title: JUDGMENT OF THE COURT (Fifth Chamber) of 26 October 1995 in Case C-482/93 (reference for a preliminary ruling from the Arrondissementsrechtbank Amsterdam): S. E. Klaus v. Bestuur van de Nieuwe Algemene Bedrijfsvereniging (Social security - Sickness - Pre-existing state of health - Aggregation of insurance periods)

text:
No C 333/2             | EN                  Official Journal of the European Communities                                       9 . 12 , 95
D. A. O. Edward, G. Hirsch ( Presidents of Chambers ), G. F.            Article 13 ( 2 ) ( a ) and Article 39 ( 1 ) and ( 5 ) of Council
Mancini, F. A. Schockweiler ( Rapporteur ), J. C. Moitinho              Regulation ( EEC ) No 1408/71 of 14 June 1971 on the
de Almeida, P. J. G. Kapteyn, P. Jann, H. Ragnemalm and                 application of social security schemes to employed persons,
L. Sevon, Judges ; G. Tesauro, Advocate-General; H. A.                  to self-employed persons and to members of their families
Riihl, Principal Administrator, for the Registrar, has given a          moving within the Community, as amended and updated by
judgment on 24 October 1995 , in which it rules :                       Council Regulation ( EEC ) No 2001/83 of 2 June 1983 ( OJ
                                                                         1983 L 230, p. 6 ), the Court ( Fifth Chamber ), composed of
                                                                        D. A. O. Edward ( Rapporteur ), President of the Chamber,
 1 . Article 85 (1 ) of the EEC Treaty must be interpreted as           J. C. Moitinho de Almeida, C. Gulmann, P. Jann and
      meaning that it prohibits an obligation imposed by the            L. Sevon, Judges; A. M. La Pergola, Advocate-General;
      leading manufacturer of motor vehicles in a Member                H. A. Ruhl, Principal Administrator, for the Registrar, has
      State on all its dealers established in that State to develop     given a judgment on 26 October 1995 , in which it rules
                                                                        that:
      activities as agents for leasing transactions exclusively
      for the account of its own leasing company.
                                                                        Article 38 (1 ) of Council Regulation (EEC) No 1408/71 of
2 . Commission Regulation (EEC) No 123/85 of                            14 June 1971 on the application of social security schemes
      12 December 1984 on the application of Article 85 (3)             to employed persons, to self-employed persons and to
                                                                        members oftheir families moving within the Community, as
      of the Treaty to certain categories of motor vehicle
                                                                        amended and updated by Council Regulation (EEC)
      distribution and servicing agreements must be
      interpreted as meaning that it does not exempt an
                                                                        No 2001 /83 of 2 June 1 983, is to be interpreted as meaning
                                                                        that, where the applicable legislation of a Member State
      obligation imposed by the leading motor vehicle
                                                                        makes the grant of invalidity benefits subject, inter alia, to
      manufacturer in a Member State on all its dealers
      established in that State to develop activities as agents
                                                                        the condition that at the time of his joining the scheme
                                                                        established by that legislation the worker's state of health
      for leasing transactions exclusively for the account of its
                                                                        must not have been such as to make it foreseeable that
      own leasing company.
                                                                        incapacity for work followed by invalidity would occur in
                                                                        the near future, the competent institution must also take
t 1 ) OJ No C 160, 12 . 6 . 1993 .                                      into account periods of insurance completed by that worker
                                                                        under the legislation of another Member State, as if those
                                                                       periods had been completed under the legislation which it
                                                                       administers.
                                                                        (') OJ No C 59 , 26 . 2 . 1994, p . 6 .
                JUDGMENT OF THE COURT
                          ( Fifth Chamber)
                        of 26 October 1995
in Case C-481/93 (reference for a preliminary ruling from
the Arrondissementsrechtbank Amsterdam ): R. Moscato v.                               JUDGMENT OF THE COURT
   Bestuur van de Nieuwe Algemene Bedrijfsvereniging ( j )                                       ( Fifth Chamber)
(Social Security — Invalidity — Legislation applicable —                                       of 26 October 1995
       Type A legislation — Pre-existing state of health)               in Case C-482/93 ( reference for a preliminary ruling from
                            ( 95/C 333/03 )                             the Arrondissementsrechtbank Amsterdam ): S. E. Klaus v.
                                                                          Bestuur van de Nieuwe Algemene Bedrijfsvereniging (')
                                                                        (Social security — Sickness — Pre-existing state ofhealth —
                  (Language of the case: Dutch)                                      Aggregation of insurance periods)
                                                                                ( 95/C 333/04 )
(Provisional translation; the definitive translation will be
           published in the European Court Reports)                                     (Language of the case: Dutch)
In Case C-481 /93 : reference to the Court under Article 177            (Provisional translation; the definitive translation will be
of the EEC Treaty from the Arrondissementsrechtbank                             published in the European Court Reports)
( District Court ), Amsterdam (Netherlands ), for a
preliminary ruling in the proceedings pending before that
court between R. Moscato and Bestuur van de Nieuwe                      In Case C-482/93 : reference to the Court under Article 177
Algemene Bedrijfsvereniging — on the interpretation of                  of the EEC Treaty from the Arrondissementsrechtbank
 ---pagebreak--- 9 . 12. 95           1 EN |                  Official Journal of the European Communities                                   No C 333/3
( District   Court),    Amsterdam        ( Netherlands ),   for  a                      JUDGMENT OF THE COURT
preliminary ruling in the proceedings pending before that                                        ( Fifth Chamber )
court between S. E. Klaus and Bestuur van de Nieuwe
Algemene Bedrijfsvereniging — on the interpretation of                                        of 26 October 1995
Article 25 ( 2 ), Article 35 ( 3 ) and Article 71 ( 1 ) of Council      in Case C-36/94 ( reference for a preliminary ruling from the
Regulation ( EEC ) No 1408/71 of 14 June 1971 on the                    Tribunal Fiscal Aduaneiro de Lisboa ): Siesse — Soluções
application of social security schemes to employed persons,             Integrais em Sistemas Software e Aplicações Lda. v. Director
to self-employed persons and to members of their families                                da Alfândega de Alcântara ( J )
moving within the Community, as amended and updated by                  (Release ofgoods for free circulation — Failure to comply
Council Regulation ( EEC ) No 2001 /83 of 2 June 1983 ( OJ              with the time-limit for assignment to a customs-approved
1983 L 230 , p. 6 ), the Court ( Fifth Chamber ), composed of                      treatment or use — Imposition of a levy)
D. A. O. Edward ( Rapporteur ), President of the Chamber,
J. C. Moitinho de Almeida, C. Gulmann, P. Jann und                                                 ( 95/C 333/05 )
L. Sevon, Judges; A. M. La Pergola , Advocate-General;
H. A. Riihl, Principal Administrator, for the Registrar, has                           (Language of the case: Portuguese)
given a judgment on 26 October 1995, in which it rules
that :
                                                                        (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
                                                                        In Case C-36/94 : reference to the Court under Article 177 of
1 . Article 35 (3) of Council Regulation (EEC) No 1408/71
     of 14 June 1971 on the application of social security              the EC Treaty from the Tribunal Fiscal Aduaneiro de Lisboa
     schemes to employed persons, to self-employed persons              ( Customs Court, Lisbon ) for a preliminary ruling in the
     and to members of their families moving within the                 proceedings pending before that court between Siesse —
     Community, as amended and updated by Regulation                    Solu^oes Integrals em Sistemas Software e Aplica^oes Ld?
     (EEC) No 2001 /83 of2 June 1983, does not apply to the             and Director da Alfandega de Alcantara-Lisboa ( Director of
     legislation ofa Member State which precludes, in whole             the Alcantara Customs Office, Lisbon ) — on the
     or in part, the grant of sickness benefits if the worker           interpretation of Council Regulation ( EEC ) No 4151/88 of
     concerned was already unfit for work at the time                   21 December 1988 laying down the provisions applicable to
     when he became insured under the scheme which it                   goods brought into the customs territory of the Community
     establishes .                                                      ( OJ 1988 L 367, p. 1 ) — the Court ( Fifth Chamber ),
                                                                        composed of D. A. O. Edward, President of the Chamber,
                                                                        J. -P. Puissochet ( Rapporteur ), C. Gulmann, P. Jann and
                                                                        L. Sevon, Judges; M. B. Elmer, Advocate-General; H. A.
2 . Article 18 (1 ) of Regulation (EEC) No 1408/71 is to be             Riihl, Principal Administrator, for the Registrar, gave a
     interpreted as meaning that, where the applicable                  judgment on 26 October 1995 , the operative part of which
                                                                        is as follows :
     legislation of a Member State makes the grant of cash
     sickness benefits subject to the condition that the
     insured person was not already unfit for work at the               1 . Council Regulation (EEC) No 4151 /88 of 21 December
     time when he became insured under the scheme which it                    1988 laying down the provisions applicable to goods
     establishes, the competent institution must also take                    brought into the customs territory of the Community
     into account periods of insurance completed by that                      does not preclude the customs authority from accepting,
     person under the legislation ofanother Member State, as                 after the expiry of the periods provided for in
     if those periods had been completed under the                           Article 15 (1 ), a declaration for release for free
     legislation which it administers.                                        circulation of goods brought into the customs territory
                                                                              of the Community.
                                                                        2 . Article 19 of Regulation (EEC) No 4151 /88 does not
3 . The fact that, having transferred his residence from one                 preclude the customs authority from requiring the
     Member State to another Member State, the person                        payment ofa sum, other than the customs duties and any
     concerned was for a short period neither employed nor                    expenses arising from the temporary storage of the
     registered as seeking employment in the latter State does               goods, for accepting a declaration for their release for
     not interrupt the continuity of the insurance periods                    free circulation after the expiry of the periods provided
     completed by that person or preclude application of the                  for in Article 15 (1 ), provided that the amount of that
     aggregation rule laid down by Article 18 (1 ) of                         sum is determined in accordance with the principle of
     Regulation (EEC) No 1408/71 .                                            proportionality and under conditions which are
                                                                              analogous to those applicable in national law to
                                                                              infringements of the same nature and gravitiy. It is for
(') OJ No C 59 , 26 . 2 . 1994 , p . 7 .                                      the national court to determine whether the surcharge in
                                                                              issue is consistent with those principles.
                                                                        (') OJ No C 76 , 12 . 3 . 1994 .


