title: Case T-132/14: Action brought on 24 February 2014  — Albis Plastic v OHIM — IQAP Masterbatch Group (ALCOLOR)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/53

         Action brought on 24 February 2014 — Albis Plastic v OHIM — IQAP Masterbatch Group (ALCOLOR)
   (Case T-132/14)
   2014/C 135/69
   Language in which the application was lodged: German

      Parties

      Applicant: Albis Plastic GmbH (Hamburg, Germany) (represented by: C. Klawitter, lawyer)

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

      Other party to the proceedings before the Board of Appeal: IQAP Masterbatch Group, SL (Masíes de Roda, Spain)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 December 2013 in Case R 1015/2012-2;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘ALCOLOR’ for goods and services in Class 1 — Community trade mark No 3 073 889

      Proprietor of the Community trade mark: Applicant

      Applicant for the declaration of invalidity of the Community trade mark: IQAP Masterbatch Group, SL

      Grounds for the application for a declaration of invalidity: National figurative mark containing the word element ‘ALCOLOR’ for goods in Class 2, and company name ‘ALCOLOR’ used in Spain the course of trade for ‘dyestuffs’

      Decision of the Cancellation Division: Rejection of the application for a declaration of invalidity

      Decision of the Board of Appeal: Allowed the appeal and remitted the case to the Cancellation Division

      Pleas in law: Infringement of Article 53(1) of Regulation No 207/2009 and its implementing provisions


title: Case C-338/02: Reference for a preliminary ruling by the Högsta Domstolen by order of that Court of 10 September 2002 in the case of Fixtures Marketing Limited against AB Svenska Spel

text:
9.11.2002                EN                   Official Journal of the European Communities                                       C 274/23
Action brought on 20 September 2002 by the Com-                          1.   In assessing whether a database is the result of a
mission of the European Communities against the Italian                       ‘substantial investment’ within the meaning of Article 7(1)
                              Republic                                        of Council Directive 96/9/EC (1) of 11 March 1996 on
                                                                              the legal protection of databases (the ‘database directive’)
                          (Case C-337/02)                                     can the maker of a database be credited with an invest-
                                                                              ment primarily intended to create something which is
                                                                              independent of the database and which thus does not
                          (2002/C 274/39)
                                                                              merely concern the ‘obtaining, verification or presen-
                                                                              tation’ of the contents of the database? If so, does it make
                                                                              any difference if the investment or part of it nevertheless
An action against the Italian Republic was brought before the                 constitutes a prerequisite for the database?
Court of Justice of the European Communities on 20 Septem-
ber 2002 by the Commission of the European Communities,
represented by Antonio Aresu and Knut Simonsson, acting as
Agents.
                                                                              AB Svenska Spel contends in this case that Fixtures
                                                                              Marketing Limited’s investment is primarily concerned
The applicant claims that the Court should:                                   with the drawing up of the fixture lists for the English
                                                                              and Scottish football leagues and not with the databases
—     Declare that, by maintaining in force Article 3(3) of Law               where the data are stored. Fixtures Marketing Limited, for
      No 10 of 10 July 1991, which lays down the conditions                   its part, argues that it is not possible to distinguish the
      to which are subject those maritime companies having                    work for the purpose of planning the game and that for
      their main offices in another Member State if they are to               the purpose of drawing up the fixture lists.
      be treated identically to Italian maritime companies so far
      as concerns participating in the Italian share of the
      conference liner traffic, the Italian Republic has failed to
      fulfil its obligations under Articles 43 and 48 EC;
—     Order the Italian Republic to pay the costs.
                                                                         2.   Does a database enjoy protection under the database
                                                                              directive only in respect of activities covered by the
                                                                              objective of the database maker in creating the database?
Pleas in law and main arguments
Article 3(3) of Italian Law No 210 of 1991 lays down, for
those maritime companies established in other Member States
                                                                              AB Svenska Spel contends that Fixtures Marketing Lim-
which intend to exercise their right to establish themselves in
                                                                              ited’s creation of the database is not intended to facilitate
Italy and participate in conference liner traffic from that
State, additional conditions which such companies are not                     football pools and other gaming activities but that
                                                                              such activities are a by-product of the purpose of the
necessarily required to fulfil in the Member State of origin. The
Commission concludes that that amounts to an infringement                     investment. Fixtures Marketing Limited, for its part,
                                                                              argues that the purpose of the investment is irrelevant
of Article 43 EC in conjunction with Article 48 EC.
                                                                              and disputes that the possibility of exploiting the database
                                                                              for football pools constitutes a by-product of the actual
                                                                              purpose of the investment in the database.
Reference for a preliminary ruling by the Högsta Dom-
stolen by order of that Court of 10 September 2002 in
the case of Fixtures Marketing Limited against AB Svenska                3.   What do the terms ‘a substantial part, evaluated qualitat-
                                Spel                                          ively and/or quantitatively, of the contents of that data-
                                                                              base’ in Article 7(1) mean?
                          (Case C-338/02)
                          (2002/C 274/40)
Reference has been made to the Court of Justice of the                   4.   Is the directive’s protection under Article 7(1) and
European Communities by order of the Högsta Domstolen                         Article 7(5) against ‘extraction and/or re-utilisation’ of the
(Supreme Court) of 10 September 2002, received at the Court                   contents of a database limited to such use as entails a
Registry on 23 September 2002, for a preliminary ruling in                    direct exploitation of the base or does the protection also
the case of Fixtures Marketing Limited against AB Svenska Spel                cover use in cases where the contents are available from
on the following questions:                                                   another source (second-hand) or are generally accessible?
 ---pagebreak--- C 274/24               EN                     Official Journal of the European Communities                                   9.11.2002
      AB Svenska Spel contends that the company had no                           Removal from the register of Case C-413/00 ( 1)
      knowledge of the databases and obtained the data for the
      pools coupons from other sources and that what                                              (2002/C 274/42)
      appeared on the pools coupons was not the whole or a
      substantial part of the fixture lists. Fixtures Marketing
      Limited, for its part, argues that it was irrelevant to the        By order of 2 July 2002 the President of the First Chamber of
      assessment whether the data were obtained from sources             the Court of Justice of the European Communities ordered the
      other than the fixture lists since the data originally came        removal from the register of Case C-413/00: Commission of
      from them.                                                         the European Communities v Kingdom of the Netherlands.
5.    How should the terms ‘normal exploitation’ and
      ‘unreasonably prejudice’ in Article 7(5) be interpreted?           (1 ) OJ C 28, 27.1.2001.
      Fixtures Marketing Limited argues that AB Svenska Spel
      has repeatedly and systematically extracted and re-utilised
      the contents of the database for commercial purposes, in
      a manner which conflicts with a normal exploitation of
      that database and thereby unreasonably prejudiced the                      Removal from the register of Case C-303/01 ( 1)
      football leagues. AB Svenska Spel, for its part, contended
      that it is wrong to look at several pools coupons together                                  (2002/C 274/43)
      in making an assessment and disputes that their use is in
      breach of Article 7(5) of the directive.
                                                                         By order of 31 July 2002 the President of the Court of Justice
( 1) OJ L 77, 27.3.1996, p. 20.                                          of the European Communities ordered the removal from the
                                                                         register of Case C-303/01: Alexandros K. Kefalas and Others v
                                                                         Elliniko Dimosio (the Greek State) and Others.
                                                                         (1 ) OJ C 56, 31.7.2002.
Removal from the register of Cases C-427/99 P ( 1) and
                           C-371/00 P (2)
                         (2002/C 274/41)
                                                                                Removal from the register of Case C-44/02 (1)
By order of 1st August 2002 the President of the Court of                                         (2002/C 274/44)
Justice of the European Communities ordered the removal
from the register of Cases C-427/99 P and C-371/00 P: RJB
Mining plc v Commission of the European Communities.                     By order of 2 July 2002 the President of the Court of Justice of
                                                                         the European Communities ordered the removal from the
                                                                         register of Case C-44/02: Commission of the European Com-
( 1) OJ C 20, 22.1.2000.                                                 munities v Portuguese Republic.
( 2) OJ C 355, 25.11.2000.
                                                                         (1 ) OJ C 97, 20.4.2002.


title: Case T-407/14: Action brought on 10 June 2014  — Gres La Sagra v Commission

