title: Case T-271/10: Order of the General Court of 10 July 2014  — H v Council and Others (Application for annulment — Application for damages — Common foreign and security policy — National expert seconded to the EUPM in Bosnia and Herzegovina — Decision to redeploy — Lack of jurisdiction of the General Court — Inadmissibility)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/48

         Order of the General Court of 10 July 2014 — H v Council and Others
   (Case T-271/10) (1)

   ((Application for annulment - Application for damages - Common foreign and security policy - National expert seconded to the EUPM in Bosnia and Herzegovina - Decision to redeploy - Lack of jurisdiction of the General Court - Inadmissibility))
   2014/C 315/82
   Language of the case: English

      Parties

      Applicant: H (Catania, Italy) (represented initially by: C. Mereu and M. Velardo, and subsequently by M. Velardo, lawyers)

      Defendants: Council of the European Union (represented by: A. Vitro, G. Marhic and M.-M. Joséphidès, acting as Agents); European Commission (represented by F. Erlbacher and B. Eggers, acting as Agents); and European Union Police Mission (EUPM) in Bosnia and Herzegovina (Sarajevo (Bosnia and Herzegovina))

      Re:

   Application, first, for annulment of the decision of 7 April 2010, signed by the Chief of Personnel of the EUPM, by which the applicant was redeployed to the post of ‘Criminal Justice Adviser — Prosecutor’ in the regional office of Banja Luka (Bosnia and Herzegovina) and, if needed, of the decision of 30 April 2010, signed by the Head of Mission referred to in Article 6 of Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (BiH) (OJ 2009 L 322, p. 22), confirming the decision of 7 April 2010, and second, for damages,

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Ms H shall bear her own costs and those incurred by the Council of the European Union and the European Commission.

      (1)  OJ C 221, 14.8.2010.


title: Case C-19/17: Request for a preliminary ruling from the Sąd Okręgowy we Wrocławiu (Poland) lodged on 17 January 2017 — Skarb Państwa — Wojewoda Dolnośląski v Gmina Trzebnica

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/6

         Request for a preliminary ruling from the Sąd Okręgowy we Wrocławiu (Poland) lodged on 17 January 2017 — Skarb Państwa — Wojewoda Dolnośląski v Gmina Trzebnica
   (Case C-19/17)
   (2017/C 161/08)
   Language of the case: Polish

      Referring court

   Sąd Okręgowy we Wrocławiu

      Parties to the main proceedings

      Applicant: Skarb Państwa — Wojewoda Dolnośląski

      Defendant: Gmina Trzebnica

      Questions referred

               1.

               Do contributions in kind which a beneficiary receives on account of penalties or indemnities in connection with the non-performance or late performance of an obligation constitute receipts within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003? (1)

               2.

               If Question 1 is answered in the affirmative:

                           (a)

                           Can losses or additional costs incurred by the beneficiary in connection with the non-performance or late performance of a contract by a contractor be deducted from receipts in the form of penalties?

                           (b)

                           Does a contribution in kind by the contractor consisting in the performance for the beneficiary of other works which are in no way linked to the object of the financing and which release the contractor from the obligation to pay the contractual penalty (datio in solutum) constitute a receipt within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003?

               3.

               If the answers to Questions 1 and 2a are in the affirmative, is the amount of the receipt obtained by the beneficiary to be taken to be the amount of the contractual penalty imposed on the contractor or the value of the contribution in kind?

               4.

               Can the amount of the receipts obtained by the beneficiary during the period of the assistance be deducted from the co-financing after the closure of the assistance within the meaning of Rule No 2 of Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003?

               5.

               If Question 4 is answered in the affirmative, can the amount of the receipts obtained by the beneficiary be deducted from the co-financing where those receipts were not notified to the Commission by the Member State before the closure of the assistance?

      (1)  OJ 2004 L 72, p. 66.


title: Case T-92/01: Action brought on 27 April 2001 by Marie-Claude Girardot against the Commission of the European Communities

