title: JUDGMENT OF THE COURT of 19 March 1998 in Case C-1/96 (reference for a preliminary ruling from the High Court of Justice, Queen's Bench Division): The Queen v Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming Limited (Articles 34 and 36 of the EC Treaty - Directive 91/629/EEC - European Convention on the Protection of Animals Kept for Farming Purposes - Recommendation concerning Cattle - Export of calves from a Member State maintaining the level of protection laid down by the Convention and the Recommendation - Export to Member States which comply with the Directive but do not observe the standards laid down in the Convention or the Recommendation and use intensive farming systems prohibited in the exporting State - Quantitative restrictions on exports - Exhaustive harmonisation - Validity of the Directive)

text:
C 166/2               EN                  Official Journal of the European Communities                                      30.5.98
LeÂger, Advocate General; H. von Holstein, Deputy                    Fisheries and Food, ex parte Compassion in World
Registrar, for the Registrar, has given a judgment on                Farming Limited Ð on the interpretation of Articles 34
17 March 1998, in which it has ruled:                                and 36 of the EC Treaty and the validity of Council
                                                                     Directive 91/629/EEC of 19 November 1991 laying down
                                                                     minimum standards for the protection of calves (OJ L 340
1. The exception in respect of vehicles used by public               of 11.12.1991, p. 28) Ð the Court, composed of: G. C.
    authorities to provide public services which are not in          Rodríguez Iglesias, President, C. Gulmann, H.
    competition with professional road hauliers, provided            Ragnemalm, M. Wathelet (Presidents of Chambers), G. F.
    for in Article 13(1)(b) of Council Regulation (EEC)              Mancini (Rapporteur), J. C. Moitinho de Almeida, P. J. G.
    No 3820/85 of 20 December 1985 on the                            Kapteyn, J. L. Murray, D. A. O. Edward, J.-P. Puissochet,
    harmonisation of certain social legislation relating to          G. Hirsch, P. Jann and L. Sevón, Judges; P. LeÂger,
    road transport, does not apply to vehicles belonging to          Advocate General; L. Hewlett, Administrator, for the
    an undertaking which is wholly owned by a public                 Registrar, has given a judgment on 19 March 1998, in
    authority and which operates a public passenger                  which it has ruled:
    service under a contract granting it an exclusive right
    for a specified period following a call for competing
    tenders.                                                         1. Consideration of Council Directive 91/629/EEC of
                                                                         19 November 1991 laying down minimum standards
                                                                         for the protection of calves has disclosed no factor of
                                                                         such a kind as to affect its validity.
2. The requirement in Article 14(5) of Regulation (EEC)
    No 3820/85, that each driver assigned to a service
    referred to in Article 14(1) must carry an extract from          2. A Member State which has implemented the 1988
    the duty roster and a copy of the service timetable, is              Recommendation concerning Cattle, drawn up to
    not satisfied where the extract from the duty roster                 apply the principles of the European Convention on
    relates only to the day on which it is checked.                      the Protection of Animals kept for Farming Purposes,
                                                                         cannot rely on Article 36 of the EC Treaty and, in
(1) OJ C 26 of 25.1.1997.                                                particular, on the grounds of public morality, public
                                                                         policy or the protection of the health or life of animals
                                                                         laid down in that article, in order to justify restrictions
                                                                         on the export of live calves with a view to preventing
                                                                         those calves from being reared in the veal crate
                                                                         systems used in other Member States which have
                                                                         implemented Directive 91/629/EEC but which do not
                                                                         apply that recommendation.
              JUDGMENT OF THE COURT
                      of 19 March 1998                               (1) OJ C 46 of 17.2.1996.
in Case C-1/96 (reference for a preliminary ruling from
the High Court of Justice, Queen's Bench Division): The
Queen v Minister of Agriculture, Fisheries and Food, ex
      parte Compassion in World Farming Limited (1)
(Articles 34 and 36 of the EC Treaty Ð Directive 91/629/
EEC Ð European Convention on the Protection of                       Action brought on 2 March 1998 by the Commission of
Animals Kept for Farming Purposes Ð Recommendation                   the European Communities against the Kingdom of the
concerning Cattle Ð Export of calves from a Member                                             Netherlands
State maintaining the level of protection laid down by the
                                                                                (Case C-63/98)
Convention and the Recommendation Ð Export to
Member States which comply with the Directive but do                                         (98/C 166/04)
not observe the standards laid down in the Convention or
the Recommendation and use intensive farming systems
prohibited in the exporting State Ð Quantitative                     An action against the Kingdom of the Netherlands was
restrictions on exports Ð Exhaustive harmonisation Ð                 brought before the Court of Justice of the European
                   Validity of the Directive)                        Communities on 2 March 1998 by the Commission of the
                                                                     European Communities, represented by Wouter Wils,
                        (98/C 166/03)
                                                                     acting as Agent, with an address for service in
                                                                     Luxembourg at the office of C. Gómez de la Cruz, of its
                                                                     Legal Service, Wagner Centre, Kirchberg.
               (Language of the case: English)
                                                                     The applicant claims that the Court should:
In Case C-1/96: reference to the Court under Article 177
of the EC Treaty from the High Court of Justice (England
and Wales), Queen's Bench Division, for a preliminary                Ð declare that, by failing to take appropriate steps, in
ruling in the proceedings pending before that court                      managing fishing for shellfish in the Waddenzee, to
between The Queen and the Minister of Agriculture,                       avoid deterioration of the habitats of certain types of


title: Case C-387/12: Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 15 August 2012 — Hi Hotel HCF SARL v Uwe Spoering

text:
               10.11.2012

               EN

               Official Journal of the European Union

               C 343/6

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 15 August 2012 — Hi Hotel HCF SARL v Uwe Spoering
   (Case C-387/12)
   2012/C 343/06
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellant on a point of law: Hi Hotel HCF SARL

      Respondent on a point of law: Uwe Spoering

      Question referred

   Is Article 5(3) of Regulation (EC) No 44/2001 (1) to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) in the case where the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?

      (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


title: Case C-191/11 P: Appeal brought on 20 April 2011 by Yorma’s AG against the judgment of the General Court (First Chamber) delivered on 15 February 2011 in Case T-213/09, Yorma’s AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), other party: Norma Lebensmittelfilialbetrieb GmbH & Co. KG

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/12

         Appeal brought on 20 April 2011 by Yorma’s AG against the judgment of the General Court (First Chamber) delivered on 15 February 2011 in Case T-213/09, Yorma’s AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), other party: Norma Lebensmittelfilialbetrieb GmbH & Co. KG
   (Case C-191/11 P)
   2011/C 211/23
   Language of the case: German

      Parties

      Appellant: Yorma’s AG (represented by: A. Weiß, Rechtsanwalt)

      Other parties to the proceedings:

               —

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

               —

               Norma Lebensmittelfilialbetrieb GmbH & Co. KG

      Form of order sought

               —

               set aside in its entirety the judgment of the General Court of the European Union of 15 February 2011 in Case T-213/09, pursuant to Article 116(1) of the Rules of Procedure

      Pleas in law and main arguments

   This appeal is directed against the judgment of the General Court dismissing the appellant’s application for annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 20 February 2010 refusing its application for registration of the figurative sign with a word component ‘yorma’s’. By its judgment the General Court confirmed the Board of Appeal’s decision that there was a likelihood of confusion with the earlier Community word mark ‘NORMA’.
   The ground of appeal is infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (‘the Regulation’).
   The General Court misinterpreted Article 8(1)(b) of the Regulation by reaching the conclusion that there was a certain similarity between the services in question, the accommodation of guests on the one hand and the letting of houses on the other. The Court failed to take into account that those services neither complement each other functionally nor compete with each other and that the relevant classes of consumers are different. The distribution channels are also different.
   The General Court further misinterpreted Article 8(1)(b) of the Regulation in such a way that it came to a causally incorrect conclusion by denying that the clearly absent conceptual similarity of the marks was neutralised.
   If, like the General Court, one concludes that there is no conceptual similarity, one cannot also conclude that there is similarity as such within the meaning of Article 8(1)(b) of the Regulation. The conceptual meaning of a word is important because a sign with a definite conceptual meaning is easier to remember than other meaningless signs. There would be a likelihood of confusion only if the later sign made use of the conceptual meaning of the earlier mark. This is clearly not the case here. The likelihood of confusion required by the final words of Article 8(1)(b) of the Regulation was left out of account by the General Court. In particular, the Court took no account of the significance of absence of conceptual similarity, in so far as it took no account of its special significance compared to the absence of phonetic and visual similarity and did not give it the necessary weight, particularly since the apostrophised ‘s’ of the word ‘Yorma’s’ does indeed have an especially emphasised meaning of its own.
   Further, the General Court erred in law in the application of Article 8(1)(b) of the Regulation by stating that, against the background of those considerations, the Board of Appeal had correctly taken the view that in the present case the word component dominated. The emphasis in colour of the sign ‘Y’ on three bars suggesting a line of a musical score does not correspond to that supposition. Moreover, no account whatever was taken of the fact that the colour chosen for the ‘Y’ is far stronger and more striking than that of the word ‘Yorma’s’. The General Court’s view also fails to address the fact that the single letter ‘Y’ is in a sort of handwriting, whereas the word component ‘Yorma’s’ is in ordinary print.
   The General Court further went wrong and infringed Article 8(1)(b) of the Regulation by assuming that the opposing mark Norma reproduces a visual impression. The opposing mark Norma clearly does not reproduce a visual impression.
   Also an error of law and hence an infringement of Article 8(1)(b) of the Regulation is the General Court’s view that the overall impression created by the sign applied for could be substantially influenced.
   Also an error of law and hence an infringement of Article 8(1) of the Regulation is the General Court’s reasoning in which it states that the phonetic difference between the two initial letters ‘N’ and ‘Y’ of the words ‘Norma’ and ‘Yorma’s’ carries less weight than the phonetic coincidence of the letters common to both marks ‘O’, ‘R’, ‘M’ and ‘A’. The General Court further says that the ‘Y’ in the background of the mark applied for is not pronounced; that the apostrophised ‘s’ is also not necessarily pronounced; and that even if it is pronounced, it does not suffice to neutralise the phonetic similarity produced by the common word component ‘orma’.
   As a result of the different initial letters, each mark has a completely new sound. The ‘Y’ of ‘Yorma’s’ gives it a softer expression, the ‘N’ of ‘Norma’ a harder, monotonous sounding expression. The ‘S’, which, contrary to the General Court’s view, is always pronounced, since it is not presented in a subsidiary manner in its graphic form, gives the mark ‘Yorma’ an essentially more melodious sound with a more distinctive intonation.


title: Joined Cases T-445/11 and T-88/12: Order of the General Court of 11 January 2013 — Charron Inox and Almet v Council and Commission (Action for annulment — Action for damages — Dumping — Imports of certain seamless pipes and tubes of stainless steel originating in China — Provisional antidumping duty — No need to adjudicate — Definitive antidumping duty — Action in part manifestly inadmissible and in part manifestly devoid of any basis in law)

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/21

         Order of the General Court of 11 January 2013 — Charron Inox and Almet v Council and Commission
   (Joined Cases T-445/11 and T-88/12) (1)

   (Action for annulment - Action for damages - Dumping - Imports of certain seamless pipes and tubes of stainless steel originating in China - Provisional antidumping duty - No need to adjudicate - Definitive antidumping duty - Action in part manifestly inadmissible and in part manifestly devoid of any basis in law)
   2013/C 71/33
   Language of the case: French

      Parties

      Applicants: Charron Inox (Marseille, France), and Almet (Satolas-et Bonce, France) (represented by: P.-O. Koubi-Flotte, lawyer)

      Defendants: Council of the Eurpoean Union (represented by: J.-P. Hix, acting as Agent, and G. Berrisch and A. Polcyn, lawyers (Case T-88/12) and European Commission (represented by: B. Stromsky and S. Thomas, acting as Agents) (Case T-445/11)

      Intervener in support of the form of order sought by the defendant: European Commission (represented by: B. Stromsky and S. Thomas, acting as Agents) (Case T-88/12)

      Re:

   In Case T-445/11, principally, annulment of Commission Regulation (EU) No 627/2011 of 27 June 2011 imposing a provisional anti-dumping duty on imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China (OJ 2011 L 169, p. 1) and, in the alternative, an application for damages for the damage allegedly suffered by the applicant following the immediate entry into force of the contested regulation and, in Case T-88/12, principally, annulment of Council Implementing Regulation (EU) No 1331/2011 of 14 December 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain seamless pipes and tubes of stainless steel originating in the People’s Republic of China (OJ 2011 L 336, p. 6) and, in the alternative, a claim for compensation for damage allegedly suffered by the applicants in consequence of the definitive collection of the provisional duty ordered in that regulation.

      Operative part of the order

               1.

               Cases T-445/11 and T-88/12 are joined for the purposes of the order

               2.

               The objections as to admissibility raised in Cases T-445/11 and T-88/12 are joined to the main actions.

               3.

               There is no further need to adjudicate in Case T-445/11.

               4.

               The action in Case T-88/12 is dismissed as, in part, manifestly inadmissible and, in part manifestly devoid of any basis in law.

               5.

               Charron Inox and Almet shall pay all the costs of Case T-445/11.

               6.

               Charron Inox and Almet shall pay the costs incurred by the Council of the European Union in Case T-88/12 and shall bear their own costs thereof.

               7.

               The European Commission shall bear its own costs in Case T-88/12.

      (1)  OJ C 290, 1.10.2011.


title: Case T-56/17: Action brought on 27 January 2017 — PO and Others v EEAS

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/39

         Action brought on 27 January 2017 — PO and Others v EEAS
   (Case T-56/17)
   (2017/C 112/55)
   Language of the case: French

      Parties

      Applicants: PO, PP, PQ (represented by: N. de Montigny and J.-N. Louis, lawyers)

      Defendant: European External Action Service

      Form of order sought

   The parties claim that the Court should:

               —

               annul the decision published on 15 April 2016 amending the Rights and obligations of officials, temporary and contract agents: Education Allowances;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the decision of the European External Action Service (EEAS) of 15 April 2016 (‘the contested decision’) is unlawful in that it was adopted in infringement of Article 1 of Annex X to the Staff Regulations and of Article 110 of the Staff Regulations in the absence of EEAS general implementing provisions.
               The applicants also claim the total absence of any statement of reasons for the dismissal of their complaint against the contested decision.

               2.

               Second plea in law, alleging failure to implement a social dialogue before the adoption of the contested decision, in infringement of Article 27 of the Charter of Fundamental Rights of the European Union.

               3.

               Third plea in law, alleging infringement of the acquired rights of officials and agents who have been employed for several years and whose children have also been in school for several years. That infringement is the result of the contested decision in so far as it alters the previously-established system whereby the vast majority of officials and agents who applied for a supplementary reimbursement obtained full reimbursement of the cost exceeding the statutory ceiling.

               4.

