title: Judgment of the Court (Fourth Chamber) of 8 March 2001 in Case C-97/00: Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Failure to transpose Directive 97/52/EC)

text:
16.6.2001                 EN                     Official Journal of the European Communities                                            C 173/17
National legislation such as Article C.11.1(1) of the Besluit radio-        1.    Declares that, by failing to adopt, within the prescribed periods,
elektrische inrichtingen, which prohibits commercial advertising for              all the laws, regulations and administrative provisions necessary
transmitting equipment of a non-approved type, does not constitute,               to comply with the provisions referred to in the first subpara-
for the purposes of Council Directive 83/189/EEC of 28 March                      graph of Article 4(1) of Council Directive 96/43/EC of 26 June
1983 laying down a procedure for the provision of information in                  1996 amending and consolidating Directive 85/73/EEC in
the field of technical standards and regulations, a technical regulation          order to ensure financing of veterinary inspections and controls
which should have been notified to the Commission prior to its                    on live animals and certain animal products and amending
adoption.                                                                         Directives 90/675/EEC and 91/496/EEC, the Federal Repub-
                                                                                lic of Germany has failed to fulfil its obligations under that
                                                                                subparagraph;
(1) OJ C 265 of 18.9.1999.
                                                                            2.    Dismisses the remainder of the action;
                                                                            3.    Orders the Federal Republic of Germany to pay the costs.
                                                                            (1) OJ C 299 of 16.10.1999.
                   JUDGMENT OF THE COURT
                            (First Chamber)                                                    JUDGMENT OF THE COURT
                           of 8 March 2001                                                            (Fourth Chamber)
                                                                                of 8 March 2001
in Case C-316/99: Commission of the European Communi-
              ties v Federal Republic of Germany(1)
                                                                            in Case C-97/00: Commission of the European Communi-
                                                                                ties v French Republic (1)
(Failure by a Member State to fulfil its obligations —
Directive 96/43/EC — Failure to transpose within the                        (Failure of a Member State to fulfil its obligations — Failure
                           prescribed period)                                                to transpose Directive 97/52/EC)
                            (2001/C 173/28)                                                             (2001/C 173/29)
                                                                                (Language of the case: French)
                    (Language of the case: German)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)
                                                                            In Case C-97/00: Commission of the European Communities
                                                                            (Agent: M. Nolin) v French Republic (Agents: K. Rispal-
In Case C-316/99: Commission of the European Communities                    Bellanger and S. Pailler) — application for a declaration
(Agent: K.-D. Borchardt) v Federal Republic of Germany                      that, by failing to communicate the laws, regulations and
(Agents: W.-D. Plessing and C.-D. Quassowski) — application                 administrative provisions necessary to comply with all the
for declaration that, by failing to adopt within the prescribed             provisions of European Parliament and Council Directive
period all the measures necessary to comply with Council                    97/52/EC of 13 October 1997 amending Directives
Directive 96/43/EC of 26 June 1996 amending and consolidat-                 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordi-
ing Directive 85/73/EEC in order to ensure financing of the                 nation of procedures for the award of public service contracts,
veterinary inspections and controls on live animals and certain             public supply contracts and public works contracts respectively
animal products and amending Directives 90/675/EEC and                      (OJ 1997 L 328, p. 1), or by failing to adopt the measures
91/496/EEC (OJ 1996 L 162, p. 1), the Federal Republic of                   necessary to comply therewith, the French Republic has failed
Germany has failed to fulfil its obligations under the EC Treaty            to fulfil its obligations under that directive — the Court (Fourth
and that directive — the Court (First Chamber), composed of:                Chamber), composed of: A. La Pergola, President of the
M. Wathelet, President of the Chamber, P. Jann (Rapporteur)                 Chamber, D.A.O. Edward and S. von Bahr (Rapporteur),
and L. Sevón, Judges; A. Tizzano, Advocate General; R. Grass,              Judges; J. Mischo, Advocate General; R. Grass, Registrar, has
Registrar, has given a judgment on 8 March 2001, in which it:               given a judgment on 8 March 2001, in which it:
 ---pagebreak--- C 173/18                  EN                     Official Journal of the European Communities                                          16.6.2001
1.     Declares that, by failing to adopt, within the prescribed period,    1.    Declares that, by failing to adopt all the laws, regulations and
       the laws, regulations and administrative provisions necessary to           administrative provisions necessary in order to comply with the
       comply with European Parliament and Council Directive                      obligations laid down in Article 5(4) and (6), and
       97/52/EC of 13 October 1997 amending Directives                            Article 10(1), in conjunction with Annex II A, Annex III 1,
       92/50/EEC, 93/36/EEC and 93/37/EEC concerning the                          point 3, and Annex V 4(e), to Council Directive 91/676/EEC
       coordination of procedures for the award of public service                 of 12 December 1991 concerning the protection of waters
       contracts, public supply contracts and public works contracts              against pollution caused by nitrates from agricultural sources,
       respectively, the French Republic has failed to fulfil its obli-           the Grand Duchy of Luxembourg has failed to fulfil its
       gations under that directive;                                              obligations under that directive;
2.     Orders the French Republic to pay the costs.                         2.    Orders the Grand Duchy of Luxembourg to pay the costs.
                                                                            (1) OJ C 247 of 26.8.2000.
(1) OJ C 176 of 24.6.2000.
                                                                                JUDGMENT OF THE COURT
                   JUDGMENT OF THE COURT
                                                                                of 13 March 2001
                           (Third Chamber)
                                                                            in Case C-379/98 (reference for a preliminary ruling from
                                                                            the Landgericht Kiel, Germany): PreussenElektra AG v
                           of 8 March 2001                                                           Schleswag AG (1)
in Case C-266/00: Commission of the European Communi-                       (Electricity — Renewable sources of energy — National
             ties v Grand Duchy of Luxembourg (1)                           legislation requiring electricity supply undertakings to pur-
                                                                            chase electricity at minimum prices and apportioning the
                                                                            resulting costs between those undertakings and upstream
(Failure by a Member State to fulfil its obligations —                      network operators — State aid — Compatibility with the
                        Directive 91/676/EEC)                                                    free movement of goods)
                            (2001/C 173/30)                                                           (2001/C 173/31)
                      (Language of the case: French)                                           (Language of the case: German)
(Provisional translation; the definitive translation will be published      (Provisional translation; the definitive translation will be published
                     in the European Court Reports)                                            in the European Court Reports)
In Case C-266/00: Commission of the European Communities                    In Case C-379/98: reference to the Court under Article 177 of
(Agents: M. Nolin) v Grand Duchy of Luxembourg (Agents:                     the EC Treaty (now Article 234 EC) from the Landgericht Kiel,
P. Steinmetz) — application for a declaration that, by failing              Germany, for a preliminary ruling in the proceedings pending
to adopt all the laws, regulations and administrative provisions            before that court between PreussenElektra AG and Schleswag
necessary to comply with Article 5(4) and (6) and Article 10(1),            AG in the presence of Windpark Reussenköge III GmbH and
in conjunction with Annex II A, Annex III 1, point 3, and                   Land Schleswig-Holstein — on the interpretation of Article 30
Annex V 4(e) to Council Directive 91/676/EEC of 12 December                 of the EC Treaty (now, after amendment, Article 28 EC),
1991 concerning the protection of waters against pollution                  Article 92 of the EC Treaty (now, after amendment, Article 87
caused by nitrates from agricultural sources (OJ 1991 L 375,                EC) and Article 93(3) of the EC Treaty (now Article 88(3) EC),
p. 1), the Grand Duchy of Luxembourg has failed to fulfil its               — the Court, composed of: G.C. Rodriguez Iglesias, President,
obligations under that directive — the Court (Third Chamber),               C. Gulmann, M. Wathelet and V. Skouris (Presidents of
composed of: C. Gulmann, President of the Chamber,                          Chambers), D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón
J.-P. Puissochet and F. Macken (Rapporteur), Judges; L.A. Geel-             and R. Schintgen (Rapporteur), Judges; F.G. Jacobs, Advocate
hoed, Advocate General; R. Grass, Registrar, has given a                    General; H.A. Rühl, Principal Administrator, for the Registrar,
judgment on 8 March 2001, in which it:                                      has given a judgment on 13 March 2001, in which it has ruled:


title: Case C-130/11: Judgment of the Court (Fourth Chamber) of 19 July 2012 (reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — Neurim Pharmaceuticals (1991) Ltd v Comptroller-General of Patents (Medicinal products for human use — Supplementary protection certificate — Regulation (EC) No 469/2009 — Article 3 — Conditions for obtaining a supplementary protection certificate — Medicinal product having obtained a valid marketing authorisation — First authorisation — Product successively authorised as a veterinary medicinal product and a human medicinal product)

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/9

         Judgment of the Court (Fourth Chamber) of 19 July 2012 (reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — Neurim Pharmaceuticals (1991) Ltd v Comptroller-General of Patents
   (Case C-130/11) (1)

   (Medicinal products for human use - Supplementary protection certificate - Regulation (EC) No 469/2009 - Article 3 - Conditions for obtaining a supplementary protection certificate - Medicinal product having obtained a valid marketing authorisation - First authorisation - Product successively authorised as a veterinary medicinal product and a human medicinal product)
   2012/C 295/15
   Language of the case: English

      Referring court

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

      Parties to the main proceedings

      Applicant: Neurim Pharmaceuticals (1991) Ltd

      Defendant: Comptroller-General of Patents

      Re:

   Reference for a preliminary ruling — Court of Appeal (England and Wales) (Civil Division) — Interpretation of Articles 3 and 13(1) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (codified version) (OJ 2009 L 152, p. 1) — Interpretation of Article 8(3) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67)) — Conditions for obtaining a supplementary protection certificate — Date of the first placement on the market to be taken into account for the grant of a certificate — Products comprising a common active ingredient having each received a marketing authorisation, the first for a veterinary medicinal product for a particular indication, the second for a medicinal product for human use for a different indication

      Operative part of the judgment

               1.

               Articles 3 and 4 of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products must be interpreted as meaning that, in a case such as that in the main proceedings, the mere existence of an earlier marketing authorisation obtained for a veterinary medicinal product does not preclude the grant of a supplementary protection certificate for a different application of the same product for which a marketing authorisation has been granted, provided that the application is within the limits of the protection conferred by the basic patent relied upon for the purposes of the application for the supplementary protection certificate.

               2.

               Article 13(1) of Regulation (EC) No 469/2009 must be interpreted as meaning that it refers to the marketing authorisation of a product which comes within the limits of the protection conferred by the basic patent relied upon for the purposes of the application for the supplementary protection certificate.

               3.

               The answers to the above questions would not be different if, in a situation such as that in the main proceedings where the same active ingredient is present in two medicinal products having obtained successive marketing authorisations, the second marketing authorisation required a full application in accordance with Article 8(3) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, or if the product covered by the first marketing authorisation of the corresponding medicinal product is within the scope of protection of a different patent which belongs to a different registered proprietor from the supplementary protection certificate applicant.

      (1)  OJ C 179, 18.6.2011.


title: Case C-245/09: Reference for a preliminary ruling from the Arbeidshof te Brussel (Belgium), lodged on 6 July 2009 — Omalet NV v Rijksdienst voor Sociale Zekerheid

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/21

         Reference for a preliminary ruling from the Arbeidshof te Brussel (Belgium), lodged on 6 July 2009 — Omalet NV v Rijksdienst voor Sociale Zekerheid
   (Case C-245/09)
   2009/C 220/42
   Language of the case: Dutch

      Referring court

   Arbeidshof te Brussel

      Parties to the main proceedings

      Appellant: Omalet NV

      Respondent: Rijksdienst voor Sociale Zekerheid

      Questions referred

               1.

               Must a national court apply Article 49 EC to a dispute between the Rijksdienst voor Soziale Zekerheid and a principal contractor established in Belgium, where judgment is sought against that principal contractor pursuant to Article 30a(3) of the Law of 27 June 1969 amending the Decree-Law of 28 December 1944 on social security for employed persons (in the version applicable prior to the amendment of that article by Article 55 of the Programme Law of 27 April 2007) as being jointly and severally liable for a portion of the debts of a subcontractor who is unregistered and established in Belgium, or where judgment is sought against that principal contractor because he has not complied with the withholding obligation laid down by Article 30[a](4) of the Law?

               2.

               (In the alternative):
               Is Article 49 EC incompatible with a rule such as that laid down by Article 30a(3) and (4) of the Belgian Law of 27 June 1969 amending the Decree-Law of 28 December 1944 on social security for employed persons (in the version applicable prior to the amendment [of] that article by Article 55 of the Programme Law of 27 April 2007)?


title: Judgment of the Court of First Instance of 10 June 2004 in Case T-330/03: Xanthippi Liakoura v Council of the European Union (Officials — Refusal of promotion — Action for annulment and compensation)

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/39

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 10 June 2004
   in Case T-330/03: Xanthippi Liakoura v Council of the European Union (1)

   (Officials - Refusal of promotion - Action for annulment and compensation)
   (2004/C 228/87)
   Language of the case: French
   In Case T-330/03: Xanthippi Liakoura, an official of the Council of the European Union, residing in Brussels (Belgium), represented by J.A. Martin, lawyer, against Council of the European Union (Agents: M. Sims and F. Anton) — application for annulment of the decision of the Council not to promote the applicant to Grade C 1 in the 2002 round of promotions and for damages — the Court of First Instance (Single Judge: P. Lindh), I. Natsinas, Administrator, for the Registrar, gave a judgment on 10 June 2004, in which it:

               1.

               Dismisses the application;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ No C 289 of 29.11.2003.


title: Case T-48/03: Order of the Court of First Instance of  31 January 2006  — Schneider Electric v Commission (Competition — Concentrations — Resumption of the control procedure following annulment by the Court of First Instance of a decision prohibiting a concentration — Initiation of the detailed examination phase — Abandonment of the concentration — Closure of the control procedure — Action for annulment — Acts adversely affecting the applicant — Interest in bringing an action — Inadmissible)

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/27

         Order of the Court of First Instance of 31 January 2006 — Schneider Electric v Commission
   (Case T-48/03) (1)

   (Competition - Concentrations - Resumption of the control procedure following annulment by the Court of First Instance of a decision prohibiting a concentration - Initiation of the detailed examination phase - Abandonment of the concentration - Closure of the control procedure - Action for annulment - Acts adversely affecting the applicant - Interest in bringing an action - Inadmissible)
   (2006/C 86/54)
   Language of the case: French
   Parties

      Applicant: Schneider Electric (Rueil-Malmaison) (represented by: initially A. Winckler, M. Pittie and É de La Serre, then M. Pittie and A. Winckler, lawyers)

      Defendant: Commission of the European Communities (represented by: initially p. Oliver and F. Lelièvre, then P. Oliver and O. Beynet, Agents)
   Application for
   annulment, first, of the Commission's decision of 4 December 2002 to open the detailed examination phase of the concentration between Schneider and Legrand (Case COMP/M.2283 — Schneider/Legrand II) and, second, of the Commission's decision of 13 December 2002 to close the procedure for the control of that transaction
   Operative part of the Order

               1.

               The applicant is dismissed as inadmissible.

               2.

               The applicant is ordered to bear its own costs and to pay those incurred by the Commission.

      (1)  OJ C 101, 26.4.2003.


title: Action brought on 16 April 1997 by Paul Keyaerts against the Commission of the European Communities (Case T-114/97)

text:
28 . 6 . 97              EN                   Official Journal of the European Communities                              No C 199/29
Action brought on 16 April 1997 by Paul Keyaerts against                      Members of the Court of Auditors, to decide at the
         the Commission of the European Communities                           same time on an appropriate increase in the rate of the
                          ( Case T-l 14/97)                                   applicant's pension, as provided for by Article 18
                                                                              of Council Regulation ( EEC, Euratom, ECSC)
                             ( 97/C 199/75                                    No 2290/77 .
                  (Language of the case: French)
                                                                         — order the defendant to pay the costs.
An action against the Commission of the European
Communities was brought before the Court of First                        Pleas in law and main arguments adduced in support:
Instance of the European Communities on 16 April 1997
by Paul Keyaerts, residing at Overijse ( Belgium ),
represented by Nicolas Lhoest, of the Brussels Bar, with an              The applicant, a former Member of the Court of Auditors
address for service in Luxembourg at the offices of Fidu                who ceased to hold office in February 1994, states that he
ciaire Myson Sari , 30 Rue de Cessange.                                  first became entitled to payment of his pension on 1 March
                                                                         1997. On 27 February he received the calculation of the
The applicant claims that the Court should:                              net amount of his pension, from which he noted that,
                                                                         pursuant to Article 2 of Regulation ( EEC, Euratom,
— annul the Commission's decision of 17 June 1996                        ECSC ) No 840/95 of 10 April 1995 amending Regulation
                                                                         ( EEC, Euratom, ECSC ) No 2290/77, his pension had not
     rejecting the applicant's request that it give
     consideration to the possible application of Article 31             been increased following the increase in the salaries
                                                                         granted by Article 1 of that Regulation to the President
     ( 2 ) of the Staff Regulations,                                     and    the  Members     of the   Court   of Auditors .  That
                                                                         individual decision constitutes        the   measure    being
— annul, in so far as may be necessary, the decision                     challenged in this case .
     adopted by the Commission on 27 December 1996
     expressly rejecting the applicant's complaint,
                                                                         The applicant pleads first that Article 2 of Regulation
— order the defendant to pay all the costs.                              ( EEC, Euratom, ECSC ) No 840/95 is unlawful : it provides
                                                                         expressly that an increase in pensions acquired will not
Pleas in law and main arguments adduced in support:                      take place even though Article 1 of that same regulation
                                                                         lays down the amounts of the Increase in the basic salaries
The pleas in law and main arguments are the same as in                   and monthly transitional allowances of the President and
                                                                         Members of the Court of Auditors . He considers that that
Case T-l 6/97 (').
                                                                         provision is incompatible with Article 18 of Regulation
(') OJ No C 74 , 8 . 3 . 1997, p . 27.
                                                                         ( EEC, Euratom, ECSC ) No 2290/77, according to which,
                                                                         should the Council decide to increase the basic salary, it
                                                                         shall at the same time decide on an appropriate increase in
                                                                         the rates of existing pensions . He points out, secondly,
                                                                         that the provision in question constitutes an amendment
                                                                         that is lacking any valid grounds on the basis of the
                                                                         previous settled practice of the Council .
Action brought on 16 April 1997 by Richie Ryan against
                       the Court of Auditors
                           ( Case T-121 /97 )                            In the alternative, he claims that Regulation ( EEC,
                                                                         Euratom, ECSC ) No 840/95 does not apply to his case,
                              ( 97/C 199/76 )                            inasmuch as it refers to acquired pensions, that is to say to
                                                                         pensions that have been settled when it entered into force.
                  (Language of the case: French)                         The applicant's pension had not been settled, in the sense
                                                                         that it had not been paid, prior to the date on which the
An action against the Court of Auditors was brought                      Regulation entered into force — 1 May 1995 — and was
before the Court of First Instance of the European                       only settled at a much later date .
Communities on 16 April 1997 by Richie Ryan, resident
in Dublin ( Ireland ), represented by Georges Vandersanden,
of the Brussels Bar, with an address for service in                      The applicant also points out that, on the basis of
Luxembourg at the Offices of Fiduciaire Myson Sari, 30                   Article 18 of Regulation ( EEC, Euratom, ECSC ) No 2290/
Rue de Cessange .                                                         77 which was applicable when he took up his duties as a
                                                                         Member of the Court of Auditors, he was legitimately
The applicant claims that the Court should:                              entitled to expect that the amount of his pension would be
                                                                          increased appropriately, when the basic salary was
                                                                          increased, by a decision of the Council taken at the same
— annul the decision settling the applicant's pension                    time . He accordingly considers that in not complying with
     rights as first brought to his attention on 27 February
                                                                         that provision the Council has disregarded the principle of
      1997 with effect from 1 March 1997, inasmuch as
                                                                          the protection of legitimate expectations .
     that decision, pursuant to Article 2 of Council
      Regulation ( EEC, Euratom, ECSC ) No 840/95 ,
      disregards the Council's obligation, if it decides to               Lastly, he pleads that the principle of non-discrimination
      increase the basic salaries of the President and the                has been infringed, pointing out that the system


title: Case C-442/08: Action brought on 6 October 2008 — Commission of the European Communities v Federal Republic of Germany

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/10

         Action brought on 6 October 2008 — Commission of the European Communities v Federal Republic of Germany
   (Case C-442/08)
   (2009/C 6/17)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: A. Caeiros and B. Kotschy, acting as Agents)

      Defendant: Federal Republic of Germany
   Form of order sought

               —

               Declare that the Federal Republic of Germany has infringed its obligations under Articles 2, 6, 9, 10 and 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources (1) or, as the case may be, of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (2), by

                           —

                           allowing tariff claims to become time-barred, irrespective of the receipt of a mutual assistance sheet, and making a late entry in the accounts of the own resources owed in this connection;

                           —

                           refusing to pay the accrued default interest;

               —

               order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments
   From 1994 onwards, motor vehicles from Hungary were imported into Germany within the framework of the preferential tariff treatment laid down in the EC-Hungary Europe Agreement. By way of a mutual assistance sheet of 26 June 1998, the European Anti-Fraud Office (OLAF) officially informed the Member States that, at the end of their revision, the Hungarian authorities revoked the declarations of origin for 58 006 vehicles (including 19 123 vehicles for Germany). By way of a letter of which the English version was delivered to the German authorities on 13 July 1998 and the German translation on 18 August 1998, OLAF forwarded the documents and files forming part of that mutual assistance sheet, including the letter of 26 May 1998, by which the Hungarian authorities informed OLAF of the results of the revision and pointed out that the Hungarian manufacturer had brought an action before a Hungarian court against the decisions of the Hungarian authorities. By way of a further mutual assistance sheet of 27 October 1999, OLAF informed the Member States of the outcome of those proceedings. As a result of the re-assessment of the declarations of origin that became necessary following the judgment of the Hungarian court, declarations of origin for 30 771 vehicles remained revoked on the ground of invalidity.
   The results of a Commission mission in Germany regarding the control of own resources and information provided by the German authorities showed that the German authorities allowed entitlements in the amount of EUR 408 735,35 for the import of motor vehicles whose declarations of origin remained revoked even after the re-assessment following the judgment of the Hungarian court, to become time-barred. Following a request by the Commission, the own resources owed for those time-barred tariff claims were made available by the German authorities on 31 October 2005, in other words, after the expiry of the time-period provided for in Regulation No 1552/89 (or, as the case may be, Regulation No 1150/2000); however, the German authorities refused to pay default interest in respect of the late entry of those own resources.
   The Commission bases the present action essentially on two grounds, namely, first, the late entry of the own resources (in the accounting ledger) and, second, the refusal to pay default interest in respect of that late entry. According to the Commission, at the latest as of 18 August 1998 (the date by which the documents and files forming part of the mutual assistance sheet of 26 June 1998 had been sent out in all languages), all Member States were in a position to identify debtors and the amount of the claim and therefore ought, from then onwards, to have taken the necessary steps to collect the relevant entitlements and to establish, and pay, the own resources connected with it. Taking into consideration an appropriate time-limit of three months for the introduction of such measures, the Commission took the position that all Member States which failed to act are liable for the entitlements that were time-barred from 18 November 1998 onwards.

      As regards the Commission's first plea in law, namely the late entry of the own resources, the relevant provisions of Regulation No 1552/89 (or, as the case may be, Regulation No 1150/2000) and the case-law of the Court of Justice show that the Member States are under an obligation to establish the own resources of the Communities and that this obligation exists irrespective of whether or not the entitlements have actually been entered in the accounts, or, as the case may be, whether or not it was possible to collect the entitlements from the debtor. In principle, the incurrence of a customs debt gives the Communities a right to the customary own resources connected to that customs debt, and does so even where the entitlement was not entered in the accounting ledgers or was not collected from the debtor in an individual case. The moment at which the own resources ought to be established is determined by the moment at which the national customs authorities are in a position to calculate the entitlement arising from a customs debt and to identify the debtor.
   The question as to which position is to be adopted by the customs authorities of a Member State into which goods have been imported accompanied by declarations of origin which, following a revision, are revoked on the ground of invalidity cannot be answered on the basis of the laws of the relevant third country. Given that Protocol No 4 to the EC-Hungary Association Agreement likewise does not contain provisions to that effect, other sources of Community law have to be examined to determine what Member States have to do once they have been informed of the results of a revision which raised doubts as to the origin of the goods. Article 78(3) of Regulation No 2913/92 provides that the customs authorities of the Member States are to take the measures necessary to regularise the situation, taking account of the new information available to them. In the same way, the regulation requires Member States, following the incurrence of a customs debt, to rapidly implement the procedure for collecting the debt, both during the first phase of the procedure, which consists of entering the entitlement in the accounts, and the phase during which the entitlement is collected from the debtor.
   Pursuant to Article 244 of Regulation No 2913/92, the lodging of an appeal against a decision taken by the customs authorities of Member States is not to cause implementation of that decision to be suspended, except in exceptional circumstances. Under normal circumstances, suspension of implementation is to be subject to the existence or lodging of a security. Therefore, in cases in which the incurrence of a customs debt results from the revocation of the declarations of origin at the end of a revision, the fact that legal action has been brought cannot, in the Commission's view, preclude the customs authorities of the importing Member State from (subsequently) collecting the entitlements. Given that the goods were already brought into the Community and that the court proceedings may take several years, such suspension could render the collection of the customs debt far more difficult if the legal action were dismissed.

      Finally, as regards the Commission's second plea in law, namely the refusal to pay default interest, Article 11 of Regulation No 1552/89 (or, as the case may be, Regulation No 1150/2000) and the case-law of the Court of Justice show that, even where own resources fail to be established, Member States are required to pay default interest. In the present case, the contested amount of own resources ought to have been entered in the accounts at the latest two months after 18 November 1998, on the first working day following the 19th of that month (in other words, on 20 January 1999). Given that the German authorities only made the entry on 31 October 2005, the Federal Republic of Germany delayed the entry and is under an obligation to pay default interest for the period of delay.

      (1)  OJ 1989 L 155, p. 1.

      (2)  OJ 2000 L 130, p. 1.


title: Case T-188/11: Judgment of the General Court of 28 May 2013 — Chiboub v Council (Common foreign and security policy — Restrictive measures directed against certain persons and entities in view of the situation in Tunisia — Freezing of funds — No legal basis)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/68

         Judgment of the General Court of 28 May 2013 — Chiboub v Council
   (Case T-188/11) (1)

   (Common foreign and security policy - Restrictive measures directed against certain persons and entities in view of the situation in Tunisia - Freezing of funds - No legal basis)
   2013/C 225/151
   Language of the case: French

      Parties

      Applicant: Mohamed Slim Ben Mohamed Hassen Ben Salah Chiboub (Abu Dhabi, United Arab Emirates) (represented by: initially, G. Perrot and F. Gaudillière, and subsequently by M.-M. Le Roux, lawyers)

      Defendant: Council of the European Union (represented by: initially, A. Vitro, G. Étienne and S. Cook, and subsequently by A. Vitro and G. Étienne, acting as Agents)

      Interveners in support of the defendant: European Commission (represented by: A. Bordes and M. Konstantinidis, acting as Agents); and Republic of Tunisia (represented by: W. Bourdon, lawyer)

      Re:

   Application for annulment, first, of Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62); secondly, of Council Implementing Decision 2011/79/CFSP of 4 February 2011 implementing Decision 2011/72 (OJ 2011 L 31, p. 40); and, thirdly, of Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1), in so far as those measures apply to the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls the Annex to Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia, as amended by Council Implementing Decision 2011/79/CFSP of 4 February 2011 implementing Decision 2011/72, in so far as it applies to Mr Mohamed Slim Ben Mohamed Hassen Ben Salah Chiboub;

               2.

               Annuls Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia in so far as it applies to Mr Chiboub;

               3.

               Declares that the effects of the Annex to Decision 2011/72, as amended by Implementing Decision 2011/79, with respect to Mr Chiboub shall be maintained until the annulment of Regulation No 101/2011 takes effect in so far as it applies to Mr Chiboub;

               4.

               Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Chiboub;

               5.

               Orders the European Commission and the Republic of Tunisia to bear their own costs.

      (1)  OJ C 145, 14.5.2011.


title: Case C-349/06: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt (Germany) lodged on 21 August 2006 — Murat Polat v Stadt Rüsselsheim

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/20

         Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt (Germany) lodged on 21 August 2006 — Murat Polat v Stadt Rüsselsheim
   (Case C-349/06)
   (2006/C 281/32)
   Language of the case: German
   Referring court
   Verwaltungsgericht Darmstadt
   Parties to the main proceedings

      Applicant: Murat Polat

      Defendant: Stadt Rüsselsheim
   Questions referred

               1.

               Is it compatible with Article 59 of the Additional Protocol to the Agreement of 12 September 1963 establishing an Association between the European Economic Community and Turkey (1) for the transitional phase if a Turkish national who, as a child, joined his parents who were employed as workers in the Federal Republic of Germany, does not lose his right of residence derived from the right under the second [indent] of the first sentence of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council (Decision No 1/80) to free access to any paid employment — except in cases under Article 14 of Decision No 1/80 or where he leaves the host Member State for a significant period of time without legitimate reason — even in the case where he has attained the age of 21 and no longer lives with his parents or is maintained by them?

         In the event that the answer to Question 1 is negative:

               2.

               Does a Turkish national, whose legal status under the second indent of the first sentence of Article 7 of Decision No 1/80 has been terminated on the basis of the conditions set out in Question 1, reacquire that legal status if, after reaching the age of 21, he returns to live in his parents' household for a period of more than three years, is permitted to live there free of charge and is given lodging, and the mother has minimal employment (as a cleaning lady generally for 30 to 70 hours per month and at times 20 hours per month) during that period?

         In the event that the answer to Question 2 is affirmative:

               3.

               Does the position in law change if the family member has a number of courses of residential treatments (30.8.2001 to 20.6.2002, 2.10.2003 to 8.1.2004) during the period of residence with the worker?

               4.

               Does the position in law change if the Turkish national has regular personal income of at least EUR 400 to EUR 1 400 per month during the period of residence with the worker?

         In the event that the continuance of a legal status under the second indent of the first sentence of Article 7 of Decision No 1/80 is to be assumed (if the answer to Question 1 is affirmative or the answer to Question 2 is affirmative and the answers to Questions 3 and 4 are negative):

               5.

               May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80 and who has lived in the federal territory since 1972, rely on the special protection against expulsion under Article 28(3)(a) of Directive 2004/38/EC of 29 April 2004 (OJ 2004 L 158, p. 77; corrigendum at OJ 2004 L 229, p. 35)?

               6.

               Does the position in law change if the Turkish national, within the ten years prior to the issue of the expulsion order, resided in Turkey from 1 February 1996 to 28 November 1997 for the purpose of performing his military service?

         In the event that the answer to Question 5 is negative or the answer to Question 6 is affirmative:

               7.

               May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80 and who has lived in the federal territory since 1972, rely on the special protection against expulsion under Article 28(2) of Directive 2004/38?

         In the event that the answer to Question 7 is negative:

               8.

               May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80, rely on the special protection against expulsion under Article 28(1) of Directive 2004/38?

         In the event that the continuance of a legal status under the second indent of the first sentence of Article 7 of Decision No 1/80 is to be assumed (if the answer to Question 1 is affirmative or the answer to Question 2 is affirmative and the answers to Questions 3 and 4 are negative), a further question requires an answer:

               9.

               Can a number of minor offences (essentially offences against property), which, taken individually, are not sufficient to form the basis of an actual and sufficiently serious danger to a fundamental interest of society, justify expulsion because of their great number, if further offences are likely and no measures are taken against German nationals in the same circumstances?

      (1)  OJ 1977 L 361, p. 60.


title: Case C-550/16: Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Amsterdam (Netherlands) lodged on 31 October 2016 — A, S v Staatssecretaris van Veiligheid en Justitie

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/7

         Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Amsterdam (Netherlands) lodged on 31 October 2016 — A, S v Staatssecretaris van Veiligheid en Justitie
   (Case C-550/16)
   (2017/C 038/10)
   Language of the case: Dutch

      Referring court

   Rechtbank Den Haag, zittingsplaats Amsterdam

      Parties to the main proceedings

      Applicants: A, S

      Defendant: Staatssecretaris van Veiligheid en Justitie

      Question referred

   In matters relating to family reunification for refugees, must the term ‘unaccompanied minor’, within the meaning of Article 2(f) of Council Directive 2003/86/EC (1) of 22 September 2003 on the right to family reunification, also cover a third-country national or stateless person below the age of 18 who arrives on the territory of a Member State unaccompanied by an adult responsible by law or custom and who:

               —

               applies for asylum,

               —

               during the asylum procedure, attains the age of 18 on the territory of the Member State,

               —

               is granted asylum with retroactive effect to the date of the application, and

               —

               subsequently applies for family reunification?

      (1)  Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).


title: Case F-21/13: Order of the Civil Service Tribunal of 28 January 2016 — Goch v Council

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/63

         Order of the Civil Service Tribunal of 28 January 2016 — Goch v Council
   (Case F-21/13) (1)

   (2016/C 098/83)
   Language of the case: French
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 156, 1/6/2013, p. 55.


title: Case C-433/04: Action brought on 8 October 2004 by the Commission of the European Communities against the Kingdom of Belgium

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/34

         Action brought on 8 October 2004 by the Commission of the European Communities against the Kingdom of Belgium
   (Case C-433/04)
   (2004/C 300/65)
   An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 8 October 2004 by the Commission of the European Communities, represented by D. Triantafyllou, acting as Agent, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               —

               declare that, by obliging principals and contractors who have recourse to entering into contracts with foreign parties not registered in Belgium to withhold 15 % of the sum payable in respect of the works carried out, and by imposing on those principals and contractors joint and several liability for the tax debts of the parties with whom they enter into contracts who are not registered in Belgium, the Kingdom of Belgium has failed to fulfil its obligations under Articles 49 and 50 of the Treaty establishing the European Community;

               —

               order the Kingdom of Belgium to pay the costs.

         Pleas in law and main arguments
   The national legislation in the construction sector which, on pain of a fine, requires principals and contractors, whenever they make payment to parties with whom they have entered into a contract who are not registered in Belgium, to withhold 15 % of the amount billed and to pay it to the Belgian authorities, in order to ensure that any tax debts of those parties are paid or recovered, constitutes an obstacle to the freedom to provide services as provided for in Articles 49 and 50 EC. The joint and several liability of the principals and contractors for the tax debts of the other parties to their contracts who are not registered, which comes to as much as 35 % of the total cost of the works, excluding VAT, likewise constitutes a breach of Articles 49 and 50 EC.
   That legislation is such as to deter principals and contractors from entering into contracts with parties not registered in Belgium. The automatic application of joint and several liability of the principals and contractors for the tax debts of the other party to the contract does not comply with the principle of proportionality and involves an unjustified breach of the right to property and the rights of the defence of those principals and contractors. The joint and several liability of principals and contractors is automatic, without the authorities having to prove fault or complicity on the part of the principal or contractor. Also the liability may extend to tax debts relating to works which the other party to the contract has carried out for other persons. Breach of the obligation to withhold is penalised by a fine of double the amount to be withheld.
   The legislation also constitutes a genuine obstacle for unregistered parties who wish to offer their services in Belgium. They must accept receiving the amount billed less 15 %, even if they have no tax debt to which the amount withheld could be applied, and they can recover that sum only after a certain time, by applying for its restitution.
   Those measures cannot be regarded as objectively justified. First of all, in the majority of cases a person providing services who is established in another Member State is not liable for the taxes to which the legislation relates. Also, in specific situations where tax debts would be payable or recoverable in Belgium, the mechanism set up by the provisions must, because of its general nature, be considered disproportionate.
   Finally, the possibility of registration does not justify the obligation to withhold and the joint and several liability. The action involved in the registration procedure, which goes far beyond merely communicating information to the Belgian authorities, means that registration is not a valid alternative for undertakings not established in Belgium which wish to exercise their freedom to offer their services in Belgium occasionally. The requirement to register renders the Treaty provisions intended to guarantee the freedom to provide services entirely redundant.


title: Case C-131/06 P: Order of the Court (Sixth Chamber) of 24 April 2007 — Castellblanch SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Champagne Louis Roederer SA (Appeal — Figurative mark CRISTAL CASTELLBLANCH — Refusal of registration)

text:
               6.10.2007

               EN

               Official Journal of the European Union

               C 235/7

         Order of the Court (Sixth Chamber) of 24 April 2007 — Castellblanch SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Champagne Louis Roederer SA
   (Case C-131/06 P) (1)

   (Appeal - Figurative mark CRISTAL CASTELLBLANCH - Refusal of registration)
   (2007/C 235/11)
   Language of the case: English
   Parties

      Applicant: Castellblanch SA (represented by: F. de Visscher, E. Cornu, E. De Gryse and D. Moreau, avocats)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, Agent), Champagne Louis Roederer SA (represented by: P. Cousin, avocat)
   Re:
   Appeal against the judgment of the Court of First Instance (Third Chamber) of 8 December 2005 in Case T-29/04 Castellblanch SA v OHIM in which the Court of First Instance dismissed the action brought by the applicant for the figurative mark ‘CRISTAL CASTELLBLANCH’ for goods in Class 33 for annulment of Decision R 0037/2002-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 17 November 2003 dismissing the appeal brought against the decision of the Opposition Division refusing to register that mark in the context of the opposition brought by the proprietor of national and international word marks containing the word ‘CRISTAL’ for goods in Class 33
   Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Castellblanch SA shall pay the costs.

      (1)  OJ C 108, 6.5.2006.


title: Case T-685/14: Action brought on 18 September 2014 — EEB/Commission

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/35

         Action brought on 18 September 2014 — EEB/Commission
   (Case T-685/14)
   (2014/C 431/58)
   Language of the case: English

      Parties

      Applicant: European Environmental Bureau (EEB) (Brussels, Belgium) (represented by: S. Podskalská, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission Decision Ares (2014) 2317513, of 11 July 2014, declaring inadmissible the request for internal review, lodged by the applicant, regarding the Commission decision 2014/2002 final, of 31 March 2014, on the notification by the Republic of Bulgaria of a transitional national plan referred to in Article 32 of Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions;

               —

               annul the Commission Decision C 2014/2002 final, of 31 March 2014, on the notification by the Republic of Bulgaria of a transitional national plan referred to in Article 32 of Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission Decision Ares (2014) 2317513, of 11 July 2014, infringes article 17 of the Treaty on the European Union, articles 2(1)(g) and 10 of Regulation (EC) No 1367/2006, the United Nations Economic Commission for Europe Convention on access to information, public participation in decision-making and access to justice in environmental matters (the ‘UNECE Convention’), in conjunction with the Council decision, of 17 February 2005 on the conclusion, on behalf of the European Community, of the UNECE Convention (2005/370/EC).

               2.

               Second plea in law, alleging that the Commission Decision C 2014/2002 final, of 31 March 2014, infringes article 17 of the Treaty on the European Union, the Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions, the Commission Implementing Decision 2012/115/EU, of 10 February 2012, laying down rules concerning the transnational plans referred to in Decision 2010/75/EU, the UNECE Convention, in conjunction with the Council Decision, of 17 February 2005 on the conclusion, on behalf of the European Community, of the UNECE Convention (2005/370/EC), Directive 2001/42/EC on the assessment of the effects of certain plans and programs on the environment, and 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.


title: Case T-276/17: Action brought on 8 May 2017 — Ogrodnik v EUIPO — Aviario Tropical (Tropical)

text:
               3.7.2017

               EN

               Official Journal of the European Union

               C 213/35

         Action brought on 8 May 2017 — Ogrodnik v EUIPO — Aviario Tropical (Tropical)
   (Case T-276/17)
   (2017/C 213/48)
   Language in which the application was lodged: English

      Parties

      Applicant: Tadeusz Ogrodnik (Chorzów, Poland) (represented by: A. von Mühlendahl, H. Hartwig, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Aviario Tropical, SA (Loures, Portugal)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU figurative mark containing the word element ‘Tropical’ — EU trade mark No 3 435 773

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the First Board of Appeal of EUIPO of 14 February 2017 in Case R 2125/2016-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               dismiss the appeal brought by Aviário Tropical, SA, against the decision of the Defendant’s Cancellation Division of 15 July 2013 in Case 6029 C;

               —

               order EUIPO and Aviário Tropical, SA, if it should intervene in these proceedings, to pay the costs.

      Plea in law

               —

               Infringement of article 53(1)(a) of Regulation No 207/2009 in conjunction with Article 8(1)(b) of Regulation No 207/2009.


title: Case T-134/02: Action brought on 25 April 2002 by Miguel Tejada Fernández against the Commission of the European Communities

text:
C 156/36               EN                      Official Journal of the European Communities                                   29.6.2002
Action brought on 18 April 2002 by Pravir Kumar                           In support of his claims, the applicant alleges:
Chawdhry against Commission of the European Com-
                             munities
                                                                          —    infringement of Article 31(2) of the Staff Regulations;
                         (Case T-133/02)                                  —    infringement of Article 32 of the Staff Regulations;
                         (2002/C 156/66)                                  —    breach of the principle of non-discrimination;
                                                                          —    breach of the duty to have regard for the welfare of
                    (Language of the case: French)                             officials;
                                                                          —    breach of the rules on the free movement of workers;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                —    breach of the obligation to state reasons.
European Communities on 18 April 2002 by Pravir Kumar
Chawdhry, residing in Sangiano (Italy), represented by Georges
Vandersanden and Laure Levi, avocats.
The applicant claims that the Court should:
—     annul the decision of the authority empowered to                    Action brought on 25 April 2002 by Miguel Tejada
      conclude contracts of employment (AECCE) of 2 May                   Fernández against the Commission of the European Com-
      2001 classifying the applicant in Grade A 6, step 3, and,                                       munities
      in so far as necessary, annul the decision of 14 December
      2001, served on 8 January 2002, rejecting the applicant’s                                   (Case T-134/02)
      complaint;
                                                                                (2002/C 156/67)
—     order the defendant to pay the balance of the salary
      consisting in the difference between the remuneration
      corresponding to classification in Grade A 6, step 3,                                 (Language of the case: French)
      and the remuneration corresponding to a higher grade,
      together with default interest at the rate of 5,75 % per
      annum, with effect from 1 April 2001;
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
—     order the defendant to pay damages provisionally asses-             European Communities on 25 April 2002 by Miguel Tejada
      sed, ex æquo et bono, at EUR 1;                                     Fernández, residing in Woluwé-St-Etienne, Belgium, represent-
                                                                          ed by Lucas Vogel, lawyer, with an address for service in
—     order the defendant to pay the costs.                               Luxembourg.
                                                                          The applicant claims that the Court should:
Pleas in law and main arguments                                           —    annul the decision of the appointing authority of 10 Janu-
                                                                               ary 2002, notified to the applicant on 15 January 2002,
                                                                               rejecting the applicant’s claim of 3 October 2001 for
The applicant, a temporary agent employed by the Com-                          annulment of the decision refusing him promotion to
mission, contests the decision of the AECCE classifying him in                 grade B2 for the 2001 promotions year, and annulment
Grade A 6, step 3.                                                             of the proposals for promotion to that grade;
                                                                          —    in so far as is necessary, annul the decision refusing the
                                                                               applicant promotion to grade B2 for the 2001 pro-
The applicant claims that the AECCE ought to have specifically
                                                                               motions year, and the proposals for promotion to that
assessed the possible application of Article 31(2) of the Staff
                                                                               grade;
Regulations to the applicant and that such an assessment
should have led to the actual application of that provision to
the applicant, that is to say to his classification in Grade A 5.         —    order the defendant to pay the costs.
 ---pagebreak--- 29.6.2002              EN                     Official Journal of the European Communities                                     C 156/37
Pleas in law and main arguments                                          Pleas in law and main arguments
In support of his action, the applicant argues infringement of
                                                                         The Commission decision against which the present action is
Article 45(1) of the Staff Regulations, infringement of the
                                                                         brought is the same as that contested in Case T-109/92 Bolloré
principle of non-discrimination and a manifest error of
                                                                         v Commission (1). In that decision, the Commission found that
assessment. According to the applicant, any objective consider-
                                                                         the applicant had participated in the national meetings of
ation of the respective merits of the officials eligible for
                                                                         the secret European cartel in the context of the European
promotion would not have led to his being disregarded.
                                                                         Association of Manufacturers of Carbonless Paper (AEMPC),
                                                                         the adoption and concerted application of price increases, the
                                                                         sharing of sales and market quotas in the copying paper sector
                                                                         and the establishment of control mechanisms.
                                                                         In support of its claims, the applicant pleads infringement of
Action brought on 18 April 2002 by Papelera Guipuz-                      the principles of presumption of innocence and of the burden
coana de Zicuñaga, S.A. against Commission of the                       of proof. In that regard, it denies having participated in the
                     European Communities                                meetings held for the purpose of organising the European
                                                                         cartel. The applicant emphasises that the defendant institution
                                                                         ignored not only the fact that the applicant does not belong to
                         (Case T-136/02)                                 the AEMPC but also the fact that that association did not
                                                                         possess information relating to the applicant’s prices and sales
                                                                         volumes.
                         (2002/C 156/68)
                   (Language of the case: Spanish)                       The applicant claims that the fine imposed on it should be
                                                                         reduced by at least 60 %. Apart from what has already been
                                                                         stated in the preceding paragraph, the applicant emphasises
                                                                         that the infringements imputed to it are alleged to have lasted
An action against the Commission of the European Communi-                for less than one year.
ties was brought before the Court of First Instance of the
European Communities on 18 April 2002 by Papelera Guipuz-
coana de Zicuñaga, S.A., whose registered office is at Hernani
(Guipúzcoa, Spain), represented by Iñigo Quintana Aguirre.
                                                                         (1) Not yet published in OJ.
The applicant claims that the Court of First Instance should:
—     annul Article 1 of the Commission decision of 20 Decem-
      ber 2001 relating to a proceeding pursuant to Article 81
      of the EC Treaty and Article 53 of the EEA Agreement
      (Case COMPE/E/1/36.212 — Carbonless paper), in so far
      as it finds that Zicuñaga participated in the infringement
      and in so far as it relates to the duration of the                 Action brought on 8 May 2002 by Armin Petrich against
      infringement, and Article 3 in relation to the fine imposed               the Commission of the European Communities
      in Article 4;
—     in the alternative, reduce the fine imposed on the                                          (Case T-145/02)
      applicant in the contested decision as follows:
      (a)   annul the application of the excess of 10 % applied                                   (2002/C 156/69)
            by the Commission on the ground that a duration
            in excess of one year was not imputed to the
            applicant;                                                                      (Language of the case: French)
      (b) reduce substantially (by a minimum of 60 %) the
            basic penalty imposed to take account of the
            mitigating circumstances indicated;                          An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
      (c)   award costs to the applicant, including expenditure          European Communities by Armin Petrich, of Travemünde,
            and interest for the guarantees provided, deriving           Germany, represented by Patrick Goergen, lawyer, with an
            from the handling of the entire procedure.                   address for service in Luxembourg,


title: Case T-210/05: Judgment of the Court of First Instance of 12 November 2008 — Nalocebar v OHIM — Limiñana y Botella (Limoncello di Capri) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Limoncello di Capri — Earlier national word mark LIMONCHELO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/21

         Judgment of the Court of First Instance of 12 November 2008 — Nalocebar v OHIM — Limiñana y Botella (Limoncello di Capri)
   (Case T-210/05) (1)

   (Community trade mark - Opposition proceedings - Application for figurative Community trade mark Limoncello di Capri - Earlier national word mark LIMONCHELO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2009/C 6/41)
   Language of the case: Italian
   Parties

      Applicant: Nalocebar — Consultores e Serviços Lda (São Pedro, Portugal) (represented by: G. Pasquarella and R. Pasquarella, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially M. Capostagno and then O. Montalto, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: Limiñana y Botella, SL (Monforte del Cid, Spain)
   Re:
   ACTION brought against the decision of the First Board of Appeal of OHIM of 18 March 2005 (Case R 646/2004-1) relating to opposition proceedings between Limiñana y Botella, SL and Nalocebar — Consultores e Serviços Lda.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Nalocebar — Consultores e Serviços Lda to pay the costs.

      (1)  OJ C 182, 23.7.2005.


title: Case T-242/14: Action brought on 17 April 2014 — The Smiley Company v OHIM (Shape of a face)

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/37

         Action brought on 17 April 2014 — The Smiley Company v OHIM (Shape of a face)
   (Case T-242/14)
   2014/C 282/48
   Language of the case: English

      Parties

      Applicant: The Smiley Company SPRL (Brussels, Belgium) (represented by: A. Freitag, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 16 January 2014 given in Case R 836/2013-1;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: Tri-dimensional mark representing the shape of a face for goods in classes 29 and 30 — Community trade mark application No 1 1 1 68  762

      Decision of the Examiner: Found the mark applied for not eligible for registration pursuant to Article 7(1)(b) of the Regulation No 207/2009

      Decision of the Board of Appeal: Dismissed the appeal

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


title: Case T-763/15: Action brought on 31 December 2015 — Sony Optiarc and Sony Optiarc America v Commission

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/48

         Action brought on 31 December 2015 — Sony Optiarc and Sony Optiarc America v Commission
   (Case T-763/15)
   (2016/C 098/63)
   Language of the case: English

      Parties

      Applicants: Sony Optiarc, Inc (Atsugi, Japan), and Sony Optiarc America, Inc (San Jose, United States) (represented by: N. Levy and E. Kelly, Solicitors, and R. Snelders, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision of the Commission of 21 October 2015 in Case AT.39639 — Optical Disk Drives, relating to a proceeding under Article 101 TFEU and Article 53 EEA Agreement, in so far as it relates to the applicants;

               —

               alternatively, in the exercise of its unlimited jurisdiction, reduce the fines imposed on the applicants pursuant to that decision; and

               —

               order the Commission to pay the applicants’ legal and other costs and expenses in relation to this matter.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the contested decision errs in fact and in law in finding that the applicants engaged in an infringement of Article 101 TFEU by object.

                           —

                           The evidence cited against the applicants is insufficient to support the finding that the applicants participated in a single and continuous infringement of Article 101 TFEU by object.

                           —

                           The decision’s alternative finding according to which the applicants engaged in separate infringements of Article 101 TFEU by object is unproven and infringed the applicants’ rights of defence because it is made for the first time in the decision.

               2.

               Second plea in law, alleging, in the alternative, that the contested decision errs in fact and law and is based on inadequate reasoning.

                           —

                           The decision errs in double-counting revenues that were passed on by the applicants to another addressee of the decision.

                           —

                           The decision errs by failing to acknowledge the applicants’ substantially more limited conduct as compared to certain other addressees of the decision and thus by failing to apply to the applicants a lower gravity multiplier and lower additional amount and/or a mitigating circumstances discount.


title: Case C-367/04 P: Appeal brought on 24 August 2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly operating under the name of DHL International S.r.l) against the order made on 27 May 2004 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-358/02 between Deutsche Post AG and DHL International S.r.l. and the Commission of the European Communities, supported by the Italian Republic and Poste Italiane SpA

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/8

         Appeal brought on 24 August 2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly operating under the name of DHL International S.r.l) against the order made on 27 May 2004 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-358/02 between Deutsche Post AG and DHL International S.r.l. and the Commission of the European Communities, supported by the Italian Republic and Poste Italiane SpA
   (Case C-367/04 P)
   (2004/C 284/17)
   An appeal against the order made on 27 May 2004 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-358/02 between Deutsche Post AG and DHL International S.r.l. and the Commission of the European Communities, supported by the Italian Republic and Poste Italiane SpA, was brought before the Court of Justice of the European Communities on 24 August 2004 (Fax: 20.08.04) by Deutsche Post AG and DHL Express (Italy) S.r.l. (formerly operating under the name of DHL International S.r.l.), represented by Jochim Sedemund and Thomas Lübbig, lawyers at Freshfields Bruckhaus Deringer, Potsdamer Platz 1, D-10785 Berlin.
   The appellants claim that the Court should:

               1.

               set aside the order of the Court of First Instance of 27 May 2004 in Case T-358/02 (1), and declare the action brought by Deutsche Post AG and DHL Express (Italy) on 3 December 2002 admissible.

               2.

               order the respondent and the interveners to pay the costs.

         Pleas and main arguments:
   The appeal concerns the order of the Court of First Instance of 27 May 2004 in Case T-358/02 (DPAG and Others v Commission). By this order, the Court of First Instance dismissed the action brought on 3 December 2002 by Deutsche Post AG and DHL Express (Italy) S.r.l. as inadmissible. In the Court's view the applicants were unable to show that the conditions for locus standi were fulfilled. Conversely, the applicants assert on appeal that the Commission's decision is of direct and individual concern to them and that they therefore have standing for the purposes of the fourth paragraph of Article 230 EC. Since the applicants also possess the necessary legal interest, the above mentioned order of the Court of First Instance of 27 May 2004 should, in the applicants' submission, be set aside and the action brought by Deutsche Post AG and DHL Express (Italy) on 3 December 2002 be declared admissible.

      (1)  OJ C 228 of 11.9.2004.


title: Case T-489/07: Action brought on 21 December 2007 — Insight Direct USA v OHIM — Net Insight (Insight)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/44

         Action brought on 21 December 2007 — Insight Direct USA v OHIM — Net Insight (Insight)
   (Case T-489/07)
   (2008/C 64/74)
   Language in which the application was lodged: English
   Parties

      Applicant: Insight Direct USA, Inc. (Tempe, United States) (represented by: M. Gilbert and M. Moore, Solicitors)

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

      Other party to the proceedings before the Board of Appeal: Net Insight AB (Stockholm, Sweden)
   Form of order sought

               —

               The decision of the Second Board of Appeal dated 20 September 2007 in Case R 1428/2006-2 shall be annulled and the rejection of the application for all services in classes 37 and 42 and the rejected services in class 35 be overturned and the application be allowed to proceed in respect of all of the services for which the application was published.

               —

               The Office and other parties shall bear their own costs and pay those of the applicant.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘Insight’ for services in classes 35, 36, 37 and 42 — application No 3 309 002

      Proprietor of the mark or sign cited in the opposition proceedings: Net Insight AB

      Mark or sign cited: The Community and national word mark ‘NET INSIGHT’ for goods and services in classes 9, 37 and 41

      Decision of the Opposition Division: Opposition partially upheld and partially rejected

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: According to the applicant, the Board of Appeal wrongly identified the dominant and distinctive elements of the earlier mark and did not give consideration to all the relevant factors in assessing the similarity of the relevant goods and services. Furthermore, the Board of Appeal failed to consider all the relevant factors in relation to the global appreciation test when determining the likelihood of confusion between the conflicting marks.


title: Case C-557/13: Judgment of the Court (First Chamber) of 16 April 2015 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Hermann Lutz v Elke Bäuerle, acting as liquidator of ECZ Autohandel GmbH (Reference for a preliminary ruling — Regulation (EC) No 1346/2000 — Articles 4 and 13 — Insolvency proceedings — Payment made after the date on which insolvency proceedings were opened on the basis of attachment carried out before that date — Action to set aside an act detrimental to the interests of the creditors — Limitation periods or other time-bars relating to actions to set transactions aside — Procedural requirements for the action — Applicable law)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/7

         Judgment of the Court (First Chamber) of 16 April 2015 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Hermann Lutz v Elke Bäuerle, acting as liquidator of ECZ Autohandel GmbH
   (Case C-557/13) (1)

   ((Reference for a preliminary ruling - Regulation (EC) No 1346/2000 - Articles 4 and 13 - Insolvency proceedings - Payment made after the date on which insolvency proceedings were opened on the basis of attachment carried out before that date - Action to set aside an act detrimental to the interests of the creditors - Limitation periods or other time-bars relating to actions to set transactions aside - Procedural requirements for the action - Applicable law))
   (2015/C 198/09)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Hermann Lutz

      Defendant: Elke Bäuerle, acting as liquidator of ECZ Autohandel GmbH

      Operative part of the judgment

               1)

               Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as applying to a situation in which a payment, challenged by an insolvency administrator, of a sum of money attached before the opening of the insolvency proceedings was made only after the opening of those proceedings.

               2)

               Article 13 of Regulation No 1346/2000 must be interpreted as meaning that the defence which it establishes also applies to limitation periods or other time-bars relating to actions to set aside transactions under the law governing the act challenged by the liquidator.

               3)

               The relevant procedural requirements for the exercise of an action to set a transaction aside are to be determined, for the purposes of the application of Article 13 of Regulation No 1346/2000, according to the law governing the act challenged by the liquidator.

      (1)  OJ C 15, 18.1.2014.


title: Case C-409/07: Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 3 September 2007 — Avalon Service-Online-Dienste GmbH v Wetteraukreis

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/14

         Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany) lodged on 3 September 2007 — Avalon Service-Online-Dienste GmbH v Wetteraukreis
   (Case C-409/07)
   (2007/C 283/26)
   Language of the case: German
   Referring court
   Verwaltungsgericht Giessen
   Parties to the main proceedings

      Applicant: Avalon Service-Online-Dienste GmbH

      Defendant: Wetteraukreis
   Questions referred

               1.

               Are Articles 43 and 49 EC to be interpreted as precluding a national monopoly on certain gaming, such as sports betting, where there is no consistent and systematic policy to limit gaming in the Member State concerned as a whole, in particular because the operators which have been granted a licence within that Member State encourage participation in other gaming — such as State-run lotteries and casino games — and, moreover, other games with the same or a higher suspected potential danger of addiction — such as betting on certain sporting events (e.g. horse racing) and slot machines — may be provided by private service providers?

               2.

               Are Articles 43 and 49 EC to be interpreted as meaning that authorisations to operate sports betting, granted by State bodies specifically designated for that purpose by the Member States, which are not restricted to the particular national territory, entitle the holder of the authorisation and third parties appointed by it to make and implement offers to conclude contracts also in other Member States without any additional national authorisations being required?


title: Case T-65/11: Judgment of the General Court of 5 June 2013 — Recombined Dairy System v Commission (Customs union — Import of lactoglobulin concentrates from New Zealand — Post-clearance recovery of import duties — Request for remission of import duties — Article 220(2)(b) and Article 236 of Regulation (EEC) No 2913/92)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/66

         Judgment of the General Court of 5 June 2013 — Recombined Dairy System v Commission
   (Case T-65/11) (1)

   (Customs union - Import of lactoglobulin concentrates from New Zealand - Post-clearance recovery of import duties - Request for remission of import duties - Article 220(2)(b) and Article 236 of Regulation (EEC) No 2913/92)
   2013/C 225/145
   Language of the case: Danish

      Parties

      Applicant: Recombined Dairy System A/S (Horsens, Denmark) (represented by: T. Kristjánsson and T. Gønge, lawyers)

      Defendant: European Commission (represented by: A.-M. Caeiros, L. Keppenne and B.-R. Killmann, acting as Agents, and P. Dyrberg, lawyer)

      Re:

   Application for partial annulment of Commission Decision C(2010) 7692 final of 12 November 2010, stating that the post-clearance entry in the accounts of certain import duties was justified and that the remission of such duties was not justified (File REC 03/08)

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 1(2) and (4) of Commission Decision C(2010) 7692 final of 12 November 2010 stating that the post-clearance entry in the accounts of certain import duties was justified and that the remission of such duties was not justified (file REC 03/08) as far as it concerns the imports of lactoglobulin concentrates 131 and 8471;

               2.

               Orders the European Commission to pay its own costs and those incurred by Recombined Dairy System A/S.

      (1)  OJ C 103, 2.4.2011.


title: Judgment of the Court (Fifth Chamber) of 12 June 2003 in Case C-363/00: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Communities' own resources — Error in crediting the account opened in the name of the Commission — Default interest)

text:
2.8.2003                EN                            Official Journal of the European Union                                                 C 184/3
                   JUDGMENT OF THE COURT                                      2.    Orders the Italian Republic to pay the costs.
                                                                              (1) OJ C 372, 23.12.2000.
                            (Fifth Chamber)
                           of 12 June 2003
in Case C-363/00: Commission of the European Commu-
                    nities v Italian Republic (1)                                                 JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
(Failure of a Member State to fulfil obligations — Commu-
nities' own resources — Error in crediting the account                                                    of 26 June 2003
 opened in the name of the Commission — Default interest)
                                                                              in Case C-404/00: Commission of the European Commu-
                            (2003/C 184/04)                                                        nities v Kingdom of Spain (1)
                                                                              (Failure of Member State to fulfil obligations — State aid —
                     (Language of the case: Italian)                          Regulation (EC) No 1013/97 — Aid to publicly-owned ship-
                                                                              yards — Commission Decision 2000/131/EC ordering repay-
                                                                                ment — Non-implementation)
(Provisional translation; the definitive translation will be published in
                      the European Court Reports)                                                          (2003/C 184/05)
                                                                                (Language of the case: Spanish)
In Case C-363/00, Commission of the European Communities                      (Provisional translation; the definitive translation will be published in
(Agents: E. Traversa and G. Wilms) v Italian Republic (Agents:                                        the European Court Reports)
U. Leanza, assisted by G. De Bellis): Application for a declara-
tion that, by failing to make available to the Commission the
sum of ITL 1 484 936 000 000 by way of own resources
within the period laid down by Articles 9 and 10 of Council                   In Case C-404/00, Commission of the European Communities
Regulation (EC, Euratom) No 1150/2000 of 22 May 2000                          (Agents: K.-D. Borchardt and S. Rating) v Kingdom of Spain
implementing Decision 94/728/EC, Euratom on the system of                     (Agent: S. Ortiz Vaamonde): Application for a declaration that,
the Communities' own resources (OJ 2000 L 130, p. 1), and                     by not adopting within the prescribed period the measures
refusing to pay default interest owed on that amount pursuant                 necessary to comply with Commission Decision 2001/131/EC
to Article 11 of the same regulation, the Italian Republic has                of 26 October 1999 on the State aid implemented by Spain in
failed to fulfil its obligations under Articles 9, 10 and 11 of               favour of the publicly-owned shipyards (OJ 2000 L 37, p. 22),
Regulation No 1150/2000 which, from 31 May 2000, repealed                     which declares that that aid was granted illegally and is there-
and replaced Council Regulation (EEC, Euratom) No 1552/89                     fore incompatible with the common market, the Kingdom of
of 29 May 1989 implementing Decision 88/376/EEC, Euratom                      Spain has failed to fulfil its obligations under the fourth
on the system of the Communities' own resources (OJ 1989                      paragraph of Article 249 EC and under Articles 2 and 3 of
L 155, p. 1), identical in aim, the Court (Fifth Chamber),                    that decision, the Court (Sixth Chamber), composed of:
composed of: M. Wathelet, President of the Chamber, C.W.                      R. Schintgen, President of the Second Chamber, acting as
A. Timmermans, P. Jann, S. von Bahr (Rapporteur) and                          President of the Sixth Chamber, C. Gulmann, V. Skouris,
A. Rosas, Judges; L.A. Geelhoed, Advocate General; R. Grass,                  F. Macken (Rapporteur) and N. Colneric, Judges; L.
Registrar, has given a judgment on 12 June 2003, in which it:                 A. Geelhoed, Advocate General; R. Grass, Registrar, has given
                                                                              a judgment on 26 June 2003, in which it:
1.    Declares that, by failing to make available to the Commission           1.    Declares that, by not adopting within the prescribed period the
      of the European Communities the sum of ITL                                    measures necessary to comply with Commission Decision 2000/
      1 484 936 000 000 by way of own resources within the                          131/EC of 26 October 1999 on the State aid implemented by
      period laid down by Articles 9 and 10 of Council Regulation                   Spain in favour of the publicly-owned shipyards, which declares
      (EC, Euratom) No 1150/2000 of 22 May 2000 imple-                              that that aid was granted unlawfully and is therefore incompa-
      menting Decision 94/728/EC, Euratom on the system of the                      tible with the common market, the Kingdom of Spain has failed
      Communities' own resources, and refusing to pay default interest              to fulfil its obligations under Articles 2 and 3 of that decision;
      owed on that amount pursuant to Article 11 of the same
      regulation, the Italian Republic has failed to fulfil its obligations   2.    Orders the Kingdom of Spain to pay the costs.
      under Articles 9, 10 and 11 of Regulation No 1150/2000
      which, from 31 May 2000, repealed and replaced Council
      Regulation (EEC, Euratom) No 1552/89 of 29 May 1989                     (1) OJ C 28, 27.1.2001.
      implementing Decision 88/376/EEC, Euratom on the system of
      the Communities' own resources, identical in aim;


title: Case T-287/11: Judgment of the General Court of 4 February 2016 — Heitkamp BauHolding v Commission (State aid — German tax legislation concerning loss carry-forward to future tax years (Sanierungsklausel) — Decision declaring the aid incompatible with the internal market — Action for annulment — Individual concern — Admissibility — Concept of State aid — Selectivity — Nature and general scheme of the tax system)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/27

         Judgment of the General Court of 4 February 2016 — Heitkamp BauHolding v Commission
   (Case T-287/11) (1)

   ((State aid - German tax legislation concerning loss carry-forward to future tax years (Sanierungsklausel) - Decision declaring the aid incompatible with the internal market - Action for annulment - Individual concern - Admissibility - Concept of State aid - Selectivity - Nature and general scheme of the tax system))
   (2016/C 098/34)
   Language of the case: German

      Parties

      Applicant: Heitkamp BauHolding GmbH (Herne, Germany) (represented initially by W. Niemann, M. Kiera-Nöllen and S. Geringhoff, and subsequently by W. Niemann, S. Geringhoff and P. Dodos, lawyers)

      Defendant: European Commission (represented initially by R. Lyal, T. Maxian Rusche and M. Adam, and subsequently by R. Lyal, T. Maxian Rusche and C. Egerer, acting as Agents)

      Intervener in support of the applicant: Federal Republic of Germany (represented by: T. Henze and K. Petersen, acting as Agents)

      Re:

   Application for annulment of Commission Decision 2011/527/EU of 26 January 2011 on State aid C 7/10 (ex CP 250/09 and NN 5/10) implemented by Germany — Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel) (OJ 2011 L 235, p. 26).

      Operative part of the judgment

   The Court:

               1.

               Rejects the objection of inadmissibility;

               2.

               Dismisses the action as unfounded;

               3.

               Orders Heitkamp BauHolding GmbH to bear its own costs and to pay two thirds of the European Commission’s costs, and orders the Commission to bear one third of its own costs;

               4.

               Orders the Federal Republic of Germany to bear its own costs.

      (1)  OJ C 238, 13.8.2011.