title: Order of the Court of First Instance of 23 March 2000 in Case T-266/99: Librairie de Rome v European Parliament (Public service contract — Invitation to tender — Selection criteria — Rejection of tender — Action manifestly unfounded in law)

text:
C 163/28                 EN                     Official Journal of the European Communities                                      10.6.2000
        ORDER OF THE COURT OF FIRST INSTANCE                                     ORDER OF THE COURT OF FIRST INSTANCE
                         of 24 January 2000                                                        of 23 March 2000
   in Case T-179/98: José Guijarro and Others v Council (1)                in Case T-266/99: Librairie de Rome v European Parlia-
                                                                                ment (1)
(Officials — Interest in bringing an action — Abstract and
general interest — Measure adversely affecting officials —                 (Public service contract — Invitation to tender — Selection
                 None — Manifestly inadmissible)                           criteria — Rejection of tender — Action manifestly
                                                                                unfounded in law)
                            (2000/C 163/54)
                                                                                (2000/C 163/55)
                     (Language of the case: French)
                                                                                (Language of the case: French)
In Case T-179/98: José Cuenda Guijarro, an official of the
Council of the European Union, residing in Brussels, Eva                   In Case T-266/99: Librairie de Rome, established in Brussels,
Hellgren, an official of the Council of the European Union,                represented by L. Dehin and C. Bruls, of the Liege Bar, with an
residing in Brussels, Petri Samuli Laaksonen, an official of the           address for service in Luxembourg at the chambers of C. Duro,
Council of the European Union, residing in Brussels, Hans                  3 Rue de la Chapelle, v European Parliament (Agents: T. Millett
Lund, an official of the Council of the European Union,                    and A. Neergaard) — application for annulment of the
residing in Brussels, Daniel Marlier, an official of the Council of        Parliament’s decision to award to a tenderer other than the
the European Union, residing in Masnuy-Saint-Jean (Belgium),               applicant the contract for the provision of fitted kiosk premises
Maria Augusta Santos, an official of the Council of the                    for the sale of newspapers — the Court of First Instance
European Union, residing in Brussels, Agneta Sederowsky, an                (Second Chamber), composed of J. Pirrung, President, and
official of the Council of the European Union, residing in                 A. Potocki and A.W.H. Meij, Judges; H. Jung, Registrar, made
Brussels, Jacqueline Willems, an official of the Council of the            an order on 23 March 2000, the operative part of which is as
European Union, residing in Tervuren (Belgium), and Noé                    follows:
Youssouroum, an official of the Council of the European
Union, residing in Brussels, represented by J.-N. Louis and                1. The action is dismissed.
F. Parmentier, of the Brussels Bar, with an address for service
in Luxembourg at the office of Fiduciaire Myson SARL, 30 Rue               2. The defendant shall pay the costs.
de Cessange, against the Council of the European Union
(Agents: F. Van Craeyenest, M. Bauer and D. Waelbroeck) —
application for the annulment of the Council decision of                   (1) OJ C 34 of 5.2.2000.
12 January 1998 rejecting, first, the applicants’ request that
certain safety, health protection and environmental measures
at the workplace be taken in respect of the Council’s ‘Justus
Lipsius’ Building in Brussels and, secondly, the claim for
compensation in respect of non-material damage which they
claim to have suffered as a result of faults, omissions and
instances of negligence by the institution in relation to the
state of that building — the Court of First Instance (Fifth
Chamber), composed of R. Garcia Valdecasas, President of the               Action brought on 27 March 2000 by Nicolás Martinez
Chamber, P. Lindh, and J.D. Cooke, Judges; H. Jung, Registrar,                  Rey and Others v Council of the European Union
has given a judgment on 24 January 2000, in which it:
                                                                                (Case T-73/00)
1. Dismisses the action as manifestly inadmissible;
                                                                                (2000/C 163/56)
2. Orders the applicants to bear their own costs and to pay half of
      the defendant’s costs;
                                                                                (Language of the case: Spanish)
3. Orders the defendant to pay half of its costs.
                                                                           An action against the Council of the European Union was
( 1) OJ C 397 of 19.12.1998.                                               brought before the Court of First Instance on 27 March 2000
                                                                           by Nicolás Martı́nez Rey and Others, of Coruña, Spain,
                                                                           represented by Ramón Garcı́a-Gallardo and Marı́a Dolores
                                                                           Domı́nguez Pérez, with chambers in Brussels at 19 Square de
                                                                           Meeûs.


title: Case T-127/06: Action brought on  28 April 2006  — Kapman v OHIM (representation of a saw blade in blue)

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/20

         Action brought on 28 April 2006 — Kapman v OHIM (representation of a saw blade in blue)
   (Case T-127/06)
   (2006/C 154/50)
   Language of the case: English
   Parties

      Applicant: Kapman A.B. (Sandviken, Sweden) (represented by: R. Almaraz Palmero, lawyer)

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

               —

               Annulment of the Decision of the Second Board of Appeal at OHIM of 10 February 2006 in Case R 303/2004-2;

               —

               order the Office to refund the appeal fee to the applicant;

               —

               order the Office to pay the costs of the dispute, including those relating to the procedure before the Board of Appeal.

         Pleas in law and main arguments

      Community trade mark concerned: A figurative mark representing a saw blade in blue for goods in class 8 [saw blades (for hand-operated tools)] — application No 2 532 497

      Decision of the examiner: Refusal of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as among others the combination of shape and colour causes an outstanding visual impression to the relevant public, i.e. professional handymen and not to the average consumer.


title: JUDGMENT OF THE COURT of 10 February 1998 in Case C-263/95: Federal Republic of Germany v. Commission of the European Communities (Approximation of laws - Construction products - Standing Committee on Construction)

text:
C 94/2                EN                  Official Journal of the European Communities                                      28.3.98
on the interpretation of Article 25(1) of Commission                 1. annuls Commission Decision 95/204/EC of 31 May
Regulation (EEC) No 1354/83 of 17 May 1983 laying                         1995 implementing Article 20(2) of Council Directive
down general rules for the mobilisation and supply of                     89/106/EEC on construction products;
skimmed-milk powder, butter and butteroil as food aid
(OJ L 142, 1.6.1983, p. 1) Ð the Court (Second
Chamber), composed of: R. Schintgen (Rapporteur),                    2. orders the Commission to pay the costs.
President of the Chamber, G. F. Mancini and G. Hirsch,
Judges; P. LeÂger, Advocate-General; L. Hewlett,                     (1) OJ C 248, 23.9.1995.
Administrator, for the Registrar, has given a judgment on
29 January 1998, in which it has ruled:
Commission Regulation (EEC) No 1354/83 of 17 May
1983 laying down general rules for the mobilisation and
supply of skimmed-milk powder, butter and butteroil as                              JUDGMENT OF THE COURT
food aid must be interpreted to the effect that in the
absence of force majeure a tenderer who has failed to                                        (Fifth Chamber)
deliver the goods concerned within the appropriate time                                   of 12 February 1998
limits must bear all the financial consequences of that
failure in accordance with the first paragraph of                    in    Case    C-92/96: Commission of the European
Article 25(1) of that Regulation, even if the tendering                          Communities v. Kingdom of Spain (1)
securities have already been declared forfeit in application         (Failure to fulfil obligations Ð Directive 76/160/EEC Ð
of Article 26(6) of that Regulation, and those securities                              Quality of bathing water)
may not be deducted from the amounts due as
compensation for the damage caused by failure to deliver                                       (98/C 94/04)
the goods on the basis of the first paragraph of
Article 25(1) of the Regulation.                                                    (Language of the case: Spanish)
(1) OJ C 370, 7.12.1996.
                                                                       (Provisional translation; the definitive translation will be
                                                                               published in the European Court Reports)
                                                                     In Case C-92/96: Commission of the European
                                                                     Communities (Agents: Richard Wainwright and Fernando
              JUDGMENT OF THE COURT                                  Castillo de la Torre) v. Kingdom of Spain (Agent: Gloria
                     of 10 February 1998                             Calvo Díaz) Ð application for a declaration that, by
                                                                     failing to take all necessary measures to ensure that the
in Case C-263/95: Federal Republic of Germany v.
                                                                     quality of inshore bathing waters in Spain conforms to the
       Commission of the European Communities (1)
                                                                     limit values set in Article 3 of Council Directive 76/160/
(Approximation of laws Ð Construction products Ð                     EEC of 8 December 1975 concerning the quality of
           Standing Committee on Construction)                       bathing water (OJ L 31, 5.2.1976, p. 1), the Kingdom of
                                                                     Spain has failed to fulfil its obligations under Article 4 of
                         (98/C 94/03)
                                                                     that Directive and under Articles 5 and 189 of the EC
                                                                     Treaty Ð the Court (Fifth Chamber), composed of: C.
               (Language of the case: German)                        Gulmann, President of the Chamber, M. Wathelet, J. C.
                                                                     Moitinho de Almeida (Rapporteur), P. Jann and L. Sevón,
                                                                     Judges: C. O. Lenz, Advocate-General; D. Louterman-
  (Provisional translation; the definitive translation will be       Hubeau, Principal-Administrator, for the Registrar, has
         published in the European Court Reports)                    given a judgment on 12 February 1998, in which it:
In Case C-263/95: Federal Republic of Germany (Agents:
                                                                     1. declares that, by failing to take all necessary measures
Ernst Röder and Bernd Kloke) v. Commission of the
                                                                          to ensure that the quality of inshore bathing waters in
European Communities (Agents: Ulrich Wölker and
                                                                          Spain conforms to the limit values set in accordance
Antonio Aresu) Ð application for annulment of
                                                                          with Article 3 of Council Directive 76/160/EEC of
Commission Decision 95/204/EC of 31 May 1995
                                                                          8 December 1975 concerning the quality of bathing
implementing Article 20(2) of Council Directive 89/106/
                                                                          water, the Kingdom of Spain has failed to fulfil its
EEC on construction products (OJ L 129, 14.6.1995,
                                                                          obligations under Article 4 thereof;
p. 23) Ð the Court, composed of: G. C. Rodríguez
Iglesias, President, H. Ragnemalm, M. Wathelet, R.
Schintgen (Presidents of Chambers), G. F. Mancini, J. C.             2. orders the Kingdom of Spain to pay the costs.
Moitinho de Almeida, P. J. G. Kapteyn, D. A. O. Edward,
G. Hirsch, L. Sevón (Rapporteur) and K. M. Ioannou,
                                                                     (1) OJ C 133, 4.5.1996.
Judges; D. Ruiz-Jarabo Colomer, Advocate-General; L.
Hewlett, Administrator, for the Registrar, has given a
judgment on 10 February 1998, in which it:


C 166/12              EN              Official Journal of the European Communities                                  30.5.98
      Removal from the register of Case C-251/96 (1)                   Removal from the register of Case C-305/95 (1)
                        (98/C 166/20)                                                    (98/C 166/24)
By order of 29 October 1997, the President of the Court          By order of 29 January 1998 the President of the Sixth
of Justice of the European Communities ordered the               Chamber of the Court of Justice of the European
removal from the register of Case C-251/96: (Reference           Communities has ordered the removal from the register of
for a preliminary ruling from the Pretura Circondariale di       Case C-305/95 (reference for a preliminary ruling from
Rovigo): Criminal proceedings against Giuseppe Cordella.         the Cour du Travail, Mons): UniversiteÂ Catholique de
                                                                 Louvain v Francine Plapied and Danielle Gallez.
(1) OJ C 294 of 5.10.1996.
                                                                 (1) OJ C 299 of 11.11.1995.
      Removal from the register of Case C-224/96 (1)
                                                                       Removal from the register of Case C-325/97 (1)
                        (98/C 166/21)
                                                                                (98/C 166/25)
By order of 13 November 1997, the President of the               By order of 11 February 1998 the President of the Court
Court of Justice of the European Communities ordered the         of Justice of the European Communities has ordered the
removal from the register of Case C-224/96: Promotion            removal from the register of Case C-325/97: Commission
LeÂopold SA v European Parliament.                               of the European Communities v Federal Republic of
                                                                 Germany.
(1) OJ C 269 of 14.9.1996.
                                                                 (1) OJ C 331 of 1.11.1997.
       Removal from the register of Case C-91/97 (1)
                        (98/C 166/22)                                  Removal from the register of Case C-238/97 (1)
                                                                                (98/C 166/26)
By order of 27 January 1998 the President of the Court of
Justice of the European Communities has ordered the              By order of 18 February 1998 the President of the Court
removal from the register of Case C-91/97 (reference for a       of Justice of the European Communities has ordered the
preliminary ruling from the Bundessozialgericht): Arif           removal from the register of Case C-238/97: Commission
Altiney v Bundesanstalt für Arbeit.                              of the European Communities v Kingdom of Spain.
(1) OJ C 131 of 26.4.1997.                                       (1) OJ C 252 of 16.8.1997.
                                                                       Removal from the register of Case C-146/96 (1)
      Removal from the register of Case C-142/97 (1)
                                                                                (98/C 166/27)
                        (98/C 166/23)
                                                                 By order of 3 March 1998 the President of        the Sixth
By order of 27 January 1998 the President of the Court of        Chamber of the Court of Justice of the           European
Justice of the European Communities has ordered the              Communities has ordered the removal from the    register of
removal from the register of Case C-142/97: Commission           Case     C-146/96:     Commission     of  the    European
of the European Communities v Italian Republic.                  Communities v Federal Republic of Germany.
(1) OJ C 181 of 14.6.1997.                                       (1) OJ C 197 of 6.7.1996.


title: Case C-613/10: Order of the Court (Seventh Chamber) of 15 April 2011 (reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy)) — Danilo Debiasi v Agenzia delle Entrate Ufficio di Parma (Reference for a preliminary ruling — Manifest inadmissibility)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/11

         Order of the Court (Seventh Chamber) of 15 April 2011 (reference for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy)) — Danilo Debiasi v Agenzia delle Entrate Ufficio di Parma
   (Case C-613/10) (1)

   (Reference for a preliminary ruling - Manifest inadmissibility)
   2011/C 232/19
   Language of the case: Italian

      Referring court

   Commissione tributaria provinciale di Parma

      Parties to the main proceedings

      Applicant: Danilo Debiasi

      Defendant: Agenzia delle Entrate Ufficio di Parma

      Re:

   Reference for a preliminary ruling — Commissione tributaria provinciale di Parma — Interpretation of Art. 13, section A, of Directive 77/388/EEC: Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p.1) — Deduction of input tax — Public or private health establishments engaged in an exempt activity — National legislation excluding the deduction of tax referring to the purchase of goods or services used in the said exempt activities

      Operative part of the order

   The reference for a preliminary ruling made by the Commissione tributaria provinciale di Parma (Italy) by decision of 7 July 2010 is manifestly inadmissible.

      (1)  OJ C 80, 12.03.2011.


title: Case F-74/09: Action brought on 10 September 2009 — Gowitzke v Europol

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/85

         Action brought on 10 September 2009 — Gowitzke v Europol
   (Case F-74/09)
   2009/C 267/154
   Language of the case: Dutch

      Parties

      Applicant: Werner Siegfried Gowitzke (The Hague, The Netherlands) (represented by: D.C. Coppens, lawyer)

      Defendant: Europol

      Subject-matter and description of the proceedings

   Application for annulment of the decision of Europol of 5 June 2009 rejecting the applicant's claim to have his classification changed to grade 5, step 1

      Form of order sought

               —

               annul the decision of Europol rejecting the applicant's claim to have his classification changed to grade 5, step 1;

               —

               order the defendant to pay the costs.


title: Case C-150/04: Action brought on 23 March 2004 by the Commission of the European Communities against the Kingdom of Denmark

text:
               24.7.2004

               EN

               Official Journal of the European Union

               C 190/3

         Action brought on 23 March 2004 by the Commission of the European Communities against the Kingdom of Denmark
   (Case C-150/04)
   (2004/C 190/06)
   An action against the Kingdom of Denmark was brought before the Court of Justice of the European Communities on 23 March 2004 by the Commission of the European Communities, represented by R. Lyal and S. Tams, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1)

               Declare that, by introducing and maintaining a system for life insurance and pensions under which tax deductions and tax exemptions for payments (sections 18 and 19 of the law on pension tax) are granted only for payments under contracts entered into with pension institutions established in Denmark, whereas no such tax relief is granted for payments pursuant to contracts entered into with pension institutions established in other Member States (sections 53A and 53B), the Kingdom of Denmark has failed to fulfil its obligations under Articles 39, 43, 49 and 56 EC.

