title: Case T-290/01: Action brought on 28 November 2001 by the Land Brandenburg against the Commission of the European Communities

text:
16.2.2002               EN                    Official Journal of the European Communities                                             C 44/19
The applicant argues that, by imposing the condition in                  Pleas in law and main arguments
Article 3(a) of the decision, the defendant has applied
Article 81(3) EC incorrectly inter alia in that the condition is
not objectively necessary as the use of the collection and               The applicant is challenging a demand for repayment of
sorting facilities is in no way indispensable for the activities of      Community grants totalling EUR 464 329,22 made by the
competitors. Moreover, the condition, which is dispro-                   Commission in the contested debit note.
portionate, entails an encroachment on the specific subject
matter of the applicant’s trade mark and distortion of compe-            The applicant and the Community concluded, within the
tition to the detriment of the applicant.                                framework of the LIFE project (1), a contract relating to the
                                                                         planned ‘Ecological revitalisation of the Brandenburgische
                                                                         Elbtalaue’: preparatory planning and Gnevsdorfer Werder sub-
The applicant argues, further, that, by imposing the condition           project’. The Commission undertook to participate by making
in Article 3(a), the defendant has applied Article 86(2) EC              a contribution of 50 % of the actual cost, but not exceeding
incorrectly, since the applicant, which is entrusted with a              ECU 1,5 million. The project thus promoted, which was
service of general interest, can no longer operate its country-          designed to prepare the reinstatement of the embankment
wide system under economically viable conditions and make                between the municipalities of Lenzen and Wustrow, was
the necessary adjustments between profitable and less profit-            finished in 1998. Shortly before the end of the project, it
able sectors.                                                            became apparent that it would not be possible to reinstate the
                                                                         embankment as extensively as had been planned.
Moreover, by imposing the condition in Article 3(b) the
defendant has applied Article 86(2) EC incorrectly. Finally, the         In February 2001 the Commission gave notice that, in its view,
defendant, by seeking the commitment of 25 September 1998                the applicant, in carrying out the project, had partly deviated
(recital 72), has breached the fundamental right to freedom of           from the contract and that, since the applicant had reduced
access to justice.                                                       the surface area of the project, the Commission was only able
                                                                         to co-finance the work done in the reduced area. By the
                                                                         contested decision, the Commission called upon the applicant
(1) OJ C 100, p. 4.                                                      to repay to it EUR 464 329,33.
(2) Case T-151/01 Der Grüne Punkt — Duales System Deutschland
    AG v Commission OJ 2001 C 289, p. 6.
                                                                         The applicant asserts that the Community is not entitled to
                                                                         demand the repayment at issue by means of a Commission
                                                                         decision; instead, it is obliged to have recourse to law
                                                                         before the national courts. In addition, it maintains that the
                                                                         Commission has failed to comply with its obligation to provide
                                                                         a statement of reasons and has violated the applicant’s rights
                                                                         of defence. Finally, the Commission has infringed the principle
Action brought on 28 November 2001 by the Land                           of proportionality.
Brandenburg against the Commission of the European
                            Communities
                                                                         (1) Council Regulation (EEC) No 1973/92 of 21 May 1992 estab-
                                                                             lishing a financial instrument for the environment (LIFE) (OJ 1992
                          (Case T-290/01)                                    L 206, p. 1), as amended by Regulation (EC) No 1404/96 of
                                                                             15.7.1996 (OJ 1996 L 181, p. 1).
                           (2002/C 44/36)
                   (Language of the case: German)
                                                                         Action brought on 30 November 2001 by Dessauer
An action against the Commission of the European Communi-                Versorgungs- und Verkehrsgesellschaft mbH — DVV —
ties was brought before the Court of First Instance of the               Stadtwerke and four other undertakings against the
European Communities on 28 November 2001 by the Land                               Commission of the European Communities
Brandenburg (Germany), represented by G. Schohe and T. Mas-
ing, lawyers, with an address for service in Luxembourg.                                             (Case T-291/01)
                                                                                (2002/C 44/37)
The applicant claims that the Court should:
—     annul the decision contained in the Commission’s debit                                 (Language of the case: German)
      note No 3240305411 of 13.9.2001 addressed to the
      applicant, relating to project No LIFE94/D/
      A211/00029/BND re Contract No B4-3200/94/730;                      An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
—     order the defendant to pay the costs.                              European Communities on 30 November 2001 by Dessauer


title: Case T-37/16: Action brought on 26 January 2016 — Caffè Nero Group v OHIM (CAFFÈ NERO)

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/42

         Action brought on 26 January 2016 — Caffè Nero Group v OHIM (CAFFÈ NERO)
   (Case T-37/16)
   (2016/C 106/50)
   Language of the case: English

      Parties

      Applicant: Caffè Nero Group Ltd (London, United Kingdom) (represented by: L. Cassidy, Solicitor)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community figurative mark containing the word elements ‘CAFFÈ NERO’ — Application for registration No 13 436 175

      Contested decision: Decision of the First Board of Appeal of OHIM of 6 November 2015 in Case R 954/2015-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               allow Community trade mark application No. 13436175 to proceed to registration;

               —

               waive the objections to the CTM Application under Articles 7(1)(b), (c) and (g) and Article 7(2);

               —

               allows the CTM Application to proceed to acceptance and advertisement for all covered goods and services;

               —

               order OHIM to pay the Applicant’s costs in this matter.

      Pleas in law

               —

               Infringement of Article 7(1)(b), (c) and (g) Regulation No 207/2009;

               —

               Infringement of Article 7(2) of Regulation No 207/2009.


title: Case T-5/12: Judgment of the General Court of 14 July 2014  — BSH v OHIM (Wash & Coffee) (Community trade mark — Application for Community word mark Wash & Coffee — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Ex officio examination of the facts — Article 76(1) of Regulation No 207/2009)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/32

         Judgment of the General Court of 14 July 2014 — BSH v OHIM (Wash & Coffee)
   (Case T-5/12) (1)

   ((Community trade mark - Application for Community word mark Wash & Coffee - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - Ex officio examination of the facts - Article 76(1) of Regulation No 207/2009))
   2014/C 292/38
   Language of the case: German

      Parties

      Applicant: BSH Bosch und Siemens Hausgeräte GmbH (Munich, Germany) (represented by: S. Biagosch, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 7 November 2011 (Case R 992/2011-4) concerning an application for registration of the word sign Wash & Coffee as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders BSH Bosch und Siemens Hausgeräte GmbH to pay the costs.

      (1)  OJ C 65, 3.3.2012.


title: Case T-550/12: Action brought on 21 December 2012 — bachmeier v OHIM (oto-soft)

text:
               23.2.2013

               EN

               Official Journal of the European Union

               C 55/19

         Action brought on 21 December 2012 — bachmeier v OHIM (oto-soft)
   (Case T-550/12)
   2013/C 55/34
   Language of the case: German

      Parties

      Applicant: bachmeier GmbH & Co. KG (Ramsau b. Berchtesgaden, Germany) (represented by D. Donath, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 October 2012 in Case R 1784/2011-1;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: word mark ‘oto-soft’ for goods and services in Classes 1, 7, 8, 10, 41 and 44 — Community trade mark application No 9 836 081

      Decision of the Examiner: rejection of the application for registration

      Decision of the Board of Appeal: dismissal of the appeal

      Pleas in law: infringement of Article 7(1)(b) of Regulation No 207/2009


title: Case C-256/04: Action brought on 15 June 2004 by the Commission of the European Communities against the Hellenic Republic

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/5

         Action brought on 15 June 2004 by the Commission of the European Communities against the Hellenic Republic
   (Case C-256/04)
   (2004/C 239/09)
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 15 June 2004 by the Commission of the European Communities, represented by Arnaud Bordes and Minas Konstantinidis, of its Legal Service.
   The Commission claims that the Court should:

               1)

               declare that, by failing to adopt, and in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/89/EC (1) of 23 October 2001 on Community measures for the control of classical swine fever, the Hellenic Republic has failed to fulfil its obligations under that directive;

               2)

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposition of the directive into national law expired on 31 October 2002.

