title: Designation of Presidents of Chambers and assignment of Judges to Chambers

text:
No C 294/ 10           EN                  Official Journal of the European Communities                                  5 . 10 . 96
    — Commission Directive 93/ 105/EC of 25 November                  Italian Republic having brought into force the necessary
        1993 laying down Annex VII D , containing                     provisions in order to comply with those Directives .
        information required for the technical dossier
        referred to in Article 12 of the seventh amendment to         0)   OJ No   L 228 , 17.  8 . 1991 , p . 67.
        Council Directive 67/548/EEC (4 ),                            (2 ) OJ No   L 264,  23 . 10 . 1993 , p. 51 .
                                                                      (3)  OJ No   L 277,  10 . 11 . 1993 , p . 33 .
    — Council Directive 92/72/EEC of 21 September 1992                (4 ) OJ No   L 294 , 30 . 11 . 1993 , p . 21 .
        on air pollution by ozone ( 5 ),                              (5 ) OJ No   L 297,  13 . 10 . 1992 , p . 1 .
the Italian Republic has failed to fulfil its obligations under
those Directives,
order the Italian Republic to pay the costs .
Pleas in law and main arguments                                              Removal from the register of Case C-289/95 ( )
                                                                                96/C 294/20
Under Article 189 of the EC Treaty, according to which a
directive is to be binding, as to the result to be achieved, on
each Member State to which it is addressed, Member States             By order of 3 May 1996 , the President of the Court of Justice
are required to observe the time limits laid down in                  of the European Communities ordered the removal from the
directives for their transposition . That time limit expired on       register of Case C-289/95 : Commission of the European
1 August 1992 ( Directive 91 /410/EEC ), on 31 December               Communities v. Italian Republic .
1993 ( Directives 93/86/EEC, 93/90/EEC, 93/105/EC ) and
on 21 March 1994 ( Directive 92/72/EEC ) without the                  (') OJ No C 268 , 14 . 10 . 1995 .
                                                     COURT OF FIRST INSTANCE
Designation of Presidents of Chambers and assignment of                     Second Chamber, Extended Composition:
                      Judges to Chambers
                                                                            Mr Bellamy, President of Chamber, and Messrs
                          ( 96/C 294/21 )                                   Kirschner, Briët, Kalogeropoulos and Potocki,
                                                                            Judges;
At its meeting on 12 September 1996 , the Court of First
Instance decided, pursuant to Article 2 ( 4 ) of Council                    Third Chamber:
Decision of 24 October 1988 and Articles 10 and 15 of the
 Rules of Procedure of the Court of First Instance, for the                 Mr Vesterdorf, President of Chamber, and Messrs Briët
period between 1 October 1996 and 30 September 1997:                        and Potocki , Judges;
 A. To designate as Presidents of Chamber:                                  Third Chamber, Extended Composition:
     — Mr Vesterdorf                                                        Mr B. Vesterdorf, President of Chamber, Mr Briët, Ms
     — Mr García-Valdecasas                                                 Lindh, Mr Potocki and Mr Cooke, Judges;
     — Mr Lenaerts                                                          Fourth Chamber:
     — Mr Bellamy                                                           Mr Lenaerts , President of Chamber, Ms Lindh and Mr
                                                                            Cooke , Judges ;
 B. To assign the Members of the Court of First Instance to
     the Chambers as follows :                                              Fourth Chamber, Extended Composition:
     First Chamber:                                                         Mr Lenaerts, President of Chamber, Ms Lindh, Mr
                                                                            Azizi , Mr Cooke and Mr Jaeger, Judges;
     President Saggio, Ms Tiili and Mr Moura Ramos,
     Judges;                                                                Fifth Chamber:
     First Chamber, Extended Composition:                                   Mr García-Valdecasas, President of Chamber, and
     President Saggio, Mr Kirschner, Mr Kalogeropoulos,                     Messrs Azizi and Jaeger, Judges ;
     Ms Tiili and Mr Moura Ramos, Judges;
                                                                            Fifth Chamber, Extended Composition:
     Second Chamber:
                                                                             Mr R. García-Valdecasas, President of Chamber, Ms
     Mr Bellamy, President of Chamber, Mr Kirschner and                     Tiili, Mr Azizi, Mr Moura Ramos and Mr Jaeger,
     Mr Kalogeropoulos , Judges;                                            Judges .
 ---pagebreak--- 5 . 10 . 96              EN                 Official Journal of the European Communities                                 No C 294/ 11
For cases in which the written procedure was completed and             Action brought on 12 July 1996 by Mireille Cesaratto
a hearing in the oral procedure was held or fixed before                              against the European Parliament
1 October 1996 , the Chamber shall continue to sit with the                                    Case T-108/96 )
same composition as before for the oral procedure, the
                                                                                96/C 294/22 )
deliberation and the judgment.
                                                                                (Language of the case: French)
Criteria for assigning cases to the Chambers
                                                                       An action against the European Parliament was brought
At its meeting on 12 September 1996 , the Court of First               before the Court of First Instance of the European
Instance established the following criteria for the                    Communities on 12 July 1996 by Mireille Cesaratto,
assignment of cases to the Chambers for the period between             residing in Luxembourg, represented by Gaston Vogel of the
1 October 1996 and 30 September 1997, pursuant to                      Luxembourg Bar, with an address for service in
Article 12 of the Rules of Procedure :                                 Luxembourg at his Chambers, 42 , boulevard Joseph II .
                                                                       The applicant claims that the Court should :
1 . ( a ) Actions which concern the implementation of the
            rules concerning State aid and the rules on trade          — annul the contested decision,
            protection measures are to be assigned, with effect
            from the lodging of the application and without            — order the European Parliament to pay the costs .
            prejudice to any subsequent application of
            Articles 14 and 51 of the Rules of Procedure, to
            Chambers with an extended composition of five              Pleas in law and main arguments
            Judges .
                                                                       The applicant, an official of the European Parliament, who
                                                                       had submitted a request under Article 41 of the Staff
     ( b ) All other cases are to be assigned, with effect from        Regulations to leave its service before the due date on
            the lodging of the application and without                 account of her personal circumstances, is challenging the
            prejudice to any subsequent application of                 appointing authority's refusal to assign her non-active
            Articles 14 and 51 of the Rules of Procedure , to          status under that provision. That decision is based on the
            Chambers of three Judges .                                 consideration that the defendant institution had not decided
                                                                       on a reduction, in the interests of the service, in the number
                                                                       of posts' corresponding to the applicant's category .
2 . Cases referred to in paragraphs 1 ( a ) and 1 ( b ) are to be
     assigned to Chambers as follows :                                 She maintains in particular that, in comparison with the
                                                                       position of two other officials of the same institution to
     — cases referred to in paragraph 1 ( a ) are to be assigned       whom Article 41 has been applied, the contested decision is
           in turn, according to the order in which they are           unlawful because of a misuse of powers .
           registered at the Court Registry, to the First, Second,
           Third, Fourth and Fifth Chambers , Extended                 As regards the first of those two other officials, two criteria
           Composition,                                                seem to have been decisive in granting his request to be
                                                                       assigned non-active status : the fact that he occupied a post
     — cases referred to in paragraph 1 ( b ) are to be assigned       which was going to be abolished, and his age, or his
           to the First, Second, Third, Fourth and Fifth               seniority . The applicant disputes the fact that the post in
           Chambers . Such assignment is to be effected on the         question was marked out for abolition when that decision
                                                                       was taken a few months before the official reached
           basis of two separate lists , of staff cases and other
           cases covered by paragraph 1 ( b ) respectively,            retirement age . In that respect, she considers that there was a
           according to the order in which they are registered at      sham abolition of a post in order to allow an official to enjoy
           the Court Registry .                                        a considerable advantage two months before his
                                                                       retirement .
The First Chamber and the First Chamber, Extended                      As regards the second official, chosen on the basis of his
Composition, presided by the President of the Court of First           family circumstances, the applicant denies that those
Instance, shall not be included in those lists on every third          circumstances really existed . She also alleges that the
occasion .                                                             Parliament should have paid more attention to the other
                                                                       criteria referred to in Article 41 of the Staff Regulations . The
                                                                       applicant specifically points out that she has eight more
The President of the Court of First Instance may derogate              years of service than the official in question .
from that order on the ground that cases are related or with
a view to ensuring an even spread of the workload between              In addition , the applicant claims that the defendant's
the various Chambers .
                                                                       treatment of her constitutes a breach of the principle of
                                                                       equal treatment.


title: Case F-105/05: Judgment of the Civil Service Tribunal (Third Chamber) of 11 July 2007 — Dieter Wils v European Parliament (Staff cases — Officials — Pensions — Increase in the rate of contribution under the pension scheme pursuant to the provisions of the Staff Regulations in the version thereof in force from 1 May 2004 )

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/46

         Judgment of the Civil Service Tribunal (Third Chamber) of 11 July 2007 — Dieter Wils v European Parliament
   (Case F-105/05) (1)

   (Staff cases - Officials - Pensions - Increase in the rate of contribution under the pension scheme pursuant to the provisions of the Staff Regulations in the version thereof in force from 1 May 2004)
   (2007/C 199/88)
   Language of the case: French
   Parties

      Applicant: Dieter Wils (Altrier, Luxembourg) (represented by: G. Vandersanden and C. Ronzi, lawyers)

      Defendant: European Parliament (represented by: J. F. De Wachter and M. Mustapha Pacha, Agents)
   Re:
   Staff cases — Annulment of the applicant's salary slips from July 2004, insofar as they increase the rate of contribution to the pension scheme to 9.75 % following the application of the provisions of the new Staff Regulations (formerly T-399/05)
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the European Parliament to bear its own costs and to pay half of Mr Wils' costs;

               3.

