title: Case C-521/15: Action brought on 29 September 2015 — Kingdom of Spain v Council of the European Union

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/25

         Action brought on 29 September 2015 — Kingdom of Spain v Council of the European Union
   (Case C-521/15)
   (2015/C 406/25)
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Decision (EU) 2015/1289 (1) of 13 July 2015 imposing a fine on Spain for the manipulation of deficit data in the Autonomous Community of Valencia, or

               —

               alternatively, reduce the fine by limiting it only to those periods after 13 December 2011, the date on which Regulation 1173/2011 (2) entered into force, and

               —

               in any event, order the Council of the European Union to pay the costs.

      Pleas in law and main arguments

               1.

               Infringement of Article 8(3) of Regulation 1173/2011 and Article 2(1) and (3) of Decision 2012/678/EU (3) and breach of the rights of the defence of the Kingdom of Spain. Prior to opening the file, an investigation was initiated outside of the procedure laid down in Decision 2012/678/EU. Thus, evidence obtained in visits which did not fulfill the requirements of Article 2.3 of that decision was used, to the detriment of the rights of the defence of Spain.

               2.

               Infringement of the right to good administration with respect to the composition of the investigation team. It is not consistent with the requirement of objective impartiality that the same people were mandated to conduct both investigations. The team presented a risk of a confirmatory bias and of a retrospective bias with respect to the assessment of the strong indications that were evaluated prior to the start of the investigation. The investigation team was conditioned in such a way that its impartiality was objectively compromised.

               3.

               Infringement of Article 8(1) of Regulation 1173/2011, since the facts do not constitute a manipulation or misrepresentation of the relevant debt and deficit data attributable to gross negligence or wilfulness of the Member State. First, the facts do not constitute a statistical manipulation or misrepresentation, but rather a mere revision of the data on debt and deficits, explained clearly and adequately. Secondly, the data which are the subject of the alleged manipulation are in no way relevant to the exercise of the regulatory oversight which, under Articles 121 and 126 TFEU, is incumbent on the institutions of the European Union. Finally, it cannot be held that the conduct of Spain amounts to gross negligence since the Spanish authorities themselves detected the error, brought it to the Commission’s attention and acted with the utmost diligence and speed.

               4.

               Lack of proportionality of the sanction having regard to the timeframe of reference for the calculation thereof. The period which is the subject of the sanction is limited to the data included in notifications from 2012 onwards, where those notifications relate to events from 11 December 2011 onwards, the date of the entry into force of Regulation 1173/2011. Therefore, the reference amount must be restricted to the data for the invoices entered into the accounts in 2011.

      (1)  OJ 2015 L 198, p. 19

      (2)  Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area (OJ 2011 L 306, p. 1)

      (3)  Commission Delegated Decision of 29 June 2012 on investigations and fines related to the manipulation of statistics as referred to in Regulation (EU) No 1173/2011 of the European Parliament and of the Council on the effective enforcement of budgetary surveillance in the euro area (OJ 2012 L 306, p. 21)


24.5.2003              EN                        Official Journal of the European Union                                     C 124/29
—     order the Commission of the European Communities to                        Removal from the register of Case T-77/00 ( 1)
      pay damages to make good the material and non-material
      damage suffered as a result of the decision of 14 August                                    (2003/C 124/50)
      2002 and of the conduct preceding and following
      that decision, such damages having been assessed at                                   (Language of the case: English)
      EUR 25 000;
                                                                         By order of 7 March 2003 the President of the Fifth Chamber
—     order the defendant to pay the costs.                              of the Court of First Instance of the European Communities
                                                                         ordered the removal from the register of Case T-77/00:
                                                                         Esat Telecommunications v Commission of the European
                                                                         Communities.
Pleas in law and main arguments                                          (1 ) OJ C 149 of 27.05.2000.
The applicant is challenging the refusal of the appointing
authority to promote him to Grade A 4 in 2002.
                                                                                Removal from the register of Case T-208/02 (1)
                                                                                (2003/C 124/51)
In support of his claims, the applicant alleges:
                                                                                (Language of the case: Dutch)
—     breach of the duty to provide reasons;
                                                                         By order of 13 March 2003 the President of the Fourth
—     infringement of Article 45 of the Staff Regulations                Chamber of the Court of First Instance of the European
      inasmuch as his staff report was better than that of               Communities ordered the removal from the register of Case
      another person in his department who was promoted;                 T-208/02: Lene Beier v Europol.
—     breach of the duty to have regard for the welfare of               (1 ) OJ C 202 of 24.08.2002.
      officials and of the principle of sound administration;
—     the existence in the present case of a manifest error of
      assessment, abuse of process and/or misuse of powers, as                   Removal from the register of Case T-245/02 (1)
      well as breach of the principle of equal treatment and
      infringement of Article 26 of the Staff Regulations. In                                     (2003/C 124/52)
      that regard, the applicant is of the view that, contrary to
      the principle of equal treatment, he was ranked behind                                 (Language of the case: Dutch)
      an official whose staff report had not been as good as his
      over several years. The explanation provided by his
      immediate superior amounts to misuse of powers and/or              By order of 12 March 2003 the President of the Fourth
      abuse o process, as well as an infringement of Article 26          Chamber of the Court of First Instance of the European
      of the Staff Regulations.                                          Communities ordered the removal from the register of
                                                                         Case T-245/02: Antonia de Jong v Europol.
                                                                         (1 ) OJ C 261 of 26.10.2002.


title: Case C-381/15: Order of the President of the Court of 23 January 2017 (request for a preliminary ruling from the Audiencia Provincial de Zamora — Spain) — Javier Ángel Rodríguez Sánchez v Caja España de Inversiones, Salamanca y Soria SAU (Banco CEISS)

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/31

         Order of the President of the Court of 23 January 2017 (request for a preliminary ruling from the Audiencia Provincial de Zamora — Spain) — Javier Ángel Rodríguez Sánchez v Caja España de Inversiones, Salamanca y Soria SAU (Banco CEISS)
   (Case C-381/15) (1)

   (2017/C 112/42)
   Language of the case: Spanish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 302, 14.9.2015.


title: Case C-209/07: Reference for a preliminary ruling from Supreme Court (Ireland) made on 20 April 2007 — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/15

         Reference for a preliminary ruling from Supreme Court (Ireland) made on 20 April 2007 — The Competition Authority v Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd
   (Case C-209/07)
   (2007/C 140/25)
   Language of the case: English
   Referring court
   Supreme Court
   Parties to the main proceedings

      Applicant: The Competition Authority

      Defendants: Beef Industry Development Society Ltd, Barry Brothers (Carrigmore) Meats Ltd
   Questions referred
   ‘Where it is established to the satisfaction of the court that:

               a)

               there is overcapacity in the industry for the processing of beef, which calculated at peak throughput, would be approximately 32 %;

               b)

               the effect of this excess capacity will have very serious consequences for the profitability of the industry as a whole over the medium term,

               c)

               while, as reported, the effects of surplus requirements have not been felt to any significant degree as yet, independent consultants have advised that, in the near term, the overcapacity is unlikely to be eliminated by normal market measures, but over time the overcapacity will lead to very significant losses and ultimately to processors and plants leaving the industry;

               d)

               processors of beef representing approximately 93 % of the market for the supply of beef of that industry have agreed to take steps to eliminate the overcapacity and are willing to pay a levy in order to fund payments to processors willing to cease production, and

         the said processors, comprising ten companies, form a corporate body, (“the society”) for the purpose of implementing an arrangement with the following features:

               1.

               plants (called “goers” ) killing and processing 420,000 animals per annum, representing approximately 25 % of active capacity would enter into an agreement with the remaining companies (called “stayers” ) to leave the industry and to abide by the following terms;

               2.

               goers would sign a two year non-compete clause in relation to the processing of cattle on the entire island of Ireland;

               3.

               the plants of goers would be decommissioned;

               4.

               land associated with the decommissioned plants would not be used for the purposes of beef processing for a period of five years;

               5.

               compensation would be paid to goers in staged payments by means of loans made by the stayers to the society;

               6.

               a voluntary levy would be paid to the society by all stayers at the rate of EUR 2 per head of the traditional percentage kill and EUR 11 per head on cattle kill above that figure;

               7.

               the levy would be used to repay the stayers' loans; levies would cease on repayment of the loans;

               8.

               the equipment of goers used for primary beef processing would be sold only to stayers for use as back-up equipment or spare parts or sold outside the island of Ireland;

               9.

               the freedom of the stayers in matters of production, pricing, conditions of sale, imports and exports, increase in capacity and otherwise would not be affected,

         and that it is agreed that such an agreement is liable, for the purpose of application of Article 81(1)EC, to have an appreciable effect on trade between Member States, is such arrangement to be regarded as having as its object, as distinct from effect, the prevention, restriction or distortion of competition within the common market and therefore, incompatible with Article 81(1) of the Treaty establishing the European Community?’


title: Case C-309/11: Action brought on 17 June 2011 — European Commission v Republic of Finland

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/23

         Action brought on 17 June 2011 — European Commission v Republic of Finland
   (Case C-309/11)
   2011/C 252/43
   Language of the case: Finnish

      Parties

      Applicant: European Commission (represented by: I. Koskinen and L. Lozano Palacios, acting as Agents)

      Defendant: Republic of Finland

      Form of order sought

               —

               declare that, by applying, in Paragraph 80 of Law on value added tax (1501/1993), the special scheme for travel agents to travel services sold to persons other than travellers, the Republic of Finland has failed to fulfil its obligations under Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1);

               —

               order Republic of Finland to pay the costs.

      Pleas in law and main arguments

   The Commission observes that the special scheme for travel agents in Directive 2006/112/EC of 28 November 2006 on the common system of value added tax is to be applied only when travel services are sold to travellers. The Republic of Finland has infringed that directive by applying the special scheme for travel agents to services which travel agencies supply to one another or to tour operators.

      (1)  OJ 2006 L 347, p. 1


title: Case T-198/04: Action brought on 28 May 2004 by José Félix Merladet against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/28

         Action brought on 28 May 2004 by José Félix Merladet against the Commission of the European Communities
   (Case T-198/04)
   (2004/C 262/54)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 May 2004 by José Félix Merladet, resident in Overijse (Belgium), represented by N. Lhoëst, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare void the applicant's career development report for the period from 1 June 2001 to 31 December 2003;

               —

               annul the express decision of the appointing authority of 12 February 2004 rejecting the applicant's complaint;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   In support of his action, the applicant relies on an irregularity in the assessment procedure. During the reference period, the applicant worked in the Commission's Delegations in New Delhi (India) and in Maputo (Mozambique) under various line managers. The applicant submits that the career development review fails to give due weight to the assessments of those managers for whom he worked longer than a month.
   The applicant also relies on a manifest error of assessment and failure to state reasons.


title: Case C-621/11 P: Judgment of the Court (Fourth Chamber) of 18 July 2013 — New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallis K.-Vallis A. & Co. OE (Appeal — Application for registration of the Community word mark FISHBONE — Opposition proceedings — Earlier national figurative mark FISHBONE BEACHWEAR — Genuine use of the earlier mark — Taking into account additional evidence not submitted within the time-limit set — Regulation (EC) No 207/2009 — Articles 42(2) and (3) and Article 76(2) — Regulation (EC) No 2868/95 — Rule 22(2))

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/9

         Judgment of the Court (Fourth Chamber) of 18 July 2013 — New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallis K.-Vallis A. & Co. OE
   (Case C-621/11 P) (1)

   (Appeal - Application for registration of the Community word mark FISHBONE - Opposition proceedings - Earlier national figurative mark FISHBONE BEACHWEAR - Genuine use of the earlier mark - Taking into account additional evidence not submitted within the time-limit set - Regulation (EC) No 207/2009 - Articles 42(2) and (3) and Article 76(2) - Regulation (EC) No 2868/95 - Rule 22(2))
   2013/C 260/16
   Language of the case: English

      Parties

      Appellant: New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH (represented by: V. Spitz, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Geroulakos, acting as Agent), Vallis K. — Vallis A. & Co. O.E

      Re:

   Appeal against the judgment of the General Court (Sixth Chamber) of 29 September 2011 in Case T-415/09 New Yorker SHK Jeans v OHIM by which that court dismissed an action for annulment brought by the applicant for the word mark ‘FISHBONE’, for goods in Classes 18 and 25, against decision R 1051/2008-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 30 July 2009, rejecting in part the appeal brought against the decision of the Opposition Division refusing in part registration of that mark in the context of the opposition formed by the proprietor of the national mark ‘FISHBONE BEACHWEAR’ for the goods in Class 25, and the national sign ‘Fishbone’ used in business — Genuine use of the earlier mark — Taking into account additional evidence

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders New Yorker SHK Jeans GmbH & Co. KG to pay the costs.

      (1)  OJ C 25, 28.1.2012.


title: Order of the Court of First Instance of 2 September 2004 in Case T-291/02 González y Díez SA v Commission of the European Communities (ECSC — State aid — Action for annulment — Action devoid of purpose — No need to adjudicate — Settlement of costs)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/40

      ORDER OF THE COURT OF FIRST INSTANCE

   of 2 September 2004
   in Case T-291/02 González y Díez SA v Commission of the European Communities (1)

   (ECSC - State aid - Action for annulment - Action devoid of purpose - No need to adjudicate - Settlement of costs)
   (2004/C 300/79)
   Language of the case: Spanish
   In Case T-291/02: González y Díez SA, established in Villabona-Llanera (Spain), represented initially by J. Folguera Crespo, A. Martínez Sánchez and J.C. Engra Moreno, lawyers, then by J. Folguera Crespo and A. Martínez Sánchez, lawyers, v Commission of the European Communities (Agents: V. Kreuschitz and J.L. Buendía Sierra) — action for annulment of Articles 1, 2 and 5 of Commission Decision 2002/827/ECSC of 2 July 2002 on the granting by Spain of aid to the undertaking González y Díez SA in 1998, 2000 and 2001 (OJ 2002 L 296, p. 80) — the Court of First Instance (Second Chamber, Extended Composition), composed of J. Pirrung, President of the Chamber, A.W.H. Meij, N.J. Forwood, I. Pelikánová and S.S. Papasavvas, Judges; Registrar: H. Jung, has given a judgment on 2 September 2004, in which it:

               1.

               There is no need to adjudicate on the present action.

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 289 of 23.11.2002.


title: Decisions adopted by the Court at its meeting on 18 September 2001

text:
27.10.2001            EN                     Official Journal of the European Communities                                      C 303/1
                                                                     I
                                                               (Information)
                                                  COURT OF JUSTICE
                                                           COURT OF JUSTICE
Decisions adopted by the Court at its meeting on 18 Sep-                 Second Chamber
                         tember 2001
                                                                         Ms Colneric, President of the Chamber,
                       (2001/C 303/01)
                                                                         Mr Schintgen and Mr Skouris, Judges.
The Court of Justice of the European Communities adopted                 Third Chamber
the following decisions at its meeting on 18 September 2001:
                                                                         Ms Macken, President of the Chamber,
                                                                         Mr Gulmann, Mr Puissochet and Mr da Cunha Rodrigues,
                                                                         Judges.
Appointment of Presidents of Chambers
                                                                         Fourth Chamber
In accordance with Article 10(1) of the Rules of Procedure, the
Court has appointed for a period of one year starting on
7 October 2001:                                                          Mr von Bahr, President of the Chamber,
                                                                         Mr Edward, Mr La Pergola and Mr Timmermans, Judges.
—     Judge Jann as President of the First and Fifth Chambers,
                                                                         Fifth Chamber
—     Judge Macken as President of the Third and Sixth
      Chambers,                                                          Mr Jann, President of the Chamber,
—     Judge Colneric as President of the Second Chamber,                 Mr von Bahr, Mr Edward, Mr La Pergola, Mr Sevón, Mr Wathe-
                                                                         let and Mr Timmermans, Judges.
—     Judge von Bahr as President of the Fourth Chamber.
                                                                         Sixth Chamber
                                                                         Ms Macken, President of the Chamber,
Composition of the Chambers
                                                                         Ms Colneric, Mr Gulmann, Mr Puissochet, Mr Schintgen,
                                                                         Mr Skouris and Mr da Cunha Rodrigues, Judges.
1.     The composition of the Chambers for the same period
has been determined as follows:
                                                                         2.     For each case assigned to them, the Third and Fourth
                                                                         Chambers (to each of which four Judges are attached) shall be
First Chamber                                                            composed of the President of the Chamber, the Judge Rappor-
                                                                         teur and a third Judge designated in the order set out in a list
Mr Jann, President of the Chamber,                                       which corresponds to the order of seniority. At each general
                                                                         meeting the starting point on that list shall be moved down
Mr Sevón and Mr Wathelet, Judges.                                       one name.
 ---pagebreak--- C 303/2                 EN                    Official Journal of the European Communities                                        27.10.2001
3.     For the purposes of determining the five Judges who are           Sixth Chamber
to sit in each case assigned to a large Chamber, that is to say,
the Fifth and Sixth Chamber (to each of which seven Judges               (President: Judge Macken)
are attached), a list shall be drawn up for the judicial year. That      Mr Gulmann, Mr Puissochet, Mr da Cunha Rodrigues,
list shall comprise all the Judges of the Chamber, apart from            Mr Schintgen, Mr Skouris and Ms Colneric, Judges.
the President, in the following order:
(a)   the Judges of the small Chamber composed of four
      Judges, in order of seniority;                                     Appointment of the First Advocate General
(b) the Judges of the other small Chamber, in the same order.            In accordance with Article 10(1) of the Rules of Procedure, the
                                                                         Court of Justice appointed Advocate General S. Alber as First
                                                                         Advocate General for a period of one year starting on
For each case, the large Chamber shall be composed of:                   7 October 2001.
—     the President,
—     the Judge-Rapporteur,
                                                                                JUDGMENT OF THE COURT
—     three Judges designated in the order set out in the relevant
      list; the starting point on that list shall be moved down
      one name at each general meeting.                                                        of 13 September 2001
                                                                         in Case C-89/99 (reference for a preliminary ruling from
Replacement of a Judge or Judges prevented from attending                the Hoge Raad der Nederlanden): Schieving-Nijstad vof
shall be in the order set out in the list. However, should the                         and Others v Robert Groeneveld (1)
President of a large Chamber be prevented from sitting, he
shall be replaced preferably by the President of the small
Chamber.                                                                 (Agreement establishing the World Trade Organisation —
                                                                         Article 50(6) of the TRIPs Agreement — Interpretation —
                                                                         Direct effect — Application to proceedings pending at the
If the Court, or a Chamber, considers that a number of cases             time of entry into force in the State concerned — Conditions
should be heard and determined together (whether or not they             regarding the time-limit for bringing substantive proceed-
are formally joined), the composition of the bench shall be                           ings — Calculation of that time-limit)
that determined for the first of the cases discussed at a general
meeting.                                                                                (2001/C 303/02)
                                                                                (Language of the case: Dutch)
4.     For the period ending on 6 October 2002, the lists
referred to above are as follows:
                                                                         (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
Third Chamber
(President: Judge Macken)                                                In Case C-89/99: reference to the Court under Article 177 of
                                                                         the EC Treaty (now Article 234 EC) from the the Hoge Raad
                                                                         der Nederlanden (Supreme Court of the Netherlands) for a
Mr Gulmann, Mr Puissochet and Mr da Cunha Rodrigues,
                                                                         preliminary ruling in the proceedings pending before that
Judges
                                                                         court between Schieving-Nijstad vof and Others and Robert
                                                                         Groeneveld — on the interpretation of Article 50(6) of the
Fourth Chamber                                                           Agreement on Trade-Related Aspects of Intellectual Property
                                                                         Rights, as set out in Annex 1 C to the Agreement establishing
(President: Judge von Bahr)                                              the World Trade Organisation, approved on behalf of the
                                                                         Community, as regards matters within its competence, by
Mr Edward, Mr La Pergola and Mr Timmermans, Judges                       Council Decision 94/800/EC of 22 December 1994 (OJ 1994
                                                                         L 336, p. 1) — the Court, composed of: G.C. Rodrı́guez
                                                                         Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet
Fifth Chamber                                                            and V. Skouris (Presidents of Chambers), D.A.O. Edward
                                                                         (Rapporteur), J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen,
(President: Judge Jann)                                                  F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
                                                                         C.W.A. Timmermans, Judges; F.G. Jacobs, Advocate General;
Mr Edward, Mr La Pergola, Mr von Bahr, Mr Timmermans,                    L. Hewlett, Administrator, for the Registrar, has given a
Mr Sevón and Mr Wathelet, Judges                                        judgment on 13 September 2001, in which it has ruled:


title: Case T-318/15: Action brought on 17 June 2015 — Zitro IP v OHIM (TRIPLE BONUS)

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/35

         Action brought on 17 June 2015 — Zitro IP v OHIM (TRIPLE BONUS)
   (Case T-318/15)
   (2015/C 262/48)
   Language of the case: Spanish

      Parties

      Applicant: Zitro IP Sàrl (Luxembourg, Luxembourg) (represented by: A. Canela Giménez, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community figurative mark containing the word elements ‘TRIPLE BONUS’ — Application for registration No 12 013 629

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 15 April 2015 in Case R 1648/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.


title: Case T-221/10: Judgment of the General Court of 8 March 2012 — Iberdrola v Commission (Action for annulment — State aid — Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid — Act entailing implementing measures — Lack of individual concern — Inadmissibility)

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/23

         Judgment of the General Court of 8 March 2012 — Iberdrola v Commission
   (Case T-221/10) (1)

   (Action for annulment - State aid - Aid schemes allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions - Decision declaring the aid scheme incompatible with the common market and not ordering the recovery of aid - Act entailing implementing measures - Lack of individual concern - Inadmissibility)
   2012/C 118/39
   Language of the case: Spanish

      Parties

      Applicant: Iberdrola, SA (Bilbao, Spain) (represented by: J. Ruiz Calzado, M. Núñez-Müller and J. Domínguez Pérez, lawyers)

      Defendant: European Commission (represented by: R. Lyal and C. Urraca Caviedes, Agents)

      Re:

   Application for annulment of Article 1(1) of Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Iberdrola, SA to pay the costs.

      (1)  OJ C 179, 3.7.2010.


title: Judgment of the Court (Sixth Chamber) of 21 October 1999 in Case C-97/98 (reference for a preliminary ruling from the Pargas Tingsrätt): Peter Jägerskiöld v Torolf Gustafsson (Free movement of goods — Definition of "goods" — Angling rights — Freedom to provide services)

text:
C 34/2                    EN                       Official Journal of the European Communities                                              5.2.2000
(Italy) for a preliminary ruling in the proceedings pending                   1. Fishing rights or fishing permits do not constitute ‘goods’ within
before that court between Questore di Verona and Diego                             the meaning of the provisions of the EC Treaty relating to the
Zenatti — on the interpretation of the provisions of the EC                        free movement of goods but form a ‘provision of a service’ within
Treaty concerning the freedom to provide services — the                            the meaning of the Treaty provisions relating to the freedom to
Court, composed of: G.C. Rodrı́guez Iglesias, President,                           provide services.
J.C. Moitinho de Almeida, D.A.O. Edward, R. Schintgen (Presi-
dents of Chambers), P.J.G. Kapteyn, J.-P. Puissochet (Rappor-                 2. The provisions of the Treaty relating to the freedom to provide
teur), G. Hirsch, P. Jann and H. Ragnemalm, Judges; N. Fennel-                     services are not applicable to a situation, such as that in the main
ly, Advocate General; L. Hewlett, Administrator, for the Regis-                    proceedings, which is confined in all respects within a single
trar, has given a judgment on 21 October 1999, in which it                         Member State.
held that:
                                                                              (1) OJ C 166 of 30.5.1998.
The EC Treaty provisions on the freedom to provide services do not
preclude national legislation, such as the Italian legislation, which
reserves to certain bodies the right to take bets on sporting events if
that legislation is in fact justified by social-policy objectives intended
to limit the harmful effects of such activities and if the restrictions
which it imposes are not disproportionate in relation to those
objectives.
                                                                                JUDGMENT OF THE COURT
(1) OJ C 151 of 16.5.1998.
                                                                                (First Chamber)
                                                                                of 21 October 1999
                                                                              in Case C-233/98 (reference for a preliminary ruling from
                                                                              the Bundesfinanzhof): Hauptzollamt Neubrandenburg v
                  JUDGMENT OF THE COURT                                                       Lensing & Brockhausen GmbH (1)
                           (Sixth Chamber)                                    (Community transit — Offence —Recovery of duties —
                                                                                Competent State)
                         of 21 October 1999
                                                                                (2000/C 34/04)
in Case C-97/98 (reference for a preliminary ruling from
the Pargas Tingsrätt): Peter Jägerskiöld v Torolf Gustafs-
                                   son (1)                                                        (Language of the case: German)
(Free movement of goods — Definition of ‘goods’ — Angling
              rights — Freedom to provide services)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                            (2000/C 34/03)
                                                                              In Case C-233/98: reference to the Court under Article 177 of
                                                                              the EC Treaty (now Article 234 EC) from the Bundesfinanzhof
                    (Language of the case: Swedish)                           (Federal Finance Court), Germany, for a preliminary ruling in
                                                                              the proceedings pending before that court between Hauptzol-
                                                                              lamt Neubrandenburg and Lensing & Brockhausen GmbH —
(Provisional translation; the definitive translation will be published        on the interpretation of Article 36 of Council Regulation (EEC)
                     in the European Court Reports)                           No 222/77 of 13 December 1976 on Community transit (OJ
                                                                              1977 L 38, p. 1) as amended by Council Regulation (EEC)
In Case C-97/98: reference to the Court under Article 177 of                  No 474/90 of 22 February 1990 with a view to abolishing
the EC Treaty (now Article 234 EC) from the Pargas Tingsrätt                  lodgement of the transit advice note on crossing an internal
(District Court, Pargas), Finland, for a preliminary ruling in                frontier of the Community (OJ 1990 L 51, p. 1), and of
the proceedings pending before that court between Peter                       Article 11a of Commission Regulation (EEC) No 1062/87 of
Jägerskiöld and Torolf Gustafsson — on the interpretation of                  27 March 1987 on provisions for the implementation of the
the rules of the EC Treaty on the free movement of goods and                  Community transit procedure and for certain simplifications
the freedom to provide services — the Court (Sixth Chamber),                  of that procedure (OJ 1987 L 107, P. 1) as amended by
composed of: G. Hirsch, President of the Second Chamber,                      Commission Regulation (EEC) No 1429/90 of 29 May 1990
acting as President of the Sixth Chamber, H. Ragnemalm                        (OJ 1990 L 137, p. 21) — the Court (First Chamber), composed
and R. Schintgen (Rapporteur), Judges; N. Fennelly, Advocate                  of: L. Sevón, President of the Chamber, P. Jann and M. Wathelet
General; H.A. Rühl, Principal Administrator, for the Registrar,               (Rapporteur), Judges; J. Mischo, Advocate General; H.A. Rühl,
has given a judgment on 21 October 1999, in which it has                      Principal Administrator, for the Registrar, has given a judgment
ruled:                                                                        on 21 October 1999, in which it has ruled:


title: Case F-100/07: Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Tsirimiagos v Committee of the Regions (Staff case — Officials — Remuneration — Transfer of part of the emoluments outside the country of employment — Article 17(2)(b) of Annex VII to the old Staff Regulations — Building savings account — Recovery of amounts wrongly paid — Conditions — Irregularity of the transfers — Obvious nature of the irregularity)

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/38

         Judgment of the Civil Service Tribunal (First Chamber) of 10 March 2009 — Tsirimiagos v Committee of the Regions
   (Case F-100/07) (1)

   (Staff case - Officials - Remuneration - Transfer of part of the emoluments outside the country of employment - Article 17(2)(b) of Annex VII to the old Staff Regulations - Building savings account - Recovery of amounts wrongly paid - Conditions - Irregularity of the transfers - Obvious nature of the irregularity)
   2009/C 102/55
   Language of the case: French

      Parties

      Applicant: Kyriakos Tsirimiagos (Kraainem, Belgium) (represented by: M.-A. Lucas, lawyer)

      Defendant: Committee of the Regions of the European Union (represented by: P. Cervilla, Agent, and B. Wägenbaur, lawyer)

      Re:

   Annulment of the decision of 21 November 2006 to recover the amounts paid to the applicant in respect of the correction coefficient on part of his emoluments transferred to France from April 2004 to May 2005 because of the alleged failure to comply with the conditions required for that transfer — Application for damages

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the Committee of the Regions of the European Union of 21 November 2006, as amended by the Decision of 21 June 2007, in so far as it orders the recovery of sums resulting from the application of the correction coefficient to the transfers made by Mr Tsirimiagos to his building savings account from April 2004 to May 2005, amounting to 15 300 euros;

               2.

               Orders the Committee of the Regions of the European Union to reimburse Mr Tsirimiagos the sums, together with default interest, withheld from his remuneration, corresponding to the application of the correction coefficient to the transfers made to his building savings account from April 2004 to May 2005, amounting to EU 15 300; that interest is to run from the date of the recovery until the date of the actual payment, at the rate fixed by the European Central Bank for its main refinancing operations and applicable during the period concerned, increased by 2 points;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders the Committee of the Regions of the European Union to pay, in addition to its own costs, half of the applicant’s costs;

               5.

               Orders the applicant to bear half of his own costs.

      (1)  OJ C 269, 10.11.2007, p. 73.


title: Case C-401/07: Action brought on 29 August 2007 — Commission of the European Communities v Kingdom of the Netherlands

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/33

         Action brought on 29 August 2007 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-401/07)
   (2007/C 269/56)
   Language of the case: Dutch
   Parties

      Applicant: Commission of the European Communities (represented by: H. van Vliet, acting as Agent)

      Defendant: Kingdom of the Netherlands
   Form of order sought

               —

               Declare that, by failing to implement, with regard to Fleuren Compost BV, Commission Decision 2001/521/EC of 13 December 2000 on the aid scheme implemented by the Kingdom of the Netherlands for six manure-processing companies (1) within the period laid down therein, the Kingdom of the Netherlands has failed to fulfil its obligations under the fourth paragraph of Article 249 EC and Articles 2 and 3 of that decision;

               —

               order Kingdom of the Netherlands to pay the costs.

         Pleas in law and main arguments
   In Decision 2001/521 the Commission decided that the Netherlands should recover from Fleuren Compost BV (‘Fleuren’) unlawful aid in the amount of EUR 487 328,13, plus interest. At the time when the application was lodged in this case, the resultant sum had not yet been repaid. So far, Fleuren has merely provided a bank guarantee for the sum. The applicant submits that this is contrary to Article 13(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2), which provides for immediate and effective execution of the Commission's decision. Moreover, by judgment of 14 January 2004 the Court of First Instance dismissed Fleuren's action against the decision (Case T-109/01) and Fleuren has not appealed against that judgment.
   The applicant submits, inter alia, that the Netherlands legislation in question, as interpreted by the Netherlands Raad van State, makes execution unnecessarily complicated and time consuming. According to that interpretation, the principal sum is to be recovered in an administrative proceedings but interest is to be recovered in civil proceedings. The applicant submits also that the provision of a bank guarantee cannot be compared to the actual repayment of the amount of aid. A bank guarantee does not undo the financial advantage that Fleuren has enjoyed for years as a result of the fact that the defendant has paid aid to Fleuren without the Commission's approval, contrary to Article 88(3) EC.

      (1)  OJ 2001 L 189, p. 13.

      (2)  OJ 1999 L 83, p. 1.


title: Case C-440/11 P: Appeal brought on 26 August 2011 by the European Commission against the judgment delivered by the General Court (Eighth Chamber) on 16 June 2011 in Joined Cases T-208/08 and T-209/08 Gosselin Group NV and Stichting Administratiekantoor Portielje v European Commission

text:
               12.11.2011

               EN

               Official Journal of the European Union

               C 331/10

         Appeal brought on 26 August 2011 by the European Commission against the judgment delivered by the General Court (Eighth Chamber) on 16 June 2011 in Joined Cases T-208/08 and T-209/08 Gosselin Group NV and Stichting Administratiekantoor Portielje v European Commission
   (Case C-440/11 P)
   2011/C 331/17
   Language of the case: Dutch

      Parties

      Appellant: European Commission (represented by: A. Bouquet, S. Noë and F. Ronkes Agerbeek, Agents)

      Other parties to the proceedings: Gosselin Group NV, formerly Gosselin World Wide Moving NV, and Stichting Administratiekantoor Portielje

      Form of order sought

               —

               Set aside the judgment under appeal in so far as it annuls Decision C(2008) 926, as amended by Decision C(2009) 5810, in relation to Stichting Administratiekantoor Portielje;

               —

               dismiss the action brought by Portielje;

               —

               order Portielje to pay the costs of the proceedings before the General Court and the Court of Justice.

      Pleas in law and main arguments

   I.
         First plea in law: persons covered by Article 101 TFEU

   The General Court erred in law in its interpretation of ‘undertaking’ and the rules concerning the burden of proof regarding responsibility for participation in an infringement of Article 81 EC (now Article 101 TFEU). The General Court concentrated on the wrong issue in paragraphs 36 to 50 of the judgment under appeal, namely whether Portielje was an undertaking. What the General Court should have considered was whether the Commission had been right in proceeding in its decision on the assumption that Portielje was part of the undertaking that had committed the infringement. The principles laid down in Case C-97/08 P Akzo Nobel and Others, (1) including the presumption arising in the case of a 100 % shareholding, are fully applicable in that respect.
   II.
         Second plea in law: rebuttal of the presumption of decisive influence

   A.
         First part

   The General Court made a manifest error of assessment of the evidence in determining that the personal links between Portielje and Gosselin involved only half of Portielje’s management, at least in so far as the General Court intended thereby to suggest that the managers in question could not have had any decisive influence on Portielje’s policy. After all, together, the persons concerned had sufficient votes on the management board to be able to determine Portielje’s policy.
   B.
         Second part

   In any event the General Court erred in law in determining that, notwithstanding the personal links, Portielje had rebutted the presumption developed in the case-law with regard to a 100 % shareholding since it had not taken any formal management decisions during the relevant period. The General Court’s assessment is incompatible with the functional nature of the concept of an undertaking and with the principles laid down in Akzo Nobel and Others.
   C.
         Third part

   The General Court also erred in law in finding that Portielje had rebutted the presumption arising in the case of a 100 % shareholding since there had been no general meeting of Gosselin during the relevant period. The General Court’s assessment in this regard also is incompatible with the functional nature of the concept of an undertaking and with the principles laid down in Akzo Nobel and Others.

      (1)  C-97/08 P Akzo Nobel and Others [2009] ECR I-8237.


title: Case T-527/08: Action brought on 4 December 2008 — Commission v TMT Pragma

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/46

         Action brought on 4 December 2008 — Commission v TMT Pragma
   (Case T-527/08)
   (2009/C 32/89)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: M. Moretto, lawyer, and A.M Rouchaud-Joët and F. Mirza, Agents)

      Defendant: TMT Pragma (Rome, Italy)
   Form of order sought

               —

               Order the defendant to pay to the Commission the principal sum of EUR 30 700,23, together with default interest at the statutory legal rate in Spain from 29 August 2004 until payment in full of the amount due;

               —

               Order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The subject-matter of the present action is a request that the defendant be ordered to repay a sum amounting to EUR 30 700,23 together with default interest. That sum represents a part of the contribution paid by the applicant in execution of contract No UR-96-SC.1105, entered into under the auspices of the Fourth Framework Programme for Research and Technological Development. The contract, which was concluded with other European research centres, provided for the development of a programme entitled ‘Integrated urban transport projects and market-orientated urban transport systems/on-demand urban transport systems — INTRAMUROS’.
   In support of its claims, the applicant argues that it became apparent from the audit carried out in June 2000 that certain personnel expenses, the travel and accommodation expenses and the expenses in respect of consumables and information technology were not justified and therefore could not be charged to the project.
   By debit note of 14 July 2004, the Commission notified the defendant that it sought reimbursement of the amount in question, together, if appropriate, with default interest in the event of non-payment.


title: Case T-429/08: Order of the Court of First Instance of 7 September 2009 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/37

         Order of the Court of First Instance of 7 September 2009 — Grain Millers v OHIM — Grain Millers (GRAIN MILLERS)
   (Case T-429/08) (1)

   2009/C 256/65

      Language of the case: English

   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 313, 6.12.2008.


title: Judgment of the Court (Fifth Chamber) of 10 May 2001 in Case C-144/99: Commission of the European Communities v Kingdom of the Netherlands (Failure by a Member State to fulfil its obligations — Directive 93/13/EEC — Unfair terms in consumer contracts — Incomplete transposition of the directive into national law)

text:
C 200/12               EN                       Official Journal of the European Communities                                          14.7.2001
                 JUDGMENT OF THE COURT                                           Nomenclature is invalid inasmuch as it classifies the adapter
                                                                                cards described in item 4 of its annex under heading No 8517
                                                                                of the Combined Nomenclature.
                         (Fifth Chamber)
                                                                           3.    Items of computer network equipment which are connectable to
                                                                                the central processing unit either directly or through one or
                                                                                more other units, which are specifically designed as part of a
                         of 10 May 2001
                                                                                data-processing system, which are able to accept or deliver data
                                                                                in a form which can be used by the system and which have no
                                                                                function that they would be capable of performing without the
in Case C-463/98 (reference for a preliminary ruling from                        assistance of an automatic data-processing machine must be
the Appeal Commissioners): Cabletron Systems Ltd v The                           classified under heading No 8471 of the Combined Nomencla-
                  Revenue Commissioners (1)                                      ture both before and after 1 January 1996.
(Common customs tariff — Tariff headings — Tariff                          (1) OJ C 71 of 13.3.1999.
classification of equipment used in local area networks —
Classification in the Combined Nomenclature — Validity of
        Regulations (EC) No 1638/94 and No 1165/95)
                         (2001/C 200/21)
                                                                                JUDGMENT OF THE COURT
                   (Language of the case: English)                                                    (Fifth Chamber)
In Case C-463/98: reference to the Court under Article 177                                            of 10 May 2001
of the EC Treaty (now Article 234 EC) from the Appeal
Commissioners (Ireland) for a preliminary ruling in the                    in Case C-144/99: Commission of the European Communi-
proceedings pending before them between Cabletron Systems                                ties v Kingdom of the Netherlands (1)
Ltd and The Revenue Commissioners — on the validity of
Commission Regulation (EC) No 1638/94 of 5 July 1994
                                                                           (Failure by a Member State to fulfil its obligations —
concerning the classification of certain goods in the Combined
                                                                           Directive 93/13/EEC — Unfair terms in consumer contracts
Nomenclature (OJ 1994 L 172, p. 5) and Commission
                                                                           — Incomplete transposition of the directive into national
Regulation (EC) No 1165/95 of 23 May 1995 concerning the
                                                                                law)
classification of certain goods in the Combined Nomenclature
(OJ 1995 L 117, p. 15), and on the interpretation of the
Combined Nomenclature of the Common Customs Tariff, set                                               (2001/C 200/22)
out in Annex I to Council Regulation (EEC) No 2658/87 of
23 July 1987 on the tariff and statistical nomenclature and on
the Common Customs Tariff (OJ 1987 L 256, p. 1), as                                             (Language of the case: Dutch)
amended by Commission Regulation (EEC) No 2505/92 of
14 July 1992 (OJ 1992 L 267, p. 1), by Commission Regulation
(EEC) No 2551/93 of 10 August 1993 (OJ 1993 L 241, p. 1),                  (Provisional translation; the definitive translation will be published
by Commission Regulation (EC) No 3115/94 of 20 December                                        in the European Court Reports)
1994 (OJ 1994 L 345, p. 1) and by Commission Regulation
(EC) No 3009/95 of 22 December 1995 (OJ 1995 L 319, p. 1)
— the Court (Fifth Chamber), composed of: A. La Pergola,                   In Case C-144/99: Commission of the European Communities
President of the Chamber, M. Wathelet, D.A.O. Edward                       (Agents: P. van Nuffel, assisted by M. van der Woude and
(Rapporteur), P. Jann and L. Sevón, Judges; F.G. Jacobs,                  L. Dommering-van Rongen) v Kingdom of the Netherlands
Advocate General; H.A. Rühl, Principal Administrator, for the              (Agents: M.A. Fierstra and J. van Bakel) — application for a
Registrar, has given a judgment on 10 May 2001, in which it                declaration that, by failing to adopt the laws, regulations and
has ruled:                                                                 administrative provisions necessary for the full transposition
                                                                           into Netherlands law of Articles 4(2) and 5 of Council Directive
                                                                           93/13/EEC of 5 April 1993 on unfair terms in consumer
1.    Commission Regulation (EC) No 1638/94 of 5 July 1994                 contracts (OJ 1993 L 95, p. 29), the Kingdom of the
      concerning the classification of certain goods in the Combined       Netherlands has failed to fulfil its obligations under Article 189
      Nomenclature is invalid inasmuch as it classifies the adapters,      of the EC Treaty (now Article 249 EC) and under that Directive
      link adapters and transceivers described in items 1 to 3 of its      — the Court (Fifth Chamber), composed of: A. La Pergola,
      annex under heading No 8517 of the Combined Nomenclature.            President of the Chamber, M. Wathelet, D.A.O. Edward, P. Jann
                                                                           (Rapporteur) and L. Sevón, Judges; A. Tizzano, Advocate
2.    Commission Regulation (EC) No 1165/95 of 23 May 1995                 General; R. Grass, has given a judgment on 10 May 2001, in
      concerning the classification of certain goods in the Combined       which it:
 ---pagebreak--- 14.7.2001                 EN                     Official Journal of the European Communities                                              C 200/13
1.    Declares that, by failing to adopt the laws, regulations and          2.    Article 7(c) of Directive 85/374 is to be interpreted as meaning
      administrative provisions necessary for the full transposition              that the exemption from liability where an activity has no
      into national law of Articles 4(2) and 5 of Council Directive               economic or business purpose does not extend to the case of a
      93/13/EEC of 5 April 1993 on unfair terms in consumer                       defective product which has been manufactured and used in the
      contracts, the Kingdom of the Netherlands has failed to fulfil              course of a specific medical service which is financed entirely
      its obligations under that Directive;                                       from public funds and for which the patient is not required to
                                                                                pay any consideration.
2.    Orders the Kingdom of the Netherlands to pay the costs.
                                                                            3.    Article 9 of Directive 85/374 is to be interpreted as meaning
                                                                                that, save for non-material damage whose reparation is
(1) OJ C 226 of 7.8.1999.
                                                                                governed solely by national law and the exclusions detailed in
                                                                                that article as regards damage to an item of property, a Member
                                                                                State may not restrict the types of material damage, resulting
                                                                                from death or from personal injury, or from damage to or
                                                                                destruction of an item of property, which are to be made good.
                                                                            4.    The national court is required, under Directive 85/374, to
                   JUDGMENT OF THE COURT                                          examine under which head the circumstances of the case are to
                                                                                be categorised, namely whether the case concerns damage
                            (Fifth Chamber)                                       covered either by point (a) or by point (b) of the first paragraph
                                                                                of Article 9 or non-material damage which may possibly be
                                                                                covered by national law. The national court may, however, not
                            of 10 May 2001                                        decline to award any damages at all under the Directive on the
                                                                                ground that, where the other conditions of liability are fulfilled,
in Case C-203/99 (reference for a preliminary ruling from                         the damage incurred is not such as to fall under any of the
the Højesteret): Henning Veedfald v Århus Amtskommu-                              foregoing heads.
                                  ne (1)
                                                                            (1) OJ C 226 of 7.8.1999.
(Approximation of laws — Directive 85/374/EEC — Liab-
ility for defective products — Exemption from liability —
                               Conditions)
                            (2001/C 200/23)
                     (Language of the case: Danish)                                            JUDGMENT OF THE COURT
(Provisional translation; the definitive translation will be published                                  (Fifth Chamber)
                     in the European Court Reports)
                                                                                of 10 May 2001
In Case C-203/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Højesteret                      in Joined Cases C-223/99 and C-260/99 (reference for a
(Supreme Court) (Denmark) for a preliminary ruling in the                   preliminary ruling from the Tribunale amministrativo
proceedings pending before that court between Henning                       regionale per la Lombardia): Agorà Srl v Ente Autonomo
Veedfald and Århus Amtskommune — on the interpretation                      Fiera Internazionale di Milano, and between Excelsior
of Article 7(a) and (c) and points (a) and (b) of the first                 Snc di Pedrotti Bruna & C. and Ente Autonomo Fiera
paragraph of Article 9 of Council Directive 85/374/EEC of                         Internazionale di Milano, Ciftat soc. coop. arl (1)
25 July 1985 on the approximation of the laws, regulations
and administrative provisions of the Member States concerning               (Public service contracts — Definition of contracting auth-
liability for defective products (OJ 1985 L 210, p. 29) — the                            orities — Body governed by public law)
Court (Fifth Chamber), composed of: A. La Pergola, President
of the Chamber, M. Wathelet, D.A.O. Edward, P. Jann (Rappor-
teur) and L. Sevón, Judges; D. Ruiz-Jarabo Colomer, Advocate                                           (2001/C 200/24)
General; H. von Holstein, Deputy Registrar, for the Registrar,
has given a judgment on 10 May 2001, in which it has ruled:
                                                                                (Language of the case: Italian)
1.    Article 7(a) of Council Directive 85/374/EEC of 25 July
      1985 on the approximation of the laws, regulations and
      administrative provisions of the Member States concerning             (Provisional translation; the definitive translation will be published
      liability for defective products is to be interpreted as meaning                           in the European Court Reports)
      that a defective product is put into circulation when it is used
      during the provision of a specific medical service, consisting in     In Joined Cases C-223/99 and C-260/99: reference to the
      preparing a human organ for transplantation, and the damage           Court under Article 234 EC from the Tribunale amministrativo
      caused to the organ results from that preparatory treatment.          regionale (Regional Administrative Court) per la Lombardia


title: Case C-283/10: Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 7 June 2010 — Circul Globus București (Circ & Variete Globus București) v Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A.

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/25

         Reference for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 7 June 2010 — Circul Globus București (Circ & Variete Globus București) v Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A.
   (Case C-283/10)
   ()
   2010/C 234/40
   Language of the case: Romanian

      Referring court

   Înalta Curte de Casație și Justiție

      Parties to the main proceedings

      Applicant: Circul Globus București (Circ & Variete Globus București)

      Defendant: Uniunea Compozitorilor și Muzicologilor din România — Asociația pentru Drepturi de Autor — U.C.M.R. — A.D.A.

      Question referred

   Is Article 3(1) of Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001 to be interpreted to the effect that ‘communication to the public’ means:

               (a)

               exclusively communication to the public where the public is not present at the place where the communication originates, or

               (b)

               also any other communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work?

         In the event that point (a) represents the correct meaning, does that mean that the acts, referred to in point (b), by which works are communicated directly to the public do not fall within the scope of that directive or that they do not constitute communication of a work to the public, but rather the public performance of a work, within the meaning of Article 11(1)(i) of the Berne Convention?
   In the event that point (b) represents the correct meaning, does Article 3(1) of the directive permit Member States to make statutory provision for the compulsory collective management of the right to communicate musical works to the public, irrespective of the means of communication used, even though that right can be and is managed individually by authors, no provision being made for authors to be able to exclude their works from collective management?

      (1)  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).


title: Composition of the EFTA Court

text:
               13.10.2005

               EN

               Official Journal of the European Union

               C 253/6

      COMPOSITION OF THE EFTA COURT

   (2005/C 253/07)
   Appointment of the Registrar of the EFTA Court
   Mr Henning Harborg was appointed Registrar of the EFTA Court pursuant to Article 9, Protocol 5 of the ESA/Court Agreement for the period from 1 September 2004 to 31 August 2007, to succeed Mr Lucien Dedichen. At a public sitting of the EFTA Court of 28 September 2004, Mr Henning Harborg took the oath prescribed in Article 10, Protocol 5 of the ESA/Court Agreement.


title: Case C-104/02: Action brought on 20 March 2002 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 131/4                EN                   Official Journal of the European Communities                                     1.6.2002
Reference for a preliminary ruling by the Il Tribunale Di              Action brought on 20 March 2002 by the Commission of
Brescia, Seconda Sezione Civile by order of that Court of              the European Communities against the Federal Republic
21 January 2002 in the civil case of Società Dolomite                                              of Germany
Italiana — SDI s.p.a. (C-88/02), Dolomite Franchi s.p.a.
(C-89/02) against Ministero delle Finanze; by order of                                           (Case C-104/02)
8 October 2001 Ugine Srl (C-95/02), TOMAR Srl (C-96/
02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA                                               (2002/C 131/09)
           (C-98/02) against Ministero delle Finanze
                                                                       An action against the Federal Republic of Germany was
  (Cases C-88/02, C-89/02, C-95/02, C-96/02 and C-98/02)
                                                                       brought before the Court of Justice of the European Commu-
                                                                       nities on 20 March 2002 by the Commission of the European
                                                                       Communities, represented by Günter Wilms, of its Legal
                        (2002/C 131/08)                                Service, with an address for service in Luxembourg at the office
                                                                       of Luis Escobar Guerrero, of its Legal Service, Wagner Centre
                                                                       C 254, Kirchberg.
                                                                       The applicant claims that the Court should:
Reference has been made to the Court of Justice of the
European Communities by orders of the Il Tribunale Di Brescia          (1) declare that the Federal Republic of Germany has
(Brescia Regional Court) Seconda Sezione Civile (Second Civil                infringed its obligations under Article 49 of Commission
Chamber) of 21 January 2002, received at the Court Registry                  Regulation (EEC) No 1214/92 (1) of 21 April 1992 on
on 14 March 2002, for a preliminary ruling in the civil cases                provisions for the implementation of the Community
of Società Dolomite Italiana — SDI s.p.a. (C-88/02), Dolomite                transit procedure and for certain simplifications of that
Franchi s.p.a. (C-89/02) against Ministero delle Finanze; by                 procedure and/or Article 379 of Commission Regulation
order of 8 October 2001, received at the Court Registry on                   (EEC) No 2454/93 (2) of 2 July 1993 laying down
18 March 2002, in the cases of Ugine Srl (C-95/02), TOMAR                    provisions for the implementation of Council Regulation
Srl (C-96/02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA                 (EEC) No 2913/92 (3) establishing the Community Cus-
(C-98/02) against Ministero delle Finanze, on the following                  toms Code in conjunction with Article 2(1) of Council
questions:                                                                   Regulation (EEC, Euratom) No 1552/89 of 29 May
                                                                             1989 (4) implementing Decision 88/376/EEC, Euratom
                                                                             on the system of the Communities’ own resources, by
1.    Is Article 11(1) of Italian Law No 448 of 23 December                  transferring own resources to the Community too late;
      1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
      supplement) compatible with Community law, in particu-           (2) declare that the Federal Republic of Germany is obliged,
      lar with Articles 10 and 12 of Council Directive 69/335/               pursuant to Article 11 of Regulation No 1552/89 for the
      EEC (1) of 17 July 1969 concerning indirect taxes on the               period up to 31 May 2000 and Article 11 of Regulation
      raising of capital, inasmuch as it provides that the                   1150/2000 (5) for the period after 31 May 2000, to pay
      administrative charge is payable at a flat annual rate for             into the Community budget the interest accrued as a
      registration of other company documents for each of the                result of the late transfer;
      years from 1985 to 1992, equal to the sum of the
      sum of ITL 750 000 for public limited companies and              (3) order the Federal Republic of Germany to pay the costs.
      partnerships limited by shares and ITL 400 000 for
      private limited companies and ITL 90 000 for other
      companies?
                                                                       Pleas in law and main arguments
2.    Is Article 11(3) of Law No 448/98 compatible with                Article 49 of Regulation No 1214/92 (on the implementation
      Community law, inasmuch as it provides that interest on          of the Community transit procedure) and Article 379 of
      the sums to be reimbursed in so far as they exceed the           Regulation No 2454/93 (implementing the Customs Code) set
      sum provided for by Article 11(1) should be calculated           a clear and mandatory time-limit by which the customs
      according to the legal rate in force at the date on which        authorities of the Member States must initiate post-clearance
      that Law entered into force (2,5 % per annum) and not            recovery proceedings. This is not purely a procedural time-
      according to the rate provided for by Article 5 with             limit. Had it intended to do so, the legislature would have
      respect to Article 1 of Law No 29 of 26 January 1961, as         identified such a time-limit by using less binding wording. The
      subsequently amended?                                            intention of the legislature and the unambiguous wording of
                                                                       the statute permit solely the conclusion that Article 49 of
                                                                       Regulation No 1214/92 and Article 379(2) of Regulation
                                                                       No 2454/93 do not merely provide for action which the State
(1) OJ L 249 of 3.10.1969, p. 25.                                      ought to take but, rather, prescribe a binding obligation. Post-
                                                                       clearance recovery must be carried out by no later than the
                                                                       expiry of a period of 14 months. Since both the debtor and
                                                                       the amount of the debt to be claimed from him are known to
                                                                       the custom authorities by that stage, the debtor must be
 ---pagebreak--- 1.6.2002                 EN                    Official Journal of the European Communities                                        C 131/5
notified in accordance with Article 2(1) of Regulation                    (2) by failing to inform the Commission of all other uncon-
No 1552/89. Should the Member State fail within that time-                      tested customs duties relating to TIR carnets not proces-
limit to fulfil its obligation to effect post-clearance recovery of             sed at German customs posts from 1994 until amend-
the duties and to determine the own resources, this may —                       ment of the decree adopted in 1996 by the Federal
depending on the length of the period exceeding the time-limit                  Ministry of Finance (Decree of 11 September 1996, III B
— lead to a delay in the transfer of the corresponding own                      1 — Z 0912 — 31/96), which received similar treatment
resources.                                                                      (entry in the ‘B’ accounts instead of the ‘A’ accounts);
                                                                          (3) declare that the Federal Republic of Germany is obliged
The German authorities did not comply with the time-limits                      forthwith to credit to the Commission the own resources
laid down by Article 49 of Regulation No 1214/92 and                            not transferred as a result of the infringements set forth
Article 379 of Regulation No 2454/93 and therefore deter-                       under 1(a) and (b) above;
mined own resources too late. Article 11 of Regulation
No 1552/89 is applicable to the extent that the late determi-             (4) declare that, with respect to any amounts already trans-
nation led to delays in the transfer of own resources. That                     ferred, the Federal Republic of Germany is obliged to
article imposes on the Member States an obligation to pay                       state the date on which each amount fell due, the amount
interest irrespective of the reason for the delay.                              owed and, where appropriate, the date of transfer;
                                                                          (5) declare that the Federal Republic of Germany is obliged,
( 1) OJ L 132 of 16.5.1992, p. 1.                                               pursuant to Article 11 of Regulation No 1552/89 for the
( 2) OJ L 253 of 11.10.1993, p. 1.                                              period up to 31 May 2000 and Article 11 of Regulation
( 3) OJ L 302 of 19.10.1992, p. 1.                                              No 1150/2000 for the period after 31 May 2000, to pay
( 4) OJ L 155 of 7.6.1989, p. 1.                                                into the Community budget the interest accrued as a
( 5) OJ L 130 of 31.5.2000, p. 1.                                               result of the late transfer;
                                                                          (6) order the Federal Republic of Germany to pay the costs.
                                                                          Pleas in law and main arguments
Action brought on 21 March 2002 by the Commission of                      The Commission concedes that, pursuant to Article 6 of
the European Communities against the Federal Republic                     Regulation No 1552/89, the entry of import duties in the
                             of Germany                                   ‘A’ accounts for own resources can only be required to the
                                                                          extent that the Member State concerned has been provided
                                                                          with security corresponding to cash payment. However, this
                          (Case C-105/02)                                 does not mean that such security must be ‘directly and
                                                                          immediately realisable’.
                          (2002/C 131/10)
                                                                          The German authorities dispute in a general — and thus
                                                                          unsubstantiated — manner — that, in the case of goods
                                                                          taxable at a high rate, the security of ECU 60 024 per TIR
An action against the Federal Republic of Germany was                     carnet, which is provided in the same way for national import
brought before the Court of Justice of the European Communi-              duties and EU own resources, is sufficient to cover duty claims
ties on 21 March 2002 by the Commission of the European                   in the majority of cases. They also do not — and cannot —
Communities, represented by Günter Wilms, of its Legal                    dispute that, in all cases, the security in question is at least
Service, with an address for service in Luxembourg at the office          partially sufficient to cover the claims. Consequently, such
of Luis Escobar Guerrero, of its Legal Service, Wagner Centre             security should, at least to this extent, have been entered in the
C 254, Kirchberg.                                                         ‘A’ accounts, provided that no other assessment is called for in
                                                                          view of the termination by the reinsurer, because, as a result
The applicant claims that the Court should:                               thereof — and as the German authorities claim — the risk
                                                                          cover existed ‘only on paper’. However, since, in principle, the
                                                                          point in time at which the TIR procedure begins and at which
declare that the Federal Republic of Germany has failed to                the corresponding security is provided is decisive, claims
comply with its obligations under Council Regulation (EEC,                arising before 1995 should in any event have been entered in
Euratom) No 1552/89 (1) of 29 May 1989 on the system of                   the ‘A’ accounts and transferred.
the Communities’ own resources, as replaced with effect from
31 May 2002 by Council Regulation (EC, Euratom) No 1150/                  If the German Government’s assertion that from 1995 the
2000 (2),                                                                 duties claims had to be regarded as unsecured on account of
                                                                          the termination by the reinsurer were correct, the German
(1) by failing properly to process certain transit documents              authorities should not have permitted the TIR procedure due
      (TIR carnets) and, as a result, to enter correctly and to           to the lack of security. If they nevertheless accepted the
      transfer to the Commission within the specified time-               procedure without security and therefore entered the claims in
      limit the own resources resulting from those documents;             the ‘B’ accounts, they must themselves bear the risk relating to
      and                                                                 collection of those claims. It must be assumed that there was


title: Order of the Court (Third Chamber) of 30 April 2002 in Case C-181/01 P: N v Commission of the European Communities (Appeal — Officials — Social security — Article 73 of the Staff Regulations — Definition of "accident" — Refusal to recognise HIV infection as an accident)

text:
C 169/14                EN                       Official Journal of the European Communities                                      13.7.2002
                    ORDER OF THE COURT                                      1.   Is it possible to characterise as VAT, within the meaning
                                                                                of the provisions of the Sixth VAT Directive (77/388/
                         (Third Chamber)                                         EEC) (1), the amount mentioned on an invoice by a person
                                                                                who provides services to the State as a salaried employee,
                                                                                when the person providing those services mistakenly
                         of 30 April 2002                                        considers that he is providing services to the State as a
                                                                                self-employed person whilst, in reality, he is an employee
in Case C-181/01 P: N v Commission of the European                               and, on the recommendation of his employer, charges
                          Communities (1)                                        VAT on the invoices issued by him and not on his total
                                                                                earnings received from the State, which in law constitute
(Appeal — Officials — Social security — Article 73 of the                        the tax basis of assessment to VAT, subsequently collected
Staff Regulations — Definition of ‘accident’ — Refusal to                        from his earnings, but where the amount thereof is
            recognise HIV infection as an accident)                              determined on the earnings by means of an internal
                                                                                deduction method and the earnings are regarded as
                          (2002/C 169/24)                                        containing the amount of VAT owed, while the State
                                                                                reduces the amount of legitimate earnings paid to that
                                                                                person by the element of VAT they are calculated to
                    (Language of the case: French)                               contain?
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                           2.   Can there be a departure from the formal principle
                                                                                governing the tax as set out in Article 21(1)(c) of the
                                                                                Sixth VAT Directive (77/388/EEC) (that is to say, where
                                                                                VAT is mentioned on the invoice or other document
In Case C-181/01 P: N, an official of the Commission of                          serving as an invoice, such tax is payable to the State),
the European Communities, residing in Brussels (Belgium),                        where the State, in performing that activity in pursuance
represented by G. Durazzo, — appeal against the judgment of                      of its public authority, is under Article 4(5) of the above
the Court of First Instance of the European Communities in                       directive not subject to tax, so as to render the mechanism
Case T-2/00 N v Commission [2001] ECR-SC I-A-37 and II-                          of deductions inapplicable thereto, and the said tax
135, seeking to have that judgment set aside, the other party                    cannot be and is not passed on to the end consumer
to the proceedings being the Commission of the European                          (namely, the individual who contracts with the State for
Communities, (Agent: J. Currall): — the Court (Third Chamber),                   the translation of documents), the provider of services
composed of: F. Macken, President of the Chamber, C. Gul-                        being entitled to reimbursement of the tax paid to the tax
mann (Rapporteur) and J.-P. Puissochet, Judges; Advocate                         authority after deduction of any input tax in order to
General: L.A. Geelhoed, Registrar: R. Grass, has made an order                   avoid the State’s enrichment as a result thereof?
on 30 April 2002, in which:
1.    The appeal is dismissed.
                                                                            (1) OJ L 145 of 13.6.1977, p. 1.
2.    N is ordered to bear the costs.
(1) OJ C 200 of 14.7.2001.
                                                                            Reference for a preliminary ruling by the Bundesfinanz-
Reference for a preliminary ruling by the Athens Appeal
                                                                            hof by order of that Court of 22 November 2001 in
Court by order of that Court of 31 January 2002 in the
                                                                            the case of Finanzamt Gummersbach against Gerhard
    case of the Greek State against Maria Karageorgou
                                                                                Bockemühl
                           (Case C-78/02)
                                                                                (Case C-90/02)
                          (2002/C 169/25)
                                                                                (2002/C 169/26)
Reference has been made to the Court of Justice of the
European Communities by order of the Athens Appeal Court
(Greece) of 31 January 2002, received at the Court Registry on
11 March 2002, for a preliminary ruling in the case of the                  Reference has been made to the Court of Justice of the
Greek State against Maria Karageorgou on the following                      European Communities by order of the Bundesfinanzhof
questions:                                                                  (Federal Finance Court) of 22 November 2001, received at the


title: Case C-361/07: Order of the Court (Seventh Chamber) of 16 January 2008 (reference for a preliminary ruling from the Conseil de prud'hommes de Beauvais (France)) — Olivier Polier v Najar EURL (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Convention No 158 of the International Labour Organisation — European Social Charter — Dismissal of an employee without valid reason — Manifest lack of jurisdiction of the Court)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/11

         Order of the Court (Seventh Chamber) of 16 January 2008 (reference for a preliminary ruling from the Conseil de prud'hommes de Beauvais (France)) — Olivier Polier v Najar EURL
   (Case C-361/07) (1)

   (Reference for a preliminary ruling - Charter of Fundamental Rights of the European Union - Convention No 158 of the International Labour Organisation - European Social Charter - Dismissal of an employee without valid reason - Manifest lack of jurisdiction of the Court)
   (2008/C 79/19)
   Language of the case: French
   Referring court
   Conseil de prud'hommes de Beauvais (France)
   Parties

      Applicant: Olivier Polier

      Defendant: Najar EURL
   Re:
   Reference for a preliminary ruling — Conseil de Prud'Hommes de Beauvais — Interpretation of the Charter of Fundamental Rights of the European Union (Articles 30 and 33), the European Social Charter (Articles 24 and 27) and Convention No 158 of the International Labour Organisation on termination of employment — Dismissal of an employee without valid reason — Whether national legislation is valid in the light of the abovementioned provisions
   Operative part of the order
   The Court of Justice of the European Communities manifestly does not have jurisdiction to answer the questions posed by the Conseil de prud'hommes de Beauvais by decision of 9 July 2007.

      (1)  OJ C 269, 10.11.2007.


title: Case T-587/15: Action brought on 12 October 2015 — Rose Vision v Commission

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/73

         Action brought on 12 October 2015 — Rose Vision v Commission
   (Case T-587/15)
   (2015/C 398/86)
   Language of the case: Spanish

      Parties

      Applicant: Rose Vision, S.L. (Pozuelo de Alarcón, Spain) (represented by: J. Marín López, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               first, pursuant to Article 263 TFEU, annul Commission Decision C(2015) 5449 final of 28 July 2015 relating to the recovery of a total amount of EUR 5 35  613,20, plus interest, owed by Rose Vision;

               —

               second, pursuant to Article 272 TFEU, declare that the Commission has failed to comply with paragraph 1(a) of Article II.14 and paragraph 5 of Article II.22 of the General Conditions of the Seventh Framework Programme (‘General Conditions FP7’), in relation to the final audit report 11-INFS-025 and audit 11-BA119-016 concerning Rose Vision and its participation in the project ‘Support action to the Integral Satcon Initiative (sISI)’, the project ‘Implementing cooperation on Future Internet and ICT Components between Europe and Latin America (FIRST)’, the project ‘Supporting the future of the NEM European Technology Platform (FutureNEM)’, the project ‘Support Action for the NEM European Technology Platform (4NEM)’ and the project ‘Structural Funds for Regional Research Advancement (SFERA)’;

               —

               third, pursuant to Article 272 TFEU, declare that the final audit report 11-INFS-025 and the audit report 11-A119-016, which are in breach of paragraph 1(a) of Article II.14 and paragraph 5 of Article II.22 of General Conditions FP7, are, in contractual terms, null and void and have no validity or legal effect;

               —

               fourth, pursuant to Article 272 TFEU, in conjunction with the first paragraph of Article 340 TFEU, declare that Rose Vision does not owe the Commission the amount of EUR 5 35  613,20, plus interest, as referred to in Commission Decision C(2015) 5449 final of 28 July 2015;

               —

               fifth, pursuant to Article 272 TFEU, in conjunction with the first paragraph of Article 340 TFEU, order the Commission to pay Rose Vision the outstanding sums in respect of Rose Vision’s participation in the FP7 projects, which currently amount to EUR 1 95  571,13, for Commission projects sISI, FIRST, FutureNEM, 4NEM and SFERA, and to EUR 2 17  729,37, plus those amounts that will accrue in the future, for the European Research Agency projects E-Sponder and MaPEer SME. Both amounts, which are provisional and need to be calculated more accurately at a later stage in this procedure, should, in any event, be increased by the interest provided for in paragraph 5 of Article II.5 of General Conditions FP7;

               —

               sixth, pursuant to Article 272 TFEU, in conjunction with the first and second paragraphs of Article 340 TFEU, order the Commission to pay Rose Vision contractual damages arising from breach of paragraph 1(a) of Article II.14, paragraph 5 of Article II.22 and paragraph 3(d) of Article II.5 of General Conditions FP7 and non-contractual damages resulting from Rose Vision’s registration in level W2 of the Early Warning System (EWS), in the amount indicated in paragraph 114 of the application or such other amount as the Court should deem equitable.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the final audit report 11-INFS-025 of 9 October 2012 and the final audit report 11-BA119-016 of 22 April 2013 are in breach of paragraph 1(a) of Article II.4 of General Conditions FP7 in finding that the costs incurred by Rose Vision are not eligible since they are not actual costs.

               2.

               Second plea in law, alleging that the final audit report 11-INFS-025 of 9 October 2012 and the final audit report 11-BA119-016 of 22 April 2013 are in breach of paragraph 5 of Article II.22 of General Conditions FP7.

               3.

               Third plea in law, alleging that the Commission’s suspension of payments to Rose Vision in all the projects of the Seventh Framework Programme in which Rose Vision was taking part, as well as the suspension of payments adopted by the Agency as a result of the Commission’s decision to suspend payments, constitute a breach of paragraph 3 of Article II.5 of General Conditions FP7.

               4.

               Fourth plea in law, alleging that the activation of EWS at level W2 with respect to Rose Vision lacks any legal basis, in accordance with the test approved by the judgment of the General Court of 22 April 2012 in Case T-320/09 Planet v Commission.