      (1)  OJ L 316, 1.12.2001, p. 5.


title: Case C-426/12: Judgment of the Court (Fourth Chamber) of 2 October 2014 (request for a preliminary ruling from the Gerechtshof te ’s-Hertogenbosch — Netherlands) — X v Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst (Reference for a preliminary ruling — Directive 2003/96/EC — Taxation of energy products and electricity — Article 2(4)(b) — Dual use of energy products — Concept)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/3

         Judgment of the Court (Fourth Chamber) of 2 October 2014 (request for a preliminary ruling from the Gerechtshof te ’s-Hertogenbosch — Netherlands) — X v Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst
   (Case C-426/12) (1)

   ((Reference for a preliminary ruling - Directive 2003/96/EC - Taxation of energy products and electricity - Article 2(4)(b) - Dual use of energy products - Concept))
   2014/C 421/04
   Language of the case: Dutch

      Referring court

   Gerechtshof te ’s-Hertogenbosch

      Parties to the main proceedings

      Appellant: X

      Respondent: Voorzitter van het managementteam van het onderdeel Belastingdienst/Z van de rijksbelastingdienst

      Operative part of the judgment

               1.

               Article 2(4)(b) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, as amended by Council Directive 2004/74/EC of 29 April 2004, must be interpreted as meaning that the fact of using, firstly, coal as a heating fuel in the sugar production process and, secondly, carbon dioxide generated by the combustion of that energy product to produce chemical fertilizers does not constitute ‘dual use’ of that energy product within the meaning of that provision.
               However, the fact of using, firstly, coal as a heating fuel in the sugar production process and, secondly, carbon dioxide generated by the combustion of that energy product for the purposes of the same production process does constitute such ‘dual use’ if it is established that the sugar production process cannot be completed without using the carbon dioxide generated by the combustion of the coal.

               2.

               A Member State is entitled to apply, in its national law, a more restrictive scope of the concept of ‘dual use’ than that which it has under the second indent of Article 2(4)(b) of Directive 2003/96, as amended by Directive 2004/74, in order to levy a tax on energy products excluded from the scope of that directive.

      (1)  OJ C 399, 22.12.2012.


title: Case C-393/09: Reference for a preliminary ruling from the Nejvyšší správní soud (Supreme Administrative Court) (Czech Republic) lodged on 5 October 2009 — Bezpečnostní softwarová asociace (Security software association) v Ministerstvo kultury ČR (Ministry of Culture of the Czech Republic)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/14

         Reference for a preliminary ruling from the Nejvyšší správní soud (Supreme Administrative Court) (Czech Republic) lodged on 5 October 2009 — Bezpečnostní softwarová asociace (Security software association) v Ministerstvo kultury ČR (Ministry of Culture of the Czech Republic)
   (Case C-393/09)
   2010/C 11/24
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud (Supreme Administrative Court) (Czech Republic)

      Parties to the main proceedings

      Applicant: Bezpečnostní softwarová asociace (Security software association)

      Defendant: Ministerstvo kultury ČR (Ministry of Culture of the Czech Republic)

      Questions referred

               1.

               Should Article 1(2) of Council Directive 91/250/EEC (1) of 14 May 1991 on the legal protection of computer programs be interpreted as meaning that, for the purposes of the copyright protection of a computer program as a work under that directive, the phrase ‘the expression in any form of a computer program’ also includes the graphic user interface of the computer program or part thereof?

               2.

               If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of European Parliament and Council Directive 2001/29/EC (2) of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

      (1)  Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (OJ 1991 L 122, p. 42).

      (2)  Corrigendum to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).


title: Case C-85/10: Reference for a preliminary ruling from the Tribunal Supremo, Spain lodged on 12 February 2010 — Telefónica Móviles España S.A. v Administración del Estado (Secretaría de Estado de Telecomunicaciones)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/17

         Reference for a preliminary ruling from the Tribunal Supremo, Spain lodged on 12 February 2010 — Telefónica Móviles España S.A. v Administración del Estado (Secretaría de Estado de Telecomunicaciones)
   (Case C-85/10)
   2010/C 134/26
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicant: Telefónica Móviles España, S.A.

      Defendant: Administración del Estado (Secretaría de Estado de Telecomunicaciones)

      Questions referred

               1.

               On a proper construction of Article 11(2) of Directive 97/13/EC (1) of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15) and, in particular, the requirements to ensure optimal use of scarce resources and to foster innovative services, is it contrary to those provisions for national legislation to separate the proceeds of a charge on this type of resource (the fee for allocation of public radio frequencies) from the specific purpose for which it was previously expressly earmarked (the funding of research and training in the field of telecommunications and the performance of public service obligations), without specifying any other particular purpose?

               2.

               Is it contrary to Article 11(2) of Directive 97/13/EC and, in particular, the requirements to ensure optimal use of scarce resources and to foster innovative services, for a national provision to increase, significantly and without apparent justification, the fee for a DCS-1800 digital system whilst leaving it unchanged for first generation analogue systems such as TACS?

      (1)  OJ L 117, p. 15.


title: Case F-91/10: Judgment of the Civil Service Tribunal (Third Chamber) of 13 March 2013 — AK v Commission (Civil Service — Officials — First paragraph of Article 43 of the Staff Regulations — Delay in drawing up career development reports — Non-pecuniary damage — Loss of the opportunity to be promoted)

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/31

         Judgment of the Civil Service Tribunal (Third Chamber) of 13 March 2013 — AK v Commission
   (Case F-91/10) (1)

   (Civil Service - Officials - First paragraph of Article 43 of the Staff Regulations - Delay in drawing up career development reports - Non-pecuniary damage - Loss of the opportunity to be promoted)
   2013/C 147/56
   Language of the case: French

      Parties

      Applicant: AK (Esbo, Finland) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

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

      Re:

   Application for annulment of the decision rejecting the applicant’s claim for compensation for the loss suffered by reason of the failure to establish career development reports and for the opening of an administrative inquiry to establish the facts of harassment and application for compensation for the damage suffered.

      Operative part of the judgment

   The Tribunal:

               1.

               Orders the European Commission to pay the sum of EUR 15 000 to AK as compensation for non-pecuniary damage;

               2.

               Orders the European Commission to pay the sum of EUR 4 000 to AK as compensation for the loss of opportunity to be promoted to a grade higher than A 5 or equivalent before 1 March 2008;

               3.

               Dismisses the remainder of the action;

               4.

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

      (1)  OJ C 13, 15.1.2011, p. 40.


title: Case T-209/10: Judgment of the General Court of 5 July 2012 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG) (Community trade mark — Application for Community word mark Deutscher Ring Sachversicherungs-AG — Absolute grounds for refusal — Descriptive character — Distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/17

         Judgment of the General Court of 5 July 2012 — Deutscher Ring v OHIM (Deutscher Ring Sachversicherungs-AG)
   (Case T-209/10) (1)

   (Community trade mark - Application for Community word mark Deutscher Ring Sachversicherungs-AG - Absolute grounds for refusal - Descriptive character - Distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)
   2012/C 243/31
   Language of the case: German

      Parties

      Applicant: Deutscher Ring Sachversicherungs-AG (Hamburg, Germany) (represented by: E. Busse, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, agent)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 11 March 2010 (Case R 1290/2009-1) concerning an application for registration of the word mark Deutscher Ring Sachversicherungs-AG as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 March 2010 (Case R 1290/2009-1);

               2.

               Orders OHIM to pay the costs.

      (1)  OJ C 179, 3.7.2010.


title: Case T-306/08 P: Appeal brought on 1 August 2008 by Kurt-Wolfgang Braun-Neumann against the judgment of the Civil Service Tribunal delivered on 23 May 2008 in Case F-79/07, Braun-Neumann v Parliament

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/22

         Appeal brought on 1 August 2008 by Kurt-Wolfgang Braun-Neumann against the judgment of the Civil Service Tribunal delivered on 23 May 2008 in Case F-79/07, Braun-Neumann v Parliament
   (Case T-306/08 P)
   (2008/C 247/43)
   Language of the case: German
   Parties

      Appellant: Kurt-Wolfgang Braun-Neumann (Lohr am Main, Germany) (represented by: P. Ames, Rechtsanwalt)

      Other party to the proceedings: European Parliament
   Form of order sought by the appellant

               —

               Set aside the order of the European Union Civil Service Tribunal of 23 May 2008 in Case F-79/07;

               —

               rule on the merits and uphold the appellant's original application and therefore order the Parliament to pay him with retroactive effect from 1 August 2004 the other half of the survivor's pension in right of Mrs Mandt in the monthly sum of EUR 1 670,84 plus interest at the rate applied by the European Central Bank on the marginal lending facility, increased by 3 %;

               —

               in the alternative, refer the case back to the Civil Service Tribunal of the European Union for judgment.

