title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 14 May 1998 in Case T-352/94: Mo och Domsjö AB v. Commission of the European Communities (Competition - Article 85(1) of the EC Treaty - Liability for unlawful conduct - Relevant product market - Information exchange - Order - Fine - Determination of the amount - Statement of reasons - Mitigating circumstances)

text:
4.7.98                EN                Official Journal of the European Communities                                 C 209/37
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 14 May 1998                                                   of 14 May 1998
in Case T-352/94: Mo och Domsjö AB v. Commission of                in Case T-165/95: Arnaldo Lucaccioni v. Commission of
                the European Communities (1)                                      the European Communities (1)
(Competition Ð Article 85(1) of the EC Treaty Ð                    (Officials Ð Action for damages Ð Occupational disease
Liability for unlawful conduct Ð Relevant product market           Ð Damage Ð Taking into account benefits received under
Ð Information exchange Ð Order Ð Fine Ð                            Article 73 of the Staff Regulations Ð Duration of the
Determination of the amount Ð Statement of reasons Ð               procedure for recognising an occupational disease Ð
                   Mitigating circumstances)                                                   Fault)
                         (98/C 209/77)
                                                                                (98/C 209/78)
               (Language of the case: English)
                                                                                (Language of the case: French)
In Case T-352/94: Mo och Domsjö AB, established at
Örnsköldsvik, Sweden, represented by Antony Woodgate,
Martin Smith and Vincent Smith, Solicitors, London, with           In Case T-165/95: Arnaldo Lucaccioni, a former official of
an address for service in Luxembourg at the Chambers of            the Commission of the European Communities, residing in
Arendt & Medernach, 8Ð10 Rue Mathias Hardt v.                      Paris, represented by Georges Vandersanden, Laure Levi
Commission of the European Communities (Agents:                    and Olivier Eben, of the Brussels Bar, with an address for
Richard Lyal and Rosemary Caudwell) Ð application for              service in Luxembourg at the office of Fiduciaire Myson
annulment of Commission Decision 94/601/EC of 13 July              SARL, 30 Rue de Cessange, v. Commission of the
1994 relating to a proceeding under Article 85 of the EC           European Communities (Agents: Julian Currall and Jean-
Treaty (IV/C/33.833 Ð Cartonboard, OJ L 243 of                     Luc Fagnart) Ð application for compensation for the
19.9.1994, p. 1) Ð the Court (Third Chamber, Extended              material and non-material damage allegedly suffered by
Composition), composed of B. Vesterdorf, President of the          the applicant as a result of the disease affecting him and
Chamber, C. P. BrieÈt, P. Lindh, A. Potocki and J. D.              for the award of compensatory interest on the capital sum
Cooke, Judges; J. Palacio GonzaÂlez, Administrator, for the        paid under Article 73 of the Staff Regulations of officials
Registrar, has given a judgment on 14 May 1998 in which            of the European Communities Ð the Court of First
it:                                                                Instance    (Second      Chamber),    composed     of:  A.
                                                                   Kalogeropoulos, President, and C. W. Bellamy and J.
1. Annuls, as regards the applicant, the first to fourth           Pirrung, Judges; A. Mair, Administrator, for the Registrar,
    paragraphs of Article 2 of Commission Decision 94/             has given a judgment on 14 May 1998, in which it:
    601/EC of 13 July 1994 relating to a proceeding under
    Article 85 of the EC Treaty (IV/C/33.833 Ð
                                                                   1. Dismisses the action.
    Cartonboard) save and except for the following
    passages:
                                                                   2. Orders the parties to bear their own costs.
    The undertakings named in Article 1 shall forthwith
    bring the said infringement to an end, if they have not
                                                                   (1) OJ C 268, 14.10.1995.
    already done so. They shall henceforth refrain in
    relation to their cartonboard activities from any
    agreement or concerted practice which may have the
    same or a similar object or effect, including any
    exchange of commercial information:
    (a) by which the participants are directly or
                                                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
          indirectly informed of the production, sales, order
          backlog, machine utilisation rates, selling prices,                            of 28 May 1998
          costs or marketing plans of other individual
                                                                   in Joined Cases T-78/96 and T-170/96: W v. Commission
          producers.
                                                                                of the European Communities (1)
    Any scheme for the exchange of general information             (Officials Ð Actions for annulment and for compensation
    to which they subscribe, such as the Fides system or its       Ð Admissibility Ð Reassignment Ð Interests of the
    successor, shall be so conducted as to exclude any             service Ð Duty to have regard for the welfare of officials
    information from which the behaviour of individual             Ð Misuse of power Ð Statement of reasons Ð Liability
    producers can be identified'.                                                     Ð Administrative fault)
2. Dismisses the application as regards the remaining                                      (98/C 209/79)
    claims.
                                                                                (Language of the case: French)
3. Orders the applicant to pay the costs.
(1) OJ C 392, 31.12.1994.                                          In Joined Cases T-78/96 and T-170/96: W, an official of
                                                                   the Commission of the European Communities, residing in
                                                                   Luxembourg, represented by Georges Vandersanden and


title: Case T-437/10: Action brought on 22 September 2010 — Gap SA granen & producten v Commission

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/43

         Action brought on 22 September 2010 — Gap SA granen & producten v Commission
   (Case T-437/10)
   ()
   2010/C 317/76
   Language of the case: Dutch

      Parties

      Applicant: Gap SA granen & producten NV (Zoersel, Belgium) (represented by: C. Ronse and A. Hansebout, lawyers)

      Defendant: European Union, represented by the European Commission

      Form of order sought

   The applicant requests the General Court to declare that the European Union has incurred non-contractual liability and order it to pay compensation in respect of the harm which the applicant has suffered, more specifically, to pay it the sum of EUR 295 690,43, increased by Belgian statutory interest from the respective dates on which the applicant paid the disputed import duties, and also to order the European Union to pay a provisional sum of EUR 30 000, plus Belgian statutory interest, in respect of the further harm which the applicant has suffered.

      Pleas in law and main arguments

   The applicant is seeking compensation for the harm which it claims to have suffered by reason of the fact that the European Commission, when setting import duties on durum wheat, specifically in the context of Commission Regulation (EC) No 919/2009 of 1 October 2009 amending Regulation (EC) No 915/2009 fixing the import duties in the cereals sector applicable from 1 October 2009 (OJ 2009 L 259, p. 5), acted unlawfully and applied incorrect market prices and freight costs.
   In support of its claim for compensation, the applicant submits that the Commission breached Article 4 of Regulation No 1249/96 (1) and the general duty of care by taking into account incorrect prices and freight costs for the purpose of imposing and calculating the import duties.
   In the applicant’s view, the breach of Article 4 of Regulation No 1249/96 is sufficiently serious because the Commission did not have any discretionary power when it adopted Regulation No 919/2009. Moreover, it argues, the Commission’s breach of the duty of care is in itself a sufficiently serious breach.
   The applicant concludes by submitting that the harm which it suffered was attributable to an improperly imposed and wrongly calculated duty, the precise amount of which the applicant proves. In addition, the applicant claims also to have suffered harm by reason of the time which it has had to devote to the present case and the lawyers’ fees which it has been obliged to incur.

      (1)  Commission Regulation (EC) No 1249/96 of 28 June 1996 on rules of application (cereal sector import duties) for Council Regulation (EEC) No 1766/92 (OJ 1996 L 161, p. 125).


title: Case T-9/09 P: Appeal brought on 15 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 4 November 2008 in Case F-133/06 Marcuccio v Commission

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/46

         Appeal brought on 15 January 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal delivered on 4 November 2008 in Case F-133/06 Marcuccio v Commission
   (Case T-9/09 P)
   (2009/C 55/83)
   Language of the case: Italian
   Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought by the appellant

               —

               In every case

                           (A.1)

                           set aside in its entirety and without exception the order under appeal;

                           (A.2)

                           declare the action at first instance to be admissible in full.

               —

               As a primary remedy:

                           (B.1)

                           uphold in their entirety and without exception the appellant's pleas in law set out in the application at first instance;

                           (B.2)

                           order the respondent to pay the appellant's costs relating to this appeal and to the proceedings at first instance;

               —

               or, in the alternative:

                           (B.3)

                           refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

         Pleas in law and main arguments
   This appeal is directed against the order of the Civil Service Tribunal of 4 November 2008 in Case F-133/06 Marcuccio v Commission.
   In support of the forms of order sought by him, the appellant raises the following pleas in law:

               (a)

               complete failure to carry out preliminary investigations and failure to rule on a fundamental aspect of the dispute, in so far as the order under appeal fails to adjudicate on the application for a declaration that there is no legal basis for the decision contested before the Civil Service Tribunal.

               (b)

               complete failure to state adequate reasons in the order under appeal as regards the inadmissibility of the requests that ‘the Commission be ordered to return his personal property to the applicant’, ‘that the contested decision be annulled’ and of ‘the application for damages’, as regards the order that the appellant should pay the costs, and distortion and misrepresentation of the facts, complete failure to carry out any preliminary investigations, confusion and irrationality, and also the erroneous and incorrect interpretation and application of the Community legislation and case-law.

               (c)

               a procedural error, in that no account was taken of the requirement not to have regard to the arguments contained in the defence in so far as made out of time by the respondent, in a manner which was prejudicial to the interests of the appellant.

               (d)

               infringement of the rules relating to a fair hearing.


title: Case C-374/08: Order of the President of the Court of 8 April 2009 — Commission of the European Communities v Republic of Hungary

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/8

         Order of the President of the Court of 8 April 2009 — Commission of the European Communities v Republic of Hungary
   (Case C-374/08) (1)

   2009/C 167/16

      Language of the case: Hungarian

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

      (1)  OJ C 260, 11.10.2008.


title: Case F-75/10: Order of the Civil Service Tribunal (Third Chamber) of 27 June 2011 — Scheefer v Parliament (Staff case — Temporary staff — Renewal of a fixed-term contract — No need to adjudicate)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/53

         Order of the Civil Service Tribunal (Third Chamber) of 27 June 2011 — Scheefer v Parliament
   (Case F-75/10) (1)

   (Staff case - Temporary staff - Renewal of a fixed-term contract - No need to adjudicate)
   2011/C 252/115
   Language of the case: French

      Parties

      Applicant: Séverine Scheefer (Luxembourg, Luxembourg) (represented by: C. L’Hote-Tissier, R. Adam and P. Ketter, lawyers)

      Defendant: European Parliament (represented by: R. Ignătescu and S. Alves, agents)

      Re:

   Application for annulment of the defendant’s decisions refusing to issue a reasoned decision in relation to the applicant’s legal status and in particular refusing to reclassify the applicant’s temporary staff contract as engagement for an indefinite period in accordance with the first paragraph of Article 8 of the CEOS and for compensation for damage suffered by the applicant.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on Case F-75/10 Scheefer v Parliament;

               2.

               The European Parliament shall bear its own costs and pay those of Ms Scheefer.

      (1)  OJ 2010 C 301, p. 64


title: Case C-64/00: Reference for a preliminary ruling made by the Court of Session, Scotland, by request of that Court of 18 February 2000, in the case of Hydro Seafood GSP Ltd against the Scottish Ministers

text:
29.4.2000                 EN                     Official Journal of the European Communities                                       C 122/15
Is the answer to the question referred different if the non-na-             Reference for a preliminary ruling made by the Court of
tional spouse indirectly assists the national of a Member State             Session, Scotland, by request of that Court of 18 February
in carrying on the provision of services in other Member States             2000, in the case of Hydro Seafood GSP Ltd against the
by carrying out childcare?                                                                          Scottish Ministers
                                                                                (Case C-64/00)
(1) of 21 May 1973 on the abolition of restrictions on move and
    residence within the Community for nationals of Member States                                    (2000/C 122/27)
    with regard to establishment and the provision of services, OJ
    L 172, 28.06.1973. p. 14.
                                                                            Reference has been made to the Court of Justice of the
                                                                            European communities by a request of the Court of Session,
                                                                            Scotland, of 18 February 2000, which was received at the
                                                                            Court Registry on 28 February 2000, for a preliminary ruling
                                                                            in the case of Hydro Seafood GSP Ltd against the Scottish
                                                                            Ministers, on the following questions:
                                                                            1. Where, in implement of an obligation under Directive
                                                                                93/53/EEC (1) to provide control measures for an outbreak
                                                                                of a List 1 disease a Member State adopts a domestic
                                                                                measure the application of which results in the destruction
                                                                                and slaughter of fish, are the principles of Community
Reference for a preliminary ruling by the Court of Appeal                        law relating to the protection of fundamental rights in
(England & Wales), by order of that court of 14 December                         particular the right of property, to be interpreted as having
1999, in the case of Marks & Spencer plc against the                             placed on a Member State the obligation to adopt measures
              Commissioners of Customs & Excise                                  providing for the payment of compensation.
                                                                                (a) to an owner of fish which are destroyed; and
                             (Case C-62/00)
                                                                                (b) to an owner of fish which are required to be slaughtered
                                                                                immediately, thereby necessitating the immediate sale
                            (2000/C 122/26)                                          of those fish by that owner?
                                                                            2. If the Member State is required to adopt such measures,
Reference has been made to the Court of Justice of the                           what are the criteria of interpretation needed by a national
European Communities by an order of the Court of Appeal                          court to determine whether the measures that are adopted
(England & Wales), of 14 December 1999, which was received                       are compatible with the fundamental rights, in particular
at the Court Registry on 28 February 2000, for a preliminary                     the right to property, which the Court ensures and which
ruling in the case of Marks & Spencer plc against the                            derive in particular from the European Convention on
Commissioners of Customs & Excise on the following question:                     Human Rights?
                                                                            3. In particular, do the criteria require that the measures
In the circumstances in which a member State has failed to                       differentiate between the situation where the outbreak of
implement properly in its domestic legislation Article 11. A of                  the disease was due to the fault of the owner of the fish
Council Directive 77/388 (1), is it compatible with the principle                concerned and the situation where the owner was not at
of the effectiveness of the rights that a taxable person derives                 fault?
from Article 11.A, or with the principle of the protection of
legitimate expectations, to enforce legislation which removes               4. Is Directive 93/53/EEC invalid as being in breach of the
with retrospective effect a right under national law to reclaim                  fundamental right of property in not making provision for
sums paid, by way of VAT, more than three years before the                       the payment of compensation to (a) an owner of fish
claim is made?                                                                   which are destroyed and (b) to an owner of fish which are
                                                                                required to be slaughtered immediately, thereby necessitat-
                                                                                ing the immediate sale of those fish by that owner
                                                                                in circumstances where an outbreak of ISA has been
(1) of 17 May 1977 on the harmonization of the laws of the Member                confirmed?
    States relating to turnover taxes — Common system of value
    added tax: uniform basis of assessment, OJ L 145, 13.06.1977,
    p. 1, rectificatif OJ L 149, 17.06.1977, p. 26.                         (1) Council Directive 93/53/EEC, of 24 June 1993, introducing
                                                                                minimum Community measures for the control of certain fish
                                                                                diseases OJ L 175, 19.07.1993, p. 23.


title: Action brought on 6 October 1997 by Broome & Wellington Ltd against the Commission of the European Communities (Case T-267/97)

text:
6 . 12 . 97           EN                       Official Journal of the European Communities                                    C 370/9
which the Commission rejected. An action against that                     In support of its application for the annulment of that
decision was brought by the applicant before the Court of                 decision, VTM raised five pleas in law.
First Instance ('). In the present case the applicant seeks
compensation for the damage occasioned to him by the                      1 . Breach of its right of defence .
unlawful failure of the Commission to exercise the powers
of surveillance and control conferred on it by the Treaty in              2 . Breach of the principle of the protection of legitimate
accordance with the prescribed legal framework to protect                     expectations, the principle of legal certainty and the
his legitimate interests by the adoption of interim                           duty of care :
measures .
                                                                              in Case C-211/91 ( judgment of 16 December 1992 )
(') Case T-235/95 , OJ C 64, 2 . 3 . 1996 , p. 19 .                           the Commission did not consider that the exclusive
                                                                              right relating to commercial television constituted an
                                                                              infringement of Article 52 of the EC Treaty. When the
                                                                              Commission has examined the compatibility with the
                                                                              Treaty of a provision of national law under Article 169
                                                                              of the EC Treaty, it may not subsequently find a part
Action brought on 3 October 1997 by the Vlaamse                               of that provision to be incompatible with the Treaty in
Televisie Maatschappij NV against Commission of the                           the context of proceedings under Article 90 ( 3 ).
                    European Communities
                        ( Case T-266/97)                                  3 . Breach of the obligation to state reasons under
                          ( 97/C 370/20 )                                     Article 190 of the EC Treaty:
                (Language of the case: Dutch)                                 since this is the first time that the Commission has
                                                                              held an exclusive right to be incompatible with
An action against the Commission of the European                              Article 90 ( 1 ), read in conjunction with Article 52 of
Communities was brought before the Court of First                             the EC Treaty, the requirement to state the reasons on
Instance of the European Communities on 3 October 1997                        which that decision was based was even greater, VTM
by Vlaamse Televisie Maatschappij NV ( Flemish                                maintains .
Television Company), represented by F. Herbert and D.
Arts, of the Brussels Bar, with an address for service in                 4 . In the alternative, infringement of Article 90 ( 1 ), read
Luxembourg at the Chambers of C. Zeyen, of the                                in conjunction with Article 52 of the EC Treaty:
Luxembourg Bar, 56—58 Rue Charles Martel ,
Luxembourg-Merl .                                                             VTM challenges the Commission's view that Flemish
                                                                              cultural policy, which is based on preservation of
The applicant claims that the Court should :                                  pluralism in the Flemish press, does not justify VTM's
                                                                              exclusive right in respect of commercial television in
1 . annul the Commission Decision of 26 June 1997                             Flanders .
     pursuant to Article 90 ( 3 ) of the EC Treaty on the
     exclusive right to broadcast television advertising in               5 . Missuse of powers:
     Flanders;
                                                                              this  is the     fifth time     that the Commission has
2 . order the Commission to pay the costs .                                   challenged the Flemish media legislation . According to
                                                                              VTM, the Commission's persistence is the result of
Pleas in law and main arguments adduced in support:                           political pressure at both national and European level .
The action by VTM must be considered in the context of
the statutory provisions adopted by the Vlaamse
Gemeenschap ( Flemish Community ) which, as a
transitional measure pending the liberalization of the
audiovisual market, grant the exclusive right to operate                  Action brought on 6 October 1997 by Broome &
commercial television in Flanders to one private                          Wellington Ltd against the Commission of the European
broadcasting corporation, which may only broadcast                                                     Communities
advertising with the authorization of the Flemish                                                   ( Case T-267/97 )
Government . In 1987 VTM was authorized to broadcast
advertising for a period of 18 years.                                                                 ( 97/C 370/21 )
In 1994 VT4, a company incorporated under English law                                     (Language of the case: English)
but with its origins in Flanders, submitted a complaint to
the Commission concerning VTM 's exclusive right to                       An action against the Commission of the European
operate commercial television in Flanders.                                Communities was brought before the Court of First
                                                                          Instance of the European Communities on 6 October 1997
According to Commission Decision 97/606/EC of 26 June                     by Broome & Wellington Ltd, represented by Fiona M.
 1997 ( OJ L 244 , 6 . 9 . 1997, p. 18 ) that exclusive right is           Carlin and James H. Searles, with an address for service in
contrary to Article 90 ( 1 ) of the EC Treaty, read in                    Luxembourg at the office of Arendt & Medernach, 8—10
conjunction with Article 52 of the EC Treaty.                             rue Mathias Hardt .
 ---pagebreak--- C 370/ 10              EN                 Official Journal of the European Communities                                  6 . 12 . 97
The applicant claims that the Court should:                              if a determination has been made that the complaint is
                                                                         supported by a number of Community producers
                                                                         properly constituting the 'Community industry'. The
— declare the Commission decision to initiate the Third                  term ' Community industry' is defined in the Basic
    Investigation of certain cotton fabrics originating in               Regulation by reference to EU producers of the like
    China, Egypt, India, Indonesia, Pakistan and Turkey                  product. As the Commission has previously taken the
    illegal and void,                                                    position that unbleached cotton fabrics are like
                                                                         products to bleached, printed and dyed fabrics, the
                                                                         Commission's initiation of the current investigation
— take such other steps as justice may require, and                      having regard only to the position of EU producers of
                                                                         unbleached cotton fabrics suggests that it improperly
                                                                         assessed the support for or opposition to the
— order the Commission to pay the costs of the applicant                 Eurocoton complaint under the Basic Regulation.
    in the present proceedings .
                                                                     — infringed Article 190 of the EC Treaty, by totally
Pleas in law and main arguments adduced in support:                      failing to explain in the Notice or in any other context
                                                                         the relevant factual circumstances upon which its
                                                                         decision to initiate the proceeding was based, in
The applicant, the European Community's largest                          particular concerning the decision of the Council in
importer, stockist and distributor of unbleached cotton                  May 1997 to terminate the second cotton fabric
fabrics, challenges the Commission decision to initiate
                                                                         investigation concerning the same countries and the
anti-dumping proceedings concerning imports into the
                                                                         same products without imposition of any protective
Community of unbleached cotton fabrics originating in
                                                                         measures. By failing to give this explanation while, at
the People's Republic of China , Egypt, India , Indonesia ,              the same time, requiring in the Notice that interested
Pakistan and Turkey. The applicant claims that this
                                                                         parties make themselves known without delay and
decision was first and foremost a political decision taken
                                                                         provide the Commission with relevant information
under pressure, particularly from France .
                                                                         within quite short time-limits, the Commission has
                                                                         precluded such parties from fully and effectively
The applicant submits that the Commission has:                           commenting and providing relevant evidence on the
                                                                         actual situation .
— misused its powers by exerting its responsibilities
    under the EC Treaty with regard to application of
     Community measures to protect trade with the
     intention primarily of supporting purely political
     interests   in   one  of the   Member     States  and   of
    circumventing a definitive decision taken by the                 Action brought on 14 October 1997 by EPAC, Empresa
     Council only days earlier that imposition of protective         para a Agro-Alimenta^ao e Cereais, SA, against the
     anti-dumping measures on the same products imported                      Commission of the European Communities
     from the same five countries was not justified under                                   ( Case T-270/97 )
     the terms of the Basic Regulation; the same
     Commission act is also contrary to the general                                           ( 97/C 370/22 )
     principle of Community law non bis in idem and to
     the requirements of proper administration;                                    (Language of the case: Portuguese)
— abused its discretion under the provisions of the
                                                                     An action against the Commission of the European
     Community's Basic Regulation relating to the                    Communities was brought before the Court of First
     initiation of anti-dumping investigations, in particular        Instance of the European Communities on 14 October
     Article 5 ( 3 ), by not taking into account the fact that        1997 by EPAC, Empresa para a Agro-Alimentagao
     the complaint of Eurocoton ( Committee of the Cotton            Cereais, SA, whose registered office is at Avenida Almi
     and Allied Textile industries of the EC ) which
                                                                     rante Gago Coutinho, No 26, Lisbon, represented by Joao
     specifically raised the issue of Community interest and         Mota de Campos, of the Lisbon Bar, with an address for
     treated this issue in detail did not introduce any new
                                                                     service in Luxembourg at the Chambers of Joaquim Calvo
     evidence such as could give rise to a reasonable belief         Basaran , 34 Boulevard Ernest Feltgen, 1515 Luxembourg .
     that a new investigation would lead to a different
     conclusion by the Council, and particularly with
     respect to the critically important Community interest          The applicant claims that the Court should :
     criterion ;
                                                                     — uphold the application and accordingly declare null
 — infringed essential procedural requirements, in                        and void Decision C(97 ) 2130 final of 9 July 1997,
     particular those laid down in Article 5 (4 ) of the Basic
     Regulation which provides that an anti-dumping
     investigation can be initiated by the Commission only            — order the Commission to pay the costs .


title: Case C-454/11: Judgment of the Court (Third Chamber) of 7 February 2013 (request for a preliminary ruling from the Augstākās Tiesas Senāts — Latvia) — Gunārs Pusts v Lauku atbalsta dienests (Agriculture — EAGGF — Regulations (EC) No 1257/1999 and No 817/2004 — Support for rural development — Recovery of undue payments — National rules making the grant of agri-environmental aid subject to an annual application accompanied by specific documents — Beneficiary who has complied with his obligations regarding use of the area concerned but who has not submitted an application in accordance with those rules — Withdrawal of the aid, without consulting the beneficiary, in the event of failure by the latter to comply with the provisions applicable to the submission of an application for agri-environmental aid)

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/3

         Judgment of the Court (Third Chamber) of 7 February 2013 (request for a preliminary ruling from the Augstākās Tiesas Senāts — Latvia) — Gunārs Pusts v Lauku atbalsta dienests
   (Case C-454/11) (1)

   (Agriculture - EAGGF - Regulations (EC) No 1257/1999 and No 817/2004 - Support for rural development - Recovery of undue payments - National rules making the grant of agri-environmental aid subject to an annual application accompanied by specific documents - Beneficiary who has complied with his obligations regarding use of the area concerned but who has not submitted an application in accordance with those rules - Withdrawal of the aid, without consulting the beneficiary, in the event of failure by the latter to comply with the provisions applicable to the submission of an application for agri-environmental aid)
   2013/C 108/04
   Language of the case: Latvian

      Referring court

   Augstākās Tiesas Senāts

      Parties to the main proceedings

      Appellant: Gunārs Pusts

      Respondent: Lauku atbalsta dienests

      Re:

   Request for a preliminary ruling — Augstākās tiesas Senāts — Interpretation of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80) and of Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 (OJ 2004 L 153, p. 30) — Agri-environmental aid and area aid — Recovery of undue payments — National rule making the grant of area aid subject to an annual application accompanied by specific documents — Beneficiary who has fulfilled his obligations regarding use of the area concerned but has submitted incomplete applications — Withdrawal of aid, without consulting the beneficiary, in the event of failure by the latter to observe provisions applicable to the submission of an application

      Operative part of the judgment

   Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain regulations, as amended by Council Regulation (EC) No 1783/2003 of 29 September 2003, Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999, and Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers must be interpreted as not precluding national rules according to which the beneficiary of aid granted in return for his agri-environmental commitments covering several years is required to repay all of the aid already received in respect of previous years on the ground that he did not submit an annual application in accordance with the applicable national provisions, where that beneficiary claims that he continued to fulfil his obligations regarding the use of the areas concerned, he was not given the opportunity to be heard by the competent authority, but it is no longer possible to carry out an on-the-spot check of the areas concerned because the year at issue has elapsed.

      (1)  OJ C 331, 12.11.2011.


title: Case T-160/07: Action brought on 7 May 2007 — Lancôme Parfums et Beauté & Cie v OHIM

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/43

         Action brought on 7 May 2007 — Lancôme Parfums et Beauté & Cie v OHIM
   (Case T-160/07)
   (2007/C 140/71)
   Language in which the application was lodged: French
   Parties

      Applicant: Lancôme Parfums et Beauté & Cie (Paris, France) (represented by: E. Baud, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: CMS Hasche Sigle (Cologne, Germany)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of OHIM delivered on 26 February 2007 in Case R231/2006-2;

               —

               Order the defendant and, if necessary, the intervener, to pay the costs.

         Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: COLOR EDITION for goods in Class 3 — Community trade mark No 2 965 804

      Proprietor of the Community trade mark: the applicant

      Applicant for the declaration of invalidity: CMS Hasche Sigle

      Decision of the Cancellation Division: dismissal of the application for the declaration of invalidity.

      Decision of the Board of Appeal: annulment of the decision of the Cancellation Division.

      Pleas in law: infringement of Article 55(1)(a) of Council Regulation No 40/94 (1) in that the Board of Appeal held that CMS Hasche Sigle was entitled to bring an application for a declaration of invalidity and infringement of Article 7(1)(c) of that regulation in that the contested decision held that the disputed mark COLOR EDITION was descriptive.

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


title: Case T-388/04: Action brought on 28 September 2004 by Habib Kachakil Amar against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/29

         Action brought on 28 September 2004 by Habib Kachakil Amar against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-388/04)
   (2004/C 284/56)
   Language in which the application was submitted: Spanish
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 28 September 2004 by Habib Kachakil Amar, represented by Juan Carlos Heder, lawyer.
   The applicant claims that the Court should:

               —

               Annul the contested decision of the OHIM First Board of Appeal of 20 July 2004 in Case R 175/2004-1, and

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments:

               Community trade mark sought:

               Figurative mark consisting of a thick black longitudinal line ending in a triangle B application No 3 235 157 for products in Class 25 (Clothing, footwear, headgear, in particular sports footwear)

               Examiner's decision:

               Application rejected as falling within the absolute grounds of refusal provided for in Article 7(1)(b) of Regulation No 40/94 on the Community trade mark.

               Decision of the Board of Appeal:

               Application dismissed.

               Pleas in law:

               Misapplication of the abovementioned regulation and breach of the rights of the defence and of the principle of the protection of legitimate expectations


title: Case C-322/05 P: Order of the Court (Sixth Chamber) of  9 February 2006  — Hippocrate Vounakis v Commission of the European Communities (Appeal — Officials — Promotion — Article 90(2) of the Staff Regulations — Complaint — Time-limits — Appeal manifestly unfounded)

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/4

         Order of the Court (Sixth Chamber) of 9 February 2006 — Hippocrate Vounakis v Commission of the European Communities
   (Case C-322/05 P) (1)

   (Appeal - Officials - Promotion - Article 90(2) of the Staff Regulations - Complaint - Time-limits - Appeal manifestly unfounded)
   (2006/C 154/08)
   Language of the case: French
   Parties

      Appellant: Hippocrate Vounakis (represented by: S. Orlandi, avocat)

      Other party to the proceedings: Commission of the European Communities (represented by: G. Berscheid and C. Berardis-Keyser, Agents)
   Re:
   Appeal against the order of the Court of First Instance (Third Chamber) of 2 June 2005 in Case T-326/03 Vounakis v Commission rejecting, as inadmissible, an application to annul the decision of the Commission not to promote the appellant to grade A4 in the 2002 promotion exercise
   Operative part of the order

               1.

               The appeal is dismissed;

               2.

               Mr Vounakis is ordered to pay the costs.

      (1)  OJ C 257 of 15.10.2005.


title: Case C-162/09: Judgment of the Court (Third Chamber) of 7 October 2010 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom)) — Secretary of State for Work and Pensions v Taous Lassal (Reference for preliminary ruling — Freedom of movement for persons — Directive 2004/38/EC — Article 16 — Right of permanent residence — Temporal application — Periods completed before the date of transposition)

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/5

         Judgment of the Court (Third Chamber) of 7 October 2010 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division) (United Kingdom)) — Secretary of State for Work and Pensions v Taous Lassal
   (Case C-162/09) (1)

   (Reference for preliminary ruling - Freedom of movement for persons - Directive 2004/38/EC - Article 16 - Right of permanent residence - Temporal application - Periods completed before the date of transposition)
   2010/C 328/08
   Language of the case: English

      Referring court

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

      Parties to the main proceedings

      Applicant: Secretary of State for Work and Pensions

      Defendant: Taous Lassal

      In the presence of: The Child Poverty Action Group

      Re:

   Interpretation of Article 16(1) of Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) — Citizen of the Union who resided lawfully in the United Kingdom for five years prior to 30 April 2006, the last date for transposition of the directive, and then left the territory for a period of 10 months — Taking into account of the period ending prior to 30 April 2006 for the purposes of entitlement to the grant of a permanent right of residence

      Operative part of the judgment

   Article 16(1) and (4) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that:

               —

               continuous periods of five years’ residence completed before the date of transposition of Directive 2004/38, namely 30 April 2006, in accordance with earlier European Union law instruments, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof, and

               —

               absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date do not affect the acquisition of the right of permanent residence pursuant to Article 16(1) thereof.

      (1)  OJ C 153, 4.7.2009.


title: Case T-437/05: Action brought on  15 December 2005  — Brink's Security Luxembourg v Commission

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/39

         Action brought on 15 December 2005 — Brink's Security Luxembourg v Commission
   (Case T-437/05)
   (2006/C 48/76)
   Language of the case: French
   Parties

      Applicant(s): Brink's Security Luxembourg SA (Luxembourg) (represented by: Christian Point, Lawyer)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               declare the present action admissible and well-founded;

               —

               annul the decision not to award the contract, that is, the Commission's unilateral decision not to award the contract to Brink's Security Luxembourg;

               —

               annul the decision to award the contract, that is, the Commission's unilateral decision to award the contract to Group 4 Falck Luxembourg;

               —

               annul the implicit decision of the Commission to refuse to withdraw its two aforementioned decisions;

               —

               annul the Commission's two letters dated respectively 7 and 14 December 2005 replying to the applicant's requests for information pursuant to Article 149(3) of the regulation implementing the Financial Regulation;

               —

               order the Commission to pay to the applicant the sum of EUR 1 000 000 by way of damages for the material and non-material harm suffered by reason of the illegality of the decision challenged, that sum being determined ex aequo et bono and on a provisional basis;

               —

               order the Commission to pay the entire costs.

         Pleas in law and main arguments
   The present application seeks, firstly, the annulment of the Commission's decision rejecting the tender submitted by the applicant in call for tenders No 16/2005/OIL (provision of building surveillance and security services) and, secondly, the annulment of the decision awarding the contract to a competitor.
   The arguments relied on by the applicant in support of the orders for annulment sought can be categorised, in substance, into seven pleas.
   By the first plea the applicant relies on the alleged infringement of the principle of equal treatment and non-discrimination in so far as the Commission imposed a requirement for length of service of one year for the employees of each tenderer to be assigned to the contract which, according to the applicant — the current holder of the contract with long-serving employees — placed it at a disadvantage vis-à-vis the other tenderers, who could recruit people with the minimum experience and have lower wage costs than those of the applicant.
   By the second plea, the applicant claims that the Commission infringed the provisions of Directive 2001/23/EC (1). That plea has two parts: alleged irregularity in the tender accepted by the Commission in that that tender did not guarantee the retention of the applicant's employees nor, moreover, did it ensure that all of their rights would be respected. The applicant alleges that the decision to award taken by the Commission was illegal from the time it was taken since the accepted tender involved the infringement of employment law.
   The third plea is based on an alleged infringement of the principle of equal treatment in so far as the successful party, at the time of submission of its tender, had privileged information in relation to the applicant, in particular in relation to turnover by client and activity, contracts and their expiry dates, and analysis of their prices and costs, which had been obtained by reason of the merger with the applicant's former parent company. In the applicant's opinion, this would have allowed its competitor to prepare a more favourable tender compared with that submitted by the applicant itself.
   By the fourth plea, the applicant relies on the alleged infringement of the decision of Directorate General IV of the Commission of 28 May 2004 (2) and the rules aimed at ensuring undistorted competition in that, by the decision challenged in the present application, the Commission permitted the group to which the successful tenderer selected belonged to recover assets which it was obliged to relinquish at the time of the merger authorised by the decision of 28 May 2004.
   The fifth plea is based on the alleged infringement of the obligation to give reasons for the decision, the alleged infringement of the transparency principle and the right of access to documents of the Community institutions. The applicant alleges that the Commission, despite several written requests, send it only a brief explanation, which was limited to comparative tables of the tenders, of the reasons for its decision.
   The applicant also relies on the infringement of the rules applying to the award of the contract, a failure to take account of the contract documents and a manifest error of assessment in relation to the analysis and evaluation of the third qualitative award criterion in relation to the basic first-aid and fire fighting training of the security agents. It alleges that it has proof that the tenderer selected by the Commission does not have all of the operatives whom it proposed to assign to the performance of the contract at issue.
   By its last plea, the applicant alleges infringement of the principle of transparency and of the right of citizens to access documents of the institutions in so far as the Commission refused it information on the composition of the selection and award committees.
   The applicant also seeks, by relying on the principle of extra-contractual liability, compensation for the harm which it claims to have suffered by reason of the illegality of the Commission's conduct in the tender award procedure for the contract at issue.

      (1)  Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

      (2)  Commission Decision of 28/05/2004 declaring a concentration to be compatible with the common market (Case N IV / M. 3396 – Group 4 Falck / Securicor (4064) pursuant to Council Regulation (EEC) No 4064/89).


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber, extended composition) of 16 July 1998 in Case T-109/96: Gilberte Gebhard v. European Parliament (Officials - Auxiliary staff - Auxiliary session interpreters of the European Parliament - Legality of levying Community tax on their remuneration)

text:
C 299/30               EN                 Official Journal of the European Communities                                  26.9.98
    Duchy of Luxembourg and the French Republic have                 Pleas in law and main arguments adduced in support:
    failed to fulfil their obligations under that Directive;
                                                                     The pleas in law and main arguments are analogous to
                                                                     those put forward in Case C-311/98 (2).
Ð order the Kingdom of Belgium, the Grand Duchy of
    Luxembourg and the French Republic respectively to               (1) OJ L 280, 29.10.1994, p. 83.
    pay the costs.                                                   (2) See page 29 of this Official Journal.
                                                    COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                              JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 14 July 1998                                         (Third Chamber, extended composition)
in Case T-119/95: Alfred Hauer v. Council of the
European Union and Commission of the European                                                 of 16 July 1998
                        Communities (1)
                                                                     in   Case    T-109/96:      Gilberte Gebhard   v. European
(Action for annulment Ð Regulation (EEC) No 816/92 Ð                                           Parliament (1)
Time limit for bringing proceedings Ð Admissibility Ð
Action for damages Ð Common organisation of the                      (Officials Ð Auxiliary staff Ð Auxiliary session
market in milk and milk products Ð Reference quantities              interpreters of the European Parliament Ð Legality of
Ð Additional levy Ð Reduction of reference quantities                       levying Community tax on their remuneration)
                     without compensation)
                                                                                (98/C 299/48)
                          (98/C 299/47)
               (Language of the case: German)
                                                                                (Language of the case: French)
In Case T-119/95: Alfred Hauer, residing in Niederweiler
(Germany), represented by FrancËois, Neuhaus & Co., with
an address for service in Luxembourg at the Chambers of
                                                                     In Case T-109/96: Gilberte Gebhard, conference
Annick Wurth, 100 Boulevard de la PeÂtrusse v. the
                                                                     interpreter, residing in Heidelberg (Germany), represented
Council of the European Union (Agent: Arthur Brautigam)
                                                                     by Thierry Schmitt and Pierre Soler-Couteaux, of the
and the Commission of the European Communities
                                                                     Strasbourg Bar, against European Parliament (Agents:
(Agent: Klaus-Dieter Borchardt) Ð application for
                                                                     Manfred Peter, Didier Petersheim and JoaÄo Sant'Anna) Ð
annulment of Council Regulation (EEC) No 816/92 of
                                                                     application for reimbursement of Community tax levied
31 March 1992 amending Regulation (EEC) No 804/68
                                                                     on two payments of remuneration to the applicant Ð the
on the common organisation of the market in milk and
                                                                     Court of First Instance (Third Chamber, extended
milk products (2) and for compensation for the damage
                                                                     composition), composed of: V. Tiili, President, C. P. BrieÈt,
suffered as a result of the application of that Regulation
                                                                     K. Lenaerts, A. Potocki and J. D. Cooke, Judges; A. Mair,
Ð the Court (First Chamber), composed of: B. Vesterdorf,
                                                                     Administrator, for the Registrar, has given a judgment on
President, C. W. Bellamy and R. M. Moura Ramos,
                                                                     16 July 1998, in which it:
Judges; A. Mair, Administrator, for the Registrar, has
given a judgment on 14 July 1998, in which it:
1. dismisses the claim for annulment as inadmissible;                1. dismisses the application;
2. dismisses the claim for compensation as unfounded;
                                                                     2. orders the parties to bear their own costs.
3. orders the applicant to pay the costs.
                                                                     (1) OJ C 294, 5.10.1996.
(1) OJ C 208, 12.8.1995.
(2) OJ L 86, 1.4.1992, p. 83.


title: Case T-672/11: Action brought on 23 December 2011 — H-Holding v Parliament

text:
               4.8.2012

               EN

               Official Journal of the European Union

               C 235/13

         Action brought on 23 December 2011 — H-Holding v Parliament
   (Case T-672/11)
   2012/C 235/33
   Language of the case: German

      Parties

      Applicant: H-Holding AG (Cham, Switzerland) (represented by: R. Závodný, lawyer)

      Defendant: European Parliament

      Form of order sought

               —

               Recognise that the applicant has suffered damage as a result of the defendant’s failure to act on the applicant’s petition of 24 August 2011;

               —

               determine that the European Union is responsible for compliance with the rules relating to the funding of political parties at European level;

               —

               require the defendant to authorise the European Anti-Fraud Office (OLAF) to carry out a financial audit in relation to a Czech political party;

               —

               require the defendant to initiate proceedings against the Czech Republic;

               —

               order the defendant to pay compensation;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant submits that the defendant has failed to take action in relation to the applicant’s petition of 24 August 2011 concerning the funding of a Czech political party.


title: Case C-604/10: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 21 December 2010 — Football Dataco Limited, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Limited, Scottish Football League, PA Sport UK Limited v Yahoo UK Limited, Stan James (Abingdon) Limited, Stan James PLC, Enetpulse APS

text:
               19.3.2011

               EN

               Official Journal of the European Union

               C 89/7

         Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 21 December 2010 — Football Dataco Limited, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Limited, Scottish Football League, PA Sport UK Limited v Yahoo UK Limited, Stan James (Abingdon) Limited, Stan James PLC, Enetpulse APS
   (Case C-604/10)
   2011/C 89/14
   Language of the case: English

      Referring court

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

      Parties to the main proceedings

      Applicants: Football Dataco Limited, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Limited, Scottish Football League, PA Sport UK Limited

      Defendants: Yahoo UK Limited, Stan James (Abingdon) Limited, Stan James PLC, Enetpulse APS

      Questions referred

               1.

               In Article 3(1) of Directive 96/9/EC (1) on the legal protection of databases what is meant by ‘databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation’ and in particular:

                           a)

                           should the intellectual effort and skill of creating data be excluded?

                           b)

                           does ‘selection or arrangement’ include adding important significance to a pre-existing item of data (as in fixing the date of a football match);

                           c)

                           does ‘author's own intellectual creation’ require more than significant labour and skill from the author, if so what?

               2.

               Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?

      (1)  Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases
   OJ L 77, p. 20


title: Case F-59/05: Judgment of the Civil Service Tribunal (Second Chamber) of 19 October 2006 — De Smedt v Commission (Member of the contract staff — Request for reclassification of grade and reassessment of the remuneration set on recruitment — Former member of the auxiliary staff employed as a member of the contract staff without any change of functions — Articles 3a and 80(2) and (3) of the CEOS — Duties covered by the different function groups — Equal treatment)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/64

         Judgment of the Civil Service Tribunal (Second Chamber) of 19 October 2006 — De Smedt v Commission
   (Case F-59/05) (1)

   (Member of the contract staff - Request for reclassification of grade and reassessment of the remuneration set on recruitment - Former member of the auxiliary staff employed as a member of the contract staff without any change of functions - Articles 3a and 80(2) and (3) of the CEOS - Duties covered by the different function groups - Equal treatment)
   (2006/C 294/127)
   Language of the case: French
   Parties

      Applicant: Elisabeth De Smedt (Wezembeek-Oppem, Belgium) (represented by: L. Vogel, lawyer)

      Defendant: Commission of the European Communities (represented by: J. Currall and G. Berscheid, acting as Agents)
   Re:
   First, annulment of the Commission's decision rejecting the complaint submitted by the applicant, a former member of the auxiliary staff, against the decision fixing her grade and remuneration as a contract staff member and, secondly, an application for damages
   Operative part of the judgment

               1.

               The action is dismissed.

               2.

               Each party shall bear its own costs.

      (1)  OJ C 229, 17.9.2005, p. 29 (case initially registered before the Court of First Instance of the European Communities under number T-267/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).


title: Case C-2/15: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 7 January 2015 — DHL Express (Austria) GmbH

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/8

         Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 7 January 2015 — DHL Express (Austria) GmbH
   (Case C-2/15)
   (2015/C 127/12)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Appellant: DHL Express (Austria) GmbH

      Respondent authority: Post-Control-Kommission

      Other party to the proceedings: Bundesminister für Verkehr, Innovation und Technologie

      Questions referred

               1.

               Does Directive 97/67/EC (1) of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC (2) of the European Parliament and of the Council of 20 February 2008, in particular Article 9 thereof, preclude national rules under which postal service providers are obliged to contribute to the financing of the national regulatory authority’s operational costs irrespective of whether they provide universal services?

               2.

               If the first question is answered in the affirmative:

                           (a)

                           Is it sufficient for a financing obligation to exist that the provider concerned provides postal services which are to be classified under the national rules as universal services, but which go beyond the mandatory minimum range of universal services under the directive?

                           (b)

                           When determining an undertaking’s share of the financial contributions, is one to proceed in the same way as when determining the financial contributions to the compensation fund under Article 7(4) of the directive?

                           (c)

                           Do the requirement to respect the principles of non-discrimination and proportionality within the meaning of Article 7(5) of the directive and the ‘taking account of inter-changeability with the universal service’ within the meaning of recital 27 in the preamble to Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 then mean that shares of turnover which are attributed to value-added services, hence postal services not assignable to the universal service, but which are connected with the universal service, are excluded and are not taken into account when determining the share?

      (1)  OJ 1998 L 15, p. 14.

      (2)  Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, p. 3).


title: Case T-94/07: Order of the Court of First Instance of 19 November 2009 — EREF v Commission (Actions for annulment — Representation by a lawyer is not a third party — Manifestly inadmissible)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/52

         Order of the Court of First Instance of 19 November 2009 — EREF v Commission
   (Case T-94/07) (1)

   (Actions for annulment - Representation by a lawyer is not a third party - Manifestly inadmissible)
   2010/C 24/91
   Language of the case: English

      Parties

      Applicant: European Renewable Energies Federation (EREF) (Brussels, Belgium) (represented by: D. Fouquet, lawyer)

      Defendant: Commission of the European Communities (represented by: N. Khan, acting as Agent)

      Re:

   Application for annulment of Commission Decision C (2006) 4963 final of 24 October 2006, concerning a Syndicated loan and bilateral loan for the construction by Framatome ANP of a nuclear power station for Teollisuuden Voima Oy.

      Operative part of the order

               1.

               The application is dismissed as manifestly inadmissible.

               2.

               European Renewable Energies Federation ASBL (EREF) must bear its own costs and those incurred by the Commission of the European Communities.

      (1)  OJ C 117 of 29.5.2007.


title: Case C-138/17 P: Appeal brought on 17 March 2017 by the European Union, represented by the Court of Justice of the European Union against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 10 January 2017 in Case T-577/14, Gascogne Sack Deutschland and Gascogne v European Union

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/25

         Appeal brought on 17 March 2017 by the European Union, represented by the Court of Justice of the European Union against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 10 January 2017 in Case T-577/14, Gascogne Sack Deutschland and Gascogne v European Union
   (Case C-138/17 P)
   (2017/C 151/32)
   Language of the case: French

      Parties

      Appellant: European Union, represented by the Court of Justice of the European Union (represented by: J. Inghelram and Á.M. Almendros Manzano, acting as agents)

      Other parties to the proceedings: Gascogne Sack Deutschland GmbH, Gascogne, European Commission

      Form of order sought

               —

               set aside paragraph 1 of the operative part of the contested judgment;

               —

               dismiss as unfounded Gascogne Sack Deutschland and Gascogne’s claim, made at first instance, seeking a sum of EUR 187 571 for losses allegedly suffered as a result of making additional bank guarantee payments beyond a reasonable period;

               —

               order Gascogne Sack Deutschland and Gascogne to pay the costs.

      Pleas in law and main arguments

   In support of its appeal, the appellant relies on three grounds.
   The first ground of appeal alleges an error of law in the interpretation of the concept of ‘causal link’, since the General Court found that the failure to give judgment within a reasonable period was the determining cause of the alleged material damage consisting in the payment of bank guarantee costs, although, according to settled case-law, an undertaking’s own choice not to pay a fine during the proceedings before the judicature of the European Union is the determining cause of the payment of such costs.
   The second ground of appeal alleges an error of law in the interpretation of the concept of harm, since the General Court refused to apply to the alleged material damage linked to the payment of bank guarantee costs the same condition as it had set out in respect of the alleged material damage linked to the payment of interest on the amount of the fine, namely that the applicants at first instance had to demonstrate that the financial burden linked to that latter payment was greater than the advantage that they drew from the failure to pay the fine.
   The third ground of appeal alleges an error in law in determining the period during which the alleged material damage occurred as well as a failure to state reasons, since the General Court considered, without explaining the reason, that the period during which the alleged material damage consisting in the payment of the bank guarantee costs occurred could be different to the period in which it had placed the unlawful conduct which allegedly caused that harm.


title: Case C-4/17 P: Appeal brought on 4 January 2017 by the Czech Republic against the judgment of the General Court (Fifth Chamber) delivered on 20 October 2016 in Case T-141/15 Czech Republic v Commission

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/19

         Appeal brought on 4 January 2017 by the Czech Republic against the judgment of the General Court (Fifth Chamber) delivered on 20 October 2016 in Case T-141/15 Czech Republic v Commission
   (Case C-4/17 P)
   (2017/C 063/27)
   Language of the case: Czech

      Parties

      Appellant: Czech Republic (represented by: M. Smolek, J. Vláčil and J. Pavliš, Agents)

      Other party to the proceedings: European Commission

      Re:

   Appeal against the judgment of the General Court of the European Union of 20 October 2016 in Case T-141/15 Czech Republic v Commission (‘the judgment under appeal’) in which the Czech Republic sought annulment of Commission Implementing Decision (EU) 2015/103 (1) of 16 January 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C(2015) 53) (‘the contested decision’), in so far as it excludes the expenditure incurred by the Czech Republic in the period from 2010 to 2012 coming to a total of EUR 2 123 199,04.

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment under appeal,

               —

               annul the contested decision in so far as it excludes expenditure coming to a total of EUR 2 123 199,04 incurred by the Czech Republic, and

               —

               order the European Commission to pay the costs of the proceedings.

      Grounds of appeal and main arguments

   In support of its appeal in cassation, the appellant puts forward three grounds.
   The first ground of appeal is based on the infringement of Article 11 of Council Regulation (EC) No 479/2008 (2) of 29 April 2008 on the common organisation of the market in wine (‘Regulation No 479/2008), in so far as the General Court is alleged to have erred in law in finding that Article 11 of that Regulation did not cover measures for protection of vine stocks against damage caused by animals and/or birds.
   The second ground of appeal is based on the infringement of Article 5(2) of Regulation No 479/2008 and the principles of legal certainty and legitimate expectations. In the judgment under appeal, the General Court is alleged to have erred in law in finding that the European Commission may declare certain measures to be entirely ineligible for European Union financing and on those grounds exclude from financing all expenses incurred in connection with those measures, despite the fact that the European Commission itself examined the eligibility of those measures in assessing the draft support programme and did not put forward any objections.
   The third ground of appeal is based on the infringement of Article 41 of the Charter of Fundamental Rights of the European Union in conjunction with Article 31 of Council Regulation (EC) No 1290/2005 (3) of 21 June 2005 on the financing of the common agricultural policy, and as appropriate with Article 52 of Regulation (EU) No 1306/2013 (4) of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and with Articles 11 and 16 of Commission Regulation (EC) No 885/2006 (5) of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD. The General Court is alleged to have erred in law in the judgment under appeal in finding that the European Commission could exclude from European Union financing expenses pertaining to a period with regard to which the Czech Republic was prevented from expressing its view under the procedure set out for financial corrections in connection with agriculture.

      (1)  OJ 2015 L 16, p. 33.

      (2)  OJ 2008 L 148, p. 1.

      (3)  OJ 2005 L 209, p. 1.

      (4)  OJ 2013 L 347, p. 549.

      (5)  OJ 2006 L 171, p. 90.


title: Case C-413/02: Reference for a preliminary ruling by the Hof van Cassatie by judgment of that Court of 5 November 2002 in the case of I. Francis Maria SIPS against Ministerie van Financiën and II. Florentius Martha Adrianus Petrus Vreĳsen and Vreĳsen Douane-Expediteur against Ministerie van Financiën

text:
8.3.2003                 EN                         Official Journal of the European Union                                          C 55/5
that, by failing to take all necessary measures to ensure that              What is the precise scope of the eleven-month time limit laid
the quality of its bathing water conforms to the limit values               down in Article 11a(1) of Commission Regulation (EEC)
laid down by Council Directive 76/160/EEC of 8 December                     No 1062/87 ( 1) of 27 March 1987 on provisions for the
1975 concerning the quality of bathing water (OJ 1976 L 31,                 implementation of the Community transit procedure and for
p. 1) and by failing to adhere to the minimum sampling                      certain simplifications of that procedure, inserted by
frequencies required by that directive, the Kingdom of Den-                 Article 1(1) of Commission Regulation (EEC) No 1429/90 (2)
mark has failed to fulfil its obligations under Articles 4(1)               of 29 May 1990 amending Regulation (EEC) No 1062/87 on
and 6(1) of the same directive, the Court (Sixth Chamber),                  provisions for the implementation of the Community transit
composed of: J.-P. Puissochet, President of the Chamber,                    procedure and for certain simplifications of that procedure (as
R. Schintgen, C. Gulmann, V. Skouris and J.N. Cunha Rodrigues               applicable prior to the repeal of Regulation No 1062/87 by
(Rapporteur), Judges; J. Mischo, Advocate General; H. von                   Article 127(1) of Commission Regulation (EEC) No 1214/
Holstein, Deputy Registrar, has given a judgment on 30 January              92 (3) of 21 April 1992 on provisions for the implementation
2003, in which it:                                                          of the Community transit procedure and for certain simplifi-
                                                                            cations of that procedure, repealed in turn by Article 913 of
                                                                            Commission Regulation (EEC) No 2454/93 ( 4) of 2 July 1993
1.    Declares that, by failing, during the years 1995 to 1998, to          laying down provisions for the implementation of Council
      take all necessary measures to ensure that the quality of its         Regulation (EEC) No 2913/92 ( 5) establishing the Community
      bathing water conformed to the limit values laid down in              Customs Code)?
      Council Directive 76/160/EEC of 8 December 1975 concern-
      ing the quality of bathing water and by failing, during the same
      years, to adhere to the minimum sampling frequencies required
                                                                            Must this provision be construed as meaning that the com-
      by that directive, the Kingdom of Denmark has failed to fulfil
      its obligations under Articles 4(1) and 6(1) of the same              petent Member State is not entitled to demand the duties owed
                                                                            from the principal where this eleven-month time limit has not
      directive;
                                                                            been observed?
2.    Orders the Kingdom of Denmark to pay the costs.
                                                                            (1 ) OJ L 107 [1987], p. 1.
                                                                            (2 ) OJ L 137 [1990], p. 21.
( 1) OJ C 212 of 28.7.2001.                                                 (3 ) OJ L 132 [1992], p. 1.
                                                                            (4 ) OJ L 253 [1993], p. 1.
                                                                            (5 ) OJ L 302 [1992], p. 1.
Reference for a preliminary ruling by the Hof van Cassatie
by judgment of that Court of 5 November 2002 in the
case of 1. Belgian Refining Corporation, 2. Michael Gene                    Reference for a preliminary ruling by the Hof van Cassatie
Sachs, 3. Alfred Alfons Marie Leysens, 4. André Leonard                     by judgment of that Court of 5 November 2002 in the
Elisabeth Schatteman, 5. Frank Catharina Martin Devoght,                    case of I. Francis Maria SIPS against Ministerie van
and 6. Gilbert Theo Marie Frans Dias against Ministerie                     Financiën and II. Florentius Martha Adrianus Petrus
                             van Financiën                                  Vreijsen and Vreijsen Douane-Expediteur against Minis-
                                                                                terie van Financiën
                           (Case C-412/02)
                                                                                (Case C-413/02)
                            (2003/C 55/09)
                                                                                (2003/C 55/10)
Reference has been made to the Court of Justice of the
European Communities by judgment of the Hof van Cassatie                    Reference has been made to the Court of Justice of the
(Belgian Court of Cassation) of 5 November 2002, received at                European Communities by judgment of the Hof van Cassatie
the Court Registry on 19 November 2002, for a preliminary                   (Belgian Court of Cassation) of 5 November 2002, received at
ruling in the case of 1. Belgian Refining Corporation, 2. Michael           the Court Registry on 19 November 2002, for a preliminary
Gene Sachs, 3. Alfred Alfons Marie Leysens, 4. André Leonard                ruling in the case of I. Francis Maria SIPS against Ministerie
Elisabeth Schatteman, 5. Frank Catharina Martin Devoght, and                van Financiën and II. Florentius Martha Adrianus Petrus
6. Gilbert Theo Marie Frans Dias against Ministerie van                     Vreijsen and Vreijsen Douane-Expediteur against Ministerie
Financiën on the following questions:                                       van Financiën on the following questions:
 ---pagebreak--- C 55/6                  EN                          Official Journal of the European Union                                          8.3.2003
1.     Must Regulation No 2913/92 (1) (the Community Cus-                   Reference for a preliminary ruling by the Bundesfinanz-
       toms Code) and Regulation No 2454/93 ( 2) (the regu-                 hof by order of that Court of 29 October 2002 in the case
       lation implementing the Community Customs Code), in                  of Hauptzollamt Hamburg-Jonas against Gouralnik &
       particular Article 379(1) of the regulation implementing                                      Partner GmbH
       the Community Customs Code, be construed as meaning
       that the customs debt arising by reason of an offence or
       irregularity in connection with external Community                                           (Case C-446/02)
       transit cannot be recovered by the office of departure
       from the principal if the principal did not, before the end
       of the eleventh month following the date of registration                                      (2003/C 55/12)
       of the Community transit declaration, receive the notifi-
       cation referred to in Article 379 of the regulation
       implementing the Community Customs Code?
                                                                            Reference has been made to the Court of Justice of the
2.     Does the fact that the office of departure did not follow
                                                                            European Communities by order of the Bundesfinanzhof
       an administrative instruction for the transmission of
                                                                            (Federal Finance Court) of 29 October 2002, received at the
       information laid down in the Customs Code Committee
                                                                            Court Registry on 10 December 2002, for a preliminary ruling
       (early warning system) or that the authorities in the office
                                                                            in the case of Hauptzollamt Hamburg-Jonas against Gouralnik
       of departure can be criticised for failure to notify in good
                                                                            & Partner GmbH on the following questions:
       time have any bearing on the answer to this question?
                                                                            1.   Does an entitlement to an export refund exist at least at
( 1) OJ L 302 [1992], p. 1.                                                      the rate of refund applicable to the product actually
( 2) OJ L 253 [1993], p. 1.                                                      exported where it is established during a control by
                                                                                the customs authorities that the declared and exported
                                                                                consignment did not consist entirely of the declared
                                                                                product but contained a proportion of another product
                                                                                to which a lower rate of refund applied?
Reference for a preliminary ruling by the Vestre Landsret                   2.   Does the fact that the product which was incorrectly
by order of that Court of 15 November 2002 in the case                           declared is similar to that actually declared have any
of Fonden Marselisborg Lystbådehavn against Skattemini-                          bearing on the decision?
                                steriet
                                                                            3.   If Question 2 is answered in the affirmative, in accordance
                          (Case C-428/02)                                        with which criteria must it be determined whether the
                                                                                declaration also covers the incorrectly declared goods?
                           (2003/C 55/11)
Reference has been made to the Court of Justice of the
European Communities by order of the Vestre Landsret
(Western Regional Court) of 15 November 2002, received at
the Court Registry on 26 November 2002, for a preliminary
ruling in the case of Fonden Marselisborg Lystbådehavn against
Skatteministeriet (Ministry of Fiscal Affairs) on the following             Appeal brought on 11 December 2002 by KWS Saat AG
questions:                                                                  against the judgment delivered on 9 October 2002 by the
                                                                            Second Chamber of the Court of First Instance of the
1)     Must Article 13.B(b) of the Sixth VAT Directive (Council             European Communities in Case T-173/00 between KWS
       Directive 77/388) (1) be construed as meaning that the               Saat AG and the Office for Harmonisation in the Internal
       term ‘letting of immovable property’ includes the letting                         Market (Trade Marks and Designs)
       of a boat site consisting of a section of a land-based port
       area and of a defined and identifiable water-based area?
                                                                                (Case C-447/02 P)
2)     Must Article 13.B(b)(2) of the Sixth VAT Directive be
       construed as meaning that the term ‘vehicles’ includes
       boats?                                                                                (2003/C 55/13)
( 1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
     harmonization of the laws of the Member States relating to
     turnover taxes — Common system of value added tax: uniform             An appeal against the judgment delivered on 9 October 2002
     basis of assessment (OJ L 145 of 13.6.1977, p. 1).                     by the Second Chamber of the Court of First Instance of the
                                                                            European Communities in Case T-173/00 between KWS Saat
                                                                            AG and the Office for Harmonisation in the Internal Market


title: Order of the Court of Justice (Third Chamber) of 30 April 2004 in Case C-446/02 (reference for a preliminary ruling from the Bundesfinanzhof): Hauptzollamt Hamburg-Jonas v Gouralnik & Partner GmbH (Article 104(3) of the Rules of Procedure — Agriculture — Common organisation of the markets — Export refunds — Inaccurate declaration — Consequential effects on the validity of the declaration)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/27

      ORDER OF THE COURT OF JUSTICE

   (Third Chamber)
   of 30 April 2004
   in Case C-446/02 (reference for a preliminary ruling from the Bundesfinanzhof): Hauptzollamt Hamburg-Jonas v Gouralnik & Partner GmbH (1)

   (Article 104(3) of the Rules of Procedure - Agriculture - Common organisation of the markets - Export refunds - Inaccurate declaration - Consequential effects on the validity of the declaration)
   (2004/C 118/47)
   Language of the case: German
   In Case C-446/02: reference to the Court under Article 234 EC from the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings pending before that court between Hauptzollamt Hamburg-Jonas and Gouralnik & Partner GmbH – on the interpretation of the legislation applicable to export refunds – the Court of Justice (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and N. Colneric, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, made an order on 30 April 2004, the operative part of which is as follows:

               1.

               For refunds requested before 1 April 1995, Article 78(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and Article 3(5)(a) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, must be interpreted as meaning that an entitlement to an export refund exists at least at the rate of refund applicable to the product actually exported where it is established during a control by the customs authorities that the declared and exported consignment did not consist entirely of the declared product but contained a proportion of another product to which a lower rate of refund applied and the customs authorities adjusted the declaration in accordance with Article 78(3) of the Community Customs Code.

               2.

               For the purposes of the decision, it is not material whether the goods which were the subject of the incorrect customs declaration are goods similar to those which were in fact declared.

               3.

               For refunds requested after 1 April 1995, Article 11 of Regulation No 3665/87, as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 amending Regulation No 3665/87 as regards the recovery of amounts unduly paid and sanctions, is applicable in such circumstances.

      (1)  OJ C 55, 8.3.2003.


title: Case T-88/05: Action brought on 22 February 2005 by Quelle Aktiengesellschaft against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/23

         Action brought on 22 February 2005 by Quelle Aktiengesellschaft against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-88/05)
   (2005/C 155/46)
   Language in which the application was submitted: German
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 22 February 2005 by Quelle Aktiengesellschaft, established in Fürth (Germany), represented by H. Lindner, lawyer.
   Nars Cosmetics, Inc., Madrid, was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the decision of the Second Board of Appeal of OHIM of 17 December 2004 in Case R 379/2004-2;

               —

               annul the decision of the Opposition Division of 6 April 2004 (No 1138/2004) on Opposition No B288706;

               —

               allow the opposition and reject trade mark application No 1333657;

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               Nars Cosmetics, Inc.

               Community trade mark concerned:

               Figurative mark ‘NARS’ for goods in Classes 3, 18 and 25 (Cleaning and bleaching preparations, leather, clothing, footwear, headgear …) — Application No 1333657.

               Proprietor of mark or sign cited in the opposition proceedings:

               The applicant.

               Mark or sign cited in opposition:

               National figurative mark ‘MARS’ for goods in Class 25 (Footwear, in particular sports shoes, clothing).

               Decision of the Opposition Division:

               Rejection of the applicant's opposition.

               Decision of the Board of Appeal:

               Dismissal of the applicant's appeal.

               Pleas in law:

               Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 due to inadequate consideration of the similarity of the marks and the identity or similarity of the goods.