title: Case C-354/03: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 28 July 2003, in the case of Optigen Ltd against Commissioners of Customs and Excise

text:
C 251/6                EN                     Official Journal of the European Union                                           18.10.2003
deprived of the benefit of the inter-service meeting provided          2003, for a preliminary ruling in the case of Optigen Ltd
for in the regulations had not adversely affected him. In the          against Commissioners of Customs and Excise on the
absence of that meeting, the applicant was unable either to            following questions:
present his case in an appropriate manner before a group of
representatives of the Commission or to know what probative
documents the Commission considered to be lacking.
                                                                       A.     Under the common system of VAT, and in the light of
                                                                              Council Directives 67/227/EEC (1) and 77/388/EEC (2), is
                                                                              the entitlement of a trader to credit for a payment in
                                                                              respect of VAT under a transaction to be judged by
                                                                              reference to:
Reference for a preliminary ruling by the Court of Appeal
(England & Wales) (Civil Division) by order of that court
dated 25 July 2003, in the case of Société de produits                       (1)    only the particular transaction to which the trader
                Nestlé SA against Mars UK Ltd                                       was a party including the trader's purposes in enter-
                                                                                ing into it, or
                          (Case C-353/03)
                          (2003/C 251/11)
                                                                             (2)    the totality of transactions, including subsequent
Reference has been made to the Court of Justice of the                              transactions, making up a circular chain of supply
European Communities by an order of the Court of Appeal                             of which the particular transaction forms part
(England & Wales) (Civil Division) dated 25 July 2003, which                        including the purposes of other participants in the
was received at the Court Registry on 18 August 2003, for a                         chain of which the trader has no knowledge and/or
preliminary ruling in the case of Société de produits Nestlé SA                     means of knowledge, and/or
against Mars UK Ltd on the following question:
Whether the distinctive character of a mark referred to
in Article 3(3) of Council Directive 89/104/EEC (1) and                      (3)    the fraudulent acts and intention, whether arising
Article 7(3) of Council Regulation 40/94 (2) may be acquired                        prior or subsequent to the particular transaction, of
following or in consequence of the use of that mark as part of                      other participants in the circular chain of whose
or in conjunction with another mark?                                                involvement the trader is unaware and of whose
                                                                                acts and intentions the trader has no knowledge
                                                                                and/or means of knowledge, or
(1) First Council Directive 89/104/EEC of 21 December 1988 to
    approximate the laws of the Member States relating to trade
    marks OJ L 040, 11.02.1989, p. 1-7.
(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                             (4)    some other, and if so what, criteria?
    Community trade mark OJ L 011, 14.01.1994, p. 1-36.
                                                                       B.    Does the exclusion from the VAT regime of transactions
                                                                             entered into by an innocent party, but which form links in
                                                                             a carousel fraud by others, infringe the general principles
Reference for a preliminary ruling by the High Court of
                                                                             of proportionality, equal treatment or legal certainty?
Justice (England & Wales), Chancery Division, by order of
that court dated 28 July 2003, in the case of Optigen Ltd
        against Commissioners of Customs and Excise
                                                                       (1) First Council Directive 67/227/EEC of 11 April 1967 on the
                          (Case C-354/03)                                  harmonisation of legislation of Member States concerning turnover
                                                                           taxes OJ P 071, 14.04.1967, p. 1301-1303.
                          (2003/C 251/12)                              (2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                           harmonization of laws of the Member States relating to turnover
Reference has been made to the Court of Justice of the                     taxes — Common system of value added tax: uniform bassis of
European Communities by an order of the High Court of                      assessment OJ L 145, 13.06.1977, p. 1-40.
Justice (England & Wales), Chancery Division, dated 28 July
2003, which was received at the Court Registry on 18 August


title: Case C-244/15: Judgment of the Court (Seventh Chamber) of 26 May 2016 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Taxation — Free movement of capital — Article 63 TFEU — Article 40 of the EEA Agreement — Inheritance tax — Legislation of a Member State providing for an exemption from inheritance tax relating to the primary residence on condition that the heir is permanently resident in that Member State — Restriction — Justification)

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/9

         Judgment of the Court (Seventh Chamber) of 26 May 2016 — European Commission v Hellenic Republic
   (Case C-244/15) (1)

   ((Failure of a Member State to fulfil obligations - Taxation - Free movement of capital - Article 63 TFEU - Article 40 of the EEA Agreement - Inheritance tax - Legislation of a Member State providing for an exemption from inheritance tax relating to the primary residence on condition that the heir is permanently resident in that Member State - Restriction - Justification))
   (2016/C 260/11)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: D. Triantafyllou and W. Roels, acting as Agents)

      Defendant: Hellenic Republic (represented by: M. Tassopoulou and V. Karrá, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by enacting and maintaining in force legislation which provides for an exemption from inheritance tax relating to the primary residence, which applies solely to nationals of EU Member States who are resident in Greece, the Hellenic Republic has failed to fulfil its obligations under Article 63 TFEU and under Article 40 of the Agreement on the European Economic Area of 2 May 1992;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 228, 13.7.2015.


title: Case C-316/08: Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 15 July 2008 — Latex Srl v Agenzie delle Entrate, Amministrazione Dell'Economia e delle Finanze

text:
               11.10.2008

               EN

               Official Journal of the European Union

               C 260/6

         Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) lodged on 15 July 2008 — Latex Srl v Agenzie delle Entrate, Amministrazione Dell'Economia e delle Finanze
   (Case C-316/08)
   (2008/C 260/09)
   Language of the case: Italian
   Referring court
   Corte Suprema di Cassazione
   Parties to the main proceedings

      Applicant: Latex Srl

      Defendants: Agenzie delle Entrate, Amministrazione Dell'Economia e delle Finanze
   Questions referred

               1.

               Does Article 18(4) of the Sixth Directive (1), given the neutrality of the VAT system, permit the Member States to completely exclude the right to deduct, also in the period following the years concerned, providing only for a refund?

               2.

               If the answer is in the affirmative, do Article 18(4) and the principle of the effectiveness of the protection of rights arising under the Community legal system impose an obligation on the Member States nonetheless to ensure that those refunds are made within a reasonable period of time?