               Orders Mr Wils to bear half of his own costs;

               4.

               Orders the Council of the European Union and the Commission of the European Communities to bear their own costs.

      (1)  OJ C 10, 14.1.2006, p. 28.


title: Case C-620/16: Action brought on 29 November 2016 — European Commission v Federal Republic of Germany

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/15

         Action brought on 29 November 2016 — European Commission v Federal Republic of Germany
   (Case C-620/16)
   (2017/C 038/20)
   Language of the case: Germany

      Parties

      Applicant: European Commission (represented by: W. Mölls, L. Havas and J. Hottiaux, acting as Agents)

      Defendant: Federal Republic of Germany

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that the Federal Republic of Germany infringed Council Decision 2014/699/EU (1) and Article 4(3) TEU, in so far as, at the 25th meeting of the OTIF Revision Committee, it voted against the common position laid down in that decision and expressed open opposition both to that common position and to the exercise of voting rights by the EU provided for therein.

               —

               order the Federal Republic of Germany to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on the following pleas in law:
   The Intergovernmental Organisation for International Carriage by Rail (OTIF), of which the EU alongside 26 Member States is a member, administers the Convention concerning International Carriage by Rail (COTIF).
   At the 25th meeting of the OTIF Revision Committee a vote was held with respect to certain changes to the convention and its annexes. The Council laid down the EU common position with regard to several of those points in Decision 2014/699/EU.
   At the meeting, the Federal Republic of Germany voted in two points against the common position laid down in that decision, expressed open opposition to that common position and in one case also to exercise of voting rights by the EU provided for in the decision.
   That conduct is incompatible with Decision 2014/699/EU and with Article 4(3) TEU.

      (1)  Council Decision 2014/699/EU of 24 June 2014 establishing the position to be adopted on behalf of the European Union at the 25th session of the OTIF Revision Committee as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and to the Appendices thereto (OJ L 293, p. 26).


title: Case T-300/14: Order of the General Court of 22 May 2015 — Fricopan Back v Commission (State aid — Measures adopted by Germany in favour of electricity generated from renewable energy sources and of energy-intensive undertakings — Decision to open the procedure under Article 108(2) TFEU — Adoption of the final decision after the action was brought — No need to adjudicate — Action for annulment — Application to amend the form of order sought — No new information — Inadmissibility)

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/26

         Order of the General Court of 22 May 2015 — Fricopan Back v Commission
   (Case T-300/14) (1)

   ((State aid - Measures adopted by Germany in favour of electricity generated from renewable energy sources and of energy-intensive undertakings - Decision to open the procedure under Article 108(2) TFEU - Adoption of the final decision after the action was brought - No need to adjudicate - Action for annulment - Application to amend the form of order sought - No new information - Inadmissibility))
   (2015/C 245/31)
   Language of the case: German

      Parties

      Applicant: Fricopan Back GmbH Immekath (Klötze, Germany) (represented by: T. Volz, M. Ringel, B. Wißmann, M. Püstow, C. Oehme and T. Wielsch lawyers)

      Defendant: European Commission (represented by: T. Maxian Rusche and R. Sauer, acting as Agents, and by A. Luke and C. Maurer, lawyers)

      Re:

   Application to annul in part Commission decision C (2013) 4424 final of 18 December 2013 to open the procedure under Article 108(2) TFEU regarding measures implemented by the Federal Republic of Germany in favour of renewable electricity and of energy-intensive users (State aid SA.33995 (2013/C) (ex 2013/NN)).

      Operative part of the order

               1.

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

               2.

               The application seeking that the form of order sought in the present action be amended to cover Commission decision C (2014) 8786 final of 25 November 2014 relating to State Aid SA. 33995 (2013/C) (ex 2013/NN) implemented by the Federal Republic of Germany in favour of renewable electricity and of energy-intensive users is rejected as inadmissible.

               3.

               There is no longer any need to adjudicate on the application for intervention submitted by the EFTA Surveillance Authority.

               4.

               Fricopan Back GmbH Immekath shall bear its own costs and those incurred by the European Commission.

               5.

               The EFTA Surveillance Authority shall bear its own costs.

      (1)  OJ C 223, 14.7.2014.


title: Judgment of the Court of First Instance of 6 March 2003 in Case T-128/01: DaimlerChrysler Corporation v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Figurative mark — Representation of a vehicle grille — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Mark devoid of any distinctive character)

text:
10.5.2003               EN                         Official Journal of the European Union                                            C 112/29
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               unlawful suspension of the aid allocated to the joint enterprise
                                                                           fisheries project SM/ESP/18/93, the Court of First Instance
                       of 26 February 2003                                 (Third Chamber), composed of K. Lenaerts, President, and
                                                                           J. Azizi and M. Jaeger, Judges; Registrar: J. Palacio González,
                                                                           Principal Administrator, gave the following judgment on
in Case T-59/01: Albert Nardone v Commission of the                        27 February 2003:
                   European Communities ( 1)
                                                                           1.     The application is dismissed;
(Action for annulment — Former official - Request for
                         invalidity pension)
                                                                           2.     The applicant is ordered to pay the costs.
                           (2003/C 112/54)
                                                                           (1 ) OJ C 150 of 19.5.01.
                    (Language of the case: French)
In Case T-59/01: Albert Nardone, a former official of the
Commission of the European Communities, residing in Piétrain
(Belgium), represented by J. R. Iturriagagoitia Bassas and                      JUDGMENT OF THE COURT OF FIRST INSTANCE
K. Delvolvé, lawyers, against the Commission of the European
Communities (Agent: J. Currall) — application, principally, for
the annulment of the Commission decision of 20 March 2000                                            of 6 March 2003
refusing to grant the applicant an invalidity pension, —
the Court of First Instance (First Chamber), composed of:                  in Case T-128/01: DaimlerChrysler Corporation v Office
B. Vesterdorf, President, N.J. Forwood and H. Legal, Judges;               for Harmonisation in the Internal Market (Trade Marks
D. Christensen, Administrator, for the Registrar, has given a                                    and Designs) (OHIM) (1)
judgment on 26 February 2003, in which it:
                                                                           (Community trade mark — Figurative mark — Represen-
1.     Dismisses the application;                                          tation of a vehicle grille — Absolute ground for refusal —
                                                                           Article 7(1)(b) of Regulation (EC) No 40/94 — Mark devoid
2.     Orders the parties to bear their own costs.                                             of any distinctive character)
( 1) OJ C 173 of 16.6.01.                                                                             (2003/C 112/56)
                                                                                (Language of the case: English)
                                                                           In Case T-128/01, DaimlerChrystler Corporation, established
     JUDGMENT BY THE COURT OF FIRST INSTANCE                               in Auburn Hills, Michigan (United States), represented by
                                                                           T. Cohen Jehoram, lawyer, with an address for service in
                       of 27 February 2003                                 Luxembourg, v Office for Harmonisation in the Internal
                                                                           Market (Trade Marks and Designs) (OHIM) (Agents: A. von
                                                                           Mühlendahl and O. Waelbroeck): Action brought against the
in Case T-61/01 Vendedurías de Armadores Reunidos, SA                      decision of the Second Board of Appeal of the Office for
       v Commission of the European Communities ( 1)                       Harmonisation in the Internal Market (Trade Marks and
                                                                           Designs) of 21 March 2001 (Case R 309/1999-2), the Court
(Fisheries — Community financial aid — Suspension of aid                   of First Instance (Fourth Chamber), composed of: M. Vilaras,
                      — Action for damages)                                President, V. Tiili and P. Mengozzi, Judges; J. Palacio González,
                                                                           Principal Administrator, for the Registrar, has given a judgment
                           (2003/C 112/55)                                 on 6 March 2003, in which it:
                   (Language of the case: Spanish)                         1.     Annuls the decision of the Second Board of Appeal of the Office
                                                                                for Harmonisation in the Internal Market (Trade Marks and
                                                                                Designs) of 21 March 2001 (Case R 309/1999-2);
In Case T-61/01, Vendedurías de Armadores Reunidos, SA,                    2.     Orders the defendant to pay the costs.
established in Huelva (Spain), represented by represented by J.-
R. García-Gallardo Gil-Fournier and D. Domínguez Pérez,
lawyers, v the Commission of the European Communities                      (1 ) OJ C 245 of 1.9.2001.
(agents: S. Pardo Quintillán and J. Guerra Fernández), an
application for compensation for the damages caused by the


title: Case C-2/14: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 3 January 2014 — Criminal proceedings against Thi Bich Ngoc Nguyen and Nadine Schönherr

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/12

      Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 3 January 2014 — Criminal proceedings against Thi Bich Ngoc Nguyen and Nadine Schönherr
      (Case C-2/14)
      (2014/C 71/20)
      Language of the case: German

         Referring court

      Bundesgerichtshof

         Parties to the main proceedings

      Thi Bich Ngoc Nguyen
      Nadine Schönherr
      Other party to the proceedings: Generalbundesanwalt beim Bundesgerichtshof

         Question referred

      Are medicinal products, as defined in Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, (1) which contain ‘scheduled substances’ listed in Regulations (EC) No 273/2004 (2) and (EC) No 111/2005 (3) always excluded from the scope of those regulations in accordance with Article 2(a) of those regulations, or is that to be presumed only where the medicinal products are compounded in such a way that the scheduled substances cannot for the purposes of those regulations be easily used or extracted by readily applicable or economically viable means?