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/53

         Action brought on 10 June 2014 — Gres La Sagra v Commission
   (Case T-407/14)
   2014/C 253/69
   Language of the case: Spanish

      Parties

      Applicant: Gres La Sagra, SL (Alameda de la Sagra, Toledo, Spain) (represented by: A. López Gómez, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               in the alternative, annul the decision categorising the measures which together constitute the ‘Spanish Tax Lease System’ (‘STLS’) as new State aid that is incompatible with the internal market;

               —

               in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as the only beneficiaries of the alleged aid and, consequently, as solely liable for its recovery;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it orders recovery of the alleged aid in breach of general principles of EU law;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it makes a determination as to the lawfulness of private contracts between the investors and other entities; and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The pleas in law and main arguments are those raised in Case T-401/14 Duro Felguera SA v Commission.


title: Case T-40/14: Action brought on 10 January 2014 — Electrabel and Dunamenti Erőmű v Commission

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/45

         Action brought on 10 January 2014 — Electrabel and Dunamenti Erőmű v Commission
   (Case T-40/14)
   2014/C 112/58
   Language of the case: English

      Parties

      Applicants: Electrabel (Brussels, Belgium) and Dunamenti Erőmű Zrt. (Százhalombatta, Hungary) (represented by: J. Philippe, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Declare the action admissible;

               —

               Find that the European Commission has incurred non-contractual liability for the unlawful adoption of decision 2009/609/EC of 4 June 2008 on State aid C 41/2005 (OJ 2009 L 225, p. 53) (the ‘PPA decision’);

               —

               Order the Commission to fully compensate jointly to the applicants the losses incurred by them that flow from the wrongful early termination of the power purchase agreement (‘PPA’) dated 10 October 1995 between Magyar Villamos Művek (‘MVM’), the state-owned electricity wholesaler, and Dunamenti, a power generator, in application of decision 2009/609/EC of 4 June 2008 on State aid C 41/2005, and which amount to a minimum of EUR 250 million, such amount to be updated and amended in view of future data to become available;

               —

               Order interest to be paid on the above compensation from the date of the judgment establishing the obligation to pay damages in this case at a rate of 8 % per year, or at such a rate as the Court might fix in the exercise of its discretion; and

               —

               Order the defendant to pay the costs of the present proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on three pleas in law.

               1.

               First plea in law, alleging that the PPA decision is manifestly unlawful. The applicants contend that the PPA decision (which is currently being appealed before the General Court — case T-179/09) is vitiated by a large number of grave errors that are incompatible with the normal conduct of an institution in charge of ensuring the application of competition rules and should thus give rise to liability on part of the EU, as:

                           —

                           the data included in the PPA decision clearly demonstrate that the PPA did not confer any economic advantage;

                           —

                           the PPA formed part of Dunamenti’s privatisation package and pre-dated it, and was thus valued in the price paid by Electrabel but the Commission refused to take it into account, thereby manifestly infringing EU law;

                           —

                           the recovery order of the PPA decision is so deeply vitiated that a calculation made by well-known economists found, as an outcome, a negative aid, which means no aid.

                     The applicants submit that such gross mistakes cannot be explained by the prima facie complexity of the case or by the objective constraints to which the Commission is subject when carrying out State aid control. Rather, these mistakes are to a large extent due to the Commission’s refusal to assess the PPA individually and constitute clear evidence of a serious failure to observe the limits imposed on the discretion of the Commission.

               2.

               Second plea in law, alleging that actual damage has been suffered by the applicants as a result of the early termination of the PPA. Due to the unlawful conduct of the Commission, the PPA was terminated before the end of its contractual term. The applicants submit that, as a result of this early termination, they have incurred very significant losses and that such damage, which cannot be precisely quantified at this stage, exceeds €250 million.

               3.

               Third plea in law, alleging that there is a direct causal link between the Commission’s unlawful conduct and the damage incurred by the applicants. The applicants contend that if the Commission’s conduct had been compliant with EU law, there would be no early termination of the PPA, thus the damage arising for the applicants from the wrongful PPA decision would have been avoided.


title: Case C-105/15 P: Appeal brought on 4 March 2015 by Constantinos Mallis and Elli Constaninou Malli against the order of the General Court (First Chamber) delivered on 16 October 2014 in Case T-327/13 Mallis and Malli v Commission and European Central Bank

text:
               1.6.2015

               EN

               Official Journal of the European Union

               C 178/2

         Appeal brought on 4 March 2015 by Constantinos Mallis and Elli Constaninou Malli against the order of the General Court (First Chamber) delivered on 16 October 2014 in Case T-327/13 Mallis and Malli v Commission and European Central Bank

   (Case C-105/15 P)
   (2015/C 178/02)
   Language of the case: Greek

      Parties

      Appellants: Constantinos Mallis and Elli Constaninou Malli (represented by: E. Efstathiou, K. Efstathiou and K. Liasidou, dikigori)

      Other parties to the proceedings: European Commission and European Central Bank

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside the order under appeal;

               —

               set aside the finding of the General Court that the objection of inadmissibility should be upheld and in particular the finding that ‘statements of the Eurogroup cannot be considered to be acts intended to produce legal effects vis-à-vis third parties’ and consequently vis-à-vis the appellants, and that by the contested statement the Eurogroup ‘gave an account in very general terms of certain measures which were agreed at a political level with the Republic of Cyprus’;

               —

               set aside the order under appeal which attributed the impairment of bank deposits to the Republic of Cyprus and failed to attribute any conduct or act or decision whatsoever either to the Eurogroup or to the defendants or to the defendants within the Eurogroup;

               —

               set aside the order that the appellants should pay the costs.

      Grounds of appeal and main arguments

   The appellants rely on four grounds in support of the appeal. Specifically:

               1.

               The order under appeal is vitiated by a defective statement of reasons and was made on the basis of a misinterpretation of the facts and the law in relation to the identity of the body which actually and in reality made the decision on the ‘bail in’ impairment of bank deposits.

               2.

               The order under appeal was made contrary to general principles of law in that the General Court misinterpreted the fact that, irrespective of the shape or form taken by the Eurogroup’s contested decision, that decision was in this case an act against which an appeal could be brought.

               3.

               The order under appeal is in error in that the General Court for the making of the order failed to examine the legal and actual association of the European Commission, the European Central Bank and the Eurogroup and also failed to examine the fact that, on the basis of the principle of legal causation and the true author test, the acts of the Eurogroup constituted acts of the European Central Bank and the European Commission, which ought to have acted in a way compatible with the Treaty and the Protocols of the European Union and on the basis of secondary and derivative law.
               In consequence, the General Court failed to examine the substance of the appellants’ arguments and case, and thus erred in dismissing the action for annulment.

               4.

               In the event that this appeal is upheld, the appellants should not be ordered to pay the costs of this appeal or of the proceedings at first instance.


title: Case T-363/14: Action brought on 2 June 2014  — Secolux v Commission

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/46

         Action brought on 2 June 2014 — Secolux v Commission
   (Case T-363/14)
   2014/C 253/61
   Language of the case: French

      Parties

      Applicant: Secolux, Association pour le contrôle de la sécurité de la construction (Capellen, Luxembourg) (represented by: N. Prüm-Carré, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decisions of 1 and 14 April 2014 by the Secretary General of the European Commission refusing to grant access to all the documents relating to the contract award procedure No 02/2013/01L ‘Safety checks’ for lot 1 and, in particular, the tender of the successful tenderer, the price schedule, the evaluation report of that offer and also the service contract entered into with the contracting authority;

               —

               order European Commission to pay all the costs.

      Pleas in law and main arguments

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

               1.

               First plea, alleging failure to respond to the request to be provided with all the documents relating to the contract award procedure, since it responded only to the requests for access relating to the evaluation report, the tender of the successful tenderer, the price schedule, and the service contract entered into with the successful tenderer.

               2.

               Second plea, alleging breach of the provisions of Article 4 of Regulation No 1049/2001 (1).

                           —

                           The refusal to provide access to the documents on the ground that it would undermine the protection of privacy and integrity of the individual within the meaning of Article 4(1)(b) of Regulation No 1049/2001 does not constitute a legitimate reason, given that an anonymous version could have been provided.

                           —

                           The application of the exception relating to the protection of commercial interests within the meaning of the first indent of Article 4(2) of Regulation No 1049/2001 is not justified, given that the evaluation report and the price schedule do not contain any information relating to technical resources or personnel and do reveal any know-how or technical expertise.