      (1)  Directive 388/77/EEC, OJ L 145, p. 1.


title: Action brought on 20 July 1998 by RJB Mining plc against the Commission of the European Communities (Case T-110/98)

text:
C 299/38              EN                 Official Journal of the European Communities                                    26.9.98
In support of his application he argues, inter alia:                Communities on 13 July 1998 by Jean Lesueur, resident in
                                                                    Brussels, represented by Jean-NoeÈl Louis, VeÂronique
Ð that the author of the decision lacked jurisdiction or            Leclercq, Ariane Tornel and FrancËoise Parmentier, of the
    that the decision lacks any constitutional or legal basis       Brussels Bar, with an address for service in Luxembourg at
    in that the defendant is, on the basis of a simple              the offices of Fiduciaire Myson SARL, 30, rue de
    declaration which does not constitute an amendment              Cessange.
    or provision having the force of primary law,
    purporting to enact a piece of delegated legislation            The applicant claims that the Court should:
    which it is not constitutionally authorised to adopt.
    Furthermore, the applicant argues that there is a
                                                                    Ð annul the Council decision of 6 October 1997 refusing
    discrepancy between the scope of the declaration,
                                                                         the request for refund of that part of the pension
    which presumably constitutes the basis of the disputed
                                                                         rights transferred to the Community pensions regime
    decision, and the decision itself, in that the decision is
                                                                         which was not taken into consideration in the
    general in nature,
                                                                         calculation of the pensionable service to be taken into
                                                                         account pursuant to Article 11(2) of Annex VIII to the
Ð breach of Articles 11, 12, 16 and 17 of the Staff                      Staff Regulations,
    Regulations in so far as the disputed decision institutes
    security screening by the national authorities and
                                                                    Ð order the Council to pay the costs.
    withdraws the appointing authority's autonomous
    power to adopt a decision in the event that the
    national authorities' opinion is negative and places            Pleas in law and main arguments adduced in support:
    officials and employees affected by such screening in a
    position of dependence. Similarly, both Article 23 of           The pleas in law and main arguments are those already
    the Staff Regulations and the Protocol on Privileges            raised in Case T-103/98 Kristensen v. Council (1).
    and Immunities of the European Communities have,
    according to the applicant, been ignored in so far as
    they provide for a legal system of official immunity in         (1) See page 36 of this Official Journal.
    relation to the accomplishment of tasks entrusted to
    officials,
Ð breach of Article 26 of the Staff Regulations in so far
    as the disputed decision provides for the constitution
    of a security file in addition to the single file referred      Action brought on 20 July 1998 by RJB Mining plc
    to in Article 26,                                                  against the Commission of the European Communities
                                                                                (Case T-110/98)
Ð breach of Article 24 of the Treaty establishing a single                                    (98/C 299/69)
    Council and a single Commission of the European
    Communities of 8 April 1965, and of the Council
                                                                                (Language of the case: English)
    decision of 23 June 1981 establishing a concertation
    procedure, breach of essential procedural requirements
    and hierarchy of legal sources in so far as the disputed        An action against the Commission of the European
    decision, which is a simple decision, implicitly                Communities was brought before the Court of First
    purports to amend several provisions of the Staff               Instance of the European Communities on 20 July 1998
    Regulations which are statutory in nature. In                   by RJB Mining plc, represented by Mark Brealey and
    particular, there was no prior proposal by the                  Jonathan Lawrence, with an address for service in
    Commission neither were the institutions consulted.             Luxembourg at the offices of Arendt & Medernach, 8Ð
                                                                    10, rue Mathias Hardt, boite postale 39.
(1) OJ L 140, 12.5.1998, p. 12.
                                                                    The applicant claims that the Court should:
                                                                    Ð annul the Commission Decision of 10 June 1998
                                                                         relating to financial interventions from Germany to
                                                                         the coal industry in 1997, which purports to authorise
Action brought on 13 July 1998 by Jean Lesueur against                   Germany to grant aid to its coal industry, and
             the Council of the European Union
                       (Case T-107/98)                              Ð order that the Commission pay the costs of the action,
                        (98/C 299/68)                                    including those of the applicant.
               (Language of the case: French)                       Pleas in law and main arguments adduced in support:
An action against the Council of the European Union was             The applicant is an independently owned coal-mining
brought before the Court of First Instance of the European          company incorporated in England and Wales. Its major
 ---pagebreak--- 26.9.98              EN                 Official Journal of the European Communities                                     C 299/39
customers are the UK electricity power generators, but it               aid to mines which, on the applicant's own
is also trying to find a market for its coal overseas, in               calculations and those of its advisers, can never be
particular in Germany and Spain. On 10 June 1998, the                   viable. Second, the effect of the aid is contributing
Commission adopted the contested Decision which was                     towards reducing permanently the production capacity
addressed to Germany. Article 1 of the Decision purported               of the lowest cost large-scale producer of steam coal in
to approve operating aid of DEM 6 299 million under                     the Community and the producer with the best (if not
Article 3 of the Code (1), closure aid of DEM 3 205                     the only) long-term prospects of viability having
million under Article 4 of the Code, operating aid of                   regard to current world market conditions.
DEM 87 million of the Code to maintain underground
miners, aid of DEM 200 million to cover exceptional
                                                                   (1) Commission Decision No 3632/93/ECSC of 28 December
losses under Article 5 of the Code to Ruhrkohle AG,
                                                                       1993, establishing Community rules for State aid to the coal
Saarbergwerke AG, Preussag Anthrazit GmbH and Sophia                   industry (OJ L 329, 30.12.1993, p. 12).
Jacob GmbH and, finally, aid of DEM 609,2 million to
cover exceptional costs under Article 5 of the Code to
Ruhrkohle AG, Saarbergwerke AG and Sophia Jacob AG,
enabling those companies to cover the cost which result
and have resulted from the restructuring of the coal
industry and which do not relate to current production.
                                                                   Action brought on 20 July 1998 by RJB Mining plc
The applicant claims to be gravely concerned by this                  against the Commission of the European Communities
decision, as the British coal industry has over the last 10
years undergone massive restructuring and rationalisation.                                 (Case T-111/98)
                                                                                (98/C 299/70)
The applicant seeks annulment of the contested decision
on the grounds of:
                                                                                (Language of the case: English)
Ð lack of competence: the Code expressly provides that
    no aid may be granted until it has been approved by            An action against the Commission of the European
    the Commission. In breach of this requirement, the             Communities was brought before the Court of First
    Commission on 10 June 1998 apparently purported to             Instance of the European Communities on 20 July 1998
    approve retroactively aid which had already been               by RJB Mining plc, represented by Mark Brealey and
    granted by the German Government in 1997,                      Jonathan Lawrence, with an address for service in
                                                                   Luxembourg at the Offices of Arendt & Medernach, 8Ð
                                                                   10, rue Mathias Hardt, boite postale 39.
Ð lack of reasoning: despite the requirement of
    transparency on the ECSC Treaty, the contested
    Decision fails to explain the basis on which the aid
    was granted. Under the Code, operating aid can only            The applicant claims that the Court should:
    be granted if an undertaking or production unit has a
    reasonable prospect of achieving viability within the
    foreseeable future, yet the contested Decision contains        Ð annul the Commission Decision of 3 June 1998
    no facts which would enable the applicant to verify                 relating to financial interventions from Spain to the
    the viability of any mine. Similarly, the Code provides             coal industry from 1994 to 1998, which purport to
    that closure aid can only be granted if the relevant                authorise Spain to grant aid to its coal industry, and
    production      unit   will   (save     in   exceptional
    circumstances) close at a date prior to 2002. The
    contested Decision does not specify any dates for
    closure of production units. Moreover, the contested           Ð order that the Commission pay the costs of the action,
    Decision implicitly rejects, without reasons, a                     including those of the applicant.
    complaint field with the Commission by the applicant
    on 5 May 1998,
                                                                   Pleas in law and main arguments adduced in support:
Ð infringement of the principle of good administration:
    the applicant formally complained about the grant of
                                                                   The applicant is the same as in Case T-110/98 (application
    the German aid on 5 May 1998. On 10 June 1998 the
                                                                   for the annulment of the Commission Decision of 10 June
    Commission acknowledged receipt of the complaint
                                                                   1998 relating to financial interventions from Germany to
    and stated that the applicant would be kept informed.
                                                                   the coal industry in 1997).
    Yet on the same day the Commission adopted the
    contested Decision,
                                                                   On 3 June 1998 the Commission adopted the three
Ð manifest infringement of the Treaty and the Code:                contested Decisions which were addressed to the Kingdom
    First, the contested Decision has purported to approve         of Spain: the first Decision relates to aid from Spain to its


title: Judgment of the Court (Third Chamber) of 16 December 1999 in Case C-138/99: Commission of the European Communities v Grand Duchy of Luxembourg (Failure by a Member State to fulfil its obligations — Directive 94/56/EC — Air transport — Civil aviation — Investigation of accidents and incidents — Transposition)

text:
C 63/8                   EN                     Official Journal of the European Communities                                           4.3.2000
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                                                                                of 11 January 2000
                          (Third Chamber)
                                                                           in Joined Cases C-174/98 P and C-189/98 P: Kingdom of
                       of 16 December 1999                                 the Netherlands and Gerard van der Wal v Commission
                                                                                of the European Communities (1)
in Case C-138/99: Commission of the European Communi-                      (Appeal — Access to information — Commission Decision
            ties v Grand Duchy of Luxembourg (1)                           94/90/ECSC, EC, Euratom — Scope of the exception relating
                                                                           to protection of the public interest — Inadequate statement
                                                                           of reasons — Article 6 of the European Convention for the
(Failure by a Member State to fulfil its obligations —                     Protection of Human Rights and Fundamental Freedoms —
Directive 94/56/EC — Air transport — Civil aviation —                      Principles of equality between the parties and rights of the
  Investigation of accidents and incidents — Transposition)                                                defence)
                                                                                (2000/C 63/15)
                           (2000/C 63/14)
                                                                                (Language of the case: Dutch)
                     (Language of the case: French)
                                                                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published     In Joined Cases C-174/98 P and C-189/98 P: Kingdom of the
                    in the European Court Reports)                         Netherlands (Agents: M.A. Fierstra and C. Wissels) and Gerard
                                                                           van der Wal, residing in Crainhem, Belgium, represented by
                                                                           L.Y.J.M. Parret, with an address for service in Luxembourg at
In Case C-138/99: Commission of the European Communities                   the Chambers of A. May, 31 Grand-Rue — appeal against the
(Agent: F. Benyon) v Grand Duchy of Luxembourg (Agent:                     judgment of the Court of First Instance (Fourth Chamber) of
P. Steinmetz) — application for a declaration that, by failing             19 March 1998, in Case T-83/96 Van der Wal v Commission
to adopt the laws, regulations and administrative provisions               [1998] ECR II-545, seeking to have that judgment set aside,
necessary to comply with Council Directive 94/56/EC of                     the other party to the proceedings being Commission of the
21 November 1994 establishing the fundamental principles                   European Communities (Agents: W. Wils and U. Wölker) —
governing the investigation of civil aviation accidents and                the Court, composed of: G.C. Rodrı́guez Iglesias, President,
incidents (OJ 1994 L 319, p. 14), the Grand Duchy of                       J.C. Moitinho de Almeida (Rapporteur), D.A.O. Edward and
Luxembourg has failed to fulfil its obligations under that                 L. Sevón, Presidents of Chambers, P.J.G. Kapteyn, C. Gulmann,
directive — the Court (Third Chamber), composed of: J.C. Moit-             G. Hirsch, H. Ragnemalm and M. Wathelet, Judges; G. Cosmas,
inho de Almeida, President of the Chamber, C. Gulmann                      Advocate General; H. von Holstein, Deputy Registrar, has
(Rapporteur) and J.-P. Puissochet, Judges; F.G. Jacobs, Advocate           given a judgment on 11 January 2000, in which it:
General; R. Grass, Registrar, has given a judgment on
16 December 1999, in which it:                                             1. Sets aside the judgment of the Court of First Instance of the
                                                                                European Communities of 19 March 1998 in Case T-83/96
                                                                                Van der Wal v Commission;
1. Declares that, by failing to adopt within the prescribed period the
    laws, regulations and administrative provisions necessary to
    comply with Council Directive 94/56/EC of 21 November                  2. Annuls the Commission’s decision of 29 March 1996 refusing
    1994 establishing the fundamental principles governing the                  access to certain documents;
    investigation of civil aviation accidents and incidents, the Grand
    Duchy of Luxembourg has failed to fulfil its obligations under         3. Orders the Commission of the European Communities to pay the
    that directive;                                                             costs relating to both sets of proceedings;
                                                                           4. Orders the Kingdom of the Netherlands to bear its own costs, as
2. Orders the Grand Duchy of Luxembourg to pay the costs.                       intervener in Case T-83/96, in the proceedings before the Court
                                                                                of First Instance and, as intervener in Case C-189/98 P, in these
                                                                                proceedings.
(1) OJ C 188 of 3.7.1999.
                                                                           (1) OJ C 258 of 15.8.1998.


title: Case T-15/05: Judgement of the Court of First Instance of  31 May 2006  — De Waele v OHIM (Shape of sausage) (Community trade mark — Three-dimensional mark — Shape of a sausage — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/32

         Judgement of the Court of First Instance of 31 May 2006 — De Waele v OHIM (Shape of sausage)
   (Case T-15/05) (1)

   (Community trade mark - Three-dimensional mark - Shape of a sausage - Absolute grounds for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)
   (2006/C 178/58)
   Language of the case: Dutch
   Parties

      Applicant: Wim De Waele (Bruges, Belgium) (represented by: P. Maeyaert, S. Granata and R. Vermeire, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: W.Verburg, Agent)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 16 November 2004 (Case R 820/2004-1) concerning registration of a three-dimensional mark in the shape of a sausage as a Community trade mark.
   Operative part of the judgement
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 57, 5.3.2005.


title: Case T-88/11: Action brought on 18 February 2011 — BIA Separations v Commission

text:
               2.4.2011

               EN

               Official Journal of the European Union

               C 103/27

         Action brought on 18 February 2011 — BIA Separations v Commission
   (Case T-88/11)
   2011/C 103/47
   Language of the case: English

      Parties

      Applicant: BIA Separations d.o.o. (Ljubljana, Slovenia) (represented by: G. Berrisch, lawyer, and N. Chesaites, Barrister)

      Defendant: European Commission

      Form of order sought

               —

               annul the Commission’s implicit decision of 10 December 2010 rejecting the applicant’s confirmatory application for access to Commission Decision on the Co-operation Agreement between the European Community and the European Investment Bank in respect of the Risk-sharing Finance Facility (C(2008) 2181) and the Draft Commission Decision on amending the Co-operation Agreement between the European Community and the European Investment Bank in respect of the Risk-sharing Finance Facility (C(2008) 8058);

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law alleging that the Commission violated Article 296 TFEU by failing to respond to the applicant’s confirmatory request for access to information within the prescribed time-limit laid down in Article 8(1) and (2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (1).

      (1)  OJ 2001 L 145, p. 43


title: Case T-714/16: Order of the General Court of 9 February 2017 — Asolo v EUIPO — Red Bull (FLÜGEL) (EU trade mark — Cancellation proceedings — Revocation of the contested decision — No need to adjudicate)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/34

         Order of the General Court of 9 February 2017 — Asolo v EUIPO — Red Bull (FLÜGEL)
   (Case T-714/16) (1)

   ((EU trade mark - Cancellation proceedings - Revocation of the contested decision - No need to adjudicate))
   (2017/C 121/51)
   Language of the case: English

      Parties

      Applicant: Asolo LTD (Limassol, Cyprus) (represented by: W. Pors, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Folliard-Monguiral and M. Capostagno, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Red Bull GmbH (Fuschl am See, Austria) (represented by: A. Renck, lawyer)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 29 July 2016 (Case R 282/2015-5), relating to cancellation proceedings between Red Bull and Asolo.

      Operative part of the order

               1.

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

               2.

               The European Union Intellectual Property Office (EUIPO) shall bear its own costs and pay those incurred by Asolo LTD and Red Bull GmbH.

      (1)  OJ C 462, 12.12.2016.


title: Judgment of the Court (Grand Chamber) of 15 February 2005 in Case C-12/03 P: Commission of the European Communities v Tetra Laval BV (Appeal — Competition — Regulation (EEC) No 4064/89 — Decision declaring a ‘conglomerate-type’ concentration incompatible with the common market — Leveraging — Scope of judicial review — Factors to be taken into consideration — Behavioural commitments)

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/1

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 15 February 2005
   in Case C-12/03 P: Commission of the European Communities v Tetra Laval BV (1)

   (Appeal - Competition - Regulation (EEC) No 4064/89 - Decision declaring a ‘conglomerate-type’ concentration incompatible with the common market - Leveraging - Scope of judicial review - Factors to be taken into consideration - Behavioural commitments)
   (2005/C 82/02)
   Language of the case: English
   In Case C-12/03 P: appeal under Article 49 of the EC Statute of the Court of Justice lodged on 8 January 2003 by Commission of the European Communities (Agents: M. Petite, A Whelan and P. Hellström), the other party to the proceedings being Tetra Laval BV, established in Amsterdam (Netherlands) (represented by A. Vandencasteele and D. Waelbroeck, M. Johnsson, A. Weitbrecht and S. Völcker) — the Court (Grand Chamber), composed of P. Jann, President of the First Chamber (acting as President), C.W.A. Timmermans and A. Rosas (Rapporteur), Presidents of Chambers, C. Gulmann, J.-P. Puissochet, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 15 February 2005, in which it:

               1.

               Dismisses the appeal;

               2.