               Fourth plea in law, alleging infringement of the precautionary principle, and the principles of legitimate expectations and legal certainty and infringement of the principle of sound administration, which result from the contested decision, in particular as it provides only for a transitional measure for one year and the new terms of reimbursement thus adopted will have been imposed on employed officials and agents the time of their adoption.

               5.

               Fifth plea in law, alleging that there is no balancing of interests and observance of the proportionality principle which vitiated the contested decision, the sole objective of which is the reduction of the financial impact involved in an additional reimbursement of education costs whereas the EEAS could have prioritised other measures in order to attain such an objective, without infringing the rights of its staff. The defendant thus chose the solution which was the most prejudical to its officials and agents.

               6.

               Sixth plea in law, alleging infringement of the principle of non-discrimination, in so far as the contested decision introduces discrimination by establishing a principle of reimbursement on an identical basis for officials and other agents located in different delegations and, therefore, identical treatment of different situations.

               7.

               Seventh ground of appeal, alleging infringement of the right to family and the right to education allegedly committed by the EEAS since the effect of the adoption of the contested decision is to force the applicants to choose between their professional life and those fundamental rights.


10.10.98             EN                Official Journal of the European Communities                                  C 312/9
       Removal from the register of Case C-12/96 (1)              removal from the register of Case C-30/98 (reference for a
                         (98/C 312/19)                            preliminary ruling from the Landgericht Berlin): VR-
                                                                  Leasing GmbH v. Margit Bertram.
By order of 26 June 1998 the President of the Court of
Justice of the European Communities has ordered the               (1) OJ C 94, 28.3.1998.
removal from the register of Case C-12/96: Portuguese
Republic v. Commission of the European Communities.
(1) OJ C 95, 30.3.1996.
                                                                         Removal from the register of Case C-351/97 (1)
                                                                                (98/C 312/23)
                                                                  By order of 10 July 1998 the President of the Court of
       Removal from the register of Case C-39/98 (1)              Justice of the European Communities has ordered the
                         (98/C 312/20)                            removal from the register of Case C-351/97: Commission
                                                                  of the European Communities v. Grand Duchy of
By order of 2 July 1998 the President of the Court of             Luxembourg.
Justice of the European Communities has ordered the
removal from the register of Case C-39/98: Commission of          (1) OJ C 357, 22.11.1997.
the European Communities v. Silena SpA.
(1) OJ C 137, 2.5.1998.
                                                                         Removal from the register of Case C-250/96 (1)
                                                                                (98/C 312/24)
      Removal from the register of Case C-327/96 (1)              By order of 13 July 1998 the President of the Court of
                         (98/C 312/21)                            Justice of the European Communities has ordered the
                                                                  removal from the register of Case C-250/96 (reference for
By order of 9 July 1998 the President of the Court of             a preliminary ruling from the Pretura Circondariale di Bre-
Justice of the European Communities has ordered the               scia): Criminal proceedings against Riccardo Piccaluga.
removal from the register of Case C-327/96 (reference for
a preliminiary ruling from the Tribunale di Genova): Ente         (1) OJ C 294, 5.10.1996.
Autonomo Fiera Internazionale di Genova v. Ministero
delle Finanze.
(1) OJ C 370, 7.12.1996.
                                                                         Removal from the register of Case C-297/97 (1)
                                                                                (98/C 312/25)
                                                                  By order of 17 July 1998 the President of the Court of
       Removal from the register of Case C-30/98 (1)              Justice of the European Communities has ordered the
                         (98/C 312/22)                            removal from the register of Case C-297/97: Commission
                                                                  of the European Communities v. Italian Republic.
By order of 9 July 1998 the President of the Court of
Justice of the European Communities has ordered the               (1) OJ C 318, 18.10.1997.


title: Case T-29/05: Action brought on 20 January 2005 by Deltafina SpA against the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/41

         Action brought on 20 January 2005 by Deltafina SpA against the Commission of the European Communities
   (Case T-29/05)
   (2005/C 82/73)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 January 2005 by Deltafina SpA, established in Orvieto (TR), represented by Roberto A. Jacchia, Antonella Terranova, Irene Picciano and Fabio Ferraro, lawyers.
   The applicant claims that the Court should:

               1.

               annul Commission Decision C (2004) 4030 final of 20 October 2004 (‘the contested decision’);

               2.

               in the alternative, annul in part and vary the contested decision, and accordingly reduce the amount of the fine imposed on Deltafina;

               3.

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The contested decision is the same as that in Case T-24/05 Standard Commercial and Others v Commission
       (1). The pleas in law and main arguments are similar to those relied on in that case.
   The applicant claims in particular that the defendant:

               —

               found that it had participated, even as the lead undertaking, in a cartel put into effect on a relevant market in which it was not present;

               —

               failed to identify that relevant market;

               —

               addressed to it a statement of objections without indicating consistent grounds in support;

               —

               failed to have regard to the duty to state sufficient reasons for measures, as regards proving that trade was, at least indirectly or potentially, adversely affected;

               —

               wrongly assessed the duration and seriousness of the infringement, and the aggravating and mitigating circumstances;

               —

               wrongly assessed the applicant's role, and should therefore reduce the fine imposed on it.

         The applicant also pleads failure to take account of the maximum limits for fines and of the objective elements relating to the economic and social context as relevant factors in setting the fine.
   Finally, the applicant pleads infringement of the principles of equal treatment, non-retroactivity of penalties and protection of legitimate expectations, as well as misuse of powers, since the Commission departed from its past practice of imposing purely nominal penalties on persons who encourage or abet or are external competitors of cartels, contrary to its declared intention to depart from the same only for the future.

      (1)  Not yet published in the ECR.


title: Case C-561/07: Action brought on 18 December 2007 — Commission of the European Communities v Italian Republic

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/21

         Action brought on 18 December 2007 — Commission of the European Communities v Italian Republic
   (Case C-561/07)
   (2008/C 64/32)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: J. Enegren and L. Pignataro, Agents)

      Defendant: Italian Republic
   Form of order sought

               —

               declare that, by maintaining in force the provisions of Article 47(5) and (6) of Law No 428 of 29 December 1990 in the event of corporate crisis according to (c) of the fifth paragraph of Article 2 of Law No 675 of 12 August 1977 so that the rights of employees set out in Articles 3 and 4 of Directive 2001/23/EC are not safeguarded in the event of transfers of undertakings in which a ‘situation of crisis’ has been ascertained, the Italian Republic has failed to fulfil its obligations under that directive;

               —

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The Commission considers that the provisions of Law No 428/1990 (Article 47(5) and (6)) infringe Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (1), since the employees of the undertaking admitted to the system of the extraordinary redundancy fund transferred to the acquiror lose the rights provided for by Article 2112 of the Civil Code, except for any guarantees provided for by the union agreement (‘the most favoured treatment’ set out in Article 47(5)).
   That means that the employees of an undertaking admitted to the redundancy fund system (CIGS) for a situation of crisis do not receive, in the event of a transfer of the undertaking, the safeguards provided for in Articles 3 and 4 of the Directive.
   So far as concerns Article 47(6), that provides that the employees who do not become employees of the acquiror, the lessee or the new employer are entitled to priority in the recruitment carried out by the latter for a year from the date of the transfer, or for a longer period laid down by collective agreements. Article 2112 of the Civil Code does not apply to those workers who are recruited by the acquiror, lessee or new employer after the transfer of the undertaking.
   The Italian Government has not challenged the Commission's analysis on the basis of which the employees of the undertaking admitted to the CIGS system for situation of crisis do not receive, in the event of a transfer of the undertaking, the safeguards laid down in Articles 3 and 4 of the directive. That government has none the less maintained that in the present case Article 5(3) of the directive applies.
   The Commission has noted in the application that that provision does allow, in the event of a transfer of an undertaking in which the transferor is in a situation of serious economic crisis, to amend the employment conditions of the employees in order to safeguard employment opportunities, ensuring the survival of the undertaking, the business or parts of the undertaking or business. However, that provision entitles the Member State only to allow the transferor and the employees' representatives to agree to amend the employment conditions in certain circumstances and not to exclude, as Article 47(5) and (6) of Law No 428/90 do, the application of Articles 3 and 4 of the directive.