               2)

               Order the Kingdom of Denmark to pay the costs.

         Facts and pleas in law:
   The Danish legislation concerning inter alia deductions for payments into life insurance and pension insurance schemes is contrary to the provisions of the EC Treaty governing the freedom to provide services, the free movement of workers, freedom of establishment and the free movement of capital and cannot be justified on ground of overriding public interest, as established in the Court's case-law.
   Freedom to provide services (Article 49 EC)
   The failure to allow deductions and exemptions for payments to foreign pension insurance schemes leads to a situation where policy-holders residing in Denmark are precluded from setting up pension insurance schemes with pension institutions established in Member States other than Denmark. Foreign pension institutions are de facto precluded from offering their services on the Danish market. The requirement of being established in Denmark therefore constitutes a restriction on the freedom to provide services from Member States other than Denmark.
   Free movement of workers and freedom of establishment (Articles 39 and 43 EC)
   The Danish rules which do not allow deductions for payments into foreign pension insurance schemes affect principally migrant workers and self-employed persons from other Member States. Workers and self-employed persons who move to Denmark and who have already set up pension insurance schemes in other Member States have to join new pension insurance schemes with pension institutions established in Denmark in order to obtain the same tax advantages as workers who have set up pension insurance schemes in Denmark.
   Free movement of capital (Article 56 EC)
   The requirement that the pension institution must be established in Denmark in order for the insured to obtain the tax relief precludes policy-holders from setting up pension insurance schemes with pension institutions established in other Member States. The Danish provisions thus lead to a situation where restrictions are placed on the free movement of capital in the form of payments into and out of pension insurance schemes.
   Overriding public-interest grounds

               —

               Effective fiscal supervision

         The need to ensure effective fiscal supervision, as relied on by the Danish Government, cannot justify the Danish deduction provisions, which place a restriction on the abovementioned freedoms. The provisions are contrary to the principle of proportionality, since effective fiscal supervision and prevention of tax evasion can be ensured through measures which are less restrictive than the Danish rules, such as a requirement that taxpayers provide the necessary information as a precondition for obtaining the tax deduction or a requirement of cooperation with the tax authorities in other Member States in accordance with Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation. (1)

               —

               Coherence of the tax system

         The Court's case-law recognises that coherence of the tax system requires that the Member State, in so far as it allows for deductions for payments into pension insurance schemes made in another Member State, must be able to tax the amounts paid out from the pension insurance schemes.
   There is to be coherence, however, in relation to the individual taxpayer and a close connection between deductions for payments into the scheme and the taxation of payments out of the scheme.
   In the Commission's view, the symmetry in the tax treatment of payments in and payments out for domestic and foreign schemes is insufficient where in domestic schemes payments in give rise to a tax deduction or exemption and payments out are taxed, whereas for foreign schemes payments in do not give rise to a deduction but neither are payments out taxed.
   The tax advantage granted for pension insurance schemes set up with domestic pension institutions consists primarily of a deferment of the tax owing on an amount equal to the payments made into the scheme. The tax deferment makes domestic pension insurance schemes particularly attractive, even though the payments out are taxed at a later time. The presence of taxation ‘symmetry’ for foreign pension insurance schemes does not compensate for that lost tax advantage.
   Denmark must recognise that pension insurance schemes set up in pension institutions established in other Member States must be covered by the same tax advantages as domestic pension insurance schemes. It is only in cases where Denmark is not entitled to tax payments out from the pension insurance scheme that it can be relevant to consider the aspect of coherence of the tax system. Denmark can tax all payments out from schemes to policy-holders residing in Denmark, regardless of whether the scheme has been set up in Denmark or elsewhere. Denmark only loses that right if the policy-holder moves his or her place of residence to another country.
   The Commission also finds that the necessary coherence of the Danish tax system has not been established, in that Denmark has entered into double-taxation conventions with a number of countries, which means that the coherence of the tax system is not attained for individual taxpayers in terms of a close connection between deductions for payments in and taxation of payments out of the scheme.
   Double-taxation conventions which follow the OECD model ensure that payments out of pension insurance schemes are not taxed either in the country where the insured resides or in the country where the pension institution is established. It follows from those conventions that payments out of pension insurance schemes can be taxed only in the country where the pension beneficiary resides. Those agreements imply that Denmark has waived the right to tax payments from pension institutions established in Denmark. This is true regardless of whether or not the payments into the pension insurance scheme have given rise to tax deductions in Denmark. On the other hand, Denmark may tax all pension payments to policy-holders resident in Denmark, even though the payments into the scheme were made in one of the countries which is party to the convention.
   Other double-taxation conventions contain provisions which allow policy-holders to deduct payments into foreign pension insurance schemes. People who move to Denmark from one of those countries can thus maintain their pension insurance schemes in their home country and deduct the payments into the schemes from their taxable income in Denmark. The deduction provisions in those conventions show that the Danish rules not allowing for tax deductions for payments into foreign pension schemes are not consistent.

      (1)  OJ 1977 L 336, p. 15.


title: Reference for a preliminary ruling by Her Majesty's Court of Session in Scotland, by decision of that court of 29 March 1996, in the case of Marie Brizard et Roger International SA against William Grant & Sons (International) Ltd and Another (Case C-126/96)

text:
 No C 180/20              EN j                 Official Journal of the European Communities                                      22 . 6 . 96
 Pleas in law and main arguments                                                38 ( 1 ) where the issuing court has already ordered that
                                                                                provisional execution of the judgment against the
 Lack of competence of the Commission ( see Case C-ll/96,                      judgment debtor is to be conditional on the provision of
 OJ No C 95 , 1996, p. 5 ).                                                     certain security to the judgment debtor.
 Misuse, of powers: the articles added ex novo to Directive
 90/388/EEC by Directive 96/2/EC make substantive                         Interrelationship between Article 38 (2) and the issuing
 changes to the existing system without observing either the              court's order for security
 division of powers between the Community institutions and
 in relation to the Member State or the procedure and the
 timetable laid down by the Council for drawing up the                    3 . Whether or not the Article 37(1 ) appellate court has the
 necessary provisions to enable the obligations flowing from                   power to consider whether the security or guarantee
 the full liberalization of the mobile and personal                            already provided by the judgment creditor is an
 communications sector to be imposed upon the Member                           adequate response to the order of the issuing court and
 States .                                                                      take account of any inadequacy in deciding whether to
                                                                               make an order under Article 38 ( 2 ), and
 (') OJ No L 20, 26 . 1 . 1996 , p . 59 .
 ( 2 ) OJ No L 192 , 24 . 7 . 1990, p . 10.
                                                                          4 , whether or not the Article 37(1 ) appellate court has the
                                                                               power, under Article 38 ( 2 ), to make enforcement
                                                                               conditional on the provision of security or guarantee
                                                                               greater than that ordered by the issuing court pending a
                                                                               final determination of the appeal proceedings in the
                                                                               issuing country .
Reference for a preliminary ruling by Her Majesty's Court
of Session in Scotland, by decision of that court of 29 March
 1996, in the case of Marie Brizard et Roger International SA             Time of exercise of Article 38 (1 ) power to sist or stay
against William Grant & Sons ( International ) Ltd and
                                 Another
                            Case C- 1 26/96                              5 . Whether or not the power to sist or stay the proceedings
                             ( 96/C 180/42 )                                   under Article 38 ( 1 ) may be exercised by an Article 37
                                                                               ( 1 ) appellate court only on dismissing the Article 37 ( 1 )
                                                                               appeal (regardless of whether a further appeal on a point
Reference has been made to the Court of Justice of the
European Communities by a decision of Her Majesty's                            of law may be made^ to the court designated under
                                                                              Article 37 ( 2 )) or instead may be exercised by the Article
Court of Session in Scotland of 29 March 1996, which was
                                                                               37(1 ) appellate court before it reaches any final decision
received at the Court Registry on 18 April 1996, for a                        on the merits of the appeal before it.
preliminary ruling in the case of Marie Brizard et Roger
International SA against William Grant & Sons
( International ) Ltd and another, on the following
questions :                                                              Interrelationship between Article 38 (1 ) and Article 34
Interrelationship between Article 38 (l )( l ) and Article 38
(2)
                                                                         6 . Whether, when deciding whether or not to exercise the
                                                                              power given under Article 38 ( 1 ), the Article 37 ( 1 )
                                                                              appellate court may properly take into consideration,
1 , ( a ) Whether or not, in a situation where adequate
            protection for the judgment debtor can be made
            available, Article 38 is to be construed to make                      ( i ) only those matters set out in Articles 27 and 28 ;
            available to the Article 37 ( 1 ) appellate court both
            the Article 38 ( 1 ) power to sist or stay the                      ( ii ) those matters which have arisen due to a material
            proceedings and the Article 38 ( 2 ) power to make
                                                                                change of circumstances since the order for
            enforcement of a judgment conditional on such
                                                                                provisional execution was pronounced;
            security as the Court shall determine, and
       ( b) If Question ( 1 ) ( a ) is answered in the affirmative,           ( iii ) matters of which the respondents could not have
            whether the exercise of one of these powers is to be                        been aware at the time the order for provisional
            preferred to that of the other.                                             execution was pronounced;
Interrelationship between Article 38 (1 ) and the issuing                     ( iv ) matters of which the respondents were unaware at
court's order for security                                                              the time of the order for provisional execution,
                                                                                whether or not they might reasonably have
2 . Whether or not the Article 37(1 ) appellate court has the                           anticipated them, and which were accordingly not
       power to order a sist or stay in proceedings under Article                       presented to the issuing court;
 ---pagebreak--- 22 . 6 . 96           | EN                  Official Journal of the European Communities                                  No C 180/21
      (v )  matters of which the defenders were aware but              Reference for a preliminary ruling by the Conseil d'Etat du
            which they did not have opportunity to raise               Royaume de Belgique by judgment of that court of
            before the issuing court ?                                 29 March 1996 in the case of Inter-Environnement
                                                                                Wallonie ASBL against Région Wallonne
Powers ancillary to the exercise of Article 38 (1 ) power to                                     ( Case C- 1 29/96 )
sist or stay                                                                                ( 96/C 180/44 )
7. Whether the Article 37 ( 1 ) appellate court has power to
      make an order for a stay or sist of the enforcement              Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Conseil d'Etat
      proceedings conditional upon the judgment debtor                 Section d'Administration ( Council of "State, Administrative
      providing security or guarantee sufficient to protect the        Section ) of 29 March 1996 , which was received at the Court
      interests of the judgment creditor in the event that the
                                                                       Registry on 23 April 1996, for a preliminary ruling in the
      judgment debtor is unsuccessful in its appeal against the
      judgment in the issuing State .
                                                                       case of Inter-Environnement Wallonie ASBL against Région
                                                                       Wallone on the following questions :
0 ) Article 38 ( 1 ) of the Convention of 27 September 1968 on
     Jurisdiction and the Enforcement of Judgments in Civil and        1 . Do Articles 5 and 189 of the EC Treaty preclude
     Commercial Matters ( OJ No L 299 , 1972 , p . 32 ) as amended by        Member States from adopting a provision contrary to
     the Convention of 9 October 1978 on the Accession of the                Directive 75/442/EEC of 15 July 1975 on waste (*), as
     Kingdom of Denmark, Ireland and the United Kingdom of                   amended by Directive 91 /156/EEC of 18 March
     Great Britain and Northern Ireland ( OJ No L 304, 1978 , p . 1          1991 ( 2 ), before the period for transposing the latter has
     and — as amended — p . 77 ).                                            expired ?
                                                                             Do those same Treaty Articles preclude Member States
                                                                             from adopting and bringing into force legislation which
                                                                             purports to transpose the abovementioned Directive but
                                                                             whose provisions appear to be contrary to the
Reference for a preliminary ruling by Sala de lo Social,                     requirements of that Directive ?
Tribunal Superior de Justicia, Murcia, by order of that court
of 22 February 1996 in the case of Francisco Hernández                 2 . Is a substance referred to in Annex I to Council Directive
Vidal, SA and Prudencia Gómez Pérez, María Gómez Pérez,                      91 /156/EEC of 18 March 1991 amending Directive
                  and Contratas y Limpiezas, SL                              75/442/EEC on waste and which directly or indirectly
                           Case C-127/96 )                                   forms an integral part of an industrial production
                           ( 96/C 180/43 )
                                                                             process to be considered 'waste' within the meaning of
                                                                             Article 1 ( a ) of that Directive ?
Reference has been made to the Court of Justice of the
                                                                       (') OJ No L 194 , 1975 , p . 39 .
European Communities by an order of the Sala de lo Social              ( 2 ) OJ No L 78 , 1991 , p . 32 .
( Chamber for Social Matters ), Tribunal Superior de Justicia
( High Court of Justice ), Murcia, of 22 February 19 96 ,
which was received at the Court Registry on 22 April 1996 ,
for a preliminary ruling in the case of Francisco Hernandez
Vidal, SA and Prudencia Gomez Pérez, Maria Gômez Pérez,
and Contratas y Limpiezas, SL on the following
questions :
                                                                       Reference for a preliminary ruling by order of the Supremo
( a ) whether the work of cleaning the premises of an                  Tribunal Administrative ( Second Division — Taxation
       undertaking whose main business is not cleaning, being          matters ) of 28 February 1996 in the proceedings pending
       in this case the production of chewing gum and sweets,          before that court between Fazenda Publica and Solisnor —
       but having a permanent need for that secondary                                          Estaleiros Naveis SA
       activity, is a 'part of a business'.
                                                                                ( Case C- 1 3 0/96 )
( b ) and whether the term ' legal transfer' may cover the                                            96/C 180/45 )
       termination of a mercantile contract for the provision
       of cleaning services, after three years, with annual
                                                                       Reference has been made to the Court of Justice of the
       renewals, at the end of the third year, by decision of the
       undertaking hiring the services; and whether, if that is        European Communities by an order of the Supremo
                                                                       Tribunal Administrative ( Supreme Administrative Court)
       the case, it may depend on whether the undertaking
       hiring the services carries out the cleaning using its own
                                                                       ( Second Division — Taxation matters ) of 28 February 1996 ,
       workers or using workers under a new contractual                which was received at the Court Registry on 24 April 1996 ,
                                                                       for a preliminary ruling in the proceedings pending before
       arrangement .
                                                                       that court between Fazenda Publica ( National Revenue
                                                                       Authority ) and Solisnor — Estaleiros Naveis SA, on the
                                                                       following question :


title: Case T-80/01: Action brought on 9 April 2001 by Barbara Diehl-Leistner against the Commission of the European Communities

text:
C 186/10              EN                     Official Journal of the European Communities                                      30.6.2001
Action brought on 5 April 2001 by Robert Bosch GmbH                                                   — Registration of the mark in
against the Office for Harmonisation in the Internal                                                      question would accord with
              Market (Trade Marks and Designs)                                                            the other aspects of the
                                                                                decision-making practice fol-
                                                                                lowed by the Boards of
                         (Case T-79/01)                                                                   Appeal.
                                                                                — Infringement,        alternatively
                        (2001/C 186/15)                                                                   misinterpretation,            of
                                                                                Article 7(1)(b) and (c) of Regu-
                                                                                lation No 40/94.
                  (Language of the case: German)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1).
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
5 April 2001 by Robert Bosch GmbH, of Stuttgart (Germany),
represented by Stefan Völker, Rechtsanwalt, with an address
for service in Luxembourg.
The applicant claims that the Court should:
—     annul the decision adopted on 31 January 2001 by the
      First Board of Appeal of the Office for Harmonisation in          Action brought on 9 April 2001 by Barbara Diehl-Leistner
      the Internal Market (Trade Marks and Designs) in the                against the Commission of the European Communities
      appeal proceedings registered under number
      R 124/2000-1 concerning Community trade mark appli-
      cation No 761 270;                                                                          (Case T-80/01)
—     order the defendant Office to pay the costs.                                               (2001/C 186/16)
Pleas in law and main arguments                                                           (Language of the case: German)
                                                                        An action against the Commission of the European Communi-
Applicant for the Com-        the applicant                             ties was brought before the Court of First Instance of the
munity trade mark:                                                      European Communities on 9 April 2001 by Barbara Diehl-
                                                                        Leistner, Luxembourg, represented by Lex Thielen, Lawyer,
The trade mark con-           the verbal mark ‘Kit Pro’                 with an address for service in Luxembourg.
cerned:
                                                                        The applicant claims that the Court should:
Goods or service con-         goods and services in Class 12
cerned:                       (parts for repairing drum brakes          —     annul the decision notified to the applicant by letter of
                              in land vehicles)                               the selection board for Competition COM/A/12/98, 02
                                                                              of 17 April 2000 that she is not included on the list of
Decision        contested     refusal of the application for regis-           successful candidates in the open competition and the
before the Board of           tration of the mark                             decision of 17 January 2001 rejecting her complaint of
Appeal:                                                                       4 July 2000;
Grounds of claim:             — The mark is not descriptive             —     order the defendant to pay the costs.
                                  within the meaning of
                                  Article 7(1)(c) of Regulation
                                  (EC) No 40/94 (1).                    Pleas in law and main arguments
                              — There is no need to keep the
                                  mark free.
                                                                        The applicant took part in Open Competition COM/A/12/98,
                              — The mark possesses the mini-            02 and was informed that she was not placed on the list of
                                  mum level of distinctiveness          successful candidates in the competition because she did not
                                  necessary for trade-mark pro-         achieve the minimum mark in the oral test. Her complaint
                                  tection.                              against that decision was rejected by the defendant.
 ---pagebreak--- 30.6.2001              EN                     Official Journal of the European Communities                                        C 186/11
The applicant alleges, inter alia, that the principle of equal           applicants submitted to the Commission on 20 October 2000
treatment was infringed in her oral test. That test, which was           that the gypsum tanker Arizona be exempted from application
conducted in German as ‘Language 1’, was not attended by a               of the ‘old-for-new obligations’ laid down in Article 4(1) of
member of the selection board with German as mother tongue,              Regulation No 718/1999. In the contested decision, the
while other candidates had examiners whose mother tongue                 Commission decided not to grant the requested exemption, a
was their ‘Language 1’. The applicant contends that she was              decision which has a direct adverse effect on the applicants’
not always understood correctly during the test. By reason of            interests.
that infringement of the principle of equal treatment the
selection board failed to observe the rules governing its work,
and it was not ensured in accordance with Article 27 of the
Staff Regulations that the defendant secured the services of             The vessel Arizona is a gypsum tanker which transports
officials of the highest standard of ability.                            calcined gypsum. In the contested decision, the Commission
                                                                         takes the view, by reference to the conditions laid down in
                                                                         Article 4(6) of the regulation, that if those conditions are
                                                                         satisfied, the vessel does not contribute to an increase in fleet
                                                                         capacity and thus does not adversely affect the objectives of
                                                                         the Community rules. The Commission states that, while
                                                                         consulting the expert group ‘capacity policy and promotion of
                                                                         Community inland waterway transport’, it learned that, as a
                                                                         gypsum tanker, the vessel carries out transport operations in
                                                                         the same way as other vessels on the market which also
                                                                         transport gypsum but which have not benefited from exemp-
Action brought on 5 April 2001 by M.O.H. Verdoodt and                    tion from the ‘old-for-new’ rule.
I.E.M. Rademakers-Verdoodt against the Commission of
                  the European Communities
                                                                         According to the applicants, however, the consignments for
                          (Case T-81/01)                                 transport by the Arizona are not ’gypsum’ but rather calcined
                                                                         gypsum. Previously, calcined gypsum was transported solely
                                                                         by lorry: apart from the Arizona, there is no vessel which can
                         (2001/C 186/17)                                 and may transport calcined gypsum. The gypsum which other
                                                                         vessels transport is therefore a different type of cargo to the
                                                                         calcined gypsum which the Arizona transports. Other vessels
                                                                         transport loose or rough gypsum. Moreover, the market for
                    (Language of the case: Dutch)
                                                                         vessels which transport ‘gypsum’ is different to that for the
                                                                         transport of calcined gypsum. The market for the transpor-
An action against the Commission of the European Communi-                tation of calcined gypsum consists of lorry transport and, since
ties was brought before the Court of First Instance of the               the construction of the Arizona, of transport by the Arizona,
European Communities on 5 April 2001 by M.O.H. Verdoodt                  which thus, each year, moves the equivalent of some 2 400 lor-
and I.E.M. Rademakers-Verdoodt, both resident in Schoten                 ries. The Arizona is technically unsuitable for the transportation
(Belgium), represented by J. van Dam, of the Rotterdam Bar.              of other goods. The European Commission’s view that, follow-
                                                                         ing minor modifications, the Arizona could transport any type
                                                                         of goods is clearly attributable to erroneous information.
The applicants claim that the Court should:
(1) Annul Commission Decision SG (2001) D/286098 of
      9 February 2001 not to grant the applicants the requested          The Commission errs in its conclusion that granting the
      exemption from the old-for-new obligations set out in              Arizona exemption from the old-for-new rule would result in
      Article 4(1) of Council Regulation (EC) No 718/1999 of             a distortion of competition. On the contrary, ‘fair and honest
      29 March 1999 on a Community-fleet capacity policy to              treatment of all market players’ means that the Arizona, as
      promote inland waterway transport, and rule that the               a specialised vessel satisfying the classification criteria of
      requested exemption ought to be granted in respect of              Article 4(6) of Regulation No 718/1999, ought to be exempted
      the Arizona;                                                       from the old-for-new obligations.
(2) Order the defendant to pay the costs.
                                                                         The applicants offer to substantiate their views by all legal
                                                                         means, in particular by way of witnesses and experts.
Pleas in law and main arguments
The applicants challenge Commission Decision SG (2001)
D/286098 of 9 February 2001, which is addressed to them.
That decision was issued in response to the request which the


title: Case T-106/14: Action brought on 14 February 2014 — Universal Utility International v OHIM (Greenworld)

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/37

         Action brought on 14 February 2014 — Universal Utility International v OHIM (Greenworld)
   (Case T-106/14)
   2014/C 142/48
   Language of the case: German

      Parties

      Applicant: Universal Utility International GmbH & Co. KG (Kaarst, Germany) (represented by J. Mietzel, lawyer)

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

      Form of order sought

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 December 2013 in Case R 1658/2013-4;

               —

               in the alternative, annul the contested decision in so far as it upheld the refusal of the application for the services in classes 35 and 39;

               —

               in the further alternative, annul the contested decision in so far as it upheld the refusal of the application for the services in class 35;

               —

               order OHIM to pay the costs, including the costs incurred in the appeal proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark Greenworld for goods and services in Classes 4, 35 and 39 — Community trade mark application No 11 616 588

      Decision of the Examiner: Application refused

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law:

               —

               Breach of Article 7(1)(c) of Regulation No 40/94

               —

               Breach of Article 7(1)(b) of Regulation No 40/94


title: Case T-405/07: Action brought on 14 November 2007 — Caisse Fédérale du Crédit Mutuel Centre Est Europe v OHIM (P@YWEB CARD)

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/21

         Action brought on 14 November 2007 — Caisse Fédérale du Crédit Mutuel Centre Est Europe v OHIM (P@YWEB CARD)
   (Case T-405/07)
   (2008/C 8/37)
   Language in which the application was lodged: French
   Parties

      Applicant: Caisse Fédérale du Crédit Mutuel Centre Est Europe (Strasbourg, France) (represented by: P. Greffe and J. Schouman, lawyers)

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

               —

               Annulment of the decision of the First Board of Appeal of OHIM of 10 July 2007, notified on 14 September 2007, Case R 119/2007-1 refusing its application for registration of Community trade mark P@YWEB CARD, application No 3 861 044, for all the goods and services designated in classes 9, 36 and 38;

               —

               Registration of Community trade mark application P@YWEB CARD No 3 861 044, for all the goods and services designated.

         Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘P@YWEB CARD’ for goods and services in classes 9, 36 and 38 (Application No 3 861 044)

      Decision of the Examiner: Application for registration refused

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94 (1) in that, according to the applicant and contrary to the findings in the contested decision, the term ‘P@YWEB CARD’ is not descriptive but, on the contrary, distinctive in relation to the goods and services designated.

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


title: Reference for a preliminary ruling from the Hessisches Finanzgericht by order of that court of 31 March 1995 in the case of Bernd Emil Giloy v. Hauptzollamt Frankfurt am Main - Ost (Case C-130/95)

text:
24 . 6 . 95             EN                  Official Journal of the European Communities                                   No C 159/19
1 . Is there a prohibition of parallel imports otherwise than          4 . In the event that suspension of the implementation of
     on the basis of an authority given to an agent who is a               the decision is granted, is security still to be lodged to the
     provider of services and consequently by a purchase and               extent of the amount of the duty or does the possibility
     resale transaction ?                                                  exist of limiting it to a partial amount having regard to
                                                                           applicant's overall economic situation ?
2 . Is an independent dealer prohibited from acting as a
     provider of services as a free agent, and at the same time        (!) OJ No L 302 , 19 . 10 . 1992 , p . 1 .
     as a dealer inter alia carrying out parallel imports ?
3 . Is an independent dealer prohibited from selling new               Reference for a preliminary ruling from the Nederlandse
     vehicles and, in any case, what is the definition of 'new         Raad van State by judgment of that court of 25 October
     vehicle ' and ' second-hand vehicle '?
                                                                       1994 in the case of P. J. Huijbrechts v. Commissie voor de
                                                                       Behandeling van Administratieve Geschillen ingevolge
                                                                       Artikel 41 der Algemene Bijstandswet in de Provincie
                                                                                Noord-Brabant
                                                                                ( Case C-131/95 )
Reference for a preliminary ruling from the Hessisches                                           ( 95/C 159/38 )
Finanzgericht by order of that court of 31 March 1995 in the
case of Bernd Emil Giloy v. Hauptzollamt Frankfurt am                  Reference has been made to the Court of Justice of the
                            Main — Ost                                 European Communities by a judgment of the Nederlandse
                                                                       Raad van State ( State Council of the Netherlands ) of
                         ( Case C-130/95 )
                                                                       25 October 1994 , which was received at the Court Registry
                           ( 95/C 159/37 )                             on 21 April 1 995 , for a preliminary ruling in the case of P. J.
                                                                       Huijbrechts v. Commissie voor de Behandeling van
Reference has been made to the Court of Justice of the                 Administratieve Geschillen ingevolge Artikel 41 der
European Communities by an order of the Hessisches                     Algemene Bijstandswet in de Provincie Noord-Brabant
Finanzgericht ( Finance Court, Hesse ) of 31 March 1995 ,              ( Administrative Appeals Board for Disputes under
which was received at the Court Registry on 21 April 1 995 ,           Article 41 of the General Law on Assistance ), on the
for a preliminary ruling in the case of Bernd Emil Giloy v.            following questions :
Hauptzollamt ( Principal Customs Office ) Frankfurt am
Main — Ost on the following questions :                                1 . In the event that a Member State causes the grant of a
                                                                           benefit following on from an unemployment benefit, as
                                                                           in the case of Article 2 ( 1 ) ( a ) ( 3 ) of the Wet
1 . Are the two conditions set out in the second paragraph                 Inkomensvoorziening           Oudere       en     Gedeeltelijk
     of Article 244 of Council Regulation ( EEC ) No 2913/92               Arbeidsongeschickte Werklose Werknemers ( Law on
     of 12 October 1992 establishing the Community                         the Provision of Income for Elderly Unemployed
     Customs Code ( J ) ('the Customs Code '), namely:                     Workers and Unemployed Workers suffering from
                                                                           Partial Incapacity to Work, 'the IOAW'), to depend on
     — good reason to believe that the disputed decision is
                                                                           the requirement that benefit must have been received
          unlawful, or
                                                                           under the statutory unemployment provisions in force in
     — irreparable damage for the person concerned,                        the Member State during the whole period for which
                                                                           benefit was payable, should , as a result of Article 67 of
     completely independent of each other, with the result                 Regulation ( EEC ) No 1408/71 on the application of
     that suspension of the implementation of a decision is                social security schemes to employed persons, to
     also to be granted where there is no good reason to                   self-employed persons and to members of their families
     believe that the payment order whose implementation is                moving within the Community ( in the consolidated
     sought to be suspended is unlawful but irreparable                    version set out in Regulation ( EEC ) No 2001/83 i 1 )) the
     damage is to be feared for the person concerned ?                     periods during which unemployment benefit was
                                                                           received in another Member State be regarded as periods
     If question 1 is answered in the affirmative :                        of insurance or of employment ?
                                                                       2 . If not, does the fact that, in assessing whether a
2 . Does the presence of the condition mentioned in the                    requirement laid down in Article 2 ( 1 ) ( a ) ( 3 ) of the
     second indent inevitably preclude a requirement to                    IOAW to the effect that benefit must have been received
     lodge security or is this subject to further conditions and,          during the whole period for which benefit was payable
     if so, which ?                                                        under the statutory provisions on unemployment in
                                                                           force in the competent Member State is satisfied, no
3 . Does the danger of losing one's employment — which                     account is taken of unemployment benefit received in
     may have possibly already materialized on account of                  another Member State constitute discrimination on
     the claim for duty having become due — constitute                     grounds of nationality within the meaning of Article 7 of
     ' serious economic or social difficulties ' even where the            the EEC Treaty (now Article 6 of the EC Treaty )?
     necessary minimum for subsistence is secured as a result
     of domestic legislation, for instance by social                   H OJ No L 230 , 22 . 8 . 1983 , p . 6 .
     welfare ?


title: Case C-9/07: Judgment of the Court (Seventh Chamber) of 27 September 2007 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2002/74/EC — Protection of employees in the event of the insolvency of their employer — Failure to transpose within the prescribed period)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/18

         Judgment of the Court (Seventh Chamber) of 27 September 2007 — Commission of the European Communities v French Republic
   (Case C-9/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/74/EC - Protection of employees in the event of the insolvency of their employer - Failure to transpose within the prescribed period)
   (2007/C 297/28)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: J. Enegren and G. Rozet, acting as Agents)

      Defendant: French Republic (represented by: G. de Bergues and O. Christmann, acting as Agents)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt within the prescribed period the provisions necessary to comply with Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 2002 L 270, p. 10)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, the French Republic has failed to fulfil its obligations under that directive.

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 69 of 24.3.2007.


title: Case T-289/03: Action brought on 19 August 2003 by British United Provident Association Limited, BUPA Insurance Limited and BUPA Ireland Limited against Commission of the European Communities