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

      (1)  OJ C 70 of 22.03.2003.


title: Case F-73/08: Action brought on 25 August 2008 — Marcuccio v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/51

         Action brought on 25 August 2008 — Marcuccio v Commission
   (Case F-73/08)
   (2008/C 272/100)
   Language of the case: Italian
   Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   Annulment of various Commission decisions refusing the applicant 100 % reimbursement of medical expenses, and payment by the Commission of the relevant amount
   Form of order sought

               —

               Annulment of the decision refusing the application dated 27 June 2007 and sent on 28 June 2007;

               —

               Annulment of the decision refusing the application dated 29 June 2007 and sent the same day;

               —

               Annulment of the decision refusing the application dated 30 June 2007 and sent on 2 July 2007;

               —

               Annulment of the decision refusing the application dated 2 July 2007 and sent the same day;

               —

               Annulment, in so far as necessary, of the memorandum dated 29 April 2008;

               —

               Order that the Commission pay the applicant, by way of 100 % reimbursement of the medical expenses, the sum of EUR 4 747,29 or such lesser sum as the Court may consider appropriate, plus interest at the rate of 10 % per annum with annual capitalisation, or at such rate, with such capitalisation and from such date as the Court considers appropriate;

               —

               Order that the Commission pay the costs.


title: Reference for a preliminary ruling from the Helsingin Käräjäoikeus by order of that court of 5 November 1997 in the criminal proceedings against Sami Lasse Juhani Heinonen (Case C-394/97)

text:
7.2.98                EN                Official Journal of the European Communities                                          C 41/9
Reference for a preliminary ruling from the Verwaltungs-                to the Duty-Free Regulation and in Article 36 of the
gericht Halle by order of that court of 1 October 1997 in               EC Treaty or on other imperative requirements of the
the case of Lidl-Fleischwerk Handelshof GmbH & Co.                      public interest, are compatible with the provisions of
              KG v. Landkreis Burgenlandkreis                           the Regulation and the Directive?
                       (Case C-393/97)
                         (98/C 41/15)                              2. Do facts (a) to (h) set out in point IV(6) of this order
                                                                        for reference constitute grounds such that a Member
                                                                        State's national restrictions based thereon are
                                                                        compatible with the provisions of the Duty-Free
Reference has been made to the Court of Justice of the                  Regulation and the Travel Directive?
European      Communities        by  an    order    of   the
Verwaltungsgericht Halle (Halle Administrative Court) of
1 October 1997, which was received at the Court Registry           3. May a rule limiting travellers' imports of alcoholic
on 19 November 1997, for a preliminary ruling in the                    drinks, which in this question also includes beer, on
case of Lidl-Fleischwerk Handelshof GmbH & Co. KG v.                    the basis of the duration of the journey be regarded as
Landkreis Burgenlandkreis on the following questions:                   compatible with the provisions of the Duty-Free
                                                                        Regulation and the Travel Directive?
1. Do provisions of the European Union, in particular
                                                                   (1) Council Regulation (EEC) No 918/83 of 28 March 1983
    Council Directive 94/65/EC of 14 December 1994 (1),                setting up a Community system of reliefs from customs duty
    preclude a national provision under which products of              (OJ L 105, 23.4.1983, p. 1).
    comminuted meat such as minced meat and ground                 (2) Council Directive 69/169/EEC of 28 May 1969 on the
    meat, even if prepared, may be put on the market on                harmonization of provisions laid down by law, regulation or
    the date of production only, unless they have been                 administrative action relating to exemption from turnover tax
    packed and labelled in an individual package for sale              and excise duty on imports in international travel (OJ, English
    to the final consumer or have been frozen or deep                  Special Edition 1969 (I), p. 232).
    frozen?
2. If so, do those provisions of the European Union apply
    also to factual situations in which the production
    plant is in the same State as that in which the
    comminuted meat product such as minced or ground               Reference for a preliminary ruling by the Tribunal
    meat is to be put on the market?                               Superior de Justicia del País Vasco (Sala de lo
                                                                   Contencioso-Administrativo) by orders of that court of
                                                                   30 July 1997 in the case of Administración del Estado
(1) OJ L 368, 31.12.1994, p. 10.                                   against Juntas Generales de Guipuzcoa; Co-defendant:
                                                                   Diputación Foral de Guipuzcoa; Intervener: Gobierno
                                                                   Vasco; Administración del Estado against Juntas Generales
                                                                   del Territorio Histórico de Alava Co-defendant:
                                                                   Diputación Foral de Alava; Intervener: Gobierno Vasco;
                                                                   and Administración del Estado against Juntas Generales
                                                                   del Territorio Histórico de Bizkaia; Intervener: Gobierno
Reference for a preliminary ruling from the Helsingin                          Vasco and Diputación Foral de Bizkaia
Käräjäoikeus by order of that court of 5 November 1997
                                                                         (Joined Cases C-400/97, C-401/97 and C-402/97)
in the criminal proceedings against Sami Lasse Juhani
                           Heinonen                                                           (98/C 41/17)
                       (Case C-394/97)
                         (98/C 41/16)                              Reference has been made to the Court of Justice of the
                                                                   European Communities by orders of the Tribunal Superior
                                                                   de Justicia del País Vasco (Sala de lo Contencioso-
Reference has been made to the Court of Justice of the             Administrativo) (High Court of Justice of the Basque
European Communities by an order of the Helsingin                  Country, Chamber for Contentious Administrative
Käräjäoikeus (Helsinki District Court) of 5 November               Proceedings) of 30 July 1997, which was received at the
1997, which was received at the Court Registry on                  Court Registry on 1 December 1997, for a preliminary
25 November 1997, for a preliminary ruling in the                  ruling in the case of Administración del Estado against
criminal proceedings against Sami Lasse Juhani Heinonen            Juntas Generales de Guipuzcoa; Co-defendant: Diputación
on the following questions:                                        Foral de Guipuzcoa; Intervener: Gobierno Vasco;
                                                                   Administración del Estado against Juntas Generales del
                                                                   Territorio Histórico de Alava Co-defendant: Diputación
1. May the Duty-Free Regulation (1) and the Travel                 Foral de Alava; Intervener: Gobierno Vasco; and
    Directive (2) be interpreted as meaning that national          Administración del Estado against Juntas Generales del
    limits laid down by Member States on imports by                Territorio Histórico de Bizkaia; Intervener: Gobierno
    travellers of beer and other alcoholic drinks, based on        Vasco and Diputación Foral de Bizkaia on the following
    grounds referred to in the ninth recital in the preamble       question:


title: Case C-141/08 P: Appeal brought on 7 April 2008 by Foshan Shunde Yongjian Housewares & Hardware against the judgment delivered on 29 January 2008 in Case T-206/07, Foshan Shunde Yongjian Housewares & Hardware v Council of the European Union

text:
               21.6.2008

               EN

               Official Journal of the European Union

               C 158/11

         Appeal brought on 7 April 2008 by Foshan Shunde Yongjian Housewares & Hardware against the judgment delivered on 29 January 2008 in Case T-206/07, Foshan Shunde Yongjian Housewares & Hardware v Council of the European Union
   (Case C-141/08 P)
   (2008/C 158/16)
   Language of the case: French
   Parties

      Appellant(s): Foshan Shunde Yongjian Houewares & Hardware Co. Ltd (represented by: J.-F. Bellis, avocat, G. Vallera, barrister)

      Other party/parties to the proceedings: Council of the European Union
   Form of order sought

               —

               Annul the judgment under appeal;

               —

               Grant the forms of order sought in the proceedings before the Court of First Instance in Case T-206/07, that is to say, annulment of Regulation (EC) No 452/2007 (1) insofar as it applies to the appellant;

               —

               Order the Council to pay the costs incurred before the Court of First Instance and the Court of Justice.

         Pleas in law and main arguments
   The appellant relies on two pleas in law in support of its appeal.
   By its first plea, the appellant complains that the Court of First Instance did not address the first plea which it raised in support of annulment in rejecting that plea on the basis of a finding which was manifestly not supported by the documents on the file, that is to say, that the discussion concerning the interpretation of Article 2(7)(c) of the Basic Regulation (2) and of paragraph 44 of the judgment of the Court of First Instance of 14 November 2006 in Case T-138/02 Nanjing Metalink v Council [2006] ECR II-4347 was without relevance. As the Council itself observed in its defence, it is precisely because the Commission considered that the necessary conditions for the amendment of the initial determination, as set out in that judgment, were not met that it revoked its final decision granting the appellant market economy treatment. Therefore, the Court of First Instance based its reasoning on inaccurate findings and failed to rule on the interpretation of Article 2(7)(c) of the Basic Regulation and on the question whether or not that article allows the Commission to revise, in the course of the procedure, its initial position on the subject of the grant of market economy treatment.
   By its second plea, the applicant submits that the Court of First Instance wrongly concluded that the infringement of its rights to a fair hearing, despite having been established and declared by that court, cannot entail the annulment of the contested regulation on the ground that there is no possibility that the administrative procedure could have led to a different result. The debate concerning the interpretation of Article 2(7)(c) of the Basic Regulation and of paragraph 44 of the judgment in Nanjing Metalink played a decisive role in the administrative procedure and, if the Commission had complied with the procedural requirements of Article 20(5) of the Basic Regulation, the appellant could have validly put forward its own interpretation of Article 2(7)(c) of the Basic Regulation.

      (1)  Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People's Republic of China and Ukraine (OJ 2007 L 109, p. 12).

