title: Case T-430/04: Order of the Court of First Instance of 1 February 2008 — Nomura Principal Investment and Nomura v Commission

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/45

         Order of the Court of First Instance of 1 February 2008 — Nomura Principal Investment and Nomura v Commission
   (Case T-430/04) (1)

   (2008/C 92/89)

      Language of the case: English

   The President of the Court of First Instance (Fifth Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 31, 5.2.2005.


title: Case C-23/11: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 17 January 2011 — Fleischkontor Moksel GmbH v Hauptzollamt Hamburg-Jonas

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/4

         Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 17 January 2011 — Fleischkontor Moksel GmbH v Hauptzollamt Hamburg-Jonas
   (Case C-23/11)
   2011/C 113/06
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Fleischkontor Moksel GmbH

      Defendant: Hauptzollamt Hamburg-Jonas

      Questions referred

               1.

               Is the holder of an export licence entitled to an export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office (Article 5(1) of Regulation No 800/1999)? (1)

               2.

               If Question 1 is answered in the affirmative:
               Is the Hauptzollamt (Principal Customs Office) which is responsible for paying the refund bound by the subsequent amendment made by the customs office of export to the information entered in box 2 of the export declaration?

               3.

               If Question 2 is answered in the negative:
               Is the office responsible for paying the refund entitled, in circumstances such as those of the main proceedings, to take the words in box 2 of the export declaration literally and to refuse an application for an export refund on the ground that the applicant for the refund is not the exporter of the goods covered by that application, or is the responsible office obliged, when there is a contradiction between the description of the exporter in box 2 of the export declaration and the previous document to which reference is made in box 40 and/or the holder of the export licence registered in box 44, to consult the applicant for a refund and, if necessary, to amend of its own motion the words in box 2 of the export declaration?

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


title: Case C-280/16 P: Appeal brought on 17 May 2016 by Società cooperativa Amrita arl and Others against the order of the General Court (Eighth Chamber) delivered on 11 March 2016 in Case T-439/15, Amrita and Others v Commission

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/33

         Appeal brought on 17 May 2016 by Società cooperativa Amrita arl and Others against the order of the General Court (Eighth Chamber) delivered on 11 March 2016 in Case T-439/15, Amrita and Others v Commission
   (Case C-280/16 P)
   (2016/C 260/41)
   Language of the case: Italian

      Parties

      Appellants: Soc. coop. Amrita arl; Cesi Marta; Comune Agricola Lunella — Soc. mutua coop. arl; Rollo Olga; Borrello Claudia; Società agricola Merico Maria Rosa di Consiglia, Marta e Vito Lisi; Marzo Luigi; Stasi Anna Maria; Azienda Agricola Crie di Miggiano Gianluigi; Castriota Maria Grazia; Azienda Agricola di Cagnoni Fiorella; Azienda Agricola Spirdo ss agr.; Impresa Agricola Stefania Stamerra; Azienda Agricola Clemente Pezzuto di Pezzuto Francesco; Simone Cosimo Antonio; Masseria Alti Pareti Soc. agr. arl (represented by: L. Paccione, V. Stamerra, avvocati)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside the order under appeal and refer the case back to the General Court, if appropriate with a declaration confirming that the appellants are fully entitled to bring proceedings;

               —

               order the Commission to pay the costs.

      Grounds of appeal and main arguments

   In support of the appeal, the appellants rely on the following grounds:

               1.

                  First ground of appeal: error in law. Incorrect assessment of the relevant facts. Inadequate and erroneous reasoning in relation to paragraphs 12 to 22 of the order under appeal

               The order under appeal is based on the erroneous premise that the appellants requested the annulment of Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) (OJ 2015 L 125, p. 36) in its entirety, rather than, as was in fact the case, the annulment only of the specific parts described in greater detail in the application initiating the proceedings and in the reply to the objection of inadmissibility.

               2.

                  Second ground of appeal: Error in law. Incorrect assessment of the relevant facts. Insufficient, contradictory and erroneous nature of the reasoning

               The order under appeal wrongly states that the Commission decision requires enforcement measures on the part of the Italian State in relation to the boundaries of the zone infected by Xylella fastidiosa. The undisputed fact that the decision classifies in a binding manner, as an affected area, the entire administrative province of Lecce, the territorial boundaries of which are already marked on the map, gainsays that argument.

               3.

                  Third ground of appeal: Unlawfulness of paragraph 25, also in relation to paragraph 21, of the order under appeal: contradictory, erroneous and manifestly unfounded nature of the reasoning

               The reasoning of the General Court in paragraph 21 of the order under appeal states that, in order to assess whether a regulatory act entails implementing measures, it is necessary to refer to the position of the party relying on the right to bring an action. The General Court derogates from that interpretative criterion in the subsequent paragraph 25 by rejecting the arguments regarding the appellants’ entitlement to bring proceedings.

               4.

                  Fourth ground of appeal: Error in law. Incorrect assessment of the relevant facts. Insufficient, contradictory and erroneous nature of the reasoning

               The General Court, on the one hand, holds that the Ministero delle Politiche Agricole italiano (Italian Ministry of Agricultural Policy) adopted enforcement measures in relation to Articles 4, 6 and 7 of the Commission decision by way of decree, whereas, on the other hand, in contradiction to this, it notes that certain measures in the Commission decision are not included in that decree.

               5.

                  Fifth ground of appeal: Error in law. Incorrect assessment of the relevant facts. Insufficient, contradictory and erroneous nature of the reasoning

               Paragraph 24 of the order under appeal fails to address the actual content of the first-instance proceedings in which the appellants challenge Article 6(4) and Article 7(4) of the decision, in relation to the obligation to use phytosanitary treatments banned in organic farming, this being an obligation that involves a self-implementing measure causing direct harm to the appellant companies, which would lose their organic certification as a result.

               6.

                  Sixth ground of appeal: Error in law. Incorrect assessment of the relevant facts. Insufficient, contradictory and erroneous nature of the reasoning

               Paragraphs 33 and 34 of the order under appeal ignore the documentary evidence produced in the course of the proceedings regarding the individual harm suffered by the appellants as a result of the measures under appeal.

               7.

                  Seventh ground of appeal: Error in law. Failure to rule on the direct harm resulting from the measures under appeal

               The General Court failed to rule on the objective existence of the direct harm suffered by the appellant companies as a result of the Commission’s self-implementing measures under appeal.


title: Case F-45/06 REV: Judgment of the Civil Service Tribunal (First Chamber) of 20 September 2011 — De Buggenoms and Others v Commission (Civil Service — Procedure — Application for revision — Article 119 of the Rules of Procedure of the Tribunal — Decision of the Tribunal — Application for revision relating to an order for removal from the register following withdrawal from the proceedings — Res judicata — Absence — Inadmissibility raised by the Tribunal of its own motion)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/34

         Judgment of the Civil Service Tribunal (First Chamber) of 20 September 2011 — De Buggenoms and Others v Commission
   (Case F-45/06 REV)
   (Civil Service - Procedure - Application for revision - Article 119 of the Rules of Procedure of the Tribunal - Decision of the Tribunal - Application for revision relating to an order for removal from the register following withdrawal from the proceedings - Res judicata - Absence - Inadmissibility raised by the Tribunal of its own motion)
   2011/C 340/68
   Language of the case: French

      Parties

      Applicants: Sandrine De Buggenoms and Others (Hoeilaart, Belgium) (represented by: S. Rodrigues, C. Bernard-Glanz and A. Blot, lawyers)

      Defendant: European Commission (represented by: J. Currall and G. Berscheid, Agents)

      Intervener in support of the defendant: Council of the European Union (represented by: M. Bauer and J. Herrmann, Agents)

      Re:

   Action for revision brought by the applicant against the order of the First Chamber of the Civil Service Tribunal on 16 September 2010, in Case F-45/06.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the application for revision as inadmissible;

               2.

               Orders the parties applying for revision to pay the costs incurred by the European Commission;

               3.

               Orders the Council of the European Union, intervener in the revision proceedings, to bear its own costs.


title: Joined Cases F-20/08, F-34/08 and F-75/08: Judgment of the Civil Service Tribunal (Second Chamber) of 29 September 2009 — Aparicio, Simon and Others v Commission (Staff case — Contract staff — Recruitment — CAST 27/Relex selection procedure — Non-inclusion in the database — Neutralisation of questions — Verbal and numerical reasoning test — Equal treatment)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/73

         Judgment of the Civil Service Tribunal (Second Chamber) of 29 September 2009 — Aparicio, Simon and Others v Commission
   (Joined Cases F-20/08, F-34/08 and F-75/08) (1)

   (Staff case - Contract staff - Recruitment - CAST 27/Relex selection procedure - Non-inclusion in the database - Neutralisation of questions - Verbal and numerical reasoning test - Equal treatment)
   2010/C 24/135
   Language of the case: French

      Parties

      Applicants: Jorge Aparicio (Antiguo Cuscatlan, El Salvador) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers) (Case F-20/08)
   and
   Anne Simon (Nouackhott, Mauritania) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E.Marchal, lawyers) (Case F-34/08)
   and
   Jorge Aparicio, (Antiguo Cuscatlan, El Salvador) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers) (Case F-75/08)

      Defendant: Commission of the European Communities (represented by: J. Currall and B. Eggers, Agents)

      Re:

   Annulment of the decision of EPSO not to include the applicants’ names on the list of successful candidates and in the database for the CAST 27/Relex recruitment procedure.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the actions in F-20/08, F-34/08 and F-75/08;

               2.

               Orders Mr Aparicio and the other applicants whose names are listed in the Annex under Nos 1 to 18 to pay the costs in Case F-20/08 and nineteen forty-sixths of the costs in Case F-75/08. Orders Ms Simon to pay the costs in Case F-34/08 and one forty-sixth of the costs in Case F-75/08. Orders the applicants whose names are listed in the Annex under Nos 19 to 40 and 42 to 46 to pay twenty-six forty-sixths of the costs in Case F-75/08.

      (1)  F-20/08: OJ C 92, 12.4.2008, p. 52.
   F-34/08: OJ C 116, 9.5.2008, p. 36.
   F-75/08: OJ C 285, 8.11.2008, p. 56.


C 136/14              EN                  Official Journal of the European Communities                                  15.5.1999
       Removal from the register of Case C-19/98 (1)                 the register of Case C-133/97 (reference for a preliminary
                                                                     ruling from the Commissione Tributaria Provinciale di Livor-
                        (1999/C 136/30)                              no): Centro Acciai Rivestiti Srl (CAR) v Direzione Regionale
                                                                     delle Entrate per la Toscana (Sezione di Livorno).
By order of 26 February 1999 the President of the Fifth
Chamber of the Court of Justice of the European Communities          (1) OJ C 181, 14.6.1997.
has ordered the removal from the register of Case C-19/98:
Commission of the European Communities v Kingdom of
Spain.
(1) OJ C 94, 28.3.1998.
                                                                            Removal from the register of Case C-18/98 (1)
                                                                                (1999/C 136/32)
                                                                     By order of 4 March 1999 the President of the Fourth Chamber
       Removal from the register of Case C-133/97 (1)                of the Court of Justice of the European Communities has
                                                                     ordered the removal from the register of Case C-18/98:
                        (1999/C 136/31)                              Commission of the European Communities v Kingdom of
                                                                     Spain.
By order of 2 March 1999 the President of the Court of Justice
of the European Communities has ordered the removal from             (1) OJ C 94, 28.3.1998.


title: JUDGMENT OF THE COURT of 29 September 1998 in Case C-191/95: Commission of the European Communities v. Federal Republic of Germany (Failure by a Member State to fulfil its obligations - Reasoned opinion - Principle of collegiality - Company law - Directives 68/151/EEC and 78/660/EEC - Annual accounts - Penalties for failure to disclose)

text:
7.11.98               EN                 Official Journal of the European Communities                                      C 340/5
               JUDGMENT OF THE COURT                                court must, in particular, verify whether that right to bring
                       (Sixth Chamber)                              review proceedings can be exercised before the same
                                                                    bodies as those established to hear applications for review
                    of 24 September 1998                            concerning the award of public supply contracts and
                                                                    public works contracts. If the provisions of domestic law
in Case C-111/97 (reference for a preliminary ruling from           are incapable of being interpreted in conformity with
the Bundesvergabeamt): EvoBus Austria GmbH v.                       Directive 92/13/EEC, the persons concerned may, in
    Niederösterreichische Verkehrsorganisations GmbH                accordance with the appropriate procedures under
                          (Növog) (1)                               domestic law, claim compensation for damage suffered as
(Public procurement in the water, energy, transport and             a result of the failure to transpose the directive within the
telecommunications sectors Ð Effect of a directive which            prescribed time-limit.
                  has not been transposed)
                                                                    (1) OJ C 142 of 10.5.1997.
                        (98/C 340/08)
               (Language of the case: German)
 (Provisional translation; the definitive translation will be
                                                                                JUDGMENT OF THE COURT
         published in the European Court Reports)
                                                                                of 29 September 1998
In Case C-111/97: reference to the Court under Article 177          in   Case C-191/95: Commission of the European
of the EC Treaty from the Bundesvergabeamt (Federal                       Communities v. Federal Republic of Germany (1)
Procurement Office) (Austria), for a preliminary ruling             (Failure by a Member State to fulfil its obligations Ð
in the proceedings pending before that court between                Reasoned opinion Ð Principle of collegiality Ð Company
EvoBus Austria GmbH and Niederösterreichische                       law Ð Directives 68/151/EEC and 78/660/EEC Ð
Verkehrsorganisations GmbH (Növog) Ð on the                             Annual accounts Ð Penalties for failure to disclose)
interpretation of Council Directive 92/13/EEC of
25 February 1992 coordinating the laws, regulations and                                     (98/C 340/09)
administrative provisions relating to the application of
Community rules on the procurement procedures of
entities operating in the water, energy, transport and                            (Language of the case: German)
telecommunications sectors (OJ L 76 of 23.3.1992, p. 14)
Ð the Court (Sixth Chamber), composed of: H.
Ragnemalm, President of the Chamber, G. F. Mancini,                   (Provisional translation; the definitive translation will be
P. J. G. Kapteyn (Rapporteur), J. L. Murray and K. M.                        published in the European Court Reports)
Ioannou, Judges; N. Fennelly, Advocate General; H. A.
Rühl, Principal Administrator, for the Registrar, has given
a judgment on 24 September 1998, in which it has ruled:             In Case C-191/95: Commission of the European
                                                                    Communities (Agent: Jürgen Grunwald) v Federal
                                                                    Republic of Germany (Agents: Ernst Röder and Alfred
Article 1(1) to (3), Article 2(1), (7) to (9) and the               Dittrich, assisted by Hans-Jürgen Rabe, Rechtsanwalt) Ð
other provisions of Council Directive 92/13/EEC of                  application for a declaration that, by failing to provide for
25 February 1992 coordinating the laws, regulations and             appropriate penalties in cases where companies limited by
administrative provisions relating to the application of            shares fail to disclose their annual accounts, as prescribed
Community rules on the procurement procedures of                    in particular by the First Council Directive 68/151/EEC of
entities operating in the water, energy, transport and              9 March 1968 on coordination of safeguards which, for
telecommunications sectors cannot be interpreted as                 the protection of the interests of members and others, are
meaning that, where the directive has not been transposed           required by Member States of companies within the
by the end of the period prescribed for that purpose, the           meaning of the second paragraph of Article 58 of the
review bodies of the Member States having competence in             Treaty, with a view to making such safeguards equivalent
relation to procedures for the award of public works                throughout the Community (OJ L 65 of 14.3.1968, p. 8),
contracts and public supply contracts may also hear                 and the Fourth Council Directive 78/660/EEC of 25 July
applications for review relating to procedures for the              1978 based on Article 54(3)(g) of the Treaty on the
award of public contracts in the water, energy, transport           annual accounts of certain types of companies (OJ L 222
and telecommunications sectors. However, in order to                of 14.8.1978, p. 11), the Federal Republic of Germany has
observe the requirement that domestic law be interpreted            failed to fulfil its obligations under the EC Treaty and
in conformity with Directive 92/13/EEC and the                      those directives Ð the Court, composed of: G. C.
requirement that the rights of individuals be protected             Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm
effectively, the national court must determine whether the          (Rapporteur), M. Wathelet and R. Schintgen (Presidents of
relevant provisions of its domestic law allow recognition           Chambers), G. F. Mancini, J. C. Moitinho de Almeida,
of a right for individuals to bring review proceedings in           P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward, J.-P.
relation to awards of public contracts in the water, energy,        Puissochet, G. Hirsch, P. Jann, L. Sevón and K. M.
transport and telecommunications sectors. The national              Ioannou, Judges; G. Cosmas, Advocate General; H. A.
 ---pagebreak--- C 340/6               EN                  Official Journal of the European Communities                                    7.11.98
Rühl, and subsequently D. Louterman-Hubeau, Principal                H. Ragnemalm, M. Wathelet and R. Schintgen (Presidents
Administrators, for the Registrar, has given a judgment on           of Chambers), P. J. G. Kapteyn, J. L. Murray, D. A. O.
29 September 1998, in which it:                                      Edward, G. Hirsch, P. Jann and L. Sevón, Judges; F. G.
                                                                     Jacobs, Advocate General; H. von Holstein, Deputy
                                                                     Registrar, for the Registrar, has given a judgment on
1. dismisses the pleas of inadmissibility;                           29 September 1998, in which it has ruled:
2. declares that, by failing to provide for appropriate              1. On a proper construction of Article 4(1)(b) of First
     penalties in cases where companies limited by shares                Council Directive 89/104/EEC of 21 December 1988
     fail to effect compulsory disclosure of their annual                to approximate the laws of the Member States relating
     accounts as prescribed, in particular, by Article 2(1)(f),          to trade marks, the distinctive character of the earlier
     and Articles 3 and 6 of the First Council Directive                 trade mark, and in particular its reputation, must be
     68/151/EEC of 9 March 1968 on coordination of                       taken into account when determining whether the
     safeguards which, for the protection of the interests of            similarity between the goods or services covered by the
     members and others are required by Member States                    two trade marks is sufficient to give rise to the
     of companies within the meaning of the second                       likelihood of confusion.
     paragraph of Article 58 of the Treaty, with a view to
     making such safeguards equivalent throughout the
     Community, in conjunction with Article 47(1) of the             2. There may be a likelihood of confusion within the
     Fourth Council Directive 78/660/EEC of 25 July 1978                 meaning of Article 4(1)(b) of Directive 89/104/EEC
     based on Article 54(3)(g) of the Treaty on the annual               even where the public perception is that the goods or
     accounts of certain types of companies, the Federal                 services have different places of production. By
     Republic of Germany has failed to fulfil its obligations            contrast, there can be no such likelihood where it does
     under those directives;                                             not appear that the public could believe that the goods
                                                                         or services come from the same undertaking or, as the
                                                                         case may be, from economically-linked undertakings.
3. orders the Federal Republic of Germany to pay the
     costs.                                                          (1) OJ C 94 of 22.3.1997.
(1) OJ C 208 of 12.8.1995.
                                                                                JUDGMENT OF THE COURT
                                                                                (First Chamber)
               JUDGMENT OF THE COURT
                                                                                of 29 September 1998
                    of 29 September 1998
                                                                     in Case C-263/97 (reference for a preliminary ruling from
in Case C-39/97 (reference for a preliminary ruling from             the High Court of Justice, Queen's Bench Division): The
the Bundesgerichtshof): Canon Kabushiki Kaisha v.                    Queen v. Intervention Board for Agricultural Produce, ex
                Metro-Goldwyn-Mayer Inc. (1)                                  parte First City Trading Ltd and Others (1)
(Trade mark law Ð Likelihood of confusion Ð Similarity               (Agriculture Ð Common organisation of the markets Ð
                     of goods or services)                           Beef Ð Export refunds Ð Beef of British origin
                        (98/C 340/10)                                repatriated to the United Kingdom as a result of the
                                                                     announcements and decisions made in relation to mad
                                                                                cow disease' Ð Force majeure)
               (Language of the case: German)
                                                                                (98/C 340/11)
  (Provisional translation; the definitive translation will be                      (Language of the case: English)
          published in the European Court Reports)
                                                                     In Case C-263/97: reference to the Court under Article 177
In Case C-39/97: reference to the Court under Article 177            of the EC Treaty by the High Court of Justice, Queen's
of the EC Treaty from the Bundesgerichtshof (Federal                 Bench Division (England and Wales), for a preliminary
Court of Justice) (Germany), for a preliminary ruling in             ruling in the proceedings pending before that court
the proceedings pending before that court between Canon              between The Queen and Intervention Board for
Kabushiki Kaisha and Metro-Goldwyn-Mayer Inc.,                       Agricultural Produce, ex parte First City Trading Ltd and
formerly Pathe Communications Corporation Ð on the                   Others, on the interpretation of Articles 23 and 33
interpretation of Article 4(1)(b) of First Council Directive         of Commission Regulation (EEC) No 3665/87 of
89/104/EEC of 21 December 1988 to approximate the                    27 November 1987 laying down common detailed rules
laws of the Member States relating to trade marks (OJ                for the application of the system of export refunds on
L 40 of 11.2.1989, p. 1) Ð the Court, composed of: G. C.             agricultural products (OJ L 351 of 14.12.1987, p. 1) and
Rodríguez Iglesias, President, C. Gulmann (Rapporteur),              on the validity of Commission Decision 96/239/EC of


title: Case T-315/00: Action brought on 6 October 2000 by Associazione delle Cantine Sociali Venete e della Cantina dei Colli Berici against Commission of the European Communities

text:
25.11.2000            EN                      Official Journal of the European Communities                                       C 335/49
Action brought on 26 September 2000 by S.A. Cimente-                     Action brought on 6 October 2000 by Associazione delle
ries CBR against the Commission of the European Com-                     Cantine Sociali Venete e della Cantina dei Colli Berici
                            munities                                         against Commission of the European Communities
                        (Case T-309/00)
                                                                                (Case T-315/00)
                        (2000/C 335/93)
                                                                                (2000/C 335/94)
                   (Language of the case: French)
An action against the Commission of the European Communi-                                   (Language of the case: Italian)
ties was brought before the Court of First Instance of the
European Communities on 26 September 2000 by S.A.                        An action against the Commission of the European Communi-
Cimenteries CBR, whose registered office is in Brussels,                 ties was brought before the Court of First Instance of the
represented by A. Vandencasteele and D. Waelbroeck, of the               European Communities on 6 October 2000 by Associazione
Brussels Bar.                                                            delle Cantine Sociali Venete e la Cantina dei Colli Berici,
                                                                         represented by Ivone Cacciavillani and Antonio Cimino, of the
The applicant claims that the Court should:                              Venice and Padua Bars, with an address for service in
—     annul the implied decision of the Commission of 27 July            Luxembourg at the Chambers of Alain Lorang, 51 Rue Albert I.
      2000 refusing to pay the applicant interest on the sum of
      5 485 000 Euros, the principal amount of a fine wrongly            The applicants claim that the Court should:
      imposed by the Commission on 3 May 1995, at a rate of
      7,25 % for the period between 3 May 1995 and 24 May                —     annul the contested provisions and accordingly order the
      2000 and a rate of 9,25 % for the period between 25 May                   defendant to produce the requisite documents (by lodging
      2000 and 27 July 2000;                                                    them with the Court Registry);
—     order the Commission to pay the costs.
                                                                         —      order the defendant to pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
Under Article 9 of its decision of 30 November 1994 in
Case IV (33.126 and 33.332) — Cement, the Commission
imposed a fine on the applicant for infringement of Article 85           The applicants in the present case challenge the refusal of the
of the EC Treaty (now Article 81 EC).                                    defendant to allow access to a number of document concerning
                                                                         the procedure determining compulsory distillation of table
The amount of that fine was reduced by judgment of the Court             wines for the year 1993/1994.
of First Instance of 15 March 2000 in Joined Cases T-25/95
and others (the ‘Cement’ judgment)
                                                                         The applicants observe that the validity of the compulsory
Following that judgment, the applicant requested the defendant           distillation in question, as a Community mechanism for
to repay the difference between the fine imposed and the fine            intervening on the wine market, has been at the heart of
as reduced by the Court of First Instance, plus interest on that         various disputes, which are still pending, before the ordinary
sum. The defendant subsequently repaid the principal amount              courts of law, administrative courts and the Community
but did not pay interest on that amount.                                 judicature.
The applicant regards that refusal as an implied decision                In support of their claims, the applicants allege infringement of
refusing to pay the necessary interest and challenges the                Article 1 of Decision 94/90/ECSC, EC, Euratom of 8 February
lawfulness of that decision.                                             1994 on public access to Commission documents (1). In the
                                                                         present case, the conduct of the Commission is essentially
In support of its action the applicant relies on:                        evasive. After officially declaring, in the course of a dispute
                                                                         before the Court of Justice, that it had taken the definite
—     breach of the obligation to take the measures necessary            decision to impose on Italy the compulsory distillation
      to execute the judgment of the Court of First Instance, as         12 150 000 hectolitres, on the basis of objective reasons, it
      provided for in Article 233 EC;                                    did not allow private individuals access to the documents and
                                                                         the travaux préparatoires in order to determine the existence
—     infringement of the principle of proportionality;
                                                                         of those objective reasons and to assess them.
—     infringement of the principle prohibiting undue enrich-
      ment;
                                                                         (1) OJ 1994 L 46, p. 58.
—     infringement of the fundamental right to equal treatment.


title: Judgment of the Court of First Instance of 19 July 1999 in Case T-20/98: Q v Council of the European Union (Officials - Actions for annulment - Recovery of sums overpaid - Article 23 of Annex X to the Staff Regulations)

text:
C 281/14              EN                       Official Journal of the European Communities                                     2.10.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               decision refusing to grant the applicant the benefits provided
                                                                          for by the Staff Regulations of officials in respect of partial
                         of 19 July 1999                                  permanent invalidity resulting from an accident suffered by
                                                                          him when he was contractually bound to the institution as an
                                                                          outside contractor and, in the alternative, for damages — the
  in Case T-20/98: Q v Council of the European Union (1)                  Court of First Instance (Third Chamber), composed of M. Jae-
                                                                          ger, President, and K. Lenaerts and J. Azizi, Judges; A. Mair,
(Officials — Actions for annulment — Recovery of sums                     Administrator, for the Registrar, has given a judgment on
overpaid — Article 23 of Annex X to the Staff Regulations)                19 July 1999, in which it:
                                                                          1. Dismisses the application;
                        (1999/C 281/26)
                                                                          2. Orders the parties to bear their own costs.
                   (Language of the case: French)
                                                                          (1) OJ C 209 of 4.7.1998.
In Case T-20/98: Q, an official of the Council of the European
Union, represented by Jean-Noël Louis, Ariane Tornel and
Françoise Parmentier, of the Brussels Bar, with an address for
service in Luxembourg at Fiduciaire Myson S.à r.l., 30 Rue de
Cessange, against Council of the European Union (Agents:
Martin Bauer and Denis Waelbroeck) — application for
annulment of the decisions of the Council of 12 March and
13 June 1997 ordering the applicant to repay sums overpaid                    JUDGMENT OF THE COURT OF FIRST INSTANCE
by way of accommodation expenses to which are entitled
members of staff posted to non-Member States — the Court                                            of 8 July 1999
of First Instance (First Chamber), composed of B. Vesterdorf,
President, J. Pirrung and M. Vilaras, Judges; H. Jung, Registrar,         in Case T-163/98: The Procter & Gamble Company v
gave a judgment on 19 July 1999, in which it:                             Office for Harmonisation in the Internal Market (Trade
                                                                                Marks and Designs) (1)
1. Dismisses the application.
                                                                          (Community mark — Term ‘Baby-Dry’ — Absolute ground
2. Orders the parties to bear their own costs.
                                                                          for refusal — Extent of review by the Boards of Appeal —
                                                                                Extent of review by the Court of First Instance)
(1) OJ 1998 C 94.
                                                                                (1999/C 281/28)
                                                                                (Language of the case: French)
                                                                          In Case T-163/98: The Procter & Gamble Company, having its
                                                                          registered office at Cincinnati, Ohio (United States of America),
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               represented by Thierry van Innis, of the Brussels Bar, with an
                                                                          address for service in Luxembourg at the Chambers of
                         of 19 July 1999                                  Katia Manhaeve, 56-58 rue Charles Martel v Office for
                                                                          Harmonisation in the Internal Market (Trade Marks and
in Case T-74/98: Luciano Mammarella v Commission of                       Designs) (Agents: Oreste Montalto and Fernando López de
                 the European Communities (1)                             Rego) — appeal against the decision of the First Board of
                                                                          Appeal of the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) of 31 July 1998 (Case R
(Official — Social security — Invalidity pension — Outside                35/1998-1), which was notified to the applicant on 7 August
contractor bound by contract to the institution — Works                   1998 — the Court of First Instance (Second Chamber),
                contract systematically renewed)                          composed of: A. Potocki, President, C.W. Bellamy and
                                                                          A.W.H. Meij, Judges; H. Jung, Registrar, has given a judgment
                        (1999/C 281/27)                                   on 8 July 1999, in which it held:
                                                                          1. The decision of the First Board of Appeal of the Office for
                   (Language of the case: Italian)                             Harmonisation in the Internal Market (Trade Marks and
                                                                               Designs) of 31 July 1998 (Case R 35/1998-1) is annulled.
In Case T-74/98: Luciano Mammarella, an official of the
                                                                          2. The parties shall bear their own costs.
Commission, residing at Biandronno (Italy), represented by
Giuseppe Marchesini, of the Vicenza Bar, with an address for
service in Luxembourg at the Chambers of Ernest Arendt,                   (1) OJ C 1 of 4.1.1999.
8-10 Rue Mathias Hardt, v Commission of the European
Communities (Agents: Gianluigi Valsesia and Alberto Dal
Ferro) — application for annulment of the Commission’s


title: Action brought on 19 December 1997 by BSC Footwear Supplies and Others against the Council of the European Union (Case T-598/97)

text:
C 55/30              EN                 Official Journal of the European Communities                                    20.2.98
on the Decision to those third parties who are addressees          Communities on 19 December 1997 by BSC Footwear
of the Decision. In addition, the Commission may not               Supplies, represented by Alasdair Bell and Mark Powell,
validly notify the Decision to two other supposed                  with an address for service in Luxembourg at the
addressees via the applicant, simply on the basis of the           Chambers of Loesch & Wolter, 11, rue Goethe.
limited corporate links between the applicant and Siderca.
It is submitted that the notion of a single economic entity
is not relevant to the question whether a duty may be              The applicants claim that the Court should:
imposed on one addressee of a Decision to pass on copies
of that decision to other addressees. Moreover, inasmuch
as one of the addressees of the decision is the Techint           Ð annul Council Regulation (EC) No 2155/97 imposing
Group' an additional difficulty arises, since the Techint              definitive anti-dumping duties on imports of textile
Group' is not an identifiable legal entity but an                       upper footwear originating in the People's Republic of
appellation used to refer to a number of different                      China and Indonesia and collecting definitively the
undertakings engaged in diversified businesses ultimately               provisional duty imposed, and
controlled by San Faustin NV. Accordingly, even if the
applicant were to be required to pass on the decision, it
would be unable to do so since it would be unable to               Ð order the Council to pay the costs of the applicant
identify one of the addressees of the decision.                         companies in the present proceedings.
                                                                   Pleas in law and main arguments adduced in support:
Furthermore, it is clear from the wording of Article 2 of
the contested Decision that the Commission considers the
applicant to be jointly liable with each of the other              The applicants, who are the same as those in Case T-73/
addressees for the payment of any periodic penalty                 97 (1), seek the annulment of Council Regulation (EC)
payments which would be imposed pursuant to                        No 2155/97 (2) imposing a definitive anti-dumping duty
Article 16(1)(c) of Regulation No 17 on the Techint               on imports of footwear with textile uppers originating in
Group' and/or Siderca, should Siderca not provide the              the People's Republic of China and Indonesia. The pleas
information requested in the Decision. In so doing, the            in law and main arguments concerning the alleged
Commission has infringed both Articles 11 and 16 of                infringement of Article 1(4) of Regulation (EC) No 3283/
Regulation No 17 and the principle of individual liability         94 (3) are the same as those raised in that case.
which is enshrined in that Regulation. Neither Article 11
nor Article 16, nor any other provision of Regulation
No 17 empowers the Commission to impose penalty                    In addition, the applicants plead infringement of
payments on one undertaking for the failure by another             Article 3(1) of Regulation (EC) No 3283/94 in that
undertaking to supply information requested from it in a           material injury was not established in relation to
Decision pursuant to Article 11(5). Moreover, as a                 Community industry' as defined by law.
consequence of the enforcement of the contested Decision,
it would be deprived of its essential procedural rights of
defence.                                                           Furthermore, the applicants plead infringement of
                                                                   Articles 20(4) and 20(5) of Regulation (EC) No 3283/94.
                                                                   In the administrative proceedings prior to the adoption of
Finally, the applicant submits that the contested Decision,        Regulation (EC) No 2155/97 the Commission failed to
apart from being inconsistent, contradictory and                   respect the procedural guarantees to which the applicants
insufficiently reasoned, fixes a higher level of penalty           were entitled pursuant to Article 20 of the basic anti-
payments than is permitted by Article 16(1) of Regulation          dumping Regulation. In particular, the right of the
No 17.                                                             applicants to obtain final disclosure', and to comment on
                                                                   the contents of that disclosure, was infringed by the
                                                                   Commission. The applicants' rights of defence were
                                                                   thereby violated.
                                                                   Finally, the applicants  claim that the decision to impose a
Action brought on 19 December 1997 by BSC Footwear                 49,2 % anti-dumping       duty on a product which it is
Supplies and Others against the Council of the European            practically impossible    to source in the Community (i.e.
                           Union                                   vulcanised footwear)     is disproportionate and, therefore,
                                                                   unlawful.
                      (Case T-598/97)
                        (98/C 55/60)                               (1) OJ C 166, 31.5.1997, p. 17.
                                                                   (2) OJ L 298, 1.11.1997, p. 1.
                                                                   (3) Council Regulation (EC) No 3283/94 of 22 December 1994
                                                                       on protection against dumped imports from countries not
               (Language of the case: English)
                                                                       members of the European Community (OJ L 349, 31.12.1994,
                                                                       p. 1).
An action against the Council of the European Union was
brought before the Court of First Instance of the European


title: Case C-128/11: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 March 2011 — UsedSoft GmbH v Oracle International Corp.

text:
               2.7.2011

               EN

               Official Journal of the European Union

               C 194/8

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 March 2011 — UsedSoft GmbH v Oracle International Corp.
   (Case C-128/11)
   2011/C 194/11
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: UsedSoft GmbH

      Defendant: Oracle International Corp.

      Questions referred

               1.

               Is the person who can rely on exhaustion of the right to distribute a copy of a computer program a ‘lawful acquirer’ within the meaning of Article 5(1) of Directive 2009/24/EC? (1)

               2.

               If the reply to the first question is in the affirmative: is the right to distribute a copy of a computer program exhausted in accordance with the first half-sentence of Article 4(2) of Directive 2009/24/EC when the acquirer has made the copy with the rightholder’s consent by downloading the program from the internet onto a data carrier?

               3.

               If the reply to the second question is also in the affirmative: can a person who has acquired a ‘used’ software licence for generating a program copy as ‘lawful acquirer’ under Article 5(1) and the first half-sentence of Article 4(2) of Directive 2009/24 also rely on exhaustion of the right to distribute the copy of the computer program made by the first acquirer with the rightholder’s consent by downloading the program from the internet onto a data carrier if the first acquirer has erased his program copy or no longer uses it?

      (1)  Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version) (OJ 2009 L 111, p. 16).


title: Case C-107/00: Reference for a preliminary ruling from the Tribunal du Travail, Mons (Third Chamber), Belgium, by judgment of that court of 13 March 2000 in the case of Caterina Insalaca v Office National des Pensions (ONP)

text:
27.5.2000               EN                     Official Journal of the European Communities                                        C 149/27
Reference for a preliminary ruling from the Tribunal du                   Are advertising services as mentioned in Article 9(2)(e) of
Travail, Mons (Third Chamber), Belgium, by judgment of                    Directive 77/388/EEC of 17 May 1977 (1) to be understood, as
that court of 13 March 2000 in the case of Caterina                       regards operations for the purpose of promoting the sale of
        Insalaca v Office National des Pensions (ONP)                     goods or services, only as services supplied directly and
                                                                          invoiced by the supplier of services to a taxable advertiser,
                         (Case C-107/00)                                  excluding services of the same nature supplied indirectly to the
                                                                          advertiser and invoiced to a third party who in turn invoices
                                                                          them to that advertiser?
                         (2000/C 149/49)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Tribunal du                     (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
Travail (Labour Court), Mons (Third Chamber), of 13 March                     harmonization of the laws of the Member States relating to
2000, which was received at the Court Registry on 22 March                    turnover taxes — Common system of value added tax: uniform
                                                                              basis of assessment (OJ 1977 L 145 of 13. 6.1977, p. 1).
2000, for a preliminary ruling in the case of Caterina Insalaca
v Office National des Pensions (ONP), on the following
questions:
1. Does the national rule governing the calculation of a
     survivor’s pension and establishing a restriction of the
     ceiling in respect of overlapping of old-age and survivor’s
     pensions where the surviving spouse can claim a survivor’s
     pension payable by another Member State constitute a
     provision on reduction within the meaning of Articles 46a            Reference for a preliminary ruling by the Anke- og
     and 46b of Regulation No 1408/71 of 14 June 1971 (1)?                Kæremålsudvalg of the Højesteret by order of 21 March
                                                                          2000 in the case of Tele Danmark A/S v HK, acting on
2. If so, must Articles 46a and 46b be interpreted as                                    behalf of Marianne Brandt-Nielsen.
     authorising the national institution which applies the
     provision against overlapping to take account of the
     survivor’s pension granted under the scheme of another                                         (Case C-109/00)
     Member State in order to reduce the ceiling in respect of
     overlapping of old-age and survivor’s pensions provided
     for by national legislation?                                                                  (2000/C 149/51)
(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on         Reference has been made to the Court of Justice of the
    the application of social security schemes to employed persons,       European Communities by order of 21 March 2000 by the
    to self-employed persons and to members of their families moving      Anke- og Kæremålsudvalg (Appeals and Objections Com-
    within the Community (OJ 1971 L 149, p. 2).                           mittee) of the Højesteret (Danish Supreme Court), which was
                                                                          received at the Court Registry on 23 March 2000, for a
                                                                          preliminary ruling in the case of Tele Danmark A/S v HK,
                                                                          acting on behalf of Marianne Brandt-Nielsen, on the following
                                                                          questions:
Reference for a preliminary ruling from the French                        Question 1
Conseil d’État, Judicial Division, by decision of that court
of 9 February 2000 in the case of Syndicat des Producteurs
Indépendants (Union of independent producers) (SPI) v                     Does Article 5(1) of Council Directive 76/207/EEC (1) of
    Ministry for Economic Affairs, Finance and Industry                   9 February 1976 on the implementation of the principle of
                                                                          equal treatment for men and women as regards access to
                         (Case C-108/00)                                  employment, vocational training and promotion, and working
                                                                          conditions and/or Article 10 of Council Directive 92/85/EEC (2)
                                                                          of 19 October 1992 on the introduction of measures to
                         (2000/C 149/50)                                  encourage improvements in the safety and health at work of
                                                                          pregnant workers and workers who have recently given birth
Reference has been made to the Court of Justice of the                    or are breastfeeding, or other provisions in those directives or
European Communities by a decision of the French Conseil                  elsewhere in Community law preclude a worker from being
d’État, Judicial Division of 9 February 2000, which was                  dismissed on the ground of pregnancy in the case where: (i) the
received at the Court Registry on 23 March 2000, for a                    woman in question was recruited as a temporary worker for a
preliminary ruling in the case of Syndicat des Producteurs                limited period; (ii) when she entered into the contract of
Indépendants (Union of independent producers) (SPI) v Minis-              employment, the worker knew that she was pregnant but did
try for Economic Affairs, Finance and Industry on the following           not inform the employer of that fact; and (iii) her pregnancy
question. The French Conseil d’État, Judicial Division, asks the         meant that the worker was unable to work for a significant
Court of Justice to rule on the following question:                       portion of her period of employment?


title: Case C-164/14 P: Order of the Court (Ninth Chamber) of 24 February 2015 — Pesquerias Riveirenses, SL and Others v Council of the European Union (Appeal — Fisheries policy — Conservation of fishery resources — Fish stocks which are subject to international negotiations or agreements — Amalgamation of the northern and southern components of the stock of blue whiting in the north-east Atlantic in order to establish the TAC — Admissibility of the action — Measure not directly concerning individuals — Appeal manifestly unfounded)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/15

         Order of the Court (Ninth Chamber) of 24 February 2015 — Pesquerias Riveirenses, SL and Others v Council of the European Union
   (Case C-164/14 P) (1)

   ((Appeal - Fisheries policy - Conservation of fishery resources - Fish stocks which are subject to international negotiations or agreements - Amalgamation of the northern and southern components of the stock of blue whiting in the north-east Atlantic in order to establish the TAC - Admissibility of the action - Measure not directly concerning individuals - Appeal manifestly unfounded))
   (2015/C 198/20)
   Language of the case: Spanish

      Parties

      Appellants: Pesquerias Riveirenses, SL, Pesquerias Campo de Marte, SL, Pesquera Anpajo, SL, Arrastreros del Barbanza, SA, Martinez Pardavila e Hijos, SL, Lijo Pesca, SL, Frigorificos Hermanos Vidal, SA, Pesquera Boteira, SL, Francisco Mariño Mos y Otros, CB, Perez Vidal Juan Antonio y Hno, CB, Marina Nalda, SL, Portillo y Otros, SL, Vidiña Pesca, SL, Pesca Hermo, SL, Pescados Oubiña Perez, SL, Manuel Pena Graña, Campo Eder, SL, Pesquera Laga, SL, Pesquera Jalisco, SL, Pesquera Jopitos, SL, Pesca-Julimar, SL (represented by: J. Tojeiro Sierto, abogado)

      Other party to the proceedings: Council of the European Union (represented by: A. Westerhof Löfflerová and A. de Gregorio Merino, agents)

      Intervener in support of the defendant: European Commission (represented by: A. Szmytkowska and I. Galindo Martín, agents)

      Operative part of the order

               1)

               The appeal is dismissed as manifestly unfounded.

               2)

               Pesquerias Riveirenses SL and Others shall bear their own costs and pay those incurred by the Council of the European Union.

               3)

               The European Commission shall bear its own costs.

      (1)  OJ C 159, 26.5.2014.


title: Case T-526/14: Judgment of the General Court of 19 November 2015 — Matratzen Concord v OHIM — Barranco Rodriguez and Barranco Schnitzler (Matratzen Concord) (Community trade mark — Opposition proceedings — Application for registration of the Community word mark Matratzen Concord — Earlier national word marks MATRATZEN — Relative ground of refusal — Proof of use — Likelihood of confusion — Article 8(1)(b) and Article 42(2) of Regulation (EC) No 207/2009)

text:
               18.1.2016

               EN

               Official Journal of the European Union

               C 16/34

         Judgment of the General Court of 19 November 2015 — Matratzen Concord v OHIM — Barranco Rodriguez and Barranco Schnitzler (Matratzen Concord)
   (Case T-526/14) (1)

   ((Community trade mark - Opposition proceedings - Application for registration of the Community word mark Matratzen Concord - Earlier national word marks MATRATZEN - Relative ground of refusal - Proof of use - Likelihood of confusion - Article 8(1)(b) and Article 42(2) of Regulation (EC) No 207/2009))
   (2016/C 016/42)
   Language of the case: German

      Parties

      Applicant: Matratzen Concord GmbH (Cologne, Germany) (represented by: I. Selting, lawyer)

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

      Other parties to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Mariano Barranco Rodriguez (Sant Just Desvern, Spain) and Pablo Barranco Schnitzler (Sant Just Desvern) (represented by: J. Iglesias Monravá, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 9 April 2014 (Case R 1523/2013-1) relating to opposition proceedings between, on the one hand, Mariano Barranco Rodriguez and Pablo Barranco Schnitzler and, on the other hand, Matratzen Concord GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Matratzen Concord GmbH to pay the costs.

      (1)  OJ C 303, 8.9.2014.


title: Case T-507/04: Action brought on 30 December 2004 by Arturo Ruiz Bravo-Villasante against the Commission of the European Communities

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/22

         Action brought on 30 December 2004 by Arturo Ruiz Bravo-Villasante against the Commission of the European Communities
   (Case T-507/04)
   (2005/C 115/42)
   Language of the case: Spanish
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 December 2004 by Arturo Ruiz Bravo-Villasante, residing in Madrid, represented by Jose Luis Fuertes Suárez, lawyer.
   The applicant claims that the Court of First Instance should:

               1.

               annul the decision of the appointing authority, namely the Director of the European Personnel Selection Office, of 23 August 2004, dealing with the complaint against the decision of the selection board in Competition COM/B/2/02, concerning the marks awarded in the oral test and his exclusion from the list of successful candidates in the competition of 22 April 2004;

               2.

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant in these proceedings contests the decision of the selection board in Competition COM/B/2/02, excluding him, as a result of the marks awarded in his oral test, from the list of candidates finally selected.
   In that respect, the applicant requested the chairman of the selection board to review his oral test; the chairman replied that the selection board had confined itself in his case to applying the assessment criteria (‘grille d'évaluation’) used for all the candidates and that the manner in which the selection board had applied the classification procedure was protected by the requirement of confidentiality.
   In support of his claims, the applicant alleges infringement of the principle of transparency and disregard of what constitutes a ‘document’, for Community purposes, basing its decision to exclude the applicant on an existing document (la grille d'évaluation), the contents of which are not specified and which remain confidential.


title: Case C-467/01: Reference for a preliminary ruling by the Corte di Appello di Genova by order of that court of 15 November 2001 in the case of Ministero delle Finanze and Eurico Italia SpA

text:
16.2.2002             EN                      Official Journal of the European Communities                                        C 44/7
Reference for a preliminary ruling by the Corte di Appello                     Article 47(2) of that regulation) to be granted further
di Genova by order of that court of 15 November 2001                           time and may it fix that duration on the basis of the time
in the case of Ministero delle Finanze and Eurico Italia                       actually taken to obtain and forward the prescribed
                               SpA                                             documentation?
                                                                         (1) OJ L 351, 14.12.1987, p. 1.
                         (Case C-467/01)
                          (2002/C 44/12)
                                                                         Reference for a preliminary ruling by the Tribunale Civile
                                                                         e Penale di Trento (Civil and Criminal Court, Trento) by
                                                                         order of 6 December 2001 in the case of Francesca Caprini
                                                                                v Conservatore C.C.I.A.A.
Reference has been made to the Court of Justice of the
European Communities by an order of the Corte di Appello di                                     (Case C-485/01)
Genova (Genoa Court of Appeal) by order of 15 November
2001, which was received at the Court Registry on 6 December                                     (2002/C 44/13)
2001, on the following questions:
1.   On the basis of the combined provisions of Articles 47(4)           Reference has been made to the Court of Justice of the
     and 48 of Regulation (EEC) No 3665/87 (1), must it be               European Communities by order of 6 December 2001 by the
     concluded that (a) the further time which may be granted            Tribunale Civile e Penale di Trento, which was received at the
     to an exporter may not in any circumstances exceed the              Court Registry on 14 December 2001, for a preliminary ruling
     maximum duration of 18 months; or (b) that, conversely,             in the case of Francesca Caprini v Conservatore C.C.I.A.A. on
     the reduction of 15 % applies only where the ordinary               the following questions:
     time-limit and any extension thereof granted to the
     exporter is exceeded by more than six months?                       Does Council Directive 86/653/EEC (1) of 18 December 1986
                                                                         on the coordination of the laws of the Member States relating
                                                                         to self-employed commercial agents preclude a rule of national
2.   If the interpretation given in question 1(b) above is               law which makes the enrolment of a commercial agent in the
     correct, are there, on the basis of the two abovementioned          register of undertakings conditional on that agent’s name
     articles, maximum time-limits — in the light of the                 having been entered in an appropriate register?
     various forms, including those indicated in the grounds
     of this order, which they may take from the Community
     law point of view — within which the extensions of time             (1) OJ L 382, 31.12.1986, p. 17.
     may be granted?
3.   If the interpretation given in question 1(b) is correct,
     what are those maximum time-limits and what extensions
     of time are available under the two abovementioned
     articles?                                                           Reference for a preliminary ruling by the Hoge Raad der
                                                                         Nederlanden by decision of 14 December 2001 in the case
                                                                         of Gemeente Leusden and Staatssecretaris van Financiën
4.   If the interpretation given in question 1(b) is correct,
     may a private individual, on the basis of the two                                          (Case C-487/01)
     abovementioned articles, claim a legally protected right
     to the setting of a particular duration (regarded as                                        (2002/C 44/14)
     commensurate with the difficulties of obtaining the
     prescribed documentation) for the extension of time?
                                                                         Reference has been made to the Court of Justice of the
5.   If the interpretation given in question 1(b) is correct, may        European Communities by decision of 14 December 2001 by
     the national court, on the basis of the two abovemen-               the Hoge Raad der Nederlanden (Supreme Court of the
     tioned articles — if the administrative authority fails to          Netherlands), which was received at the Court Registry on
     grant further time — recognise the exporter’s right (if he          17 December 2001, for a preliminary ruling in the case of
     has acted diligently to obtain the documents and forward            Gemeente Leusden and Staatssecretaris van Financiën on the
     them within the period of 12 months laid down in                    following questions:


title: Case T-112/03: Action brought on 27 March 2003 by L'Oréal S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
C 135/34               EN                       Official Journal of the European Union                                           7.6.2003
Pleas in law and main arguments                                         the Court of First Instance of the European Communities on
                                                                        27 March 2003 by L’Oréal S.A., Paris, France, represented by
                                                                        Mr X. Buffet Delmas d’Autane, lawyer.
In 1999 the World Trade Organisation found that the EC
regime for the importation of bananas, as amended by Council
Regulation No 1637/98 ( 1) and Commission Regulation
No 2362/98 (2), was WTO-incompatible. Following that ruling,            A further party to the proceedings before the Board of Appeal
the United States, with WTO authorisation, adopted certain              was Revlon (Suisse) S.A.
retaliatory measures against EC products. These measures
included a 100 % duty on bath preparations imported to the
US from the EC. The first applicant is a Scottish company               The applicant claims that the Court should:
which produces, amongst other things, bath products, a large
proportion of which it used to export to the United States. The
other two applicants are officers of that company. The                  —     annul the decision of the Fourth Board of Appeal of
applicants allege that as a result of the retaliatory measures,               the OHIM of 15 January 2003 regarding the appeal
the first applicant’s sales to the US decreased substantially                 No R0396/2001-4 relating to the opposition proceedings
causing it to suffer serious material losses and subjecting the               No B 215048 (Community application No 1011576);
other two applicants to stress and anxiety which caused them
non-material damage. The applicants claim compensation
under Articles 235 and 288 EC. In support of their application          —     order that the costs of the action and the appeal are to be
they submit that, by adopting Regulation 2362/98, the                         borne by the OHIM.
defendant violated the fundamental policy of the Community
to make the ‘banana regime’ WTO compatible as well as a
clear mandate from the European Council to that effect.
Moreover, Regulation 2362/98 allegedly violates the freedom
to pursue a trade or business, the principle of proportionality,        Pleas in law and main arguments
the principle of non-discrimination and finally the principle of
good faith in international law and the legitimate expectations
traders can derive from that. According to the applicants the
                                                                        Applicant for the Com-         L’Oréal S.A.
breach of law is manifest and serious and the rules of law
                                                                        munity trade mark:
violated qualify as rules for the protection of the individual.
Further, there exists a causal link between the unlawfulness of
Regulation 2362/98 and the damage allegedly suffered by the             Community trade mark           The word mark ‘FLEXI AIR’ for
applicants, entitling the latter to compensation.                       sought:                        certain goods in class 3 (Sham-
                                                                                poos; gels, mousses and balms;
                                                                                essential oils; ...) (Application
( 1) OJ L 210, 28.7.1998, p. 28.                                                                       No 1011576)
( 2) OJ L 293, 31.10.1998, p. 32.
                                                                        Proprietor of mark or          Revlon (Suisse) S.A.
                                                                        sign cited in the oppo-
                                                                        sition proceedings:
                                                                        Mark or sign cited in          Several national word marks
                                                                        opposition:                    ‘FLEX’ for certain goods in class 3
                                                                                and 34 (soaps, essential oils,
Action brought on 27 March 2003 by L’Oréal S.A. against                                                Shampoo, ...)
the Office for Harmonisation in the Internal Market
              (Trade Marks and Designs) (OHIM)
                                                                        Decision of the Oppo-          Rejection of the community trade
                                                                        sition Division:               mark application.
                         (Case T-112/03)
                                                                        Decision of the Board of       Dismissal of the appeal brought
                         (2003/C 135/55)                                Appeal:                        by L’Oréal S.A.
                                                                        Pleas in law:                  —     Breach of article 43(2) of
(Language of the case to be determined pursuant to Article 131(2)
                                                                                Council regulation No 40/
of the Rules of Procedure — language in which the application was
                                                                                94 ( 1) and rule 22(1) Com-
                         submitted: English)
                                                                                mission           Regulation
                                                                                No 2868/95 ( 2) in that there
                                                                                is, according to the appli-
                                                                                cant, no time limit for the
An action against the Office for Harmonisation in the Internal                                               applicant to request evidence
Market (Trade Marks and Designs) (OHIM) was brought before                                                   of use.
 ---pagebreak--- 7.6.2003               EN                         Official Journal of the European Union                                         C 135/35
                               —    Violation of the principle of         The applicant claims that the Court should:
                                    continuity between the
                                    Opposition Division and the           —     annul the decisions of 30 April 2002 of the Director
                                    Board of Appeal in that the                 of the ‘Administration and Personnel Management for
                                    Board of Appeal refused to                  Luxembourg and Ispra’ Directorate in DG ADMIN refus-
                                    examine the applicant’s                     ing the applicant the installation allowance and daily
                                    request for proof of use.                   subsistence allowance during his secondment to Athens,
                                                                                and the installation allowance upon his return to Luxem-
                               —    Breach of Article 8(1) of
                                                                                bourg, and that limiting the transferable part of his salary
                                    Council Regulation 40/94 in
                                                                                to 35 % of his net emoluments from his place of
                                    that there is no likelihood of
                                                                                secondment to his place of work and habitual residence;
                                    confusion.
                               —    Breach of Article 8(2) (a) (ii)       —     order the defendant to pay the costs.
                                    of Council Regulation 40/94
                                    in that the Board of Appeal
                                    failed to assess whether the
                                    national trade mark could
                                    validly be invoked to oppose          Pleas in law and main arguments
                                    the Community trade mark
                                    application      under     the
                                    national legislation.                 The applicant, who was stationed in Luxembourg, was second-
                                                                          ed in the interests of the service to the Greek Ministry of
                                                                          Health in Athens. By its contested decisions, the defendant
                                                                          refused him the installation allowance and daily subsistence
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          allowance and limited the part of his salary he was allowed to
     Community trade mark (OJ 11, p. 1).                                  transfer to Luxembourg to 35 %.
( 2) Commission Regulation (EC) No 2868/95 of 13 December
     1995 implementing Council Regulation (EC) No 40/94 on the
     Community trade mark (OJ L 303, p. 1).
                                                                          With regard to the refusal of the installation allowance and the
                                                                          daily subsistence allowance, the applicant claims infringement
                                                                          of Articles 5 and 10 of Annex VII to the Staff Regulations in
                                                                          support of his arguments. With regard to the 35 % cap on the
                                                                          amount of his salary that he was allowed to transfer to
                                                                          Luxembourg, he claims infringement of Article 38(d) of the
                                                                          Staff Regulations and of Article 17 of Annex VII to the Staff
                                                                          Regulations.
Action brought on 31 March 2003 by Georgios Gouvras
     against Commission of the European Communities
                                                                          Action brought on 7 April 2003 by Samar SpA against
                          (Case T-113/03)                                 the Office for Harmonisation in the Internal Market
                                                                                (Trade Marks and Designs) (OHIM)
                         (2003/C 135/56)
                                                                                (Case T-115/03)
                   (Language of the case: French)                                                  (2003/C 135/57)
                                                                                (Language of the case: Italian)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                An action against the Office for Harmonisation in the Internal
European Communities on 31 March 2003 by Georgios                         Market (Trade Marks and Designs) (OHIM) was brought before
Gouvras, resident in Bereldange, Luxembourg, represented by               the Court of First Instance of the European Communities on
Albert Coolen, Jean-Noël Louis, Etienne Marchal and Sébastien             7 April 2003 by Samar SpA, represented by Alessandro Ruo,
Orlandi, lawyers, with an address for service in Luxembourg.              lawyer.


title: Case C-400/03: Reference for a preliminary ruling by the Tribunal d'instance du VIIème arrondissement de Paris by judgment of that Court of 21 August 2003 in the case of Waterman SA against Directeur Général des Douanes et Droits Indirects

text:
C 275/36               EN                        Official Journal of the European Union                                          15.11.2003
Reference for a preliminary ruling by the Tribunal d’in-                 Do the provisions of Community law relating to restrictions
stance du VIIème arrondissement de Paris by judgment of                  on the marketing of dangerous substances and preparations,
that Court of 21 August 2003 in the case of Waterman SA                  and in particular the provisions of Directive 76/769 (1) and
against Directeur Général des Douanes et Droits Indirects                Directive 94/60 (2) of 20 December 1994, prohibit the placing
                                                                         on the market for sale to the public of drying agent products
                                                                         containing lead compounds classified as toxic for reproductive
                         (Case C-400/03)                                 purposes, or do those provisions permit the relevant dero-
                                                                         gation laid down for ‘artists’ paints’ to be applied to those
                                                                         products?
                         (2003/C 275/53)
                                                                         (1) Council Directive 76/769/EEC of 27 July 1976 on the approxi-
                                                                             mation of the laws, regulations and administrative provisions of
Reference has been made to the Court of Justice of the                       the Member States relating to restrictions on the marketing and
European Communities by judgment of the Tribunal d’instance                  use of certain dangerous substances and preparations (OJ L 262
du VIIème arrondissement de Paris of 21 August 2003,                         of 27.9.1976, p. 201).
received at the Court Registry on 26 September 2003, for a               (2) European Parliament and Council Directive 94/60/EC of
preliminary ruling in the case of Waterman SA against                        20 December 1994 amending for the 14th time Directive 76/
Directeur Général des Douanes et Droits Indirects on the                     769/EEC on the approximation of the laws, regulations and
                                                                             administrative provisions of the Member States relating to restric-
following question:
                                                                             tions on the marketing and use of certain dangerous substances
                                                                             and preparations (OJ L 365 of 31.12.1994, p. 1).
Is the Explanatory Note to the Combined Nomenclature
relating to subheadings 4202 12 11 and 4202 12 19, which
clarifies the term ‘in the form of plastic sheeting’ as follows: ‘if
a container has an outer material that is a combination of
materials where the outer layer being visible to the naked eye
is plastic sheeting (e.g., woven fabric of textile fibres in
combination with plastic sheeting) it is irrelevant for classifi-
cation purposes whether the sheeting was manufactured
separately before creating the combined material or whether              Action brought on 29 September 2003 by the Com-
the plastic layer is the result of applying a coating or covering        mission of the European Communities against the Repub-
of plastics to the material ... provided that the resultant outer                                    lic of Finland
layer being visible to the naked eye has the same visual
appearance as an applied layer of manufactured plastic sheet-
ing’, contrary to the tariff?
                                                                                (Case C-407/03)
                                                                                (2003/C 275/55)
                                                                         An action against the Republic of Finland was brought
Reference for a preliminary ruling by the Tribunal de
                                                                         before the Court of Justice of the European Communities on
Grande Instance du Mans by judgment of that Court of
                                                                         29 September 2003 by the Commission of the European
8 September 2003 in the case of The Procureur de la
                                                                         Communities, represented by M. van Beek and M. Huttunen,
   Republique against Oliver Dupuy and Hervé Rouvre
                                                                         acting as Agents, with an address for service in Luxembourg.
                         (Case C-404/03)
                                                                         The Commission claims that the Court should:
                         (2003/C 275/54)
                                                                         1.     Declare that, by failing to require in its legislation with
                                                                                sufficient legal certainty that an appropriate assessment
                                                                                is to be made with respect to all projects, including those
                                                                                which are the subject of an ‘environmental impact
Reference has been made to the Court of Justice of the
                                                                                assessment’, the Republic of Finland has failed to fulfil its
European Communities by judgment of the Tribunal de
                                                                                obligations under Article 6(3) of Council Directive 92/
Grande Instance du Mans (Regional Court, Le Mans) of
                                                                                43/EEC of 21 May 1992 on the conservation of natural
8 September 2003, received at the Court Registry on 29 Sep-
                                                                                habitats and of wild fauna and flora (1);
tember 2003, for a preliminary ruling in the case of The
Procureur de la Republique against Oliver Dupuy and Hervé
Rouvre on the following question:                                        2.     Order the Republic of Finland to pay the costs.


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 226, 20.9.2003

text:
C 239/28        EN                      Official Journal of the European Union                         4.10.2003
                                                           III
                                                        (Notices)
                                                    (2003/C 239/49)
                Last publication of the Court of Justice in the Official Journal of the European Union
         OJ C 226, 20.9.2003
         Past publications
         OJ C 213, 6.9.2003
         OJ C 200, 23.8.2003
         OJ C 184, 2.8.2003
         OJ C 171, 19.7.2003
         OJ C 158, 5.7.2003
         OJ C 146, 21.6.2003
                                              These texts are available on:
                                         EUR-Lex: http://europa.eu.int/eur-lex
                                          CELEX: http://europa.eu.int/celex


title: Case C-174/15: Request for a preliminary ruling from the Rechtbank Den Haag (Netherlands) lodged on 17 April 2015 — Vereniging Openbare Bibliotheken v Stichting Leenrecht; interveners: Nederlands Uitgeversverbond and Others

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/17

         Request for a preliminary ruling from the Rechtbank Den Haag (Netherlands) lodged on 17 April 2015 — Vereniging Openbare Bibliotheken v Stichting Leenrecht; interveners: Nederlands Uitgeversverbond and Others
   (Case C-174/15)
   (2015/C 213/27)
   Language of the case: Dutch

      Referring court

   Rechtbank Den Haag

      Parties to the main proceedings

      Applicant: Vereniging Openbare Bibliotheken

      Defendant: Stichting Leenrecht

      Interveners: Nederlands Uitgeversverbond, Stichting LIRA, Stichting Pictoright

      Questions referred

               1)

               Are Articles 1(1), 2(1)(b) and 6(1) of Directive 2006/115 (1) to be construed as meaning that ‘lending’ as referred to in those provisions also means making copyright-protected novels, collections of short stories, biographies, travelogues, children’s books and youth literature available for use, not for direct or indirect economic or commercial advantage, via a publicly accessible establishment

                           —

                           by placing a digital copy (reproduction A) on the server of the establishment and enabling a user to reproduce that copy by downloading it on to his/her own computer (reproduction B),

                           —

                           in such a way that the copy made by the user when downloading (reproduction B) is no longer usable after a limited period, and

                           —

                           in such a way that other users cannot download the copy (reproduction A) on to their computers during that period?

               2)

               If Question 1 is to be answered in the affirmative: does Article 6 of Directive 2006/115 and/or any other provision of EU law preclude Member States from imposing on the application of the restriction on the lending right included in Article 6 of Directive 2006/115 a condition that the copy of the work made available by the establishment (reproduction A) must have been brought into circulation by an initial sale or other transfer of ownership of that copy within the European Union by the rightholder or with his consent within the meaning of Article 4(2) of Directive 2001/29 (2)?

               3)

               If Question 2 is to be answered in the negative: does Article 6 of Directive 2006/115 lay down other requirements for the source of the copy (reproduction A) provided by the establishment, for instance the requirement that the copy was obtained from a lawful source?

               4)

               If Question 2 is to be answered in the affirmative: is Article 4(2) of Directive 2001/29 to be construed as meaning that the initial sale or other transfer of ownership of material as referred to in that provision also means making available remotely by downloading, for use for an unlimited period, a digital copy of copyright-protected novels, collections of short stories, biographies, travelogues, children’s books and youth literature?

      (1)  Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version) (OJ 2006 L 376, p. 28).

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