         Pleas in law and main arguments
   The appeal is directed against the Civil Service Tribunal's order of 23 May 2008 in Case F-79/07 Braun-Neumann v Parliament, dismissing as inadmissible the action brought by the appellant.
   The appellant submits in support of his appeal that the Civil Service Tribunal erred in law in its interpretation of Article 90(2) of the Staff Regulations of Officials of the European Communities, since its interpretation infringes general principles of Community law. In the appellant's view, the Tribunal's interpretation of a letter as an act adversely affecting it is incorrect. Further, the principle of legal certainty can be satisfied only if the absence of information about available legal remedies is regarded as prejudicial to the determination of when the period for lodging the complaint commenced, since otherwise the litigant's rights would be undermined. Lastly, the Tribunal's interpretation should be regarded as disproportionate in view of the consequences for the appellant.


title: Last publication of the Court of Justice in the Official Journal of the European CommunitiesOJ C 305, 7.12.2002

text:
21.12.2002        EN                  Official Journal of the European Communities                         C 323/43
                                                             III
                                                           (Notices)
                                                     (2002/C 323/71)
              Last publication of the Court of Justice in the Official Journal of the European Communities
           OJ C 305, 7.12.2002
           Past publications
           OJ C 289, 23.11.2002
           OJ C 274, 9.11.2002
           OJ C 261, 26.10.2002
           OJ C 247, 12.10.2002
           OJ C 233, 28.9.2002
           OJ C 219, 14.9.2002
                                                These texts are available on:
                                           EUR-Lex: http://europa.eu.int/eur-lex
                                             CELEX: http://europa.eu.int/celex


title: Case T-89/05: Order of the Court of First Instance of  27 October 2005  — GAEC Salat v Commission (Action for failure to act — Complaint concerning the protected designation of origin  Salers  — Regulation (EC) No 828/2003 — Definition of position by the Commission — Manifest inadmissibility)

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/21

         Order of the Court of First Instance of 27 October 2005 — GAEC Salat v Commission
   (Case T-89/05) (1)

   (Action for failure to act - Complaint concerning the protected designation of origin ‘Salers’ - Regulation (EC) No 828/2003 - Definition of position by the Commission - Manifest inadmissibility)
   (2006/C 10/42)
   Language of the case: French
   Parties

      Applicant: GAEC Salat (Farges, France) (represented by: F. Delpeuch, lawyer)

      Defendant: Commission of the European Communities (represented by: F. Clotuche-Duvieusart, Agent)
   Application for
   declaration of failure to act in that the Commission failed to adopt a decision on the applicant's complaint against the French Republic
   Operative part of the Order

               1.

               The application is dismissed as manifestly inadmissible.

               2.

               The applicant shall pay the costs.

      (1)  OJ C 106 of 30.4.2005


title: Case C-472/13: Judgment of the Court (Second Chamber) of 26 February 2015 (request for a preliminary ruling from the Bayerisches Verwaltungsgericht München — Germany) — Andre Lawrence Shepherd v Bundesrepublik Deutschland (Reference for a preliminary ruling — Area of freedom, security and justice — Asylum — Directive 2004/83/EC — Article 9(2)(b), (c), and (e) — Minimum standards for the qualification and status of third-country nationals or stateless persons as refugees — Conditions for obtaining refugee status — Acts of persecution — Criminal penalties for a member of the armed forces of the United States for refusing to serve in Iraq)

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/7

         Judgment of the Court (Second Chamber) of 26 February 2015 (request for a preliminary ruling from the Bayerisches Verwaltungsgericht München — Germany) — Andre Lawrence Shepherd v Bundesrepublik Deutschland
   (Case C-472/13) (1)

   ((Reference for a preliminary ruling - Area of freedom, security and justice - Asylum - Directive 2004/83/EC - Article 9(2)(b), (c), and (e) - Minimum standards for the qualification and status of third-country nationals or stateless persons as refugees - Conditions for obtaining refugee status - Acts of persecution - Criminal penalties for a member of the armed forces of the United States for refusing to serve in Iraq))
   (2015/C 138/08)
   Language of the case: German

      Referring court

   Bayerisches Verwaltungsgericht München

      Parties to the main proceedings

      Applicant: Andre Lawrence Shepherd

      Defendant: Bundesrepublik Deutschland

      Operative part of the judgment

               1)

               Article 9(2)(e) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:

                           —

                           it covers all military personnel, including logistical or support personnel;

                           —

                           it concerns the situation in which the military service performed would itself include, in a particular conflict, the commission of war crimes, including situations in which the applicant for refugee status would participate only indirectly in the commission of such crimes if it is reasonably likely that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes;

                           —

                           it does not exclusively concern situations in which it is established that war crimes have already been committed or are such as to fall within the scope of the International Criminal Court’s jurisdiction, but also those in which the applicant for refugee status can establish that it is highly likely that such crimes will be committed;

                           —

                           the factual assessment which it is for the national authorities alone to carry out, under the supervision of the courts, in order to determine the situation of the military service concerned, must be based on a body of evidence capable of establishing, in view of all the circumstances of the case, particularly those concerning the relevant facts as they relate to the country of origin at the time of taking a decision on the application and to the individual position and personal circumstances of the applicant, that the situation in question makes it credible that the alleged war crimes would be committed;

                           —

                           the possibility that military intervention was engaged upon pursuant to a mandate of the United Nations Security Council or on the basis of a consensus on the part of the international community or that the State or States conducting the operations prosecute war crimes are circumstances which have to be taken into account in the assessment that must be carried out by the national authorities; and

                           —

                           the refusal to perform military service must constitute the only means by which the applicant for refugee status could avoid participating in the alleged war crimes, and, consequently, if he did not avail himself of a procedure for obtaining conscientious objector status, any protection under Article 9(2)(e) of Directive 2004/83 is excluded, unless that applicant proves that no procedure of that nature would have been available to him in his specific situation.

               2)

               Article 9(2)(b) and (c) of Directive 2004/83 must be interpreted as meaning that, in circumstances such as those in the main proceedings, it does not appear that the measures incurred by a soldier because of his refusal to perform military service, such as the imposition of a prison sentence or discharge from the army, may be considered, having regard to the legitimate exercise, by that State, of its right to maintain an armed force, so disproportionate or discriminatory as to amount to acts of persecution for the purpose of those provisions. It is, however, for the national authorities to ascertain whether that is indeed the case.

      (1)  OJ C 336, 16.11.2013.


title: Case T-275/15: Action brought on 29 May 2015 — Hmicho/Conseil

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/71

         Action brought on 29 May 2015 — Hmicho/Conseil
   (Case T-275/15)
   (2015/C 294/86)
   Language of the case: English

      Parties

      Applicant: Samir Hmicho (Poole, United Kingdom) (represented by: V. Davies, Solicitor, and T. Eicke, QC)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), and/or Council Implementing Decision (CFSP) 2015/383 of 6 March 2015 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015 L 64, p. 41), and/or Council Implementing Decision (CFSP) 2015/784 of 19 May 2015, implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015 L 124, p. 13), in so far as they relate to the Applicant;

               —

               annul Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria (OJ 2012 L 16, p. 1), and/or Council Implementing Regulation (EU) 2015/375 of 6 March 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2015 L 124, p. 1), and/or Council Implementing Regulation (EU) 2015/780 of 19 May 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2015 L 64, p. 10), in so far as they relate to the Applicant;

               —

               annul the decision of the Council, contained in its letter of 20 May 2015, reference SGS15/06024, confirming the designation of the Applicant and ‘altering the information concerning [the Applicant] as set out in Council Implementing Decision and Regulation’;

               —

               order the European Union to compensate the Applicant;

               —

               order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on two pleas in law.
   First plea in law, alleging that there is an absence of legal basis for restrictive measures against him and/or a manifest error of assessment on the basis that there is no rational connection between him and the individuals sought to be targeted by the restrictive measures adopted by the Union namely those who are benefiting from or supporting Syrian regime.
   Second plea in law, alleging that the Council Decisions 2013/255/CFSP, 2015/383 and 2015/784, the Council Regulations No 36/2012, No 2015/375 and no 2015/780, and/or the Decision dated 20 may 2015 amount to a breach of the applicant’s fundamental rights as protected by the EU Charter of Fundamental Rights and/or the European Convention of Human Rights including the applicant’s right to human dignity, right to good administration, including the right of defence, the duty to give reasons and the presumption of innocence, right to an effective remedy and a fair trial, right to respect for his private and family life, freedom to conduct a business, and his right to property.


title: Case C-233/12: Judgment of the Court (Fifth Chamber) of 4 July 2013 (request for a preliminary ruling from the Tribunale di La Spezia — Italy) — Simone Gardella v Istituto nazionale della previdenza sociale (INPS) (Transfer of pension rights acquired in a Member State — Articles 45 TFEU and 48 TFEU — National rules not allowing for the right to transfer to an international organisation having its head office in another Member State the capital value representing the retirement contributions paid to a national social security body — Aggregation rule)

text:
               24.8.2013

               EN

               Official Journal of the European Union

               C 245/4

         Judgment of the Court (Fifth Chamber) of 4 July 2013 (request for a preliminary ruling from the Tribunale di La Spezia — Italy) — Simone Gardella v Istituto nazionale della previdenza sociale (INPS)
   (Case C-233/12) (1)

   (Transfer of pension rights acquired in a Member State - Articles 45 TFEU and 48 TFEU - National rules not allowing for the right to transfer to an international organisation having its head office in another Member State the capital value representing the retirement contributions paid to a national social security body - Aggregation rule)
   2013/C 245/06
   Language of the case: Italian

      Referring court

   Tribunale di La Spezia

      Parties to the main proceedings

      Applicant: Simone Gardella

      Defendant: Istituto nazionale della previdenza sociale (INPS)

      Re:

   Request for a preliminary ruling — Tribunale di La Spezia — Interpretation of Articles 20, 45, 48 and 145 to 147 TFEU and of Article 15 of the Charter of Fundamental Rights of the European Union — Right to transfer a pension to another Member State — Employee of an international organisation having its head office in another Member State — National rules not allowing for the right to transfer to the international organisation in question the retirement contributions paid to a national social security body — Refusal of the social security body in question to conclude an agreement allowing for such a transfer

      Operative part of the judgment

   Articles 45 TFEU and 48 TFEU must be interpreted as not precluding rules of a Member State which do not allow its nationals employed in an international organisation such as the European Patent Office, established in the territory of another Member State, to transfer to the social security scheme of that organisation the capital value representing the pension rights they have acquired previously in the territory of their Member State of origin, where there is no arrangement between that Member State and the international organisation providing for the possibility of such a transfer.
   Where a mechanism for transferring the capital value representing the pension rights acquired previously in a Member State to the pension scheme of a new employer in another Member State cannot apply, Article 45 TFEU must be interpreted as precluding rules of a Member State which do not allow account to be taken of employment periods which a European Union national completed with an international organisation such as the European Patent Office, established in the territory of another Member State, for the purposes of conferring entitlement to an old-age pension.

      (1)  OJ C 217, 21.7.2012.


title: Case C-215/06: Judgment of the Court (Second Chamber) of 3 July 2008 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — No assessment of the environmental effects of projects within the scope of Directive 85/337/EEC — Regularisation after the event)

text:
               11.10.2008

               EN

               Official Journal of the European Union

               C 260/3

         Judgment of the Court (Second Chamber) of 3 July 2008 — Commission of the European Communities v Ireland
   (Case C-215/06) (1)

   (Failure of a Member State to fulfil obligations - No assessment of the environmental effects of projects within the scope of Directive 85/337/EEC - Regularisation after the event)
   (2008/C 260/03)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: D. Recchia and D. Lawunmi, Agents)

      Defendant: Ireland (represented by: D. O'Hagan, Agent, J. Connolly SC and G. Simons BL)
   Re:
   Failure of a Member State to fulfil obligations — Articles 2, 4 and 5 to 10 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40) — Failure to adopt measures to ensure that projects which are within the scope of the directive are made subject to an impact assessment
   Operative part of the judgment
   The Court:

               1)

               Declares that, by failing to adopt all measures necessary to ensure that:

                           —

                           projects which are within the scope of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment either before or after amendment by Council Directive 97/11/EC of 3 March 1997 are, before they are executed in whole or in part, first, considered with regard to the need for an environmental impact assessment and, secondly, where those projects are likely to have significant effects on the environment by virtue of their nature, size or location, that they are made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337, and

                           —

                           development consents given for, and the execution of work on, wind farm developments and associated works at Derrybrien, County Galway, were preceded by an assessment with regard to their environmental effects, in accordance with Articles 5 to 10 of Directive 85/337 either before or after amendment by Directive 97/11, Ireland has failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of that directive;

               2)

               Orders Ireland to pay the costs.

      (1)  OJ C 178, 29.7.2006.


title: Case T-462/09: Action brought on 17 November 2009 –Storck v OHIM — RAI (Radiotelevisione)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/37

         Action brought on 17 November 2009 –Storck v OHIM — RAI (Radiotelevisione)
   (Case T-462/09)
   2010/C 11/68
   Language in which the application was lodged: German

      Parties

      Applicant: August Storck KG (Berlin, Germany) (represented by: I. Rohr, P. Goldenbaum and T. Melchert, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Radiotelevisione italiana SpA (RAI)(Rome, Italy)

      Form of order sought

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 8 September 2009 in Case R 1779/2008 4;

               —

               order OHIM to pay the costs;

               —

               should there be an intervener in the proceedings, order the intervener to bear its own costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: August Storck KG

      Community trade mark concerned: the word mark “Ragolizia” for good in Class 30 (Application No 5 201 835)

      Proprietor of the mark or sign cited in the opposition proceedings: Radiotelevisione italiana SpA (RAI)

      Mark or sign cited in opposition: Community trade mark No 4 771 762“FAVOLIZIA”

      Decision of the Opposition Division: Upheld the opposition and rejected the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), as there is no likelihood of confusion of the opposing trade marks

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


28.3.98              EN                Official Journal of the European Communities                                   C 94/39
Pleas in law and main arguments adduced in support:               The applicant claims that the Court should:
On 29 May 1997 the appointing authority took the                  Ð annul the decision of 6 January 1997 determining
decision to accept that the applicant, a former official at           Brussels as the applicant's place of recruitment and, in
the Commission, who had worked in the Berlaymont                      so far as necessary, annul the decision rejecting her
building in Brussels, suffered 6 % partial permanent                  complaint,
invalidity (PPI). That decision was based on the findings
of a medical committee.                                           Ð grant the applicant, by the same token, the rights to
                                                                      which she is entitled under Article 7 of Annex VII to
                                                                      the Staff Regulations and all the other rights under the
The applicant maintains that the work of the medical                  Staff Regulations flowing from determining Stockholm
committee is vitiated by several irregularities. That                 as her place of recruitment,
committee did not complete its mission and was not given
all the relevant reports.
                                                                  Ð order the defendant to pay the costs.
Moreover, the medical committee's opinion does not                Pleas in law and main arguments adduced in support:
contain a comprehensible link between the medical
considerations and its conclusions, nor does it provide an
                                                                  The applicant, an official of Swedish nationality at the
adequate statement of reasons.
                                                                  Commission since December 1996, contests the
                                                                  defendant's decision to determine Brussels as her place of
By not noting the numerous irregularities committed by            recruitment.
that committee, the appointing authority in its turn
breached the principle of good management sound                   The applicant maintains that throughout 1996 and at the
administration.                                                   time when she took up her duties, she was permanently
                                                                  employed and habitually resident in Sweden. For that
                                                                  reason, the applicant's place of recruitment was and could
                                                                  be no other than Stockholm. In taking the contested
                                                                  decision, the defendant infringed Article 7 of Annex VII to
                                                                  the Staff Regulations.
Action brought on 4 February 1998 by Jannice Kjellberg
   against the Commission of the European Communities
                       (Case T-28/98)
                         (98/C 94/89)                                   Removal from the register of Case T-240/97 (1)
                                                                                (98/C 94/90)
               (Language of the case: French)
                                                                                (Language of the case: French)
An action against the Commission of the European
Communities was brought before the Court of First                 By order of 16 January 1998 the President of the Fifth
Instance of the European Communities on 4 February                Chamber of the Court of First Instance of the European
1998 by Jannice Kjellberg, residing at Brussels,                  Communities has ordered the removal from the register of
represented by Georges Vandersanden and Laure Levi, of            Case T-240/97: Luc Verheyden v. Commission of the
the Brussels Bar, with an address for service in                  European Communities.
Luxembourg at Fiduciaire Myson SARL, 30 rue de Ces-
sange.                                                            (1) OJ C 331, 1.11.1997.


title: Case T-432/15: Action brought on 31 July 2015 — Inditex v OHIM — Ffauf (ZARA)

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/39

         Action brought on 31 July 2015 — Inditex v OHIM — Ffauf (ZARA)
   (Case T-432/15)
   (2015/C 320/57)
   Language in which the application was lodged: English

      Parties

      Applicant: Industria de Diseño Textil, SA (Inditex) (Arteixo, Spain) (represented by: G. Macias Bonilla, P. López Ronda, G. Marín Raigal, E. Armero, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Ffauf SA (Luxembourg, Luxembourg)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community word mark ‘ZARA’ — Community trade mark registration No 732 958

      Procedure before OHIM: Revocation proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 2 June 2015 in Case R 867/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision, in particular regarding the revocation of the CTM registration No 732958 ‘ZARA’ for the challenged goods in classes 29, 30, 31, 32 and 33;

               —

               order OHIM to pay the costs, including the costs those incurred in the proceedings before the Cancellation Division and the Second Board of Appeal of the OHIM.

      Pleas in law

               —

               Infringement of Articles 42(2), 51(1)(a), 52(2) and 85(2) of Regulation No 207/2009;

               —

               Infringement of Rules 22(3) and 22(4) of Regulation No 2868/95.


title: Case C-178/16: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 24 March 2016 — Impresa di Costruzioni Ing. E. Association Mantovani SpA and Guerrato SpA v Provincia autonoma di Bolzano, Agenzia per i procedimenti e la vigilanza in materia di contratti pubblici di lavori servizi e forniture (ACP), Autorità nazionale anticorruzione (ANAC)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/4

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 24 March 2016 — Impresa di Costruzioni Ing. E. Association Mantovani SpA and Guerrato SpA v Provincia autonoma di Bolzano, Agenzia per i procedimenti e la vigilanza in materia di contratti pubblici di lavori servizi e forniture (ACP), Autorità nazionale anticorruzione (ANAC)
   (Case C-178/16)
   (2016/C 232/05)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Appellants: Impresa di Costruzioni Ing. E. Association Mantovani SpA and Guerrato SpA

      Respondents: Provincia autonoma di Bolzano, Agenzia per i procedimenti e la vigilanza in materia di contratti pubblici di lavori servizi e forniture (ACP), Autorità nazionale anticorruzione (ANAC)

      Question referred

   Is it contrary to the correct application of Article 45(2)(c) and (g), and Article 45(3)(a) of Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts … and of the EU law principles of protection of legitimate expectations and legal certainty, equal treatment, proportionality and transparency, of the prohibition of making the procedure more cumbersome, and of the greatest openness of the public procurement market, and the principle of legality and precision of criminal penalties too for national legislation such as Article 38(1)(c) of Legislative Decree No 163 of 12 April 2006 (Code on public works contracts, public service contracts and public supply contracts implementing Directives 2004/17/EC (2) and 2004/18/EC) and subsequent amendments, to extend the legal obligation to make a declaration regarding the absence of convictions by way of final judgment (including judgments regarding a sentence negotiated between the parties delivered at their request), for the crimes set out in that legislation, to office-holders in the tendering undertakings, whose tenure ceased in the year preceding the publication of the tender notice, which amounts to a corresponding ground for exclusion from the call for tender, if the undertaking does not show that there has been complete and genuine dissociation from the conduct which carries criminal sanctions, referring to the discretion of the contracting authority the assessment of whether the dissociation is complete, which allows the contracting authority to introduce effectively the following obligations, for failure to fulfil which the tenderer will be excluded:

               (i)

               obligations to provide information and make declarations relating to criminal activities not yet settled by a final judgment (and, therefore, by definition with an uncertain outcome), not laid down in the Legislative Decree, even in respect of office holders;

               (ii)

               obligations of voluntary dissociation, without describing the kind of conduct which would be exculpatory, the relative timing (including whether it must occur before the criminal conviction becomes final) and the stage of the procedure at which those obligations must be met;

               (iii)

               obligations of sincere cooperation, not clearly defined, except with reference to the general clause of good faith.

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

      (2)  Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1).


title: Appeal brought on 8 December 1998 by International Express Carriers Conference (IECC) against the judgment delivered on 16 September 1998 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in cases T-133/95 and T-204/95 between International Express Carriers Conference (IECC) and the Commission of the European Communities, supported by, in cases T-133/95 and T-204/95, the United Kingdom of Great Britain and Northern Ireland, Deutsche Post AG and The Post Office and, in case T-133/95, La Poste (Case C-450/98 P)

text:
20.2.1999            EN                   Official Journal of the European Communities                                    C 48/15
3. The IEEC submits that the Court of First Instance                 9. The applicant submits that the Court of First Instance
    commits an error of law in stating that the mere                      has committed an error in law and has violated
    assumption that in the future the practices complained                Article 62 of its Rules of Procedure in refusing to take
    of might be amended is sufficient for the Commission                  account of the documents submitted by the applicant
    to ensure that the general objective laid down by                     on the sole ground that they postdate the contested
    Article 3(g) of the EC Treaty is achieved.                            decision.
                                                                     (1) OJ C 189, 22.7.1995, p. 17.
    The Court of First Instance has mistaken the exact
                                                                     (2) Council Regulation No 17/62 of 6 February 1962 (First
    scope of the duty which Articles 85 and 155 of the EC                Regulation implementing Articles 85 and 86 of the Treaty)
    Treaty impose on the Commission in order to ensure a                 (OJ, English Special Edition 1959Ð1962, p. 87).
    proper application of Article 85 in combination with
    Article 3(g) of the Treaty.
4. Violation of the principle whereby the legality of a
    contested decision can only be assessed in the light of
    a legal and factual situation existing at the time of
    said decision.                                                   Appeal brought on 8 December 1998 by International
                                                                     Express Carriers Conference (IECC) against the judgment
                                                                     delivered on 16 September 1998 by the Third Chamber,
5. The Appellant submits that:                                       Extended Composition, of the Court of First Instance of
                                                                     the European Communities in cases T-133/95 (1) and
                                                                     T-204/95 (2) between International Express Carriers
    Ð the judgment contains contradictions in its                    Conference (IECC) and the Commission of the European
        statement of reasons which are equivalent to an              Communities, supported by, in cases T-133/95 and
        abuse of statement of reasons;                               T-204/95, the United Kingdom of Great Britain and
                                                                     Northern Ireland, Deutsche Post AG and The Post Office
    Ð in the event that the application of the concept of                            and, in case T-133/95, La Poste
        Community interest is found by the Court to                                         (Case C-450/98 P)
        necessarily include an assessment of the Automec II
        criteria, the Appellant submits that the Court of                                     (1999/C 48/25)
        First Instance failed to motivate why it considered
        that these criteria were fulfilled;
                                                                     An appeal against the judgment delivered on 16 September
    Ð the Court of First Instance infringes its obligation           1998 by the Third Chamber, Extended Composition, of
        of motivation by failing to state the reasons why            the Court of First Instance of the European Communities
        the new factors on which the applicant relied in             in cases T-133/95 and T-204/95 between International
        order to request the reopening of the oral                   Express Carriers Conference (IECC) and the Commission
        procedure did not contain any element decisive for           of the European Communities, supported by, in cases
        the outcome of the litigation within the meaning             T-133/95 and T-204/95, the United Kingdom of Great
        of Article 62 of the Rules of Procedure of the               Britain and Northern Ireland, Deutsche Post AG and The
        Court of First Instance.                                     Post Office and, in case T-133/95, La Poste, was brought
                                                                     before the Court of Justice of the European Communities
                                                                     on 8 December 1998 by International Express Carriers
6. The IECC contends that the reasoning of the Court of              Conference (IECC), a professional organisation established
    First Instance aiming at setting aside the plea of               under Swiss law, having its registered office in Geneva
    discrimination filed by the applicant is founded on an           (Switzerland), represented by Eric Morgan de Rivery, of
    error of law in its interpretation of the concept of             the Paris Bar, Jacques Derenne, of the Paris and Brussels
    discrimination.                                                  Bars and Monica Cunningham, of the Brussels Bar, with
                                                                     an address for service in Luxembourg at the Chambers of
                                                                     Alex Schmitt, Bonn & Schmitt, 7 Val Ste Croix.
7. The IECC submits that the Court of First Instance, in
    accepting to weigh the violation of the draft REIMS
    Agreement against its claimed procompetitive effect
    outside the context of Article 85(3) of the EC Treaty,           The Appellant claims that the Court should:
    thereby departing from a long and consistent body of
    case-law, has violated the principle of legal certainty.
                                                                     Ð annul the judgment of the Court of First Instance of
                                                                          the European Communities (Third Chamber, Extended
8. The Court of First Instance's refusal to appraise                      Composition) of 16 September 1998 in joined cases
    globally all the relevant and consistent factors raised               T-133/95 and T-204/95, International Express Carriers
    by the applicant and its failure to examine many of                   Conference (IECC) v. Commission of the European
    these factors constitutes an error of law in the                      Communities, in so far as it concerns case T-204/95
    application of the legal concept of misuse of powers.                 and points 78 to 83 of case T-133/95;
 ---pagebreak--- C 48/16                  EN                         Official Journal of the European Communities                                           20.2.1999
Ð itself rule on case T-204/95 pursuant to Article 54 of                          it intended to give a final decision on the second part
    the Statute (EC) of the Court and declare non-existent,                       of the complaint in its entirety, thereby leaving
    or, in the alternative, annul the decision of 14 August                       nothing more for the Commission to decide. In the
    1995 contested in case T-204/95;                                              IECC's view, the encroachment thus made by the
                                                                                Commission on the normal procedural sequence
                                                                                foreseen by Commission Regulation No 99/63/EEC (4)
Ð order the Commission to pay the costs of case                                   is so grave that it should have justified that the letter
    T-204/95 and those of case T-133/95 in case it should                         of 12 April 1995 and subsequent decision of 14 August
    be annulled in part, as well as the costs of the present                      1995 be declared non-existent.
    proceedings;
                                                                               4. E r r o r o f l a w i n t h e a p p l i c a t i o n o f t h e l e g a l
Ð order the interveners before the Court of First Instance                        concept of Community interest
    to pay the applicant's costs before the Court of First
    Instance relating to the intervention in these
    proceedings;                                                                  Ð In considering that the Commission was entitled to
                                                                                rely on the concept of Community interest without
                                                                                expressly referring to this concept in its decision
Ð alternatively, in the event that it does not decide itself                           the Court of First Instance committed an error of
    on the case, reserve the costs and refer the matter to a                           law;
    Chamber of the Court of First Instance composed of
    judges other than those who composed the Chamber
    which ruled on joined cases T-133/95 and T-204/95.                            Ð alternatively, the Court of First Instance violated
                                                                                the concept of Community interest and its
                                                                                obligation to review the application of this concept
                                                                                in that it did not examine whether the criteria of
Pleas in law and main arguments adduced in support
                                                                                Community interest were in fact met in the present
                                                                                case;
1. V i o l a t i o n o f A r t i c l e 3 ( 2 ) ( b ) o f
    R e g u l a t i o n 1 7 ( 3)                                                  Ð alternatively, in the event that the Court of First
                                                                                Instance can be regarded as having examined the
                                                                                criteria of Community interest, it violated the
    The Court of First Instance violated the concept of                                concept of Community interest by failing to
    legitimate interest of Article 3(2)(b) of Regulation 17                            properly examine whether the rights of the
    by restricting that concept unduly in refusing to                                  complainant can be adequately safeguarded by the
    recognise any legitimate interest to the IECC in all                               national courts and therefore whether the
    cases where the interceptions of remail took place                                 Commission could be justified in invoking the
    inasmuch as it would necessarily affect the business of                            concept of Community interest.
    the members of the IECC.
                                                                               5. V i o l a t i o n o f A r t i c l e s 8 5 a n d 8 6 o f t h e E C
2. M i s r e a d i n g ( D e n a t u r a t i o n ) o f t h e                      Tr e a t y r e a d i n c o n j u n c t i o n w i t h A r t i c l e s
    Decision of 6 April 1995                                                      3 ( G ) , 8 9 a n d 1 5 5 o f t h e E C Tr e a t y
    The IECC submits that the Court of First Instance
                                                                                The Appellant submits that the Court of First Instance
    distorted the meaning, as it results from the mere
                                                                                committed an error of law in considering, on the basis
    reading thereof, of four documents submitted to it, i.e.
                                                                                of Articles 3(G) and 89 of the EC Treaty, taken
    the Commission's letter of 17 February 1995, the
                                                                                together with Regulation 17/62, that the Commission
    applicant's letter of 22 February 1995, the contested
                                                                                could reject the applicant's complaint on the sole basis
    decision in case T-133/95, i.e. the letter of 6 April
                                                                                that the practices complained of have allegedly ceased.
    1995, and the statement in defence of the
    Commission.
                                                                               6. C o n t r a d i c t o r y    and        insufficient          legal
3. V i o l a t i o n     of      the       legal         concept      of          reasoning (failure to motivate)
    non-existent act under Community law
                                                                                The Appellant submits that the Court of First Instance
    This plea concerns the question of the Article 6 letter                       did not correctly motivate its judgment on three points
    of 12 April 1995 and subsequent decision of 14 August                         and that certain propositions made by the Court of
    1995 which was issued after the decision of 6 April                           First Instance are in contradiction with its reasoning in
    1995 had been adopted which itself had declared that                          other parts of the case.
 ---pagebreak--- 20.2.1999              EN                  Official Journal of the European Communities                                  C 48/17
7. V i o l a t i o n o f t h e    legal   concept      of   the       3. What conditions must be satisfied for the issuer of an
     misuse of powers                                                     invoice to be acting in good faith?
     The Apellant further submits that the Court of First
     Instance made an error of law in applying the concept
     of misuse of powers in that:
                                                                      Reference for a preliminary ruling from the Pretura
                                                                      Circondariale di Brescia, by order of 24 November 1998,
     Ð it refused to appraise globally all the relevant and                  in the case of Centrosteel Srl v. Adipol GmbH
         consistent factors raised by the applicant and even
         omitted to examine an important number thereof;                                     (Case C-456/98)
                                                                                (1999/C 48/27)
     Ð it illegally defined the type of facts which may
         constitute the objective, relevant and consistent            Reference has been made to the Court of Justice of the
         factors of a misuse of powers.                               European Communities by order of the Pretura
                                                                      Circondariale di Brescia (District Magistrate's Court,
                                                                      Brescia) of 24 November 1998, which was received at the
(1) OJ C 229, 2.9.1995, p. 22.
(2) OJ C 351, 30.12.1995, p. 17.
                                                                      Court Registry on 14 December 1998, for a preliminary
(3) Council Regulation No 17/62 of 6 February 1962 (First             ruling in the case of Centrosteel Srl v. Adipol GmbH on
    Regulation implementing Articles 85 and 86 of the Treaty)         the following questions:
    (OJ, English Special Edition 1959Ð1962, p. 87).
(4) Commission Regulation No 99/63/EEC of 25 July 1963 on the         1. What is the interpretation of Articles 52, 53, 54, 55,
    hearings provided for in Article 19(1) and (2) of Regulation          56, 57 and 58 of the EC Treaty; in particular, do
    No 17 (OJ, English Special Edition 1963Ð1964, p. 47).
                                                                          Articles 2 and 9 of Italian Law No 205 of 1985, under
                                                                          which entry in a register is compulsory for any person
                                                                          acting as an agent and an agency contract concluded
                                                                          by a person not entered on that register is void,
                                                                          constitute a restriction on the freedom of
                                                                          establishment?
Reference for a preliminary ruling by the Bundesfinanzhof             2. Do the provisions of the Treaty on freedom of
by order of that court of 15 October 1998 in the case of                  establishment contained in Articles 52 to 58 preclude
Schmeink & Cofreth AG & Co. KG against Finanzamt                          national legislation which makes the validity of an
 Borken and Manfred Strobel against Finanzamt Esslingen                   agency contract subject to entry of the commercial
                         (Case C-454/98)                                  agent in an appropriate register?
                          (1999/C 48/26)                              3. Do the provisions on freedom to provide services
                                                                          contained in Articles 59 to 66 preclude national
                                                                          legislation which makes the validity of an agency
Reference has been made to the Court of Justice of the                    contract subject to the requirement of entry of the
European Communities by order of the Bundesfinanzhof                      commercial agent in an appropriate register?
(Federal Finance Court) of 15 October 1998 received at
the Court Registry on 11 December 1998, for a
preliminary ruling in the cases of Schmeink & Cofreth AG
& Co. KG against Finanzamt Borken and Manfred
Strobel against Finanzamt Esslingen on the following
questions:                                                            Appeal brought on 16 December 1998 by Industrie des
                                                                      Poudres SpheÂriques against the judgment delivered on
                                                                      15 October 1998 by the Fifth Chamber, Extended
1. Does Community law require that provision be made                  Composition, of the Court of First Instance of the
     to allow rectification of an improperly invoiced tax as          European Communities in Case T-2/95 between Industrie
     part of the procedure for determining the tax or is it           des Poudres SpheÂriques and the Council of the European
     sufficient for the Member States to permit rectification         Union, supported by the Commission of the European
     only in a later procedure for determining whether                Communities, PeÂchiney EÂlectromeÂtallurgie and the
     payment of the tax is equitable (on objective'                  Chambre Syndicale de l'EÂlectromeÂtallurgie et de
     grounds)?                                                                                l'EÂlectrochimie
                                                                                (Case C-458/98 P)
                                                                                (1999/C 48/28)
2. Is it an imperative prerequisite for rectifying an
     improperly invoiced tax that the issuer of the invoice
     should demonstrate good faith or are there other                 An appeal against the judgment delivered on 15 October
     circumstances in which an invoice may be rectified               1998 by the Fifth Chamber, Extended Composition, of the
     (and, if so, what are those circumstances)?                      Court of First Instance of the European Communities in