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).


title: Case C-256/15: Judgment of the Court (Fifth Chamber) of 15 December 2016 (request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije — Slovenia) — Drago Nemec v Republika Slovenija (Reference for a preliminary ruling — Directive 2000/35/EC — Combating late payment — Jurisdiction of the Court — Transaction concluded before the accession of the Republic of Slovenia to the European Union — Scope — Concept of ‘commercial transaction’ — Concept of ‘undertaking’ — Maximum amount of interest for late payment)

text:
               13.2.2017

               EN

               Official Journal of the European Union

               C 46/4

         Judgment of the Court (Fifth Chamber) of 15 December 2016 (request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije — Slovenia) — Drago Nemec v Republika Slovenija
   (Case C-256/15) (1)

   ((Reference for a preliminary ruling - Directive 2000/35/EC - Combating late payment - Jurisdiction of the Court - Transaction concluded before the accession of the Republic of Slovenia to the European Union - Scope - Concept of ‘commercial transaction’ - Concept of ‘undertaking’ - Maximum amount of interest for late payment))
   (2017/C 046/05)
   Language of the case: Slovenian

      Referring court

   Vrhovno sodišče Republike Slovenije

      Parties to the main proceedings

      Applicant: Drago Nemec

      Defendant: Republika Slovenija

      Operative part of the judgment

               1.

               Article 2(1) of Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions must be interpreted as meaning that a natural person holding a licence to carry on an activity as a self-employed craftsman must be regarded as an ‘undertaking’ within the meaning of that provision, and a transaction concluded by him as a ‘commercial transaction’ within the meaning of that provision, where that transaction, although not part of the activities covered by the licence, forms part of the exercise of an independent economic or professional activity that is structured and stable, which is for the referring court to ascertain in the light of all the circumstances of the case.

               2.

               Directive 2000/35 must be interpreted as not precluding national legislation, such as Article 376 of the Obligacijski zakonik (Code of obligations), under which interest for late payment accrued but not paid ceases to run when the amount of the interest equals the principal amount.

      (1)  OJ C 302, 14.9.2015.


title: Case T-170/09: Judgment of the General Court of 10 October 2012 — Shanghai Biaowu High-Tensile Fasteners and Shanghai Prime Machinery v Council (Dumping — Imports of certain iron or steel fasteners originating in China — Market economy treatment — Time-limit for adopting the decision on that treatment — Principle of sound administration — Burden of proof — Obligation to state the reasons on which the decision is based — Article 2(7)(b) and (c) and (10) of Regulation (EC) No 384/96 (now Article 2(7)(b) and (c) and (10) of Regulation (EC) No 1225/2009))

text:
               24.11.2012

               EN

               Official Journal of the European Union

               C 366/30

         Judgment of the General Court of 10 October 2012 — Shanghai Biaowu High-Tensile Fasteners and Shanghai Prime Machinery v Council
   (Case T-170/09) (1)

   (Dumping - Imports of certain iron or steel fasteners originating in China - Market economy treatment - Time-limit for adopting the decision on that treatment - Principle of sound administration - Burden of proof - Obligation to state the reasons on which the decision is based - Article 2(7)(b) and (c) and (10) of Regulation (EC) No 384/96 (now Article 2(7)(b) and (c) and (10) of Regulation (EC) No 1225/2009))
   2012/C 366/56
   Language of the case: English

      Parties

      Applicants: Shanghai Biaowu High-Tensile Fasteners Co. Ltd (Baoshan, China) and Shanghai Prime Machinery Co. Ltd (Shanghai, China) (represented: initially by K. Adamantopoulos and Y. Melin, and subsequently by Melin, V. Akritidis and F. Crespo, lawyers)

      Defendant: Council of the European Union (represented: initially by J.-P. Hix, acting as Agent, assisted by G. Berrisch and G. Wolf, lawyers, and subsequently by J.-P. Hix and B. Driessen, acting as Agents, assisted by Berrisch, lawyer)

      Interveners in support of the defendant: European Commission (represented by: H. van Vliet and C. Clyne, acting as Agents) and European Industrial Fasteners Institute AISBL (EIFI) (Brussels (Belgium)) (represented: initially by J. Bourgeois, Y. van Gerven and E. Wäktare, and subsequently by Bourgeois, lawyers)

      Re:

   Application for the partial annulment of Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Shanghai Biaowu High-Tensile Fasteners Co. Ltd and Shanghai Prime Machinery Co. Ltd to bear their own costs and to pay those of the Council of the European Union and of the European Industrial Fasteners Institute AISBL;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 153, 4.7.2009.


title: Judgment of the Court (Sixth Chamber) 24 January 2002 in Case C-51/00 (Reference for a preliminary ruling from the Cour du Travail de Bruxelles): Temco Service Industries SA v Samir Imzilyen, Mimoune Belfarh, Abdesselam Afia-Aroussi, Khalil Lakhdar (Directive 77/187/EEC — Safeguarding of employees' rights in the event of transfers of undertakings)

text:
6.4.2002                 EN                      Official Journal of the European Communities                                              C 84/21
L 225, p. 1),the Court (Fifth Chamber), composed of: P. Jann                ruling in the proceedings pending before that court between
(Rapporteur), President of the Chamber, S. von Bahr, A. La                  Temco Service Industries SA and Samir Imzilyen, Mimoune
Pergola, L. Sevón and C.W.A. Timmermans, Judges, Advocate                  Belfarh, Abdesselam Afia-Aroussi, Khalil Lakhdar, intervener:
General: A. Tizzano, Registrar: H. von Holstein, Deputy                     General Maintenance Contractors SPRL (GMC), Buyle-Medros-
Registrar, has given a judgment on 15 January 2002, in which                Vaes Associates SA (BMV), formerly Weisspunkt SA, on the
it has ruled:                                                               interpretation of Articles 1(1) and 3(1) of Council Directive
                                                                            77/187/EEC of 14 February 1977 on the approximation of
1.    Article 2(c) and (i) of Council Directive 90/434/EEC of 23 July       the laws of the Member States relating to the safeguarding of
      1990 on the common system of taxation applicable to mergers,          employees’ rights in the event of transfers of undertakings,
      divisions, transfers of assets and exchanges of shares concerning     businesses or parts of businesses (OJ 1977 L 61, p. 26), the
      companies of different Member States must be interpreted as           Court (Sixth Chamber), composed of: F. Macken, President of
      meaning that there is no transfer of assets within the meaning        the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur),
      of that directive where the terms of a transaction are such that      R. Schintgen and J.N. Cunha Rodrigues, Judges, Advocate
      the proceeds of a significant loan contracted by the transferring     General: L.A. Geelhoed, Registrar: D. Louterman-Hubeau, Head
      company remain with that company and the obligations arising          of Division, has given a judgment on 24 January 2002, in
      from the loan are transferred to the company receiving the            which it has ruled:
      transfer. It is immaterial in this regard that the transferring
      company retains a small number of shares in a third company.
2.    It is for the national court to determine whether a transfer of
      assets involves an independent business within the meaning of
      Article 2(i) of Directive 90/434, that is to say, an entity           1.    Article 1(1) of Council Directive 77/187/EEC of 14 February
      capable of functioning by its own means, where the future cash-             1977 on the approximation of the laws of the Member States
      flow requirements of the company receiving the transfer must be             relating to the safeguarding of employees’ rights in the event of
      satisfied by a credit facility from a financial institution which           transfers of undertakings, businesses or parts of businesses must
      insists, in particular, that the shareholders of the company                be interpreted as applying to a situation in which a contractor
      receiving the transfer provide security in the form of shares               which has entrusted the contract for cleaning its premises to a
      representing the capital of that company.                                   first undertaking, which has that contract performed by a
                                                                                subcontractor, terminates that contract and enters into a new
                                                                                contract for the performance of the same work with a second
(1) OJ C 122 of 29.4.2000.                                                        undertaking, where the transaction does not involve any transfer
                                                                                of tangible or intangible assets between the first undertaking or
                                                                                the subcontractor and the second undertaking, but the second
                                                                                undertaking has taken on, under a collective labour agreement,
                                                                                part of the staff of the subcontractor, provided that the staff
                                                                                thus taken on are an essential part, in terms of their number
                                                                                and their skills, of the staff assigned by the subcontractor to the
                  JUDGMENT OF THE COURT                                           performance of the subcontract.
                           (Sixth Chamber)
                           24 January 2002
                                                                            2.    Article 3(1) of Directive 77/187 must be interpreted as
                                                                                meaning that it does not preclude the contract or employment
in Case C-51/00 (Reference for a preliminary ruling                               relationship of a worker employed by the transferor on the date
from the Cour du Travail de Bruxelles): Temco Service                             of the transfer of the undertaking within the meaning of
Industries SA v Samir Imzilyen, Mimoune Belfarh, Abdes-                           Article 1(1) of that directive from continuing with the transferor
              selam Afia-Aroussi, Khalil Lakhdar (1)                              where that worker objects to the transfer of his employment
                                                                                contract or employment relationship to the transferee.
(Directive 77/187/EEC — Safeguarding of employees’ rights
            in the event of transfers of undertakings)
                            (2002/C 84/33)
                     (Language of the case: French)                         (1) OJ C 122 of 29.4.2000.
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
In Case C-51/00: Reference to the Court under Article 234 EC
by the Cour du Travail de Bruxelles (Belgium) for a preliminary


title: Case T-134/09: Judgment of the General Court of 28 June 2012 — Basile and I Marchi Italiani v OHIM (B. Antonio Basile 1952) (Community trade mark — Invalidity proceedings — Community figurative mark B. Antonio Basile 1952 — Earlier national word mark BASILE — Relative ground for refusal — Limitation in consequence of acquiescence — Article 53(2) of Regulation (EC) No 40/94 (now Article 54(2) of Regulation (EC) No 207/2009) — Likelihood of confusion — Article 8(1) of Regulation No 40/94 (now Article 8(1) of Regulation No 207/2009)