      (1)  OJ 2001 L 82, p. 16.


title: Case T-364/16: Action brought on 7 July 2016 — ArcelorMittal Tubular Products Ostrava and others/Commission

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/51

         Action brought on 7 July 2016 — ArcelorMittal Tubular Products Ostrava and others/Commission
   (Case T-364/16)
   (2016/C 305/69)
   Language of the case: English

      Parties

      Applicants: ArcelorMittal Tubular Products Ostrava a.s. (Ostrava-Kunčice, Czech Republic) and 12 other applicants (represented by: G. Berrisch, lawyer, and B. Byrne, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision of the European Commission adopted on or before 6 June 2016 to remove Hubei Xinyegang Steel Co. Ltd from the list of companies listed under TARIC Additional Code A950 and instead list it under a new TARIC Additional Code C129 for all the TARIC Codes mentioned in Article 1(1) of Commission Implementing Regulation (EU) 2015/2272 of 7 December 2015 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of iron or steel originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2015 L 322, p. 21) and thereby reducing the rate of anti-dumping duty applicable to imports of SPT produced by Hubei to 0 %,

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on a single plea arguing that the challenged decision lacked a legal basis and therefore violates Article 1(2) and the Annex to Commission Implementing Regulation (EU) 2015/2272.
   The European Commission based the challenged decision on the judgment of the Court of Justice in ArcelorMittal Tubular Products Ostrava a.s. and Others v Hubei Xinyegang Steel Co. Ltd and Council of the European Union v Hubei Xinyegang Steel Co. Ltd (Joined Cases C-186/14 P and C-193/14 P, EU:C:2016:209), by which the Court confirmed the judgment of the General Court in Hubei Xinyegang Steel Co. Ltd v Council of the European Union (T-528/09, EU:T:2014:35), by which the General Court had annulled Council Regulation (EC) No 926/2009 imposing an anti-dumping duty on certain seamless pipes and tubes (‘SPT’) originating in the People’s Republic of China in so far as it imposed an anti-dumping duty on products produced by Hubei Xinyegang Steel Co. Ltd. According to the applicants, the European Commission wrongly extended the annulment of Council Regulation (EC) No 926/2009 to Commission Implementing Regulation (EU) 2015/2272 because the latter regulation was not the subject matter of the dispute in the previous court cases. Therefore, the European Commission could have adopted the challenged decision only after it had repealed Regulation (EU) 2015/2272.


title: Case F-156/12: Action brought on 20 December 2012 — ZZ v Committee of the Regions

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/31

         Action brought on 20 December 2012 — ZZ v Committee of the Regions
   (Case F-156/12)
   2013/C 71/55
   Language of the case: French

      Parties

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

      Defendant: Committee of the Regions of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision refusing to award damages for wrongful conduct on the part of the Committee of the Regions and application for compensation for material and non-material damage.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the decision of 17 February 2012 dismissing his application of 19 October 2011 for damages for wrongful conduct on the part of the Committee of the Regions;

               —

               where necessary, annul the decision of the Committee of the Regions of 10 September 2012, notified the same day by email and on 12 September 2012 by letter sent by registered delivery with acknowledgement of receipt, rejecting the applicant’s complaint;

               —

               order the Committee of the Regions to pay the sum of EUR 354 000 as compensation for material damage, that amount being determined on a provisional basis, and the sum of EUR 100 000 as compensation for non-material damage, that amount being determined on a equitable basis;

               —

               order the Committee of the Regions to pay the costs.


title: Case C-469/04: Action brought on 4 November 2004 by the Commission of the European Communities against the Hellenic Republic

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/9

         Action brought on 4 November 2004 by the Commission of the European Communities against the Hellenic Republic
   (Case C-469/04)
   (2004/C 314/19)
   An action against the Hellenic Republic was brought before the Court of Justice of the European Commission on 4 November 2004 by the Commission of the European Communities, represented by Yiorgos Zabbos and Arnaud Bordes, of the Commission's Legal Service.
   The applicant claims that the Court should:

               —

               Declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2002/60/EC (1) of 27 June 2002 laying down specific provisions for the control of African swine fever and amending Directive 92/119/EEC as regards Teschen disease and African swine fever and, in any event, by not notifying those provisions to the Commission, the Hellenic Republic has failed to fulfil its obligations under that directive.

               —

               Order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   The period allowed for transposition of the directive into the national legal system expired on 30 June 2003.

      (1)  OJ L 192 of 27 June 2002, p. 27.


title: Judgment of the Court (Second Chamber) of 28 November 2002 in Case C-414/01: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — Failure to implement Directive 97/7/EC)

text:
25.1.2003                EN                      Official Journal of the European Communities                                             C 19/9
                  JUDGMENT OF THE COURT                                                          ORDER OF THE COURT
                                                                                (Fourth Chamber)
                         (Second Chamber)
                                                                                of 19 September 2002
                       of 28 November 2002                                  in Case C-267/01 (reference for a preliminary ruling from
                                                                            the Oberste Gerichtshof): Jaroslav Nyvlt v Flughafen Wien
                                                                                AG ( 1)
in Case C-414/01: Commission of the European Communi-
                    ties v Kingdom of Spain ( 1)                            (Article 104(3) of the Rules of Procedure — Answer to a
                                                                            question admitting of no reasonable doubt — Article 3 of
                                                                            Regulation (EEC) No 3922/91 — Harmonisation of techni-
(Failure by a Member State to fulfil its obligations — Failure              cal requirements and administrative procedures in the field
                 to implement Directive 97/7/EC)                            of civil aviation — Paragraph 35 of Code 145 of the Joint
                                                                                Aviation Requirements)
                            (2003/C 19/16)                                                             (2003/C 19/17)
                                                                                (Language of the case: German)
                    (Language of the case: Spanish)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                            In Case C-267/01: reference to the Court under Article 234
                                                                            EC from the Oberste Gerichtshof (Austria) for a preliminary
                                                                            ruling in the proceedings pending before that court between
                                                                            Jaroslav Nyvlt and Flughafen Wien AG — on the interpretation
In Case C-414/01, Commission of the European Communities                    of Paragraph 35 of Code 145 of the Joint Aviation Require-
(Agent: I. Martínez del Peral) v Kingdom of Spain (Agent:                   ments, applicable to the Community by virtue of Article 3 of
S. Ortiz Vaamonde): Application for a declaration that, by                  Council Regulation (EEC) No 3922/91 of 16 December
failing to adopt the laws, regulations and administrative                   1991 on the harmonisation of technical requirements and
provisions necessary to comply with Directive 97/7/EC of the                administrative procedures in the field of civil aviation (OJ
European Parliament and of the Council of 20 May 1997 on                    1991 L 373, p. 4), as amended by Commission Regulation
the protection of consumers in respect of distance contracts                (EEC) No 2176/96 of 13 November 1996 (OJ 1996 L 291,
(OJ 1997 L 144, p. 19), or, in any event, by failing to inform              p. 15) — the Court (Fourth Chamber), composed of: S. von
the Commission of such provisions, the Kingdom of Spain has                 Bahr, President of the Chamber, D.A.O. Edward and A. La
failed to fulfil its obligations under Article 15(1) of that                Pergola (Rapporteur), Judges; A. Tizzano, Advocate General;
directive, the Court (Second Chamber), composed of:                         R. Grass, Registrar, has made an order on 19 September 2002,
R. Schintgen, President of the Chamber, V. Skouris and                      in which it has ruled:
N. Colneric (Rapporteur), Judges; C. Stix-Hackl, Advocate
General; R. Grass, Registrar, has given a judgment on 28 No-                1.    Where a worker authorised to certify aircraft fit for service is
vember 2002, in which it:                                                         placed by his employer at the disposal of an approved
                                                                                maintenance organisation, the obligations flowing from Para-
                                                                                graph 35 of Code 145 of the Joint Aviation Requirements,
1.    Declares that by failing to adopt within the prescribed period              applicable in the Community by virtue of Article 3 of Directive
      the laws, regulations and administrative provisions necessary to            1999/42/EC of the European Parliament and of the Council
      comply with Directive 97/7/EC of the European Parliament                    of 7 June 1999 establishing a mechanism for the recognition of
      and of the Council of 20 May 1997 on the protection of                      qualifications in respect of the professional Council Regulation
      consumers in respect of distance contracts the Kingdom of Spain             (EEC) No 3922/91 of 16 December 1991 on the harmon-
      has failed to fulfil its obligations under Article 15(1) of that            ization of technical requirements and administrative procedures
      directive;                                                                  in the field of civil aviation, as amended by Commission
                                                                                Regulation No 2176/96 of 13 November 1996, apply to
                                                                                such an approved maintenance organisation.
2.    Orders the Kingdom of Spain to pay the costs.
                                                                            2.    Without prejudice to the fulfilment of the obligations placed
                                                                                upon an approved maintenance organisation by Paragraph 35
                                                                                of Code 145 of the abovementioned Joint Aviation Require-
( 1) OJ C 348 of 8.12.2001.
                                                                                ments, that provision does not preclude that, on the basis of
                                                                                national provisions which are more extensive, the existence is
                                                                                acknowledged of an obligation incumbent on an employer, not
                                                                                being an approved maintenance organisation, to furnish to a


title: Case F-20/15: Action brought on 3 February 2015 — ZZ v Commission

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/41

         Action brought on 3 February 2015 — ZZ v Commission
   (Case F-20/15)
   (2015/C 127/57)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: M. Velardo, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   The annulment of the decision not to include the applicant on the list of officials proposed for promotion to grade AD 13 in the context of the 2014 promotion exercise.

      Form of order sought

               —

               Declare the illegality of the Commission Decision of 16 December 2013 laying down general provisions giving effect to Article 45 and the subsequent Communication to the Commission of 18 December 2013 amending the rules on the composition of the cabinets of the Members of the Commission and spokespersons;

               —

               Annul the subsequent decision of the appointing authority, notified on 24 June 2014, not to include the applicant on the list of officials proposed for promotion to grades AD 13 in the context of the 2014 annual promotion exercise provided for Article 45 of the Staff Regulations, to the extent that that decision does not consider the applicant as having special responsibilities resulting in his categorisation in a role of ‘Head of Unit or equivalent’ or ‘Advisor or equivalent’ by treatment in the same way as the categorisation made for officials being seconded to the cabinets in accordance with the Commission Communication of 18 December 2013;

               —

               Order the Commission to pay the costs.


title: Case C-267/17: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 17 May 2017 — Rhenus Veniro GmbH & Co. KG v Kreis Heinsberg

text:
               14.8.2017

               EN

               Official Journal of the European Union

               C 269/3

         Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 17 May 2017 — Rhenus Veniro GmbH & Co. KG v Kreis Heinsberg
   (Case C-267/17)
   (2017/C 269/04)
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Appellant: Rhenus Veniro GmbH & Co. KG

      Respondent: Kreis Heinsberg

      Questions referred

               1.

               Is Article 5(2) of Regulation (EC) No 1370/2007 (1) applicable to directly awarded public service contracts within the meaning of Article 2(i) of the regulation which do not, for the purposes of the second sentence of Article 5(1) of the regulation, take the form of service concessions contracts under Directives 2004/17/EC or 2004/18/EC?
               If Question 1 is answered in the affirmative:

               2.

               Do Article 2(b) and Article 5(2) of Regulation (EC) No 1370/2007 presume, as is conveyed by the word ‘or’, an exclusive competence either of an individual authority or of a group of authorities, or do those provisions also permit an individual authority to be a member of a group of authorities and to assign specific tasks to the group but at the same time to retain the power to intervene under Article 2(b) and to be the competent local authority within the meaning of Article 5(2) of the regulation?

               3.

               Does point (e) of the second sentence of Article 5(2) of Regulation (EC) No 1370/2007, which lays down the requirement to perform the major part of the public passenger transport service itself, prevent the internal operator from having that major part of the services performed by a wholly-owned subsidiary?

               4.

               At what point in time must the conditions governing direct awards laid down in Article 5(2) of Regulation (EC) No 1370/2007 be met: at the time of publication of an intended direct award pursuant to Article 7 of Regulation (EC) No 1370/2007 or not until the time of the direct award itself?

      (1)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).


title: Joined Cases C-490/15 P and C-505/15 P: Judgment of the Court (Sixth Chamber) of 14 September 2016 — Ori Martin SA C-490/15 P), Siderurgica Latina Martin SpA (SLM) (C-505/15 P) v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Fines — Setting of the fines — Regulation (EC) No 1/2003 — Article 23(2) — Presumption of actual exercise of decisive influence by the parent company over the subsidiary — The 2006 Guidelines on the method of setting fines — Principle of non-retroactivity — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy within a reasonable time — Charter of Fundamental Rights — Article 41 — Right to proceedings being conducted within a reasonable time)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/23

         Judgment of the Court (Sixth Chamber) of 14 September 2016 — Ori Martin SA C-490/15 P), Siderurgica Latina Martin SpA (SLM) (C-505/15 P) v European Commission
   (Joined Cases C-490/15 P and C-505/15 P) (1)

   ((Appeal - Competition - Agreements, decisions and concerted practices - European prestressing steel market - Fines - Setting of the fines - Regulation (EC) No 1/2003 - Article 23(2) - Presumption of actual exercise of decisive influence by the parent company over the subsidiary - The 2006 Guidelines on the method of setting fines - Principle of non-retroactivity - Charter of Fundamental Rights of the European Union - Article 47 - Right to an effective remedy within a reasonable time - Charter of Fundamental Rights - Article 41 - Right to proceedings being conducted within a reasonable time))
   (2016/C 419/30)
   Language of the case: Italian

      Parties

      Appellants: Ori Martin SA (C-490/15 P), Siderurgica Latina Martin SpA (SLM) (C-505/15 P) (represented by: G. Belotti and P. Ziotti, avvocati)

      Other party to the proceedings: European Commission (represented by: V. Bottka, G. Conte and P. Rossi, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeals in cases C-490/15 P and C-505/15 P;

               2.

               Orders Ori Martin SA to pay the costs in Case C-490/15 P;

               3.

               Orders Siderurgica Latina Martin SpA (SLM) to pay the costs in Case C-505/15 P.

      (1)  OJ C 406, 7.12.2015.


title: Case T-311/00: Action brought on 28 September 2000 by British American Tobacco (Investments) Limited against the Commission of the European Communities

text:
C 355/36                EN                     Official Journal of the European Communities                                       9.12.2000
Action brought on 28 September 2000 by British Amer-                      invoking any exception to the Access Rules (2). Accordingly
ican Tobacco (Investments) Limited against the Com-                       the applicant holds that the Access Rules in general and its
             mission of the European Communities                          right of access in particular have been infringed.
                                                                          (1) Proposal for a directive of the European Parlament and of the
                          (Case T-311/00)
                                                                              Council on the approximation of the laws, regulations and
                                                                              administrative provisions of the Member States concerning the
                                                                              manufacture, presentation and sale of tobacco products (recast
                          (2000/C 355/76)                                     version) (COM/99/594 final).
                                                                          (2) Commission Decision 94/90/ECSC, EC, Euratom of 8 February
                                                                              1994, on public access to Commission documents (OJ L 46,
                                                                              p. 58).
                   (Language of the case: English)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 September 2000 by British
American Tobacco (Investments) Limited, represented by Scott              Action brought on 29 September 2000 by Alexandra
Crosby, Solicitor, of Kemmler Rapp Böhlke & Crosby, Brussels.             Tavares against the Commission of the European Com-
                                                                                munities
The applicant claims that the Court should:                                                        (Case T-312/00)
                                                                                (2000/C 355/77)
—     annul the decision of the Commission of 7 September
      2000 refusing access to the range of international scien-
                                                                                (Language of the case: French)
      tific research on which proposal Com 1999(594) final
      was based, to the records of the Commission’s assessment
      thereof and to the minutes of the Cancer Experts Com-               An action against the Commission of the European Communi-
      mittee, the High level Cancer Experts Committee and the             ties was brought before the Court of First Instance of the
      Advisory Committee for Cancer Prevention (the Cancer                European Communities on 29 September 2000 by Alexandra
      Committees) assessing said range of international scien-            Tavares, residing in Luxembourg, represented by Louis Tinti of
      tific research, all as specified in the request for access of       the Luxembourg Bar.
      6 June 2000;
                                                                          The applicant claims that the Court should:
—     order the defendant to pay the applicant’s costs pursuant           —     annul the implied decision rejecting her application
      to Article 87 of the Rules of Procedure of the Court of                   lodged in accordance with Article 90 of the Staff Regu-
      First Instance.                                                           lations in so far as it refuses to grant her the installation
                                                                                allowance laid down by Article 5(1) of Annex VII to the
                                                                                Staff Regulations and the daily subsistence allowance laid
                                                                                down by Article 10(1) of that annex;
Pleas in law and main arguments                                           —     order the Commission to account to the applicant for the
                                                                                sums due in respect of the installation allowance and the
                                                                                daily subsistence allowance, plus interest for delay at the
The applicant is a company belonging to the British American                    rate of 8 % per annum as from the date on which the
Tobacco (BAT) group of companies. The principal activity of                     amounts became due;
the BAT group is the manufacture, distribution and sale of
tobacco products. On 6 June 2000, it requested access to two              —     order the Commission to pay the costs.
categories of documents in connection with the Commission
proposal for a directive on tobacco products (1). The first               Pleas in law and main arguments
category comprised documents containing scientific evidence
about tobacco products and the second comprised documents
                                                                          In support of her action, the applicant claims:
containing scientific evidence on the behaviour of consumers.
                                                                          —     Infringement of the first paragraph of Article 5(1) of
                                                                                Annex VII of the Staff Regulations of officials. That
The applicant maintains that the administrative procedure has                   provision, as interpreted by the case-law, provides that
revealed that a number of documents exist or may be presumed                    an official who is granted an expatriation allowance is
to exist which are Commission documents and are within the                      automatically entitled to receive an installation allowance.
scope of the request for access. None of these documents                        It was thus on the basis of an erroneous interpretation of
having been forwarded or otherwise made accessible to the                       the above provision that the contested decision refuses
applicant, it infers that the Commission has rejected its request               the installation allowance to the applicant, whereas the
for access, but without giving any reasons for non-access or                    expatriation allowance was granted to her.


title: Case T-356/07: Action brought on 19 September 2007 — Pfizer v OHIM — Isdin (ISDIN 14-8.000)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/64

         Action brought on 19 September 2007 — Pfizer v OHIM — Isdin (ISDIN 14-8.000)
   (Case T-356/07)
   (2007/C 269/117)
   Language in which the application was lodged: English
   Parties

      Applicant: Pfizer Ltd (Sandwich, United Kingdom) (represented by: V. von Bomhard, A. Renck, T. Dolde, lawyers, and M. Hawkins, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Isdin, SA (Barcelona, Spain)
   Form of order sought

               —

               Annul the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 June 2007 in Case R 565/2006-1; and

               —

               order that the costs of the proceedings be borne by the defendant.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘ISDIN 14-8.000’ for products in among others class 5 — Community trade mark No 1 243 633

      Proprietor of the Community trade mark: Isdin, SA

      Party requesting the declaration of invalidity of the Community trade mark: The applicant

      Trade mark right of the party requesting the declaration of invalidity: The national word mark ‘ISTIN’ for goods in class 5

      Decision of the Cancellation Division: Partial declaration of invalidity of the Community trade mark

      Decision of the Board of Appeal: Annulment of the Cancellation Division's decision insofar as it declared the invalidity of the Community trade mark

      Pleas in law: Violation of the applicant's right to be heard pursuant to Article 73 of Council Regulation No 40/94 and violation of Article 52 read in conjunction with Article 8(1)(b) of the regulation.


title: Appeal brought on 10 December 1996 by Compagnie Maritime Belge Transport NV and Compagnie Maritime Belge NV against the judgment delivered on 8 October 1996 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-24/93 between Compagnie Maritime Belge Transport NV and Compagnie Maritime Belge NV and the Commission of the European Communities, supported by Grimaldi and Cobelfret, T-25/93 between Dafra Lines A/S and the Commission of the European Communities, T-26/93 between Deutsche Afrika-Linien GmbH & Co. and the Commission of the European Communities and T-28/93 between Nedlloyd Lijnen BV and the Commission of the European Communities (Case C-395/96 P)

text:
No C 54/ 10           EN                  Official Journal of the European Communities                                      22 . 2 . 97
— breach and/or incorrect application of Article 186 of              Communities on 10 December 1996 by Compagnie
    the EC Treaty in that the President ruled that the               Maritime Beige Transport NV and Compagnie Maritime
    interim measures sought could be granted only on the             Beige NV, represented by Messrs Michel Waelbroeck and
    basis of a definitive assessment of the facts and pleas          Denis Waelbroeck, of the Brussels Bar, with an address for
    in law put forward and that the application for those            service in Luxembourg at the Chambers of Maitre Ernest
    measures     could   therefore   be   dismissed    without       Arendt, 8-10 rue Mathias Hardt.
    considering the pleas in law and arguments put
    forward by the applicant in justification . Neither the          The appellants claim that the Court should:
    wording of Article 186 of the EC Treaty nor the
    relevant case-law justifies dismissing an application for        — quash the judgment of the CFI,
    interim measures on the sole ground that the interim             — annul the contested decision of the Commission,
    measures sought involve ( in part ) the granting of a
    sum of money (for damages ). The applicant had,                  — alternatively, if the decision of the Commission is
    moreover, . pointed out that under inter alia                          not annulled in its entirety, annul or, at the very
    Netherlands law it is possible in certain circumstances                least, reduce substantially the fine imposed on the
    to grant ( partial ) compensation in interlocutory                     appellants,
    proceedings ( as an interim measure ),
                                                                     — in any event, order the Commission and the
— breach of Article 186, of the obligation to state                        Interveners to pay the costs of the whole procedure .
    reasons and/or of the right to a fair hearing in that the
    President failed to consider whether other appropriate           Pleas in law and main arguments adduced in support:
    provisional measures might have been granted in order
                                                                     In the present appeal the appellants limit themselves to the
    to protect the applicant's interests,
                                                                     following points, namely:
— breach of Article 186 of the EC Treaty, of the                     — that none of the three alleged abuses which have been
    obligation to state reasons and of the right to a fair                 held against them by both the Commission and the
    hearing in that the President made the order without                   Court of First Instance can be characterized as such,
    allowing the applicant an opportunity to provide
    further clarification of his point of view orally.               — that the Court of First Instance was wrong in rejecting
                                                                           their arguments as to the collective assessment of their
                                                                           dominance,
                                                                     — that, at the very least, the fine should be substantially
                                                                           reduced,
Appeal brought on 10 December 1996 by Compagnie                      — that the appellants ' right to a fair hearing have been
Maritime Beige Transport NV and Compagnie Maritime                         infringed by the Court of First Instance,
Beige NV against the judgment delivered on 8 October
1996 by the Third Chamber, Extended Composition, of                  — that the Court of First Instance has infringed the
the Court of First Instance of the European Communities                    appellants' right to a strict interpretation of criminal
in Joined Cases T-24/93 between Compagnie Maritime                         law provisions .
Beige Transport NV and Compagnie Maritime Beige NV
and the Commission of the European Communities,                      In particular, the present appeal is based on the following
supported by Grimaldi and Cobelfret, T-25 /93 between                grounds :
Dafra Lines A/S and the Commission of the European
Communities, T-26/93 between Deutsche Afrika-Linien                  As to the first alleged abuse consisting in 'participating in
GmbH &C Co . and the Commission of the European                      the implementation of the Ogefrem Agreement and
Communities and T-28/93 between Nedlloyd Lijnen BV                   insisting repeatedly by a variety of means that it be strictly
    and the Commission of the European Communities                   complied with', the Appellants respectfully submit:
                      (Case C-395/96 P)                              ( a ) that the Court of First Instance in its judgment has not
                         ( 97/C 54/18 )                                    based itself on the previous accusations made by the
                                                                           Commission but on an entirely new accusation —
                                                                           never made before by the Commission, and not
An appeal against the judgment delivered on 8 October                      supported by the facts — and by doing so violated
1996 by the Third Chamber, Extended Composition, of                        their rights of defence and their right to a fair trial;
the Court of First Instance of the European Communities
in Joined Cases T-24/93 between Compagnie Maritime                   ( b ) that the judgment of the Court of First Instance is
Beige Transport NV and Compagnie Maritime Beige NV                         further affected by a manifest contradiction in
and the Commission of the European Communities,                            reasoning;
supported by Grimaldi and Cobelfret, T-25/93 between
Dafra Lines A/S and the Commission of the European                   (c ) that in any event, even if the original accusation had
Communities, T-26/93 between Deutsche Afrika-Linien                        not been changed by the Court of First Instance, the
GmbH & Co. and the Commission of the European                              alleged abuse cannot be held against the appellants;
Communities and T-28/93 between Nedlloyd Lijnen BV                         that the Court of First Instance has entirely ignored
and the Commission of the European Communities, was                        the various pleas put forward by the appellants in that
brought before the Court of Justice of the European                        respect .
 ---pagebreak---  22 . 2 . 97                EN                Official Journal of the European Communities                                          No C 54/ 11
 As to the second alleged abuse consisting in the so-called               ( b ) that even if the Court of First Instance was right in its
 'fighting ships' practices, the appellants respectfully                         interpretation of Article 5 (2 ) ( b ) ( i ) of the Regulation ,
 submit :                                                                        the appellants only failed to comply with an
                                                                                'obligation ' attaching to exemption and not with a
                                                                                'condition ' attaching to exemption; that therefore the
 ( a ) that the Court of First Instance has interpreted the                      Commission was obliged first to withdraw the benefit
        contested decision as being based on a definition of                    of the block exemption (ex nunc) before
        ' fighting ships' which is diametrically different from                 contemplating the adoption of other measures under
        that contained in the statement of objections; that if                  Article 86 of the EC Treaty if the infringement
       the Court of First Instance is right in this                             continued ( infringement of Articles 7(1 ) and 8 ( 2 ) of
        interpretation of the Decision , it should necessarily                  Regulation ( EEC ) No 4056/86 );
        have     concluded    that  the  decision     offended the
        appellants ' rights of defence and their right to a fair
       trial ;                                                            ( c ) that, finally, the Court of First Instance has given to
                                                                                the decision a meaning which is irreconcilable with its
                                                                                own terms .
 ( b ) that — alternatively — if the Court of First Instance
       has interpreted wrongly the Commission's decision, it
       has modified itself the accusation against the                    As to the applicability of Article 86 of the EC Treaty in
       appellants in violation of the appellants ' rights of             case of collective dominance, the appellants respectfully
       defence and to a fair hearing;                                    submit :
( c ) that the appellants have demonstrated that none of the             ( a ) that the Commission 's Decision contained no sufficient
       conditions of the original accusation made against                       reasoning to justify the applicability of Article 86 of
       them in the statement of objections was met; that the                    the EC Treaty collectively to the Cewal members and
       newly defined accusation against the appellants ( as                     that it was not for the Court of First Instance to
       opposed to the original accusation made in the                           supplement or second-guess the reasoning of the
       statement of objections ) is incompatible with Article 86                Commission by extracting individual elements from
       of the EC Treaty in so far as it prohibits a conference                  the decision to support a collective assessment of their
       to merely respond to requests of customers to adapt                      position on the market;
       the conference 's tariffs to those of an outsider, without
       having thereby incurred any losses, nor having made
       any price discrimination; that dominant companies                 ( b ) that in order to establish a collective dominance, the
       must indeed be entitled to meet competition from                         Court of First Instance has wrongly relied on the fact
       third parties, and that there is in any event no possible                that the undertakings in question participated in ' what
       charge of predation against a dominant firm 's pricing                   is essentially, if anything at all , an Article 85 practice';
       policy above average costs;
                                                                         ( c ) that the Court of First Instance erred in law when it
( d ) that neither the name given to the practice by Cewal                      decided that concerted behaviour among Cewal
       members nor the intention pursued by the parties is                      members could be viewed as ' abuses ' within the
       relevant in assessing the existence of an abuse; that the                meaning of Article 86 of the EC Treaty, although they
       Commission itself has consistently held that ' it does                   were not the result of unilateral conduct by the Cewal
       not consider an intention even by a dominant firm to                     members;
       prevail over its rivals as unlawful '.
                                                                         ( d ) that, at the very least, the Court of First Instance has
As to the third alleged abuse resulting from the fact that                      not responded to the appellants ' pleas in that respect.
100% loyalty agreements were offered by Cewal , the
appellants respectfully submit:
                                                                         Alternatively, the appellants claim that the fine should be
                                                                         annulled or substantially reduced . Indeed , they have
( a ) that a condemnation of the appellants ' loyalty rebates            shown :
       in this instance means a de facto rewording of Article
       5 ( 2 ) ( b ) ( i ) of Regulation ( EEC ) No 4056/86 (')
       ( which allows expressly conference members 'to                   ( a ) that the fine imposed on CMB is higher than its whole
       institute and maintain loyalty arrangements with                         turnover achieved on the relevant market in the year
       transport users') into a rule saying that 100% loyalty                   preceding the decision and is thereby probably the
       rebates may be offered provided that prevailing                          highest fine in relative terms ever imposed by the
       marketing conditions are such that the conference is                     Commission ; that this high amount was not justified
       not dominant; that according to the Court of First                       by the special gravity of the alleged infringements , nor
       Instance 's own definition of collective dominance , this                by their duration , nor by alleged profits made as a
       will however never be the case and that therefore the                    result, nor by an uncooperative attitude of the
       interpretation given by the Court of First Instance                      appellants, nor by the nature and value of the
       deprives the regulation of its 'effet utile ';                           products/services concerned;
 ---pagebreak--- No C 54/ 12                  EN~1            Official Journal of the European Communities                                  22 . 2 . 97
( b ) that account ought to have been taken of the difficult            Appeal brought on 10 December 1996 by Dafra Lines A/S
      financial position of the appellants, as well as of the           against the judgment delivered on 8 October 1996 by the
      novelty of the alleged infringements, of the regulatory           Third Chamber, Extended Composition, of the Court of
      context in Zaire, and of the cooperative attitude of the          First Instance of the European Communities in Joined
      appellants;                                                       Cases T-24/93 between Compagnie Maritime Beige
                                                                        Transport NV and Compagnie Maritime Beige NV and the
                                                                        Commission of the European Communities, supported by
( c ) that the statement of objections was not addressed to             Grimaldi and Cobelfret, T-25/93 between Dafra Lines A/S
      the appellants but to Cewal , and the statement of                and the Commission of the European Communities, T-26/
      objections threatened to impose fines on Cewal and                93 between Deutsche Afrika-Linien GmbH & Co . and the
      not on its members, and that therefore the                        Commission of the European Communities and T-28/93
      Commission was not entitled thereafter to impose                  between Nedlloyd Lijnen BV and the Commission of the
      fines on some of Cewal 's members without having                                     European Communities
      announced it in the statement of objections;                                           ( Case C-396/96 P )
                                                                                ( 97/C 54/ 19 )
( d ) that no reason is given why 95 % of the fine should
      have been imposed on CMB (which carried 35 % of                   An appeal against the judgment delivered on 8 October
      the trade ) while no fine was imposed on CMZ ( which              1996 by the Third Chamber, Extended Composition, of
      carried 40 % of the trade ); that the only reason is that         the Court of First Instance of the European Communities
      the Commission found it politically difficult to impose           in Joined Cases T-24/93 between Compagnie Maritime
      a fine on a Zairian liner company; that the                       Beige Transport NV and Compagnie Maritime Beige NV
      Commission also wanted to strike a 'political balance '           and the Commission of the European Communities,
      with the fine imposed previously, for a very different            supported by Grimaldi and Cobelfret, T-25/93 between
      behaviour, on the French company Delmas;                          Dafra Lines A/S and the Commission of the European
                                                                        Communities, T-26/93 between Deutsche Afrika-Linien
                                                                        GmbH &C Co . and the Commission of the European
( e ) that also the interest rate applicable to the payment of          Communities and T-28/93 between Nedlloyd Lijnen BV
      the fine ( 13,25% ) is abnormally high .                          and the Commission of the European Communities, was
                                                                        brought before the Court of Justice of the European
                                                                        Communities on 10 December 1996 by Dafra Lines A/S ,
The appellants finally submit that anti-trust procedures                represented by Messrs Michel Waelbroeck and Denis
resulting in the imposition of fines upon companies are                 Waelbroeck, of the Brussels Bar, with an address for
procedures having criminal character within the meaning                 service in Luxembourg at the Chambers of Maitre Ernest
of the ECHR and that therefore the Court of First                       Arendt, 8 — 10 rue Mathias Hardt .
Instance has infringed :
                                                                        The appellant claims that the Court should :
( a ) Article 6 ( 3 ) of the ECHR in so far as the 'cause of the        — quash the judgment of the CFI,
      accusation' has been modified by the Court of First
      Instance;                                                         — annul the contested decision of the Commission,
                                                                        — alternatively, if the decision of the Commission is not
( b ) Article 7 ( 1 ) of the ECHR in so far as the Court of                 annulled in its entirety, annul or, at the very least,
      First Instance has considered that the appellants could               reduce substantially the fine imposed on the appellant,
      be fined, contrary to all existing case-law, for entirely
      novel abuses,           never condemned   before,  and    in      — in any event, order the Commission to pay the costs of
      particular:                                                           the whole procedure .
                                                                        Pleas in law and main arguments adduced in support:
      — their refusal to renounce an exclusivity right
           granted by the State ,                                       In the present appeal the appellants limit themselves to the
                                                                        following points , namely :
      — their meeting competition with an outsider,
           without making losses,                                       — that none of the three alleged abuses which have been
                                                                            held against them by both the Commission and the
                                                                            Court of First Instance can be characterized as such ,
      — their granting loyalty rebates, expressly exempted
           by a group exemption regulation .                            — that the Court of First Instance was wrong in rejecting
                                                                            their arguments as to the collective assessment of their
(') Council Regulation ( EEC ) No 4056/86 of 22 December 1986               dominance,
     laying down detailed rules for the application of Articles 85
     and 86 of the Treaty to maritime transport ( OJ No L 378 ,         — that, at the very least, the fine should be substantially
     31 . 12 . 1986 , p. 4 ).                                               reduced ,
                                                                        — that the appellants' right to a fair hearing have been
                                                                            infringed by the Court of First Instance,


title: Case C-283/11: Judgment of the Court (Grand Chamber) of 22 January 2013 (reference for a preliminary ruling from the Bundeskommunikationssenat — Austria) — Sky Österreich GmbH v Österreichischer Rundfunk (Directive 2010/13/EU — Provision of audiovisual media services — Article 15(6) — Validity — Events of high interest to the public that are subject to exclusive broadcasting rights — Right of access of broadcasters to such events for the purpose of making short news reports — Limitation of possible compensation for the holder of the exclusive right to additional costs incurred in providing such access — Charter of Fundamental Rights of the European Union — Articles 16 and 17 — Proportionality)

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/3

         Judgment of the Court (Grand Chamber) of 22 January 2013 (reference for a preliminary ruling from the Bundeskommunikationssenat — Austria) — Sky Österreich GmbH v Österreichischer Rundfunk
   (Case C-283/11) (1)

   (Directive 2010/13/EU - Provision of audiovisual media services - Article 15(6) - Validity - Events of high interest to the public that are subject to exclusive broadcasting rights - Right of access of broadcasters to such events for the purpose of making short news reports - Limitation of possible compensation for the holder of the exclusive right to additional costs incurred in providing such access - Charter of Fundamental Rights of the European Union - Articles 16 and 17 - Proportionality)
   2013/C 71/05
   Language of the case: German

      Referring court

   Bundeskommunikationssenat

      Parties to the main proceedings

      Applicant: Sky Österreich GmbH

      Defendant: Österreichischer Rundfunk

      Re:

   Reference for a preliminary ruling — Bundeskommunikationssenat — Compatibility of Article 15(6) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (OJ 2010 L 95, p. 1) with the freedom to conduct a business and the right to property as guaranteed under Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, and Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms — Right of all broadcasters to benefit, for the production of short news programmes, from access to events of high interest to the public which are subject to exclusive broadcasting rights — Limitation of possible compensation to additional costs incurred in providing such access — Proportionality

      Operative part of the judgment

   Consideration of the question raised has not disclosed any factor of such a kind as to affect the validity of Article 15(6) of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive).

      (1)  OJ C 269, 10.9.2011.