title: Case T-317/08: Action brought on 12 August 2008 — Società di armatori G. padre dei F.lli Incorvaia G.I. e S. v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/34

         Action brought on 12 August 2008 — Società di armatori G. padre dei F.lli Incorvaia G.I. e S. v Commission
   (Case T-317/08)
   (2008/C 272/65)
   Language of the case: Italian
   Parties

      Applicant: Società di armamento Gaetano padre dei fratelli Incorvaia Giuseppe, Ignazio e Salvatore Snc (Licata, Italy) (represented by: A. Maiorana, A. de Matteis and A. De Francesco, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

               —

               Order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.


title: Joined Cases T-494/13 and T-495/13: Judgment of the General Court of 4 December 2014  — Sales & Solutions v OHIM — Inceda (WATT and WATT) (Community trade mark — Invalidity proceedings — Community figurative trade mark Watt and Community word mark Watt — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/27

         Judgment of the General Court of 4 December 2014 — Sales & Solutions v OHIM — Inceda (WATT and WATT)
   (Joined Cases T-494/13 and T-495/13) (1)

   ((Community trade mark - Invalidity proceedings - Community figurative trade mark Watt and Community word mark Watt - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2015/C 026/32)
   Language of the case: German

      Parties

      Applicant: Sales & Solutions GmbH (Frankfurt am Main, Germany) (represented by: K. Gründig-Schnelle, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Inceda Holding GmbH (Cologne, Germany) (represented by: J. Wald and D. Thrun, lawyers)

      Re:

   In Case T-494/13, action brought against the decision of the Fourth Board of Appeal of OHIM of 15 July 2013 (Case R 1192/2012-4), and, in Case T-495/13, action brought against the decision of the Fourth Board of Appeal of OHIM of 15 July 2013 (Case R 1193/2012-4), concerning invalidity proceedings between Inceda Holding GmbH and Sales & Solutions GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Sales & Solutions GmbH to bear its own costs as well as those of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and of Inceda Holding GmbH in Joined Cases T-494/13 and T-495/13.

      (1)  OJ C 344, 23.11.2013.


title: Case F-35/15: Order of the Civil Service Tribunal (Third Chamber) of 15 July 2015 — De Esteban Alonso v Commission (Civil service — Article 24 of the Staff Regulations — Request for assistance — Criminal proceedings before a national court — Joinder of Commission in bringing a civil action — Action dismissed as manifestly unfounded)

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/54

         Order of the Civil Service Tribunal (Third Chamber) of 15 July 2015 — De Esteban Alonso v Commission
   (Case F-35/15) (1)

   ((Civil service - Article 24 of the Staff Regulations - Request for assistance - Criminal proceedings before a national court - Joinder of Commission in bringing a civil action - Action dismissed as manifestly unfounded))
   (2015/C 279/68)
   Language of the case: French

      Parties

      Applicant: Fernando De Esteban Alonso (Saint-Martin-de-Seignanx, France) (represented by: C. Huglo, lawyer)

      Defendant: European Commission (represented by: J. Currall and C. Ehrbar, acting as Agents)

      Re:

   Application for annulment of the Commission’s decision not to take further action on the request for assistance made by the applicant where he was under investigation for misappropriation of funds accruing to the Community budget.

      Operative part of the order

               1.

               The action is dismissed as manifestly unfounded.

               2.

               Mr De Esteban Alonso is to bear his own costs and to pay the costs incurred by the European Commission.

      (1)  OJ C 146, 4/5/2015, p. 52.


title: Case T-336/10: Action brought on 10/08/2010 — Abercrombie & Fitch Europe/OHMI — Gilli (GILLY HICKS)

text:
               9.10.2010

               EN

               Official Journal of the European Union

               C 274/29

         Action brought on 10/08/2010 — Abercrombie & Fitch Europe/OHMI — Gilli (GILLY HICKS)
   (Case T-336/10)
   ()
   2010/C 274/44
   Language in which the application was lodged: English

      Parties

      Applicant: Abercrombie & Fitch Europe SA (Mendrisio, Switzerland) (represented by: S. Malynicz, Barrister, D. Stone and L. Ritchie, Solicitors)

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

      Other party to the proceedings before the Board of Appeal: Gilli Srl (Milano, Italy)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office For Harmonisation in the Internal Market (Trade Marks and Designs) of 20 May 2010 in case R 832/2008-1, and;

               —

               Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark “GILLY HICKS”, for goods and services in classes 3, 14, 25 and 35 — Community trade mark application No 5194543

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited: Community trade mark registration No 3566007 of the figurative mark “GILLI”, for goods in classes 3, 9, 14 and 25

      Decision of the Opposition Division: Upheld the opposition partially

      Decision of the Board of Appeal: Annulled the contested decision partially

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal did not carry out a correct visual, aural or conceptual comparison of the marks and therefore erred in relation to the likelihood of confusion.


title: Case T-255/12: Action brought on 8 June 2012 — Vakili v Council

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/23

         Action brought on 8 June 2012 — Vakili v Council
   (Case T-255/12)
   2012/C 258/43
   Language of the case: French

      Parties

      Applicant: Bahman Vakili (Tehran, Iran) (represented by: J.-M. Thouvenin, lawyer)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul the Council’s decision to include the applicant in the list of persons subject to sanctions which follows from Decision 2011/783/CFSP, Council Implementing Regulation (EU) No 1245/2001 of 1 December 2011 and the Council’s letter of 23 March 2012;

               —

               Annul Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010, in so far as it includes the applicant in the list of persons subject to sanctions;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a failure to state reasons, since the statement of reasons for the penalty affecting the applicant does not contain any specific and concrete reason to justify that sanction.

               2.

               Second plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection, since the applicant was not heard in the proceedings which led to a penalty being imposed on him, as the Council did not send him the evidence against him and as the applicant was not in a position effectively to make known his view in that regard.

               3.

               Third plea in law, alleging an error of law, since the Council was not empowered to penalise a person on the sole basis that he is president of the board of directors and chief executive of an entity also subject to sanctions.

               4.

               Fourth plea in law, alleging an error of fact, since the applicant cannot be held liable for what was allegedly done by the Export Development Bank of Iran before the applicant took up his duties with that company. In addition, the applicant disputes the existence of the alleged actions of the company which he directs.

               5.

               Fifth plea in law, alleging infringement of the principle of proportionality, since the penalty imposed is not such as to achieve the objectives which it is intended to pursue.

               6.

               Sixth plea in law, alleging infringement of the right to respect for property, since the applicant has not been in a position effectively to defend his rights and was penalised on the basis of non-existent legal bases.


title: Case C-183/05: Judgment of the Court (Second Chamber) of 11 January 2007 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Directive 92/43/EEC — Articles 12(1) and (2), 13(1)(b) and 16 — Conservation of natural habitats and of wild fauna and flora — Protection of species)

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/4

         Judgment of the Court (Second Chamber) of 11 January 2007 — Commission of the European Communities v Ireland
   (Case C-183/05) (1)

   (Failure of a Member State to fulfil obligations - Directive 92/43/EEC - Articles 12(1) and (2), 13(1)(b) and 16 - Conservation of natural habitats and of wild fauna and flora - Protection of species)
   (2007/C 42/07)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek, Agent, assisted by M. Wemaëre, avocat)

      Defendant: Ireland (represented by: D. O'Hagan, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Defective transposition of Articles 12(1) and (2), 13(1)(b) and 16 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7)
   Operative part of the judgment
   The Court:

               1.

               Declares that

                           —

                           by failing to take all the requisite specific measures for the effective implementation of the system of strict protection laid down in Article 12(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, and

                           —

                           by retaining the provisions of section 23(7)(a) to (c) of the 1976 Wildlife Act, as amended by the 2000 Wildlife (Amendment) Act, which are incompatible with those in Articles 12(1) and 16 of Directive 92/43,

                     Ireland has failed to comply with those articles of Directive 92/43 and to fulfil its obligations under that directive;

               2.

               Orders Ireland to pay the costs.

      (1)  OJ C 182, 23.7.2005.


title: Case C-240/14: Request for a preliminary ruling from the Landesgericht Korneuburg (Austria) lodged on 12 May 2014  — Eleonore Prüller-Frey v Norbert Brodnig, Axa Versicherung AG

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/14

         Request for a preliminary ruling from the Landesgericht Korneuburg (Austria) lodged on 12 May 2014 — Eleonore Prüller-Frey v Norbert Brodnig, Axa Versicherung AG
   (Case C-240/14)
   2014/C 261/21
   Language of the case: German

      Referring court

   Landesgericht Korneuburg

      Parties to the main proceedings

      Applicant: Eleonore Prüller-Frey

      Defendants: Norbert Brodnig, Axa Versicherung AG

      Questions referred

               1.

               Are Article 2(1)(a) and (c) of Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (1), Article 3(c) and (g) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators (2), and Article 1(1) of the Convention for the Unification of Certain Rules for International Carriage by Air (3), signed in Montreal on 28 May 1999, to be interpreted as meaning that claims for damages by an injured party:

                           —

                           who was a passenger in an aircraft which had the same take-off and landing place in a Member State,

                           —

                           who was carried by the pilot free of charge,

                           —

                           the purpose of the flight being, in connection with a real-property transaction planned with the pilot, to view the property from the air, and

                           —

                           who was physically injured when the aircraft crashed,

                     must be adjudged exclusively in accordance with Article 17 of the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999, and that national law is not applicable?
               If the reply to Question 1 is in the affirmative:

               2.

               Are Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999, and Article 67 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (4) to be interpreted as meaning that jurisdiction to hear and rule on the claims for damages referred to in Question 1 must be determined exclusively in accordance with Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999?
               If the reply to Question 1 is in the affirmative:

               3.

               Are Article 29 of the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999, and Article 18 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (5) to be interpreted as precluding national provisions which provide for a direct action by the injured party referred to in Question 1 against the civil-liability insurer of the person responsible for the injury?
               If the reply to Question 1 is in the negative:

               4.

               Are Article 7(1)(f) of Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC (6), and Article 18 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations to be interpreted as meaning that the conditions governing the direct action brought by the injured party referred to in Question 1 against the civil-liability insurer of the person responsible for the injury are to be adjudged in accordance with the law of a third State if:

                           —

                           the lex loci delicti provides for a direct action in its legislation on insurance contracts,

                           —

                           the parties to the insurance contract make a choice of law in favour of the legal system of a third State,

                           —

                           according to which the law of the State in which the insurer has its seat is to be applied, and

                           —

                           the legal system of that State also provides for a direct action in its legislation on insurance contracts?

      (1)  OJ L 285, p. 1.

      (2)  OJ L 138, p. 1.

      (3)  OJ 2001 L 194, p. 39.

      (4)  OJ 2001 L 12, p. 1.

      (5)  OJ L 199, p. 40.

      (6)  OJ L 172, p. 1.


title: Case C-244/07: Action brought on 22 May 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/16

         Action brought on 22 May 2007 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-244/07)
   (2007/C 155/32)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: P. Dejmek and N. Yerrell, Agents)

      Defendant: Grand Duchy of Luxembourg
   Form of order sought

               —

               declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2004/50/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 96/48/EC on the interoperability of the trans-European high-speed rail system and Directive 2001/16/EC of the European Parliament and of the Council on the interoperability of the trans-European conventional rail system (1), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 4 of that directive;
               or in the alternative:
               declare that, by failing to communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Directive 2004/50/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 96/48/EC on the interoperability of the trans-European high-speed rail system and Directive 2001/16/EC of the European Parliament and of the Council on the interoperability of the trans-European conventional rail system, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 4 of that directive;

               —

               order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments
   The period for transposition of Directive 2004/50/EC expired on 29 April 2006.

      (1)  OJ 2004 L 164, p. 114, and corrigendum OJ 2004 L 220, p. 40.


title: Case C-298/16: Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 25 May 2016 — Teodor Ispas, Anduța Ispas v Direcția Generală a Finanțelor Publice Cluj

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/11

         Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 25 May 2016 — Teodor Ispas, Anduța Ispas v Direcția Generală a Finanțelor Publice Cluj
   (Case C-298/16)
   (2016/C 314/16)
   Language of the case: Romanian

      Referring court

   Curtea de Apel Cluj

      Parties to the main proceedings

      Claimants: Teodor Ispas, Anduța Ispas

      Defendant: Direcția Generală a Finanțelor Publice Cluj

      Question referred

   Is an administrative practice consisting in the taking of a decision imposing obligations on an individual without allowing that individual to have access to all of the information and documents considered by the public authority when it adopted that decision, being information and documents contained in the administrative file (not a public file) drawn up by the public authority, compatible with the principle of respect for the rights of the defence?


title: Case T-180/17: Action brought on 17 March 2017 — EM Research Organization v EUIPO — Christoph Fischer and Others (EM)

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/32

         Action brought on 17 March 2017 — EM Research Organization v EUIPO — Christoph Fischer and Others (EM)
   (Case T-180/17)
   (2017/C 161/45)
   Language in which the application was lodged: German

      Parties

      Applicant: EM Research Organization, Inc. (Okinawa, Japan) (represented by: J. Liesegang, M. Jost and N. Lang, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other parties to the proceedings before the Board of Appeal: Christoph Fischer GmbH (Stephanskirchen, Germany), Ole Weinkath (Hünxe-Drevenack, Germany), Multikraft Produktions- und Handels GmbH (Pichl/Wels, Austria), Phytodor AG (Buochs, Switzerland)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: International word mark ‘EM’ — No 2 829 851

      Procedure before EUIPO: Invalidity proceedings

      Contested decision: Decision of the First Board of Appeal of EUIPO of 9 January 2017 in Case R 2442/2015-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of Article 145 and the first sentence of Article 57(5) of Regulation No 207/2009;

               —

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


title: Case C-228/06: Judgment of the Court (First Chamber) of 19 February 2009 (reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany)) — Mehmet Soysal, Ibrahim Savatli v Bundesrepublik Deutschland (EEC-Turkey Association Agreement — Freedom to provide services — Visa requirement for admission to the territory of a Member State)

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/2

         Judgment of the Court (First Chamber) of 19 February 2009 (reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany)) — Mehmet Soysal, Ibrahim Savatli v Bundesrepublik Deutschland
   (Case C-228/06) (1)

   (EEC-Turkey Association Agreement - Freedom to provide services - Visa requirement for admission to the territory of a Member State)
   2009/C 90/02
   Language of the case: German

      Referring court

   Oberverwaltungsgericht Berlin-Brandenburg

      Parties to the main proceedings

      Applicants: Mehmet Soysal, Ibrahim Savatli

      Defendant: Bundesrepublik Deutschland

      Joined Party: Bundesagentur für Arbeit

      Re:

   Reference for a preliminary ruling — Oberverwaltungsgericht Berlin-Brandenburg — Interpretation of Article 41(1) of the Additional Protocol of 23 November 1970 annexed to the Agreement establishing an Association between the European Economic Community and Turkey (JO 1972 L 293, p. 4) — Validity of Article 1 of Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81, p. 1) — New restrictions on the freedom to provide services — Obligation imposed on a Turkish national employed as the driver of a lorry by a Turkish transport undertaking to be in possession of a visa in order to be able to enter the territory of a Member State, even though no such obligation existed on the date on which the Additional Protocol entered into force

      Operative part of the judgment

   Article 41(1) of the Additional Protocol, which was signed on 23 November 1970 at Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, is to be interpreted as meaning that it precludes the introduction, as from the entry into force of that protocol, of a requirement that Turkish nationals such as the appellants in the main proceedings must have a visa to enter the territory of a Member State in order to provide services there on behalf of an undertaking established in Turkey, since, on that date, such a visa was not required.

      (1)  OJ C 190, 12.8.2006.


title: Case C-290/11 P: Appeal brought on 9 June 2011 by Comap SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-377/06 Comap v Commission

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/18

         Appeal brought on 9 June 2011 by Comap SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-377/06 Comap v Commission
   (Case C-290/11 P)
   2011/C 252/32
   Language of the case: French

      Parties

      Appellant: Comap SA (represented by: A. Wachsmann and S. de Guigné, avocats)

      Other party to the proceedings: European Commission

      Form of order sought

               —

                     Principally,

                           —

                           annul, on the basis of Article 256 TFEU and 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, the entirety of the judgment of the General Court of 24 March 2011 in Case T-377/06 Comap v Commission;

                           —

                           grant the form of order sought by Comap SA at first instance before the General Court;

                           —

                           consequently,

                                       —

                                       annul European Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — FITTINGS) inasmuch as it concerns Comap SA and the grounds underlying the operative part thereof inasmuch as that decision imposes a fine on Comap SA;

               —

               in the alternative,

                           —

                           annul, on the basis of Article 261 TFEU, the fine of EUR 18,56 million imposed on Comap SA by Article 2(g) of the abovementioned decision of the European Commission or, on the basis of Article 261 TFEU, reduce that fine to an appropriate amount;

               —

               in any event, order the European Commission to pay all the costs, including those incurred by Comap SA before the General Court.

      Pleas in law and main arguments

   The appellant raises four pleas in law in support of its appeal.
   By its first plea, Comap alleges infringement of the right to an independent and impartial tribunal since the review carried out by the General Court of the decision of the Commission, an institution which fulfils the functions both of inquiry and sanction, was limited to the manifest errors in law and of fact, without the unlimited power of review having been used on the basis of a full re-examination of the facts of the case and, in particular, the evidence adduced.
   By its second plea, the appellant complains that the General Court applied to it too restrictive an understanding of the notion of ‘public distancing’ which disregards the requirements of the principle of strict interpretation of criminal law, enshrined in Article 7(1) of the ECHR, which provides that the criminal law may not be applied broadly to the detriment of the defendant. That understanding also infringes the principle that the benefit of the doubt must be given to the undertaking to which the decision is addressed and which is necessary having regard to the principle of the presumption of innocence.
   By its third plea, Comap alleges distortion of a number of pieces of evidence which led to an incorrect legal qualification of certain bilateral contacts between the appellant and one of its competitors after the Commission inspections.
   By its fourth and last plea, finally, the appellant complains that the General Court failed to fulfil its duty to state reasons in that it took the view that the Commission had established Comap’s participation to the requisite legal standard in a single and continuous infringement after March 2001.


title: Case T-2/16: Judgment of the General Court of 30 November 2016 — K&K Group v EUIPO — Pret A Manger (Europe) (Pret A Diner) (EU trade mark — Opposition proceedings — International registration designating the European Union — Figurative mark Pret A Diner — Earlier EU figurative mark PRET A MANGER — Earlier national word mark PRET — Relative ground for refusal — Genuine use of the earlier mark — Article 42(2) and (3) of Regulation (EC) No 207/2009 — Unfair advantage taken of the distinctiveness or the repute of the earlier marks — Article 8(5) of Regulation No 207/2009)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/32

         Judgment of the General Court of 30 November 2016 — K&K Group v EUIPO — Pret A Manger (Europe) (Pret A Diner)
   (Case T-2/16) (1)

   ((EU trade mark - Opposition proceedings - International registration designating the European Union - Figurative mark Pret A Diner - Earlier EU figurative mark PRET A MANGER - Earlier national word mark PRET - Relative ground for refusal - Genuine use of the earlier mark - Article 42(2) and (3) of Regulation (EC) No 207/2009 - Unfair advantage taken of the distinctiveness or the repute of the earlier marks - Article 8(5) of Regulation No 207/2009))
   (2017/C 022/43)
   Language of the case: English

      Parties

      Applicant: K&K Group AG (Cham, Switzerland) (represented by: N. Lützenrath, U. Rademacher, C. Fürsen and N. Bertram, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: J. Crespo Carrillo, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Pret A Manger (Europe) Ltd (London, United Kingdom) (represented by: M. Edenborough QC)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 29 October 2015 (Case R 2825/2014-5), relating to opposition proceedings between Pret A Manger (Europe) and K&K Group.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders K&K Group AG to pay the costs.

      (1)  OJ C 78, 29.2.2016.


title: Case C-73/10 P: Appeal brought on 9 February 2010 by Internationale Fruchtimport Gesellschaft Weichert & Co. KG against the order of the Court of First Instance (Eighth Chamber) delivered on 30 November 2009 in Case T-2/09: Internationale Fruchtimport Gesellschaft Weichert & Co. KG v European Commission

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/22

         Appeal brought on 9 February 2010 by Internationale Fruchtimport Gesellschaft Weichert & Co. KG against the order of the Court of First Instance (Eighth Chamber) delivered on 30 November 2009 in Case T-2/09: Internationale Fruchtimport Gesellschaft Weichert & Co. KG v European Commission
   (Case C-73/10 P)
   2010/C 80/38
   Language of the case: English

      Parties

      Appellant: Internationale Fruchtimport Gesellschaft Weichert & Co. KG (represented by: A. Rinne, Rechtsanwalt, S. Kon, Solicitor, C. Humpe, Solicitor, C. Vajda QC)

      Other party to the proceedings: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               set aside the Order of the CFI in Case T- 2/09 dated 30 November 2009; and

               —

               declare Weichert's application for annulment in Case T-2/09 admissible and refer the case back to the General Court of the European Union for judgment on Weichert's claims seeking annulment of the decision of the Commission of the European Communities of 15 October 2008 (Case COMP/39.188 — Bananas) — in so far as it relates to Weichert, or

               —

               in the alternative, refer the case back to the General Court of the European Union for judgment on the admissibility of Weichert's application for annulment in Case T-2/09.

      Pleas in law and main arguments

   The applicant submits that the CFI erred in law by declaring the application inadmissible on the basis that there could only be a derogation from the application of the Community rules on procedural time limits where the circumstances are either unforeseeable or amount to force majeure. It is submitted that such an approach is unduly narrow and fails to take any, or any proper account, of the importance of the right of access to a court in criminal proceedings, the principle of legality in criminal proceedings, and principle of proportionality, and the overriding need to avoid an unjust result.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 5 October 1995 in Case C-125/94 (reference for a preliminary ruling from the Giudice Conciliatore, Milan): Aprile Srl, in liquidation, v. Amministrazione delle Finanze dello Stato (Charges having equivalent effect - Prohibition - Whether applicable to trade with non-member countries)

text:
 11 . 11 . 95           tN                   Official Journal of the European Communities                                   No C 299/7
2 . Council Directive 92/106/EEC of 7 December 1992 on                        of Article 5 (1 ) (a), is not applicable to customs
      the establishment of common rules for certain types of                  transactions in respect of goods from non-member
      combined transport of goods between Member States                       countries , in particular members of EETA ;
      does not apply to combined transport of goods between
      third   countries   and    Member     States  and      Council
                                                                         2 . the Member States are not entitled unilaterally to impose
      Regulation (EEC) No 4055/86 of 22 December 1986                         charges having equivalent effect in trade with
      applying the principle of freedom to provide services                   non-member countries. Where the prohibition of such
      to maritime transport between Member States and                         charges is contained in bilateral or multilateral
      between Member States and third countries does not
                                                                              agreements concluded by the Community with one or
      apply to the transportation by road of goods unloaded                   more non-member countries with a view to eliminating
      from the vessel.                                                        obstacles to trade and in the Council Regulations
                                                                              providing for common organization of the markets in
(') O J No C 146 , 28 . 5 . 1994 .                                            various agricultural products regarding trade with
                                                                              non-member countries, the scope of that prohibition is
                                                                              the same as in the case of intra - Community trade.
                                                                         (') OJ No C : 174 , 25 . 6 . 1994 .
                JUDGMENT OF THE COURT
                         ( Sixth Chamber )
                        of 5 October 1995
in Case C-125 /94 ( reference for a preliminary ruling from                              JUDGMENT OF THE COURT
the Giudice Conciliatore, Milan ): Aprile Srl, in liquidation ,                                    ( Sixth Chamber )
        v. Amministrazione delle Finanze dello Stato (')
                                                                                of 12 October 1995
(Charges having equivalent effect — Prohibition —
 Whether applicable to trade with non-member countries)                  in    Case C-236/94 : Commission of the European
                           ( 95/C 299/ 10 )
                                                                                Communities v. Kingdom of Belgium (')
                                                                         (Failure to fulfil obligations — Directive 91/339/EEC —
                                                                                Non-transposition)
                 (Language of the case: Italian)
                                                                                ( 95 /C 299/ 1 1 )
(Provisional translation; the definitive translation will be
           published in the European Court Reports)                                         (Language of the case: French)
In Case C - 125 /94 : reference to the Court under Article 177           (Provisional translation; the definitive translation will be
of the EEC Treaty from the Giudice Conciliatore                                     published in the European Court reports)
(Judge-Conciliator ), Milan , for a preliminary ruling in the
proceedings pending before that court between Aprile Sri , in            In Case C-236/94 : Commission of the European
liquidation , and Amministrazione delle Finanze dello Stato              Communities ( Agent: Hendrik van Eier ) v. Kingdom of
— on the interpretation of Articles 3 ( a ) and ( h ), 5 , 9 , 11 , 12 , Belgium ( Agent: Jan Devadder ) — application for a
13 , 16 and 189 of the EEC Treaty and Council Directive                  declaration that, by not adopting and, in the alternative, by
83 /643 /EEC of 1 December 1983 on the facilitation of                   not communicating to the Commission within the
physical inspections and administrative formalities in                   prescribed period the laws, regulations and administrative
respect of the carriage of goods between Member States ( OJ              provisions necessary to comply with Council Directive
 1983 L 359 , p. 8 ), as amended by Council Directive                    91 /339/EEC of 18 June 1991 amending for the 11th time
87/53/EEC of 15 December 1986 ( OJ 1987 L 24 , p. 33 ) —                 Directive 76/769/EEC on the approximation of the laws,
the Court ( Sixth Chamber ), composed of F. A. Schockweiler              regulations and administrative provisions of the Member
( Rapporteur ), President of the Chamber, C. N. Kakouris,                States relating to restrictions on the marketing and use of
J. L. Murray , G. Hirsch and H. Ragnemalm, Judges;                       certain dangerous substances and preparations ( OJ 1991
D. Ruiz-Jarabo Colomer, Advocate-General ; L. Hewlett,                    L 1 86 , p. 64 ), the Kingdom of Belgium has failed to fulfil its
Administrator, for the Registrar, has given a judgment on                obligations under the EC Treaty — the Court ( Sixth
5 October 1995 , in which it rules :                                     Chamber ), composed of C. N. Kakouris , President of the
                                                                         Chamber, G. Hirsch ( Rapporteur ), G. F. Mancini , F. A.
                                                                         Schockweiler and P. J. G. Kapteyn , Judges ; G. Tesauro,
 1 . without prejudice to the application of special                     Advocate-General ; R. Grass, Registrar, has given a
      Community provisions in force governing trade with                 judgment on 12 October 1995 , in which it:
      certain   non-member countries,         Council Directive
      83/643 /EEC of 1 December 1983 on the facilitation of
      physical inspections and administrative formalities in              1 . declares that, by not adopting within the prescribed
      respect of the carriage ofgoods between Member States,                  period the laws, regulations and administrative
      as amended by Council Directive 87/53/EEC of                            provisions necessary to comply with Council Directive
       15 December 1986 , in particular the second indent                      91 /339/EEC of 18 June 1991 amending for the 11th


title: Removal from the register of T-173/96

text:
C 41/24                EN                Official Journal of the European Communities                                  7.2.98
Ð the Commission knew of, or could not in any event                 Communities ordered the removal from the register of
    have been unaware of, the dangerous nature of                   Case T-173/96: Teresa Maria Rodrigues Gomes de
    asbestos generally, and, in particular, the danger which        Oliveira v. Commission of the European Communities.
    it represented for persons performing tasks of an
    administrative nature and archive work in a building            (1) OJ C 388, 21.12.1996.
    contaminated with asbestos;
Ð the Commission knew that it lacked sufficient staff to
    monitor compliance with safety and hygiene standards
    generally and the protection measures applicable
    during the course of maintenance works.                         Removal from the register of Joined Cases T-176/96 and
                                                                                T-108/97 (1)
The unlawfulness of the conduct in question also results                                    (98/C 41/49)
from a disregard of the principles, rights and guarantees                          (Language of the case: French)
contained in the European Social Charter. Those
principles, rights and guarantees constitute general                By order of 4 December 1997, the President of the First
principles of Community law with which the Community                Chamber of the Court of First Instance of the European
authorities are required to comply and which the                    Communities ordered the removal from the register of
Community judicature is required to monitor. On the                 Joined Cases T-176/96 and T-108/97, Cornelis Volger v.
basis of that Charter, the applicant claims that all workers        European Parliament.
are entitled to safety and hygiene at work, that all persons
are entitled to the benefit of all such measures as will            (1) OJ C 388, 21.12.1996 and OJ C 181, 14.6.1997.
enable them to enjoy the best possible state of health and
that it is necessary, in so far as may be possible, to prevent
epidemic, endemic and other illnesses. In the present case,
the applicant's rights were disregarded and no measures
were taken to prevent diseases caused by contact with
asbestos.                                                                    Removal from the register of T-225/97 (1)
                                                                                (98/C 41/50)
                                                                                (Language of the case: French)
                                                                    By order of 17 December 1997, the President of the
                                                                    Fourth Chamber of the Court of First Instance of the
          Removal from the register of T-173/96 (1)                 European Communities ordered the removal from the
                          (98/C 41/48)                              register of Case T-225/97: Asia Motor France SA, Jean-
                                                                    Michel Cesbron, Monin Automobiles SA and Europe Auto
                (Language of the case: French)                      Service (EAS) SA v. Commission of the European
                                                                    Communities.
By order of 5 December 1997, the President of the Second
Chamber of the Court of First Instance of the European              (1) OJ C 318, 18.10.1997.


title: Case T-404/09: Judgment of the General Court of 12 November 2010 — Deutsche Bahn v OHIM (Horizontal combination of the colours grey and red) (Community trade mark — Application for Community trade mark consisting in a horizontal combination of the colours grey and red — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/25

         Judgment of the General Court of 12 November 2010 — Deutsche Bahn v OHIM (Horizontal combination of the colours grey and red)
   (Case T-404/09) (1)

   (Community trade mark - Application for Community trade mark consisting in a horizontal combination of the colours grey and red - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009)
   2011/C 13/48
   Language of the case: German

      Parties

      Applicant: Deutsche Bahn AG (Berlin, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 23 July 2009 (Case R 379/2009-1) concerning an application for registration of a colour sign, consisting in the combination of the colours grey and red, as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders Deutsche Bahn AG to pay the costs.

      (1)  OJ C 297, 5.12.2009.


title: Case T-357/15 P: Order of the General Court of 17 December 2015 — Garcia Minguez v Commission (Appeal — Civil Service — Recruitment — Commission internal competition open to the institution’s temporary staff — Non-admission to a member of the temporary staff of an executive agency — Article 29(1)(b) of the Staff Regulations — Equal treatment — Appeal manifestly devoid of any basis in law)

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/28

         Order of the General Court of 17 December 2015 — Garcia Minguez v Commission
   (Case T-357/15 P) (1)

   ((Appeal - Civil Service - Recruitment - Commission internal competition open to the institution’s temporary staff - Non-admission to a member of the temporary staff of an executive agency - Article 29(1)(b) of the Staff Regulations - Equal treatment - Appeal manifestly devoid of any basis in law))
   (2016/C 068/37)
   Language of the case: French

      Parties

      Appellant: Maria Luisa Garcia Minguez (Brussels, Belgium) (represented by: L. Ortiz Blanco and Á. Givaja Sanz, lawyers)

      Other party to the proceedings: European Commission (represented initially by: J. Currall, G. Gattinara and F. Simonetti, and subsquently by: G. Gattinara and F. Simonetti, acting as Agents)

      Re:

   Appeal against the order of the European Union Civil Service Tribunal (Second Chamber) of 28 April 2015 in Garcia Minguez v Commission (F-72/14, ECR-SC, EU:F:2015:40), seeking to have that order set aside.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Ms Maria Luisa Garcia Minguez shall pay the costs.

      (1)  OJ C 279, 24.8.2015


               25.9.2004

               EN

               Official Journal of the European Union

               C 239/28

         Removal from the Register of Case T-284/99 (1)

   (2004/C 239/63)

      (Language of the case: Dutch)

   By order of 4 May 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-284/99, Vlutters Kapitein B.V., supported by the Kingdom of the Netherlands v Commission of the European Communities.

      (1)  OJ C 47, 19.2.2000.


title: Case C-227/09: Judgment of the Court (Second Chamber) of 21 October 2010 (reference for a preliminary ruling from the Tribunale ordinario di Torino (Italy)) — Antonio Accardo and Others v Comune di Torino (Social policy — Protection of the safety and health of workers — Organisation of working time — Municipal police officers — Directive 93/104/EC — Directive 93/104/EC as amended by Directive 2000/34/EC — Directive 2003/88/EC — Articles 5, 17 and 18 — Maximum weekly working time — Collective agreements or agreements concluded between the two sides of industry at national or regional level — Derogations relating to deferred weekly rest periods and compensatory rest — Direct effect — Interpretation in conformity with European Union law)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/15

         Judgment of the Court (Second Chamber) of 21 October 2010 (reference for a preliminary ruling from the Tribunale ordinario di Torino (Italy)) — Antonio Accardo and Others v Comune di Torino
   (Case C-227/09) (1)

   (Social policy - Protection of the safety and health of workers - Organisation of working time - Municipal police officers - Directive 93/104/EC - Directive 93/104/EC as amended by Directive 2000/34/EC - Directive 2003/88/EC - Articles 5, 17 and 18 - Maximum weekly working time - Collective agreements or agreements concluded between the two sides of industry at national or regional level - Derogations relating to deferred weekly rest periods and compensatory rest - Direct effect - Interpretation in conformity with European Union law)
   2010/C 346/24
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Torino

      Parties to the main proceedings

      Applicants: Antonino Accardo, Viola Acella, Antonio Acuto, Domenico Ambrisi, Paolo Battaglino, Riccardo Bevilacqua, Fabrizio Bolla, Daniela Bottazzi, Roberto Brossa, Luigi Calabro′, Roberto Cammardella, Michelangelo Capaldi, Giorgio Castellaro, Davide Cauda, Tatiana Chiampo, Alessia Ciaravino, Alessandro Cicero, Paolo Curtabbi, Paolo Dabbene, Mauro D'Angelo, Giancarlo Destefanis, Mario Di Brita, Bianca Di Capua, Michele Di Chio, Marina Ferrero, Gino Forlani, Giovanni Galvagno, Sonia Genisio, Laura Dora Genovese, Sonia Gili, Maria Gualtieri, Gaetano La Spina, Maurizio Loggia, Giovanni Lucchetta, Sandra Magoga, Manuela Manfredi, Fabrizio Maschio, Sonia Mignone, Daniela Minissale, Domenico Mondello, Veronnica Mossa, Plinio Paduano, Barbaro Pallavidino, Monica Palumbo, Michele Paschetto, Frederica, Peinetti, Nadia Pizzimenti, Gianluca Ponzo, Enrico Pozzato, Gaetano Puccio, Danilo Ranzani, Pergianni Risso, Luisa Rossi, Paola Sabia, Renzo Sangiano, Davide Scagno, Paola Settia, Raffaella Sottoriva, Rossana Trancuccio, Fulvia Varotto, Giampiero Zucca, Fabrizio Lacognata, Guido Mandia, Luigi Rigon, Daniele Sgavetti

      Defendant: Comune di Torino

      Re:

   Reference for a preliminary ruling — Tribunale ordinario di Torino — Interpretation of Articles 5, 17 and 18 of Council Directive 93/104/CE of 23 November 1993 concerning certain aspects of the organisation of working time (JO 1993 L 307, p. 18) — Derogations relating to deferred weekly rest periods and compensatory rest — Applicability to members of the municipal police force

      Operative part of the judgment

               1.

               Article 17(3) of Council Directive 93/104/EC of 23 November 2003 concerning certain aspects of the organization of working time, in both its original version and in the version amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000, is independent in scope in relation to Article 17(2) thereof, so that the fact that a profession is not listed in Article 17(2) does not mean that it may not be covered by the derogation provided for in Article 17(3) in either of those versions of Directive 93/104.

               2.

               In circumstances such as those in the main proceedings, the optional derogations provided for in Article 17 of Directive 93/104 and Directive 93/104 as amended by Directive 2000/34 and, where relevant, Articles 17 and/or 18 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organization of working time, cannot be relied on against individuals such as the applicants in the main proceedings. Moreover, those provisions cannot be interpreted as permitting or precluding the application of collective agreements such as those at issue in the main proceedings, since whether such agreements apply is a matter for domestic law.

      (1)  OJ C 205, 29.8.2009.


title: Case C-378/07: Reference for a preliminary ruling from the Rethymnon Court of First Instance (Single Judge) (Greece) lodged on 8 August 2007 — K. Angelidaki, A. Aïvali, A Bavouraki, Kh. Kaparou, M. Lioni, E. Makriyiannaki, E. Nisanaki, Kh. Panayiotou, A. Pitsidianaki, M. Khalkiadaki, Kh. Khalkiadaki v Nomarkhiaki Avtodiikisi Rethymnis

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/24

         Reference for a preliminary ruling from the Rethymnon Court of First Instance (Single Judge) (Greece) lodged on 8 August 2007 — K. Angelidaki, A. Aïvali, A Bavouraki, Kh. Kaparou, M. Lioni, E. Makriyiannaki, E. Nisanaki, Kh. Panayiotou, A. Pitsidianaki, M. Khalkiadaki, Kh. Khalkiadaki v Nomarkhiaki Avtodiikisi Rethymnis
   (Case C-378/07)
   (2007/C 269/47)
   Language of the case: Greek
   Referring court
   Rethymnon Court of First Instance
   Parties to the main proceedings

      Applicants: Kyriaki Angelidaki, Anastasia. Aïvali, Angeliki Bavouraki, Khrisi. Kaparou, Manina. Lioni, Evangelia Makriyiannaki, Eleonora. Nisanaki, Khristiana. Panayiotou, A.nna Pitsidianaki, Maria Khalkiadaki and Khrisi. Khalkiadaki

      Defendant: Nomarkhiaki Avtodiikisi Rethymnis
   Questions referred

               1.

               Do clause 5 and clause 8(1) and (3) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which forms an integral part of Council Directive 1999/70/EC (OJ 1999 L 175 p. 43), mean that Community law (by reason of the application of the said Framework Agreement) does not allow a Member State to adopt measures (a) where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement already existed under national law before the directive entered into force and (b) where the measures adopted in order to apply the Framework Agreement reduce the general level of protection afforded to fixed-term workers under national law?

               2.

               If question 1 is answered in the affirmative, is the reduction in the protection afforded to fixed-term workers in the case of a single fixed-term employment contract (rather than several, successive contracts), under which the worker is in fact to provide services to meet ‘fixed and permanent’, rather than temporary, exceptional or urgent, requirements, connected to the application of the said Framework Agreement and the above directive and is such a reduction therefore permitted or not permitted from the point of view of Community law?

               3.

               If question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70/EC entered into force, such as Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level [of protection] afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement:

                           (a)

                           when the scope of the legal measure in question applying the Framework Agreement extends only to successive fixed-term employment contracts or relationships and not to persons who have concluded a single fixed-term contract of employment (rather than several, successive contracts) in order for the worker to meet ‘fixed and permanent’ requirements of the employer, while the earlier equivalent legal measure applied to all fixed-term contracts of employment, even where the worker concluded a single fixed-term employment contract, under which, in fact, the worker was to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements, and

                           (b)

                           when the legal measure in question for application of the Framework Agreement provides, as a legal consequence, for the purpose of protecting fixed-term workers and preventing abuse within the meaning of the Framework Agreement on fixed-term work, for fixed-term contracts thereafter (ex nunc) to be qualified as contracts of indefinite duration, while the earlier equivalent legal measure made provision for fixed-term contracts of employment to be qualified as contracts of indefinite duration from the time when they were originally concluded (ex tunc)?

               4.

               If question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70/EC, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the choice made by the Greek legislature, in transposing the above directive into Greek law, on the one hand, to exclude the said cases of abuse in which the worker has concluded a single fixed-time contract, under which, in fact, the worker was to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements, from the scope of protection of the above Presidential Decree 164/2004, and on the other hand, not to enact a similar, effective measure/legal consequence specific to the case, affording to workers in such cases of abuse protection over and above the general protection which is provided as standard under general Greek employment law whenever work is provided under an invalid contract, irrespective of whether or not there has been abuse within the meaning of the Framework Agreement, and which includes a claim on the part of the worker to payment of his wages and severance pay, regardless of whether or not he worked under a valid contract,
               an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, bearing in mind

                           (a)

                           that the obligation to pay wages and severance pay is provided for under national law for all employment relationships and is not intended specifically to prevent abuse within the meaning of the Framework Agreement, and

                           (b)

                           that the legal consequence of the application of the earlier equivalent legal measure is that a (single) fixed-term contract of employment is recognised as a contract of indefinite duration?

               5.

               If all the above questions are answered in the affirmative, should the national court, in interpreting national law in accordance with Directive 1999/70/EC, disapply the provisions of the legal measure which are not compatible with it, but which were adopted by reason of the application of the Framework Agreement and result in a reduction in the general level of protection afforded to fixed-term workers under national law, such as those in Presidential Decree 164/2004, which tacitly and indirectly (but clearly) deny the relevant protection in cases of abuse when the worker has concluded a single fixed-term contract of employment under which, in fact, he is to provide services to meet ‘fixed and permanent’ (rather than temporary, exceptional or urgent) requirements — and apply instead an equivalent legal measure which existed before the directive entered into force, such as Article 8(3) of Law 2112/1920?

               6.

               If the national court finds that a provision (in this case Article 8(3) of Law 2112/1920) that constitutes an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which is an integral part of Directive 1999/70/EC, is applicable in principle to a dispute over fixed-term work and, on the basis of that provision, the finding that even a single contract of employment was concluded as a fixed-term contract for no objective reason relating to the nature, type or features of the work offered means that the contract must be recognised as a contract of employment of indefinite duration, then

                           (a)

                           is it compatible with Community law for a national court to interpret and apply national law to the effect that the fact that a legal provision governing employment under a fixed-term contract of employment in order to meet seasonal, periodic, temporary, exceptional or additional social needs (in this case Law 3250/2004, FEK A 124A/7.7.2004) was used as the legal basis for concluding a fixed-term contract constitutes an objective reason in all cases for concluding such contracts, even though the requirements covered were in fact fixed and permanent, and

                           (b)

                           is it compatible with Community law for a national court to interpret and apply national law to the effect that a provision prohibiting the conversion of fixed-term contracts of employment in the public sector to contracts of indefinite duration must be construed as an absolute prohibition in any circumstance on converting a fixed-term employment contract or relationship in the public sector to a employment contract or relationship of indefinite duration, even if it was wrongfully concluded as a fixed-term contract, that is to say, when the requirements met were in fact fixed and permanent, and that the national court has no discretion in such cases to make a finding as to the true character of the legal employment relationship at issue and correctly qualify it as a contract of indefinite duration? Alternatively, should the prohibition in question be restricted solely to fixed-term contracts of employment which were in fact concluded in order to meet temporary, unforeseeable, urgent, exceptional or similar types of special requirements and not to cases in which they were in fact concluded in order to meet fixed and permanent requirements?


title: Case C-439/09: Reference for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 10 November 2009 — Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la Concurrence, Ministre de l’Economie de l’Industrie et de l’Emploi

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/27

         Reference for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 10 November 2009 — Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la Concurrence, Ministre de l’Economie de l’Industrie et de l’Emploi
   (Case C-439/09)
   2010/C 24/49
   Language of the case: French

      Referring court

   Cour d’appel de Paris

      Parties to the main proceedings

      Applicant: Pierre Fabre Dermo-Cosmétique SAS

      Defendants: Président de l’Autorité de la Concurrence, Ministre de l’Economie de l’Industrie et de l’Emploi

      Question referred

   Does a general and absolute ban on selling contract goods to end users via the Internet, imposed on authorised distributors in the context of a selective distribution network, in fact constitute a ‘hardcore’ restriction of competition by object for the purposes of Article 81(1) EC which is not covered by the block exemption provided for by Regulation No 2790/1999 (1) but which is potentially eligible for an individual exemption under Article 81(3) EC?

      (1)  Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ 1999 L 336 p. 21)


title: Case C-513/11: Reference for a preliminary ruling from the Työtuomioistuin (Finland) lodged on 3 October 2011 — Ylemmät Toimihenkilöt YTN ry v Teknologiateollisuus ry, Nokia Siemens Networks Oy

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/25

         Reference for a preliminary ruling from the Työtuomioistuin (Finland) lodged on 3 October 2011 — Ylemmät Toimihenkilöt YTN ry v Teknologiateollisuus ry, Nokia Siemens Networks Oy
   (Case C-513/11)
   2011/C 347/36
   Language of the case: Finnish

      Referring court

   Työtuomioistuin

      Parties to the main proceedings

      Applicant: Ylemmät Toimihenkilöt YTN ry

      Defendants: Teknologiateollisuus ry, Nokia Siemens Networks Oy

      Question referred

   Do Directive 2006/54/EC (1) of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation and Council Directive 92/85/EEC (2) of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding preclude a national collective agreement from being interpreted as meaning that an employee moving from unpaid child-care leave to maternity leave is not paid remuneration during maternity leave in accordance with the collective agreement?

      (1)  OJ 2006 L 204, p. 23.

      (2)  OJ 1992 L 348, p. 1.


title: Action brought on 3 February 1999 by the Commission of the European Communities against the Republic of Austria (Case C-25/99)

text:
27.3.1999              EN                 Official Journal of the European Communities                                   C 86/11
     Germany has failed to fulfil its obligations under                   93/119/EC of 22 December 1993 on the protection of
     Articles 2(1) and 4(1) of Council Directive                          animals at the time of slaughter or killing (1), the
     85/337/EEC (1) of 27 June 1985 on the assessment of                  Republic of Austria has failed to fulfil its obligations
     the effects of certain public and private projects on the            under the EC Treaty and that directive.
     environment.
                                                                     2. Order the defendant to pay the costs.
2. Order the Federal Republic of Germany to pay the
     costs.
                                                                     Pleas in law and main arguments adduced in support:
Pleas in law and main arguments adduced in support:                  The pleas in law and main arguments are the same as in
                                                                     Case-20/1999 (2).
Acording to the German legislative provisions referred to            (1) OJ L 340, 31.12.1993, p. 21.
in 1., it is possible, in the circumstances described therein,       (2) See p. 9 of this Official Journal.
to implement projects relating to road construction and
airports which are subject, as projects covered by Annex I
to the directive, to assessment of their effects on the
environment, without any procedure for the official
approval of the plans Ð and thus without any assessment
of their effects on the environment. Under the German
legislation, assessment of environmental effects may be              Action brought on 3 February 1999 by the Commission of
dispensed with where the public interest is not affected             the European Communities against the Grand Duchy of
and where, moreover, the rights of third parties are not                                         Luxembourg
affected or where a form of contract has been concluded                                        (Case C-26/99)
with the legal owners of the land with a view to the
implementation of the projects in question. By contrast,                                       (1999/C 86/22)
the provisions of Directive 85/337/EEC are not mentioned
in the national legislation; nor does that legislation take
into account the requirements laid down in the directive.            An action against the Grand Duchy of Luxembourg was
                                                                     brought before the Court of Justice of the European
(1) OJ L 175, 5.7.1985, p. 40.                                       Communities on 3 February 1999 by the Commission of
                                                                     the European Communities, represented by Pieter Jan
                                                                     Kuijper, Legal Adviser, and Nicola Yerrell, national civil
                                                                     servant on secondment to the Legal Service, acting as
                                                                     Agents, with an address for service in Luxembourg at the
                                                                     Office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                     Wagner Centre, Kirchberg.
Action brought on 3 February 1999 by the Commission of
the European Communities against the Republic of                     The Commission of the European Communities claims
                             Austria                                 that the Court should:
                         (Case C-25/99)
                         (1999/C 86/21)                              Ð Declare that, by failing to adopt and bring into force
                                                                          within the prescribed period the laws, regulations and
                                                                          administrative provisions necessary to comply with
                                                                          Commission Directive 95/30/EC of 30 June 1995
An action against the Republic of Austria was brought                     adapting to technical progress Council Directive
before the Court of Justice of the European Communities                   90/679/EEC on the protection of workers from risks
on 3 February 1999 by the Commission of the European                      related to exposure to biological agents at work (1), the
Communities, represented by Michael Niejahr, of its Legal                 Grand Duchy of Luxembourg has failed to fulfil its
Service, acting as Agent, with an address for service in                  obligations under the EC Treaty; and
Luxembourg at the Office of Carlos Gómez de la Cruz, of
its Legal Service, Wagner Centre, Kirchberg.
                                                                     Ð Order the Grand Duchy of Luxembourg to pay the
                                                                          costs.
The applicant claims that the Court should:
                                                                     Pleas in law and main arguments adduced in support:
1. Declare that, by failing to adopt within the prescribed
     period the laws, regulations and administrative                 The mandatory nature of the provisions of Article 189(3)
     provisions necessary to comply with Council Directive           and Article 5(1) of the EC Treaty requires Member States


title: Case T-376/07: Judgment of the Court of First Instance of 25 November 2009 — Germany v Commission (State aid — Aid to small and medium-sized enterprises — Decision requiring information to be provided concerning two State aid schemes — Commission’s monitoring powers under the fourth sentence of Article 9(2) of Regulation (EC) No 70/2001)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/24

         Judgment of the Court of First Instance of 25 November 2009 — Germany v Commission
   (Case T-376/07) (1)

   (State aid - Aid to small and medium-sized enterprises - Decision requiring information to be provided concerning two State aid schemes - Commission’s monitoring powers under the fourth sentence of Article 9(2) of Regulation (EC) No 70/2001)
   2010/C 11/45
   Language of the case: German

      Parties

      Applicant: Federal Republic of Germany (represented by: M. Lumma, J. Möller and B. Klein, Agents)

      Defendant: Commission of the European Communities (represented by: K. Gross and B. Martenczuk, Agents)

      Re:

   Annulment of Commission Decision C (2007) 3226 of 18 July 2007 requiring information to be provided concerning two State aid schemes coming under Commission Regulation (EC) No 70/2001 of 12 January 2001 on the application of Articles [87 EC] and [88 EC] to State aid to small and medium-sized enterprises (OJ 2001 L 10, p. 33)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 297, 8.12.2007.


title: Case T -86/03: Order of the Court of First Instance of  21 March 2006  — Holcim (France) v Commission

text:
               20.5.2006

               EN

               Official Journal of the European Union

               C 121/18

         Order of the Court of First Instance of 21 March 2006 — Holcim (France) v Commission
   (Case T -86/03) (1)

   (2006/C 121/34)

      Language of the case: French

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

      (1)  OJ C 112, 10.5.2003.


title: Case T-741/14: Action brought on 27 October 2014 — Hersill v OHIM — KCI Licensing (VACUP)

text:
               15.12.2014

               EN

               Official Journal of the European Union

               C 448/37

         Action brought on 27 October 2014 — Hersill v OHIM — KCI Licensing (VACUP)
   (Case T-741/14)
   (2014/C 448/46)
   Language in which the application was lodged: English

      Parties

      Applicant: Hersill, SL (Móstoles, Spain) (represented by: M. Aznar Alonso, lawyer)

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

      Other party to the proceedings before the Board of Appeal: KCI Licensing, Inc. (San Antonio, United States)

      Details of the proceedings before OHIM

      Applicant: The other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community trade mark application No 9 9 43  499

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 14 August 2014 in Case R 1520/2013-2

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the present appeal as well founded and annul the contested decision;

               —

               order OHIM and the other party to the proceedings before the Board of Appeal, should they appear as parties in the present process, to pay the costs.

      Pleas in law

               —

               Infringement of Article 42(2) of Regulation No 207/2009 and of Rule 22(3) of Regulation No 2868/95;

               —

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


title: Case C-55/12: Action brought on 2 February 2012 — European Commission v Ireland

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/18

         Action brought on 2 February 2012 — European Commission v Ireland
   (Case C-55/12)
   2012/C 89/28
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: R. Lyal, W. Mölls, Agents)

      Defendant: Ireland

      The applicant claims that the Court should:

               —

               declare that by granting excise duty relief for the fuel used by disabled people for motor vehicles without respecting the minimum levels of taxation prescribed by Council Directive 2003/96/EC (1) Ireland has failed to fulfil its obligations under that Directive;

               —

               order Ireland to pay the costs.

      Pleas in law and main arguments

   The Commission submits that, by maintaining the exemption from excise duty of motor fuels used by disabled people, Ireland is in breach of its obligations under the directive.

      (1)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity
   OJ L 283, p. 51


title: Case C-96/03: Reference for a preliminary ruling by the College van Beroep voor het Bedrĳfsleven by judgment of that Court of 7 January 2003 in the proceedings between A. Tempelman and Directeur van de Rĳksdienst voor de keuring van Vee en Vlees

text:
C 146/14                EN                        Official Journal of the European Union                                          21.6.2003
            order the Community to pay compensation to be                 Pleas in law and main arguments
            determined on an equitable basis by the Court of
            Justice, plus annual interest of 8 % from the date of         —      Incorrect implementation of Article 5 of the Directive.
            the application at first instance to the date of full                The Law transposing Article 5 of Directive 93/13/EEC
            and final payment;                                                   into Spanish law fails to mention that the rule that the
                                                                                interpretation that is the most favourable to the consumer
3.     order the respondent to pay the costs of both sets of                     is to prevail is not to apply in the context of the
       proceedings, in accordance with Article 69(2) of the Rules                procedures laid down in Article 7(2) of the Directive
       of Procedure.                                                             (prohibitory actions). Thus a situation is created in which
                                                                                consumers run the risk that the interpretation rule may
                                                                                go counter to their interests, inasmuch as it will be an
                                                                                obstacle to the removal from contracts with consumers,
                                                                                by means of a prohibitory action, unclear terms which,
Pleas in law and main arguments                                                  according to a ‘normal’ interpretation, are unfair;
                                                                          —      incorrect implementation of Article 6(2) of the Directive:
The pleas in law and main arguments are similar to those in                      by referring to the provision ‘in Article 5 of the 1980
Case C-41/03 P, it being understood that the present case                        Rome Convention on the Law applicable to Contractual
relates to Regulation (EC) No 2081/2000.                                         Obligations’, the Spanish Law limits the protection offered
                                                                                by the Directive to consumers, by introducing a twofold
                                                                                restriction. Thus, the Directive provides for the protection
( 1) Commission Regulation (EC) No 2081/2000 of 29 September                     of all consumers in all contracts concluded with a seller
     2000 providing for the continued application of safeguard                   or supplier, whereas the Spanish Law provides such
     measures for imports from the overseas countries and territories            protection only for certain types of contract and only
     of sugar sector products with EC/OCT cumulation of origin                   where certain conditions are satisfied, a twofold restric-
     (OJ 2000 L 246, p. 64).                                                     tion prohibited by the Directive.
                                                                          (1 ) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in
                                                                               consumer contracts (OJ L 95 of 21.4.1993, p. 29).
Action brought on 17 February 2003 by the Commission
of the European Communities against the Kingdom of
                                Spain
                                                                          Reference for a preliminary ruling by the College van
                           (Case C-70/03)                                 Beroep voor het Bedrijfsleven by judgment of that Court
                                                                          of 7 January 2003 in the proceedings between A. Tempel-
                                                                          man and Directeur van de Rijksdienst voor de keuring
                          (2003/C 146/23)                                                          van Vee en Vlees
                                                                                (Case C-96/03)
An action against the Kingdom of Spain was brought before
                                                                                (2003/C 146/24)
the Court of Justice of the European Communities on 17 Febru-
ary 2003 by the Commission of the European Communities,
represented by Isabel Martínez del Peral and Miguel França, of
its Legal Service, with an address for service in Luxembourg.
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by judgment of the College van Beroep
                                                                          voor het Bedrijfsleven (Administrative Court for Trade and
The applicant claims that the Court should:
                                                                          Industry) of 7 January 2003, received at the Court Registry on
                                                                          4 March 2003, for a preliminary ruling in the proceedings
1.     Declare that, by failing to transpose fully into its national      between A. Tempelman and Directeur van de Rijksdienst voor
       law Articles 5 and 6(2) of Directive 93/12/EEC (1) of              de keuring van Vee en Vlees on the following questions:
       5 April 1993 on unfair terms in consumer contracts, the
       Kingdom of Spain has failed to fulfil its obligations under        1.     May a Member State derive from Community law the
       the Treaty and under that directive;
                                                                                power to decide to kill animals which are suspected of
                                                                                being infected or contaminated with the foot-and-mouth
2.     Order the Kingdom of Spain to pay the costs.                              virus?
 ---pagebreak--- 21.6.2003              EN                     Official Journal of the European Union                                          C 146/15
2.    Does Directive 85/511/EEC (1), as amended by Directive          Action brought on 28 February 2003 by the Commission
      90/423/EEC (2), afford the Member States scope to (order        of the European Communities against the Federal Repub-
      or) take supplementary national measures to control foot-                                lic of Germany
      and-mouth disease?
3.    What limits does Community law place on a Member                                          (Case C-98/03)
      State with regard to taking supplementary national
      measures other than those provided for in Directive 85/
      511/EEC, as amended by Directive 90/423/EEC?                                            (2003/C 146/26)
( 1) OJ L 315 [1985], p. 11.
( 2) OJ L 224 [1990], p. 13.
                                                                      An action against the Federal Republic of Germany was
                                                                      brought before the Court of Justice of the European Communi-
                                                                      ties on 28 February 2003 by the Commission of the European
                                                                      Communities, represented by Ulrich Wölker, Legal Adviser of
                                                                      the Commission of the European Communities, with an
                                                                      address for service in Luxembourg.
Reference for a preliminary ruling by the College van
Beroep voor het Bedrijfsleven by judgment of that Court               The applicant claims that the Court should:
of 7 January 2003 in the proceedings between Mr and
Mrs T.H.J.M. van Schaijk and Directeur van de Rijksdienst
               voor de keuring van Vee en Vlees                       1.    Declare that
                           (Case C-97/03)                                   —    by not providing for the duty to carry out an
                                                                                assessment of the implications in the case of certain
                                                                                projects outside special areas of conservation, as
                          (2003/C 146/25)                                        referred to in Article 4(1) of Council Directive 92/
                                                                                43/EEC ( 1) of 21 May 1992 on the conservation of
                                                                                natural habitats and of wild fauna and flora, which
                                                                                pursuant to Article 6(3) and (4) of the directive are
Reference has been made to the Court of Justice of the                           to be subject to such an assessment irrespective of
European Communities by judgment of the College van Beroep                       whether those projects are likely to have a significant
voor het Bedrijfsleven (Administrative Court for Trade and                       effect on an area of special conservation;
Industry) of 7 January 2003, received at the Court Registry on
4 March 2003, for a preliminary ruling in the proceedings                   —    by authorising emissions in a special area of conser-
between Mr and Mrs T.H.J.M. van Schaijk and Directeur van                        vation, irrespective of whether they are likely to
de Rijksdienst voor de keuring van Vee en Vlees on the                           have a significant effect on that area;
following questions:
1.    May a Member State derive from Community law the                      —    by derogating from the scope of the provisions
      power to decide to kill animals which are suspected of                     concerning the protection of species in the case of
      being infected or contaminated with the foot-and-mouth                     certain non-deliberate effects on protected animals;
      virus?
                                                                            —    by failing to ensure compliance with the criteria for
2.    Does Directive 85/511/EEC (1), as amended by Directive                     derogation set out in Article 16 of the directive in
      90/423/EEC (2), afford the Member States scope to (order                   the case of certain activities which are supposed to
      or) take supplementary national measures to control foot-                  be compatible with conservation of an area;
      and-mouth disease?
                                                                            —    by retaining provisions on the application of pestic-
3.    What limits does Community law place on a Member                           ides which do not take sufficient account of the
      State with regard to taking supplementary national                         protection of species;
      measures other than those provided for in Directive 85/
      511/EEC, as amended by Directive 90/423/EEC?
                                                                            —    by failing to notify fishery catch legislation and/or
                                                                                to ensure that such legislation contains adequate
( 1) OJ L 315 [1985], p. 11.                                                     bans on fishing,
( 2) OJ L 224 [1990], p. 13.
                                                                            the Federal Republic of Germany has failed to fulfil its
                                                                            obligations under the directive.


title: Case T-271/03: Action brought on 30 July 2003 by Deutsche Telekom AG against the Commission of the European Communities

text:
1.11.2003             EN                          Official Journal of the European Union                                         C 264/29
Pleas in law and main arguments                                           The applicant claims that the Court should:
Applicant for Com-            The applicant.                              —     annul the defendant’s decision of 21 May 2003, published
munity trade mark:                                                              under Case No C(2003)1536 final;
Community trade mark          Figurative colour mark ‘GLOVE’
sought:                       — Application No 464016 for a               —     in the alternative, reduce the fine imposed in Article 3 of
                              range of goods and services in                    the decision at the Court’s discretion;
                              Classes 25, 35 and 41.
Proprietor of mark or         RCN-Companhia de importaçao e               —     order the defendant to pay the costs, including pre-
sign cited in the oppo-       esportaçao de Texteis, Lda.                       litigation costs.
sition proceedings:
Mark or sign cited in the     Spanish                 (registration
opposition:                   No 1.629.840) and international
                              (registration No 651.424) figurat-
                              ive trade mark ‘GLOIBE’ and por-            Pleas in law and main arguments
                              tuguese (registration No 310.796)
                              and        spanish      (registration
                              No 1.981.850) word trade mark
                              ‘GLOBE’ for goods in Class 25               By the contested decision the Commission decided that the
                              (clothing, footwear and belts).             applicant had infringed Article 82a of the EC Treaty by
                                                                          charging its competitors and final customers excessive monthly
Decision of the Oppo-         Refusal of the application for              and flat-rate fees for access to its fixed network, thereby
sition Division:              goods in class 25 (namely cloth-            impeding competition for access to the network on the market.
                              ing, footwear and belts) and                The applicant was fined EUR 12,6 million.
                              admission of the Community tra-
                              de mark application for the
                              remaining services in Classes 35
                              and 41.                                     The applicant claims that the Commission infringed Article 82
                                                                          EC on the basis that it could not be accused of anti-competitive
Decision of the Board of      Rejection of the appeal.                    conduct because the amount of the contested fees could not
Appeal:                                                                   be excessive since there was no restriction of competition.
                                                                          Contrary to the Commission’s view, the cost/price discrepancy
Pleas in law:                 Incorrect        application        of      according to the method it used is neither appropriate nor
                              Article 8(1) of Regulation (EC)             sufficient to support a finding that the applicant’s advance and
                              No 40/94 (Absence of confusion,             final-customer fees were anti-competitive. The Commission’s
                              lack of any risk of association and         analysis of the cost/price discrepancy was misconceived in its
                              slight similarity of the products).         methods and there was no restriction of competition.
                                                                          The applicant also claims that the Commission exceeded its
                                                                          discretion in adopting the contested decision. By its decision
                                                                          the Commission is impinging on the competencies conferred
                                                                          by Community law on the German regulatory authority for
Action brought on 30 July 2003 by Deutsche Telekom AG                     post and telecommunications and attempting to correct the
against the Commission of the European Communities                        way in which the contested fees are regulated. For the same
                                                                          reason the decision is disproportionate. Its effect is to subject
                                                                          the applicant’s fees for access to the network to twofold
                        (Case T-271/03)                                   regulation and it therefore undermines the legal certainty
                                                                          intended to be created by the allocation of competence
                        (2003/C 264/51)                                   established by Community law in respect of fees in the
                                                                          telecommunications sector.
                  (Language of the case: German)
                                                                          Finally, by imposing a fine on the applicant, the defendant
                                                                          infringed essential procedural requirements and Article 15(2)
An Action against the Commission of the European Communi-                 of Regulation No 17/62.
ties was brought before the Court of First Instance of the
European Communities on 30 July 2003 by Deutsche Telekom
AG, Bonn (Germany), represented by K. Quack, U. Quack and
S. Ohlhoff, lawyers.