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/15

         Judgment of the General Court of 28 June 2012 — Basile and I Marchi Italiani v OHIM (B. Antonio Basile 1952)
   (Case T-134/09) (1)

   (Community trade mark - Invalidity proceedings - Community figurative mark B. Antonio Basile 1952 - Earlier national word mark BASILE - Relative ground for refusal - Limitation in consequence of acquiescence - Article 53(2) of Regulation (EC) No 40/94 (now Article 54(2) of Regulation (EC) No 207/2009) - Likelihood of confusion - Article 8(1) of Regulation No 40/94 (now Article 8(1) of Regulation No 207/2009)
   2012/C 243/26
   Language of the case: Italian

      Parties

      Applicants: Antonio Basile (Giugliano in Campania, Italy); and I Marchi Italiani Srl (Naples, Italy) (represented by: G. Militerni, L. Militerni and F. Gimmelli, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by A. Sempio, and subsequently by P. Bullock, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Osra SA (Rovereta, Saint-Marin) (represented by: A. Masetti Zannini de Concina, R. Cartella and G. Petrocchi, lawyers)

      Re:

   Action brought against the Decision of the Second Board of Appeal of OHIM of 9 January 2009 (Case R 1436/2007-2) relating to invalidity proceedings between Osra SA and M. Antonio Basile.

      Operative part of the judgment

   The Court:

               1.

               Removes the name of the second applicant, I Marchi Italiani Srl, from the list of applicants in Case T-134/09;

               2.

               Dismisses the action;

               3.

               Orders Mr Antonio Basile to pay the costs, other than those relating to the discontinuance;

               4.

               Orders I Marchi Italiani Srl to bear its own costs.

      (1)  OJ C 141, 20.6.2009.


title: Action brought on 23 February 1998 by Republica SA against the Council of the European Union (Case T-34/98)

text:
11.4.98               EN                  Official Journal of the European Communities                                  C 113/19
Ð have exceeded the limits of their discretion in the                Action brought on 23 February 1998 by Republica SA
    determination of the normal value by using, pursuant                      against the Council of the European Union
    to Article 3(4), third subparagraph, of the Basic                                        (Case T-34/98)
    Regulation, the 20 % rule to determine whether sales
    below costs are made in substantial quantities,                                           (98/C 113/46)
                                                                                (Language of the case: English)
Ð have infringed Article 2(11) of the Basic Regulation
    and committed a manifest error of appraisal with                 An action against the Council of the European Union was
    respect to the calculation of the dumping margin,                brought before the Court of First Instance of the European
    inasmuch as                                                      Communities on 23 February 1998 by Republica SA,
                                                                     represented by Alfred L. Merckx, with an address for
                                                                     service in Luxembourg at the Offices of Duro & Lorang,
    Ð no explanation has been given as to why a                      4, boulevard Royal.
         comparison of the weighted average normal value
         with the prices of all individual export transactions
         reflects the full degree of dumping better than the         The applicant claims that the Court should:
         normal methods,
                                                                     Ð annul Article 1 of Council Regulation (EC) No 2320/
                                                                         97 in so far as it concerns the applicant,
    Ð the dumping determination is based on factors
         falling outside the investigation period,
                                                                     Ð annul Article 2 of Council Regulation (EC) No 2320/
                                                                         97 in so far as it concerns the applicant, and
    Ð the existence of a pattern of export prices differing
         according to the various purchasers, regions or             Ð order the defendant to pay the costs.
         time-periods has not been demonstrated,
                                                                     Pleas in law and main arguments adduced in support:
Ð have committed manifest errors of appraisal in the
    determination of injury and failed to demonstrate                The pleas in law and main arguments are the same as
    in accordance with Article 3(6) and (7) of the                   those relied on in Case T-33/98 Petrotub v. Council.
    Basic Regulation that material injury suffered by
    Community industry is caused by the imports from the
    countries subject to the investigation,
Ð have failed, in breach of Article 20(2) of the Basic               Action brought on 25 February 1998 by AndreÂ Hecq
    Regulation and the fundamental right to be heard, to               against the Commission of the European Communities
    give final disclosure on the considerations relating to                                  (Case T-35/98)
    the Community interest.
                                                                                (98/C 113/47)
The applicant finally submits that the conditions imposed                           (Language of the case: French)
by the Community institutions for imports to be exempted
from the anti-dumping duties in accordance with Article 2            An action against the Commission of the European
of the contested Regulation constitute an infringement of            Communities was brought before the Court of First
Articles 8(1) of the Basic Regulation and of the 1994                Instance of the European Communities on 25 February
GATT Anti-dumping Agreement, Article 34(2) and (3) of                1998 by AndreÂ Hecq, residing in Bonlez (Belgium), both
the Association Agreement with Romania, the conclusions              in his own name and that of the UIECS, represented by
of the Essen European Council laying down the                        Lucas Vogel of the Brussels Bar, with an address for
foundations for the pre-accession strategy for the                   service in Luxembourg at the Chambers of Christian
associated countries of Central and Eastern Europe, and              Kremer, 8Ð10 rue Mathias Hardt.
Article 85(1) of the EC Treaty. In relation to the last
point, it is contended that by requiring the applicant to set
                                                                     The applicant claims that the Court should:
its prices in line with the European producers, the
Community institutions have forced the applicant into a
parallel pricing behaviour in contravention of the                   Ð annul the decision of 17 November 1997, notified to
European competition rules.                                              the applicant on 24 November 1997, rejecting the
                                                                         applicant's complaint against the decision of 20 March
                                                                         1997, adopted in response to the applicant's request
(1) OJ L 322, 25.11.1997, p. 1.                                          pursuant to Article 90(1) of the Staff Regulations,
                                                                         refusing to take the measures necessary to ensure
                                                                         collective and proportional representation in the
                                                                         membership of the Bureau of the local Staff


title: ORDER OF THE COURT OF FIRST INSTANCE of 21 June 1995 in Case T-370/94: Jacques Vigel v. Commission of the European Communities (Officials P Admissibility P Act adversely affecting an official P Promotion procedure)