text:
C 264/32                EN                          Official Journal of the European Union                                          1.11.2003
The applicant further claims that the contested regulation                  Pleas in law and main arguments
infringes Regulation (EC) No 384/96 because the partial
interim review does not justify altering the amount of duty.
According to the notice the review should be confined to the
nature of the applicable measure but it went further than that.             The applicant provides private medical insurance in Ireland. In
In addition the amount of the duty was set entirely arbitrarily.            the contested decision, the Commission decided not to raise
Regulation (EC) No 384/96 does not provide for the possibility              any objections to the risk equalisation scheme to be
of using the results of reviews that are over 12 years old. It              implemented by the Irish authorities in the Irish market for
does not allow the results of reviews that are older than five              private medical insurance. According to the applicant, the
years to be used.                                                           effect of this scheme is to grant a subsidy to the dominant
                                                                            provider of medical insurance, the Voluntary Health Insurance
                                                                            Board; the subsidy would be funded by a charge to be imposed
Finally no specific dumping margin was laid down in the final               on the applicant.
review and it is impossible to see how a duty of 27,1 % could
be arrived at based on that review.
                                                                            In support of its application, the applicant invokes, firstly, the
(1) OJ L 143, p. 1.
                                                                            misapplication by the Commission of Article 87(1) EC. The
(2) Council Regulation (EC) No 384/96 of 22 December 1995 on                applicant submits that the Commission considered that the
    protection against dumped imports from countries not members            risk equalisation scheme did, in principle, satisfy the conditions
    of the European Community (OJ L 56, p. 1), most recently                for aid under Article 87(1) EC. However, it decided that the
    amended by Regulation (EC) No 1972/2002 (OJ L 305, p. 1).               scheme compensated the Voluntary Health Insurance Board
                                                                            for public service obligations.
                                                                            According to the applicant, the Commission misapplied the
                                                                            public service compensation test as set out in the jurisprudence
                                                                            of the Court of Justice (1). The applicant states that the
                                                                            obligations identified by the Commission were the require-
                                                                            ments for private medical insurers in Ireland to follow the
Action brought on 19 August 2003 by British United
                                                                            principles of open enrolment, community rating, minimum
Provident Association Limited, BUPA Insurance Limited
                                                                            benefits and lifetime cover. These are, according to the
and BUPA Ireland Limited against Commission of the
                                                                            applicant, not to be considered as public service obligations or
                     European Communities
                                                                            obligations following the operation of services of general
                                                                            economic interest. These obligations would rather represent
                         (Case T-289/03)                                    general regulation of the private medical insurance market,
                                                                            applicable to all insurers. The applicant furthermore submits
                                                                            that the Commission did not consider whether these obli-
                         (2003/C 264/55)                                    gations imposed a financial burden on the Voluntary Health
                                                                            Insurance Board.
                    (Language of the case: English)
                                                                            The applicant states that the Commission’s alternative basis
                                                                            for the contested decision was that the risk equalisation scheme
                                                                            could be approved under Article 86(2) EC. The applicant
An action against the Commission of the European Communi-                   submits that the Commission failed to ensure that the con-
ties was brought before the Court of First Instance of the                  ditions for approval under that article were satisfied. According
European Communities on 19 August 2003 by British United                    to the applicant, the relevant private medical insurance obli-
Provident Association Limited, London, (United Kingdom) and                 gations were not services of general economic interest. The
BUPA Insurance Limited, London, (United Kingdom) and                        applicant furthermore submits that the Commission’s argu-
BUPA Ireland Limited , Dublin, (Ireland), all represented by                ments on necessity and proportionality were based on both
Mr N. Green QC, Mr K. Bacon Barrister, Mr B. Amory, lawyer                  errors of reasoning and manifest errors of fact. The applicant
and Mr J. Burke, Barrister.                                                 also claims that the Commission did not consider whether the
                                                                            scheme would affect the development of trade contrary to the
                                                                            interests of the Community.
The applicant claims that the Court should:
—     annul the Commission decision C(2003)1322 fin of                      The applicant also submits that the Commission erred in
      13 May 2003;                                                          failing to consider whether the risk equalisation scheme
                                                                            infringed Article 82 EC taken together with Article 86(1) EC,
—     order that the Commission pays the applicant’s costs.                 Articles 43 and 49 EC and Council Directive 92/49/EEC (2).
 ---pagebreak--- 1.11.2003               EN                           Official Journal of the European Union                                       C 264/33
The applicant finally submits that the Commission should                     —     from the failure to examine an unknown number of
have initiated a formal investigation procedure under                              candidates in the language which they had declared to be
Article 88(2) EC given the complexity of the arguments in fact                     their ‘principal’ language;
and law raised by the applicant and the economic analysis
required.                                                                    —     from the failure to examine the applicant in the third
                                                                                language declared by him, and also from the (in his
                                                                                submission) different treatment of the candidates as
(1) Case C-53/00 Ferring [2001] ECR I-9067 and Case C-280/00                       regards examination of the third language and any further
    Altmark Trans GmbH and Regierungspräsidium Magdeburg, not                      languages known by them;
    yet published in the ECR.
(2) Council Directive 92/49/EEC of 18 June 1992 on the coordination
    of laws, regulations and administrative provisions relating to           —     from the appointment of further members of the selection
    direct insurance other than life assurance and amending Directives             board in addition to those initially appointed, after
    73/239/EEC and 88/357/EEC (third non-life insurance Directive)                 notification of the names of the candidates admitted to
    (OJ L 228, p. 1).                                                              the oral examination, from the fact that the selection
                                                                                board included two members appointed by the Staff
                                                                                Committee instead of one, and from the alteration in the
                                                                                composition of the board when the oral examinations
                                                                                were conducted.
Action brought on 18 August 2003 by Georgios Pantoulis
  against the Commission of the European Communities
                          (Case T-290/03)                                    Action brought on 20 August 2003 by Messe Berlin
                                                                             GmbH against the Office for Harmonisation in the
                                                                                Internal Market (Trade Marks and Designs)
                          (2003/C 264/56)
                                                                                (Case T-292/03)
                     (Language of the case: Greek)
                                                                                (2003/C 264/57)
An action against the Commission of the European Communi-                                       (Language of the case: German)
ties was brought before the Court of First Instance of the
European Communities on 18 August 2003 by Georgios
Pantoulis, resident in Brussels (Belgium), represented by Kharis-
sios Tagaras, lawyer.                                                        An action against the Office for Harmonisation in the Internal
                                                                             Market (Trade Marks and Designs) was brought before the
                                                                             Court of First Instance of the European Communities on
The applicant claims that the Court should:                                  20 August 2003 by Messe Berlin GmbH, Berlin, represented
                                                                             by R. Lange and E. Schalast, lawyers.
—     annul the decision of the selection board for Competition
      COM/A/6/01 — section 02 not to include him on the list
      of successful candidates in that competition and the                   The applicant claims that the Court should:
      defendant’s reply of 10 June 2003 by which it rejected his
      complaint under no R/55/2003, lodged on 10 February                    —     annul the decision of the Second Board of Appeal of the
      2003, requesting revocation of the selection board;                          Office for Harmonisation in the Internal Market (Trade
                                                                                Marks and Designs) of 5 June 2003 (Case No R 646/
—     order the defendant to pay his costs.                                        2001-2);
                                                                             —     order the defendant Office to pay the costs of the
                                                                                proceedings.
Pleas in law and main arguments
In support of his action, the applicant pleads breaches of the               Pleas in law and main arguments
competition notice, of the principles and rules governing the
functioning of selection boards, of the principle of equal
treatment and of the Staff Regulations (Annex III). In his                   Community trade mark           The word mark ‘HOMETECH’ —
submission those breaches have arisen:                                       sought:                        application No 1985118


title: Case C-337/07: Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany), lodged on 20 July 2007 — Ibrahim Altun v Stadt Böblingen

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/18

         Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany), lodged on 20 July 2007 — Ibrahim Altun v Stadt Böblingen
   (Case C-337/07)
   (2007/C 269/35)
   Language of the case: German
   Referring court
   Verwaltungsgericht Stuttgart
   Parties to the main proceedings

      Applicant: Ibrahim Altun

      Defendant: Stadt Böblingen
   Questions referred

               1.

               Does the acquisition of the rights under the first sentence of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council require that the ‘principal’ person entitled, with whom the member of the family has been legally resident for the period of three years, satisfies the conditions of the first sentence of Article 7 of Decision No 1/80 throughout the whole of that period?

               2.

               Does it suffice in this respect for a member of the family to acquire the rights under the first sentence of Article 7 of Decision No 1/80 that the ‘principal’ person entitled is employed during that period for two years and six months with different employers, is then unemployed through no fault of his own for six months, and also remains unemployed for a substantial period thereafter?

               3.

               Can a person also rely on the first sentence of Article 7 of Decision No 1/80 if he, as a member of the family, has received permission to join a Turkish national whose right to stay, and hence his lawful access to the labour force of a Member State, is based solely on the granting of political asylum on the ground of political persecution in Turkey?

               4.

               In the event that Question 3 is to be answered in the affirmative: Can a member of the family rely on the first sentence of Article 7 of Decision No 1/80 even if the grant of political asylum, and on that basis the right of stay and lawful access to the labour market of the ‘principal’ person entitled (in this case the father), are based on false statements?

               5.

               In the event that Question 4 is to be answered in the negative: Is it necessary in such a case, before refusal of the rights under the first sentence of Article 7 of Decision No 1/80 to the member of the family, that the rights of the ‘principal’ person entitled (in this case the father) are first formally withdrawn or revoked?


title: Case F-11/11: Judgment of the Civil Service Tribunal (First Chamber) of 8 February 2012 — Bouillez and Others v Council (Civil service — Officials — Promotion — 2010 promotion exercise — Refusal of promotion — Consideration of comparative merits of officials in the AST function group following their career stream — Obligation on an institution not to apply a provision giving effect to the Staff Regulations which is tainted by illegality)

text:
               28.4.2012

               EN

               Official Journal of the European Union

               C 126/26

         Judgment of the Civil Service Tribunal (First Chamber) of 8 February 2012 — Bouillez and Others v Council
   (Case F-11/11) (1)

   (Civil service - Officials - Promotion - 2010 promotion exercise - Refusal of promotion - Consideration of comparative merits of officials in the AST function group following their career stream - Obligation on an institution not to apply a provision giving effect to the Staff Regulations which is tainted by illegality)
   2012/C 126/48
   Language of the case: French

      Parties

      Applicants: Bouillez and Others (Overijse, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer and J. Herrmann, agents)

      Re:

   Application for annulment of the decision of the appointing authority not to promote the applicants to a higher grade in the 2010 promotion exercise.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the Council of the European Union to bear its own costs and to pay the applicants’ costs.

      (1)  OJ 7.5.2011 C 139, p. 30.


title: Case C-48/12: Action brought on 31 January 2012 — European Commission v Republic of Poland

text:
               17.3.2012

               EN

               Official Journal of the European Union

               C 80/13

         Action brought on 31 January 2012 — European Commission v Republic of Poland
   (Case C-48/12)
   2012/C 80/19
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: P. Hetsch, S. Petrova and K. Herrmann, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

               —

               declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe and in any event by not notifying the Commission of such provisions, the Republic of Poland has failed to fulfil its obligations under Article 33(1) of that directive;

               —

               impose upon the Republic of Poland, in accordance with Article 260(3) TFEU, a penalty payment for failure to fulfil its obligation to notify measures transposing Directive 2008/50/EC at the daily rate of EUR 71 521,38 from the day on which judgment is delivered in the present case;

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   The Commission alleges that the Republic of Poland has failed to fulfil the obligation laid down in Article 33(1) of Directive 2008/50/EC (‘the CAFE Directive’).
   The CAFE Directive is the principal legal instrument at European Union level relating to air pollutants, and thus seeks to protect the environment and human health. It sets out inter alia assessment and measurement standards, and reduction targets for the atmospheric concentration of particulate matter constituting the most harmful substances in the air for human health. It obliges the Member States to limit the exposure concentration for particulate matter PM 2.5 to 20 micrograms/m3 in 2015. In addition, it lays down a target value for PM 2.5 of 25 micrograms/m3 to be achieved by 2010. It also requires the Member States to achieve by 2015 a limit value for PM 2.5 of 25 micrograms/m3 (stage 1), and in the second stage (by 2020) one of 20 micrograms/m3. Furthermore, the CAFE Directive requires the Member States to give to the public information about air quality and other measures adopted on the basis of the directive (Article 26 et seq.).
   Under Article 33(1) of the CAFE Directive, the Republic of Poland had to adopt and to bring into force the national legal provisions necessary to implement the directive by 11 June 2010.
   The Republic of Poland has not incorporated into Polish law or brought into force all the necessary provisions. The drawing up of the fundamental principles of a draft law to amend the Law on environmental protection and certain other laws by the Ministry of the Environment does not constitute fulfilment of the obligation laid down in Article 33(1) of the CAFE Directive.
   The Commission has been informed by the Polish authorities only that Articles 6(1) and 23 of the CAFE Directive have been partially implemented by Articles 13 and 15 of the Law of 17 June 2009 on the system for the management of emissions of greenhouse gases and other substances, through the creation of a system for the management of emissions of sulphur dioxide (SO2) and nitrogen oxides and the obligation to draw up a draft national reduction plan.


title: Case C-58/03: Reference for a preliminary ruling by the Raad van State by order of that Court of 4 February 2003 in the case of Y.G. Encheva against Staatssecretaris van Justitie

text:
C 83/12                   EN                         Official Journal of the European Union                                           5.4.2003
The applicant claims that the Court should:                                  Reference for a preliminary ruling by the Raad van State
                                                                             by order of that Court of 4 February 2003 in the case of
                                                                                Y.G. Encheva against Staatssecretaris van Justitie
a)    declare that, by not adopting the measures necessary to
      comply with the judgment of the Court of Justice of the
                                                                                (Case C-58/03)
      European Communities of 9 March 2000 in Case C-386/
      98 ( 1), the Italian Republic has failed to fulfil its obligations
      under Article 228(1) EC.                                                                        (2003/C 83/20)
b)    impose a penalty payment on the Italian Republic in the
      sum of EUR 238 950 per day from the date of notification               Reference has been made to the Court of Justice of the
                                                                             European Communities by order of the Raad van State (Council
      of the judgment in the present case to the date of
      execution thereof.                                                     of State) of 4 February 2003, received at the Court Registry on
                                                                             12 February 2003, for a preliminary ruling in the case of
                                                                             Y.G. Encheva against Staatssecretaris van Justitie on the
c)    order the Italian Republic to pay the costs.                           following questions:
                                                                             1.    Is Article 59(1) of the Agreement establishing an associ-
                                                                                ation between the European Communities and their
                                                                                Member States, of the one part, and the Republic of
                                                                                Bulgaria, of the other part, to be interpreted as precluding
Pleas in law and main arguments                                                    the refusal of an application made in the Netherlands for
                                                                                an ordinary residence permit subject to a restriction that
                                                                                the person concerned be ‘self-employed’ on the grounds
                                                                                that the foreigner concerned, who is a national of
Under Article 228(1) EC, where the Court of Justice finds that                     Bulgaria, did not apply in that country or in the country
a Member State has failed to fulfil an obligation under the                        of permanent residence for a temporary residence author-
Treaty, that State is required to take the measures necessary to                   isation to be issued to that end and await the decision
comply with the judgment of the Court of Justice.                                  thereon in that country before coming to the Netherlands
                                                                                and therefore failed not satisfy the requirement laid down
                                                                                by Article 3.71(1) of the Vb 2000?
                                                                             2.    Does the fact that, unlike the situation concerned in the
Notwithstanding the repeated assurances of the Italian Govern-                     judgment of the Court of Justice of 27 September 2001
ment that the implementation of Directive 93/104 (2) into
                                                                                in Case C-257/99 [Barkoci and Malik], the foreigner
Italian law was imminent, it must be found that Italy has
                                                                                concerned already intended to work as a self-employed
not yet notified the Commission of the national measures
                                                                                person before leaving Bulgaria for the Netherlands and
implementing that directive. It should be noted that, pursuant
                                                                                failed to apply for such authorisation in Bulgaria despite
to Article 18(1)(a) and (c) of Directive 93/104, those measures
                                                                                having an opportunity to do so have any bearing on the
should have been notified by 23 November 1996.
                                                                                answer to the first question?
In those circumstances, the Commission must find that the
Italian Republic has failed to adopt the measures necessary to
comply with the judgment of the Court of 9 March 2000 in
Case C-386/98, and has thus failed to fulfil its obligations                 Reference for a preliminary ruling by the Tribunale di
under Article 228 EC.                                                        Genova — Sezione Lavoro by order of that Court of
                                                                             28 January 2003 in the case of Mario Cigliola and Others
                                                                                against Ferrovie dello Stato SpA
Pursuant to Article 228(2) EC, the Commission requests that
the Court impose a penalty on the Italian Republic in the sum                                         (Case C-59/03)
of EUR 238 950 for each day’s delay in complying with the
Court’s judgment in Case C-386/98, with effect from the date                                          (2003/C 83/21)
of judgment in the present case.
                                                                             Reference has been made to the Court of Justice of the
( 1) OJ C 149 of 27.5.2000, p. 2.                                            European Communities by order of the Tribunale di Genova
( 2) OJ L 307 of 13.12.1993, p. 18.                                          — Sezione Lavoro (District Court, Genoa — Employment
                                                                             Division) of 28 January 2003, received at the Court Registry
                                                                             on 13 February 2003, for a preliminary ruling in the case of
                                                                             Mario Cigliola and Others against Ferrovie dello Stato SpA on
                                                                             the following question: