) directly applicable in
      the Member States, in particular in the field of organis-
      ations of the market (export refunds) where there are                (1) order the defendants, as joint and several debtors, to pay
      irregularities?                                                            to the applicant EUR 317 214,00 plus interest at the rate
                                                                                of 2 % above the rate applied by the European Monetary
                                                                                Institute for euro transactions on the sum of
                                                                                EUR 125 820,00 since 8 June 1998 and on the sum of
      a.    Is Article 3(1) of the said regulation, which lays down
                                                                                EUR 191 394,00 since 6 May 1999;
            a limitation period of four years for proceedings
            concerning irregularities, directly applicable by the
            customs authorities of the Member States?                      (2) order the defendants to pay the costs.
2.    Is the announcement of a customs inspection made to
      the relevant responsible persons of an undertaking an act
      relating to investigation or legal proceedings which                 Pleas in law and main arguments
      interrupts the limitation period of four years under
      Article 3(1) of the said regulation, if the inspection takes
      place under Regulation (EEC) No 4045/89 (2) because of               By its action, the applicant seeks repayment of the difference
      the generally known risk or the frequency of acts                    between the advances paid by way of assistance towards a
      prejudicial to the financial interests of the Community in           project the ‘Electronic Commerce Fulfilment Service for the
      implementing the common agricultural policy?                         Electronics Industry’) and the financial contribution to be
                                                                           acknowledged as contractually due from the Commission. It is
                                                                           claimed that the Court of Justice has jurisdiction in the matter
                                                                           by virtue of an agreed jurisdiction clause (reading: ‘The Court
( 1) OJ L 312 [1995], p. 1.                                                of First Instance of the European Communities, ... shall have
( 2) OJ L 388 [1989], p. 18.                                               exclusive jurisdiction in any dispute between the Commission
                                                                           and the Contractors concerning the validity, application and
                                                                           interpretation of this contract’).


title: Action brought on 3 May 1995 by Pierre Jaminon against the Council of the European Union and the Commission of the European Communities (Case T-111/95)

text:
No C 189/18         ΓΕΝ                   Official Journal of the European Communities                                       22 . 7. 95
Action brought on 3 May 1995 by Pierre Jaminon against               No 1639/91 , and that that condition was properly satisfied
the Council of the European Union and the Commission of              in this case, since the provisional specific reference allocated
                 the European Communities                            to him has been turned into a definitive reference by an order
                       ( Case T-111/95 )                             of the Prefect of the Ardennes of 1 August 1991 .
                         ( 95/C 189/37)                              Furthermore, he points out that the decision at issue in the
                                                                     dispute is the result of a mistaken assessment of the facts of
               (Language of the case: French)                        the matter by the competent authority.
An action against the Council of the European Union and
the Commission of the European Communities was brought
before the Court of First Instance of the European
Communities on 3 May 1995 by Pierre Jaminon, resident at
Beaulieu ( France ), represented by Bernard Peignot and              Action brought on 12 May 1995 by European Fertilizer
Denis Garreau, avocats to the Council of State and Court of          Manufacturers Association against the Council of the
Cassation, with an address for service in Luxembourg at the                                   European Union
Chambers of Aloyse May, 31 Grand-Rue .
                                                                                ( Case T-121/95 )
The applicant claims that the Court should :                                                    ( 95/C 189/38 )
— order the Council of the European Union and the                                     (Language of the case: English)
    Commission of the European Communities, each as far
    as it is concerned, acting respectively through its duly
    appointed representatives, jointly and severally to              An action against the Council of the European Union was
    compensate Mr Jaminon for the damage suffered by him             brought before the Court of First Instance of the European
    as a result of the application of Council Regulation             Communities on 12 May 1995 by the European Fertilizer
    ( EEC ) No 857/84 of 3 March 1984, as amended , in as            Manufacturers Association, represented by M. Dominique
    much as that Regulation did not provide for the                  Voillemot and M. Hubert de Broca, with an address for
    allocation of a reference quantity to producers who, in          service in Luxembourg at the Chambers of Loesch and
    performance of an undertaking given pursuant to                  Wolter, 11 Rue Goethe, BP 1107, L-1011 Luxembourg.
    Council Regulation ( EEC ) No 1078/77 of 17 May 1977,
    had not delivered milk during the reference year used by         The applicant claims that the Court should :
    France ,
                                                                     — annul Article 1 of Council Regulation ( EC ) No 477/95
— consequently order payment to Mr Jaminon of the sum                      amending the definitive anti-dumping measures
    of FF 173 232,36 by way of compensation, together                      applying to imports into the Community of urea
    with interest thereon at the rate of 8 % to run from the               originating in the former USSR and terminating the
    date of the offer made to the applicant on 29 June 1994                anti-dumping measures applying to imports into the
    and subsequently withdrawn, or, at least, from the date                Community of urea originating in the former
    of the judgment to be given,                                           Czechoslovakia (*),
— order the defendants to pay all the costs .                        — order that such anti-dumping duty imposed by that
                                                                           provision be maintained until the competent institutions
Pleas in law and main arguments adduced in support:                        adopt more stringent measures needed to comply with
The applicant, a farmer who had given an undertaking not                   the hereby requested judgment, and
to market milk pursuant to Regulation ( EEC ) No 1078/77,
                                                                    — order the Council to pay the costs .
was allocated a provisional specific quantity and was
offered compensation under Regulation ( EEC ) No 21 87/93 ,
challenges the decision of the Office National                       Pleas in law and main arguments adduced in support:
Interprofessionnel du Lait ( National Milk Trades Board,
Onilait ) refusing to pay him that compensation on the              The applicant submits that Article 1 of the contested
ground that his specific reference quantity cannot be                Regulation is void for the following reasons:
regarded as definitive, since he has never personally resumed
milk production, contrary to Article 3 ( 3 ) of Regulation           ( a ) With regard to the calculation of normal value: the
( EEC ) No 857/84 . In that connection, the applicant points                choice of the Slovak Republic as the reference country
out that in carrying on his milk-producing operations he                    infringes Article 2 ( 5 ) of the Council Regulation ( EEC )
uses cows belonging to him and milking machinery                            No 2423/88 of 11 July 1988 on protection against
belonging to a neighbouring producer, under a scheme of                     dumped or subsidized imports from countries not
mutual aid between them .                                                   members of the European Economic Community.
The applicant considers that the decision at issue is contrary       ( b ) With regard to the comparison between normal value
to the applicable Community legislation inasmuch as                         and export price: by comparing normal value and
compensation is to be paid as soon as the person concerned                  export price at two obviously different stages, i.e. at the
has been allocated a definitive specific reference quantity as              ex-works level and at the ex-frontier level respectively,
provided by either Regulation ( EEC ) No 764/89 or ( EEC )                  the defendant :


title: Case F-128/11: Action brought on 2 December 2011 — ZZ v EIB

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/21

         Action brought on 2 December 2011 — ZZ v EIB
   (Case F-128/11)
   2012/C 65/40
   Language of the case: Italian

      Parties

      Applicant: ZZ (represented by: L. Isola, lawyer)

      Defendant: EIB

      Subject-matter and description of the proceedings

   In the first place, application for annulment of the e-mail messages and decisions of the EIB concerning the administrative procedure relating to the applicant’s performance appraisal for 2010. In the second place, application for annulment of the decision whereby the President of the EIB refused to instigate the conciliation procedure under Article 41 of the Staff Regulations. In the third place, application for annulment of the applicant’s staff report for 2010 in so far as it does not classify his performance as ‘exceptional’ or ‘very good’ and does not propose that he be promoted to Function D. Finally, an application for an order that the EIB pay compensation for the material and non-material damage that the applicant claims he has sustained.

      Form of order sought

               —

               Annul (i) the e-mail message dated 4 July 2011 by which ‘the secretariat’ of the Adjudication Panel under Article 22 of the Staff Regulations and the Note to StaffHR/P&O/2011-079/Ks of 25 March 2010 informed the applicant that he had never handed over to the ‘Panel’ a copy of his appeal against the staff appraisal for 2010, (ii) the e-mail message of 12 August 2011 by which the ‘secretariat’ informed the applicant that the Adjudication Panel intended to hear the parties solely on the question of admissibility of the appeal and (iii) the decision of 27 September 2011 by which the ‘Panel’ took note of the applicant’s discontinuance of his appeal;

               —

               annul the Note to Staff HR/P&O/2011-079/Ks of 25 March 2011 and the Note CD/Pres/2011-35 of 6 September 2011, by which, following a request from applicant by note of 2 August 2011 and a further application by e-mail of 2 September 2011, the President of the EIB refused to initiate the conciliation procedure under Article 41 of the Staff Regulations, asserting that it had been superseded by the abovementioned Note to Staff …;

               —

               annul the guidelines established by the HR division by note 698 RH/P&O/2010-0265 of 20 December 2010 and the corresponding ‘Guidelines to the 2010 annual staff appraisal exercise’, including the section in which (point 12.1) they provide that the final evaluation must be expressed by means of a summary description but do not establish the criteria which must be used by the appraiser in order for performance to be regarded as ‘exceptional … exceeding expectations’, ‘very good’ or ‘[meeting] all expectations’, nor for performance to be regarded as ‘[meeting] most expectations with areas for improvement’ or as ‘[failing] to meet expectations’;

               —

               annul the entire staff report for 2010, including the part containing the appraisal, the part in which performance is not summarised as ‘exceptional’ or ‘very good’ and in which no proposal is made to promote the applicant to Function D and the part in which objectives are set for 2011;

               —

               annul all the connected, consequent and preliminary measures and documents, which will certainly include the promotions referred to in the note from the Director of Human Resources ‘2010 staff appraisal exercise, award of promotions and titles’ of April 2011, given that, in view of the appraisal made by the applicant’s line managers and challenged in this action, the EIB failed to take the applicant into consideration in the point ‘Promotions from Function E to D’;

               —

               order the EIB to pay compensation for the material and non-material damage sustained;

               —

               order the EIB to pay the costs.


title: Case T-457/12: Action brought on 18 October 2012 — Stromberg Menswear v OHIM — Leketoy Stormberg Inter (STORMBERG)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/20

         Action brought on 18 October 2012 — Stromberg Menswear v OHIM — Leketoy Stormberg Inter (STORMBERG)
   (Case T-457/12)
   2013/C 63/40
   Language in which the application was lodged: English

      Parties

      Applicant: Stromberg Menswear Ltd (Leeds, United Kingdom) (represented by: A. Tsoutsanis, lawyer, and C. Tulley, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Leketoy Stormberg Inter AS (Kristiansand S, Norway)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2012 in case R 428/2012-4;

               —

               Alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2012 in case R 428/2012-4 and grant the request for re-establishment of rights, and i) primarily, annul the decision of OHIM to allow conversion, or, ii) alternatively, allow Stromberg Menswear to appeal the decision of OHIM to allow the conversion and refer the appeal back to the Board of Appeal; and

               —

               Order OHIM to pay any and all costs and legal fees incurred by Stromberg Menswear in connection with the proceedings before the Board of Appeal and before the General Court.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which an application for revocation has been made: The word mark ‘STORMBERG’, for goods and services in class 25 — Community trade mark registration No 2557155

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

      Party applying for revocation of the Community trade mark: The applicant

      Decision of the Cancellation Division: Declared the cancellation proceedings closed following a surrender of the contested CTM by its proprietor

      Decision of the Board of Appeal: Dismissed the appeal as inadmissible

      Pleas in law:

               —

               Infringement of Articles 57 to 60 of Council Regulation No 207/2009 and Rule 48(1)(c) of Commission Regulation No 2868/95;

               —

               Infringement of Article 81 of Council Regulation No 207/2009;

               —

               Infringement of Article 75 of Council Regulation No 207/2009.


title: Case T-159-07: Judgment of the General Court of 10 December 2009 — Cofac v Commission (ESF — Reduction of financial assistance — Training schemes — Rights of the defence — Right to a fair hearing)

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/33

         Judgment of the General Court of 10 December 2009 — Cofac v Commission
   (Case T-159-07) (1)

   (ESF - Reduction of financial assistance - Training schemes - Rights of the defence - Right to a fair hearing)
   2010/C 37/43
   Language of the case: Portuguese

      Parties

      Applicant: Cofac — Cooperativa de Formação e Animação Cultural, CRL (Lisbon, Portugal) (represented by: L. Gomes, J. Ortigão and C. Peixoto, lawyers)

      Defendant: European Commission (represented by: P. Guerra e Andrade and A. Steiblytė, Agents)

      Re:

   Annulment of Commission Decision D(2004) 24253 of 9 November 2004 reducing the amount of assistance granted to the applicant by the European Social Fund by Decision No C(87) 0860 of 30 April 1987 for training schemes (file No 870927 P1)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Cofac — Cooperativa de Formação e Animação Cultural, CRL to pay the costs.

      (1)  OJ C 155, 7.7.2007.


title: Case C-13/09: Action brought on 9 January 2009 — Commission of the European Communities v Italian Republic

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/21

         Action brought on 9 January 2009 — Commission of the European Communities v Italian Republic
   (Case C-13/09)
   (2009/C 55/36)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: C. Cattabriga and S. Mortoni, acting as Agents)

      Defendant: Italian Republic
   Forms of order sought

               —

               Declare that the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 11(1) of Commission Directive 2006/86/EC (1) of 24 October 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2006/86/EC or, in any event, by not communicating those measures to the Commission.

               —

               Order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposition of Directive 2006/86/EC expired on 1 September 2007.

      (1)  OJ 2006 L 294, p. 32.


title: Case F-135/12: Judgment of the Civil Service Tribunal (First Chamber) of 12 December 2013 — Marenco v REA (Civil service — Temporary staff — Recruitment — Call for expressions of interest REA/2011/TA/PO/AD 5 — Non-inclusion on the reserve list — Validity of the selection procedure — Stability of the composition of the selection committee)

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/29

         Judgment of the Civil Service Tribunal (First Chamber) of 12 December 2013 — Marenco v REA
   (Case F-135/12) (1)

   (Civil service - Temporary staff - Recruitment - Call for expressions of interest REA/2011/TA/PO/AD 5 - Non-inclusion on the reserve list - Validity of the selection procedure - Stability of the composition of the selection committee)
   2014/C 39/53
   Language of the case: English

      Parties

      Applicant: Claudia Marenco (Brussels, Belgium) (represented by: S. Rodrigues, A. Blot and A. Tymen, lawyers)

      Defendant: Research Executive Agency (REA) (represented by: S. Payan-Lagrou, acting as Agent, and by B. Wägenbaur, lawyer)

      Re:

   Application for annulment of the decision not to include the applicant on the reserve list of the REA/2011/TA/PO/AD 5 selection procedure.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision communicated by e-mail of 12 March 2012 to Ms Marenco by which the selection committee of the Call for expressions of interest REA/2011/TA/PO/AD 5 refused, after review, to include Ms Marenco’s name on the reserve list at the end of the selection procedure.

               2.

               Declares that the Research Executive Agency is to bear its own costs and orders it to pay the costs incurred by Ms Marenco.

      (1)  OJ C 26, 26.1.2013, p. 74.


title: Case C-288/09: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 24 July 2009 — British Sky Broadcasting Group plc v The Commissioners for Her Majesty's Revenue & Customs

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/9

         Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 24 July 2009 — British Sky Broadcasting Group plc v The Commissioners for Her Majesty's Revenue & Customs
   (Case C-288/09)
   2009/C 256/16
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicant: British Sky Broadcasting Group plc

      Defendant: The Commissioners for Her Majesty's Revenue & Customs

      Questions referred

               1.

               Is a set-top box with the specifications of the Sky+ set-top box model DRX 280 to be classified under subheading 8528 71 13, as set out in Commission Regulation 1214/2007 (1) amending Annex I to Council Regulation 2658/87, despite the Explanatory Notes to the CN adopted by the Commission on 7 May 2008 (2008/C 112/03) concerning subheading 8521 90 00 and subheading 8528 71 13?

               2.

               Does Article 12(5)(a) of Council Regulation (EEC) No 2913 (2) of 12 October 1992 establishing the Community Customs Code, as amended, oblige a national customs authority to issue binding tariff informations that accord with the explanatory notes to the CN, unless and until those explanatory notes have been declared to be in conflict with the wording of the relevant provisions of the CN, including the General Rules for the Interpretation of the CN, or may the national customs authorities form their own individual view of the matter and disregard the explanatory note in the event they consider there to be such a conflict?

               3.

               In the event that a set-top box with the specifications of the Sky+ set-top box model DRX 280 were to be classified under CN subheading 8521 90 00, would the application of a positive rate of customs duty be unlawful as a matter of Community law, as a consequence of violating the Community's obligations under the Information Technology Agreement (‘ITA’) and Article II: l(b) of the General Agreement on Tariffs and Trade 1994 or does classification under heading 8521 entail a conclusion that the product in question falls outside the scope of the relevant part of the ITA?

      (1)  Commission Regulation (EC) No 1214/2007 of 20 September 2007 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff
   OJ L 286, p. 1

      (2)  OJ L 302, p. 1


title: Case T-368/06: Order of the Court of First Instance of 5 May 2008 — Rath v OHIM — Sanorell Pharma (Immunocel)

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/30

         Order of the Court of First Instance of 5 May 2008 — Rath v OHIM — Sanorell Pharma (Immunocel)
   (Case T-368/06) (1)

   (2008/C 183/57)

      Language of the case: German

   The President of the Eighth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 56, 10.3.2007.


title: Case T-93/12: Order of the General Court of 12 July 2012 — Gas v OHIM — Grotto (BLUE JEAN GAS)

text:
               8.9.2012

               EN

               Official Journal of the European Union

               C 273/23

         Order of the General Court of 12 July 2012 — Gas v OHIM — Grotto (BLUE JEAN GAS)
   (Case T-93/12) (1)

   2012/C 273/44
   Language of the case: French
   The President of the Fourth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 126, 28.4.2012.


title: Case T-487/04: Action brought on 15 December 2004 by Falcon Sporting Goods AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/33

         Action brought on 15 December 2004 by Falcon Sporting Goods AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-487/04)
   (2005/C 57/56)
   Language in which the application was lodged: French
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 15 December 2004 by Falcon Sporting Goods AG, established in Zug (Switzerland), represented by Jörg Weigell, lawyer.
   The applicant claims that the Court should:

               —

               annul Decision R 176/2004-2 of the Second Board of Appeal of OHIM of 29 September 2004;

               —

               order OHIM to pay all the costs.

         Pleas in law and main arguments

               Community trade mark sought:

               Word mark ‘BIN LADIN’ for goods and services in Classes 9, 12, 14, 18, 25, 28, 35 and 41 – Application No 2 223 907.

               Decision of the examiner:

               Refusal to register.

               Decision of the Board of Appeal:

               Dismissal of the appeal.

               Pleas in law:

               Infringement of Article 7(1)(f) of Council Regulation No 40/94. The applicant claims that registration of the mark in question would not be contrary to either public policy or accepted principles of morality.


title: Order of the President of the Court of First Instance of 2 July 2004 in Case T-78/04 R, Sumitomo Chemical (UK) plc v Commission of the European Communities (Interim measures — Regulation (EC) No 2032/2003 — Biocidal products — Admissibility of the application)

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/17

      ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

   of 2 July 2004
   in Case T-78/04 R, Sumitomo Chemical (UK) plc v Commission of the European Communities
   (Interim measures - Regulation (EC) No 2032/2003 - Biocidal products - Admissibility of the application)
   (2004/C 251/33)
   Language of the case: English
   In Case T-78/04 R, Sumitomo Chemical (UK) plc, represented by C. Mereu and K. Van Maldegem, avocats, against Commission of the European Communities (Agents: X. Lewis and F. Simonetti, with an address for service in Luxembourg) — application for suspension of the operation of Article 5(1) and (2) of and Annexes II and V to Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and the Council, concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1) — the President of the Court of First Instance made an order on 2 July 2004, the operative part of which is as follows:

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case C-399/11: Reference for a preliminary ruling from the Tribunal Constitucional, Madrid (Spain) lodged on 28 July 2011 — Criminal proceedings against Stefano Melloni — other party: Ministerio Fiscal

text:
               1.10.2011

               EN

               Official Journal of the European Union

               C 290/5

         Reference for a preliminary ruling from the Tribunal Constitucional, Madrid (Spain) lodged on 28 July 2011 — Criminal proceedings against Stefano Melloni — other party: Ministerio Fiscal
   (Case C-399/11)
   2011/C 290/08
   Language of the case: Spanish

      Referring court

   Tribunal Constitucional

      Parties to the main proceedings

      Criminal proceedings against: Stefano Melloni

      Other party: Ministerio Fiscal

      Questions referred

               1.

               Must Article 4a(1) of Framework Decision 2002/584/JHA (1), as inserted by Council Framework Decision 2009/299/JHA (2), be interpreted as precluding national judicial authorities, in the circumstances specified in that provision, from making the execution of a European arrest warrant conditional upon the conviction in question being open to review, in order to guarantee the rights of defence of the person requested under the warrant?

               2.

               In the event of the first question being answered in the affirmative, is Article 4a(1) of Framework Decision 2002/584/JHA compatible with the requirements deriving from the right to an effective judicial remedy and to a fair trial, provided for in Article 47 of the Charter of Fundamental Rights of the European Union, and from the rights of defence guaranteed under Article 48(2) of the Charter?

               3.

               In the event of the second question being answered in the affirmative, does Article 53, interpreted systematically in conjunction with the rights recognised under Articles 47 and 48 of the Charter, allow a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the requesting State, thus affording those rights a greater level of protection than that deriving from European Union law, in order to avoid an interpretation which restricts or adversely affects a fundamental right recognised by the Constitution of the first-mentioned Member State?

      (1)  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

      (2)  Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24).


title: Case T-370/00: Action brought on 6 December 2000 by N.V. Master Foods against the Commission of the European Communities

text:
C 79/22                  EN                     Official Journal of the European Communities                                       10.3.2001
                                                          COURT OF FIRST INSTANCE
Action brought on 23 November 2000 by Métropole                            —     The existence, in the present case, of a manifest error of
Télévision (M6) against Commission of the European                               assessment, inasmuch as:
                             Communities
                                                                                —     the current circumstances have changed from those
                           (Case T-354/00)                                             prevailing in December 1997. Such a change
                                                                                involves, in particular, the adoption on 3 April
                                                                                1998, of new membership conditions as well as of
                            (2001/C 79/39)                                             new rules fixing the criteria for the interpretation of
                                                                                Article 3(3) of the EBU Statutes;
                     (Language of the case: French)                              —     the complaint of 6 March 2000 does not reproduce
                                                                                the terms or arguments of the first complaint of 5
An action against the Commission of the European Communi-                              December 1997, the rejection of which formed
ties was brought before the Court of First Instance of the                             the subject-matter of Case T-206/99 Métropole
European Communities on 23 November 2000 by Métropole                                  Télévision v Commission (3).
Télévision (M6), established in Neuilly-sur-Seine (France), rep-
resented by Didier Téophile, of the Paris Bar.
                                                                           (1) Joined Cases T-528/93, T-542/93, T-543/93, T-543/93,
                                                                               T-546/93, T-546/93 Métropole Télévision and Others v Com-
The applicant claims that the Court should:                                    mission [1996] ECR II-649.
                                                                           (2) OJ 1998 L 354, p. 18.
—     annul in its entirety the decision of the Commission of              (3) OJ 1999 C 333, p. 33.
      12 September 2000 in Case COMP/C2/37.825 (M6) v
      European Broadcasting Union (EBU);
—     Order the Commission to pay the costs.
Pleas in law and main arguments
The applicant company observes that, on 13 July 2000 it                    Action brought on 6 December 2000 by N.V. Master
brought an action against the exemption decision of the                    Foods against the Commission of the European Communi-
Commission of 10 May 2000 by which it declared the                                                         ties
provisions of Article 85(1) of the EC Treaty inapplicable for
the period 26 February 1993 to 31 December 2005 to certain
                                                                                (Case T-370/00)
EBU agreements. That decision is in line with the judgment of
the Court of First Instance of 11 July 1996 (1) and the new
rules which the EBU subsequently adopted, supplementing                                              (2001/C 79/40)
and amending its Statutes. In that regard, the applicant claims
to find itself in a situation in which, pending the next judgment
of the Court of First Instance, the EBU is benefiting from a
situation in which the Commission expressly states that the                                   (Language of the case: English)
new membership conditions do not result in a restriction of
competition. That is why M6 was forced to lodge a complaint                An action against the Commission of the European Communi-
on 6 March 2000, the rejection of which is now the subject-                ties was brought before the Court of First Instance of the
matter of the present action, seeking a declaration from the               European Communities on 6 December 2000 by N.V. Master
Commission prohibiting the new EBU membership conditions                   Foods, a company incorporated under Belgian law, represented
and the rules supplementing them.                                          by Laurent Ruessmann and Ivo Onkelinx of De Bandt, Van
                                                                           Hecke, Lagae & Loesch, Brussels (Belgium).
In support of its arguments, the applicant alleges:
                                                                           The applicant claims that the Court should:
—     Breach of essential procedural requirements in that the
      Commission disregarded the procedural rules introduced
      by Commission Regulation (EC) No 2842/98 of 22 De-                   —     annul the Commission Decision set out in the DG Budget
      cember 1998 on the hearing of parties in certain proceed-                  letter of 29 September 2000, as regards the determination
      ings under Articles 85 and 86 of the EC Treaty, (2) by                     of the import prices and resulting amount of definitive
      sending M6, in reply to its complaint of 6 March 2000, a                   duties due by the applicant under the CRS; and
      definitive rejection, without giving it the opportunity
      beforehand of making known its views.                                —     order the Commission to pay the costs.
 ---pagebreak--- 10.3.2001              EN                     Official Journal of the European Communities                                          C 79/23
Pleas in law and main arguments                                          Action brought on 19 December 2000 by Philip Morris
                                                                         International Inc., against the Commission of the Euro-
The applicant, a privately held company incorporated under                                       pean Communities
the Belgian laws, processes parboiled and non-parboiled brown
rice into various milled rice products. During the period from                                    (Case T-377/00)
1 July 1997 through 31 December 1998, it imported brown
rice purchased from a related U.S. company, Uncle Ben’s Inc.,                                      (2001/C 79/41)
in Belgium, under a Community customs duty regime known
as the Cumulative Recovery System (CRS).
                                                                                (Language of the case: English)
By its present action, the applicant seeks annulment of the
Commission decision addressed to the Director General of the
                                                                         An action against the Commission of the European Communi-
Belgian customs administration (‘BCA’), and contained in the
                                                                         ties was brought before the Court of First Instance of the
letter of Directorate General Budget (‘DG Budget’) dated
                                                                         European Communities on 19 December 2000 by Philip
29 September 2000 (Document no BUDG/B/03/D(00)/38549)
                                                                         Morris International Inc., a company established under the
(the contested decision).
                                                                         laws of Delaware (USA), represented by Eric Morgan de Rivery
                                                                         and Jacques Derenne, of Liedekerke Siméon Wessing Houthoff,
The contested decision communicates to the BCA the final                 Brussels.
position of the Commission with regard to the determination
and settlement of the definitive amount of customs duties due
                                                                         The applicant claims that the Court should:
by the applicant under the CRS. Specifically, the decision,
basing itself explicitly on the findings of report no 98.6.073 of
                                                                         —     annul the Commission Decision to bring the action filed
the European Anti-Fraud Office (‘OLAF’),
                                                                               on 3 November 2000 before the New York District
                                                                               Court against the applicant, as publicly announced by
—     rejects the import prices that had been declared by the                  Commissioner Michaele Schreyer in Press Release
      applicant under the CRS and previously accepted by the                   IP/00/1255 of 6 November 2000
      BCA,
                                                                         —     order the Commission to pay the applicant’s costs.
—     directs the BCA to determine the CRS import prices of
      the applicant, and the definitive amount of import duties
      due by the applicant under the CRS, in accordance with
      the detailed calculations of the OLAF report, and                  Pleas in law and main arguments
—     directs the BCA to recover the net amount of CRS import            The applicant is, through its affiliates and subsidiaries, engaged
      duties which are allegedly due by the applicant according          in the sale of tobacco products outside the United States.
      to the detailed calculations of the OLAF report, but had           According to the applicant, the European Community has filed
      been previously reimbursed to the applicant by the BCA.            an action in a United States court against the applicant to
                                                                         recover inter alia, in the form of damages, customs and duties
                                                                         and value-added tax related to alleged smuggling. The applicant
The applicant brings forward three grounds for annulment of
                                                                         challenges the decision to take legal proceedings announced
the contested decision. It alleges that the Commission:
                                                                         by the Commission in the above-mentioned press release.
—     has committed a manifest error of assessment in the
      application of the CRS Regulation (1);                             The applicant submits that the European Community (rep-
                                                                         resented by the Commission) lacks competence to bring an
—     has infringed fundamental principles of law forming part           action before a United States court, and that it has acted
      of the Community legal order, such as the rights of                outside the limits of the powers conferred upon it by the EC
      defence and the right not to be subjected to arbitrary             Treaty, as it is only the Member States which have competence
      action; and                                                        to seek allegedly unpaid customs and duties taxes.
—     has infringed an essential procedural requirement under            In the alternative, the applicant submits that even if the
      both Regulation 2185/96 and Regulation 1073/00 with                European Community were competent to bring the action, the
      regard to the OLAF report which is the foundation of the           Community has infringed essential procedural requirements of
      decision.                                                          Article 280 EC and lacks financial and legal interest in bringing
                                                                         an action on its own behalf as well as competence to bring an
                                                                         action on behalf of the Member States.
(1) Commission Regulation (EC) 703/97 of 18 April 1997 introdu-
    cing for a trial period from 1 July 1997 to 30 June 1997 a
    cumulative recovery system for determining certain import duties     Furthermore, the applicant submits that the contested decision
    on rice and amending Rebulation (EC) No 1503/96 (OJ L 104,           infringes general Community principles and constitutes a
    p. 12).                                                              misuse of powers.


title: Case C-129/06 P: Order of the Court of 12 December 2006 — Autosalone Ispra Snc v European Atomic Energy Community (Appeal — Non-contractual liability of the European Atomic Energy Community — Overflowing drain — Misinterpretation of the evidence — Measures of inquiry)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/10

         Order of the Court of 12 December 2006 — Autosalone Ispra Snc v European Atomic Energy Community
   (Case C-129/06 P) (1)

   (Appeal - Non-contractual liability of the European Atomic Energy Community - Overflowing drain - Misinterpretation of the evidence - Measures of inquiry)
   (2007/C 82/20)
   Language of the case: Italian
   Parties

      Appellant: Autosalone Ispra Snc (represented by: B. Casu, lawyer)

      Other party to the proceedings: European Atomic Energy Community, represented by the Commission of the European Communities (represented by: E. de March, Agent, and A. Dal Ferro, lawyer)
   Re:
   Appeal against the judgment of the Court of First Instance (Second Chamber) of 30 November 2005 in Case T-250/02 Autosalone Ispra v Commission, in which the Court of First Instance dismissed an application for a declaration that the Community was liable for the damage allegedly suffered by the applicant as a result of an overflowing drain the management and maintenance of which are the responsibility of the Joint Research Centre in Ispra — Breach of the procedural rules concerning the burden of proof
   Operative part of the order
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Autosalone Ispra Snc to pay the costs.

      (1)  OJ C 108, 6.5.2006.


title: Reference for a preliminary ruling from the Tribunale di Genova, Sesta Sezione Civile, by order of that court of 12 October 1995 in the case of Diego Calì & Figli srl v. Servizi Ecologici Porto di Genova SpA (Case C-343/95)

text:
30 . 12 . 95           EN                   Official Journal of the European Communities                                   No C 351 /7
so far as it unconditionally prohibits as from 1 June 1995 the               — which, since they are imposed exclusively on the
use of HCFCs in the fire-fighting sector, is valid .'                             vessel ( which is merely passively loaded and
                                                                                unloaded ), affect a subject other than those whose
(') OJ No L 333 , 22 . 12 . 1994 , p . 1 .                                        responsibility it is to carry out the necessary
                                                                                technical operations ( in this case SpA Porto Petroli
                                                                                di Genova and the laders/receivers of the product ),
                                                                                resulting in an inevitable discrepancy between the
                                                                                responsibility for any pollution and the bearing of
                                                                                the cost of the anti-pollution service,
Reference for a preliminary ruling from the Tribunale di
Genova, Sesta Sezione Civile, by order of that court of                      — which, given the nature of the product and/or its
12 October 1995 in the case of Diego Call & Figli srl v.                          existence, represent an unnecessary service for
             Servizi Ecologici Porto di Genova SpA                                vessels equipped with their own anti-pollution
                                                                                devices and systems adapted to the type of product
                         ( Case C-343/95 )
                                                                                to be loaded or unloaded,
                           ( 95/C 351 / 10
                                                                             — which impose on the vessel a charge, and an
Reference has been made to the Court of Justice of the                            associated extra cost, in addition to those provided
European Communities by an order of the Tribunale di                              for by the landing contract between the carrier and
Genova, Sesta Sezione Civile ( District Court, Genoa, Sixth                       the company operating the wharves, and have no
Civil Chamber ) of 12 October 1995 , which was received at                        practical connection with the subject-matter of the
the Court Registry on 30 October 1995 , for a preliminary                         contract .
ruling in the case of Diego Call &c Figli Sri v. Servizi Ecologici
Porto di Genova SpA on the following questions :                       ( C ) If, in the situations set out in questions ( A ) and ( B ),
                                                                             there are one or more practices amounting to abuse of a
( A ) Can there be said to exist a 'dominant position within                 dominant position by an undertaking for the purposes
      the common market or in a substantial part of it' where                of Article 86 of the Treaty , does this lead to a potential
      a limited company, set up by a national port authority,                adverse effect on trade between Member States of the
      is given responsibility for and does actually carry out,               Union ?
      pursuant to an administrative concession from that
      authority, the task of providing, with exclusive rights
      within a harbour sector specializing in loading and
      unloading petroleum products, an ' anti-pollution
      protection ' service, and where that company collects
      the relevant fee, which is set unilaterally by the port
      authority on the basis of the vessel 's tonnage and the          Action brought on 7 November 1995 by the French
      quantity of the product loaded or unloaded, from users                     Republic against the European Parliament
      of that service , that is to say vessels which dock at the                               ( Case C-345/95 )
      wharves to carry out those operations ?
                                                                                ( 95/C 351 / 11 )
( B ) Having regard to the situation set out in question ( A )
      and if there is a dominant position within the common            An action against the European Parliament was brought
      market or a substantial part of it, is there an abuse of         before the Court of Justice of the European Communities on
      the aforesaid 'dominant position' within the meaning             7 November 1995 by the French Republic, represented by
      of Article 86 of the EC Treaty, in particular of                 Marc Perrin de Brichambaut and Denys Wibaux, acting as
      subparagraphs ( a ), ( c ) and ( d ) and are there related       Agents, with an address for service in Luxembourg at the
      'practices ', when an undertaking holding the exclusive          French Embassy, 9 Boulevard du Prince Henri .
      concession for a service ( even though on the basis of a
      decision of the authority granting the concession )              The applicant claims that the Court should :
      charges fees :
                                                                       — declare null and void the Decision of the European
      — which are compulsory and independent of the                         Parliament of 20 September 1995 fixing the timetable of
           provision of an efficient surveillance and/or                    work for 1996 ,
           intervention service, merely because a vessel berths
           in a mooring in the Porto Petroli and loads/unloads         — order the defendant to pay the costs .
           goods, whether petroleum products or chemicals
           and petrochemicals, according to the contractual
           terms imposed,                                              Pleas in law and main arguments adduced in support:
      — the amount of which depends solely on the tonnage              — breach of the Decision taken by common agreement
           of the vessel, the amount of the product and also , in           between the Representatives of the Governments of the
           the event of any actual intervention, the duration               Member States on the location of the seats of the
           thereof, but not on the product's nature, quality or             institutions and of certain bodies and departments of the
           capacity to pollute,                                             European Communities, adopted in Edinburgh on


               3.9.2005

               EN

               Official Journal of the European Union

               C 217/33

         Removal from the register of Case C-511/04 (1)

   (2005/C 217/75)

      (Language of the case: Portuguese)

   By order of 4 May 2005 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-511/04: Commission of the European Communities v Portuguese Republic.

      (1)  OJ C 45 of 19.02.2005.


title: Case C-248/06: Action brought on  2 June 2006  — Commission of the European Communities v Kingdom of Spain

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/26

         Action brought on 2 June 2006 — Commission of the European Communities v Kingdom of Spain
   (Case C-248/06)
   (2006/C 178/42)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal and L. Escobar Guerrero, acting as Agents)

      Defendant: Kingdom of Spain
   Form of order sought

               —

               declare that, by maintaining in force rules for the deduction of costs in respect of research and development and technological innovation carried out abroad which is more onerous than the rules applicable to costs incurred in Spain, as amended by Article 35 of the Law on corporation tax, approved by Royal Legislative Decree 4/2004 of 5 March, the Kingdom of Spain has failed to fulfil its obligations under Articles 43 and 49 of the EC Treaty on freedom of establishment and freedom to provide services, and the corresponding articles in the Agreement on the European Economic Area;

               —

               order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   Infringement of freedom of establishment (Articles 43 and 48 EC and Article 31 EEA): the territorial restriction, which consists of the fact that only expenses incurred in respect of R& D and IT activities actually carried out in Spain may benefit from the deduction of the corporation tax allowance, is a factor which restricts the freedom of establishment of Spanish companies which invest in R&D and IT outside Spain, benefiting companies making the same investment in Spain, in particular, undertakings which have their main office in another Member State and which operate in Spain via a secondary establishment.
   Infringement of the freedom to provide services (Articles 49 EC and 36 EEA): the costs of R&D and IT activities subcontracted outside Spain are not eligible for the deduction of the corporation tax allowance. That limitation constitutes an obstacle to the freedom to provide services, provided for in the EC Treaty.


title: Case C-548/16: Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 28 October 2016 — État belge v Biologie Dr Antoine SPRL

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/18

         Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 28 October 2016 — État belge v Biologie Dr Antoine SPRL
   (Case C-548/16)
   (2017/C 030/22)
   Language of the case: French

      Referring court

   Cour d’appel de Mons

      Parties to the main proceedings

      Appellant: État belge

      Respondent: Biologie Dr Antoine SPRL

      Question referred

   Is the fact that a company issuing a share option may record as income the purchase price of that option in the course of the financial year in which that option is taken up or at the end of its period of validity, in order to take into account the risk borne by the option issuer which results from the commitment he makes, rather than in the course of the tax year in which the option is purchased and its final price set — the risk borne by the issuer being valued separately by the recording of a provision — compatible with the accounting rules concerning balance sheets laid down by the Fourth Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11), according to which:

               —

               the annual accounts are to give a true and fair view of the company's assets, liabilities, financial position and profit or loss (Article 2(3) of the Directive);

               —

               provisions for liabilities and charges are intended to cover losses or debts the nature of which is clearly defined and which at the date of the balance sheet are either likely to be incurred, or certain to be incurred but uncertain as to amount or as to the date on which they will arise (Article 20(1) of the Directive);

               —

               the principle of prudence must in all circumstances be observed, and in particular:

                           —

                           only profits made at the balance sheet date may be included;

                           —

                           account must be taken of all foreseeable liabilities and potential losses arising in the course of the financial year concerned or of a previous one, even if such liabilities or losses become apparent only between the date of the balance sheet and the date on which it is drawn up (Article 31(1)(c), (aa) and (bb) of the Directive);

               —

               account must be taken of income and charges relating to the financial year, irrespective of the date of receipt or payment of such income or charges (Article 31(1)(d) of the Directive);

               —

               the components of asset and liability items are to be valued separately (Article 31(1)(e) of the Directive)?


title: Case T-291/13: Order of the General Court of 10 November 2014  — Eleftheriou and Papachirstofi v Commission and ECB (Action for annulment and compensation — Stability support programme for Cyprus — Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the ESM — Jurisdiction of the General Court — Causal link — Action in part inadmissible and in part manifestly lacking any foundation in law)

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/29

         Order of the General Court of 10 November 2014 — Eleftheriou and Papachirstofi v Commission and ECB
   (Case T-291/13) (1)

   ((Action for annulment and compensation - Stability support programme for Cyprus - Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the ESM - Jurisdiction of the General Court - Causal link - Action in part inadmissible and in part manifestly lacking any foundation in law))
   (2015/C 026/36)
   Language of the case: English

      Parties

      Applicants: Andreas Eleftheriou (Dherynia, Cyprus); Eleni Eleftheriou (Dherynia); and Lilia Papachirstofi (Dherynia) (represented by: C. Paschalides, Solicitor, and A. Paschalides, lawyer)

      Defendants: European Commission (represented by: B. Smulders and J.-P. Keppenne, Agents); and European Central Bank (ECB) (represented by: A. Sáinz de Vicuña Barroso, N. Lenihan and F. Athanasiou, Agents, and by W. Bussian, W. Devroe and D. Arts, lawyers)

      Re:

   First, application for annulment of paragraphs 1.23 to 1.27 of the Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) on 26 April 2013, and, second, for compensation for damage allegedly suffered by the applicant as a result of the inclusion of paragraphs 1.23 to 1.27 in the Memorandum of Understanding and an infringement of the Commission’s supervisory obligation.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Mr Andreas Eleftheriou, Ms Eleni Eleftheriou and Ms Lilia Papachristofi shall bear their own costs and pay those incurred by the European Commission and by the European Central Bank (ECB).

      (1)  OJ C 226, 3.8.2013.


title: Case C-542/07 P: Judgment of the Court (Fifth Chamber) of 11 June 2009 — Imagination Technologies Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Refusal to register — Regulation (EC) No 40/94 — Article 7(3) — Distinctive character acquired through use — Use after the date on which the application for registration was filed)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/8

         Judgment of the Court (Fifth Chamber) of 11 June 2009 — Imagination Technologies Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-542/07 P) (1)

   (Appeal - Community trade mark - Refusal to register - Regulation (EC) No 40/94 - Article 7(3) - Distinctive character acquired through use - Use after the date on which the application for registration was filed)
   2009/C 180/13
   Language of the case: English

      Parties

      Appellant: Imagination Technologies Ltd (represented by: M. Edenborough, Barrister, instructed by P. Brownlow and N. Jenkins, Solicitors)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, acting as Agent)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Third Chamber) of 20 September 2007 in Case T-461/04 Imagination Technologies v OHIM (Pure Digital), by which the Court dismissed an action for the annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 16 September 2004 in Case R 108/2004-2 dismissing the appeal against the examiner’s decision refusing to register the word mark ‘PURE DIGITAL’ for goods and services in Classes 9 and 38

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Imagination Technologies Ltd to pay the costs.

      (1)  OJ C 37, 9.2.2008.


title: Case C-159/99: Action brought on 30 April 1999 by the Commission of the European Communities against the Italian Republic

text:
C 188/22                 EN                       Official Journal of the European Communities                                        3.7.1999
The Applicant claims that the Court should                                   Action brought on 30 April 1999 by the Commission of
                                                                               the European Communities against the Italian Republic
1) declare that by failing to notify the laws, regulations or
     administrative provisions necessary to comply with
     Council Directive 95/19/EC of 19 June 1995 concerning                                             (Case C-159/99)
     the allocation of railway infrastructure capacity and the
     charging of infrastructure fees (1), or by failing to adopt the
     measures necessary to comply with it, Ireland has failed to                                      (1999/C 188/50)
     fulfil its obligations under that Directive;
2) order Ireland to pay the costs.                                           An action against the Italian Republic was brought before the
                                                                             Court of Justice of the European Communities on 30 April
                                                                             1999 by the Commission of the European Communities,
                                                                             represented by Paolo Stancanelli of its Legal Service, acting as
Pleas in law and main arguments                                              Agent, with an address for service in Luxembourg at the office
                                                                             of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Article 189 of the EC Treaty, under which a directive shall be
binding, as to the result to be achieved, upon each Member
State, carries by implication an obligation on the Member                    The applicant claims that the Court should:
States to observe the period for compliance laid down in the
directive. That period expired on 27 June 1997 without Ireland               — Declare that the Italian Republic has failed to fulfil its
having enacted the provisions necessary to comply with the                       obligations under Community Law
directive referred to in the conclusions of the Commission.
                                                                                •   by laying down rules permitting the capture and
(1) OJ L 143, 27.06.95, p. 75.                                                        keeping of three species (passer italiae, passer mon-
                                                                                tanus and sturnus vulgaris), contrary to Articles 5 and
                                                                                7 of Council Directive 79/409/EEC (1) and Annex II
                                                                                thereto, and by providing that those rules are to apply
                                                                                by way of a general and permanent derogation, which
                                                                                is contrary to Article 9 of that Directive and engenders
                                                                                an unacceptable degree of legal uncertainty; and
                                                                                •   by laying down rules concerning the conditions and
Reference for a preliminary ruling by the Tribunal Tribut-                            detailed rules for the application of the derogation from
ário de 1a Instância, Faro, by order of that court of                                the prohibitions laid down by Directive 79/409/EEC
11 March 1999, in the case of Corticeira Amorim-Algarve                               which do not fully comply with the requirements
                      Lda. and Fazenda Pública                                       under Article 9 thereof, in particular as regards the
                                                                                reasons for derogation, listed in Article 9(1)(a) and (b);
                           (Case C-158/99)
                                                                             — Order the Italian Republic to pay the costs of the proceed-
                           (1999/C 188/49)                                        ings.
Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunal Tributärio                  Pleas in law and main arguments
de 1a Instância, Faro, for a preliminary ruling in the case of
Corticeira Amorim-Algarve Lda. v Fazenda Pública, on the
following question:
                                                                             The first infrinqement
Is Article 2 of the Schedule of Land Registry Fees, in requiring
to be added to the fixed fee under Article 1 thereof the variable            The Commission maintains that the rules laid down by
fee based on value provided for therein, contrary to Article 12              Articles 4(4) and 5(2) of Law No 157/92, which authorise the
of Directive 69/335, (1) in so far as it is prohibited, under the            capture and keeping of three protected species (passer italiae,
latter article, to levy a charge whose amount is calculated on               passer montanus and sturnus vulgaris) are manifestly contrary
the basis not of the cost of the individual service but of the               to Articles 5 and 7 of Directive 79/409 and Annex II thereto,
overall financing and investment costs of the body responsible               and that Article 3 of the DPCM (2) of 27 September 1997,
for providing the service in question?                                       according to which those rules may be justified under the
                                                                             derogation provided for in Article 9 of the Directive, does not
                                                                             remedy that infringement because the ensuing legal situation
(1) Council Directive 69/335/EEC concerning indirect taxes on the            is incompatible with the principle of legal certainty and the
    raising of capital (OJ English Special Edition 1969 (II), p. 412).       requirement that the Directive be clearly transposed into
                                                                             national law, and because the provision at issue introduces
                                                                             unacceptable arrangements for general and permanent dero-
                                                                             gation from the prohibitions laid down in the Directive.
 ---pagebreak--- 3.7.1999                EN                     Official Journal of the European Communities                                        C 188/23
The second infringement                                                   Pleas in law and main arguments
                                                                          Under Article 189 of the EC Treaty, according to which a
The Commission maintains that Italy has failed to fulfil its              directive is to be binding, as to the result to be achieved, upon
obligations under Community law because it has failed to                  each Member State to which it is addressed, Member States are
transpose fully, clearly and unambiguously into national law              required to observe the time-limits laid down in directives for
the whole substantive content of Article 9 of Direc-                      their transposition. The time-limit in the present case expired
tive 79/409/EEC: the national rules provide for derogation in             on 1 Juli 1997 without the Italian Republic having brought
some of the cases referred to in Article 9(1)(a) and (b), but do          into the necessary provisions in order to comply with the
not comply with the conditions and detailed rules laid down               directives referred to in the Commission’s application.
in Article 9(2) or make derogation conditional upon the
investigation of other satisfactory solutions, at least in cases
where derogation is based on reasons connected with air                   (1) OJ L 125 of 23.5.1996, p. 3.
safety.                                                                   (2) OJ L 125 of 23.5.1996, p. 10.
(1) OJ No L 103 of 25.4.1979, p. 1.
(2) Decree of the President of the Council of Ministers.
                                                                          Reference for a preliminary ruling from the Cour du
                                                                          Travail, Brussels (Fourth Chamber), by judgment of that
                                                                          court of 28 April 1999 in the case of Marthe Defreyn v
                                                                                Sabena SA
                                                                                (Case C-166/99)
Action brought on 30 April 1999 by the Commission of                                               (1999/C 188/52)
  the European Communities against the Italian Republic
                                                                          Reference has been made to the Court of Justice of the
                         (Case C-161/99)                                  European Communities by a judgment of the Cour du Travail
                                                                          (Labour Court), Brussels (Fourth Chamber), of 28 April 1999,
                                                                          which was received at the Court Registry on 4 May 1999, for
                         (1999/C 188/51)                                  a preliminary ruling in the case of Marthe Befreyn v Sabena
                                                                          SA on the following questions:
An action against the Italian Republic was brought before the             1. Can the additional pre-retirement payment provided for
Court of Justice on 30 April 1999 by the Commission of the                     by Collective Agreement No 17, rendered compulsory by
European Communities, represented by Francesco P. Ruggeri                      the Royal Decree of 16 January 1975 and provided for in
Laderchi, of its Legal Service, acting as Agent, with an address               the Collective labour Agreement of 23 May 1984 con-
for service in Luxembourg at the office of Carlos Gómez de la                 cluded within Joint Sub-committee No 315.1, be treated
Cruz, of its Legal Service, Wagner Centre, Kirchberg.                          as an allowance payable under an occupational social
                                                                               security scheme to which the Protocol on Article 119 of
The applicant claims that the Court of Justice should:                         the Treaty establishing the European Community applies?
                                                                          2. Are the provisions of Collective Labour Agreement No 17
(1) declare that, by failing to adopt the laws, regulations and                and the Collective Labour Agreement of 23 May 1984
    administrative provisions necessary in order to comply                     concluded within Joint Sub-committee No 315.1 compat-
    with:                                                                      ible with Article 5 of Directive 76/207/EC (1)in that they
                                                                               exclude female workers over the age of 60 from the benefit
    (a) Council Directive 96/22/EC (1) of 29 April 1996                        of pre-retirement payments which constitute additional
         concerning the prohibition on the use in stockfarming                 redundancy payments, granted in addition to unemploy-
         of certain substances having a hormonal or thyrostatic                ment benefit, whereas such payments are guaranteed for
         action and of beta-agonists, and repealing Direc-                     male workers until the age of 65?
         tives 81/602/EEC, 88/146/EEC and 88/299/EEC
                                                                          3. If the above two questions are answered in the affirmative,
                                                                               does the application of the Protocol on Article 119 of the
    (b) Council Directive 96/23/EC       (2) of 29 April 1996 on               Treaty preclude the action brought by Mrs Defreyn from
         measures to monitor certain substances and residues                   succeeding, inasmuch as it is founded on breach of
         thereof in live animals and animal products and                       Article 5 of Directive 76/207?
         repealing Directives 85/358/EEC and 86/469/EEC and
         Decisions 89/187/EEC and 91/664/EEC,
                                                                          (1) Council Directive 76/207/EEC of 9 February 1976 on the
or by failing in any event to communicate those provisions,                   implementation of the principle of equal treatment for men and
the Italian Republic has failed to fulfil its obligations under the           women as regards access to employment, vocational training and
Treaty and the said directives;                                               promotion, and working conditions (OJ 1976 L 39, p. 40).
(2) order the Italian Republic to pay the costs.


title: Case T-366/09: Judgment of the General Court of 13 June 2012 Insula v Commission (Arbitration clause — Financing contracts for research and development projects — Ecres, El Hierro, Islands 2010, Opet I, Opet II, Opet Ola, Respire, Sustainable Communities and Virtual Campus contracts — Lack of supporting documents and non-compliance with the contractual requirements in respect of some of the declared expenses — Reimbursement of sums advanced — Partial inadmissibility of the action — Counterclaim by the Commission)

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/17

         Judgment of the General Court of 13 June 2012 Insula v Commission
   (Case T-366/09) (1)

   (Arbitration clause - Financing contracts for research and development projects - Ecres, El Hierro, Islands 2010, Opet I, Opet II, Opet Ola, Respire, Sustainable Communities and Virtual Campus contracts - Lack of supporting documents and non-compliance with the contractual requirements in respect of some of the declared expenses - Reimbursement of sums advanced - Partial inadmissibility of the action - Counterclaim by the Commission)
   2012/C 217/34
   Language of the case: French

      Parties

      Applicant: Conseil scientifique international pour le développement des îles (Insula) (Paris, France) (represented by: J.-D. Simonet and P. Marsal, lawyers)

      Defendant: European Commission (represented initially by A.-M. Rouchaud-Joët and F. Mirza, and subsequently by A.-M. Rouchaud-Joët and D. Calciu, Agents, and by L. Defalque and S. Woog, lawyers)

      Re:

   Application, on the basis of Article 238 EC, for a declaration, first, that a claim of the Commission of EUR 114 996,82 is unfounded and, second, that a claim of the Commission of EUR 253 617,08 is well founded in part, and that the Commission be ordered to pay the applicant damages of EUR 146 261,06, principally, and of EUR 573 273,42, in the alternative.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action brought by the Conseil scientifique international pour le développement des îles (Insula);

               2.

               Orders Insula to pay the European Commission the principal sum of EUR 114 996,82, increased by default interest at the rate of 2,5 % per annum, from 16 August 2009 until full payment of that principal sum;

               3.

               Orders Insula to pay the Commission the principal sum of EUR 253 617,08, increased by default interest at the rate of 2,5 % per annum, from 8 September 2009 until full payment of that principal sum;

               4.

               Dismisses the remainder of the Commission’s counterclaim;

               5.

               Orders Insula to bear its own costs and to pay those incurred by the Commission.

      (1)  OJ C 282, 21.11.2009.


title: Case C-16/07 P: Judgment of the Court (Fourth Chamber) of 9 October 2008 — Marguerite Chetcuti v Commission of the European Communities (Appeal — Civil service — Competition internal to the institution — Rejection of candidature — Conditions of admission)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/7

         Judgment of the Court (Fourth Chamber) of 9 October 2008 — Marguerite Chetcuti v Commission of the European Communities
   (Case C-16/07 P) (1)

   (Appeal - Civil service - Competition internal to the institution - Rejection of candidature - Conditions of admission)
   (2008/C 301/13)
   Language of the case: French
   Parties

      Appellant: Marguerite Chetcuti (represented by: M.-A. Lucas, avocat)

      Other party to the proceedings: Commission of the European Communities (represented by: V. Joris and K. Herrmann, Agents)
   Re:
   Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 8 November 2006 in Case T-357/04 Chetcuti v Commission, in which the Court of First Instance dismissed the appellant's action for annulment of the decision of the competition selection board of 22 June 2004 rejecting her candidature and for annulment of the subsequent acts of the competition procedure — Infringement of Articles 4, 27 and 29(1) of the Staff Regulations in the version in force until 30 April 2004 — Concept of ‘internal competition’ and the objective assigned to recruitment of ensuring that the institution secures the services of persons of the ‘highest standard of ability, efficiency and integrity’ — Eligibility of auxiliary staff
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Ms Chetcuti to pay the costs.

      (1)  OJ C 82, 14.4.2007.


title: Joined Cases C-249/12 and C-250/12: Judgment of the Court (Third Chamber) of 7 November 2013 (requests for a preliminary ruling from the Înalta Curte de Casație și Justiție — Romania) — Corina-Hrisi Tulică v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor (C-249/12), Călin Ion Plavoșin v Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș (C-250/12) (Taxation — VAT — Directive 2006/112/EC — Articles 73 and 78 — Immovable property transactions carried out by natural persons — Classification of those transactions as taxable — Determination of the VAT owing when the parties have made no provision for it at the time of conclusion of the contract — Question as to whether or not the vendor may recover the VAT from the purchaser — Consequences)

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/10

         Judgment of the Court (Third Chamber) of 7 November 2013 (requests for a preliminary ruling from the Înalta Curte de Casație și Justiție — Romania) — Corina-Hrisi Tulică v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor (C-249/12), Călin Ion Plavoșin v Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș (C-250/12)
   (Joined Cases C-249/12 and C-250/12) (1)

   (Taxation - VAT - Directive 2006/112/EC - Articles 73 and 78 - Immovable property transactions carried out by natural persons - Classification of those transactions as taxable - Determination of the VAT owing when the parties have made no provision for it at the time of conclusion of the contract - Question as to whether or not the vendor may recover the VAT from the purchaser - Consequences)
   2014/C 9/14
   Language of the case: Romanian

      Referring court

   Înalta Curte de Casație și Justiție

      Parties to the main proceedings

      Applicants: Corina-Hrisi Tulică (C-249/12), Călin Ion Plavoșin (C-250/12)

      Defendants: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor (C-249/12), Direcția Generală a Finanțelor Publice Timiș — Serviciul Soluționare Contestații, Activitatea de Inspecție Fiscală — Serviciul de Inspecție Fiscală Timiș (C-250/12)

      Re:

   Requests for a preliminary ruling — Înalta Curte de Casație și Justiție — Interpretation of Articles 73 and 78 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Taxable amount — Immovable-property transactions carried out by natural persons not subject to VAT — Reclassification, by the national authorities, of those transactions as taxable transactions — Determination of the taxable amount, in the absence of any reference to VAT at the time when the contract was entered into — Deduction of the amount of VAT from the contract price or addition of that amount to the overall price paid by the purchaser

      Operative part of the judgment

   Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular Articles 73 and 78 thereof, must be interpreted as meaning that, when the price of a good has been established by the parties without any reference to value added tax and the supplier of that good is the taxable person for the value added tax owing on the taxed transaction, in a case where the supplier is not able to recover from the purchaser the value added tax claimed by the tax authorities, the price agreed must be regarded as already including the value added tax.

      (1)  OJ C 243, 11.8.2012.


               20.11.2010

               EN

               Official Journal of the European Union

               C 317/1

         2010/C 317/01
   Last publication of the Court of Justice of the European Union in the Official Journal of the European Union

         OJ C 301, 6.11.2010

      Past publications

      OJ C 288, 23.10.2010

      OJ C 274, 9.10.2010

      OJ C 260, 25.9.2010

      OJ C 246, 11.9.2010

      OJ C 234, 28.8.2010

      OJ C 221, 14.8.2010

   These texts are available on:
   EUR-Lex: http://eur-lex.europa.eu