text:
12 . 8 . 95            EN                  Official Journal of the European Communities                                  No C 208/25
    ORDER OF THE COURT OF FIRST INSTANCE                              — order the defendant to pay the applicant the sum of sixty
                        of 21 June 1995                                   thousand French francs ( FF 60 000 ) for irrecoverable
                                                                          costs, or the equivalent in ecus,
in Case T-370/94 : Jacques Vigel v. Commission of the
                  European Communities ( J )                          — order the defendant to pay all the costs .
(Officials — Admissibility — Act adversely affecting an
               official — Promotion procedure)                        Pleas in law and main arguments adduced in support:
                           ( 95/C 208/55 )
                                                                      In 1978 the applicant, who is the manager of a farmers'
                (Language of the case: French)                        association ( GAEC ), received a premium for conversion
                                                                      from dairy herds to the production of beef and veal or
In Case T-370/94 : Jacques Vigel , an official of the                 sheepmeat and in 1991 he was allocated a specific reference
Commission of the European Communities, residing at                   quantity under Regulation ( EEC ) No 857/84 ( x ) and offered
Bergen ( Netherlands ), represented by Constantin Nikis, of           compensation of FF 543 871,13 pursuant to Regulation
the Brussels Bar, with an address for service in Luxembourg           ( EEC ) No 2187/93 ( 2 ); he challenges the decision of the
at the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim,           Office National Interprofessionnel du Lait ( National Milk
v. Commission of the European Communities ( Agent: Ana                Trades Board , ONILAIT ) refusing to pay him that
Maria Alves Vieira ) — application for the annulment of               compensation on the ground that his specific reference
Notice to Staff No PE/A/637 of the Petten Joint Research              quantity cannot be regarded as being definitive, since he has
Centre ( Netherlands ) of 20 April 1994 showing that the              never personally resumed milk production . In 1992 the
applicant was not included on the list of persons to be               members of the GAEC settled the constitution of a farming
considered for promotion or an additional step in the 1994            partnership but did not however thereby create a new legal
promotion exercise, and for the award of damages of Bfrs              person .
75 000 as compensation for non-material damage and Bfrs
250 000 as compensation for material damage suffered by               The applicant considers that the contested decision is the
the applicant — the Court of First Instance ( Fourth                  result of a mistaken assessment of the facts of the matter by
Chamber ), composed of: K. Lenaerts, President of the                 the competent authority . From the actual nature of the legal
Chamber, R. Schintgen and R. Garcfa-Valdecasas, Judges,               relationships it must be deduced on the one hand that the
H. Jung, Registrar, has made an order on 21 June 1995 , in            only lawful holder of the reference quantity originally
which it :
                                                                      allocated was the EARL BENIN ( the Benin limited liability
I. dismisses the application as inadmissible;                         farm-holding ) to which all assets necessary for production,
                                                                      in particular the right to the lease on the farm, had been
2 . orders the parties to bear their own costs.                       transferred, and on the other that the EARL BENIN had
                                                                      been turned into a farming partnership without creating a
(M Of No C 380, 31 . 12 . 1994 .                                      new legal person.
                                                                      Accordingly, the contested decision is based on a
                                                                      misinterpretation of the concepts of holding and producer
Action brought on 16 March 1995 by Rene Bebin against                 within the meaning of Regulation ( EEC ) No 3950/92 ( 3 ).
       the Commission of the European Communities                     Furthermore, creating the EARL BENIN and turning it into
                                                                      a farming partnership merely constitute 'a necessary
                         ( Case T-84/95 )                             structural adaptation ' within the meaning of Regulation
                           ( 95/C 208/56 )                            ( EEC ) No 804/68 (4 ) which cannot in any way interfere with
                                                                      controlling milk production .
                (Language of the case: Frenchj
                                                                      (>) OJ  No L 90 , 31 . 3 . 1984 , p . 13 .
An action against the Commission of the European                      (2) OJ  No L 196 , 4 . 8 . 1993 , p . 16 .
Communities was brought before the Court of First                     (3) OJ  No L 405 , 31 . 12 . 1992, p. 1 .
Instance of the European Communities on 16 March 1995                 ( ) OJ  English Special Edition 1968(1 ), p. 176 .
by Rene Bebin, joint managing partner in the farming
partnership R. D. M. , resident at Le Rheu ( France ),
represented by Philippe Olive , of the Rennes Bar, with an
address for service in Luxembourg at the Chambers of
Aloyse May, 31 Grand'Rue .
                                                                      Action brought on 17 March 1995 by Bernard Laga against
The applicant claims that the Court should :                                the Commission of the European Communities
— order the Commission of the European Communities to                                            ( Case T-93/95 )
     pay to Rene Bebin, in his capacity as managing partner                                        ( 95/C 208/57 )
     of the farming partnership R. D. M. and for the
     partnership, the sum of five hundred and forty-three
     thousand eight hundred and seventy-one French francs                             (Language of the case: French)
     thirteen centimes ( FF 543 871,13 ) together with interest
     thereon to run from the date of this action and                  An action against the Commission of the European
     capitalization of the interest or its equivalent in ecus ,       Communities was brought before the Court of First


title: Case C-450/08: Order of the President of the First Chamber of the Court of 12 March 2010 (reference for a preliminary ruling from the Landgericht Tübingen — Germany) — FGK Gesellschaft für Antriebsmechanik mbH v Notar Gerhard Schwenkel, in the presence of: Präsidentin des Landgericht Tübingen

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/22

         Order of the President of the First Chamber of the Court of 12 March 2010 (reference for a preliminary ruling from the Landgericht Tübingen — Germany) — FGK Gesellschaft für Antriebsmechanik mbH v Notar Gerhard Schwenkel, in the presence of: Präsidentin des Landgericht Tübingen
   (Case C-450/08) (1)

   2010/C 148/35

      Language of the case: German.

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

      (1)  OJ C 69, 21.03.2009.


title: Judgment of the Court of 4 October 2001 in Case C-517/99 (reference for a preliminary ruling from the Bundespatentgericht): Merz & Krell GmbH & Co (Trade marks — Approximation of laws — Article 3(1)(d) of First Directive 89/104/EEC — Grounds for refusal or invalidity — Trade marks which consist exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade — Need for signs or indications to have become customary to designate the goods or services in respect of which registration of the mark is sought — No need for the signs or indications to be directly descriptive of the properties or characteristics of the goods or services in respect of which registration of the mark is sought)

text:
10.11.2001                EN                      Official Journal of the European Communities                                              C 317/5
                  JUDGMENT OF THE COURT                                            exclusively composed have become customary in the current
                                                                                language or in the bona fide and established practices of the
                                                                                trade to designate the goods or services in respect of which
                          of 4 October 2001                                        registration of that mark is sought. It is immaterial, when that
                                                                                provision is applied, whether the signs or indications in question
                                                                                describe the properties or characteristics of those goods or
in Case C-517/99 (reference for a preliminary ruling from                          services.
  the Bundespatentgericht): Merz & Krell GmbH & Co (1)
                                                                             (1) OJ C 79 of 18.3.2000.
(Trade marks — Approximation of laws — Article 3(1)(d)
of First Directive 89/104/EEC — Grounds for refusal or
invalidity — Trade marks which consist exclusively of signs
or indications which have become customary in the current
language or in the bona fide and established practices of the
trade — Need for signs or indications to have become
customary to designate the goods or services in respect of
which registration of the mark is sought — No need for the
signs or indications to be directly descriptive of the properties                             JUDGMENT OF THE COURT
or characteristics of the goods or services in respect of which
                registration of the mark is sought)
                                                                                (First Chamber)
                            (2001/C 317/08)                                                         of 27 September 2001
                     (Language of the case: German)                          in Case C-16/00 (reference for a preliminary ruling from
                                                                             the tribunal administratif de Lille): Cibo Participations SA
                                                                              v Directeur régional des impôts du Nord-Pas-de-Calais (1)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                          (Sixth VAT Directive — Economic activity — Involvement
                                                                             of a holding company in the management of its subsidiaries
                                                                             — Deduction of VAT charged on services purchased by a
In Case C-517/99: reference to the Court under Article 177 of                holding company in the context of the acquisition of a
the EC Treaty (now Article 234 EC) from the Bundespatentge-                  shareholding in a subsidiary — Receipt of dividends by a
richt (Federal Patents Court) (Germany) for a preliminary ruling                                       holding company)
in the proceedings pending before that court by Merz & Krell
GmbH & Co — on the interpretation of Article 3(1)(d) of First                                           (2001/C 317/09)
Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks (OJ 1989 L 40, p. 1) — the Court, composed of:                                              (Language of the case: French)
G.C. Rodrı́guez Iglesias, President, C. Gulmann, M. Wathelet
and V. Skouris (Presidents of Chambers), J.-.P. Puissochet,
P. Jann, L. Sevón, R. Schintgen, F. Macken (Rapporteur),                    (Provisional translation; the definitive translation will be published
N. Colneric and C.W.A. Timmermans, Judges; D. Ruı́z-Jarabo                                       in the European Court Reports)
Colomer, Advocate General; R. Grass, Registrar, has given a
judgment on 4 October 2001, in which it has ruled:
                                                                             In Case C-16/00: reference to the Court under Article 234 EC
                                                                             by the tribunal administratif de Lille (Administrative Court,
                                                                             Lille) (France) for a preliminary ruling in the proceedings
1.    Article 3(1)(d) of First Council Directive 89/104/EEC of               pending before that court between Cibo Participations SA and
      21 December 1988 to approximate the laws of the Member                 Directeur régional des impôts du Nord-Pas-de-Calais — on the
      States relating to trade marks must be interpreted as only             interpretation of Article 4(1) and (2), Article 13B(d) arid
      precluding registration of a trade mark where the signs or             Article 17(2)(a) and (5) of the Sixth Council Directive
      indications of which the mark is exclusively composed have             77/388/EEC of 17 May 1977 on the harmonisation of the
      become customary in the current language or in the bona fide           laws of the Member States relating to turnover taxes —
      and established practices of the trade to designate the goods or       Common system of value added tax: uniform basis of assess-
      services in respect of which registration of that mark is sought.      ment (OJ 1977 L 145, p. 1) — the Court (First Chamber),
                                                                             composed of: M. Wathelet, President of the Chamber, P. Jann
                                                                             and L. Sevón (Rapporteur), Judges; C. Stix-Hackl, Advocate
2.    Article 3(1)(d) must also be interpreted as meaning that it            General; D. Louterman-Hubeau, Head of Division, for the
      subjects refusal to register a trade mark to the sole condition        Registrar, has given a judgment on 27 September 2001, in
      that the signs or indications of which the trade mark is               which it has ruled: