title: Judgment of the Court of First Instance of 30 September 2003 in Case T-203/01: Manufacture française des pneumatiques Michelin v Commission of the European Communities (Article 82 EC — System of discounts — Abuse of dominant position)

text:
C 304/24                 EN                          Official Journal of the European Union                                          13.12.2003
3.    Orders the intervener to bear its own costs.                           2.    Orders each party to bear its own costs including those relation
                                                                                to the interim proceedings.
(1) OJ C 108 of 7.4.2001.
                                                                             (1) OJ C 289 of 13.10.2001.
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 30 September 2003                                                         of 30 September 2003
in Case T-196/01: Aristotelio Panepistimio Thessalonikis                     in Case T-203/01: Manufacture française des pneumati-
      v Commission of the European Communities (1)                           ques Michelin v Commission of the European Communi-
                                                                                ties (1)
(EAGGF — Discontinuation of financial aid — Article 24
of Regulation (EEC) No 4253/88 — Error of assessment                         (Article 82 EC — System of discounts — Abuse of dominant
— Principle of proportionality — Reasonable period —                                                       position)
                        Statement of reasons)
                                                                                (2003/C 304/43)
                          (2003/C 304/42)
                                                                                (Language of the case: French)
                      (Language of the case: Greek)
                                                                             In Case T-203/01: Manufacture française des pneumatiques
In Case T-196/01: Aristoteleio Panepistimio Thessalonikis,                   Michelin, established in Clermont-Ferrand (France), represent-
established in Thessaloniki (Greece) represented by D. Niko-                 ed by J.-F. Bellis, M. Wellinger, D. Waelbroeck and M. Johnsson,
poulos, lawyer, with an address for service in Luxembourg, v                 lawyers, with an address for service in Luxembourg, against
Commission of the European Communities (Agents: M. Con-                      Commission of the European Communities (Agents: initially
dou-Durande) — application for annulment of Commission                       É. Gippini Fournier and A. Barav, subsequently R. Wainwright
Decision C (2001) 1284 of 8 June 2001, discontinuing aid to                  and A. Barav), supported by Bandag Inc., established in
the laboratory for forest genetics and the improvement of                    Muscatine, Iowa (United States of America), represented by
ligneous plant species of Aristotelio Panepistimio Thessaloniki              H. Calvet and R. Saint-Esteben, lawyers, with an address for
(University of Thessaloniki) granted by Commission Decision                  service in Luxembourg - application for annulment of the
C (96) 2542 of 25 September 1996 on the grant of EAGGF                       Commission Decision of 20 June 2001 (Case COMP/E-2/
Guidance Section assistance in accordance with Council Regu-                 36.041/PO — Michelin) relating to a proceeding pursuant to
lation (EEC) No 4256/88 in the context of project                            Article 82 EC (OJ 2002, L 143, p. 1) — the Court of First
No 93.EL.06.023, ‘Pilot project on the acceleration of regener-              Instance (Third Chamber), composed of K. Lenaerts, President,
ation of woodland affected by the fires in Greece’, — the Court              J. Azizi and M. Jaeger, Judges; J. Plingers, Administrator, for
of First Instance (Third Chamber), composed of K. Lenaerts,                  the Registrar, gave a judgment on 30 September 2003, in
President, J. Azizi and M. Jaeger, Judges; U. Natsinas, Adminis-             which it:
trator, for the Registrar, has given a judgment on 30 September
2003, in which it:
                                                                             1.    Dismisses the application.
1.    Annuls Commission Decision C (2001) 1284 of the 8 June                 2.    Orders the applicant to bear its own costs and pay those of the
      2001 discontinuing assistance to the laboratory for forestry                 Commission.
      genetics and improvement of ligneous plant species of Aristotelio
      Panepistimio Thessaloniki (Aristoteleio University of Thessa-          3.    Orders Bandag Inc. to bear its own costs.
      loniki) granted by Decision C (96) 2542 of the Commission of
      25 September 1996 on the grant of EAGGF Guidance
      section assistance in accordance with Council Regulation (EEC)         (1) OJ C 331 of 24.11.2001.
      No 4256/88 in the context of Project No 93.EL.06.023 ‘Pilot
      project on the acceleration of regeneration of woodland affected
      by the fires in Greece’;


title: Case C-202/06 P: Order of the Court of 18 December 2007 — Cementbouw Handel & Industrie BV v Commission of the European Communities (Appeals — Competition — Regulation (EEC) No 4064/89 — Competence of the Commission — Notification of a concentration having a Community dimension — Commitments proposed by the parties — Effect on the Commission's competence — Authorisation subject to certain commitments — Principle of proportionality)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/15

         Order of the Court of 18 December 2007 — Cementbouw Handel & Industrie BV v Commission of the European Communities
   (Case C-202/06 P) (1)

   (Appeals - Competition - Regulation (EEC) No 4064/89 - Competence of the Commission - Notification of a concentration having a Community dimension - Commitments proposed by the parties - Effect on the Commission's competence - Authorisation subject to certain commitments - Principle of proportionality)
   (2008/C 51/24)
   Language of the case: English
   Parties

      Appellant: Cementbouw Handel & Industrie BV (represented by: W. Knibbeler, O. Brouwer and P. Kreijger, lawyers)

      Other party to the proceedings: Commission of the European Communities (represented by: E. Gippini Fournier, A. Nijenhuis and A. Whelan, Agents)
   Action
   Appeal brought against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 23 February 2006 in Case T-282/02 Cementbouw Handel & Industrie v Commission, whereby the Court of First Instance dismissed an application for the annulment of Commission Decision (2002)2315 final of 26 June 2002 relating to a procedure pursuant to Regulation (EEC) No 4064/89 — Haniel/Cementbouw/JV (CVK), declaring a concentration entailing the acquisition of joint control of the cooperative CVK by Franz Haniel & Cie GmbH and Cememtbouw Handel & Industrie BV to be compatible with the common market and the EEA Agreement, on condition that certain commitments be complied with in order to correct the dominant position created on the Netherlands market in construction materials for load-bearing walls — Incorrect interpretation of Articles l, 2, and 3(1) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1) and of Article 8(2) of Council Regulation (EC) No 1310/97 of 30 June 1997 amending Regulation (EEC) No 4064/89 (OJ 1997 L 180, p. 1) — Breach of the principle of proportionality
   Operative part of the judgment

               1.

               Dismisses the appeal;

               2.

               Orders Cementbouw Handel & Industrie BV to pay the costs.

      (1)  OJ C 178, 29.7.2006.


title: Case T-202/06: Order of the Court of First Instance of 13 December 2007 — Select Appointments v OHIM — Manpower (TELESELECT)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/60

         Order of the Court of First Instance of 13 December 2007 — Select Appointments v OHIM — Manpower (TELESELECT)
   (Case T-202/06) (1)

   (2008/C 51/111)

      Language of the case: English

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

      (1)  OJ C 294, 2.12.2006.


title: Case C-262/03: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale per l'Emilia-Romagna, Sezione di Parma by order of that Court of 6 May 2003 in the case of Latteria Sociale Moderna Soc. Coop. a r.l. against AIMA and Servizio Provinciale Agricoltura, Reggio Emilia, Regione Emilia Romagna, and AGEA Agenzia per le Erogazioni in Agricoltura; Intervener: Allevamenti Associati Soc.r.l.

text:
C 200/14                  EN                       Official Journal of the European Union                                         23.8.2003
Action brought on 17 June 2003 by the Commission of the                    Reference for a preliminary ruling by the Tribunale
 European Communities against the Kingdom of Denmark                       Amministrativo Regionale per l'Emilia-Romagna, Sezione
                                                                           di Parma by order of that Court of 6 May 2003 in the
                                                                           case of Allevamenti Associati S.r.l. and Regione Emilia
                             (Case C-260/03)                               Romagna against AGEA e Latteria Sociale Moderna
                                                                                S.c.a.r.l.
                             (2003/C 200/23)
                                                                                (Case C-261/03)
                                                                                (2003/C 200/24)
An action against the Kingdom of Denmark was brought
before the Court of Justice of the European Communities on
17 June 2003 by the Commission of the European Commu-                      Reference has been made to the Court of Justice of the
nities, represented by H.P. Hartvig, acting as Agent, with an              European Communities by order of the Tribunale Amministra-
address for service in Luxembourg.                                         tivo Regionale per l'Emilia-Romagna, Sezione di Parma
                                                                           (Regional Administrative Court for Emilia-Romagna, Parma
                                                                           district) of 6 May 2003, received at the Court Registry on
The applicant claims that the Court should:                                17 June 2003, for a preliminary ruling in the case of Alleva-
                                                                           menti Associati S.r.l. and Regione Emilia Romagna against
                                                                           AGEA e Latteria Sociale Moderna S.c.a.r.l. on the following
1.     Declare that the Kingdom of Denmark,                                question:
       —     by not adopting detailed rules for use of the fishing         On a proper construction of Regulation EEC No 3950/92 (1) of
             availabilities allocated to Denmark;                          28 December 1992 (in particular Articles 1, 2 and 9(g)
                                                                           thereof) and Regulation EEC No 536/93 (2) of 9 March 1993
       —     by not ensuring compliance with the EC regulations            (in particular Articles 1, 2 and 3 thereof), is the transfer of a
             on the conservation of fishery resources through              quantity of milk by the producer to a third party, while
             monitoring of fishing activity, through appropriate           retaining the right of property in it, in performance of a
             inspections of landings and registration of catches,          contract for the processing of the milk and in order to
             and through administrative action or criminal                 manufacture cheese, butter and whey, for consideration, to be
             proceedings against the persons responsible for over-         classified as ‘delivery’ or ‘direct sale’ for the purposes of
             fishing;                                                      determining milk quotas and whether the additional levy is to
                                                                           be applied?
       —     by not having provisionally prohibited fishing from
             vessels flying the Danish flag or registered in               (1) OJ L 405 of 31.12.1992, p. 1.
             Denmark when the quota applicable to them is                  (2) OJ L 57 of 10.03.1993, p. 12.
             deemed to have been exhausted;
       has failed to fulfil its obligations under both Article 9(2)
       of Council Regulation (EEC) No 3760/92 (1) and
       Articles 2, 21(1) and (2) and 31 of Regulation (EEC)
       No 2847/93 (2);                                                     Reference for a preliminary ruling by the Tribunale
                                                                           Amministrativo Regionale per l'Emilia-Romagna, Sezione
                                                                           di Parma by order of that Court of 6 May 2003 in the
2.     Order the Kingdom of Denmark to pay the costs.                      case of Latteria Sociale Moderna Soc. Coop. a r.l. against
                                                                           AIMA and Servizio Provinciale Agricoltura, Reggio Emilia,
                                                                           Regione Emilia Romagna, and AGEA Agenzia per le
                                                                           Erogazioni in Agricoltura; Intervener: Allevamenti Asso-
                                                                                ciati Soc.r.l.
Pleas in law and main arguments                                                                     (Case C-262/03)
These pleas correspond essentially to those put forward in the                                      (2003/C 200/25)
application in Case C-259/03 (3) brought concerning exceeding
of fisheries availabilities and insufficient related control
measures for the years 1990 to 1992 and 1994.                              Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Tribunale Amministra-
                                                                           tivo Regionale per l'Emilia-Romagna, Sezione di Parma
(1) Council Regulation (EEC) No 3760/92 of 20 December 1992                (Regional Administrative Court for Emilia-Romagna, Parma
    establishing a Community system for fisheries and aquaculture (OJ
    1992 L 389, p. 1).                                                     district) of 6 May 2003, received at the Court Registry on
(2) Council Regulation (EEC) No 2847 of 12 October 1993 establishing       17 June 2003, for a preliminary ruling in the case of Latteria
    a control system applicable to the common fisheries policy (OJ         Sociale Moderna Soc. Coop. a r.l. against AIMA and Servizio
    1993 261, p. 1).                                                       Provinciale Agricoltura, Reggio Emilia, Regione Emilia
(3) See p. 13 of this Official Journal.                                    Romagna, and AGEA Agenzia per le Erogazioni in Agricoltura;
                                                                           Intervener: Allevamenti Associati Soc.r.l. on the following
                                                                           question:
 ---pagebreak--- 23.8.2003             EN                           Official Journal of the European Union                                        C 200/15
On a proper construction of Regulation EEC No 3950/92 (1) of               imports, since it allows the authorities an excessive degree of
28 December 1992 (in particular Articles 1, 2 and 9(g) thereof)            latitude and does not require them to take a decision within a
and Regulation EEC No 536/93 (2) of 9 March 1993 (in parti-                brief and precisely determined period. In the case of parallel
cular Articles 1, 2 and 3 thereof), is the transfer of a quantity of       imports of medicines, that barrier goes well beyond what is
milk by the producer to a third party, while retaining the right           necessary for the protection of public health.
of property in it, in performance of a contract for the proces-
sing of the milk and in order to manufacture cheese, butter and
whey, for consideration, to be classified as ‘delivery’ or ‘direct
sale’ for the purposes of determining milk quotas and whether
the additional levy is to be applied?
(1) OJ L 405 of 31.12.1992, p. 1.
(2) OJ L 57 of 10.03.1993, p. 12.
                                                                           Action brought on 17 June 2003 by the Commission of
                                                                             the European Communities against the French Republic
                                                                                (Case C-264/03)
                                                                                (2003/C 200/27)
Action brought on 17 June 2003 by the Commission of
  the European Communities against the French Republic
                                                                           An action against the French Republic was brought before the
                                                                           Court of Justice of the European Communities on 17 June
                         (Case C-263/03)                                   2003 by the Commission of the European Communities,
                                                                           represented by B. Stromsky, K. Wiedner and F. Simonetti,
                                                                           acting as Agents, with an address for service in Luxembourg.
                         (2003/C 200/26)
                                                                           The Commission of the European Communities claims that the
                                                                           Court should:
An action against the French Republic was brought before the
Court of Justice of the European Communities on 17 June
2003 by the Commission of the European Communities,                        1.    declare that, by reserving, in Article 4 of the Law of
represented by B. Stromsky, acting as Agent, with an address                     12 July 1985, delegated management contracts to an
for service in Luxembourg.                                                       exhaustive list of legal entities governed by French law,
                                                                                the French Republic has failed to fulfil its obligations
                                                                                under Directive 92/50/EEC (1), and in particular
The Commission of the European Communities claims that the                       Articles 8 and 9 thereof, and under Article 49 of the
Court should:                                                                    Treaty establishing the European Community;
1.    declare that, in so far as the French legislation in force           2.    order the French Republic to pay the costs.
      subjects imports of medicines from other Member States
      of the European Community, when they are identical to
      medicines already authorised in France (parallel imports),
      to unreasonable conditions, in particular as regards the
      discretionary power granted to the authorities and the               Pleas in law and main arguments
      absence of a prescribed period within which they must
      take a decision, the French Republic has failed to fulfil its
      obligations under Article 28 of the Treaty establishing the          Reserving delegated management contracts to certain legal
      European Community;                                                  entities governed by French law constitutes a breach of Direc-
                                                                           tive 92/50/EEC and a restriction on the principle of the
2.    order the French Republic to pay the costs.                          freedom to provide services laid down in Article 49 of the
                                                                           Treaty which is not justified under the exception provided for
                                                                           in Article 45 of the Treaty.
                                                                           The management contract is a public service contract within
Pleas in law and main arguments                                            the meaning of Article 1(a) of Directive 92/50. Moreover,
                                                                           management contracts fall within Category No 12 of
                                                                           Annex IA, apart from contracts exclusively or principally
The situation called in question essentially results from the              concerning representative tasks, so that the French legislation
absence of a specific procedure for authorising parallel imports           fails to comply with Article 8 of the Directive. Management
of medicines in French territory. The general procedure for the            contracts which relate exclusively or principally to representa-
prior authorisation of the import of medicines which is there-             tive tasks come under Annex IB of the Directive, so that the
fore applicable constitutes a barrier to imports and a measure             French legislation fails to comply with Article 9 of the Direc-
having equivalent effect to a quantitative restriction on                  tive as well.


title: Case T-348/06: Judgment of the General Court of 27 September 2012 — Total Nederland v Commission (Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Continuous nature of the infringement — Imputability of the unlawful conduct — Fines — Gravity and duration of the infringement)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/15

         Judgment of the General Court of 27 September 2012 — Total Nederland v Commission
   (Case T-348/06) (1)

   (Competition - Agreements, decisions and concerted practices - Netherlands market in road pavement bitumen - Decision finding an infringement of Article 81 EC - Continuous nature of the infringement - Imputability of the unlawful conduct - Fines - Gravity and duration of the infringement)
   2012/C 355/26
   Language of the case: English

      Parties

      Applicant: Total Nederland NV (Voorburg, Netherlands) (represented by: A. Vandencasteele, lawyer)

      Defendant: European Commission (represented by: A. Bouquet and F. Castillo de la Torre, Agents)

      Re:

   APPLICATION, principally, for partial annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Total Nederland NV to pay the costs.

      (1)  OJ C 20, 27.1.2007.


title: Case T-563/15: Action brought on 24 September 2015 — Paglieri Sell System v OHIM (APOTEKE)

text:
               9.11.2015

               EN

               Official Journal of the European Union

               C 371/45

         Action brought on 24 September 2015 — Paglieri Sell System v OHIM (APOTEKE)
   (Case T-563/15)
   (2015/C 371/46)
   Language of the case: Italian

      Parties

      Applicant: Paglieri Sell System SpA (Pozzolo Formigaro, Italy) (represented by: P. Pozzi and F. Braga, lawyers)

      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 element ‘APOTEKE’ — Application for registration No 13 014 691

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 23 July 2015 in Case R 2428/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that there was a breach and incorrect application of Article 7(1)(b) and (c) and (2) of Regulation No 207/2009;

               —

               declare that there was a breach of Article 75 of Regulation No 207/2009;

               —

               annul the contested decision;

               —

               order OHIM to pay the costs and fees incurred for the present proceedings.

      Pleas in law

               —

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

               —

               Infringement of Article 7(2) of Regulation No 207/2009;

               —

               Infringement of Article 75 of Regulation No 207/2009.


title: Case C-355/08 P: Order of the Court of 5 May 2009 — WWF-UK v Council of the European Union, Commission of the European Communities (Appeal — Regulation (EC) No 2371/2002 — Consultation of Regional Advisory Councils concerning measures governing access to waters and resources and the sustainable pursuit of fishing activities — Regulation (EC) No 41/2007 — Fixing for 2007 of the total allowable catches for cod — Dissenting minority view recorded by members of a Regional Advisory Council in the RAC report on those total allowable catches — Action for annulment of Regulation No 41/2007 brought by such a member — Inadmissibility — Appeal clearly unfounded)

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/16

         Order of the Court of 5 May 2009 — WWF-UK v Council of the European Union, Commission of the European Communities
   (Case C-355/08 P) (1)

   (Appeal - Regulation (EC) No 2371/2002 - Consultation of Regional Advisory Councils concerning measures governing access to waters and resources and the sustainable pursuit of fishing activities - Regulation (EC) No 41/2007 - Fixing for 2007 of the total allowable catches for cod - Dissenting minority view recorded by members of a Regional Advisory Council in the RAC report on those total allowable catches - Action for annulment of Regulation No 41/2007 brought by such a member - Inadmissibility - Appeal clearly unfounded)
   2009/C 205/28
   Language of the case: English

      Parties

      Appellant: WWF-UK (represented by: P. Sands and J. Simor, barristers, and by R. Stein, solicitor)

      Other parties to the proceedings: Council of the European Union (represented by: M. Moore and A. De Gregorio Merino, Agents), Commission of the European Communities (represented by: P. Oliver, Agent)

      Re:

   Appeal brought against the order of 2 June 2008 in Case T-91/07 WWF-UK v Council by which the Court of First Instance (Eighth Chamber) declared inadmissible an application for the partial annulment of Council Regulation (EC) No 41/2007 of 21 December 2006 fixing for 2007 fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2007 L 15, p. 1), to the extent that it fixed the ‘total allowable catches’ (‘TACs’) for 2007 in respect of the fishing of cod in the areas covered by Council Regulation (EC) No 423/2004 (OJ 2004 L 70, p. 8) — Requirement that the contested measure must be of individual concern

      Operative part of the order

               1.

               Dismisses the appeal;

               2.

               Orders WWF UK Ltd to pay the costs;

               3.

               Orders the Commission of the European Communities to bear its own costs.

      (1)  OJ C 260, 11.10.2008.


title: Case C-473/08: Reference for a preliminary ruling from the Sächsisches Finanzhof (Germany) lodged on 5 November 2008 — Ingenieurbüro Eulitz GbR Thomas and Marion Eulitz v Finanzamt Dresden I

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/26

         Reference for a preliminary ruling from the Sächsisches Finanzhof (Germany) lodged on 5 November 2008 — Ingenieurbüro Eulitz GbR Thomas and Marion Eulitz v Finanzamt Dresden I
   (Case C-473/08)
   (2009/C 44/43)
   Language of the case: German
   Referring court
   Sächsisches Finanzhof
   Parties to the main proceedings

      Applicants: Ingenieurbüro Eulitz GbR Thomas and Marion Eulitz

      Defendant: Finanzamt Dresden I
   Questions referred

               1.

               Is teaching and examination work which a graduate engineer performs at an education institute established as a private-law association for participants in advanced training courses who already have at least a university or higher technical college qualification as an architect or an engineer or who have an equivalent education, where the course is concluded with an examination, ‘school or university education’ within the meaning of Article 13A(1)(j) of Directive 77/388/EEC (1)?

               2.

               Is a person who otherwise satisfies the requirements to be a teacher giving tuition privately within the meaning of the provision referred to under 1 excluded from that category of persons if

                           —

                           he receives payment (in full or in part) for his teaching classes even if no participants have enrolled for the teaching class in question, but he has already done preparatory work for it, or

                           —

                           he is responsible, repeatedly and continuously over a considerable period of time, for organising the relevant teaching and examination work, or

                           —

                           in addition to his direct tuition work, he has taken on a professionally and/or organisationally prominent position compared with the other lecturers on the course in question?

         Is such exclusion to be taken to exist if just one of those criteria is satisfied, or only if two or all three criteria have been met?

      (1)  OJ L 145, p. 1.


title: Judgment of the Court (First Chamber) of 14 October 2004 in Case C-113/02: Commission of the European Communities v Kingdom of the Netherlands (Regulation (EEC) No 259/93 on the supervision and control of shipments of waste — Directive 75/442 on waste — National measure providing for objections to shipments of waste for recovery where 20 % of the waste is recoverable in the Member State and the percentage of waste recoverable in the country of destination is lower — Measure of a Member State classifying an operation under point R1 (recovery by incineration) of Annex IIB to Directive 75/442 or under point D10 (disposal by incineration) of Annex IIA to that directive not according to the criterion of actual use but according to the calorific value of the incinerated waste)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/6

      JUDGMENT OF THE COURT

   (First Chamber)
   of 14 October 2004
   in Case C-113/02: Commission of the European Communities v Kingdom of the Netherlands (1)

   (Regulation (EEC) No 259/93 on the supervision and control of shipments of waste - Directive 75/442 on waste - National measure providing for objections to shipments of waste for recovery where 20 % of the waste is recoverable in the Member State and the percentage of waste recoverable in the country of destination is lower - Measure of a Member State classifying an operation under point R1 (recovery by incineration) of Annex IIB to Directive 75/442 or under point D10 (disposal by incineration) of Annex IIA to that directive not according to the criterion of actual use but according to the calorific value of the incinerated waste)
   (2004/C 300/10)
   Language of the case: Dutch
   In Case C-113/02 — action under Article 226 EC for failure to fulfil obligations, brought on 27 March 2002, Commission of the European Communities (Agents: H. van Lier, M. van der Woude and R. Wezenbeek-Geuke) against Kingdom of the Netherlands (Agent: H.G. Sevenster) — the Court (First Chamber), composed of: P. Jann, (Rapporteur) President of the Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and S. von Bahr; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgement on 14 October 2004, in which it:

               1.

               Declares that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7(4) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community and under Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991 and Commission Decision 96/350/EC of 24 May 1996;

               2.

               Orders the Kingdom of the Netherlands to pay the costs.

      (1)  OJ C 144 of 15.6.2002.


title: Case T-201/06: Action brought on 1 August 2006 — Gerson v OHIM (Paint filter)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/49

         Action brought on 1 August 2006 — Gerson v OHIM (Paint filter)
   (Case T-201/06)
   (2006/C 224/104)
   Language of the case: English
   Parties

      Applicant: Louis M. Gerson Co., Inc (Middleboro, USA) (represented by: M. Edenborough, Barrister)

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

               —

               Annulment of the decision of 15 May 2006 (Case R 1387/2005-2) of the Board of Appeal in its entirety;

               —

               order the Office to pay the applicant the costs incurred in connection with prosecuting this appeal before the Court of First Instance.

         Pleas in law and main arguments

      Community trade mark concerned: 3-dimensional mark consisting of ‘the colour light yellow in the shade claimed, applied to the mesh in the tip of a paint filter’ for goods and services in classes 16 and 21— application No 3 969 367.

      Decision of the examiner: Refusal of the application.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 7(1)(b) of Council Regulation 40/94. The applicant claims that the Board of Appeal made several factual errors of assessment and adopted at least one error made by the Examination Division. Moreover, in the appraisal of the available evidence the Board of Appeal allegedly failed to do the appropriate balancing reaching, thus, a wrong conclusion when considering Article 7(1)(b) of the above mentioned regulation.
   The applicant finally contends that the application is distinctive of one trade source and therefore does not offend Article 7(1)(b) of the regulation. In fact, the applicant claims the use of colour would be noticed by the relevant public as being associated with only the single trade source.


title: Case T-171/06: Judgment of the Court of First Instance of 17 March 2009 — Laytoncrest v OHIM — Erico (TRENTON) (Community trade mark — Opposition proceedings — Application for the Community word mark TRENTON — Earlier Community word mark LENTON — Right to be heard — Article 73 of Regulation (EC) No 40/94 and Rule 54 of Regulation (EC) No 2868/95 — No withdrawal of the trade mark application — Article 44(1) of Regulation No 40/94 — Obligation to rule on the basis of the available evidence — Rule 20(3) and Rule 50(1) of Regulation No 2868/95)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/31

         Judgment of the Court of First Instance of 17 March 2009 — Laytoncrest v OHIM — Erico (TRENTON)
   (Case T-171/06) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark TRENTON - Earlier Community word mark LENTON - Right to be heard - Article 73 of Regulation (EC) No 40/94 and Rule 54 of Regulation (EC) No 2868/95 - No withdrawal of the trade mark application - Article 44(1) of Regulation No 40/94 - Obligation to rule on the basis of the available evidence - Rule 20(3) and Rule 50(1) of Regulation No 2868/95)
   2009/C 113/63
   Language of the case: Greek

      Parties

      Applicant: Laytoncrest Ltd (London, United Kingdom) (represented by: N. Dontas and P. Georgopoulou, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Erico International Corp. (Solon, Ohio, United States) (represented by: M. Samer, O. Gillert and F. Schiwek, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 26 April 2006 (Case R 406/2004-2) relating to opposition proceedings between Erico International Corp. and Laytoncrest Ltd.

      Operative part of the judgment

   The Court of First Instance:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 April 2006 (R 406/2004-2);

               2.

               Orders OHIM to bear its own costs and to pay those incurred by Laytoncrest Ltd;

               3.

               Orders Erico International Corp. to bear its own costs.

      (1)  OJ C 212, 2.9.2006.


title: Joined Cases C-260/14 and C-261/14: Judgment of the Court (Fifth Chamber) of 26 May 2016 (requests for a preliminary ruling from the Curtea de Apel Bacău — Romania) — Judeţul Neamţ (C-260/14), Judeţul Bacău (C-261/14) v Ministerul Dezvoltării Regionale şi Administraţiei Publice (Reference for a preliminary ruling — Protection of the financial interests of the European Union — Regulation (EC, Euratom) No 2988/95 — European Regional Development Fund (ERDF) — Regulation (EC) No 1083/2006 — Award of a contract by the beneficiary of funds acting as contracting authority for the performance of the action eligible for funding — Definition of ‘irregularity’ — Criterion relating to ‘breach of EU law’ — Tendering procedures contrary to national law — Nature of financial corrections adopted by Member States — Administrative measures or penalties)

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/2

         Judgment of the Court (Fifth Chamber) of 26 May 2016 (requests for a preliminary ruling from the Curtea de Apel Bacău — Romania) — Judeţul Neamţ (C-260/14), Judeţul Bacău (C-261/14) v Ministerul Dezvoltării Regionale şi Administraţiei Publice
   (Joined Cases C-260/14 and C-261/14) (1)

   ((Reference for a preliminary ruling - Protection of the financial interests of the European Union - Regulation (EC, Euratom) No 2988/95 - European Regional Development Fund (ERDF) - Regulation (EC) No 1083/2006 - Award of a contract by the beneficiary of funds acting as contracting authority for the performance of the action eligible for funding - Definition of ‘irregularity’ - Criterion relating to ‘breach of EU law’ - Tendering procedures contrary to national law - Nature of financial corrections adopted by Member States - Administrative measures or penalties))
   (2016/C 260/02)
   Language of the case: Romanian

      Referring court

   Curtea de Apel Bacău

      Parties to the main proceedings

      Applicants: Judeţul Neamţ (C-260/14), Judeţul Bacău (C-261/14)

      Defendant: Ministerul Dezvoltării Regionale şi Administraţiei Publice

      Operative part of the judgment

               1.

               Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests and Article 2(7) of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 must be interpreted as meaning that failure to comply with national provisions by a contracting authority, the beneficiary of Structural Funds, in connection with the award of a public contract of an estimated value below the threshold laid down in Article 7(a) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Commission Regulation (EC) No 1422/2007 of 4 December 2007, may constitute, at the time the contract is awarded, an ‘irregularity’ within the meaning of Article 1(2) of Regulation No 2988/95 or Article 2(7) of Regulation No 1083/2006, if that breach has, or would have, the effect of prejudicing the general budget of the European Union by charging an unjustified item of expenditure.

               2.

               The second sentence of the first subparagraph of Article 98(2) of Regulation No 1083/2006 is to be interpreted as meaning that financial corrections by Member States, if applied to co-financed expenditure under Structural Funds for failure to comply with rules concerning the award of public contract, are administrative measures within the meaning of Article 4 of Regulation No 2988/95.

               3.

               The principles of legal certainty and protection of legitimate expectations must be interpreted as not precluding a Member State from applying financial corrections governed by an internal legislative measure which entered into force after an alleged breach of the rules governing public contracts occurred, provided that it is a question of the application of new rules to the future effects of situations which arose under the earlier rules, which is a matter to be determined by the national court, taking into account all the relevant circumstances of the proceedings before it.

      (1)  OJ C 292, 1.9.2014.


title: Case C-179/11: Judgment of the Court (Fourth Chamber) of 27 September 2012 (reference for a preliminary ruling from the Conseil d’Etat — France) — CIMADE, Groupe d’information et de soutien des immigrés (GISTI) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration (Applications for asylum — Directive 2003/9/EC — Minimum standards for the reception of asylum seekers in the Member States — Regulation (EC) No 343/2003 — Obligation to guarantee asylum seekers minimum reception conditions during the procedure of taking charge or taking back by the responsible Member State — Determining the Member State obliged to assume the financial burden of the minimum conditions)

text:
               24.11.2012

               EN

               Official Journal of the European Union

               C 366/12

         Judgment of the Court (Fourth Chamber) of 27 September 2012 (reference for a preliminary ruling from the Conseil d’Etat — France) — CIMADE, Groupe d’information et de soutien des immigrés (GISTI) v Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration
   (Case C-179/11) (1)

   (Applications for asylum - Directive 2003/9/EC - Minimum standards for the reception of asylum seekers in the Member States - Regulation (EC) No 343/2003 - Obligation to guarantee asylum seekers minimum reception conditions during the procedure of taking charge or taking back by the responsible Member State - Determining the Member State obliged to assume the financial burden of the minimum conditions)
   2012/C 366/19
   Language of the case: French

      Referring court

   Conseil d’Etat

      Parties to the main proceedings

      Applicant: CIMADE, Groupe d’information et de soutien des immigrés (GISTI)

      Defendant: Ministre de l’Intérieur, de l’Outre-mer, des Collectivités territoriales et de l’Immigration

      Re:

   Reference for a preliminary ruling — Conseil d’État (France) — Interpretation of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2002 L 31, p. 18) and of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1) — Extent of the obligation to guarantee asylum seekers the enjoyment of minimum reception conditions throughout the duration of the procedure for taking charge of them or for taking them back by the Member State responsible — Determination of the Member State obliged to assume the financial burden of providing those minimum conditions during that period

      Operative part of the judgment

               1.

               Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States must be interpreted as meaning that a Member State in receipt of an application for asylum is obliged to grant the minimum conditions for reception of asylum seekers laid down in Directive 2003/9 even to an asylum seeker in respect of whom it decides, under Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant.

               2.

               The obligation on a Member State in receipt of an application for asylum to grant the minimum reception conditions laid down in Directive 2003/9 to an asylum seeker in respect of whom it decides, under Regulation No 343/2003, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant, ceases when that same applicant is actually transferred by the requesting Member State, and the financial burden of granting those minimum conditions is to be assumed by that requesting Member State, which is subject to that obligation.

      (1)  OJ C 186, 25.6.2011.


title: Case F-118/05: Order of the Civil Service Tribunal (Second Chamber) of 14 December 2006 — Klopfer v Commission (Officials — Open competition — Non-admission to tests — Necessary professional experience — Part-time work)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/48

         Order of the Civil Service Tribunal (Second Chamber) of 14 December 2006 — Klopfer v Commission
   (Case F-118/05) (1)

   (Officials - Open competition - Non-admission to tests - Necessary professional experience - Part-time work)
   (2006/C 331/107)
   Language of the case: German
   Parties

      Applicant: Matthias Klopfer (Berlin, Germany) (represented by: W. Daniels and E. Pätzel, lawyers)

      Defendant: Commission of the European Communities (represented by: H. Kraemer and K. Herrmann, Agents)
   Re:
   Annulment of the decision of the Appointing Authority not to admit the applicant to the tests in competition EPSO/B/11/03 on the ground of insufficient professional experience, since his part-time work was taken into account only after a weighting was applied.
   Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible;

               2.

               The parties are ordered to bear their own costs.

      (1)  OJ C 60, 11.3.2006.


title: Case T-184/09: Action brought on 14 May 2009 — Hellenic Republic v Commission

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/23

         Action brought on 14 May 2009 — Hellenic Republic v Commission
   (Case T-184/09)
   2009/C 193/37
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: V. Kontolaimos, E. Leftheriotou, V. Karra)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               grant the application and annul the contested decision or, in the alternative, alter it so that the financial correction is reduced to 5 % or, in the alternative, the correction of 10 % is applied only to the amount which corresponds to the sugar imported by E.V.Z.;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In its application for annulment of the Commission decision of 19 March 2009 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), which was notified under document number C(2009) 1945 and published under No 2099/253/EC (OJ 2009 L 75, p. 15) and which concerns the imposition of corrections in respect of export refunds and the common organisation of the market in sugar, because of a lack of controls, the Hellenic Republic puts forward the following pleas for annulment.
   By the first plea for annulment, the Hellenic Republic submits that the procedure for clearance of the accounts was invalid because of breach of a substantial procedural requirement that is laid down by Article 8(1) of Regulation (EC) No 1663/95, (1) relating to the failure to engage in bilateral discussion, so far as concerns the imposition of a correction for refunds in respect of sugar in non-Annex I products.
   By the second plea for annulment, the Hellenic Republic alleges misappraisal of the facts, an insufficient statement of reasons and that the limits of the Commission’s discretion were exceeded, as regards the assessment of risk for the Fund.
   By the third plea for annulment, it alleges breach of the principle of proportionality.

      (1)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6).


title: Case T-222/13: Action brought on 15 April 2013 — B&S Europe v Commission

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/24

         Action brought on 15 April 2013 — B&S Europe v Commission
   (Case T-222/13)
   2013/C 164/40
   Language of the case: French

      Parties

      Applicant: Business and Strategies in Europe (Brussels, Belgium) (represented by: L. Bihain, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the application for annulment admissible and well founded and, consequently, annul the contested act;

               —

               therefore, order the European Commission to admit the applicant to the short-list of candidates invited to participate in the tendering procedure in the framework of contract EuropeAid/132633/C/SER/multi, lot No 7: Governance and home affairs;

               —

               order the European Commission to pay all the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a breach of the obligation to state reasons, of the principle of good administration, in particular in that it imposes a duty of consistency, of the principle of audi alteram partem, and an infringement of the applicant’s legitimate expectations and of the principle of fairness when the Commission, on the first occasion, in its letter of 2 April 2013 following its decision of 15 February 2013, rejected as non-eligible project No 25, proposed by the applicant to fulfil the technical capacity criterion, thus bringing the number of projects eligible as reference projects below the minimum necessary.

               2.

               Second plea in law, alleging an infringement of point 2.4.11.1.3, second subparagraph, of the Practical Guide to contract procedures for EU external actions, and of clarification A 47 of the procurement notice, as the Commission incorrectly interpreted the concept of reference projects eligible to fulfil the selection criterion concerning the technical capacity of the candidate.


title: Case T-778/16: Action brought on 9 November 2016 — Ireland v Commission

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/35

         Action brought on 9 November 2016 — Ireland v Commission
   (Case T-778/16)
   (2017/C 038/48)
   Language of the case: English

      Parties

      Applicant: Ireland (represented by: E. Creedon, K. Duggan and A. Joyce, agents, P. Baker, QC, S. Kingston, C. Donnelly, B. Doherty and A. Goodman, barristers, P. Gallagher, D. McDonald and M. Collins, SC)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission’s decision C(2016) 5605 final of 30 August 2016, addressed to Ireland, on State Aid case SA.38373 (2014/C) implemented by Ireland to Apple;

               —

               order the Commission to bear Ireland’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission has made manifest errors of assessment in misunderstanding Irish law and the relevant facts.

                           —

                           The decision wrongly asserts that two Opinions given in 1991 and 2007 by the Irish Revenue Commissioners ‘renounced’ tax revenue that Ireland would have otherwise been entitled to collect from the Irish branches of Apple Sales International (ASI) and Apple Operations Europe (AOE). The Opinions involved no departure from Irish law. The ordinary tax rules applicable to branches in Ireland of non-resident companies are in Section 25 of the Taxes Consolidation Act 1997. The Opinions simply applied Section 25, which in accordance with the territoriality principle, taxes only the profits attributable to the branch, not the non-Irish profits of the company. The decision also mischaracterizes the activities and responsibilities of the Irish branches of ASI and AOE. These branches carried out routine functions, but all important decisions within ASI and AOE were made in the USA, and the profits deriving from these decisions were not properly attributable to the Irish branches of ASI and AOE. The Commission’s attribution of Apple’s intellectual property licences to the Irish branches of AOE and ASI is not consistent with Irish law and, moreover, is inconsistent with the principles it claims to apply, as is its stated refusal to take into account the activities of Apple Inc.

               2.

               Second plea in law, alleging that the Commission has made manifest errors in its State aid assessment.

                           —

                           The Commission’s assertion that ASI and AOE were granted an ‘advantage’ is incorrect. The Opinions did not depart from ‘normal’ taxation, because ASI and AOE did not pay any less tax than was properly due under Section 25. The Commission also wrongly claims that the Opinions were selective. The Commission’s reference system wrongly ignores the distinction between resident and non-resident companies. The Commission attempts to re-write the Irish corporation tax rules so that, in respect of Opinions, the Revenue Commissioners should have applied the Commission’s version of the arm’s length principle (‘ALP’). This principle is not part of EU law or the relevant Irish law in relation to branch profit attribution, and the Commission’s claim is inconsistent with Member State sovereignty in the area of direct taxation.

               3.

               Third plea in law, alleging that the Commission’s application of the arm’s length principle is inconsistent and manifestly erroneous.

                           —

                           Even if ALP were legally relevant (which Ireland does not accept) the Commission has failed to apply it consistently or to examine the overall situation of the Apple group.

               4.

               Fourth plea in law, alleging that the Commission’s subsidiary line of reasoning is erroneous.

                           —

                           The Commission wrongly rejected expert evidence submitted by Ireland showing that, even if ALP applied (which Ireland does not accept), the tax treatment of ASI and AOE was consistent with that principle.

               5.

               Fifth plea in law, alleging that the Commission’s alternative line of reasoning is erroneous.

                           —

                           The Commission is wrong to maintain that ALP is inherent in Irish law, that Section 25 was applied inconsistently or that Section 25 confers any impermissible discretion. Section 25 confers no such discretion on the Revenue Commissioners.

               6.

               Sixth plea in law, alleging that the Commission has breached essential procedural requirements.

                           —

                           The Commission never clearly explained its State aid theory during the Investigation, and the Decision contains factual findings on which Ireland never had the chance to comment. The Commission breached the duty of good administration by failing to act impartially and in accordance with its duty of care.

               7.

               Seventh plea in law, alleging that the Commission has breached the principles of legal certainty and legitimate expectations.

                           —

                           The Commission infringed the principles of legal certainty and legitimate expectations by invoking alleged rules of EU law never previously identified. These are novel and their scope and effect are wholly uncertain. The Commission invokes OECD documents from 2010, but (even if they were binding) these could not have been foreseen in 1991 or 2007.

               8.

               Eighth plea in law, alleging that the Commission lacked competence to take the decision, and has breached Articles 4 and 5 TEU and the principle of fiscal autonomy of Member States.

                           —

                           The Commission has no competence, under State aid rules, unilaterally to substitute its own view of the geographic scope and extent of the Member State’s tax jurisdiction for those of the Member State itself. The purpose of the State aid rules is to tackle State interventions which confer a selective advantage. The State aid rules by their nature cannot remedy mismatches between tax systems on a global level.

               9.

               Ninth plea in law, alleging that the Commission has manifestly breached Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union.

                           —

                           The Commission has manifestly breached its duty to provide a clear and unequivocal statement of reasons in its Decision, in relying simultaneously on grossly divergent factual scenarios, in contradicting itself as to the source of the rule that Ireland is said to have breached, and in suggesting that Ireland granted aid in relation to profits taxable in other jurisdictions.


title: Case C-257/99: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division, Divisional Court, by order of that court of 29 March 1999, in the case of The Queen against Secretary of State for the Home Department, ex parte: Julius Barkoci and Marcel Malik

text:
C 265/2                 EN                    Official Journal of the European Communities                                      18.9.1999
2. If the answer to Question 1 is in the negative:                       II.   If the answer to one of the questions under I is in the
                                                                              negative:
     Can it be concluded that these circumstances constitute ‘a
                                                                              a) Are advances on maintenance payments under the
     special situation’ which — if the other legislative conditions
                                                                                Unterhaltsvorschußgesetz referred to in Question I(a)
     are satisfied — may lead to repayment of the import duties
                                                                                social advantages within the meaning of Article 7(2) of
     under Article 239 of the Customs Code in conjunction
                                                                                Regulation (EEC) No 1612/68 (4) of the Council of
     with Article 905(1) of the regulation implementing the
                                                                                15 October 1968 on freedom of movement for work-
     Customs Code?
                                                                                ers within the Community?
                                                                              b) Does the fact that the child has to be resident in Austria
(1) Council Regulation (EEC) No 2913/92, OJ L 302 of 19.10.1992,                   in order to be awarded advances on maintenance
    p. 1.                                                                          payments constitute a prohibited limiting provision
(2) Commission Regulation (EEC) No 2454/93, OJ L 253 of                            under the second indent of Article 3(1) of Regulation
    11.10.1993, p. 1.
                                                                                (EEC, No 1612/68 in the light of the right to freedom
                                                                                of movement for workers enshrined in Article 48 of
                                                                                the EC Treaty?
                                                                              c) Do the provisions of Regulation No 1612/68 give rise
                                                                                to an entitlement, in the person of the child of a
                                                                                worker, to the award of advances on maintenance
                                                                                payments?
Reference for a preliminary ruling by the Oberster                       ( 1) OJ L 149 of 5.7.1971, p. 2.
Gerichtshof by Order of that court of 23 June 1999 in the                ( 2) OJ L 230 of 22.8.1984, p. 6.
case relating to the minor Anna Humer represented by                     ( 3) OJ L 331 of 16.11.1989, p. 1.
           her mother Andrea Sturmbauer-Machand                          ( 4) OJ, English Special Edition 1968 (II), p. 475.
                          (Case C-255/99)
                         (1999/C 265/03)
                                                                         Reference for a preliminary ruling by the High Court
                                                                         of Justice (England & Wales), Queen’s Bench Division,
Reference has been made to the Court of Justice of the                   Divisional Court, by order of that court of 29 March
European Communities by order of the Oberster Gerichtshof,               1999, in the case of The Queen against Secretary of State
Vienna, of 23 June 1999, received at the Court Registry on               for the Home Department, ex parte: Julius Barkoci and
8 July 1999, for a preliminary ruling in the case relating to the                                     Marcel Malik
minor Anna Humer, represented by her mother Andrea
Sturmbauer-Machand, on the following question:                                                      (Case C-257/99)
                                                                                (1999/C 265/04)
I. a) Do advances on maintenance payments to the minor
          children of working persons, or unemployed persons             Reference has been made to the Court of Justice of the
          drawing unemployment benefit under Austrian legis-             European Communities by an order of the High Court of
          lation, which are payable in respect of children under         Justice (England & Wales), Queen’s Bench Division, Divisional
          the Austrian federal law on the grant of advances on           Court of 29 March 1999, which was received at the Court
          maintenance (Unterhaltsvorschußgesetz 1985 [Law on             Registry on 9 July 1999, for a preliminary ruling in the case of
          Advances on Maintenance Payments 1985], hereinafter            The Queen against Secretary of State for the Home Depart-
          UVG — current version in BGBl p. 451) constitute               ment, ex parte: Julius Barkoci and Marcel Malik, on the
          family benefits for the purposes of Article 4(1)(h) of         following questions:
          Council Regulation (EEC) No 1408/71 (1) of 14 June
          1971 on the application of social security schemes to
          employed persons, to self-employed persons and to              Direct effect and interpretation of the Agreement (1)
          members of their families moving within the Com-
          munity, as amended and updated by Regulation (EEC)
          No 2001/83 (2) of 2 June 1983 and amended by                   1. Does Article 45 of the Agreement have direct effect
          Council Regulation (EEC) No 3427/89 (3) of 30 Octo-                 within the national legal systems of Member States,
          ber 1989, and is Article 3 of the regulation, on equality           notwithstanding the provisions of Article 59 of the Agree-
          of treatment, therefore also applicable in such a case?             ment?
                                                                         2. If the answer to question 1 is ‘yes’, how is the proviso in
     b) Do Articles 73 and 74 of Regulation 1408/71 entitle a                 the penultimate sentence of Article 59(1) of the Agreement
          child of a marriage who is resident with his mother in              (and in particular the words ‘benefits accruing to any Party
          a Member State other than Austria and whose father is               under the terms of a specific provision of this Agreement’)
          resident in Austria and is working there, or unem-                  to be interpreted; and, more generally, to what extent may
          ployed and drawing unemployment benefit under                       a Member State apply its laws and regulations regarding
          Austrian legislation, to the award of an advance on                 entry, stay and establishment of natural persons to persons
          maintenance payments under the Unterhaltsvorschuß-                  invoking Article 45 of the Agreement, without violating
          gesetz referred to in paragraph (a) above?                          this proviso?
 ---pagebreak--- 18.9.1999              EN                     Official Journal of the European Communities                                           C 265/3
3. If the answer to question 1 is ‘no’, is a natural person who               iv. the fact that the applicant has had access to the social
   is a national of the Czech Republic nonetheless entitled, in                    welfare system of the Member State and has depended
   domestic legal proceedings brought for the purposes of                          upon it financially whilst establishing himself as a
   challenging a decision of the relevant national authorities                     self-employed person?
   to refuse him admission to establish himself in business
   pursuant to the Agreement, to invoke Article 45 of the                7. If a Member State is not entitled to refuse entry to a person
   Agreement in order to challenge the lawfulness of a                        seeking to establish himself under the Agreement on the
   Member State’s laws and regulations regarding entry, stay                  sole basis that prior entry clearance has not been obtained,
   and establishment of natural persons, and if so on what                    is it legitimate for the competent authorities to grant such
   legal basis?                                                               a person leave to enter only if his application clearly and
                                                                              manifestly satisfies the same substantive criteria as would
                                                                              have been applied had he sought prior entry clearance?
Requirement to obtain prior permission before travelling
                                                                         (1) Europe Agreement establishing an association between the Euro-
                                                                             pean Communities and their Member States, of the one part, and
                                                                             the Czech Republic, of the other part (OJ L 360, 31.12.94, p. 2.)
                                                                         (2) UK and EC legislation — Immigration Rules.
4. If the answer to question 1 or question 3 is ‘yes’, do
   Articles 45 and/or 59 of the Agreement permit a Member
   State to require a person who wishes to travel to a Member
   State purely to establish himself as a self-employed person
   under the Agreement to apply for and obtain prior ‘entry
   clearance’ (that is, prior permission to travel to the State
   for that specific purpose)?
                                                                         Reference for a preliminary ruling by the Arrondisse-
5. If the answer to question 4 is ‘yes’:                                 mentsrechtbank ’s-Gravenhage by decision of 2 July 1999
                                                                         in the case of BASF AG v Bureau voor de Industriële
                                                                                Eigendom
   a) is a Member State entitled to make the grant of
        such prior entry clearance conditional upon satisfying
        substantive requirements relating to establishment                                         (Case C-258/99)
        such as those contained in paragraph 212 of
        HC 395 (2); and                                                                            (1999/C 265/05)
   b) may a Member State refuse admission into its territory             Reference has been made to the Court of Justice of the
        to a person seeking to establish himself as a self-              European Communities by decision of 2 July 1999 from the
        employed person under the Agreement on the sole                  Arrondissementsrechtbank ’s-Gravenhage (District Court, The
        ground that such prior entry clearance has not been              Hague), which was received at the Court Registry on 12 July
        obtained?                                                        1999, for a preliminary ruling in the case of BASF AG
                                                                         v Bureau voor de Industriële Eigendom on the following
                                                                         questions:
6. Where such a person has not been granted permission to
   enter the territory of the Member State on any other basis,           I. a. In light of the definitions laid down in Article 1.2,
   is the answer to question 5 affected (and if so how) by any                     1.3 and 1.8 of Regulation (EC) No 1610/96 (1) (‘the
   of the following factors:                                                       regulation’), must ‘product’ within the meaning of
                                                                                Article 3 of the regulation be understood as meaning
                                                                                an active substance or the combination of active
   i.   the fact that, on initial arrival at the border of the                     substances, as described in more detail in Article 1.3,
        Member State, the person did not seek admission                            as they occur naturally or by manufacture, including
        pursuant to the Agreement but on some other basis,                         any impurity inevitably resulting from the manufacturing
        which was subsequently rejected;                                           process?
   ii. the length of time which has elapsed between the                       b. Are identical products involved, for the purposes of
        applicant’s initial arrival at the border of the Member                    the regulation, in the case where, by means of a new
        State and the date of his subsequent application for                       process, a plant protection product is obtained which
        establishment as a self-employed person pursuant to                        contains a longer amount of unavoidable impurities
        the Agreement;                                                             than an existing plant protection product with the
                                                                                same active component?
   iii. the extent of any restrictions placed on the applicant                c. Does the issue of whether a new authorisation must be
        by the national authorities during that time, pursuant                     obtained for this new plant protection product have
        to powers contained in national immigration law, as                        any bearing on the answer to Question I.b. and, if so,
        to his liberty or employment/occupation;                                   how much of a bearing does it have?


C 289/20              EN                 Official Journal of the European Communities                                 13.10.2001
       Removal from the register of Case C-132/00 (1)               ruling from the Oberster Gerichtshof (Austria)): Kraft Jacobs
                                                                    Suchard Österreich GmbH v Eduard Mitsche and Others.
                       (2001/C 289/44)
                                                                    (1) OJ C 302 of 21.10.2000.
By order of 10 July 2001 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Case C-132/00: Commission of the European
Communities v Hellenic Republic.
(1) OJ C 176 of 24.6.2000.
                                                                           Removal from the register of Case C-382/00 (1)
                                                                                (2001/C 289/48)
                                                                    By order of 27 July 2001 the President of the Court of Justice
                                                                    of the European Communities has ordered the removal from
       Removal from the register of Case C-191/00 (1)               the register of Case C-382/00: (reference for a preliminary
                                                                    ruling from the Juzgado de lo Social No 1 de Pontevedra):
                                                                    Gardenia Abal Pombo v Instituto Nacional de la Seguridad
                       (2001/C 289/45)                              Social and Tesoreria General de la Seguridad Social.
By order of 8 June 2001 the President of the Court of Justice       (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-191/00: Commission of the European
Communities v Italian Republic.
(1) OJ C 211 of 22.7.2000.
                                                                           Removal from the register of Case C-397/00 (1)
                                                                                (2001/C 289/49)
                                                                    By order of 11 July 2001 the President of the Court of Justice
       Removal from the register of Case C-306/00 (1)               of the European Communities has ordered the removal from
                                                                    the register of Case C-397/00: Commission of the European
                       (2001/C 289/46)                              Communities v Hellenic Republic.
By order of 30 May 2001 the President of the Court of Justice       (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-306/00: Commission of the European
Communities v Kingdom of the Netherlands.
(1) OJ C 285 of 7.10.2000.
                                                                           Removal from the register of Case C-401/00 (1)
                                                                                (2001/C 289/50)
                                                                    By order of 13 June 2001 the President of the Court of Justice
       Removal from the register of Case C-314/00 (1)               of the European Communities has ordered the removal from
                                                                    the register of Case C-401/00: Commission of the European
                                                                    Communities v Grand Duchy of Luxembourg.
                       (2001/C 289/47)
By order of 12 June 2001 the President of the Court of Justice      (1) OJ C 355 of 9.12.2000.
of the European Communities has ordered the removal from
the register of Case C-314/00: (reference for a preliminary


title: Case T-474/09: Judgment of the General Court of 24 January 2013 — Fercal — Consultadoria e Serviços v OHIM — Jacson of Scandinavia (JACKSON SHOES) (Community trade mark — Invalidity proceedings — Community word mark JACKSON SHOES — Earlier national business name JACSON OF SCANDINAVIA AB — Relative ground for refusal — Relative ground for invalidity — Article 8(4) and Article 53(1)(c) of Regulation (EC) No 207/2009)

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/15

         Judgment of the General Court of 24 January 2013 — Fercal — Consultadoria e Serviços v OHIM — Jacson of Scandinavia (JACKSON SHOES)
   (Case T-474/09) (1)

   (Community trade mark - Invalidity proceedings - Community word mark JACKSON SHOES - Earlier national business name JACSON OF SCANDINAVIA AB - Relative ground for refusal - Relative ground for invalidity - Article 8(4) and Article 53(1)(c) of Regulation (EC) No 207/2009)
   2013/C 71/21
   Language of the case: Portuguese

      Parties

      Applicant: Fercal — Consultadoria e Serviços, Lda (Lisbon, Portugal) (represented by: A. Rodrigues, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Jacson of Scandinavia AB (Vollsjö, Sweden)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 18 August 2009 (Case R 1253/2008-2), relating to invalidity proceedings between Jacson of Scandinavia AB and Fercal — Consultadoria e Serviços, Lda.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Fercal — Consultadoria e Serviços, Lda to pay the costs.

      (1)  OJ C 63, 13.3.2010.


title: Case T-14/03: Action brought on 10 January 2003 by Colette Di Marzio against Commission of the European Communities

text:
C 83/20                   EN                          Official Journal of the European Union                                          5.4.2003
1.     Annuls the Commission’s decision of 25 November 1999                   Action brought on 10 January 2003 by Colette Di Marzio
       refusing to award an orphan’s pension to the applicant’s child;            against Commission of the European Communities
2.     Orders the Commission to pay the costs, except those incurred
       by the Council of the European Union and those incurred by
                                                                                (Case T-14/03)
       the applicant as a consequence of the Council’s intervention;
3.     Orders the Council to bear its own costs.
                                                                                (2003/C 83/47)
( 1) OJ C 335, 25 November 2000.
                                                                                (Language of the case: French)
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                  An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
                                                                              European Communities on 10 January 2003 by Colette Di
                          of 28 January 2003                                  Marzio, residing in Ginasservis (France), represented by Geor-
                                                                              ges Vandersanden and Laure Levi, lawyers.
in Case T-138/01: F v Court of Auditors of the European
                            Communities (1)
                                                                              The applicant claims that the Court should:
(Officials — Reassignment — Legitimate expectations —
             Action for annulment and compensation)
                                                                              —    annul the appointing authority’s decision to make a
                             (2003/C 83/46)                                        deduction from the applicant’s salary corresponding, for
                                                                                the months of October, November and December 2001,
                                                                                to the weighting for France and the expatriation allow-
                     (Language of the case: French)                                ance;
                                                                              —    annul the decision of an unknown date depriving the
In Case T-138/01: F, an official of the Court of Auditors of the                   applicant of the fixed allowance (the ‘secretarial allow-
European Communities, residing in Luxembourg, represented                          ance’) referred to in Article 4a of Annex VII to the Staff
by P. Goergen, lawyer, with an address for service in Luxem-                       Regulations with effect from October 2000;
bourg, against Court of Auditors of the European Communities
(Agents: J.-M. Stenier, P. Giusta and B. Schäfer) — application,
firstly, for annulment of the decision of the Court of Auditors               —    annul the decision of an unknown date depriving the
of 4 December 2000 reassigning the applicant to the trans-                         applicant of the annual travel allowance provided for in
lation service and, secondly, for compensation for the non-                        Article 8 of Annex VII to the Staff Regulations for 2001;
material damage alleged by the applicant, the Court (Second
Chamber), composed of R.M. Moura Ramos, President, and
J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator,               —    reinstate all the applicant’s pecuniary rights, which entails
for the Registrar, has given a judgment on 28 January 2003,                        payment of the weighting for France and the expatriation
in which it:                                                                       allowance for October, November and December 2001;
                                                                                payment of the fixed allowance (the ‘secretarial allow-
1.     Annuls the decision of the Court of Auditors of 4 December                  ance’) referred to in Article 4a of Annex VII to the Staff
       2000 reassigning the applicant to the translation service.                  Regulations for the period from 1 January 2001; payment
                                                                                of the annual travel allowance provided for in Article 8
                                                                                of Annex VII to the Staff Regulations for the whole of
2.     Dismisses the remainder of the application.
                                                                                2001; plus interest on all those amounts at the rate of
                                                                                5,25 % per annum until full payment is made;
3.     Orders the Court of Auditors to pay the costs, including those
       relating to the interlocutory proceedings in Case T-138/01 R.
                                                                              —    order the defendant to pay damages assessed, on an
                                                                                equitable basis, at EUR 10 000;
( 1) OJ C 259 of 15.9.2001.
                                                                              —    order the defendant to pay all the costs.
 ---pagebreak--- 5.4.2003               EN                         Official Journal of the European Union                                             C 83/21
Pleas in law and main arguments                                           —     award EUR 1 000 by way of damages as compensation
                                                                                for non-material damage, that amount being fixed ex
                                                                                aequo et bono;
The applicant is an official of the Commission. She was
assigned to Cadarache and then reassigned to Brussels. The
applicant challenged the decision to reassign her in Case                 —     order the defendant to pay the costs.
T-355/01, which resulted in a settlement being reached with
the Commission and in the applicant’s being seconded to
Cadarache. However, the Commission took the view that the
applicant had received the weighting for France and the                   Pleas in law and main arguments
expatriation allowance without being entitled to do so. The
applicant was also deprived of the ‘secretarial allowance’ and
of the fixed allowance for travelling expenses.                           By his action the applicant, an official of the Commission,
                                                                          challenges the validity of his staff report for the period 1995-
In support of her action, the applicant claims that there has             1997 and claims damages for the faults allegedly committed
been an infringement of Articles 59 and 64 of the Staff                   by the Commission in preparing that report.
Regulations and Article 4 of Annex VII to the Staff Regulations
and an infringement of Article 71 of the Staff Regulations and
Articles 5 to 10 of Annex VII to the Staff Regulations. The               He claims that the report infringes Article 43 of the Staff
applicant also claims that there has been a breach of the                 Regulations and the provisions of the Guide to Staff Reports.
obligation to state reasons and an infringement of the principle          Thus, notwithstanding the opinion of the Joint Committee
of non-discrimination.                                                    on Staff Reports pointing out significant procedural and
                                                                          substantive irregularities, the appeal assessor did not find it
In the alternative, as regards the weighting for France and the           necessary to correct them. In addition, that the report was
expatriation allowance, the applicant claims that there has               completed after an unreasonable period of time was the
been an infringement of Article 85 of the Staff Regulations.              Commission’s fault alone. Similarly, the assessors systemati-
The applicant also claims that there has been an infringement             cally refused to hold a prior interview with the applicant as
of Article 4a of Annex VII to the Staff Regulations, an                   provided for by the Guide to Staff Reports. Furthermore, the
infringement of the general principle that an institution must            quite irregular drafting of the report reflected a more general
comply with the rules which it itself has made and a breach of            ‘mobbing’ attitude from which the applicant had suffered for
the obligation to state reasons as regards the secretarial                some years.
allowance.
                                                                          The applicant claims that the very negative assessments in his
Last, the applicant claims that there has been an infringement            report are clearly unfounded and that the Commission has
of the general principle of sound management and good                     failed in its duty to have regard for the interests of officials and
administration and a breach of the duty to have regard for the            has failed to observe the principle of sound administration.
welfare of officials.
Action brought on 13 January 2003 by Albano Ferrer de
Moncada against Commission of the European Communi-
                                ties                                      Action brought on 22 January 2003 by Spyridoula Kon-
                                                                          stantopoulou against Court of Justice of the European
                                                                                Communities
                         (Case T-16/03)
                         (2003/C 83/48)                                                             (Case T-19/03)
                   (Language of the case: French)
                                                                                (2003/C 83/49)
An action against Commission of the European Communities                                      (Language of the case: French)
was brought before the Court of First Instance of the European
Communities on 13 January 2003 by Albano Ferrer de
Moncada, residing in Luxembourg, represented by Georges
Vandersanden, Laure Levi and Aurore Finchelstein, lawyers.                An action against the Court of Justice of the European
                                                                          Communities was brought before the Court of Justice of the
The applicant claims that the Court should:                               European Communities on 22 January 2003 by Spyridoula
                                                                          Konstantopoulou, residing in Ioannina (Greece), represented
—     annul his staff report for the reference period 1995-1997;          by Eric Boigelot, lawyer.


title: Case T-296/06: Action brought on 19 October 2006 — Dongguan Nanzha Leco Stationery v Council

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/25

         Action brought on 19 October 2006 — Dongguan Nanzha Leco Stationery v Council
   (Case T-296/06)
   (2006/C 310/47)
   Language of the case: English
   Parties

      Applicant: Dongguan Nanzha Leco Stationery Mfg. Co., Ltd (Dongguan City, China) (represented by: A. P. Bentley, QC)

      Defendant: Council of the European Union
   Form of order sought

               —

               Annul Council Regulation (EC) No 1136/2006 in so far as it applies to the applicant; and

               —

               order the Council to bear the costs of the present proceedings.

         Pleas in law and main arguments
   The applicant, who is a Chinese producer of lever arch mechanisms, seeks the annulment of Council Regulation (EC) No 1136/2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of lever arch mechanisms originating in the People's Republic of China (1), in so far as the regulation affects the applicant.
   In support of its application, the applicant invokes an infringement of Article 2(10) of the Basic Regulation (2) in that the Community institutions determined the applicant's export price at a level ex factory in China which did not include sales, general and administrative expenses, whereas the normal value did include such expenses.
   The applicant further invokes an infringement of the principles of good administration and diligent investigation in that the Community institutions failed to verify data relating to the sales, general and administrative expenses of the sales company through which the applicant sells its products in order to determine whether the applicant's export price should be determined at the price level of this sales company instead of at the price level of the applicant's factory in China.
   Finally, the applicant invokes an infringement of Article 2(7) of the Basic Regulation and the principles of good administration and objectivity in that the Community institutions changed their methodology for determining the normal value without any apparent objective justification.

      (1)  OJ 2006 L 205, p. 1.

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).


title: Case T-60/15: Action brought on 6 February 2015 — Laboratorios Ern v OHIM — Dermogen Farma (ETERN JUVENTUS)

text:
               30.3.2015

               EN

               Official Journal of the European Union

               C 107/35

      Action brought on 6 February 2015 — Laboratorios Ern v OHIM — Dermogen Farma (ETERN JUVENTUS)
      (Case T-60/15)
      (2015/C 107/46)
      Language in which the application was lodged: Spanish

         Parties

         Applicant: Laboratorios Ern, SA (Barcelona, Spain) (represented by: T. González Martínez, lawyer)

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

         Other party to the proceedings before the Board of Appeal: Dermogen Farma, SA (Madrid, Spain)

         Details of the proceedings before OHIM

         Applicant: Other party to the proceedings before the Board of Appeal

         Trade mark at issue: Community word mark ‘ETERN JUVENTUS’ — Application for registration No 10 862 548

         Procedure before OHIM: Opposition proceedings

         Contested decision: Decision of the First Board of Appeal of OHIM of 6 November 2014 in Case R 2414/2013-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decision of the First Board of Appeal of OHIM of 6 November 2014 in Case R 2414/2013-1 in relation to the partial granting of the trade mark application for the following services: Class 35 ‘Retailing, wholesaling and sale via global computer networks of dentifrices; sole agencies and business representation relating to dentifrices’;

                  —

                  refuse Community trade mark application No 10 862 548 ‘ETERN JUVENTUS’ for ‘Retailing, wholesaling and sale via global computer networks of dentifrices; sole agencies and business representation relating to dentifrices’ in Class 35; and

                  —

                  order OHIM, and if applicable, the other party to the proceedings before the Board of Appeal, to pay the costs.

         Plea in law

                  —

                  Infringement of Article 8(1)(b) of Regulation No 207/2009.