                           —

                           The decision-making process is not undermined within the meaning of Article 4(3) of Regulation No 1049/2001 since (i) the award decision had been taken and the service contract had been signed with the successful tenderer when the decision refusing access was taken and (ii) the documents requested did not constitute opinions within the meaning of the second paragraph of Article 4(3) of Regulation No 1049/2001, and since, in any event, the disclosure of the documents is not liable to undermine the Commission’s decision-making process.

                           —

                           There is an overriding public interest, namely, the principle of transparency in the area of the implementation of the budget.

                           —

                           It has not been shown that partial communication of the documents within the meaning of Article 4(6) of Regulation No 1049/2001 was not possible.

               3.

               Third plea, alleging failure to provide a real reason for the decisions taken.

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


title: Case C-366/13: Judgment of the Court (First Chamber) of 20 April 2016 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Profit Investment Sim SpA, in liquidation v Stefano Ossi and Others (Reference for a preliminary ruling — Regulation (EC) No 44/2001 — Area of Freedom, Security and Justice — Concept of ‘irreconcilable judgments’ — Actions having different subject-matters brought against several defendants domiciled in various Member States — Conditions for the prorogation of jurisdiction — Jurisdiction clause — Concept of ‘matters relating to a contract’ — Verification of the lack of a valid contractual link)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/3

      Judgment of the Court (First Chamber) of 20 April 2016 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Profit Investment Sim SpA, in liquidation v Stefano Ossi and Others
      (Case C-366/13) (1)

      ((Reference for a preliminary ruling - Regulation (EC) No 44/2001 - Area of Freedom, Security and Justice - Concept of ‘irreconcilable judgments’ - Actions having different subject-matters brought against several defendants domiciled in various Member States - Conditions for the prorogation of jurisdiction - Jurisdiction clause - Concept of ‘matters relating to a contract’ - Verification of the lack of a valid contractual link))
      (2016/C 211/03)
      Language of the case: Italian

         Referring court

      Corte suprema di cassazione

         Parties to the main proceedings

         Applicant: Profit Investment Sim SpA, in liquidation

         Defendants: Stefano Ossi, Commerzbank Brand Dresdner Bank AG, Andrea Mirone, Eugenio Magli, Francesco Redi, Profit Holding SpA, in liquidation, Redi & Partners Ltd, Enrico Fiore, E3 SA

         Operative part of the judgment

                  1.

                  Article 23 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that:

                              —

                              where a jurisdiction clause is included in a prospectus concerning the issue of bonds, the formal requirement laid down in Article 23(1)(a) of Regulation No 44/2001 is met only if the contract signed by the parties upon the issue of the bonds on the primary market expressly mentions the acceptance of that clause or contains an express reference to that prospectus;

                              —

                              a jurisdiction clause contained in a prospectus produced by the bond issuer concerning the issue of bonds may be relied on against a third party who acquired those bonds from a financial intermediary if it is established, which it is for the referring to verify, that (i) that clause is valid in the relationship between the issuer and the financial intermediary, (ii) the third party, by acquiring those bonds on the secondary market, succeeded to the financial intermediary’s rights and obligations attached to those bonds under the applicable national law, and (iii) the third party had the opportunity to acquaint himself with the prospectus containing that clause; and

                              —

                              the insertion of a jurisdiction clause into a prospectus concerning the issue of bonds may be regarded as a form which accords with a usage in international trade or commerce, for the purpose of Article 23(1)(c) of Regulation No 44/2001, allowing the consent of the person against whom it is relied upon to be presumed, provided inter alia that it is established, which it is for the referring court to verify, (i) that such conduct is generally and regularly followed by the operators in the particular trade or commerce concerned when contracts of that type are concluded and (ii) either that the parties had previously had commercial or trade relations between themselves or with other parties operating in the sector in question, or that the conduct in question is sufficiently well known to be considered an established practice.

                  2.

                  Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that actions seeking the annulment of a contract and the restitution of sums paid but not due on the basis of that contract constitute ‘matters relating to a contract’ within the meaning of that provision.

                  3.

                  Article 6(1) of Regulation No 44/2001 must be interpreted as meaning that where two actions — which have different subject-matters and bases and which are not connected by a link of subordination or incompatibility — are brought against several defendants, the fact that the upholding of one of those actions is potentially capable of affecting the extent of the right whose protection is sought by the other action does not suffice to give rise to a risk of irreconcilable judgments within the meaning of that provision.

         (1)  OJ C 260, 7.9.2013.


title: Case C-511/06 P: Judgment of the Court (First Chamber) of 9 July 2009 — Archer Daniels Midland Co. v Commission of the European Communities (Appeal — Competition — Agreements, decisions and concerted practices — Citric acid market — Determination of the amount of the fine — Role of leader — Rights of the defence — Evidence arising from a procedure conducted in a non-Member State — Definition of the relevant market — Attenuating circumstances)

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/2

         Judgment of the Court (First Chamber) of 9 July 2009 — Archer Daniels Midland Co. v Commission of the European Communities
   (Case C-511/06 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Citric acid market - Determination of the amount of the fine - Role of leader - Rights of the defence - Evidence arising from a procedure conducted in a non-Member State - Definition of the relevant market - Attenuating circumstances)
   2009/C 205/02
   Language of the case: English

      Parties

      Appellant: Archer Daniels Midland Co. (represented by: C.O. Lenz, Rechtsanwalt, L. Martin Alegi, Solicitor, E. Batchelor and M. Garcia, Solicitors)

      Other party to the proceedings: Commission of the European Communities (represented by: A. Bouquet and X. Lewis, Agents)

      Re:

   Appeal against the judgment of the Court of First Instance (Third Chamber) of 27 September 2006 in Case T-59/02 Archer Daniels Midland v Commission, by which the Court dismissed an action for annulment of Commission Decision C(2001)3923 final of 5 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-1/36.604 — Citric acid) concerning a cartel on the citric acid market and, in the alternative, for a reduction in the fine imposed on the appellant

      Operative part of the judgment

   The Court:

               (1)

               Sets aside the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T 59/02 Archer Daniels Midland v Commission inasmuch as it rejects the plea of Archer Daniels Midland Co. relating to the infringement of its rights of defence during the administrative procedure which led to Commission Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.604 — Citric acid) in so far as the Commission of the European Communities did not afford it an opportunity to exercise its rights concerning the facts on which it relied when classifying Archer Daniels Midland Co. as a leader of the cartel;

               (2)

               Sets aside the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T 59/02 Archer Daniels Midland v Commission inasmuch as it rejects as ineffective Archer Daniels Midland Co.’s plea relating to the misapplication by the Commission of the European Communities of Section B(b) of the Commission Notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases;

               (3)

               Annuls Article 3 of Decision 2002/742 in so far as it sets the amount of the fine payable by Archer Daniels Midland Co. at EUR 39.69 million;

               (4)

               Sets the amount of the fine payable by Archer Daniels Midland Co. for the infringement found in Article 1 of Decision 2002/742 as annulled in part by the judgment of the Court of First Instance of the European Communities of 27 September 2006 in Case T59/02 Archer Daniels Midland v Commission at EUR 29.4 million;

               (5)

               Dismisses the remainder of the appeal;

               (6)

               Orders Archer Daniels Midland Co. to bear three quarters of its own costs and to pay those of the Commission of the European Communities in relation to the proceedings before the Court of First Instance of the European Communities, and to bear half of its own costs and to pay those of the Commission of the European Communities in relation to the appeal proceedings;

               (7)

               Orders the Commission of the European Communities to pay one quarter of the costs of Archer Daniels Midland Co. relating to the proceedings before the Court of First Instance of the European Communities and to pay half of the costs of Archer Daniels Midland Co. relating to the appeal proceedings.

