title: Judgment of the Court (Fifth Chamber) of 20 June 2002 in Case C-287/00: Commission of the European Communities v Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Sixth VAT Directive — Articles 2(1) and 13(A)(1)(i) — Research activities of public-sector higher-education establishments carried out for consideration — Exemption)

text:
C 191/6                    EN                       Official Journal of the European Communities                                          10.8.2002
1.     Declares that, by failing to take the appropriate steps to identify     1.    Dismisses the appeal;
       waters affected by pollution and, consequently, to designate the
       corresponding vulnerable zones, in accordance with Article 3 of         2.    Orders Ms Simon to pay the costs.
       and Annex I to Council Directive 91/676/EEC of 12 December
       1991 concerning the protection of waters against pollution
       caused by nitrates from agricultural sources, the French Republic       (1) OJ C 233 of 12.8.2000.
       has failed to fulfil its obligations under that directive;
2.     Orders the French Republic to pay the costs;
3.     Orders the Kingdom of Spain to bear its own costs.
(1) OJ C 247 of 26.8.2000.                                                                        JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                                                                                of 20 June 2002
                                                                               in Case C-287/00: Commission of the European Communi-
                   JUDGMENT OF THE COURT                                                    ties v Federal Republic of Germany(1)
                             (Sixth Chamber)                                   (Failure by a Member State to fulfil its obligations — Sixth
                                                                               VAT Directive — Articles 2(1) and 13(A)(1)(i) — Research
                                                                               activities of public-sector higher-education establishments
                             of 27 June 2002                                             carried out for consideration — Exemption)
in Case C-274/00 P: Odette Simon v Commission of the                                                       (2002/C 191/10)
                     European Communities (1)
                                                                                (Language of the case: German)
(Appeal — Officials — Person claiming the status of a
member of the temporary staff — Application brought out
of time — Inadmissibility of application — Appeal in part                      (Provisional translation; the definitive translation will be published
 manifestly inadmissible and in part manifestly unfounded)                                          in the European Court Reports)
                             (2002/C 191/09)
                                                                               In Case C-287/00, Commission of the European Communities
                                                                               (Agents: G. Wilms and K. Gross) v Federal Republic of Germany
                      (Language of the case: French)
                                                                               (Agents: W.-D. Plessing and T. Jürgensen): Application for
                                                                               a declaration that, by exempting from value added tax the
(Provisional translation; the definitive translation will be published         research activities of public-sector higher-education establish-
                     in the European Court Reports)                            ments pursuant to Paragraph 4(21a) of the Umsatzsteuergesetz
                                                                               (Law on Turnover Taxes) of 27 April 1993 (BGBl. 1993 I,
                                                                               p. 565), as amended by Paragraph 4(5) of the Umsatzsteuerge-
                                                                               setz-Änderungsgesetz of 12 December 1996 (BGBl. 1996 I,
                                                                               p. 1851), the Federal Republic of Germany has failed to fulfil
In Case C-274/00 P, Odette Simon, resident in Luxembourg,                      its obligations under Article 2 of the Sixth Council Directive
represented initially by J.-N. Louis, and, subsequently, by                    77/388/EEC of 17 May 1977 on the harmonisation of the
L. Misson, avocats, with an address for service in Luxembourg:                 laws of the Member States relating to turnover taxes —
Appeal against the judgment of the Court of First Instance of                  Common system of value added tax: uniform basis of assess-
the European Communities (single judge) of 10 May 2000 in                      ment (OJ 1977 L 145, p. 1), the Court (Fifth Chamber),
Case T-177/97 Simon v Commission [2000] ECR-SC I-A-75                          composed of: P. Jann, President of the Chamber, S. von Bahr
and II-319, seeking to have that judgment set aside, the other                 (Rapporteur), D.A.O. Edward, A. La Pergola and C.W.A. Tim-
party to the proceedings being: Commission of the European                     mermans, Judges; F.G. Jacobs, Advocate General; R. Grass,
Communities (Agent: J. Currall, assisted by D. Waelbroeck),                    Registrar, has given a judgment on 20 June 2002, in which it:
the Court (Sixth Chamber), composed of: F. Macken, President
of the Chamber, N. Colneric (Rapporteur), C. Gulmann,
J.-P. Puissochet and J.N. Cunha Rodrigues, Judges; F.G. Jacobs,                1.    Declares that, by exempting from value added tax the research
Advocate General; L. Hewlett, Administrator, for the Registrar,                      activities carried out for consideration by public-sector higher-
has given a judgment on 27 June 2002, in which it:                                   education establishments pursuant to Paragraph 4(21a) of the
 ---pagebreak--- 10.8.2002                EN                       Official Journal of the European Communities                                            C 191/7
      Umsatzsteuergesetz (Law on Turnover Taxes) of 27 April                 L. Hewlett, Administrator, for the Registrar, has given a
      1993, as amended by Paragraph 4(5) of the Umsatzsteuerge-              judgment on 20 June 2002, in which it has ruled:
      setz-Änderungsgesetz of 12 December 1996, the Federal
      Republic of Germany has failed to fulfil its obligations under
      Article 2 of the Sixth Council Directive 77/388/EEC of                 1.   Article 28 EC precludes legislation and national administrative
      17 May 1977 on the harmonisation of the laws of the Member                  practice which — in the context of a system where matters
      States relating to turnover taxes — Common system of value                  concerning conformity assessment procedures for the purposes
      added tax: uniform basis of assessment;                                     of placing radio equipment on the market and putting such
                                                                                equipment into service have been delegated to the administrative
2.    Orders the Federal Republic of Germany to pay the costs.                    authorities, to be decided at their discretion — prevents
                                                                                economic operators from importing, marketing or holding in
                                                                                stock, with a view to selling, radio equipment that has not
(1) OJ C 273 of 23.9.2000.                                                        undergone national type-approval, and which does not admit
                                                                                other forms of evidence, equally reliable but less burdensome to
                                                                                obtain, to prove that such equipment is in conformity with
                                                                                requirements concerning the proper use of the radio frequencies
                                                                                authorised under national law.
                                                                             2.   The provisions of the second sentence of Article 6(1),
                  JUDGMENT OF THE COURT                                           Article 7(1) and Article 8(1) of Directive 1999/5/EC of the
                                                                                European Parliament and of the Council of 9 March 1999 on
                          (Sixth Chamber)                                         radio equipment and telecommunications terminal equipment
                                                                                and the mutual recognition of their conformity confer on
                                                                                individuals rights which may be relied upon before national
                           of 20 June 2002
                                                                                courts even though the Directive itself has not been formally
                                                                                implemented in national law within the period prescribed.
In Joined Cases C-388/00 and C-429/00 (Reference for a                            Article 7(2) of the Directive does not allow for the maintenance
preliminary ruling from the Giudice di pace di Genova):                           in force of legislation or administrative practice which, after
           Radiosistemi Srl v Prefetto di Genova (1)                              8 April 2000, prohibits the marketing or the putting into
                                                                                service of radio equipment which does not bear the national
(Directive 1999/5/EC — Radio equipment and telecommuni-                           type-approval stamp, where it has been confirmed that such
cations terminal equipment — Compatibility of national                            equipment makes efficient and proper use of the radio frequencies
legislation prohibiting the marketing of radio apparatus                          authorised under national law, or where it is easy to verify that
which does not bear the national type-approval stamp —                            this is the case.
Whether penalties provided for by the national legislation
                             are precluded)                                  3.   The term ‘measure’ within the meaning of Article 1 of Decision
                                                                                No 3052/95/EC of the European Parliament and of the
                           (2002/C 191/11)                                        Council of 13 December 1995 establishing a procedure for the
                                                                                exchange of information on national measures derogating from
                                                                                the principle of the free movement of goods within the
                     (Language of the case: Italian)                              Community includes any measures, other than judicial decisions,
                                                                                taken by a Member State having the effect of restricting the free
(Provisional translation; the definitive translation will be published            movement of goods lawfully produced or marketed in another
                    in the European Court Reports)                                Member State. Where the administrative authorities, having
                                                                                seized a particular model or a particular type of product which
                                                                                is lawfully marketed in another Member State, continue to
                                                                                withhold that model or product after a check has been carried
In Joined Cases C-388/00 and C-429/00: Reference to the                           out by the public authorities responsible for technical checks to
Court under Article 234 EC by the Giudice di pace di Genoa                        ascertain that the product in question is in conformity with both
(Italy) for a preliminary ruling in the proceedings pending                       national and Community legislation, that is a ‘measure’ which
before that court between Radiosistemi Srl and Prefetto di                        must be notified to the Commission within the meaning of that
Genova, on the interpretation of Article 28 EC, of Directive                      provision.
1999/5/EC of the European Parliament and of the Council of
9 March 1999 on radio equipment and telecommunications
terminal equipment and the mutual recognition of their                       4.   Where national provisions have been recognised as being
conformity (OJ 1999 L 91, p. 10), and of Decision No 3052/                        contrary to Community law, the imposition of fines or other
95/EC of the European Parliament and of the Council of                            coercive measures for infringements of those provisions is also
13 December 1995 establishing a procedure for the exchange                        incompatible with Community law.
of information on national measures derogating from the
principle of the free movement of goods within the Com-
munity (OJ 1995 L 321, p. 1), the Court (Sixth Chamber),                     (1) OJ C 28 of 27.1.2001.
composed of: F. Macken, President of the Chamber, N. Colne-
ric, J.-P. Puissochet, V. Skouris and J.N. Cunha Rodrigues
(Rapporteur), Judges; L.A. Geelhoed, Advocate General;


title: Case T-10/09: Action brought on 14 January 2009 — Formula One Licensing v OHIM — Racing — Live (F1 — Live)

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/47

         Action brought on 14 January 2009 — Formula One Licensing v OHIM — Racing — Live (F1 — Live)
   (Case T-10/09)
   (2009/C 55/84)
   Language in which the application was lodged: English
   Parties

      Applicant: Formula One Licensing BV (Amsterdam, The Netherlands) (represented by: B. Klingberg, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Racing — Live SA (Montpellier, France)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 October 2008 in case R 7/2008-1;

               —

               Order the defendant to pay the costs of proceedings; and

               —

               Order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings before the defendant.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘F1 — Live’, for goods and services in classes 16, 38 and 41

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited: International trade mark registration No 732 134 of the word mark ‘F1’ for goods and services in classes 16, 38 and 41; German trade mark registration No 30 007 412 of the word mark ‘F1’ for services in class 41; United Kingdom trade mark registration No 2 277 746 D of the word mark ‘F1’ for goods and services in classes 16 and 38; Community trade mark registration No 631 531 of the figurative mark ‘F1 Formula 1’ for goods and services in classes 16, 38 and 41; other marks such as ‘F1 Racing Simulation’, ‘F1 Pole Position’ and ‘F1 Pit Stop Café’

      Decision of the Opposition Division: Rejected the Community trade mark application

      Decision of the Board of Appeal: Annulled the contested decision, rejected the opposition and allowed the Community trade mark application to proceed

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly assessed that there was no likelihood of confusion between the trade marks concerned; infringement of Article 8(5) of Council Regulation 40/94 as the Board of Appeal failed to find that use of the Community trade mark concerned would without due cause take unfair advantage of, and be detrimental to, the distinctive character or the repute of the applicant's earlier trade marks.


C 161/26              EN                       Official Journal of the European Communities                                     2.6.2001
      Removal from the Register of Case T-350/99 (1)                            Removal from the Register of Case T-150/00 (1)
                        (2001/C 161/51)                                                           (2001/C 161/54)
                  (Language of the case: English)                                            (Language of the case: French)
                                                                          By order of 13 March 2001, the President of the First Chamber
By order of 6 March 2001, the President of the First Chamber
                                                                          Extended Composition of the Court of First Instance of the
of the Court of First Instance of the European Communities
                                                                          European Communities has ordered the removal from the
has ordered the removal from the Register of Case T-350/99,
                                                                          Register of Case T-150/00, Groupement Européen des Produc-
Bogoljub Karic and Others v Council of the European Union.
                                                                          teurs de Verre Plat (GEPV) v Commission of the European
                                                                          Communities.
(1) OJ C 79 of 18.3.2000.
                                                                          (1) OJ C 247 of 26.8.2000.
       Removal from the Register of Case T-29/00 (1)
                                                                                Removal from the Register of Case T-168/00 (1)
                        (2001/C 161/52)                                                           (2001/C 161/55)
                  (Language of the case: German)                                            (Language of the case: German)
By order of 15 February 2001, the President of the First                  By order of 7 March 2001, the President of the Fourth
Chamber of the Court of First Instance of the European                    Chamber of the Court of First Instance of the European
Communities has ordered the removal from the Register of                  Communities has ordered the removal from the Register of
Case T-29/00, Deutsche Post AG v Commission of the                        Case T-168/00, Düsseldorfer Senfspezialitäten v Office for
European Communities.                                                     Harmonisation in the Internal Market (Trade Marks and
                                                                          Designs).
(1) OJ C 135 of 13.5.2000.
                                                                          (1) OJ C 259 of 9.9.2000.
       Removal from the Register of Case T-91/00 (1)                            Removal from the Register of Case T-189/00 (1)
                        (2001/C 161/53)                                                           (2001/C 161/56)
                   (Language of the case: Italian)                                          (Language of the case: German)
                                                                          By order of 22 February 2001, the President of the Second
By order of 15 February 2001, the President of the Second
                                                                          Chamber of the Court of First Instance of the European
Chamber of the Court of First Instance of the European
                                                                          Communities has ordered the removal from the Register of
Communities has ordered the removal from the Register of
                                                                          Case T-189/00, ‘Invest’ Import und Export Gmbh et Invest
Case T-91/00, Adolfo Kind v Commission of the European
                                                                          Commerce SARL v Commission of the European Communi-
Communities.
                                                                          ties.
(1) OJ C 176 of 24.6.2000.                                                (1) OJ C 285 of 7.10.2000.


title: Case C-251/07: Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 29 May 2007 — Gävle Kraftvärme AB v Länsstyrelsen i Gävleborgs län

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/15

         Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 29 May 2007 — Gävle Kraftvärme AB v Länsstyrelsen i Gävleborgs län
   (Case C-251/07)
   (2007/C 170/28)
   Language of the case: Swedish
   Referring court
   Högsta domstolen
   Parties to the main proceedings

      Applicant: Gävle Kraftvärme AB

      Defendant: Länsstyrelsen i Gävleborgs län
   Questions referred

               1.

               Where a combined power and heating plant consists of a number of units (furnaces), on interpretation of Directive 2000/76/EC (1) of the European Parliament and of the Council on the incineration of waste, is each unit to be assessed as a separate plant or is the assessment to cover the combined power and heating plant as a whole?

               2.

               On interpretation of the Directive, is a plant constructed for waste incineration but having as its main purpose the production of energy to be classified as an incineration plant or as a co-incineration plant?

      (1)  OJ L 332, p. 91.


title: Case T-125/17: Action brought on 28 February 2017 — BASF Grenzach v ECHA

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/48

         Action brought on 28 February 2017 — BASF Grenzach v ECHA
   (Case T-125/17)
   (2017/C 112/67)
   Language of the case: English

      Parties

      Applicant: BASF Grenzach GmbH (Grenzach-Wyhlen, Germany) (represented by: K. Nordlander and M. Abenhaïm, lawyers)

      Defendant: European Chemicals Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the application for annulment admissible;

               —

               annul the decision of the Board of Appeal of the European Chemicals Agency (ECHA) of 19 December 2016 concerning the substance evaluation of Triclosan pursuant to Article 46(1) of Regulation (EC) No. 1907/2006 (1) (case No A-018-2014) (‘the Triclosan Decision’), in so far as the Board of Appeal dismissed the applicant’s administrative appeal, confirmed the rat test, the fish test and the persistence test previously requested by ECHA, and decided that the remaining information was to be provided by 28 December 2018;

               —

               order ECHA to pay the applicant’s costs for these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a breach of essential procedural requirements

                           —

                           The applicant puts forward that by confining its role to a limited legality review instead of conducting a full administrative review of the Triclosan Decision, the Board of Appeal breached an essential procedural requirement. According to the applicant, the Board of Appeal also breached two essential procedural requirements in disregarding — without addressing their merits — numerous key arguments and pieces of scientific evidence which the applicant had brought forward. In so doing, so the applicant claims, the Board of Appeal not only failed to exercise its power of administrative review, but also breached the applicant’s right of defense.

               2.

               Second plea in law, alleging a breach of proportionality principle, read in conjunction with Article 13 TFUE, Article 25(1) REACH, Article 47 REACH and the General Court’s consistent case law concerning judicial review and burden of proof.

                           —

                           As regards the rat test, the applicant puts forward that both ECHA and the Board of Appeal recognized the differences between the thyroid systems of, respectively, rats and humans, but relied essentially on data from studies on rats to posit potential effects on human thyroxine (while existing studies on humans showed the absence of such effects). In so doing, the applicant claims, the Triclosan Decision (i) fails to take account of all the relevant information available, (ii) is contradictory, (iii) relies on inconsistent evidence, and, for these reasons it is vitiated by a manifest error in assessment of the necessity of the rat test, in so far as it addresses an alleged human developmental neurotoxicity concern. With respect to the sexual reproductive toxicity endpoints in the rat study, so the applicant goes further, both ECHA and the Board of Appeal also failed to take account of all the relevant information available and relied on inconsistent evidence. According to the applicant, in so doing, ECHA and the Board of Appeal committed a manifest error in assessment of the necessity of the rat test for any reproductive toxicity endpoints. According to the applicant, the rat test is also manifestly inappropriate because the test results cannot possibly help ECHA clarify the alleged endocrine disruption concerns on humans. Finally, the applicant puts forward that the Triclosan Decision is illegal in that the Board of Appeal upheld the rat test without verifying whether all the requirements of the proportionality principle were satisfied; in particular, the Board of Appeal failed to review whether less restrictive means were available to clarify the alleged endocrine disruption concerns of Triclosan.

                           —

                           As regards the fish test, the applicant claims that (i) the Board of Appeal failed to actually exercise its discretion and determine whether, based on the scientific evidence available, there existed a ‘potential risk’ that could justify requiring further testing; (ii) ECHA and Board of Appeal (both) failed to demonstrate that, based on the available scientific evidence, there existed a potential risk of endocrine disruption justifying further testing on fish; and (iii) ECHA and the Board of Appeal (both) reversed the burden of proof and breached Article 25(1) REACH, by requiring the applicant to demonstrate the absence of such risk.

                           —

                           As regards the persistence test, the applicant puts forward that, in requiring the applicant to carry out the persistence test in both freshwater and marine water in order to allegedly clarify a potential risk of persistence of Triclosan in the environment, ECHA and the Board of Appeal failed to pay due regard both to the weight-of-evidence concerning the persistence of Triclosan, and the requirement to consider environmentally relevant conditions as set forth under Annex XIII. The applicant further claims that, by requiring the applicant to carry out the persistence test in pelagic water (i.e., clear water without sediment), ECHA and the Board of Appeal also failed to respect the clear directive in Annex XIII REACH to consider the evidence that reflects environmentally ‘relevant’ conditions. Moreover, so the applicant claims, having decided that the derogation simulation test need to reflect environmentally relevant conditions, both ECHA and the Board of Appeal then failed to exercise the appropriate expert judgment to identify the appropriate test conditions.

      (1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006, L 396, p. 1)


title: Case T-211/01: Action brought on the 17 September 2001 by Rica Foods (Free Zone) N.V. against Commission of the European Communities

text:
10.11.2001             EN                    Official Journal of the European Communities                                         C 317/33
Since the complaint through official channels was unsuccess-            3.    order the Commission to pay the costs.
ful, the applicant brought the present action, in which he
submits:
—     Breach of the Staff Regulations, and in particular                Pleas in law and main arguments
      Articles 25, paragraph 2, 62, paragraph 3, and 85 of
      Article 1(3) of Annex VII to those Regulations and
      Article 46 of Annex VIII;                                         The applicant produces sugar and sugar/cocoa mixtures in
                                                                        Aruba. Aruba is part of the Overseas Countries and Territories
—     Failure to take account of general principles of law, such        (OCT). The sugar and the sugar/cocoa mixtures produced by
      as the principle of sound administration, protection of           the applicant have OCT originating status as a result of the
      legitimate expectations, legal certainty, and the principles      EC/OCT and ACP/OCT accumulation and can be imported
      which require the Appointing Authority to take a decision         free of duty into the EC.
      only on the basis of relevant reasons which are not
      marred by errors of fact or law.
                                                                        By virtue of Commission Regulation 1325/2001 of 29 June
                                                                        2001 (1) as amended by Commission Regulation
                                                                        No 1476/2001 of 18 July 2001, (2) a quota of 4 848 tonnes of
                                                                        sugar was introduced for the period from 1 July to 1 December
                                                                        2001.
                                                                        The applicant submits that the contested regulation infringes
Action brought on the 17 September 2001 by Rica Foods                   Article 109 of the OCT Decision. When considering whether
(Free Zone) N.V. against Commission of the European                     to take the safeguard measures the Commission relied on
                          Communities                                   incorrect facts. The difficulties to which the Commission refers
                                                                        are not difficulties within the meaning of Article 109 of the
                                                                        OCT Decision. Moreover, the Commission has failed to
                        (Case T-211/01)
                                                                        demonstrate the causal link between those difficulties and the
                                                                        deterioration in the situation of an economic sector in the
                        (2001/C 317/65)                                 Community. The applicant states, further, that the import of
                                                                        sugar and sugar/cocoa mixtures from the OCT has no effect
                                                                        on those difficulties.
                   (Language of the case: Dutch)
                                                                        The applicant also alleges infringement of the principle of
An action against the Commission of the European Communi-
                                                                        proportionality, infringement of Articles 3 and 182 to 184 of
ties was brought before the Court of First Instance of the
                                                                        the EC Treaty. The contested regulation does not take into
European Communities on 17 September 2001 by Rica Foods
                                                                        account the privileged position which those articles accord to
(Free Zone) N.V., of Oranjestad (Aruba), represented by Gerard
                                                                        the OCT.
van der Wal, lawyer, The Hague (Netherlands).
                                                                        The applicant also submits that Regulation 2553/97, to the
The applicant claims that the Court should:                             which the contested regulation refers is unlawful. Finally, the
                                                                        applicant alleges abuse of discretion by the Commission and
1.    annul Regulation 1325/2001;                                       failure to state reasons for the contested regulation.
2.    hold the Community liable for the damage caused to the
      applicant by virtue of the fact that since 1 July 2001            (1) Commission Regulation (EC) No 1325/2001 of 29 June 2001
      the import of the products referred to in Regulation                  providing for the continued application of safeguard measures
                                                                            with regard to imports of sugar sector products with EC/OCT
      1325/2001 has been prevented or restricted as a conse-
                                                                            originating status from the Overseas Countries and Territories for
      quence of that regulation and order that the parties shall            the period 1 July to 1 December 2001 (OJ L 177, 30.6.2001,
      agree on the extent of the damage suffered by the                     p. 57 to 59).
      applicant and that, failing agreement thereon, the pro-           (2) Commission Regulation (EC) No 1476/2001 of 18 July 2001
      ceedings shall be resumed within a period to be specified             amending Regulation (EC) No 1325/2001 as regards safeguard
      by the Court in order to determine the extent of the                  measures with regard to imports from the Overseas Countries and
      damage, and order the Community to pay the interim                    Territories of mixtures of sugar and cocoa with ACP/OCT
      estimated damage and damage yet to be estimated; in the               originating status for the period 1 July to 1 December 2001 (OJ
      further alternative order the Community to pay the                    L 195, 19.7.2001, p. 29 to 30).
      damages to be determined by the Court, plus interest of
      8 % per annum from the date of the application until the
      date of payment in full;


title: Case T-101/16: Order of the General Court of 6 April 2017 — Klausner Holz Niedersachsen v Commission (Action for failure to act — State aid — Supply of timber — Preliminary examination of an alleged State aid granted by the German authorities in the form of contracts for the supply of timber — Commission’s failure to adopt a position within a reasonable period of time — Manifest inadmissibility)

text:
               6.6.2017

               EN

               Official Journal of the European Union

               C 178/20

         Order of the General Court of 6 April 2017 — Klausner Holz Niedersachsen v Commission
   (Case T-101/16) (1)

   ((Action for failure to act - State aid - Supply of timber - Preliminary examination of an alleged State aid granted by the German authorities in the form of contracts for the supply of timber - Commission’s failure to adopt a position within a reasonable period of time - Manifest inadmissibility))
   (2017/C 178/26)
   Language of the case: German

      Parties

      Applicant: Klausner Holz Niedersachsen GmbH (Saalburg-Ebersdorf, Germany) (represented by: D. Reich, C. Hipp and T. Ilgner, lawyers)

      Defendant: European Commission (represented by: L. Flynn and T. Maxian Rusche, acting as agents)

      Re:

   Application based on Article 265 TFEU seeking a declaration that the Commission unlawfully failed to take a decision, within a reasonable period of time, in the context of the preliminary examination of an alleged State aid granted to the applicant by the German authorities in the form of contracts for the supply of timber.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Klausner Holz Niedersachsen GmbH is ordered to pay the costs.

      (1)  OJ C 145, 25.4.2016.


title: Case T-50/12: Action brought on 7 February 2012 — AMC-Representações Têxteis v OHIM — MIP Metro (METRO KIDS COMPANY)

text:
               14.4.2012

               EN

               Official Journal of the European Union

               C 109/21

         Action brought on 7 February 2012 — AMC-Representações Têxteis v OHIM — MIP Metro (METRO KIDS COMPANY)
   (Case T-50/12)
   2012/C 109/45
   Language in which the application was lodged: English

      Parties

      Applicant: AMC-Representações Têxteis Lda (Taveiro, Portugal) (represented by: V. Caires Soares, lawyer)

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

      Other party to the proceedings before the Board of Appeal: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 November 2011 in case R 2314/2010-1;

               —

               Order the Defendant and, as appropriate, the Intervener in the proceedings to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘METRO KIDS COMPANY’, for goods and services in classes 24, 25 and 39 — Community trade mark application No 8200909

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: International trade mark registration No 852751 of the figurative mark ‘METRO’, for goods and services in classes 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal erred in finding that the confronted marks were similar and the likelihood of confusion and/or association could not be excluded.


title: Case C-262/04: Action brought on 23 June 2004 by the Commission of the European Communities against the Federal Republic of Germany

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/14

         Action brought on 23 June 2004 by the Commission of the European Communities against the Federal Republic of Germany
   (Case C-262/04)
   (2004/C 201/29)
   An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 23 June 2004 by the Commission of the European Communities, represented by Walter Mölls and Karolina Mojzesowicz, of the Commission's Legal Service, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Declare that, by failing to supply to the Commission such information as would allow the Commission to confirm that the provisions of the directive have been complied with, the Federal Republic of Germany is in breach of its obligations under Article 9 of Commission Directive 2002/77/EC (1) of 16 September 2002 on competition in the markets for electronic communications networks and services;

               —

               Order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments:
   Under Article 9 of Commission Directive 2002/77/EC, Member States were to supply to the Commission by not later than 24 July 2003 such information as would allow the Commission to confirm that the provisions of that directive have been complied with. That period has expired without the Federal Republic of Germany supplying to the Commission the information required under Article 9.

      (1)  OJ L 249, p. 21.


title: Case C-556/11: Reference for a preliminary ruling from the Juzgado Contencioso-Administrativo de Valladolid (Spain) lodged on 3 November 2011 — María Jesús Lorenzo Martínez v Dirección Provincial de Educación Valladolid

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/33

      Reference for a preliminary ruling from the Juzgado Contencioso-Administrativo de Valladolid (Spain) lodged on 3 November 2011 — María Jesús Lorenzo Martínez v Dirección Provincial de Educación Valladolid
      (Case C-556/11)
      (2012/C 25/62)
      Language of the case: Spanish

         Referring court

      Juzgado Contencioso-Administrativo de Valladolid

         Parties to the main proceedings

         Applicant: María Jesús Lorenzo Martínez

         Defendant: Dirección Provincial de Educación Valladolid

         Question referred

      Does the fact that an individual is an established (career) civil servant and, as such, belongs to one of the staff groups into which the public teaching service is organised constitute an objective ground sufficient to justify the individual ‘continuing-professional-education’ component of the special increment (also commonly referred to as the ‘sexenio’ or six-yearly increment) being paid — once it is demonstrated that they have satisfied the relevant requirements — only to established civil servants forming part of the public teaching service?


title: Case C-492/09: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Taranto (Italy) lodged on 30 November 2009 — Società Agricola Esposito Srl v Agnezia delle Entrate — Ufficio Taranto 2

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/43

         Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Taranto (Italy) lodged on 30 November 2009 — Società Agricola Esposito Srl v Agnezia delle Entrate — Ufficio Taranto 2
   (Case C-492/09)
   2010/C 24/75
   Language of the case: Italian

      Referring court

   The Commissione tributaria provinciale di Taranto

      Parties to the main proceedings

      Applicant: Società Agricola Esposito Srl

      Defendant: Agnezia delle Entrate — Ufficio Taranto 2

      Questions referred

               1.

               In so far as they require a licence to be obtained by a consumer who has concluded a subscription contract, are Article 21 of the Tariff annexed to Presidential Decree No 641/1972 and Article 160 of Legislative Decree No 259/2003 compatible with the rules laid down in Directive 2002/20/EC (1), which, by contrast, refers to individual licences to be obtained by undertakings providing the services or the networks?

               2.

               Are Articles 1 and 9 of Presidential Decree No 641/1972 and Article 21 of the Tariff annexed thereto at variance with the rule that there must be individual justification for each charge levied in connection with any authorisation which emerges from an interpretation of Articles 12 and 13 of Directive 2002/20/EC?

               3.

               Is the fact that the Italian Tassa di Concessione Governativa is payable by persons who have concluded a subscription contract but not by persons who use rechargeable cards compatible with the principles set out in Directive 2002/21/EC (2), in particular ‘the principle of non-discrimination in the allocation and assignment of radio frequencies by national regulatory authorities’ laid down in Article 9(1) of the directive?

               4.

               Is the Tassa di Concessione Governativa compatible with the principles set out in Directive 2002/77/EC (3) and Directive 2002/21/EC, which provide that ‘any national scheme …, serving to share the net cost of the provision of universal service obligations shall be based on objective, transparent and non-discriminatory criteria and shall be consistent with the principles of proportionality and of least market distortion’?

               5.

               By increasing the costs for users of mobile telephone services who have concluded subscription contracts, does the Italian Tassa di Concessione Governativa deter entry to the Italian market, thereby prohibiting, to the prejudice of consumers, the formation of a competitive market, in breach of the principles laid down in Directive 2002/21/EC?

               6.

               Does the Tassa di Concessione Governative infringe the principle laid down in Article 25 of the Treaty, which provides that ‘[c]ustoms duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature’?

      (1)  OJ 2002 L 108, p. 21.

      (2)  OJ 2002 L 108, p. 33.

      (3)  OJ 2002 L 249, p. 21.


title: Case T-302/10: Order of the General Court of 23 November 2012 — Crocs v OHIM — Holey Soles Holdings and PHI (Representation of footwear) ( ‘Community trade mark — Invalidity action — Withdrawal of the invalidity action — No need to adjudicate’ )

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/45

         Order of the General Court of 23 November 2012 — Crocs v OHIM — Holey Soles Holdings and PHI (Representation of footwear )
   (Case T-302/10) (1)

   (Community trade mark - Invalidity action - Withdrawal of the invalidity action - No need to adjudicate)
   2013/C 26/87
   Language of the case: English

      Parties

      Applicant: Crocs, Inc. (Niwot, United States of America) (represented by: I.R. Craig, solicitor)

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

      Other parties to the proceedings before the Board of Appeal of OHIM: Holey Soles Holdings Ltd (Vancouver, Canada; and Partenaire Hospitalier International (La Haie Foissière, France)

      Re:

   Action brought against the decision of the Third Board of Appeal of OHIM of 26 March 2010 (Case R 9/2008-3), relating to invalidity proceedings between Holey Shoes Holdings Ltd and Partenaire Hospitalier International and Crocs, Inc.

      Operative part of the order

               1.

               There is no need to adjudicate on the action.

               2.

               The applicant shall bear it own costs and those incurred by the defendant.

      (1)  OJ C 260, 25.9.2010.


title: Case C-425/03: Reference for a preliminary ruling by the Giudice di Pace di Milazzo by order of that Court of 18 April 2003 in the case of Provvidenza Regio against AXA Assicurazioni

text:
29.11.2003            EN                         Official Journal of the European Union                                         C 289/15
Furthermore, in the present instance there are no grounds for                  ments with Romania, Poland and the Ukraine on trans-
allowing an exemption from the obligation to recover the aid.                  port by inland waterway, and refusing to revoke them;
                                                                         —     declare that the Federal Republic of Germany has
                                                                               breached its obligations under Regulation (EC) No 1356/
                                                                               96 (2), as the individual bilateral agreements on transport
                                                                               by inland waterway with Romania, Poland, the Ukraine,
                                                                               the Republic of Czechoslovakia and Hungary are incom-
Reference for a preliminary ruling by the Giudice di Pace                      patible with Regulation (EC) No 1356/96 and it has
di Milazzo by order of that Court of 18 April 2003 in the                      refused to revoke them;
   case of Provvidenza Regio against AXA Assicurazioni
                                                                         —     order the Federal Republic of Germany to pay the costs.
                        (Case C-425/03)
                        (2003/C 289/29)
                                                                         Pleas in law and main arguments
Reference has been made to the Court of Justice of the                   —     The Federal Republic of Germany has usurped the
European Communities by order of the Giudice di Pace di                        exclusive competence of the Community to conclude
Milazzo (Milazzo Magistrates’ Court) of 18 April 2003,                         international agreements within the meaning of the
received at the Court Registry on 6 October 2003, for a                        ‘AETR’ case-law by negotiating, concluding, ratifying and
preliminary ruling in the case of Provvidenza Regio against                    bringing into force individual bilateral agreements with
AXA Assicurazioni on the following question:                                   Romania, Poland and the Ukraine on transport by inland
                                                                               waterway which have an impact on the Community
                                                                               provisions which the Community adopted in Regulation
The questions of unconstitutionality raised in the present                     (EEC) No 3921/91. That regulation lays down the con-
proceedings concern Article 1 of Decree Law No 18/03, which                    ditions under which non-resident carriers may transport
removes from equitable assessment cases falling within the                     goods or passengers by inland waterway within a Member
jurisdiction of the Giudice di Pace concerning standard form                   State. Those conditions were widened in stages. The
contracts the value of which does not exceed EUR 1 100.                        balance thereby created is disturbed by Article 6 of the
                                                                               agreements concluded with Poland, Romania and the
                                                                               Ukraine whereby operators resident in third countries
                                                                               have access to cabotage in Germany.
                                                                         —     The Federal Republic of Germany has failed to fulfil
                                                                               its obligations under Article 10 EC by negotiating,
Action brought on 10 October 2003 by the Commission                            concluding, ratifying and bringing into force the con-
of the European Communities against the Federal Repub-                         tested bilateral agreements after the Council had granted
                         lic of Germany                                        the Commission authority to negotiate and the German
                                                                               Government could not have been unaware that nego-
                                                                               tiations for a multilateral agreement were in progress.
                        (Case C-433/03)
                                                                         —     The bilateral agreements concluded by the Federal Repub-
                        (2003/C 289/30)
                                                                               lic of Germany are incompatible with Council Regulation
                                                                               (EC) No 1356/96 on common rules applicable to the
                                                                               transport of goods or passengers by inland waterway
An action against the Federal Republic of Germany was                          between Member States with a view to establishing
brought before the Court of Justice of the European Communi-                   freedom to provide such transport services. The Polish,
ties on 10 October 2003 by the Commission of the European                      Ukrainian, Romanian, Czech, Slovak and Hungarian
Communities, represented by Claudia Schmidt and Wils                           barge owners and inland waterway transport undertak-
Wouter of its Legal Service, and Andreas Manville, Assistant in                ings, which may be allowed to carry out transport
its Legal Service, with an address for service in Luxembourg.                  between Germany and the other Member States under
                                                                               the contested agreements, do not satisfy the conditions
                                                                               laid down in that Regulation.
The Commission of the European Communities claims that
the Court should:
                                                                         (1) OJ 1991 L 373, p. 1.
—     declare that the Federal Republic of Germany has                   (2) OJ 1996 L 175, p. 7.
      breached its obligations under Article 10 EC and Regu-
      lation (EEC) No 3921/91 (1) by negotiating, concluding,
      ratifying and implementing individual bilateral agree-


title: Cases T-242/00, T-243/00, T-257/00, T-258/00, T-259/00, T-265/00 and T-267/00: Action brought on 14 September 2000 by Compagnia Lavoratori Portuali s.c.a r.l. and Others against Commission of the European Communities

text:
25.11.2000            EN                     Official Journal of the European Communities                                        C 335/45
Furthermore, the Executive Board of the ECB was not com-                The applicant submits that the two conditions laid down
petent to adopt Articles 1.4.2, 1.4.3 and 1.4.7 of the Staff            in Article 13 are satisfied, namely the existence of special
Rules. The same is true of the refusal of the application to            circumstances and the absence of any obvious negligence or
insert in the Conditions of Employment, by decision of the              deception. It claims that it was the Japanese producer who
Governing Council of the ECB, provisions on collective                  failed properly to execute the undertaking measure. The
agreements. The refusal of the applicants’ requests in that             applicant exercised all due care and was an innocent victim of
respect could not issue from the Vice-President of the ECB.             fraud.
The applicants submit, finally, that the decision does not              Moreover, the Commission failed to comply with its obligation
contain a sufficient statement of reasons. It merely states that        effectively to monitor the undertaking measures. It is inequi-
the defendant finds the applicants’ proposal inappropriate.             table to require the applicant to bear a loss that it would not
There is no explanation as to the considerations on which the           otherwise have incurred had the Commission and the Japanese
defendant bases that statement.                                         producers properly carried out their obligations as defined in
                                                                        the price-undertaking measures.
                                                                        (1) Council Regulation (EEC) No 2112/90 of 23 July 1990 imposing
                                                                            a definitive anti-dumping duty on imports of certain types of
                                                                            electronic microcircuits known as DRAMs (dynamic random
                                                                            access memories) originating in Japan and collecting definitively
                                                                            the provisional duty, OJ 1990 L 193, p. 1.
                                                                        (2) Council Regulation (EEC) No 1430/79 of 2 July 1979 on the
Action brought on 28 August 2000 by SCI UK Limited                          repayment or remission of import or export duties, OJ 1979
  against the Commission of the European Communities                        L 175, p. 1.
                        (Case T-239/00)
                        (2000/C 335/85)
                                                                        Action brought on 14 September 2000 by Compagnia
                  (Language of the case: English)                       Lavoratori Portuali s.c.a r.l. and Others against Com-
                                                                                mission of the European Communities
An action against the Commission of the European Communi-               (Cases T-242/00, T-243/00, T-257/00, T-258/00, T-259/00,
ties was brought before the Court of First Instance of the                                   T-265/00 and T-267/00)
European Communities on 28 August 2000 by SCI UK Limited
(Irvine, United Kingdom), represented by Mr. Leslie Allen, of                                     (2000/C 335/86)
Ernst & Young, London.
                                                                                (Language of the case: Italian)
The applicant claims that the Court should:
                                                                        An action against the Commission of the European Communi-
—     annul the Commission decision of 29 June 2000                     ties was brought before the Court of First Instance of the
      (C(2000) 1684 final) addressed to the United Kingdom              European Communities on 14 September 2000 by Compagnia
      of Great Britain and Northern Ireland concerning an               Lavoratori Portuali San Marco Venezia a r.l. and Others,
      application for the repayment of import duty.                     represented by Andrea Bortoluzzi and Chiara Montagner, of
                                                                        the Venice Bar.
Pleas in law and main arguments:                                        The applicants claim that the Court should:
The applicant imported computer components, including                   —     annul Articles 1 and 2 of Commission Decision
dynamic random access memories (‘DRAMS’) originating in                       2000/394/EEC;
Japan. Pursuant to Council Regulation No 2112/90 (1), those             —     in the alternative, annul Article 5 of the decision
imports were subject to a 60 % anti-dumping duty, which
was, however, not levied upon the presentation of price-                —     order the Commission to pay the costs.
undertaking documents issued by the Japanese producers.
Subsequent to a criminal investigation it appeared that some
certificates issued to the applicant were invalid for various           Pleas in law and main arguments
reasons and had been fraudulently used. HM Customs & Excise
therefore issued to the applicant post clearance demands in             The pleas in law and main arguments are those relied upon in
the amount of anti-dumping duty unpaid. Subsequently, the               Cases T-234/00 Fondazione Opera S. Maria della Carità v
British authorities submitted an application to the Commission          Commission and T-235/00 Codess Sociale and Others (1).
for a decision as to whether the repayment of import
duties was justified on the basis of Article 13 of Regulation           (1) not yet published.
No 1430/79 (2). That application was rejected by the contested
decision.


title: Case C-183/14: Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 11 April 2014  — Radu Florin Salomie, Nicolae Vasile Oltean v Direcția Generală a Finanțelor Publice Cluj

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/16

         Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 11 April 2014 — Radu Florin Salomie, Nicolae Vasile Oltean v Direcția Generală a Finanțelor Publice Cluj
   (Case C-183/14)
   2014/C 253/21
   Language of the case: Romanian

      Referring court

   Curtea de Apel Cluj

      Parties to the main proceedings

      Applicant: Radu Florin Salomie, Nicolae Vasile Oltean

      Defendant: Direcția Generală a Finanțelor Publice Cluj

      Questions referred

               1)

               May a natural person who enters into a partnership contract with other natural persons, a partnership without legal personality that is not declared or registered for tax purposes, intended for the execution of future works (building) on a site forming part of the personal assets of some of the contracting parties be regarded, in the light of the circumstances of the main case, as a taxable person for VAT purposes within the meaning of Article 9(1) of the VAT Directive (1), where, under the fiscal rules, the tax authorities initially treated the transfer of ownership of the buildings on the site forming part of the personal assets of some of the contracting parties as sales falling within the scope of the management of the private wealth of such persons?

               2)

               In the light of the circumstances of the main case, must the principles of legal certainty and the protection of legitimate expectations, and the other general principles relating to VAT, as laid down in Directive 2006/112, be interpreted as precluding a national practice whereby, after initially levying on a natural person tax on the income deriving from the transfer of ownership of properties forming part of his personal wealth, the tax authorities — without there having been any substantial amendment of primary law — review the position after a period of two years on the basis of the same facts and classifies the same transactions as economic activities subject to VAT, calculating the incidental charges retroactively?

               3)

               Must Articles 167, 168 and 213 of the VAT Directive, considered in the light of the principle of fiscal neutrality, be interpreted as precluding, in the circumstances of the main case, the tax authorities from refusing a taxable person the right to deduct the VAT owed or paid on goods or services used for the purposes of taxable transactions simply because he was not registered as a taxable person for VAT purposes at the time when the supplies in question were carried out?

               4)

               In the light of the circumstances of the main case, may Article 179 of [Directive 2006/112] be interpreted as precluding national legislation under which a taxable person to whom the special exemption scheme is applied and who has belatedly applied for registration for VAT purposes is under an obligation to pay the tax that should have been levied, but has no right to subtract the amount of tax deductible for each tax period, it being the case that that right of deduction will be exercised subsequently on the basis of the tax return submitted after registration of the taxable person for VAT purposes, which may have repercussions for calculation of the incidental charges?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Case C-151/07: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 19 March 2007 — Theologos-Grigorios Khatzithanasis v Ipourgos Igias kai Kinonikis Allilengiis and Organismos Epangelmatikis Ekpaidefsis kai Katartisis (Ο.Ε.Ε.Κ.)

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/17

         Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 19 March 2007 — Theologos-Grigorios Khatzithanasis v Ipourgos Igias kai Kinonikis Allilengiis and Organismos Epangelmatikis Ekpaidefsis kai Katartisis (Ο.Ε.Ε.Κ.)
   (Case C-151/07)
   (2007/C 117/28)
   Language of the case: Greek
   Referring court
   Simvoulio tis Epikratias (Council of State)
   Parties to the main proceedings

      Applicant: Theologos-Grigorios Khatzithanasis

      Defendants: Ipourgos Igias kai Kinonikis Allilengiis (Minister for Health and Social Solidarity) and Organismos Epangelmatikis Ekpaidefsis kai Katartisis (Ο.Ε.Ε.Κ.) (Organisation for Professional Education and Training)
   Question referred
   When a national of a Member State, relying upon evidence of a qualification which, according to him, falls within the field of application of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25), requests the competent authorities of the host Member State to allow him access to a profession regulated in the host Member State or to allow him to pursue that profession, is it open to those authorities — under Articles 1, 2, 3 and 4 of Directive 92/51, interpreted in the light of Articles 149 and 150 of the Treaty establishing the European Community — to reject his application (and thus to exclude entirely access by him to that profession or pursuit thereof in the host Member State) solely on the ground that, while the qualification in question was awarded by an authority of the Member State from which he comes, that followed studies the greater part of which were carried out in the host Member State, at a body which operates freely in that State but, pursuant to the relevant general provision in its legislation, is not recognised as an educational establishment there?


title: Case C-488/10: Reference for a preliminary ruling from the Juzgado de lo Mercantil No 1 de Alicante (Spain) lodged on 11 October 2010 — Celaya Emparanza y Galdos Internacional S.A. v Proyectos Integrales de Balizamientos S.L.

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/33

         Reference for a preliminary ruling from the Juzgado de lo Mercantil No 1 de Alicante (Spain) lodged on 11 October 2010 — Celaya Emparanza y Galdos Internacional S.A. v Proyectos Integrales de Balizamientos S.L.
   (Case C-488/10)
   ()
   2010/C 346/56
   Language of the case: Spanish

      Referring court

   Juzgado de lo Mercantil

      Parties to the main proceedings

      Applicant: Celaya Emparanza y Galdos Internacional S.A.

      Defendant: Proyectos Integrales de Balizamientos S.L.

      Questions referred

               1.

               In proceedings for infringement of the exclusive right conferred by a registered Community design, does the right to prevent the use thereof by third parties provided for in Article 19(1) of Council Regulation (EC) No 6/2002 (1) of 12 December 2001 on Community designs extend to any third party who uses another design that does not produce on informed users a different overall impression or, on the contrary, is a third party who uses a subsequent Community design registered in his name excluded until such time as that design is declared invalid?

               2.

               Is the answer to the first question unconnected with the intention of the third party or does it depend on his conduct, a decisive point being whether the third party applied for and registered the later Community design after receiving an extra-judicial demand from the proprietor of the earlier Community design calling on him to cease marketing the product on the ground that it infringes rights deriving from that earlier design?

      (1)  OJ 2002 L 3, p. 1


title: Case T-471/09: Judgment of the General Court of 28 June 2011 — Oetker Nahrungsmittel v OHIM — Bonfait (Buonfatti) (Community trade mark — Opposition proceedings — Application for Community word mark ‘Buonfatti’ — Earlier Benelux word mark Bonfait — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 2007/2009)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/24

         Judgment of the General Court of 28 June 2011 — Oetker Nahrungsmittel v OHIM — Bonfait (Buonfatti)
   (Case T-471/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark ‘Buonfatti’ - Earlier Benelux word mark Bonfait - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 2007/2009)
   2011/C 232/41
   Language of the case: German

      Parties

      Applicant: Dr. Oetker Nahrungsmittel KG (Bielefeld, Germany) (represented by: F. Graf von Stosch, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: R. Manea, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Bonfait BV (Denekamp, Netherlands)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 2 October 2009 (Case R 340/2007-4) relating to opposition proceedings between Bonfait BV and Dr. August Oetker Nahrungsmittel KG.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 October 2009 (Case R 340/2007-4).

               2.

               Orders OHIM to bear its own costs and to pay those incurred by Dr. Oetker Nahrungsmittel KG.

      (1)  OJ C 24, 30.1.2010.


title: Case C-317/15: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 June 2015 — X, Staatssecretaris van Financiën

text:
               21.9.2015

               EN

               Official Journal of the European Union

               C 311/23

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 June 2015 — X, Staatssecretaris van Financiën
   (Case C-317/15)
   (2015/C 311/28)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellants: X, Staatssecretaris van Financiën

      Questions referred

               1.

               Does the respect for the application to third countries of restrictions, as provided for in Article 64(1) TFEU, extend also to the application of restrictions existing under national rules, such as the extended recovery period at issue in the case in the main proceedings, which rules can also be applied in situations that have nothing to do with direct investment, the provision of financial services or the admission of securities to capital markets?

               2.

               Does the respect for the application of restrictions relating to the movement of capital involving the provision of financial services, as provided for in Article 64(1) TFEU, concern also restrictions that, like the extended recovery period at issue in the case in the main proceedings, are not directed at the provider of the services and do not determine either the conditions or the mechanisms of the provision of services?

               3.

               Does a situation such as that in the case in the main proceedings, in which a resident of a Member State has opened a (securities) account with a banking institution outside the European Union, also come within the definition of ‘the movement of capital ... involving … the provision of financial services’ within the meaning of Article 64(1) TFEU, and does it matter in this connection whether (and if so, to what extent) that banking institution carries out activities for the benefit of the account holder?


title: Case C-584/15: Request for a preliminary ruling from the Tribunal administratif de Melun (France) lodged on 11 November 2015 — Glencore Céréales France v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/30

         Request for a preliminary ruling from the Tribunal administratif de Melun (France) lodged on 11 November 2015 — Glencore Céréales France v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)
   (Case C-584/15)
   (2016/C 038/43)
   Language of the case: French

      Referring court

   Tribunal administratif de Melun

      Parties to the main proceedings

      Applicant: Glencore Céréales France

      Defendant: Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)

      Questions referred

               1)

               It is possible to infer from the terms of the judgment of 9 March 2012 in Case C-564/10 Bundesanstalt für Landwirtschaft and Ernährung v Pfeifer & Langen KG that Article 3 of Regulation No 2988/95 (1) laying down Community law limitation rules is applicable to measures seeking payment of interest due pursuant to Article 52 of Regulation No 800/1999 (2) and Article 5a of Regulation No 770/96? (3)

               2)

               Is the claim for interest to be regarded as naturally arising from a ‘continuous or repeated’ irregularity which ceases on the date on which the principal is repaid, thus deferring until that date the point at which the limitation period in respect of the claim for interest starts to run?

               3)

               If Question 2 is answered in the negative, must the point at which the limitation period starts to run be the day on which the irregularity giving rise to the principal claim was committed, or may it not be the day on which the aid is paid or the security released, corresponding to the starting point for the calculation of such interest?

               4)

               For the purpose of the application of the rules on limitation laid down by Regulation No 2988/95, must any act which interrupts the limitation period insofar as concerns the principal claim be regarded as also interrupting the time running in respect of interest, even if no mention is made of interest in the acts directed at the principal claim that interrupt the limitation period?

               5)

               Does limitation become effective as a result of the fact that the maximum period provided for in the fourth subparagraph of Article 3(1) of Regulation No 2988/95 has expired if, within that period, the paying agency seeks recovery of the aid unduly paid without demanding at the same time the payment of interest?

               6)

               Is it possible for the general five-year limitation period provided for under national law in Article 2224 of the Civil Code by Law No 2008-561 of 17 June 2008 to have replaced, as regards limitation periods that had not yet expired on the date when that law entered into force, the four-year limitation period laid down by Regulation No 2988/95, in the light of the derogation provided for in Article 3(3) of that regulation?

      (1)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).

      (2)  Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11).

      (3)  Commission Regulation (EC) No 770/96 of 26 April 1996 amending Regulation (EEC) No 3002/92 laying down common detailed rules for verifying the use and/or destination of products from intervention (OJ 1996 L 104, p. 13).


title: Judgment of the Court (Fifth Chamber) of 6 November 2003 in Case C-45/01 (Reference for a preliminary ruling from the Bundesfinanzhof ): Christoph-Dornier-Stiftung für Klinische Psychologie v Finanzamt Gießen (VAT — Article 13A(1)(b) and (c) of the Sixth Directive 77/388/EEC — Exemption — Psychotherapeutic treatment given in an out-patient facility provided by a foundation governed by private law (charitable establishment) employing qualified psychologists who are not doctors — Direct effect)

text:
10.1.2004               EN                             Official Journal of the European Union                                                   C 7/3
                 JUDGMENT OF THE COURT                                         2.    Recognition of an establishment for the purposes of
                                                                                Article 13A(1)(b) of the Sixth Directive 77/388 does not
                                                                                presuppose a formal recognition procedure; nor must such
                          (Fifth Chamber)                                            recognition necessarily derive from national tax law provisions.
                                                                                Where the national rules pertaining to recognition contain
                                                                                restrictions which exceed the limits of the discretion allowed to
                       of 6 November 2003                                            Member States under that provision, it is for the national court
                                                                                to determine, in the light of all the relevant facts, whether a
                                                                                taxable person must none the less be regarded as an ‘other duly
in Case C-45/01 (Reference for a preliminary ruling from                             recognised establishment of a similar nature’ within the meaning
the Bundesfinanzhof ): Christoph-Dornier-Stiftung für                                of that provision.
        Klinische Psychologie v Finanzamt Gießen (1)
                                                                               3.    Since the exemption envisaged in Article 13A(1)(c) of the Sixth
(VAT — Article 13A(1)(b) and (c) of the Sixth Directive 77/                          Directive 77/388 is not dependent on the legal form of the
388/EEC — Exemption — Psychotherapeutic treatment                                    taxable person providing the medical or paramedical services
given in an out-patient facility provided by a foundation                            referred to in that provision, psychotherapeutic treatment
governed by private law (charitable establishment)                                   provided by a foundation governed by private law and given by
employing qualified psychologists who are not doctors —                              psychotherapists employed by the foundation may benefit from
                            Direct effect)                                           that exemption.
                                                                               4.    In circumstances such as those in the main proceedings,
                           (2004/C 7/03)                                             Article 13A(1)(b) and (c) of the Sixth Directive 77/388 may
                                                                                be relied on by a taxable person before a national court in order
                                                                                to contest the application of rules of national law which are
                   (Language of the case: German)                                    incompatible with that provision.
(Provisional translation; the definitive translation will be published         (1) OJ C 134 of 5.5.2001.
                   in the European Court Reports)
In Case C-45/01: Reference to the Court under Article 234 EC
by the Bundesfinanzhof (Germany) for a preliminary ruling in
the proceedings pending before that court between Christoph-                                     JUDGMENT OF THE COURT
Dornier-Stiftung für Klinische Psychologie and Finanzamt
Gießen, on the interpretation of Article 13A(1)(b) and (c) of                                          of 6 November 2003
the Sixth Council Directive 77/388/EEC of 17 May 1977 on
the harmonisation of the laws of the Member States relating                    in Case C-101/01 (Reference for a preliminary ruling from
to turnover taxes — Common system of value added tax:                                        the Göta hovrätt): Bodil Lindqvist (1)
uniform basis of assessment (OJ 1977 L 145, p. 1), the Court
(Fifth Chamber), composed of: D.A.O. Edward, acting as
President of the Fifth Chamber, P. Jann and of A. Rosas                        (Directive 95/46/EC — Scope — Publication of personal
(Rapporteur), Judges; C. Stix-Hackl, Advocate General; H. von                  data on the internet — Place of publication — Definition of
Holstein, Deputy Registrar, has given a judgment on 6 Novem-                   transfer of personal data to third countries — Freedom of
ber 2003, in which it has ruled:                                               expression — Compatibility with Directive 95/46 of greater
                                                                               protection for personal data under the national legislation of
                                                                                a Member State)
1.    Psychotherapeutic treatment given in an out-patient facility of
      a foundation governed by private law by qualified psychologists                                      (2004/C 7/04)
      who are not doctors is not an activity ‘closely related’ to hospital
      or medical care within the meaning of Article 13A(1)(b) of the
      Sixth Council Directive 77/388/EEC of 17 May 1977 on the                                     (Language of the case: Swedish)
      harmonisation of the laws of the Member States relating to
      turnover taxes — Common system of value added tax: uniform               (Provisional translation; the definitive translation will be published
      basis of assessment, except where such treatment is actually                                 in the European Court Reports)
      given as a service ancillary to the hospital or medical care
      received by the patients in question and constituting the
      principal service. However, the term ‘medical care’ in that
      provision must be interpreted as covering all provision of               In Case C-101/01: Reference to the Court under Article 234 EC
      medical care envisaged in letter (c) of the same provision,              by the Göta hovrätt (Sweden) for a preliminary ruling in the
      including services provided by persons who are not doctors but           criminal proceedings before that court against Bodil Lindqvist,
      who give paramedical services, such as psychotherapeutic                 on, inter alia, the interpretation of Directive 95/46/EC of the
      treatment given by qualified psychologists.                              European Parliament and of the Council of 24 October 1995


title: Case T-214/07: Action brought on 15 June 2007 — Hellenic Republic v Commission

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/39

         Action brought on 15 June 2007 — Hellenic Republic v Commission
   (Case T-214/07)
   (2007/C 199/75)
   Language of the case: Greek
   Parties

      Applicant: Hellenic Republic (represented by: I. Khalkias and G. Kanellopoulos)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annulment of the contested decision in its entirety; in the alternative, amendment of the contested Commission decision as specified, namely: limitation of the relevant correction to the 24 months in fact considered; no correction in the sector of arable crops for the harvesting year 2003 or, in any event, that the correction be limited to only 2 % of the expenditure for durum wheat; that no financial correction be made in the sector of measures for the smaller Aegean islands concerning certain agricultural products or, in any event, that it be limited to 2 %.

               —

               an order that the Commission of the European Communities pay the costs.

         Pleas in law and main arguments
   By this action against Commission Decision No E(2007) 1663 final of 18 April 2007, published as Commission Decision 2007/243/EC (OJ 2007 L 106, p. 55), on the basis of which the Commission excluded from Community financing certain expenditure incurred by the Member States — in this case the Hellenic Republic — under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), the Hellenic Republic puts forward the following grounds for annulment:
   In the first general ground for annulment, concerning the correction to the arable crops sectors, to the POSEI measure and to the tomato processing sector, the applicant claims that the defendant was in breach of an essential procedural requirement with regard to the lack of discussion as to the assessment of the seriousness of the infringements ascribed to Greece, the damage suffered by the Community and the level of the correction imposed; in the alternative, the decision should be annulled, according to the applicant, because the Commission was not empowered ratio temporis to impose corrections beyond the 24 months preceding the date of the document in which it formulated its final position on the correction and the level of that correction.
   In the second ground of annulment, concerning the correction in respect of arable crops, the applicant alleges misinterpretation and misapplication of Article 4 of Regulation (EEC) No 3508/95 (1), Article 1(3) of Regulation (EC) No 1593/2000 (2) and Article 58 of Regulation (EC) No 445/2002 (3) since, on the basis of those provisions, it is also permissible to identify land by means of cartographic materials equivalent to orthophotomaps; in the alternative, the applicant alleges incorrect assessment of the factual circumstances and insufficient reasoning given for the disputed corrections. The applicant also alleges misinterpretation and misapplication of Article 60 of Regulation (EC) No 445/2002 or, in the alternative, incorrect assessment of the factual circumstances as regards the on-the-spot checks and the period over which they were carried out, as well as lack of any legal basis for imposing the correction, because the Commission misinterpreted, in the applicant's view, Article 15 of Regulation (EC) No 2419/2001 (4). The applicant also maintains that, in particular as concerns the correction of 10 % to durum wheat expenditure, the Commission wrongly assessed the factual circumstances and went beyond the limits of its discretion.
   In its third ground of annulment, the applicant considers that, with the imposition of the corrections of 5 % and 10 % in respect of arable crops, the principle of proportionality has been infringed since, in relation to the previous year, the improvements to the system were significant, a fact that was, moreover, noted by the Commission.
   In the fourth ground of annulment, which concerns the POSEI measure — Smaller Aegean Islands — the applicant submits (a) that Article 3(3) of Regulation (EEC) No 2019/93 (5) and Article 3(2) of Regulation (EEC) No 2958/93 (6) were misinterpreted and misapplied in respect of the arrangements for the supply [of certain agricultural products] to the smaller Aegean islands or, in the alternative, that the factual circumstances were wrongly assessed, since the Greek authorities acted as prescribed by the regulations; (b) that, similarly, as regards potato fields and olive groves on the small islands of the Aegean, the factual circumstances were wrongly assessed, since the LPIS (7) and the Registers functioned normally and, in any event, in respect of any minor defects, a general correction to the regime of arable crops was imposed on the applicant and a second penalty should not be imposed for the same reason in respect of the individual regimes and lastly (c) the correction to the POSEI measure was contrary to the principle of proportionality.

      (1)  Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes (OJ 1992 L 355, p. 1).

      (2)  Council Regulation (EC) No 1593/2000 of 17 July 2000 amending Regulation (EEC) No 3508/92 establishing an integrated administration and control system for certain Community aid schemes (OJ 2000 L 182, p. 4).

      (3)  Commission Regulation (EC) No 445/2002 of 26 February 2002 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2002 L 74, p. 1).

      (4)  Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 2001 L 327, p. 11).

      (5)  Council Regulation (EEC) No 2019/93 of 19 July 1993 introducing specific measures for the smaller Aegean islands concerning certain agricultural products (OJ 1993 L 184, p. 1).

      (6)  Commission Regulation (EEC) No 2958/93 of 27 October 1993 laying down detailed rules for the application of Council Regulation (EEC) No 2019/93 as regards the specific arrangements for the supply of certain agricultural products (OJ 1993 L 267, p. 4).

      (7)  Land Parcel Identification System.


title: Case C-492/08: Action brought on 14 November 2008 — Commission of the European Communities v French Republic

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/17

         Action brought on 14 November 2008 — Commission of the European Communities v French Republic
   (Case C-492/08)
   (2009/C 19/30)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: M. Afonso, acting as Agent)

      Defendant: French Republic
   Form of order sought

               —

               Declare that by applying a reduced rate of value added tax (VAT) to services provided by lawyers, lawyers at the Council of State and at the Court of Cassation and avoués, for which they are paid in part or in whole by the State through legal aid, France has failed to fulfil its obligations under Articles 96 and 98(2) of the VAT directive (1);

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The Commission disputes the application, by the defendant, of a reduced rate of VAT for services provided in the context of legal aid by lawyers, lawyers at the Council of State and at the Court of Cassation as well as avoués, as such services are not included in any of the categories listed in Annex III of Directive 2006/112/EC.
   In order to respond to the defendant's three main arguments, the Commission submits first that the guarantee of access to justice cannot be an appropriate reason for derogating from the normal rate of VAT on the services of lawyers to the extent that that guarantee is connected more to the range of aid granted by the State than to the rate of VAT, which is determined in a uniform manner at Community level.
   Secondly, according to the applicant, the social nature of the activities at issue is not sufficient for them to be included in the other categories of services listed in Annex III of the directive, for which a reduction in the rate of VAT is allowed as compared to the normal applicable rate. According to the Court's settled case-law, a narrow interpretation of the nature of those services would be necessary so as to maintain the restrictive nature of that annex.
   Finally, the Commission states that the aim both of Articles 96 and 98(2) of the VAT directive and of Annex III thereof is not to avoid distortions of competition between economic operators providing the same goods or services, but more simply to encourage a progressive harmonisation of the legislation of the Member States, by harmonising the rates of VAT applied and limiting the transactions which can be subject to reduced rates.

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).