         (1)  OJ 2001 L 311, p. 67.

         (2)  Regulation (EC) No 273/2004 of the European Parliament and of the Council of 11 February 2004 on drug precursors (OJ 2004 L 47, p. 1).

         (3)  Council Regulation (EC) No 111/2005 of 22 December 2004 laying down rules for the monitoring of trade between the Community and third countries in drug precursors (OJ 2005 L 22, p. 1).


title: Case C-400/12: Judgment of the Court (Second Chamber) of 16 January 2014 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber), London (United Kingdom)) — Secretary of State for the Home Department v M.G. (Reference for a preliminary ruling — Directive 2004/38/EC — Article 28(3)(a) — Protection against expulsion — Method for calculating the 10-year period — Whether periods of imprisonment are to be taken into account)

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/7

         Judgment of the Court (Second Chamber) of 16 January 2014 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber), London (United Kingdom)) — Secretary of State for the Home Department v M.G.
   (Case C-400/12) (1)

   (Reference for a preliminary ruling - Directive 2004/38/EC - Article 28(3)(a) - Protection against expulsion - Method for calculating the 10-year period - Whether periods of imprisonment are to be taken into account)
   2014/C 85/11
   Language of the case: English

      Referring court

   Upper Tribunal (Immigration and Asylum Chamber), London

      Parties to the main proceedings

      Appellant: Secretary of State for the Home Department

      Respondent: M.G.

      Re:

   Request for a preliminary ruling — Upper Tribunal (Immigration and Asylum Chamber), London — Interpretation of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Expulsion decision taken on serious grounds of public security in respect of a Union citizen who had resided in the host Member State for the previous 10 years and who had been sentenced to a period of imprisonment — Notion of a 10-year period of residence in the territory of the host Member State — Whether a period of imprisonment may be taken into account — Whether length of stay must be calculated by counting forward from beginning of stay or by counting back from the expulsion decision — Impact, in the latter case, of a previous period of imprisonment.

      Operative part of the judgment

               1.

               On a proper construction of Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, the 10-year period of residence referred to in that provision must, in principle, be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned.

               2.

               Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host Member State for the 10 years prior to imprisonment. However, the fact that that person resided in the host Member State for the 10 years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host Member State have been broken.

      (1)  OJ C 331, 27.10.2012


title: Case C-439/12: Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 2 October 2012 — Karin Gawelczyk v Generali Lebensversicherung AG

text:
               15.12.2012

               EN

               Official Journal of the European Union

               C 389/3

         Reference for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 2 October 2012 — Karin Gawelczyk v Generali Lebensversicherung AG
   (Case C-439/12)
   2012/C 389/05
   Language of the case: German

      Referring court

   Landgericht Hamburg

      Parties to the main proceedings

      Applicant: Karin Gawelczyk

      Defendant: Generali Lebensversicherung AG

      Question referred

   Must the first indent of Article 15(1) of Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC (Second Life Assurance Directive), (1) having regard to Article 31(1) of Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (Third Life Assurance Directive), (2) be interpreted as precluding a provision — such as the fourth sentence of Paragraph 5a(2) of the Versicherungsvertragsgesetz (Law on insurance contracts) in the version of the Drittes Gesetz zur Durchführung versicherungsrechtlicher Richtlinien des Rates der Europäischen Gemeinschaften (Third Law implementing directives of the Council of the European Communities on insurance law) of 21 July 1994 — under which a right of cancellation lapses one year at the latest after payment of the first premium even if the policy-holder has not been informed about the right of cancellation?

      (1)  OJ 1990 L 330, p. 50.

      (2)  OJ 1992 L 360, p. 1.


title: Case C-569/07: Judgment of the Court (Second Chamber) of 1 October 2009 (Reference for a preliminary ruling from the Special Commissioners of Income Tax, London –United Kingdom) — HSBC Holdings plc, Vidacos Nominees Ltd v The Commissioners of Her Majesty’s Revenue & Customs (Indirect taxation — Raising of capital — Levying of a duty of 1,5 % on the transfer or issue of shares into a clearance service)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/6

         Judgment of the Court (Second Chamber) of 1 October 2009 (Reference for a preliminary ruling from the Special Commissioners of Income Tax, London –United Kingdom) — HSBC Holdings plc, Vidacos Nominees Ltd v The Commissioners of Her Majesty’s Revenue & Customs
   (Case C-569/07) (1)

   (Indirect taxation - Raising of capital - Levying of a duty of 1,5 % on the transfer or issue of shares into a clearance service)
   2009/C 282/10
   Language of the case: English

      Referring court

   Special Commissioners of Income Tax, London

      Parties to the main proceedings

      Applicant: HSBC Holdings plc, Vidacos Nominees Ltd

      Defendant: The Commissioners of Her Majesty’s Revenue & Customs

      Re:

   Reference for a preliminary ruling — Special Commissioners of Income Tax, London — Interpretation of Articles 10 and 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ 1969 L 249, p. 5), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23), and of Articles 43, 49 and 56 EC — Offer by a company (‘A’) established in a Member State to acquire the shares of a company (‘B’) established in another Member State in exchange for the issue of shares in company A on the stock market of the other Member State — Imposition of a duty of 1.5 % on the transfer or issuing of shares in a clearance service

      Operative part of the judgment

   Article 11(a) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as meaning that it prohibits the levying of a duty, such as that at issue in the main proceedings, on the issue of shares into a clearance service.

      (1)  OJ C 64, 8.3.2008.


title: JUDGMENT OF THE COURT (Second Chamber) of 29 October 1998 in Case C-230/97 (reference for a preliminary ruling from the Hof van Cassatie): Criminal proceedings against Ibiyinka Awoyemi (Driving licence - Interpretation of Directive 80/1263/EEC - Failure to comply with the obligation to exchange a licence issued by one Member State to a national of a non-member country for a licence from another Member State in which that person is now resident - Criminal penalties - Effect of Directive 91/439/EEC)

text:
C 397/12              EN                 Official Journal of the European Communities                                     19.12.98
               JUDGMENT OF THE COURT                                each of the trades whose scope is defined by the
                                                                    legislation of the host State, the periods prescribed by that
                       (Fifth Chamber)
                                                                    article.
                     of 29 October 1998
                                                                    (1) OJ C 212, 12.7.1997.
in Joined Cases C-193/97 and C-194/97 (reference for a
preliminary ruling from the Tribunal Administratif,
Luxembourg): Manuel de Castro Freitas and Raymond
Escallier v. Ministre des Classes Moyennes et du
                         Tourisme (1)
(Freedom of establishment Ð Directive 64/427/EEC Ð
Activities of self-employed persons in manufacturing and                           JUDGMENT OF THE COURT
processing industries Ð Conditions for taking up an
                         occupation)                                                       (Second Chamber)
                        (98/C 397/18)                                                     of 29 October 1998
                                                                    in Case C-230/97 (reference for a preliminary ruling from
                                                                    the Hof van Cassatie): Criminal proceedings against
                (Language of the case: French)                                           Ibiyinka Awoyemi (1)
                                                                    (Driving licence Ð Interpretation of Directive 80/1263/
                                                                    EEC Ð Failure to comply with the obligation to exchange
                                                                    a licence issued by one Member State to a national of a
 (Provisional translation; the definitive translation will be       non-member country for a licence from another Member
          published in the European Court Reports)                  State in which that person is now resident Ð Criminal
                                                                             penalties Ð Effect of Directive 91/439/EEC)
                                                                                (98/C 397/19)
In Cases C-193/97 and C-194/97: reference to the Court
under Article 177 of the EC Treaty from the Tribunal
Administratif, Luxembourg, for a preliminary ruling in the                          (Language of the case: Dutch)
proceedings pending before that court between Manuel de
Castro Freitas (C-193/97), Raymond Escallier (C-194/97),
and Ministre des Classes Moyennes et du Tourisme Ð on
the interpretation of Article 52 of the EC Treaty and                 (Provisional translation; the definitive translation will be
Article 3 of Council Directive 64/427/EEC of 7 July 1964                      published in the European Court Reports)
laying down detailed provisions concerning transitional
measures in respect of activities of self-employed persons
in manufacturing and processing industries falling within           In Case C-230/97: reference to the Court under Article 177
ISIC Major Groups 23Ð40 (Industry and small craft                   of the EC Treaty from the Hof van Cassaatie (Belgium) in
industries) (OJ, English Special Edition 1963Ð1964,                 the criminal proceedings before that court against Ibiyinka
p. 148) Ð the Court (Fifth Chamber), composed of: P.                Awoyemi Ð on the interpretation of Article 8(1) of the
Jann, President of the First Chamber, acting as President           First Council Directive 80/1263/EEC of 4 December 1980
of the Fifth Chamber, C. Gulmann, D. A. O. Edward                   on the introduction of a Community driving licence (OJ
(Rapporteur), L. Sevón and M. Wathelet, Judges; D.                  L 375, 31.12.1980, p. 1) and of Articles 1(2) and 8(1) of
Ruiz-Jarabo Colomer, Advocate-General; L. Hewlett,                  Council Directive 91/439/EEC of 29 July 1991 on driving
Administrator, for the Registrar, has given a judgment on           licences (OJ L 237, 24.8.1991, p. 1) Ð the Court (Second
29 October 1998, in which it has ruled:                             Chamber), composed of: G. Hirsch, President of the
                                                                    Chamber, G. F. Mancini and R. Schintgen (Rapporteur),
                                                                    Judges; P. LeÂger, Advocate-General; R. Grass, Registrar,
On a proper construction of Article 3 of Council Directive          has given a judgment on 29 October 1998, in which it has
64/427/EEC of 7 July 1964 laying down detailed                      ruled:
provisions concerning transitional measures in respect of
activities of self-employed persons in manufacturing and
processing industries falling within ISIC Major Groups              1. Neither the provisions of the First Council Directive
23Ð40 (Industry and small craft industries), where, in a                 80/1263/EEC of 4 December 1980 on the introduction
Member State, the possession of specific knowledge and                   of a Community driving licence, nor those of the EC
ability is a condition for taking up and pursuing an                     Treaty, preclude the driving of a motor vehicle by a
activity as a self-employed person in a manufacturing or                 national of a non-member country who holds a
processing industry or small craft industry, that Member                 Community model driving licence issued by one
State may not require of a Community national who                        Member State and who, having transferred his
applies for licences to pursue occupational activities in                residence to another Member State, could have
that Member State which he is certified by the competent                 obtained a licence issued by the host State in
authorities of his Member State of origin to have pursued                exchange, but did not complete that formality within
there, that he have completed separately, in respect of                  the prescribed period of one year, from being treated
 ---pagebreak--- 19.12.98               EN                 Official Journal of the European Communities                                    C 397/13
     by the latter State as driving without a licence and            and K. M. Ioannou, Judges; D. Ruiz-Jarabo Colomer,
     thus rendered punishable by imprisonment or a fine.             Advocate-General; R. Grass, Registrar, has given a
                                                                     judgment on 29 October 1998, in which it:
2. A national of a non-member country who holds a
     valid Community model driving licence issued by one             1. Declares that, by failing to adopt, within the
     Member State, who has taken up normal residence in                   prescribed period, the laws, regulations and
     another Member State, but who has not exchanged his                  administrative provisions necessary to comply with
     driving licence within the one-year period prescribed                Council Directive 92/29/EEC of 31 March 1992 on
     by the first subparagraph of Article 8(1) of Directive               the minimum safety and health requirements for
     80/1263/EEC, is entitled to rely directly on                         improved medical treatment on board vessels, the
     Articles 1(2) and 8(1) of Council Directive 91/439/                  Grand Duchy of Luxembourg has failed to fulfil its
     EEC of 29 July 1991 on driving licences in order to                  obligations thereunder.
     challenge the imposition, in the Member State in
     which he has established his new residence, of a term
     of imprisonment or a fine for driving without a                 2. Orders the Grand Duchy of Luxembourg to pay the
     licence. Community law does not prevent a court of                   costs.
     such a Member State, by reason of the principle that
     forms part of national law in certain Member States of          (1) OJ C 55, 20.2.1998.
     the retroactive effect of more favourable provisions of
     criminal law, from applying the aforesaid provisions of
     Directive 91/439/EEC even where the offence took
     place before the date set for compliance with that
     directive.
(1) OJ C 252, 16.8.1997.                                                            JUDGMENT OF THE COURT
                                                                                of 10 November 1998
                                                                     in Case C-360/96 (reference for a preliminary ruling from
                                                                     the Gerechtshof te Arnhem): Gemeente Arnhem and
                                                                                Gemeente Rheden v. BFI Holding BV (1)
                                                                     (Public service contracts Ð Meaning of contracting
                JUDGMENT OF THE COURT                                         authority Ð Body governed by public law)
                       (Fourth Chamber)                                                      (98/C 397/21)
                      of 29 October 1998
in    Case C-410/97: Commission of the European                                      (Language of the case: Dutch)
       Communities v. Grand Duchy of Luxembourg (1)
(Failure of a Member State to fulfil its obligations Ð
                                                                       (Provisional translation; the definitive translation will be
          Failure to transpose Directive 92/29/EEC)
                                                                               published in the European Court Reports)
                         (98/C 397/20)
                                                                     In Case C-360/96: reference to the Court under Article 177
                 (Language of the case: French)                      of the EC Treaty from the Gerechtshof (Regional Court of
                                                                     Appeal), Arnhem (Netherlands), for a preliminary ruling
                                                                     in the proceedings pending before that court between
                                                                     Gemeente Arnhem and Gemeente Rheden and BFI
  (Provisional translation; the definitive translation will be       Holding BV Ð on the interpretation of Articles 1(b) and 6
          published in the European Court Reports)                   of Council Directive 92/50/EEC of 18 June 1992 relating
                                                                     to the coordination of procedures for the award of public
                                                                     service contracts (OJ L 209, 1992, p. 1) Ð the Court,
In Case C-410/97: Commission of the European                         composed of: G. C. Rodríguez Iglesias, President, P. J. G.
Communities (Agent: Marie Wolfcarius) v. Grand Duchy                 Kapteyn, J.-P. Puissochet and P. Jann (Rapporteur)
of Luxembourg (Agent: Nicholas Schmit) Ð application                 (Presidents of Chambers), G. F. Mancini, J. C. Moitinho
for a declaration that, by failing to adopt the laws,                de Almeida, D. A. O. Edward, L. Sevón, M. Wathelet, R.
regulations and administrative provisions necessary to               Schintgen and K. M. Ioannou, Judges; A. La Pergola,
comply with Council Directive 92/29/EEC of 31 March                  Advocate General; D. Louterman-Hubeau, Principal
1992 on the minimum safety and health requirements for               Administrator, for the Registrar, has given a judgment on
improved medical treatment on board vessels (OJ L 113,               10 November 1998, in which it has ruled:
30.4.1992, p. 19), the Grand Duchy of Luxembourg has
failed to fulfil its obligations under that directive Ð the
Court (Fourth Chamber), composed of: P. J. G. Kapteyn,               1. The second subparagraph of Article 1(b) of Council
President of the Chamber, H. Ragnemalm (Rapporteur)                       Directive 92/50/EEC of 18 June 1992 relating to the


title: Case T-307/01: Action brought on 10 December 2001 by Jean-Paul François against Commission of the European Communities

text:
C 56/14                EN                     Official Journal of the European Communities                                      2.3.2002
Action brought on 10 December 2001 by Jean-Paul                          Action brought on 12 December 2001 by Peter Biegi
François against Commission of the European Communi-                     Nahrungsmittel GmbH against the Commission of the
                                ties                                                           European Communities
                         (Case T-307/01)                                                          (Case T-309/01)
                                                                                (2002/C 56/27)
                          (2002/C 56/26)
                                                                                (Language of the case: German)
                   (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
An action against the Commission of the European Communi-                ties was brought before the Court of First Instance of the
ties was brought before the Court of First Instance of the               European Communities on 12 December 2001 by Peter Biegi
European Communities on 10 December 2001 by Jean-Paul                    Nahrungsmittel GmbH, of Frankfurt am Main (Germany),
François, residing in Wavre (Belgium), represented by Anne               represented by K. Landry and L. Harings, lawyers.
Colson, lawyer.
                                                                         The applicant claims that the Court should:
The applicant claims that the Court should:                              —     annul the Commission’s decision No REC 4/00 of
                                                                               14 August 2001 in so far as it orders the subsequent
—     annul, in so far as necessary, the opinion of the Disciplin-             entry in the accounts of import duties amounting to
      ary Board of 9 March 2000;                                               DEM 218 605,65;
                                                                         —     order the defendant to reimburse to the applicant the
—     annul the decision of the appointing authority of 5 April
                                                                               costs necessarily incurred in the proceedings.
      2001 relegating the applicant in step;
—     annul the decision of the appointing authority of 10 Sep-
      tember 2001 rejecting the complaint lodged by the                  Pleas in law and main arguments
      applicant;
—     uphold the application for damages and order the Com-              On the basis of oral information provided by the competent
      mission to pay to the applicant EUR 37 500, subject to             customs authority, to the effect that production of import
      increase or decrease as may be decided in the course of            certificates for the importation of chickens in the context of
      proceedings, as compensation for the economic and non-             two specific quotas was not necessary, the applicant submitted
      material damage suffered;                                          a declaration in respect of the import of frozen chicken pieces
                                                                         originating in Thailand under CN Code No 020 741 10. The
                                                                         authority initially granted relief from import duties, but
—     order the Commission to pay the costs.                             subsequently charged the applicant import duties amounting
                                                                         to DEM 259 270,23. The applicant raised an objection to that
                                                                         decision and the national authorities referred the matter to the
                                                                         Commission.
Pleas in law and main arguments
                                                                         The applicant claims that the contested decision infringes the
                                                                         EC Treaty and the general principles of Community law,
In support of his application, the applicant claims infringement         as well as Article 220(2)(b) of Regulation No 2913/92 (1).
of the provisions of the Staff Regulations governing disciplin-          According to the applicant, the German customs authorities
ary proceedings, as well as manifest error of assessment.                undeniably committed an error, and that error could not
According to the applicant, his rights of the defence have not           reasonably have been detected by the applicant. The legal
been observed, in particular because he has not been given full          position was unclear, and the applicant fulfilled its obligation
access to the file. Furthermore, certain charges against the             to exercise due care.
applicant have not, in his view, been fully substantiated.
Finally, the applicant alleges breach of the principle of non-
discrimination and breach of legitimate expectations.                    (1) Council Regulation (EEC) No 2913/92 of 12 October 1992
                                                                             establishing the Community Customs Code (OJ 1992 L 302, p. 1).


title: Case T-298/04: Action brought on 21 July 2004 by EFKON AG against the European Parliament and the Council of the European Union

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/38

         Action brought on 21 July 2004 by EFKON AG against the European Parliament and the Council of the European Union
   (Case T-298/04)
   (2004/C 262/73)
   Language of the case: German
   An action against the European Parliament and the Council of the European Union was brought before the Court of First Instance of the European Communities on 21 July 2004 by EFKON AG, Graz-Andritz (Austria), represented by Georg Zanger, lawyer.
   The applicant claims that the Court should:

               —

               annul Directive 2004/52/EC of the European Parliament and the Council of 29 April 2004; (1)

               —

               in the alternative, annul Article 2(1)(a), (b) and (c) and Articles 3 and 6 of Directive 2004/52/EC of the European Parliament and the Council of 29 April 2004;

               —

               in the alternative, allow the technology used by the applicant (active infra-red) in the introduction of electronic road toll systems;

               —

               order the defendants to pay the costs.

         Pleas in law and main arguments:
   The applicant seeks the annulment of Directive 2004/52/EC of the European Parliament and the Council, arguing that, contrary to the requirement that legal measures be technologically neutral, it mandatorily prescribes specific technologies and thereby creates a market regime in favour of the technologies specified in the directive, infringing the principle of competition in the Community. The applicant complains that, with its technology (bi-directional high-speed active infra-red communication technology), it is excluded from the market for road toll systems.
   The applicant further argues that the directive does not achieve its purpose, namely inter-operability between electronic road toll systems in the Member States, and at the same time hinders cooperation between the Member States, constituting an infringement of the subsidiarity principle. The applicant was not able to participate in the law-making process, thereby infringing its right to a fair hearing, and was discriminated against by the legal measure in relation to the microwave industry. The market regime created by the European legislature adversely affects the applicant in the exercise of its basic freedoms guaranteed by the EC Treaty.

      (1)  Directive 2004/52/EC of the European Parliament and of the Council of 29 April 2004 on the interoperability of electronic road toll systems in the Community.


title: JUDGMENT OF THE COURT (Fourth Chamber) of 6 November 1997 in Case C-164/96 (reference for a preliminary ruling from the Consiglio di Stato): Regione Piemonte v. Saiagricola SpA (Regulation (EEC) No 797/85 - Different treatment of individual farmers and legal persons)

text:
20 . 12 . 97            EN                   Official Journal of the European Communities                                      C 387/5
2 . examination of Regulation No 1247/92, in so far as it               concerned, be allocated on a pro rata basis, having regard
     sets aside, in the case of disability living allowance, the        to the distances covered in each such State.
     principle of waiver of residence clauses laid down in
     Article 10 of Regulation No 1408/71 , has not
                                                                        (') OJ C 158 , 1 . 6 . 1996 .
     disclosed any factor of such a kind as to affect its
     validity.
(') OJ C 77, 16 . 3 . 1996 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Fourth Chamber)
                                                                                of 6 November 1997
               JUDGMENT OF THE COURT
                                                                        in Case C- 164/96 ( reference for a preliminary ruling from
                          ( Fifth Chamber)                              the Consiglio di Stato ): Regione Piemonte v. Saiagricola
                       of 6 November 1997                                                                 SpA n
                                                                        (Regulation (EEC) No 797/85 — Different treatment of
in Case C- 116/96 ( reference for a preliminary ruling from
the    Bundesfinanzhof):          Reisebiiro Binder    GmbH     v.
                                                                                individual farmers and legal persons)
            Finanzamt Stuttgart-Korperschaften (')                                                    ( 97/C 387/09 )
(Sixth VAT Directive — Cross-frontier passenger transport
— The place of supply and the taxable amount in relation
                       to transport services)
                                                                                (Language of the case: Italian)
                             ( 97/C 387/08 )
                                                                          (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
                (Language of the case: German)
                                                                        In Case C-164/96 : reference to the Court under Article 177
  (Provisional translation; the definitive translation will be          of the EC Treaty from the Consiglio di Stato for a
          published in the European Court Reports)                      preliminary ruling in the proceedings pending before that
                                                                        court between Regione Piemonte and Saiagricola SpA —
                                                                        on the interpretation of Council Directive 72/159/EEC of
In Case C-l 16/96 : reference to the Court under Article 177            17 April 1972 on the modernization of farms ( OJ English
of the EC Treaty from the Bundesfinanzhof ( Federal
                                                                        Special Edition 1972 ( II ), p. 324 ) and Council Regulation
Finance Court ), for a preliminary ruling in the proceedings            ( EEC ) No 797/85 of 12 March 1985 on improving the
pending before that court between Reisebiiro Binder                     efficiency of agricultural structures ( OJ 1985 L 93 , p. 1 )
                                                                        — the Court ( Fourth Chamber ), composed of: H.
GmbH and Finanzamt Stuttgart-Korperschaften — on the
interpretation of Article 9 ( 2 ) ( b ) of Sixth Council                Ragnemalm, President of the Chamber, P. J. G. Kapteyn
Directive 77/388/EEC of 17 May 1977 on the
                                                                        and J. L. Murray ( Rapporteur ), Judges; P. Leger, Advocate
harmonization of the laws of the Member States relating                 General; R. Grass, Registrar, has given a judgment on
                                                                        6 November 1997, in which it has ruled :
to turnover taxes — Common system of value added tax:
uniform basis of assessment ( OJ 1977 L 145 , p. 1 ) — the
Court ( Fifth Chamber ), composed of: C. Gulmann,
President of the Chamber, J. C. Moitinho de Almeida ,                   council Directive 72/159/EEC of 17 April 1972 on the
D. A. O. Edward, J. -P. Puissochet ( Rapporteur ) and P.                modernization of farms and Council Regulation (EEC)
Jann, Judges; A. La Pergola , Advocate General; H. von                  No 797/85 of 12 March 1985 on improving the efficiency
Holstein, Deputy Registrar, for the Registrar, has given a              of agricultural structures are to be interpreted as meaning
judgment on 6 November 1997, in which it has ruled :                    that Member States which introduce a register intended to
                                                                        determine eligibility under the system of aids established
                                                                        by Directive 72/159 are not permitted to refuse to register
                                                                        certain legal persons solely by reason of the legal form
article 9 (2) (b) of Sixth Council Directive 77/388/EEC of              they have assumed or to introduce a special system of
17 May 1977 on the harmonization of the laws of the                     identification by creating a specific register intended for
Member States relating to turnover taxes — Common                       natural persons alone.
system of value added tax: uniform basis of assessment
must be interpreted as meaning that, in the case of the
supply of cross-frontier passenger transport on an all                 (') OJ C 197, 6 . 7. 1996 .
inclusive basis, the total consideration for that service
must, for the purposes of determining the part of the
transport operation taxable in each of the Member States


title: Case C-171/00 P: Appeal brought on 10 May 2000 by Alain Libéros against the judgment delivered on 9 March 2000 by the Court of First Instance of the European Communities (single judge) in Case T-29/97 between Alain Libéros and the Commission of the European Communities

text:
C 192/12              EN                   Official Journal of the European Communities                                         8.7.2000
Reference for a preliminary ruling from the Landesgericht             Pleas in law and main arguments
Linz, Austria, by order of that court of 6 April 2000 in
the case of Simone Leitner, a minor, v TUI Deutschland                — Infringement of Article 14(2)(2)(a) of the Rules of Pro-
                        GmbH & Co KG                                      cedure of the Court of First Instance, as amended by the
                                                                          decision adopted by the Court of First Instance of the
                                                                          European Communities on 17 May 1999 with a view to
                        (Case C-168/00)
                                                                          enabling it to give decisions in cases when constituted by
                                                                          a single judge (2): the case was delegated by the First
                        (2000/C 192/20)                                   Chamber to the Judge-Rapporteur sitting as a single judge
                                                                          and determined by that judge in that capacity, despite the
Reference has been made to the Court of Justice of the                    fact that it raised the question of the legality of points 2.3
European Communities by an order of the Landesgericht                     and 3.2 of the document entitled ‘Requests and Complaints
(Regional Court), Linz, of 6 April 2000, which was received at            pursuant to Article 90 of the Staff Regulations’, published
the Court Registry on 8 May 2000, for a preliminary ruling in             by the Commission in Administrative Notices No 635 of
the case of Simone Leitner, a minor, v TUI Deutschland GmbH               16.7.1990. In addition, the case raised the question of the
& Co KG, on the following question:                                       legality of the second paragraph of Article 3 of the
                                                                          Commission’s decision of 1 September 1983 on the
                                                                          criteria applicable to appointment in grade and classifi-
Is Article 5 of Council Directive 90/314/EEC of 13 June 1990              cation in step on recruitment.
on package travel, package holidays and package tours (1) to
be interpreted as meaning that compensation is in principle           — Infringement of the second paragraph of Article 2 of the
payable in respect of claims for damages for non-material                 Commission’s decision of 1 September 1983 on the
damage?                                                                   criteria applicable to appointment in grade and classifi-
                                                                          cation in step on recruitment, and of Articles 31 and 32 of
                                                                          the Staff Regulations, which apply to members of the
(1) OJ 1990 L 158, p. 59.
                                                                          temporary staff by virtue of Article 5 of that decision: both
                                                                          Article 31 and Article 32 of the Staff Regulations are
                                                                          designed, in particular, to permit the appointing authority
                                                                          to take into account qualifications and professional experi-
                                                                          ence gained prior to recruitment by the Communities.
                                                                          Consequently, a provision having the object or effect of
                                                                          restricting that possibility, by prohibiting the taking into
                                                                          account of the experience acquired by the person con-
Appeal brought on 10 May 2000 by Alain Libéros against                    cerned between the date of his being offered employment
the judgment delivered on 9 March 2000 by the Court of                    and the date of his entry into the service of the Communi-
First Instance of the European Communities (single judge)                 ties, would be contrary to those articles.
in Case T-29/97 between Alain Libéros and the Com-
           mission of the European Communities                        — Breach of the obligation to provide reasons for judgments,
                                                                          according to which, in particular, the grounds stated must
                       (Case C-171/00 P)                                  be legally permissible, that is to say, adequate, relevant, not
                                                                          vitiated by errors of law or of fact and not inconsistent.
                        (2000/C 192/21)
                                                                      (1) OJ C 122 of 29.4.2000, p. 30.
                                                                      (2) OJ L 135 of 29.5.1999, p. 92.
An appeal against the judgment delivered on 9 March 2000
by the Court of First Instance of the European Communities
(single judge) in Case T-29/97 between Alain Libéros and the
Commission of the European Communities was brought
before the Court of Justice of the European Communities on
10 May 2000 by Alain Libéros, represented by Marc-Albert
Lucas, of the Liège Bar, with an address for service in
Luxembourg at the Chambers of Luc Tecqmenne, 3 Rue des                Reference for a preliminary ruling by the Fourth Chamber
Capucins.                                                             of the Consiglio di Stato, sitting in its judicial capacity, by
                                                                      order of that court of 12 November 1999 in the case of
                                                                      ANAS — Ente Nazionale per le Strade against SCA RL
The appellant claims that the Court should:                           CMC Cooperativa Muratori Cementisti Ravenna and SpA
                                                                      ICLA Costruzioni Generali and SpA Impresa Toto e Toto
— annul the judgment delivered on 9 March 2000 by the
    Court of First Instance in Case T-29/97 Libéros v Com-
    mission of the European Communities (1);                                                   (Case C-173/00)
— allow the claims put forward in the proceedings at first                                     (2000/C 192/22)
    instance;
                                                                      Reference has been made to the Court of Justice of the
— order the Commission to pay the costs.                              European Communities by order of the Fourth Chamber of


title: Case C-209/04: Action brought on 12 May 2004 by the Commission of the European Communities against the Republic of Austria

text:
               10.7.2004

               EN

               Official Journal of the European Union

               C 179/7

         Action brought on 12 May 2004 by the Commission of the European Communities against the Republic of Austria
   (Case C-209/04)
   (2004/C 179/15)
   An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 12 May 2004 by the Commission of the European Communities, represented by M. Van Beek and B. Schima, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that, by failing to include in the designated special area of conservation ‘Lauteracher Ried’ the sites ‘Soren’ and ‘Gleggen-Köblern’, which, together with that special protection area, are, according to scientific criteria, among the most suitable territories in number and size within the meaning of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (1) (‘the Birds Directive’), and

                           —

                           by failing, when authorising the planned construction of the S 18 Lake Constance dual carriageway, to comply properly and fully with the requirements applicable by virtue of Article 6(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (2) (‘the Habitats Directive’) in the case of execution of a project where there has been a negative assessment of the implications for the site,

                           —

                           the Republic of Austria has failed to fulfil its obligations under Article 4(1) and (2) of the Birds Directive and Article 6(4) in conjunction with Article 7 of the Habitats Directive

               2.

               order the Republic of Austria to pay the costs.

         Pleas in law and main arguments:
   The Republic of Austria informed the Commission of the designation of the area ‘Lauteracher Ried’ in Vorarlberg as a special protection area (SPA). That area is an important breeding ground for the bird species corncrake (Crex crex) mentioned in Annex I to the Birds Directive and an important breeding ground, habitat and/or stopping point for a variety of other species of migratory birds in Vorarlberg.
   The Commission takes the view that, from an ornithological point of view, there is no logical explanation for the present boundaries of the SPA Lauteracher Ried and that, as far as specialists are concerned, if the ‘Soren’ and ‘Gleggen-Köblern’ sites are not encompassed, the area is not suitable to guarantee the long-term conservation of the population of the endangered species of birds. The Republic of Austria has therefore failed to comply with the requirements laid down in Article 4(1) and (2) of the Birds Directive.
   Moreover, in connection with the planned construction of the S 18 Lake Constance dual carriageway, there has been a failure to comply with the obligations arising from Article 6(4) in conjunction with Article 7 of the Birds Directive as regards the requirements for protection of the Lauteracher Ried area. Whilst the conservation assessment — which reached a negative conclusion as to the impact of the planned road construction on the aims of protection and conservation of the bird species in the Lauteracher Ried area — seems, essentially, to have satisfied the requirements of an assessment of the implications for the site under Article 6(3), there has been a failure to comply with the further procedure to be followed under Article 6(4) in the event of a negative outcome of the assessment, that is to say, alternative solutions were not properly examined and compensatory measures were not properly implemented.

      (1)  OJ 1979 L 103, p. 3.

      (2)  OJ 1992 L 206, p. 7.


title: JUDGMENT OF THE COURT of 23 October 1997 in Case C-189/95 (reference for a preliminary ruling from the Landskrona tingsrätt): criminal proceedings against Harry Franzén (Articles 30 and 37 of the EC Treaty - Monopoly on the retail of alcoholic beverages)

text:
10. 1. 98             EN                 Official Journal of the European Communities                                         C 7/1
                                                                 I
                                                           (Information)
                                             COURT OF JUSTICE
                                                       COURT OF JUSTICE
               JUDGMENT OF THE COURT                                 1. dismisses the application;
                     of 23 October 1997
                                                                     2. orders the Commission of the European Communities
in Case C-160/94: Commission of the European                              to pay the costs;
Communities, supported by United Kingdom of Great
Britain and Northern Ireland v. Kingdom of Spain,
        supported by French Republic and Ireland (1)                 3. orders the United Kingdom of Great Britain and
                                                                          Northern Ireland, the French Republic and Ireland, as
(Failure of a Member State to fulfil its obligations Ð                    interveners, to bear their own costs.
      Exclusive rights to import and export electricity)
                                                                     (1) OJ C 202, 23. 7. 1994.
                         (98/C 7/01)
               (Language of the case: Spanish)
 (Provisional translation; the definitive translation will be                       JUDGMENT OF THE COURT
          published in the European Court Reports)                                         of 23 October 1997
                                                                     in Case C-189/95 (reference for a preliminary ruling from
In Case C-160/94: Commission of the European                         the Landskrona tingsrätt): criminal proceedings against
Communities (Agents: Richard B. Wainwright and Blanca                                        Harry FranzeÂn (1)
Rodríguez Galindo), supported by United Kingdom of
Great Britain and Northern Ireland (Agent: Lindsey                   (Articles 30 and 37 of the EC Treaty Ð Monopoly on the
Nicoll, assisted by David Anderson) v. Kingdom of Spain                               retail of alcoholic beverages)
(Agents: Alberto JoseÂ Navarro GonzaÂlez and Gloria Calvo                                       (98/C 7/02)
Díaz), supported by French Republic (Agents: Catherine
de Salins and Jean-Marc Belorgey), Ireland (Agent:                                  (Language of the case: Swedish)
Michael A. Buckley, assisted by John D. Cooke and
Jennifer Payne) Ð application for a declaration that, by
reserving to itself exclusive import and export rights for             (Provisional translation; the definitive translation will be
electricity, the Kingdom of Spain has failed to fulfil its                     published in the European Court Reports)
obligations under Articles 30, 34 and 37 of the EC Treaty
and Article 48 of the Act concerning the conditions of               In Case C-189/95: reference to the Court under Article 177
accession of the Kingdom of Spain and the Portuguese                 of the EC Treaty from the Landskrona tingsrätt for a
Republic and the adjustments to the Treaties (OJ L 302,              preliminary ruling in the criminal proceedings pending
15. 11. 1985, p. 23) Ð the Court, composed of: G. C.                 before that court against Harry FranzeÂn Ð on the
Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm              interpretation of Articles 30 and 37 of the EC Treaty Ð
and M. Wathelet (Presidents of Chambers), G. F. Mancini,             the Court, composed of: G. C. Rodríguez Iglesias,
J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray,           President, C. Gulmann, H. Ragnemalm, M. Wathelet
D. A. O. Edward (Rapporteur), J.-P. Puissochet, G.                   (Presidents of Chambers), G. F. Mancini, J. C. Moitinho
Hirsch, P. Jann and L. Sevón, Judges; G. Cosmas,                     de Almeida, P. J. G. Kapteyn, J. L. Murray, D. A. O.
Advocate-General; H. von Holstein, Deputy Registrar, D.              Edward, J.-P. Puissochet (Rapporteur), G. Hirsch, P. Jann
Louterman-Hubeau, Principal Administrator, for the                   and L. Sevón, Judges, M. B. Elmer, Advocate-General; H.
Registrar, has given a judgment on 23 October 1997 in                von Holstein, Administrator, for the Registrar, has given a
which it:                                                            judgment on 23 October 1997, in which it has ruled:
 ---pagebreak--- C 7/2                  EN                 Official Journal of the European Communities                                     10. 1. 98
1. Article 37 of the EC Treaty does not preclude                     classified under heading 30 04 of the combined
     domestic provisions relating to the existence and               nomenclature, as established in the annex to Council
     operation of a national monopoly on the retail of               Regulation (EEC) No 2658/87 of 23 July 1987 on the
     alcoholic beverages such as those mentioned in the              tariff and statistical nomenclature and on the Common
     order for reference.                                            Customs Tariff, and consequently do not come within the
                                                                     scope of Council Regulation (EEC) No 1010/86 of
2. Articles 30 and 36 of the EC Treaty preclude domestic             25 March 1986 laying down general rules for the
     provisions allowing only traders holding a production           production refund on certain sugar products used in the
     licence or a wholesale licence to import alcoholic              chemical industry.
     beverages on conditions such as those laid down by
     Swedish legislation.                                            (1) OJ C 233, 10. 8. 1996.
(1) OJ C 208, 12. 8. 1995.
                                                                                JUDGMENT OF THE COURT
                                                                                of 11 November 1997
               JUDGMENT OF THE COURT
                                                                     in Case C-251/95 (reference for a preliminary ruling from
                       (Fourth Chamber)                              the Bundesgerichtshof): Sabel BV v. Puma AG, Rudolf
                     of 6 November 1997                                                     Dassler Sport (1)
in Case C-201/96 (reference for a preliminary ruling from            (Directive 89/104/EEC Ð Approximation of laws relating
the Tribunal Administratif de Paris): Laboratoires de                to the trade marks Ð Likelihood of confusion which
TheÂrapeutique Moderne (LTM) v. Fonds d'Intervention et                          includes the likelihood of association')
       de ReÂgularisation du MarcheÂ du Sucre (FIRS) (1)                                       (98/C 7/04)
(Refund for use of sugar in the manufacture of certain
chemical products Ð Multivitamin products and products                              (Language of the case: German)
        containing amino acids Ð Tariff classification)
                          (98/C 7/03)                                  (Provisional translation; the definitive translation will be
                                                                               published in the European Court Reports)
                (Language of the case: French)
                                                                     In Case C-251/95: reference to the Court under Article 177
  (Provisional translation; the definitive translation will be       of the EC Treaty from the Bundesgerichtshof for a
          published in the European Court Reports)                   preliminary ruling in the proceedings pending before that
                                                                     court between Sabel BV and Puma AG, Rudolf Dassler
In Case C-201/96: reference to the Court under Article 177           Sport on the interpretation of Article 4 (1) (b) of first
of the EC Treaty from the Tribunal Administratif de Paris            Council Directive 89/104/EEC of 21 December 1988 to
(Administrative Court, Paris), for a preliminary ruling in           approximate the laws of the Member States relating to
the proceedings pending before that court between                    trade marks (OJ L 40, 11. 2. 1989, p. 1) Ð the Court,
Laboratoires de TheÂrapeutique Moderne (LTM) and Fonds               composed of: G. C. Rodríguez Iglesias, President, C.
d'Intervention et de ReÂgularisation du MarcheÂ du Sucre             Gulmann (Rapporteur), H. Ragnemalm and M. Wathelet,
(FIRS) Ð on the interpretation of Council Regulation                 Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
(EEC) No 1010/86 of 25 March 1986 laying down                        Almeida, P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward,
general rules for the production refund on certain sugar             J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón, Judges;
products used in the chemical industry (OJ L 94, 9. 4.               F. G. Jacobs, Advocate-General; H. A. Rühl, Principal
1986, p. 9), as amended by Article 9 of Commission                   Administrator, for the Registrar Ð has given a judgment
Regulation (EEC) No 1714/88 of 13 June 1988 (OJ L 152,               on 11 November 1997, in which it has ruled:
18. 6. 1988, p. 23), and of Chapters 21 and 30 of the
combined nomenclature, as established by Council                     The criterion of likelihood of confusion which includes
Regulation (EEC) No 2658/87 of 23 July 1987 on the                   the likelihood of association with the earlier mark'
tariff and statistical nomenclature and on the Common                contained in Article 4 (1) (b) of First Council Directive
Customs Tariff (OJ L 256, 7. 9. 1987, p. 1) Ð the Court              89/104/EEC of 21 December 1988 to approximate the
(Fourth Chamber), composed of: H. Ragnemalm,                         laws of the Member States relating to trade marks is to be
President of the Chamber, P. J. G. Kapteyn and J. L.                 interpreted as meaning that the mere association which
Murray (Rapporteur), Judges: M. B. Elmer, Advocate-                  the public might make between two trade marks as a
General; H. A. Rühl, Principal Administrator, for the                result of their analogous semantic content is not in itself a
Registrar, has given a judgment on 6 November 1997, in               sufficient ground for concluding that there is a likelihood
which it has ruled:                                                  of confusion within the meaning of that provision.
Products consisting of ingredients identical to those                (1) OJ C 248, 23. 9. 1995.
contained in Alvityl 50 DrageÂes' and Strongenol 20
Ampoules' and in the same proportions cannot be


15.6.2002               EN                   Official Journal of the European Communities                                     C 144/29
Pleas in law and main arguments                                                Removal from the register of Case C-233/99 (1)
                                                                                (2002/C 144/50)
—     Incorrect legal basis and lack of competence of the
      Commission: The contested regulation has as its legal
      basis Article 45(1) of Council Regulation (EC) No 850/98
      for the conservation of fishery resources through techni-
                                                                        By order of 21 March 2002 the President of the Court of
      cal measures for the protection of juveniles of marine
                                                                        Justice of the European Communities ordered the removal
      organisms. That provision confers on the Commission
                                                                        from the register of Case C-233/99 (Reference for a preliminary
      limited legislative power which that institution may use
                                                                        ruling by Københavns Byret): Anklagemyndigheden (Public
      only in such cases and under such conditions as provided
                                                                        Prosecution Department) v Tonny Haugsted Hansen.
      in that provision, whilst general power to legislate in the
      matter of fisheries resides with the Council in accordance
      with the procedure laid down in Article 37 EC. In the
      present case, the Commission refers to a report of                (1) OJ C 246 of 28.8.1999.
      November 2000 by the International Council for the
      Exploration of the Sea and to Regulation No 1162/2001
      (which, in the Commission’s own words ‘cannot produce
      any effect whatsoever’ — see OJ L 47 of 19.2.2002,
      p. 21). No other data are produced to substantiate the
      statement made on 19 March that conservation of hake
      resources in the ICES areas affected required immediate
      action by the Commission.
                                                                               Removal from the register of Case C-369/99 (1)
—     Breach of the principle of non-discrimination:
                                                                                (2002/C 144/51)
—     Lack of a statement of reasons
                                                                        By order of 19 March 2002 the President of the Court of
The main arguments put forward in support of the last two
                                                                        Justice of the European Communities ordered the removal
pleas are similar to those in Case C-304/01 (2).
                                                                        from the register of Case C-369/99: Kingdom of Spain v
                                                                        Commission of the European Communities.
(1) OJ L 77, p. 8 of 20.3.2002.
(2) OJ C 289 of 13.10.2001, p. 15.                                      (1) OJ C 6 of 8.1.2000.
        Removal from the register of Case C-61/99 (1)                          Removal from the register of Case C-407/99 (1)
                          (2002/C 144/49)                                                        (2002/C 144/52)
By order of 8 February 2002 the President of the Court of               By order of 11 December 2001 the President of the Court of
Justice of the European Communities ordered the removal                 Justice of the European Communities ordered the removal
from the register of Case C-61/99 (Referral for a preliminary           from the register of Case C-407/99 (Referral for a preliminary
ruling by the Landgericht Mainz): Deutsche Post AG v Landal             ruling by the Bundessozialgericht): Vetharanigam Pathminidevi
Green Parks GmbH.                                                       v Landeskreditbank Baden-Württemberg — Förderbank.
(1) OJ C 121 of 1.5.1999.                                               (1) OJ C 34 of 5.2.2000.


title: Judgment of the Court (Sixth Chamber) of 14 October 2004 in Case C-193/03 (reference for a preliminary ruling from the Sozialgericht Stuttgart): Betriebskrankenkasse der Robert Bosch GmbH v Bundesrepublik Deutschland (Social security — Reimbursement of medical expenses incurred in another Member State — Article 34 of Regulation (EEC) No 574/72 — Health insurance fund applying a simplified full reimbursement procedure for bills for small amounts)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/20

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 14 October 2004
   in Case C-193/03 (reference for a preliminary ruling from the Sozialgericht Stuttgart): Betriebskrankenkasse der Robert Bosch GmbH v Bundesrepublik Deutschland (1)

   (Social security - Reimbursement of medical expenses incurred in another Member State - Article 34 of Regulation (EEC) No 574/72 - Health insurance fund applying a simplified full reimbursement procedure for bills for small amounts)
   (2004/C 300/40)
   Language of the case: German
   In Case C-193/03: Betriebskrankenkasse der Robert Bosch GmbH v Bundesrepublik Deutschland — reference to the Court under Article 234 EC from the Sozialgericht Stuttgart (Germany), made by decision of 19 March 2003, received at the Court on 9 May 2003 — the Court (Sixth Chamber), composed of: A. Borg Barthet (Rapporteur), President of the Chamber, J.-P. Puissochet and S. von Bahr, Judges; Advocate General: M. Poiares Maduro, Registrar: R. Grass, has given a judgment on 14 October 2004, in which it has ruled:
   Article 34 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended by Council Regulation (EC) No 1399/1999 of 29 April 1999, is to be interpreted as not precluding a practice whereby a health insurance fund, in the application of national rules, reimburses medical costs incurred by its members during a stay in another Member State in full when those costs do not exceed DEM 200.

      (1)  OJ C 200 of 23.8.2003.


title: Case T-584/16: Judgment of the General Court of 24 April 2017 — HF v Parliament (Civil Service — Member of the auxiliary contract staff — Article 3b of the CEOS — Successive employments as a member of the auxiliary contract staff — Fixed-term contracts — Decision not to renew — Abuse of power — Request for assistance — Right to be heard — Non-contractual liability)

text:
               6.6.2017

               EN

               Official Journal of the European Union

               C 178/14

         Judgment of the General Court of 24 April 2017 — HF v Parliament
   (Case T-584/16) (1)

   ((Civil Service - Member of the auxiliary contract staff - Article 3b of the CEOS - Successive employments as a member of the auxiliary contract staff - Fixed-term contracts - Decision not to renew - Abuse of power - Request for assistance - Right to be heard - Non-contractual liability))
   (2017/C 178/17)
   Language of the case: French

      Parties

      Applicant: HF (represented by: A. Tymen, lawyer)

      Defendant: European Parliament (represented by: L. Deneys and S. Alves, acting as Agents)

      Re:

   Application on the basis of Article 270 TFEU seeking, firstly, the annulment of the Parliament’s decision not to renew the applicant’s contract as a member of the auxiliary contract staff and, secondly, compensation for the harm allegedly suffered by the applicant, essentially as a result of that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Ms HF to pay the costs.

      (1)  OJ C 165, 10.5.2016 (case initially registered before the European Union Civil Service Tribunal under Case No F-14/16 and transferred to the General Court of the European Union on 1.9.2016).


title: Case C-3/16: Judgment of the Court (First Chamber) of 15 March 2017 (request for a preliminary ruling from the Hof van beroep te Brussel — Belgium) — Lucio Cesare Aquino v Belgische Staat (Reference for a preliminary ruling — EU law — Rights conferred on individuals — Infringement by a court — Questions referred for a preliminary ruling — Reference to the Court — National court of last instance)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/10

         Judgment of the Court (First Chamber) of 15 March 2017 (request for a preliminary ruling from the Hof van beroep te Brussel — Belgium) — Lucio Cesare Aquino v Belgische Staat
   (Case C-3/16) (1)

   ((Reference for a preliminary ruling - EU law - Rights conferred on individuals - Infringement by a court - Questions referred for a preliminary ruling - Reference to the Court - National court of last instance))
   (2017/C 151/14)
   Language of the case: Dutch

      Referring court

   Hof van beroep te Brussel

      Parties to the main proceedings

      Applicant: Lucio Cesare Aquino

      Defendant: Belgische Staat

      Operative part of the judgment

               1.

               The third paragraph of Article 267 TFEU must be interpreted as meaning that a court against whose decisions there is a judicial remedy under national law may not be regarded as a court adjudicating at last instance, where an appeal on a point of law against a decision of that court is not examined because of discontinuance by the appellant.

               2.

               There is no need to answer Question 2.

               3.

               The third paragraph of Article 267 TFEU must be interpreted as meaning that a court adjudicating at last instance may decline to refer a question to the Court for a preliminary ruling where an appeal on a point of law is dismissed on grounds of inadmissibility specific to the procedure before that court, subject to compliance with the principles of equivalence and effectiveness.

      (1)  OJ C 136, 18.4.2016.


title: Case T-259/12: Order of the General Court of 11 December 2014  — Alban Giacomo v Commission

text:
               16.2.2015

               EN

               Official Journal of the European Union

               C 56/30

         Order of the General Court of 11 December 2014 — Alban Giacomo v Commission
   (Case T-259/12) (1)

   (2015/C 056/41)
   Language of the case: Italian
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 227, 28.7.2012.


title: Case T-58/10: Action brought on 11 February 2010 — Phoenix-Reisen and DRV v Commission

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/49

         Action brought on 11 February 2010 — Phoenix-Reisen and DRV v Commission
   (Case T-58/10)
   2010/C 113/79
   Language of the case: German

      Parties

      Applicants: Phoenix-Reisen GmbH (Bonn, Germany) and Deutscher Reiseverband eV (DRV) (Berlin, Germany) (represented by: R. Gerharz, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul the defendant’s decision of 20 November 2009, notified by letter of 11 December 2009, by which it refused to take action against State aid granted by the Federal Republic of Germany in the form of insolvency payments;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   The applicants’ action is directed against Commission Decision C(2009) 8707 final of 19 November 2009 concerning State aid NN 55/2009 — Germany; alleged State aid in the form of insolvency payments and the financing thereof. The Commission came to the conclusion in that decision that the measure in question does not constitute State aid for the purposes of Article 87(1) EC.
   In support of their claim, the applicants maintain that the subsidisation of insolvent undertakings cannot be justified on the basis of Directive 80/987/EEC (1) as it serves solely to protect the employees of the insolvent undertaking, not the undertaking itself. The applicants take the view that the legal practice applied in the Federal Republic of Germany is such that insolvent undertakings profit directly from insolvency payments. Furthermore, the applicants submit that examples from other countries in the Community show that Directive 80/987/EEC can be transposed without competitors being unlawfully subsidised as a result.

      (1)  Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23).