      (1)  OJ C 56, 10.03.2007.


title: Case C-564/13 P: Appeal brought on 31 October 2013 by Planet AE Anonymi Etaireia Parochis Symvouleftikon Ypiresion against the order of the General Court (Seventh Chamber) delivered on 9 September 2013 in Case T-489/12 Planet v Commission

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/21

         Appeal brought on 31 October 2013 by Planet AE Anonymi Etaireia Parochis Symvouleftikon Ypiresion against the order of the General Court (Seventh Chamber) delivered on 9 September 2013 in Case T-489/12 Planet v Commission
   (Case C-564/13 P)
   2014/C 9/33
   Language of the case: Greek

      Parties

      Appellant: Planet AE Anonymi Etaireia Parochis Symvouleftikon Ypiresion (represented by: V. Christianos, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the order of the General Court delivered on 9 September 2013 in Case T-489/12;

               —

               refer the case back to the General Court for it to rule on the substance;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   The appellant maintains that the order of the General Court delivered on 9 September 2013 in Case T-489/12 contains findings as to the law which are contrary to the rules of European Union law and challenges them by this appeal.
   In the appellant’s opinion, the order under appeal should be set aside, because the court misinterpreted and misapplied European Union law, as regards the content of the interest in bringing proceedings which is required, under European Union law, for the bringing of declaratory proceedings the subject-matter of which is determining a breach of contractual obligations and as regards whether that [interest in bringing proceedings] is vested and present.


title: Order of the President of the Court of First Instance of 20 July 2000 in Case T-149/00 R, Innova, Centro euromediterraneo per lo sviluppo sostenibile v Commission of the European Communities (Procedure for interim relief — No jurisdiction)

text:
C 335/42                EN                        Official Journal of the European Communities                                     25.11.2000
                                                             COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                  G. van der Wal, advocate before the Hoge Raad der Nederlan-
                                                                             den, with an address for service in Luxembourg at the
                      of 20 September 2000                                   Chambers of A. May, 398 Route d’Esch, and Free Trade Foods
                                                                             NV, established in Curaçao, Netherlands Antilles, represented
in Case T-203/99: Patrizia De Palma and Others v Com-                        by R. J. van Agteren and M. M. Slotboom, both of the Rotter-
          mission of the European Communities (1)                            dam Bar, with an address for service in Luxembourg at the
                                                                             Chambers of Messrs Loesch and Wolter, 11 Rue Goethe,
         (Officials — Leave for trade union purposes)                        supported by the Kingdom of the Netherlands (Agent: M. A. Fi-
                                                                             erstra) against Commission of the European Communities
                          (2000/C 335/78)                                    (Agents: T. van Rijn and C. Van der Hauwaert), supported by
                                                                             the Kingdom of Spain (Agent: N. Dı́az Abad) — application
                                                                             for an order suspending the operation of Commission Regu-
                    (Language of the case: French)                           lation (EC) No 465/2000 of 29 February 2000 introducing
                                                                             safeguard measures for imports from the overseas countries
In Case T-203/99: Patrizia De Palma, Jacqueline Escale, Claudi-              and territories of sugar sector products with EC/OCT cumu-
ne Hamptaux and Harry Wood, officials of the Commission of                   lation of origin (OJ 2000 L 56, p. 39), or any other form of
the European Communities, residing in Brussels, represented                  interim measure of such a kind as to safeguard the applicants’
by Carlos Mourato, of the Brussels Bar, with an address for                  interests — the President of the Court of First Instance made
service at the office of Gestion Fiduciaire SARL, 2-4 Rue Beck,              an order on 12 July 2000 the operative part of which is as
against Commission of the European Communities (Agents:                      follows:
G. Valsesia and J. Currall) — application for the annulment of
Commission’s decision of 23 September 1998 refusing to                       1.    Cases T-94/00 R and T-110/00 R are joined for the purposes
grant the aplicants’ request for special leave for trade union                     of the present order.
purposes — the Court of First Instance (Fourth Chamber),
composed of V. Tiili, President, R.M. Moura Ramos and                        2.    The operation of Commission Regulation (EC) No 465/2000
P. Mengozzi, Judges; J. Palacio González, Administrator, for                      of 29 February 2000 introducing safeguard measures for
the Registrar, gave a judgment on 20 September 2000, in                            imports from the overseas countries and territories of sugar
which it:                                                                          sector products with EC/OCT cumulation of origin is suspended
                                                                                in respect of each of the applicants.
1.    annuls the decision of the Commission of 23 September 1998
      refusing to grant the aplicants’ request for special leave for trade   3.    The Commission shall determine, up to an amount not
      union purposes.                                                              exceeding 4995 tonnes, the volume of sugar sector products
                                                                                with EC/OCT cumulation of origin which may be imported
2.    orders the Commission to pay the costs.                                      into the Community until 30 September 2000 by each of the
                                                                                applicants and shall lay down the detailed rules to which
                                                                                imports of those products are to be subject.
(1) OJ C 333 of 20.11.99.
                                                                             4.    Costs are reserved.
ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                             INSTANCE                                        ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
                           of 12 July 2000
                                                                                of 20 July 2000
in Joined Cases T-94/00 R and T-110/00 R: Rica Foods
(Free Zone) NV and Free Trade Foods NV v Commission                          in Case T-149/00 R, Innova, Centro euromediterraneo per
                 of the European Communities                                 lo sviluppo sostenibile v Commission of the European
                                                                                Communities
(Proceedings for interim relief — Safeguard measures —
Sugar sector products with EC/OCT cumulation of origin —                             (Procedure for interim relief — No jurisdiction)
         Admissibility — Prima facie case — Urgency)
                                                                                (2000/C 335/80)
                          (2000/C 335/79)
                                                                                (Language of the case: French)
                    (Language of the case: Dutch)
                                                                             In Case T-149/00 R, Innova, Centro euromediterraneo per lo
In Joined Cases T-94/00 R and T-110/00 R, Rica Foods (Free                   sviluppo sostenibile, established in Calatafimi (Italy), represent-
Zone) NV, established in Oranjestad, Aruba, represented by                   ed by D. Fosselard, of the Brussels Bar, with an address for
 ---pagebreak--- 25.11.2000              EN                     Official Journal of the European Communities                                           C 335/43
service in Luxembourg at the Chambers of Arendt and                       1.    The operation of Regulation No 465/2000 of 29 February
Medernach, 8-10, rue Mathias Hardt, against Commission of                       2000 introducing safeguard measures for imports from the
the European Communities (Agents: M.-J. Jonczy and                              overseas countries and territories of sugar sector products with
M. E. Paasivirta) — application for suspension of the operation                 EC/OCT cumulation of origin is suspended as regards the
of, first, the Commission’s decision to terminate the contract                  applicant;
with the applicant relating to the DIONYSOS project in so far
as it requires the applicant to repay all of the sums already             2.    The quantity of sugar sector products with EC/OCT cumulation
paid over and, secondly, of the debit note sent pursuant to the                 of origin which may be imported by the applicant into the
decision in so far as necessary — the President of the Court of                 Community up to 30 September 2000 is 400 tonnes;
First Instance made an order on 20 July 2000, the operative
part of which is as follows:                                              3.    The Commission shall determine the procedure to which imports
                                                                                of those products are to be subject;
1.    The application for interim measures is dismissed.
                                                                          4.    Costs are reserved.
2.    The costs are reserved.
                                                                          ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
                                                                                of 20 July 2000
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                              in Case T-169/00 R: Esedra SPRL v Commission of the
                              INSTANCE                                                         European Communities
                         of 8 August 2000                                 (Public contracts for the supply of services — Community
                                                                          tendering procedure — Proceedings for interim measures —
                                                                                Suspension of operation — Urgency — None)
in Case T-159/00, Suproco NV against the Commission of
                  the European Communities                                                          (2000/C 335/82)
(Application for interim measures — Safeguard measure —                                       (Language of the case: French)
 Sugar sector products with EC/OCT cumulation of origin)
                                                                          In Case T-169/00 R: Esedra SPRL, established in Brussels,
                                                                          represented by G. Vandersanden, E. Gillet and L. Levi, of the
                          (2000/C 335/81)                                 Brussels Bar, with an address for service in Luxembourg at the
                                                                          office of Société de Gestion Fiduciaire SARL, 2-4 Rue Beck, v
                                                                          Commission of the European Communities (Agents: X. Lewis
                                                                          and L. Parpala) — application, first, for suspension of operation
                    (Language of the case: Dutch)                         of the Commission’s decisions not to award to the applicant the
                                                                          contract forming the subject-matter of Notice No 99/S 132-
                                                                          97515/FR for services relating to the management of a day
In Case T-159/00 R, Suproco NV, established in Curaçao,                   nursery and to award that contract to another undertaking
Netherlands Antilles, represented by R.J. van Agteren and                 and, second, for a mandatory injunction requiring the Com-
M.M. Slotboom, of the Rotterdam Bar, with an address for                  mission to take the necessary steps in order to suspend
service in Luxembourg at the Chambers of M. Loesch, 11 Rue                implementation of that contract or of any contract concluded
Goethe, v Commission of the European Communities (Agents:                 in pursuance of that decision — the President of the Court of
T. van Rijn and C. Van der Hauwaert) — application for                    First Instance made an order on 20 July 2000, the operative
suspension of the operation of Regulation No 465/2000 of                  part of which is as follows:
29 February 2000 introducing safeguard measures for imports
from the overseas countries and territories of sugar sector               1.    The application for interim measures is dismissed.
products with EC/OCT cumulation of origin (OJ 2000 L 56,
p. 39) or any other form of interim measure capable of                    2.    The costs are reserved.
protecting the applicant’s interests — the President of the
Court of First Instance made an order on 8 August 2000, the
operative part of which is as follows:


title: Judgment of the Court of 26 September 2000 in Case C-262/97 (reference for a preliminary ruling from the Arbeidshof, Antwerp (Belgium)): Rĳksdienst voor Pensioenen v Robert Engelbrecht (Social security — Freedom of movement for workers — Retirement pension — Increase in respect of dependent spouse — Articles 12 and 46a of Regulation (EEC) No 1408/71 — Overlapping of pensions awarded under the legislation of different Member States)

text:
C 316/14                 EN                       Official Journal of the European Communities                                          4.11.2000
      (third non-life insurance Directive), does not preclude mutual         amended by Council Regulation (EEC) No 1248/92 of 30 April
      benefit societies engaged solely in insurance business from            1992 (OJ 1992 L 136, p. 7) — the Court, composed of:
      creating between themselves a body with legal personality and          G.C. Rodrı́guez Iglesias, President, D.A.O. Edward (Rappor-
      legal autonomy — such as an association of mutual benefit              teur), L. Sevón and R. Schintgen (Presidents of Chambers),
      societies — which engages in commercial business, provided             P.J.G. Kapteyn, C. Gulmann, J.-P. Puissochet, P. Jann and
      that the capital subscribed to that body by those societies does       H. Ragnemalm, Judges; P. Léger, Advocate General; D. Louter-
      not exceed the value of their free assets and provided that, in        man-Hubeau, Principal Administrator, for the Registrar, has
      each case, the society’s liability is limited to the value of its      given a judgment on 26 September 2000, in which it has
      capital contribution.                                                  ruled:
2.    Article 8(1)(b) of Directive 73/239, as amended by Directive
      92/49, is sufficiently precise and unconditional to be relied          Where the competent authorities of a Member State apply a provision
      upon before the national courts as against the administrative          of law
      authorities and entails the inapplicability of any rule of national
      law incompatible with it.                                              —      which fixes the amount of the retirement pension awarded to a
                                                                                married worker,
(1) OJ C 188 of 3.7.1999.
                                                                             —      which provides for that pension to be reduced, by the amount of
                                                                                a pension awarded to his spouse under the scheme of another
                                                                                Member State, but
                                                                             —      which provides for the application of a derogating clause in
                                                                                respect of overlapping where the pension paid elsewhere is less
                                                                                than a certain amount,
                  JUDGMENT OF THE COURT
                                                                             it is contrary to Article 48 of the EC Treaty (now, after amendment,
                                                                             Article 39 EC) for those authorities to reduce the amount of the
                       of 26 September 2000                                  pension awarded to a migrant worker by the amount of a pension
                                                                             awarded to his spouse under the scheme of another Member State,
in Case C-262/97 (reference for a preliminary ruling from                    when the grant of that latter pension does not involve any increase in
the Arbeidshof, Antwerp (Belgium)): Rijksdienst voor                         the couple’s total income.
               Pensioenen v Robert Engelbrecht (1)
(Social security — Freedom of movement for workers —                         (1) OJ C 295 of 27.9.1997.
Retirement pension — Increase in respect of dependent
spouse — Articles 12 and 46a of Regulation (EEC)
No 1408/71 — Overlapping of pensions awarded under the
              legislation of different Member States)
                           (2000/C 316/25)
                     (Language of the case: Dutch)                           Reference for a preliminary ruling by the Court of Appeal
                                                                             (England & Wales), by order of that court of 20 July 2000,
                                                                             in the case of A. Lawrence and others against 1) Regent
(Provisional translation; the definitive translation will be published       Office Care Ltd, 2) Commercial Catering Group and
                    in the European Court Reports)                                               3) Mitie Secure Services Ltd
In Case C-262/97: reference to the Court under Article 177 of                                           (Case C-320/00)
the EC Treaty (now Article 234 EC) from the Arbeidshof,
Antwerp (Belgium) for a preliminary ruling in the proceedings                                           (2000/C 316/26)
pending before that court between Rijksdienst voor Pensioenen
and Robert Engelbrecht — on the interpretation of Article 48
of the EC Treaty (now, after amendment, Article 39 EC) and                   Reference has been made to the Court of Justice of the
Articles 12(2) and 46a(3)(c) of Council Regulation (EEC)                     European Communities by an order of the Court of Appeal
No 1408/71 of 14 June 1971 on the application of social                      (England & Wales) of 20 July 2000, which was received at the
security schemes to employed persons, to self-employed                       Court Registry on 22 August 2000, for a preliminary ruling in
persons and to members of their families moving within the                   the case of A. Lawrence and others against 1) Regent Office
Community, as amended and updated by Council Regulation                      Care Ltd, 2) Commercial Catering Group and 3) Mitie Secure
(EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as                    Services Ltd, on the following questions:


title: Case T-493/15 P: Judgment of the General Court of 27 October 2016 — Commission v CX (Appeal — Civil Service — Officials — Disciplinary procedure — Disciplinary sanction — Removal from post — Right to be heard — Article 22 of Annex IX to the Staff Regulations — Errors of law — Distortion of the evidence — Incomplete examination of the facts and evidence)

text:
               12.12.2016

               EN

               Official Journal of the European Union

               C 462/20

         Judgment of the General Court of 27 October 2016 — Commission v CX
   (Case T-493/15 P) (1)

   ((Appeal - Civil Service - Officials - Disciplinary procedure - Disciplinary sanction - Removal from post - Right to be heard - Article 22 of Annex IX to the Staff Regulations - Errors of law - Distortion of the evidence - Incomplete examination of the facts and evidence))
   (2016/C 462/25)
   Language of the case: French

      Parties

      Appellant: European Commission (represented by: C. Ehrbar and F. Simonetti, acting as Agents)

      Other party to the proceedings: CX (Enghien, Belgium) (represented by: É. Boigelot, lawyer)

      Re:

   Appeal brought against the judgment of the European Union Civil Service Tribunal (First Chamber) of 18 June 2015, CX v Commission (F-5/14, EU:F:2015:61), seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 18 June 2015, CX v Commission (F-5/14, EU:F:2015:61);

               2.

               Refers the case back to a Chamber of the General Court of the European Union other than the Chamber which has ruled on the present appeal;

               3.

               Reserves the costs.

      (1)  OJ C 371, 9.11.2015.


title: Case T-182/13: Judgment of the General Court of 10 July 2014  — Moallem Insurance v Council (Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Obligation to state reasons — Error of assessment)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/42

         Judgment of the General Court of 10 July 2014 — Moallem Insurance v Council
   (Case T-182/13) (1)

   ((Common foreign and security policy - Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Obligation to state reasons - Error of assessment))
   2014/C 292/51
   Language of the case: English

      Parties

      Applicant: Moallem Insurance Co. (Tehran, Iran) (represented by: D. Luff, lawyer)

      Defendant: Council of the European Union (represented by: A. Vitro and M. Bishop, acting as Agents)

      Re:

   Application for, first, annulment of (i) Council Decision 2012/829/CFSP of 21 December 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 356, p. 71), in that it listed the applicant in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39) and (ii) Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 356, p. 55), in that it listed the applicant in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1) and, secondly, a declaration of the inapplicability to the applicant of Article 12 of Decision 2010/43 and Article 35 of Regulation No 267/2012

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Decision 2012/829/CFSP of 21 December 2012, amending Decision 2010/413/CFSP concerning restrictive measures against Iran, in so far as it listed Moallem Insurance Co. in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP;

               2.

               Annuls Council Implementing Regulation (EU) No 1264/2012 of 21 December 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran, in so far as it listed Moallem Insurance Co. in Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010;

               3.

               Orders the effects of Decision 2012/829 and Implementing Regulation No 1264/2012 to be maintained as regards Moallem Insurance Co. until the date of expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the dismissal of the appeal

               4.

               Orders the Council of the European Union to bear its own costs and to pay the costs of Moallem Insurance Co..

      (1)  OJ C 164, 8.6.2013.


title: Judgment of the Court of First Instance of 26 November 2002 in Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00 and T-141/00: Artegodan GmbH and Others v Commission of the European Communities (Medicinal products for human use — Community arbitration procedures — Withdrawal of marketing authorisations — Competence — Criteria for withdrawal — Anorectics: amfepramone, clobenzorex, fenproporex, norpseudoephedrine, phentermine — Directives 65/65/EEC and 75/319/EEC)

text:
25.1.2003               EN                       Official Journal of the European Communities                                            C 19/29
1.     Dismisses the applications;                                          applicant in Case T-132/00, Cambridge Healthcare Supplies
                                                                            Ltd, established in Norfolk (United Kingdom), represented by
2.     Orders the applicants to pay their own costs together with those     D. Vaughan, K. Bacon, barristers, and S. Davis, solicitor, with
       of the Commission.                                                   an address for service in Luxembourg, applicant in Case T-137/
                                                                            00, Laboratoires pharmaceutiques Trenker SA, established in
                                                                            Brussels, represented by L. Defalque and X. Leurquin, lawyers,
( 1) OJ C 79 of 18.3.2000.                                                  with an address for service in Luxembourg, applicant in Case
                                                                            T-141/00, v Commission of the European Communities
                                                                            (Agents: H. Støvlbæk, R. Wainwright and B. Wägenbaur):
                                                                            Application for annulment of the Commission decisions of
                                                                            9 March 2000 concerning the withdrawal of marketing
                                                                            authorisations of medicinal products for human use containing
                                                                            respectively ‘amfepramone’ (C(2000) 453), as regards Cases
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                T-74/00, T-76/00 and T-141/00, inter alia‘norpseudoephedri-
                                                                            ne’, ‘clobenzorex’ and ‘fenproporex’ (C(2000) 608), as regards
                      of 26 November 2002                                   Cases T-83/00 to T-85/00, and ‘phentermine’ (C(2000) 452),
                                                                            as regards Cases T-132/00 and T-137/00, the Court of First
                                                                            Instance (Second Chamber, Extended Composition), composed
in Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00,                       of: R.M. Moura Ramos, President, V. Tiili, J. Pirrung, P. Men-
T-132/00, T-137/00 and T-141/00: Artegodan GmbH and                         gozzi and A.W.H. Meij, Judges; D. Christensen, Administrator,
   Others v Commission of the European Communities (1)                      for the Registrar, has given a judgment on 26 November 2002,
                                                                            in which it:
(Medicinal products for human use — Community arbi-
tration procedures — Withdrawal of marketing authoris-
                                                                            1.     Annuls the Commission Decisions of 9 March 2000 (C(2000)
ations — Competence — Criteria for withdrawal — Anorect-                           452, C(2000) 453 and C(2000) 608) in so far as they relate
ics: amfepramone, clobenzorex, fenproporex, norpseudoephe-
                                                                                to the medicinal products marketed by the applicants;
drine, phentermine — Directives 65/65/EEC and 75/319/
                                 EEC)
                                                                            2.     Orders the Commission to pay all the costs, including those
                                                                                incurred in the interlocutory proceedings.
                           (2003/C 19/53)
          (Language of the case: German, English and French)                (1 ) OJ C 149 of 27.5.2000, C 163 of 10.6.2000, C 192 of 8.7.2000
                                                                                and C 233 of 12.8.2000.
In Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/
00, T-137/00 and T- 141/00, Artegodan GmbH, established
in Lüchow (Germany), represented by U. Doepner, lawyer,
with an address for service in Luxembourg, applicant in Case
T-74/00, Bruno Farmaceutici SpA, established in Rome (Italy),
Essential Nutrition Ltd, established in Brough (United                           JUDGMENT OF THE COURT OF FIRST INSTANCE
Kingdom), Hoechst Marion Roussel Ltd, established in Denham
(United Kingdom), Hoechst Marion Roussel SA, established in
Brussels (Belgium), Marion Merell SA, established in Puteaux                                         of 22 October 2002
(France), Marion Merell SA, established in Barcelona (Spain),
Sanova Pharma GmbH, established in Vienna (Austria),                        in Joined Cases T-178/00 and T-341/00, Jan Pflugradt v
Temmler Pharma GmbH & Co. KG, established in Marburg                                             European Central Bank (1)
(Germany), represented by B. Sträter and M. Ambrosius,
lawyers, with an address for service in Luxembourg, applicants
in Case T-76/00, Schuck GmbH, established in Schwaig                        (Staff of the European Central Bank — Amendment of
(Germany), represented by B. Sträter and M. Ambrosius,                              employment contract — Performance appraisal)
lawyers, with an address for service in Luxembourg, applicant
in Case T-83/00, Laboratórios Roussel Lda , established in Mem                                          (2003/C 19/54)
Martins (Portugal), represented by B. Sträter and M. Ambrosius,
lawyers, with an address for service in Luxembourg, applicant
in Cases T-84/00 and T-85/00, Laboratoires Roussel Diamant                                      (Language of the case: German)
SARL, established in Puteaux (France), represented by B. Sträter
and M. Ambrosius, lawyers, with an address for service in
Luxembourg, applicant in Case T-84/00, Roussel Iberica SA,
established in Barcelona (Spain), represented by B. Sträter                 In Joined Cases T-178/00 and T-341/00, Jan Pflugradt, residing
and M. Ambrosius, lawyers, with an address for service in                   in Frankfurt am Main (Germany), represented in Case T-178/
Luxembourg, applicant in Case T-85/00, Gerot Pharmazeutika                  00 by N. Pflüger, lawyer, and in Case T-341/00 by N. Pflüger,
GmbH, established in Vienna (Austria), represented by K. Grig-              R. Steiner and S. Mittländer, lawyers, with an address for
kar, lawyer, with an address for service in Luxembourg,                     service in Luxembourg, v European Central Bank (Agents: in


title: Case C-39/03 P: Appeal brought on 3 February 2003 by Commission of the European Communities against the judgment delivered on 26 November 2002 by the Second Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00 and T-141/00 between Artegodan GmbH, Bruno Farmaceutici and Others, Schuck GmbH, Laboratorios Roussel Lda, Laboratoires Roussel Diamant Sàrl, Roussel Iberica SA, Gerot Pharmazeutika GmbH, Cambridge Healthcare Supplies Ltd and Laboratoires pharmaceutiques Trenker SA and Commission of the European Communities

text:
22.3.2003              EN                          Official Journal of the European Union                                            C 70/15
The applicant claims that the Court should:                                Belgian authorities (reliable scale of costs for patients and
                                                                           realities of the market) has to date been identified by the Court
                                                                           of Justice as an overriding requirement capable of justifying a
(a)   Declare that,                                                        measure having an effect equivalent to quantitative restrictions.
                                                                           The Commission is of the view that a period of up to 9 months
                                                                           for including on the list of reimburseable wheelchairs those
      —     by laying down the technical criteria to be met by             bearing EC markings which, accordingly, meet the require-
            wheelchairs in order to be eligible for reimbursement          ments of public health and safety laid down in Directive 93/
            by social security in such a way as to exclude from            42, cannot be considered to be reasonable.
            the list of wheelchairs eligible for reimbursement
            those bearing EC markings but which do not meet
            the relevant criteria, namely, as regards the diameter
            of the front and rear wheels, the cover and filling of         (1 ) Council Directive 93/42/EEC of 14 June 1993 concerning medical
            the seat and back, the dimensions of the flat sections              devices (OJ 1993 L 169, p. 1).
            and crossbars, head rests and/or foot or leg rests;
      —     by laying down more general criteria which the
            economic operator must meet in order to be
            included on the list of reimburseable wheelchairs,
            namely special conditions for manual wheelchairs,
            as well as special conditions for power wheelchairs
            according to which such wheelchairs must be avail-
            able in a minimum number of seat sizes;
      —     by having been too rigid in its updating of the list of        Appeal brought on 3 February 2003 by Commission of the
            equipment eligible for the reimbursement scheme,               European Communities against the judgment delivered on
            the Kingdom of Belgium has failed to fulfil its                26 November 2002 by the Second Chamber, Extended
            obligations under Article 28 EC;                               Composition, of the Court of First Instance of the Euro-
                                                                           pean Communities in Joined Cases T-74/00, T-76/00, T-83/
                                                                           00 to T-85/00, T-132/00, T-137/00 and T-141/00 between
                                                                           Artegodan GmbH, Bruno Farmaceutici and Others,
(b)   Order the Kingdom of Belgium to pay the costs.
                                                                           Schuck GmbH, Laboratorios Roussel Lda, Laboratoires
                                                                           Roussel Diamant Sàrl, Roussel Iberica SA, Gerot Pharma-
                                                                           zeutika GmbH, Cambridge Healthcare Supplies Ltd and
                                                                           Laboratoires pharmaceutiques Trenker SA and Com-
                                                                                mission of the European Communities
Pleas in law and main arguments
                                                                                (Case C-39/03 P)
Wheelchairs are medical devices within the meaning of Council
Directive 93/42/EEC of 14 June 1993 concerning medical                                                (2003/C 70/25)
devices (1). It follows that wheelchairs bearing an EC marking,
provided for in Article 17 of that directive, must be freely
placed on the market in all the Member States. Eligibility for
reimbursement determines to a large extent access to the
Belgian market in wheelchairs, the cost of which is in many
cases considerable and in respect of which eligibility for                 An appeal against the judgment delivered on 26 November
reimbursement is decisive in the choice of the patient.                    2002 by the Second Chamber, Extended Composition, of the
Keeping in place technical criteria conditioning eligibility for           Court of First Instance of the European Communities in Joined
reimbursement of wheelchairs is not justified by public health             Cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00,
reasons, since all wheelchairs bearing EC markings are deemed              T-137/00 and T-141/00 between Artegodan GmbH, Bruno
to satisfy the safety criteria laid down by Directive 93/42/EEC.           Farmaceutici and Others, Schuck GmbH, Laboratorios Roussel
Moreover, the Belgian authorities have not shown in what way               Lda, Laboratoires Roussel Diamant Sàrl, Roussel Iberica SA,
making reimbursement for wheelchairs contingent on the                     Gerot Pharmazeutika GmbH, Cambridge Healthcare Supplies
satisfaction of certain technical criteria could contribute to             Ltd and Laboratoires pharmaceutiques Trenker SA and Com-
maintaining the financing of the health insurance system in                mission of the European Communities was brought before the
equilibrium. The requirement that wheelchairs should be                    Court of Justice of the European Communities on 3 February
available in a minimum range of chair sizes is not such as to              2003 by the Commission of the European Communities,
offer greater protection for the health and safety of users and            represented by R. Wainwright and H. Støvlbæk, assisted by
other persons. None of the objectives relied upon by the                   B. Wägenbauer, with an address for service in Luxembourg.
 ---pagebreak--- C 70/16                EN                       Official Journal of the European Union                                           22.3.2003
The appellant claims that the Court should:                             —     Misinterpretation of Article 11 of Directive 65/65/EEC
                                                                              on the approximation of provisions laid down by law,
—     set aside the judgment of the Court of First Instance of                regulation or administrative action relating to medicinal
      the European Communities of 26 November 2002 in                         products (2): By requiring the existence of new ‘scientific
      Joined Cases T-74/00, T-76/00, T-83/00 to T-85/00,                      data or information’ for the suspension or withdrawal of
      T-132/00, T-137/00 and T-141/00;                                        a marketing authorisation, the Court of First Instance
                                                                              relies on a criteria which does not appear in Article 11. By
—     order the defendants to pay the costs.                                  restricting the concept of ‘scientific data or information’
                                                                              to only data concerning medicinal products properly
                                                                              speaking, the Court of First Instance ignores that one of
                                                                              the elements to be taken account of when suspending or
Pleas and main arguments                                                      withdrawing a marketing authorisation is ‘therapeutic
                                                                              efficacy’. The Court of First Instance further ignores that
                                                                              the definition of what is to be understood by ‘therapeutic
—     Misinterpretation of Articles 15a(1) and 12 of Second
                                                                              efficacy’ hinges on an assessment carried out by scientific
      Council Directive 75/319/EEC of 20 May 1975 on
      the approximation of provisions laid down by Law,                       experts, on the basis of a scientific report, so that medical
                                                                              and scientific data concerning the substance cannot be
      Regulation or Administrative Action relating to pro-
      prietary medicinal products (1): The Court of First Instance            artificially separated from the assessment of its efficacy
                                                                              or effects which, by the inextricable nature of the links
      was wrong to refrain from examining the wording of
                                                                              between them, constitute as such scientific data which
      Article 15a(1) of Directive 75/319/EEC. If that article was
      intended to be restricted solely to the procedure for                   cannot be overlooked in the context of Article 11 of
                                                                              Directive 65/65/EEC.
      mutual recognition provided for in Article 10(2), the
      Community legislature would have indicated as much by
      means of specific wording. The effect of the reading of           —     (In the alternative) Breach of the precautionary principle.
      the Court of First Instance is to reduce Chapter III, which
      is none the less composed of Articles 8 to 15c, to a single       —     Breach of the principle of burden of proof: It is not for
      provision of that chapter. The interpretation of the                    the Commission but for the holders of the marketing
      wording of Article 15a(1) as referring to the whole of                  authorisations to show that the medicinal products in
      Chapter III of Directive 75/319 is confirmed by the                     question have the therapeutic efficacy required by the
      purpose of that provision as well as by the division of                 new scientific criteria.
      powers between the Member States and the Community.
      Article 15a (the ‘follow-up’ procedure) and Articles 10,          —     Disregard for the limits of judicial review: The Court of
      11 and 12 of Directive 75/319 share a common purpose,                   First Instance substitutes its assessment of the guidelines
      and it is reasonable to interpret Article 15a as applying               laid down by the Committee for Proprietary Medicinal
      to all the procedures referred to in Chapter III. The                   Products and the national guidelines referred to in the
      misinterpretation, by the Court of First Instance, of the               opinion of that committee of 31 August 1999 for that of
      distribution of powers in connection with Article 15a(1)                the scientists who drew up and assessed the guidelines in
      is the result of a failure to understand the division of                question.
      powers which characterises the whole of the other
      provisions in Chapter III of Directive 75/319. That               —     Distortion of the facts.
      chapter does not lay down an ‘exclusive competence of
      the Commission’ as against an ‘exclusive competence of            (1 ) OJ 1975 L 147, p. 13.
      the Member States’ as the Court of First Instance wrongly         (2 ) OJ, English Special Edition 1965-1966, p. 20.
      claims. Chapter III introduces procedures which are
      intended to attain the common objective, namely that of
      protecting public health and the completion of the
      internal market in medicinal products, by means of the
      instruments in Articles 10, 11 and 12 and of the ‘follow-
      up’ procedure in Article 15a. Each of those provisions
      forms part of the logical framework of shared and
      complementary competences, namely the Member States               Action brought on 3 February 2003 by the Commission
      retain responsibility for marketing authorisation of med-         of the European Communities against the Italian Republic
      icinal products for human use and the Community,
      represented by the Commission, intervenes whenever the                                        (Case C-43/03)
      various circumstances mentioned in the abovementioned
      articles require it. It is the Member States which then                                      (2003/C 70/26)
      implement the decisions adopted by the Commission in
      that context.
—     (In the alternative) Misinterpretation of Article 15a of          An action against the Italian Republic was brought before the
      Council Directive 75/319/EEC: That article does indeed            Court of Justice of the European Communities on 3 February
      apply to national marketing authorisations harmonised             2003 by the Commission of the European Communities,
      by the Member States following the consultation pro-              represented by Luca Visaggio, acting as Agent, with an address
      cedure under Article 12.                                          for service in Luxembourg.


title: Case C-189/09: Judgment of the Court (Seventh Chamber) of 29 July 2010 — European Commission v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 2006/24/EC — Respect for private life — Retention of data generated or processed in connection with the provision of electronic communications services — Failure to transpose within the prescribed period)

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/8

         Judgment of the Court (Seventh Chamber) of 29 July 2010 — European Commission v Republic of Austria
   (Case C-189/09) (1)

   (Failure of a Member State to fulfil obligations - Directive 2006/24/EC - Respect for private life - Retention of data generated or processed in connection with the provision of electronic communications services - Failure to transpose within the prescribed period)
   2010/C 246/12
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: L. Balta and B. Schöfer, Agents)

      Defendant: Republic of Austria (represented by: E. Riedl, Agent)

      Intervener in support of the applicant: Council of the European Union

      Re:

   Failure of a Member State to fulfil obligations – Failure to adopt or communicate, within the prescribed period, the provisions necessary to comply with Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, the Republic of Austria has failed to fulfil its obligations under that directive;

               2.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 180, 01.08.2009.


title: Case C-592/15: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 13 November 2015 — Commissioners for Her Majesty's Revenue and Customs v British Film Institute

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/19

         Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 13 November 2015 — Commissioners for Her Majesty's Revenue and Customs v British Film Institute
   (Case C-592/15)
   (2016/C 027/23)
   Language of the case: English

      Referring court

   Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Applicant: Commissioners for Her Majesty's Revenue and Customs

      Defendant: British Film Institute

      Questions referred

               i.

               Are the terms of Article 13A(1)(n) of the Sixth Directive (1), in particular the words ‘certain cultural services’, sufficiently clear and precise such that Article 13A(1)(n) is of direct effect so as to exempt the supply of those cultural services by bodies governed by public law or other recognised cultural bodies, such as the supplies made by the Respondent in the present case, in the absence of any domestic implementing legislation?

               ii.

               Do the terms of Article 13A(1)(n) of the Sixth Directive, in particular the words ‘certain cultural services’, permit Member States any discretion in their application by means of implementing legislation and, if so, what discretion?

               iii.

               Do the same conclusions as above apply to Article 132(1)(n) of the Principal VAT Directive (2)?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment

      OJ L 145, p. 1.

      (2)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

      OJ L 347, p. 1.


title: Case T-54/14: Judgment of the General Court of 8 September 2016 — Goldfish and Others v Commission (Competition — Agreements, decisions and concerted practices — Belgian, German, French and Dutch markets in North Sea shrimps — Decision finding an infringement of Article 101 TFEU — Price-fixing and allocation of sales volumes — Admissibility of evidence — Use of secret recordings of telephone conversations as evidence — Assessment of ability to pay — Unlimited jurisdiction)

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/24

         Judgment of the General Court of 8 September 2016 — Goldfish and Others v Commission
   (Case T-54/14) (1)

   ((Competition - Agreements, decisions and concerted practices - Belgian, German, French and Dutch markets in North Sea shrimps - Decision finding an infringement of Article 101 TFEU - Price-fixing and allocation of sales volumes - Admissibility of evidence - Use of secret recordings of telephone conversations as evidence - Assessment of ability to pay - Unlimited jurisdiction))
   (2016/C 392/28)
   Language of the case: Dutch

      Parties

      Applicants: Goldfish BV (Zoutkamp, Netherlands), Heiploeg BV (Zoutkamp), Heiploeg Beheer BV (Zoutkamp) and Heiploeg Holding BV (Zoutkamp) (represented by: P. Glazener and B. Winters, lawyers)

      Defendant: European Commission (represented initially by: F. Ronkes Agerbeek and P. Van Nuffel, and subsequently by: P. Van Nuffel and H. van Vliet, acting as Agents)

      Re:

   Application based on Article 263 TFEU and asking, first, for annulment of Commission Decision C(2013) 8286 final of 27 November 2013 relating to a proceeding under Article 101 TFEU (Case AT.39633 — Shrimps), in so far as it concerns the applicants, and, secondly, for reduction in the amount of the fines imposed on those applicants.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Goldfish BV, Heiploeg BV, Heiploeg Beheer BV and Heiploeg Holding BV to pay the costs.

      (1)  OJ C 71, 8.3.2014.


title: Case C-170/05: Judgment of the Court (First Chamber) of 14 December 2006 (reference for a preliminary ruling from the Conseil d'État, France) — Denkavit Internationaal BV, Denkavit France SARL v Ministre de l'Économie, des Finances et de l'Industrie (Freedom of establishment — Corporation tax — Payment of dividends — Exemption for dividends paid to resident companies — Withholding tax levied on dividends paid to non-resident companies — Double taxation convention — Possibility of setting off the amount withheld against tax due in another Member State)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/9

         Judgment of the Court (First Chamber) of 14 December 2006 (reference for a preliminary ruling from the Conseil d'État, France) — Denkavit Internationaal BV, Denkavit France SARL v Ministre de l'Économie, des Finances et de l'Industrie
   (Case C-170/05) (1)

   (Freedom of establishment - Corporation tax - Payment of dividends - Exemption for dividends paid to resident companies - Withholding tax levied on dividends paid to non-resident companies - Double taxation convention - Possibility of setting off the amount withheld against tax due in another Member State)
   (2006/C 331/14)
   Language of the case: French
   Referring court
   Conseil d'État
   Parties to the main proceedings

      Applicants: Denkavit Internationaal BV, Denkavit France SARL

      Defendant: Ministre de l'Économie, des Finances et de l'Industrie
   Re:
   Reference for a preliminary ruling — Conseil d'Etat (France) — Interpretation of Art. 43 EC — Deduction of tax at source on dividends paid to a parent company established in another Member State, but exemption for dividends paid to a parent company established in France — Taxation Convention providing that the tax may be set off against the amount due in the other Member State
   Operative part of the judgment

               1)

               Article 43 EC and Article 48 EC preclude national legislation which, in imposing a liability to tax on dividends paid to a non-resident parent company and allowing resident parent companies almost full exemption from such tax, constitutes a discriminatory restriction on freedom of establishment;

               2)

               Article 43 EC and Article 48 EC preclude national legislation which imposes, only as regards non-resident parent companies, a withholding tax on dividends paid by resident subsidiaries, even if a tax convention between the Member State in question and another Member State, authorising that withholding tax, provides for the tax due in that other State to be set off against the tax charged in accordance with the disputed system, whereas a parent company is unable to set off tax in that other Member State, in the manner provided for by that convention.

      (1)  OJ C 155, 25.6.2005.


14.9.2002              EN                 Official Journal of the European Communities                                  C 219/13
        Removal from the register of Case C-450/01 ( 1)                      Removal from the register of Case C-490/01 ( 1)
                         (2002/C 219/30)                                                       (2002/C 219/33)
By order of 11 June 2002 the President of the Court of Justice       By order of 7 May 2002 the President of the Court of Justice
of the European Communities ordered the removal from the             of the European Communities ordered the removal from the
register of Case C-450/01: Commission of the European                register of Case C-490/01: Commission of the European
Communities v Hellenic Republic.                                     Communities v Kingdom of Sweden.
( 1) OJ C 17 of 19.1.2002.                                           (1 ) OJ C 56 of 2.3.2002.
        Removal from the register of Case C-451/01 ( 1)                      Removal from the register of Case C-16/02 (1)
                         (2002/C 219/31)                                                       (2002/C 219/34)
By order of 11 June 2002 the President of the Court of Justice       By order of 26 June 2002 the President of the Court of Justice
of the European Communities ordered the removal from the             of the European Communities ordered the removal from
register of Case C-451/01: Commission of the European                the register of Case C-16/02: Commission of the European
Communities v Hellenic Republic.                                     Communities v French Republic.
( 1) OJ C 17 of 19.1.2002.                                           (1 ) OJ C 56 of 2.3.2002.
        Removal from the register of Case C-453/01 ( 1)                      Removal from the register of Case C-17/02 (1)
                         (2002/C 219/32)                                                       (2002/C 219/35)
By order of 11 June 2002 the President of the Court of Justice       By order of 18 June 2002 the President of the Court of Justice
of the European Communities ordered the removal from the             of the European Communities ordered the removal from
register of Case C-453/01: Commission of the European                the register of Case C-17/02: Commission of the European
Communities v Hellenic Republic.                                     Communities v Italian Republic.
( 1) OJ C 17 of 19.1.2002.                                           (1 ) OJ C 68 of 16.3.2002.