title: Judgment of the Court of 15 May 2001 in Case C-34/99 (reference for a preliminary ruling from the House of Lords): Commissioners of Customs and Excise v Primback Ltd (Value added tax — Sixth Directive 77/388/EEC — Taxable amount — Retail credit sales of goods — Credit granted by a person other than the seller and at no cost to the customer — Payment by finance company to the seller of less than the price of the goods)

text:
14.7.2001                 EN                     Official Journal of the European Communities                                             C 200/17
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Fourth Chamber)
                                                                                of 15 May 2001
                            of 10 May 2001
in Case C-285/00: Commission of the European Communi-                       in Case C-34/99 (reference for a preliminary ruling from
                       ties v French Republic (1)                           the House of Lords): Commissioners of Customs and
                                                                                Excise v Primback Ltd (1)
(Failure by a Member State to fulfil its obligations — Failure
to transpose Directive 89/48/EEC within the prescribed
period — Recognition of diplomas giving access to the
                      profession of psychologist)                           (Value added tax — Sixth Directive 77/388/EEC — Taxable
                                                                            amount — Retail credit sales of goods — Credit granted by
                                                                            a person other than the seller and at no cost to the customer
                            (2001/C 200/29)                                 — Payment by finance company to the seller of less than the
                                                                                price of the goods)
                      (Language of the case: French)
                                                                                (2001/C 200/30)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
In Case C-285/00: Commission of the European Communities                                         (Language of the case: English)
(Agent: B. Mongin) v French Republic (Agents: J.-F. Dobelle
and C. Bergeot-Nunes) — application for a declaration that, by
its failure to enact legislation specifically concerning the
recognition of diplomas giving access to the profession of                  In Case C-34/99: reference to the Court under Article 177 of
psychologist for the purpose of implementing, as regards that               the EC Treaty (now Article 234 EC) from the House of Lords
profession, Council Directive 89/48/EEC of 21 December                      (United Kingdom) for a preliminary ruling in the proceedings
1988 on a general system for the recognition of higher-                     pending before that court between Commissioners of Customs
education diplomas awarded on completion of professional                    and Excise and Primback Ltd — on the interpretation of
education and training of at least three years’ duration (OJ                Article 11A(1)(a) of Sixth Council Directive 77/388/EEC of
1989 L 19, p. 16), the French Republic has failed to fulfil its             17 May 1977 on the harmonisation of the laws of the Member
obligations under that directive — the Court (Fourth Chamber),              States relating to turnover taxes — Common system of value
composed of: A. La Pergola, President of the Chamber,                       added tax: uniform basis of assessment (OJ 1977 L 145, p. 1)
D.A.O. Edward (Rapporteur) and C.W.A. Timmermans, Judges;                   — the Court, composed of: G.C. Rodrı́guez Iglesias, President,
D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, for the                 C. Gulmann, A. La Pergola, V. Skouris (Presidents of Cham-
Registrar, has given a judgment on 10 May 2001, in which it:                bers), D.A.O. Edward, J.-P. Puissochet, L. Sevón, R. Schintgen
                                                                            (Rapporteur) and N. Colneric, Judges; S. Alber, Advocate
1.    Declares that, by its failure to enact legislation specifically       General; H. von Holstein, Deputy Registrar, for the Registrar,
      concerning the recognition of diplomas giving access to the           has given a judgment on 15 May 2001, in which it has ruled:
      profession of psychologist for the purpose of implementing, as
      regards that profession, Council Directive 89/48JEEC of
      21 December 1988 on a general system for the recognition of           On a proper construction of Article 11A(1)(a) of Sixth Council
      higher-education diplomas awarded on completion of pro-               Directive 77/388/EEC of 17 May 1977 on the harmonisation of
      fessional education and training of at least three years’ duration,   the laws of the Member States relating to turnover taxes — Common
      the French Republic has failed to fulfil its obligations under        system of value added tax: uniform basis of assessment, where a
      that directive;                                                       supply of goods for consideration has the following features:
2.    Orders the French Republic to pay the costs.
                                                                            —     a retail trader sells goods in return for payment of the advertised
                                                                                price which he invoices to the purchaser and which does not
                                                                                vary according to whether the customer pays in cash or by way
                                                                                of credit;
(1) OJ C 259 of 9.9.2000.
                                                                            —     should the purchaser so request, the acquisition of the goods is
                                                                                financed by the provision to him of interest-free credit by a
                                                                                finance company distinct from the seller;
 ---pagebreak--- C 200/18                 EN                      Official Journal of the European Communities                                       14.7.2001
—     the finance company gives an undertaking to the purchaser that        1.   Dismisses the appeal;
      it will pay to the seller on the purchaser’s behalf the sales price
      advertised and invoiced by the seller;                                2.   Orders International Express Carriers Conference (IECC) to pay
                                                                                the costs.
—     the finance company in fact pays to the seller, pursuant to
      agreements concluded with the seller but of which the purchaser
      is unaware, a sum less than the price advertised and invoiced;        (1) OJ C 48 of 20.2.1999.
      and
—     the purchaser repays to the finance company a sum equal to the
      price advertised and invoiced,
the taxable amount for purposes of calculating the value added tax
payable on that sale consists of the full amount payable by the
purchaser.
                                                                                JUDGMENT OF THE COURT
(1) OJ C 100 of 10.4.1999.                                                                          of 17 May 2001
                                                                            in Case C-450/98 P: International Express Carriers Confer-
                                                                            ence (IECC) v Commission of the European Communities
                                                                                and Others (1)
                                                                            (Appeal — Decision rejecting complaint — Abuse of a
                                                                                dominant position — Postal services — Remail)
                  JUDGMENT OF THE COURT
                                                                                (2001/C 200/32)
                           of 17 May 2001
                                                                                (Language of the case: English)
in Case C-449/98 P: International Express Carriers Confer-
ence (IECC) v Commission of the European Communities                        In Case C-450/98 P: International Express Carriers Conference
                             and Others (1)                                 (IECC), established in Geneva (Switzerland), represented by
                                                                            E. Morgan de Rivery, J. Derenne and M. Cunningham, avocats,
(Appeal — Decision rejecting complaint — Competition —                      appeal against the judgment of the Court of First Instance
                     Postal services — Remail)                              of the European Communities (Third Chamber, Extended
                                                                            Composition) of 16 September 1998 in Joined Cases T-133/95
                                                                            and T-204/95 IECC v Comission [1998] ECR II-3645, seeking
                           (2001/C 200/31)                                  to have that judgment set aside in so far as it relates to Case T-
                                                                            204/95 and paragraphs 78 to 83 of Case T-133/95, the other
                                                                            parties to the proceedings being: Commission of the European
                    (Language of the case: English)                         Communities (Agent: K. Wiedner, assisted by N. Forwood),
                                                                            Deutsche Post AG (avocat: by D. Schroeder), United Kingdom
                                                                            of Great Britain and Northern Ireland, The Post Office and La
In Case C-449/98 P: International Express Carriers Conference               Poste, the Court, composed of: G.C. Rodrı́guez Iglesias,
(IECC), established in Geneva (Switzerland), represented by                 President, A. La Pergola and M. Wathelet (Presidents of
E. Morgan de Rivery, J. Derenne and M. Cunningham, avocats                  Chambers), J.-P. Puissochet, P. Jann, L. Sevón, N. Colneric,
— appeal against the judgment of the Court of First Instance                S. von Bahr and C.W.A. Timmermans (Rapporteur), Judges;
of the European Communities (Third Chamber, Extended                        D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
Composition) of 16 September 1998 in Case T-110/95 IECC                     Deputy Registrar, for the Registrar, has given a judgment on
v Commission [1998] ECR II-3605, seeking to have that                       17 May 2001, in which it:
judgment set aside, the other parties to the proceedings
being Commission of the European Communities, (Agents:                      1.   Dismisses the appeal;
K. Wiedner, assisted by N. Forwood), La Poste (avocat:
H. Lehman), United Kingdom of Great Britain and Northern                    2.   Orders International Express Carriers Conference (IECC) to pay
Ireland, and The Post Office — the Court, composed of:                           the costs.
G.C. Rodrı́guez Iglesias, President, A. La Pergola and M. Wathe-
let (Presidents of Chambers), J.-P. Puissochet, P. Jann, L. Sevón,
N. Colneric, S. von Bahr and C.W.A. Timmermans (Rapporte-                   (1) OJ C 48 of 20.2.1999.
ur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; D. Lou-
terman-Hubeau, Head of Division, for the Registrar, has given
a judgment on 17 May 2001, in which it:


title: Case T-542/13: Order of the General Court of 25 March 2014 — Netherlands v Commission

text:
               19.5.2014

               EN

               Official Journal of the European Union

               C 151/35

         Order of the General Court of 25 March 2014 — Netherlands v Commission
   (Case T-542/13) (1)

   2014/C 151/45
   Language of the case: Dutch
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 344, 23.11.13.


title: Case T-231/08: Action brought on 17 June 2008 — Asenbaum Fine Arts v OHIM (WIENER WERKSTÄTTE)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/49

         Action brought on 17 June 2008 — Asenbaum Fine Arts v OHIM (WIENER WERKSTÄTTE)
   (Case T-231/08)
   (2008/C 223/85)
   Language of the case: German
   Parties

      Applicant: Asenbaum Fine Arts Ltd (London, United Kingdom) (represented by: P. Vögel, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 10 April 2008 (R 1571/2006-4) so as to allow the applicant's appeal of 29 November 2006 in its entirety;
               In the alternative annul the contested decision and refer the matter back to the Office for Harmonisation in the Internal Market to complete the proceedings;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings, including the costs of the appeal proceedings.

         Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘WIENER WERKSTÄTTE’ for goods in Class 14 (Application No 4 207 783).

      Decision of the Examiner: Application rejected.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) in that the trade mark applied for is neither descriptive nor devoid of distinctive character.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case F-27/16: Action brought on 25 May 2016 — ZZ v EASA

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/45

         Action brought on 25 May 2016 — ZZ v EASA
   (Case F-27/16)
   (2016/C 296/56)
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: S. Rodrigues and C. Bernard-Glanz. lawyers)

      Defendant: European Aviation Safety Agency (EASA)

      Subject-matter and description of the proceedings

   Annulment of the decision transferring the applicant to a new position in the interests of the service.

      Form of order sought

               —

               Annul the contested decision and, so far as necessary, the decision rejecting the complaint;

               —

               order the defendant to pay the costs.


title: Case F-41/09: Action brought on 7 April 2009 — Roumimper v Europol

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/63

         Action brought on 7 April 2009 — Roumimper v Europol
   (Case F-41/09)
   2009/C 180/115
   Language of the case: Dutch

      Parties

      Applicant: Jaques Pierre Roumimper (Zoetermeer, Netherlands) (represented by: P. de Casparis and D. Dane, lawyers.)

      Defendant: European Police Office (Europol)

      Subject-matter and description of the proceedings

   Annulment of the decision of 12 June 2008 informing the applicant that it was not possible to offer him a permanent post, and also the decision of 7 January 2009 rejecting the complaint brought against the former decision.

      Form of order sought

               —

               Annul the decision of 12 June 2008 whereby the defendant informed the applicant that it could not offer him permanent employment and also the decision made on his complaint on 7 January 2009 that the grounds of complaint brought by the applicant against the decision of 12 June 2008 were unfounded;

               —

               Order Europol to pay the costs.


title: Case C-27/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 25 January 2008 — BIOS Naturprodukte GmbH v Saarland

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/13

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 25 January 2008 — BIOS Naturprodukte GmbH v Saarland
   (Case C-27/08)
   (2008/C 92/24)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicant: BIOS Naturprodukte GmbH

      Defendant: Saarland
   Question referred
   Is the definition of medicinal product in Article 1(2) of Directive 2001/83/EC (1) in the version in Directive 2004/27/EC (2) to be interpreted to the effect that a product intended for human consumption and described as a food supplement is a functional medicinal product if it contains substances which pose a risk to health in the low dose contained in the product when the recommended intake printed on the packaging is observed, without being capable of producing therapeutic effects, but have therapeutic effects in high doses?

      (1)  OJ L 311, p. 67.

      (2)  OJ L 136, p. 34.


title: Case T-381/09: Order of the General Court of 24 November 2010 — RWE Transgas v Commission (Action for annulment — Internal market in natural gas — Article 22 of Directive 2003/55/EC — Letter from the Commission requesting a regulatory authority to amend its decision regarding the grant of an exemption — Act not open to challenge — Inadmissibility)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/39

         Order of the General Court of 24 November 2010 — RWE Transgas v Commission
   (Case T-381/09) (1)

   (Action for annulment - Internal market in natural gas - Article 22 of Directive 2003/55/EC - Letter from the Commission requesting a regulatory authority to amend its decision regarding the grant of an exemption - Act not open to challenge - Inadmissibility)
   2011/C 30/72
   Language of the case: German

      Parties

      Applicant: RWE Transgas a.s. (Prague, Czech Republic) (represented: initially by W. Deselaers, D. Seeliger and S. Einhaus, then by W. Deselaers, D. Seeliger, S. Einhaus and T. Weck, lawyers)

      Defendant: European Commission (represented by: G. Wilms, O. Beynet and B. Schima, agents)

      Intervener in support of the applicant: Czech Republic (represented by: M. Smolek, agent)

      Re:

   Action for annulment of the decision allegedly contained in the Commission’s letter of 12 June 2009 addressed to the Bundesnetzagentur (German Regulatory Authority) on the basis of Article 22(4) of Directive 2003/55/EC pf the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).

      Operative part of the order

               1.

               The action is dismissed.

               2.

               RWE Transgas a.s. shall bear its own costs and pay those incurred by the European Commission.

               3.

               The Czech Republic shall bear its own costs.

      (1)  OJ C 297, 5.12.2009.