text:
30.6.2001              EN                     Official Journal of the European Communities                                      C 186/15
—     alternatively, annul Article 1 of the decision of 19 July          —     manifest error in the calculation of the overall aid
      2000, inasmuch as it establishes that the fixed-price                    intensity. The applicant points out in that connection
      guarantees by the Province of Burgenland for the pro-                    that the calculation leaves out of account environmental
      vision of process utilities and the provision of aid of an               aid and other eligible costs, as well as existing aid. The
      unknown amount in the form of the creation of com-                       defendant should have examined not only whether the
      pany-specific infrastructure do not constitute aid within                threshold fixed by the scheme was observed but also
      the meaning of Article 87(1) of the EC Treaty;                           whether the aid, despite pursuing a different objective,
                                                                               covers jointly eligible costs as provided for in the
                                                                               directives on State aid designed to achieve regional
—     order the European Commission to pay all the costs.                      objectives.
                                                                         Lastly, the applicant argues that the application of the excep-
                                                                         tions laid down in Article 87(3) of the EC Treaty is unlawful,
                                                                         and that the procedural rules provided for in Article 88(3) of
Pleas in law and main arguments                                          the Treaty have been infringed.
                                                                         (1) OJ L 38 of 8.2.01, p. 33.
The present action is directed against Commission Decision
2001/102/EC of 19 July 2000 on State aid granted by Austria
to Lenzing Lyocell GmbH & Co KG (hereinafter ‘LLG’), notified
under document number C(2000) 2454) (1). That aid was
linked to a project for the construction of a new plant for the
production of Lyocell, a new type of man-made staple fibre
produced from natural cellulose in wood pulp.
                                                                         Action brought on 27 April 2001 by Marie-Claude Girar-
In support of its claims, the applicant pleads:                          dot against the Commission of the European Communi-
                                                                                ties
—     an error of law, inasmuch as no consideration has been
      given to the sectorial effects of the aid granted to LLG. It                                  (Case T-92/01)
      is asserted in that regard that, in the contested decision,
      the Commission attached greater importance to the                                            (2001/C 186/23)
      regional aspect of the aid than to the sectorial aspect, as
      regards both the rules governing compatibility and the
      procedural rules. In particular, the applicant is unable to
      see how the defendant, knowing that the fibres market is                               (Language of the case: French)
      suffering from problems of overcapacity, could have
      authorised a State aid scheme in favour of LLG allowing
                                                                         An action against the Commission of the European Communi-
      new production capacity to be established in the Burgen-
                                                                         ties was brought before the Court of First Instance of the
      land region. The applicant also considers that the Com-
                                                                         European Communities on 27 April 2001 by Marie-Claude
      mission has failed to take into account the existence of
                                                                         Girardot, residing in Brussels, represented by Jean-Noël Louis
      specific measures applicable to the man-made fibres
                                                                         and Véronique Peere, avocats, having an address for service in
      sector;
                                                                         Luxembourg.
—     a manifest error of assessment of the innovative character         The applicant claims that the Court should:
      of the product. The applicant observes that one of the
      criteria used by the Commission in order to authorise              —     annul the decision of the Selection Committee in Compe-
      certain of the contested measures is the innovative                      tition COM/R/A/01/1999 to award the applicant a mark
      character of the product and of the production process.                  insufficient for her to be included on the reserve list;
      In its view, Lyocell is not innovative, either as a product
      or as a production process. Consequently, there do not             —     order the defendant to pay the costs.
      exist two distinct product markets limiting the effects on
      competition;
                                                                         Pleas in law and main arguments
—     disregard of the obligation to provide a statement of
      reasons, inasmuch as no justification has been given for
      the finding that the aid investment will have only a               The applicant in the present case challenges her non-inclusion
      limited effect on competition;                                     on the reserve list for Competition COM/R/A/01/1999.
 ---pagebreak--- C 186/16              EN                     Official Journal of the European Communities                                     30.6.2001
In support of her claim the applicant alleges:                          Pleas in law and main arguments
—    Infringement of the selection notice, of essential pro-            The applicant seeks the annulment of the decision of the
     cedural requirements, and of the rules governing the               ECB of 25 September 2000 refusing her the benefit of an
     operation of selection boards (principle of independence);         educational allowance, and the decisions of the ECB of
                                                                        21 December 2000, rejecting the appellant’s administrative
—    The existence, in casu, of a manifest error of assessment;         review, and of 20 February 2000, rejecting the appellant’s
                                                                        grievance.
—    Breach of the obligation to provide reasons;
—    Infringement of the principle of transparency;                     The educational allowance was refused to the applicant on the
                                                                        basis of Article 19 of the Conditions of Employment of the
                                                                        staff of the ECB. According to that article, members of the staff
—    Infringement of the principle of equal treatment.
                                                                        of the ECB who are entitled to an expatriation allowance of
                                                                        16 % are also entitled to an educational allowance for each
                                                                        dependent child until the establishment of a European school
                                                                        in the Frankfurt area. The applicant has the German nationality
                                                                        and is therefore not entitled to an expatriation allowance.
                                                                        According to the ECB she is for this reason also not entitled to
                                                                        an educational allowance for her oldest child.
                                                                        The applicant claims:
                                                                        —     that this difference in treatment between staff members
Action brought on 27 April 2001 by Astrid Hirsch against                      entitled to an expatriation allowance and those who are
                 the European Central Bank.                                   not entitled to an expatriation allowance, is unjustified
                                                                              and therefore constitutes a breach of the principle of non-
                                                                              discrimination.
                         (Case T-94/01)
                                                                        —     that the administration has failed in its obligation of
                                                                              due care since it has not taken into consideration the
                        (2001/C 186/24)                                       applicant’s situation.
                  (Language of the case: English)
An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 27 April 2001 by Astrid Hirsch, resident in Germany,                 Action brought on 4 May 2001 by Gérard Goget, Pierre
represented by Georges Vandersanden and Laure Levi, of                  Huge and Emmanuel Gabolde v Court of Auditors of the
DeBacker Association, Brussels (Belgium).                                                   European Communities
The applicant claims that the Court should:                                                       (Case T-95/01)
—    annul the decision of the European Central Bank of                                          (2001/C 186/25)
     25 September 2000 refusing the applicant the benefit of
     the education allowance and therefore the reimbursement
     of the tuition fees that the applicant has to pay for                                 (Language of the case: French)
     the attendance of her son at the Internationale Schule
     Frankfurt and, if necessary, annul the decisions of the
     European Central Bank of 21 December 2000 rejecting                An action against the Court of Auditors of the European
     the applicant’s administrative review and of 20 February           Communities was brought before the Court of First Instance
     2000 rejecting the applicant’s grievance;                          on 4 May 2001 by Gérard Goget, residing in Hettange-Grande,
                                                                        France, Pierre Huge, residing in Bonnevoie, Grand Duchy of
—    order the ECB to reimburse the tuition fees amounting to           Luxembourg, and Emmanuel Gabolde, residing in Metz,
     EUR 11 370,00 for the school year 2000-2001 and of                 France, represented by the lawyer André Soulier, with an
     future tuition fees for the future school years, with an           address for service in Luxembourg.
     interest of 8 % per year from 1 of September of each year
     until the due payment, and order the ECB to reimburse              The applicants claim that the Court of First Instance should:
     the installation fees amounting to EUR 5 922 with an               —     Annul the decision of 22 February 2001 with all the
     interest of 8 % per year from 1 of September 2001;                       consequences in law;
—    order the ECB to pay the costs.                                    —     Order the defendant to pay the costs.


title: Case C-536/10 P: Order of the Court (Seventh Chamber) of 7 July 2011 — MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Absolute ground for refusal — Lack of distinctive character — Word sign ROI ANALYZER )

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/15

         Order of the Court (Seventh Chamber) of 7 July 2011 — MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-536/10 P) (1)

   (Appeal - Community trade mark - Absolute ground for refusal - Lack of distinctive character - Word sign ‘ROI ANALYZER’)
   2011/C 311/22
   Language of the case: German

      Parties

      Appellant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor (represented by: W. Göpfert, Rechtsanwalt)

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

      Re:

   Appeal against the judgment of the General Court (Second Chamber) delivered on 10 September 2010 in Case T-233/08 MPDV Mikrolab v OHIM, by which the General Court dismissed the action for annulment of the decision of the Fourth Board of Appeal of OHIM of 15 April 2008 dismissing the appeal against the examiner’s decision to refuse registration of the word sign ‘ROI ANALYZER’ as a Community trade mark for certain goods and services in Classes 9, 35 and 42 — Distinctive character of the mark

      Operative part of the order

               1.

               The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded;

               2.

               MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor is ordered to pay the costs.

      (1)  OJ C 30, 29.1.2011.


title: Case T-698/15: Judgment of the General Court of 1 March 2017 — Silvan v Commission (Appeal — Civil service — Officials — 2013 promotion exercise — Decision not to promote the appellant — Comparison of the merits — Taking into account of staff reports — No error of law)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/27

         Judgment of the General Court of 1 March 2017 — Silvan v Commission
   (Case T-698/15) (1)

   ((Appeal - Civil service - Officials - 2013 promotion exercise - Decision not to promote the appellant - Comparison of the merits - Taking into account of staff reports - No error of law))
   (2017/C 121/38)
   Language of the case: French

      Parties

      Appellant: Juha Tapio Silvan (Brussels, Belgium) (represented by: N. de Montigny and J.-N. Louis, lawyers)

      Other party to the proceedings: European Commission (represented by: G. Berscheid and C. Berardis-Kayser, acting as Agents)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 22 September 2015, Silvan v Commission (F-83/14, EU:F:2015:106), and asking for annulment of that judgment.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the appeal;

               2)

               Orders Mr Juha Tapio Silvan to bear his own costs as well as those incurred by the European Commission in the context of the present proceedings.

      (1)  OJ C 59, 15.2.2016.


title: Action brought on 12 July 1996 by Mireille Cesaratto against the European Parliament (Case T-108/96)

text:
5 . 10 . 96              EN                 Official Journal of the European Communities                                 No C 294/ 11
For cases in which the written procedure was completed and             Action brought on 12 July 1996 by Mireille Cesaratto
a hearing in the oral procedure was held or fixed before                              against the European Parliament
1 October 1996 , the Chamber shall continue to sit with the                                    Case T-108/96 )
same composition as before for the oral procedure, the
                                                                                96/C 294/22 )
deliberation and the judgment.
                                                                                (Language of the case: French)
Criteria for assigning cases to the Chambers
                                                                       An action against the European Parliament was brought
At its meeting on 12 September 1996 , the Court of First               before the Court of First Instance of the European
Instance established the following criteria for the                    Communities on 12 July 1996 by Mireille Cesaratto,
assignment of cases to the Chambers for the period between             residing in Luxembourg, represented by Gaston Vogel of the
1 October 1996 and 30 September 1997, pursuant to                      Luxembourg Bar, with an address for service in
Article 12 of the Rules of Procedure :                                 Luxembourg at his Chambers, 42 , boulevard Joseph II .
                                                                       The applicant claims that the Court should :
1 . ( a ) Actions which concern the implementation of the
            rules concerning State aid and the rules on trade          — annul the contested decision,
            protection measures are to be assigned, with effect
            from the lodging of the application and without            — order the European Parliament to pay the costs .
            prejudice to any subsequent application of
            Articles 14 and 51 of the Rules of Procedure, to
            Chambers with an extended composition of five              Pleas in law and main arguments
            Judges .
                                                                       The applicant, an official of the European Parliament, who
                                                                       had submitted a request under Article 41 of the Staff
     ( b ) All other cases are to be assigned, with effect from        Regulations to leave its service before the due date on
            the lodging of the application and without                 account of her personal circumstances, is challenging the
            prejudice to any subsequent application of                 appointing authority's refusal to assign her non-active
            Articles 14 and 51 of the Rules of Procedure , to          status under that provision. That decision is based on the
            Chambers of three Judges .                                 consideration that the defendant institution had not decided
                                                                       on a reduction, in the interests of the service, in the number
                                                                       of posts' corresponding to the applicant's category .
2 . Cases referred to in paragraphs 1 ( a ) and 1 ( b ) are to be
     assigned to Chambers as follows :                                 She maintains in particular that, in comparison with the
                                                                       position of two other officials of the same institution to
     — cases referred to in paragraph 1 ( a ) are to be assigned       whom Article 41 has been applied, the contested decision is
           in turn, according to the order in which they are           unlawful because of a misuse of powers .
           registered at the Court Registry, to the First, Second,
           Third, Fourth and Fifth Chambers , Extended                 As regards the first of those two other officials, two criteria
           Composition,                                                seem to have been decisive in granting his request to be
                                                                       assigned non-active status : the fact that he occupied a post
     — cases referred to in paragraph 1 ( b ) are to be assigned       which was going to be abolished, and his age, or his
           to the First, Second, Third, Fourth and Fifth               seniority . The applicant disputes the fact that the post in
           Chambers . Such assignment is to be effected on the         question was marked out for abolition when that decision
                                                                       was taken a few months before the official reached
           basis of two separate lists , of staff cases and other
           cases covered by paragraph 1 ( b ) respectively,            retirement age . In that respect, she considers that there was a
           according to the order in which they are registered at      sham abolition of a post in order to allow an official to enjoy
           the Court Registry .                                        a considerable advantage two months before his
                                                                       retirement .
The First Chamber and the First Chamber, Extended                      As regards the second official, chosen on the basis of his
Composition, presided by the President of the Court of First           family circumstances, the applicant denies that those
Instance, shall not be included in those lists on every third          circumstances really existed . She also alleges that the
occasion .                                                             Parliament should have paid more attention to the other
                                                                       criteria referred to in Article 41 of the Staff Regulations . The
                                                                       applicant specifically points out that she has eight more
The President of the Court of First Instance may derogate              years of service than the official in question .
from that order on the ground that cases are related or with
a view to ensuring an even spread of the workload between              In addition , the applicant claims that the defendant's
the various Chambers .
                                                                       treatment of her constitutes a breach of the principle of
                                                                       equal treatment.


title: Reference for a preliminary ruling from the Hessisches Finanzgericht by order of that court of 26 March 1996 in the case of Hartmut Simon v. Hauptzollamt Frankfurt am Main (Case C-125/96)

text:
1 . 6 . 96             EN                    Official Journal of the European Communities                                 No C 158/ 11
The applicant claims that the Court should :                            quantity had been compiled correctly and had formed
                                                                        the basis of the purchaser's calculation of the additional
                                                                        levy ?
1 , declare that, by providing that VAT exemption for
      services closely linked to sport or physical education
      applies only to private bodies whose membership fees do           Or does that phrase refer only to the amount derived from
      not exceed a specified amount, the Kingdom of Spain               the figures, whether correct or not, declared by the
      has infringed Article 13 ( A ) ( 1 ) ( m ) of the Sixth VAT       purchaser and forming the basis of the calculation of the
      Directive ( 77/388/EEC ) ( M ;                                    additional levy ?
                                                                        If the first interpretation is correct, the question arises
2 , order the Kingdom of Spain to pay the costs .                       whether the entire amount of additional levy lawfully due is
                                                                        payable on the date specified in the Regulation ( at that time
                                                                        30 June ), so that, in the event of part payment resulting from
Pleas in law and main arguments                                         the purchaser's figures being too low, the person liable to
                                                                        pay the additional levy ( in Germany the milk producer ) must
The restriction imposed by the Spanish Law on                           pay, from 1 July of that year, interest charged under national
exemptions ( 2 ) does not appear in the wording of the Sixth            law on the balance .
Directive and must therefore be considered to be an
infringement of Article 13 . The Member States cannot make              (') OJ No L 139 , 4 . 6 . 1988 , p . 12 .
the exemption provided for in Article 13 ( m ) subject to
conditions other than those laid down in Article 13 ( 2 ).
Neither does the Spanish VAT legislation observe the aim set
down in the eighth recital of the preamble to the Sixth
Directive, since the imposition of any condition not
provided for in Article 13 is contrary to the aim of drawing
up a common list of exemptions so that the Communities'
own resources may be collected in a uniform manner in all               Reference for a preliminary ruling from the Tribunale di
the Member States . The Spanish Law thus infringes not only             Genova — Prima Sezione Civile — by order of that court of
Article 1 3 of the Sixth Directive but also the objectives of the       1 February 1996 in the case of Trinity Alimentari Italia SPA
                                                                                v. Ministero delle Finanze dello Stato
common system of VAT.
                                                                                ( Case C-128/96 )
                                                                                ( 96/C 158/26 )
(') Sixth Directive 77/388/EEC ( OJ No L 145 , 13 . 6 . 1977,
      P - 1 ).
( 2 ) Law No 37/ 1992 as amended by Law No 42/1994 .                    Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Tribunale di
                                                                        Genova — Prima Sezione Civile — ( District Court, Genoa ,
                                                                        First Civil Section ) of 1 February 1996 , received at the Court
                                                                        Registry on 22 April 1996 , for a preliminary ruling in the
                                                                        case of Trinity Alimentari Italia SPA v . Ministero delle
                                                                        Finanze dello Stato on questions identical to those in Joined
                                                                        Cases C-47/95 and others ( M.
Reference for a preliminary ruling from the Hessisches
Finanzgericht by order of that court of 26 March 1996 in the             (') OJ No C 119 , 13 . 5 . 1995 , p . 5 .
case of Hartmut Simon v. Hauptzollamt Frankfurt am
                                Main
                         ( Case C-125 /96 )
                           ( 96/C 158/25 )
                                                                               Removal from the register of Case C-82/95 (*)
Reference has been made to the Court of Justice of the
European Communities by an order of the Hessisches                                                  ( 96/C 158/27 )
 Finanzgericht ( Finance Court, Hesse ) of 26 March 1996 ,
which was received at the Court Registry on 18 April 1996 ,              By order of 9 February 1996 the President of the Fifth
 for a preliminary ruling in the case of Hartmut Simon v.                Chamber of the Court of Justice of the European
 Hauptzollamt ( Principal Customs Office ) Frankfurt am                  Communities ordered the removal from the register of Case
 Main, on the following questions :                                      C-82/95 : Commission of the European Communities
                                                                         v. Hellenic Republic .
 In Article 15 ( 4 ) of Commission Regulation ( EEC )
 No 1546/88 of 3 June 1988 ( 1 ) is 'levy amount due' to be              (') OJ No C 137, 3 . 6 . 1995 .
 interpreted as the amount of additional levy on milk that
 would be payable if the figures used to determine the levies
 payable on deliveries in excess of the delivery reference


title: Case C-498/09 P: Order of the Court of 10 June 2010 — Thomson Sales Europe v European Commission (Appeal — Customs Code — Remission of import duties — Waiver of post-clearance recovery — Anti-dumping duties — No obvious negligence — Complexity of the legislation — Professional experience — Operator’s diligence — Colour televisions made in Thailand — Challengeable acts)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/17

      Order of the Court of 10 June 2010 — Thomson Sales Europe v European Commission
      (Case C-498/09 P) (1)

      (Appeal - Customs Code - Remission of import duties - Waiver of post-clearance recovery - Anti-dumping duties - No obvious negligence - Complexity of the legislation - Professional experience - Operator’s diligence - Colour televisions made in Thailand - Challengeable acts)
      (2010/C 288/28)
      Language of the case: French

         Parties

         Appellant: Thomson Sales Europe (represented by: F. Foucault and F Goguel, avocats)

         Other party to the proceedings: European Commission (represented by: L. Bouyon and H. van Vliet, Agents)

         Re:

      Appeal against the judgment of 29 September 2009 of the Court of First Instance (First Chamber) in Joined Cases T-225/07 and T-364/07 Thomson Sales Europe v Commission by which the Court dismissed the appellant’s action for annulment of Commission Decision REM No 03/05 of 7 May 2007 informing the French authorities that remission of import duties on the colour television receivers manufactured in Thailand covered by their application of 14 September 2005 was not justified, and for annulment of the Commission’s letter of 20 July 2007 not confirming entitlement to a waiver of post-clearance recovery of import duties on those items — Procedure relating to the application for remission of duties claimed on the basis of Article 239 of the Customs Code and for waiver of post-clearance recovery of those duties on the basis of Article 220(2)(b) of the Code — Failure to respect the rights of the defence — Error in the legal characterisation of the facts

         Operative part of the order

                  1.

                  The appeal is dismissed;

                  2.

                  Thomson Sales Europe shall pay the costs.

         (1)  OJ C 80, of 27.03.2010.


title: Case C-327/10: Reference for a preliminary ruling from the Okresní Soud v Chebu (Czech Republic) lodged on 5 July 2010 — Hypoteční banka, a.s. v Udo Mike Lindner

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/29

         Reference for a preliminary ruling from the Okresní Soud v Chebu (Czech Republic) lodged on 5 July 2010 — Hypoteční banka, a.s. v Udo Mike Lindner
   (Case C-327/10)
   ()
   2010/C 246/49
   Language of the case: Czech

      Referring court

   Okresní Soud v Chebu

      Parties to the main proceedings

      Applicant: Hypoteční banka, a.s.

      Defendant: Udo Mike Lindner

      Questions referred

               1.

               If one of the parties to court proceedings is a national of a State other than the one in which those proceedings are taking place, does that fact provide a basis for the cross-border element within the meaning of Article 81 (formerly Article 65) of the Treaty, which is one of the conditions for the applicability of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels I Regulation’)?

               2.

               Does the Brussels I Regulation preclude the use of provisions of national law which enable proceedings to be brought against persons of unknown address?

               3.

               If Question 2 is answered in the negative, can the making of submissions by a court-appointed guardian of the defendant in the case be regarded on its own as submission by the defendant to the jurisdiction of the local court for the purposes of Article 24 of the Brussels I Regulation, even where the subject-matter of the dispute is a claim arising out of a consumer contract and the courts of the Czech Republic would not have jurisdiction under Article 16(2) of that regulation to determine that dispute?

               4.

               Can an agreement on the local jurisdiction of a particular court be regarded as establishing the international jurisdiction of the chosen court for the purposes of Article 17(3) of the Brussels I Regulation, and, if so, does that apply even if the agreement on local jurisdiction is invalid for conflict with Article 6(1) of Council Directive 93/13/EEC (2) of 5 April 1993 on unfair terms in consumer contracts?

      (1)  OJ 2001 L 12, p. 1.

      (2)  OJ 1993 L 95, p. 29.


title: Case T-354/06: Judgment of the General Court of 27 September 2012 — BAM NBM Wegenbouw and HBG Civiel v Commission (Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction of competition — Guidelines on horizontal cooperation agreements — Rights of the defence — Fines — Duration of the infringement)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/16

         Judgment of the General Court of 27 September 2012 — BAM NBM Wegenbouw and HBG Civiel v Commission
   (Case T-354/06) (1)

   (Competition - Agreements, decisions and concerted practices - Netherlands market in road pavement bitumen - Decision finding an infringement of Article 81 EC - Existence and classification of an agreement - Restriction of competition - Guidelines on horizontal cooperation agreements - Rights of the defence - Fines - Duration of the infringement)
   2012/C 355/30
   Language of the case: Dutch

      Parties

      Applicants: BAM NBM Wegenbouw BV (Bunnik, Netherlands); and HBG Civiel BV (Gouda, Netherlands) (represented by: M. Biesheuvel and J. de Pree, lawyers)

      Defendant: European Commission (represented by: A. Bouquet, A. Nijenhuis and F. Ronkes Agerbeek, Agents)

      Re:

   Application for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicants.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders BAM NBM Wegenbouw BV and HBG Civiel BV to pay the costs.

      (1)  OJ C 20, 27.1.2007.


title: Case T-229/05: Judgment of the Court of First Instance of 12 July 2007 — AEPI v Commission (Competition — Copyright and related rights — Regulation (EC) No 1/2003 — Obligations relating to investigation of complaints — Absence of Community interest — Rejection)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/34

         Judgment of the Court of First Instance of 12 July 2007 — AEPI v Commission
   (Case T-229/05) (1)

   (Competition - Copyright and related rights - Regulation (EC) No 1/2003 - Obligations relating to investigation of complaints - Absence of Community interest - Rejection)
   (2007/C 199/65)
   Language of the case: Greek
   Parties

      Applicant: AEPI Elliniki Etaireia pros Prostasian tis Pnevmatikis Idioktisias AE (Maroussi, Greece) (represented by: T. Asprogerakas-Grivas, lawyer)

      Defendant: Commission of the European Communities (represented by: T. Christoforou and F. Castillo de la Torre, acting as Agents)
   Re:
   Application for annulment of Commission Decision SG-Greffe (2005) D/201832 of 18 April 2005 rejecting a complaint concerning alleged infringement of Articles 81 EC and 82 EC by Greek organisations for collective management of rights related to copyright in music.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the application;

               2.

               orders AEPI Elliniki Etaireia pros Prostasian tis Pnevmatikis Idioktisias AE to pay the costs.

      (1)  OJ C 205, 20.8.2005.


title: Case C-311/02: Action brought on 4 September 2002 by the Commission of the European Communities against the Hellenic Republic

text:
12.10.2002               EN                    Official Journal of the European Communities                                       C 247/11
Pleas in law and main arguments                                           Action brought on 4 September 2002 by the Commission
                                                                          of the European Communities against the Hellenic
                                                                                Republic
The pleas in law and main arguments are similar to those put
forward in Case C-307/02.
                                                                                (Case C-311/02)
( 1) OJ 2000 L 103, p. 70.
                                                                                (2002/C 247/19)
Action brought on 2 September 2002 by the Commission
of the European Communities against the United
                               Kingdom
                                                                          An action against the Hellenic Republic was brought before the
                           (Case C-310/02)                                Court of Justice of the European Communities on 4 September
                                                                          2002 by the Commission of the European Communities,
                                                                          represented by F. Franca and M. Konstantinidis, with an address
                           (2002/C 247/18)                                for service in Luxembourg.
An action against the United Kingdom was brought before the
Court of Justice of the European Communities on 2 September               The Commission claims that the Court should:
2002 by the Commission of the European Communities,
represented by Lena Ström and Xavier Lewis, acting as agents,
with an address for service in Luxembourg.
                                                                          —     declare that, by failing to adopt or, in the alternative, to
                                                                                notify to the Commission, within the time-limit laid
The Applicant claims that the Court should:                                     down, the laws, regulations and administrative provisions
                                                                                necessary to comply fully with Directive 98/27/EC of the
1)     declare that by failing to adopt for Gibraltar the laws,                 European Parliament and of the Council of 19 May
       regulations and administrative provisions necessary to                   1998 ( 1) on injunctions for the protection of consumers’
       comply with Commission Directive 98/98/EC (1) of                         interests, the Hellenic Republic has failed to fulfil its
                                                                                obligations under the EC Treaty;
       15 December 1998 adapting to technical progress for the
       25th time the Council Directive 67/548/EEC on the
       approximation of the laws, regulations and administrative
       provisions relating to the classification, packaging and           —     order the Hellenic Republic to pay the costs.
       labelling of dangerous substances, or in any event, by
       failing to notify such provisions to the Commission the
       United Kingdom has failed to fulfil its obligations under
       that Directive;
2)     order the United Kingdom to pay the costs.
                                                                          Pleas in law and main arguments
Pleas in law and main arguments                                           —     infringement of the third paragraph of Article 249 and
                                                                                the first paragraph of Article 10 of the Treaty;
The pleas in law and main arguments are analogous to those
in case C-305/02 (2). Moreover, the Commission considers that
the exclusion of the customs and commercial policy provisions             —     infringement of Article 8(1) of Directive 98/27/EC.
as set out in the Act of Accession with regard to Gibraltar does
not exclude the application of Article 95 of the EC Treaty and
secondary legislation adopted thereunder.
                                                                          (1 ) OJ No L 166, 11.6.1998, p. 51.
( 1) OJ L 355, 30.12.1998, p. 1.
( 2) See p. 9 of the present Official Journal.


title: Case C-179/12 P: Judgment of the Court (Ninth Chamber) of 26 September 2013 — The Dow Chemical Company v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Market for chloroprene rubber — Price-fixing and market-sharing — Infringement of Article 81 EC — Imputability of the unlawful conduct of a subsidiary to its parent company — Joint control by two parent companies — Decisive influence — Rights of defence — Increase in the fine — Deterrent effect)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/28

         Judgment of the Court (Ninth Chamber) of 26 September 2013 — The Dow Chemical Company v European Commission
   (Case C-179/12 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Market for chloroprene rubber - Price-fixing and market-sharing - Infringement of Article 81 EC - Imputability of the unlawful conduct of a subsidiary to its parent company - Joint control by two parent companies - Decisive influence - Rights of defence - Increase in the fine - Deterrent effect)
   2013/C 344/47
   Language of the case: English

      Parties

      Appellant: The Dow Chemical Company (represented by: D. Schroeder, Rechtsanwalt)

      Other party to the proceedings: European Commission (represented by: P. Van Nuffel, V. Bottka and L. Malferrari, acting as Agents)

      Re:

   Appeal against the judgment of the General Court (Seventh Chamber) of 2 February 2012 in Case T-77/08 The Dow Chemical Company v European Commission in which that Court dismissed an action for the partial annulment of Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.629 — Chloroprene Rubber) concerning a cartel on the market for chloroprene rubber in the European Economic Area (EEA), relating to market-sharing and price-fixing, and, in the alternative, a reduction in the amount of the fine imposed on the applicant — Joint venture — Imputability of the unlawful conduct

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders The Dow Chemical Company to pay the costs.

      (1)  OJ C 184, 23.6.2012.


title: Case T-565/15: Judgment of the General Court of 20 September 2016 — Excalibur City v EUIPO — Ferrero (MERLIN’S KINDERWELT) (EU trade mark — Opposition proceedings — Application for the EU word mark MERLIN’S KINDERWELT — Earlier national word mark KINDER — Relative ground for refusal — No similarity between the signs — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/42

         Judgment of the General Court of 20 September 2016 — Excalibur City v EUIPO — Ferrero (MERLIN’S KINDERWELT)
   (Case T-565/15) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU word mark MERLIN’S KINDERWELT - Earlier national word mark KINDER - Relative ground for refusal - No similarity between the signs - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 402/49)
   Language of the case: English

      Parties

      Applicant: Excalibur City s.r.o. (Znojmo, Czech Republic) (represented by: E. Engin-Deniz, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: M. Simandlova and A. Folliard-Monguiral, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Ferrero SpA (Alba, Italy) (represented by: L. Ghedina and F. Jacobacci, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 9 July 2015 (Case R 1538/2014-1), relating to opposition proceedings between Ferrero and Excalibur City.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 July 2015 (Case R 1538/2014-1);

               2.

               Orders EUIPO to bear its own costs and to pay those incurred by Excalibur City s.r.o.;

               3.

               Orders Ferrero SpA to bear its own costs.

      (1)  OJ C 398, 30.11.2015.


title: Reference for a preliminary ruling by the Rechtbank van Eerste Aanleg te Brussel by judgment of that court of 26 November 1996 in the case of Lease Plan Luxembourg SA v. Belgian State (Case C-390/96)

text:
8 . 2 . 97            ! EN |                Official Journal of the European Communities                                  No C 40/ 11
Justice of the European Communities on 28 November                     with regard to the validity, interpretation or application of
1996 by Dreyfus & Cie, represented by R. Saint-Esteben,                the present contract', which , according to Article 14
with an address for service in Euxembourg at the                       thereof, ' shall be governed by French law '.
Chambers of A. May, 31 Grand Rue.
                                                                       (') Two buildings on Orsay, rented for multiple residential
The appellant claims that the Court should set aside in                    occupation , comprising 15 four-room units of 80 m2, each
part the judgment of the Court of First Instance of                        fitted with a Glasoltherm thermoelectric micro-heating plant
24 September 1996 in so far as it declared inadmissible                    enabling tests to be carried out on two Glasoltherm heat
the action for annulment brought by Louis Dreyfus                          pump designs which have functioned for 10 years in rhe
                                                                           context of a Z.A.I , demonstration lease in Courtaboeuf les
against the decision of the Commission of 1 April 1993 .                   LJlis .
Pleas in law and main arguments adduced in support:
— Infringement of the fourth paragraph of Article 173 of
      the EC Treaty: the judgment is too restrictive
      inasmuch as it considers that, in the absence of a legal         Reference for a preliminary ruling by the Rechtbank van
      relationship with the Commission , Louis Dreyfus                 Eerste Aanleg te Brussel by judgment of that court of
      cannot be directly concerned, since neither the validity         26 November 1996 in the case of Lease Plan Luxembourg
      nor the terms of the contract are affected . The legal                                  SA v. Belgian State
      and substantive situation of the applicant was in fact
                                                                                ( Case C-390/96 )
      directly affected by the contested decision : the contract
      was already concluded between Louis Dreyfus and                                             ( 97/C 40/23 )
      Exportkhleb and payment of the price was to be by
      means of the Community loan . It was because of the              Reference has been made to the Court of Justice of the
      contract and its terms ( and not because of a ' decision '       European Communities by a judgment of the Rechtbank
      taken by the Russians ) that Louis Dreyfus could no              van Eerste Aanleg te Brussel ( Court of First Instance ,
      longer be paid at the new price, since the contract and          Brussels ) of 26 November 1996 , which was received at the
      the rider inextricably linked payment to the                     Court Registry on 2 December 1996 , for a preliminary
       Community loan .                                                ruling in the case of Lease Plan Luxembourg SA v. Belgian
                                                                       State on the following questions :
— Contradictory grounds .
                                                                       1 . Must the term ' fixed establishment' in Article 9 ( 1 ) of
                                                                            the Sixth VAT Directive ( Directive 77/388/EEC ) (') be
                                                                            interpreted as meaning that an undertaking from one
                                                                            Member State which hires or leases out a number of
                                                                            cars to customers established in another Member State
Action brought on 22 November 1996 by Glasoltherm                           has ipso facto, by virtue of that hiring, a fixed
Sari against the Commission of the European                                 establishment in that other Member State ?
                            Communities
                         ( Case C-388/96 )                             2 . If the answer to the preceding question is in the
                                                                            affirmative : must Article 9 ( 1 ) of the Sixth VAT
                            ( 97/C 40/22 )                                  Directive be interpreted as meaning that services
                                                                            consisting in the leasing out of vehicles can be
An action against the Commission of the European                            regarded as being supplied from a fixed establishment
Communities was brought before the Court of Justice of                      in Belgium in the case where the supplier of the
the European Communities on 22 November 1996 by                             services has its established place of business in
Glasoltherm Sari, represented by Mr Penciolelli , lawyer, of                Luxembourg and where almost all contracts are
18 Avenue de la Liberation , 91130 Ris Orangis ( France ).                  negotiated and concluded from this place of
                                                                            establishment in Luxembourg with customers
Glasoltherm Sari claims that the Court should order the                     established in Luxembourg and only a limited number
Commission of the European Communities to support by                        of vehicles ( approximately ten cars out of a fleet of
all means, including the provision of financial assistance,                 almost 1 000 vehicles ) are purchased in Belgium and
over a period of 10 years from the date of entry into                       maintained or repaired within Belgium ?
industrial service of the two demonstration operations
referred to ('), the action taken by a commercial company              3 . Must Articles 6 and 59 of the EEC Treaty be
formed by Glasoltherm Sari to market Glasoltherm                             interpreted as meaning that foreign taxable persons,
thermoelectric micro-heating technology in the European                     who receive goods or services in Belgium and
Community.                                                                   subseqently request VAT refunds in respect of such
                                                                            goods or services pursuant to the Eighth VAT
Pleas in law and main arguments adduced in support:                          Directive , cannot, in the event of late reimbursement,
                                                                             be granted a lower rate of interest, which , moreover,
The      action  is  founded     on  contract  No    EE   252/ 84            begins to accrue only from the moment at which such
concluded between the parties on 28 October 1986 .                           foreign taxable persons institute default proceedings
According to Article 13 of that contract, 'the contracting                   against the Belgian State, whereas in the event of late
parties agree to submit to the jurisdiction of the Court of                  reimbursement to Belgian taxable persons, the latter
Justice of the European Communities all disputes arising                     are granted a higher rate of interest which ,
 ---pagebreak--- No C 40/ 12            1 EN                   Official Journal of the European Communities                                          8 . 2 . 97
      automatically and without the institution of default               The applicant claims that the Court should :
     proceedings, begins to accrue as soon as the statutory
      time-limit for reimbursement has expired ?
                                                                         — declare that, by failing to adopt all the necessary
                                                                               measures to ensure the correct transposition of
(') OJ No L 145 , 13 . 6 . 1977, p . 2 .                                       Council Directive 85/337/EEC (') of 27 June 1985 on
                                                                               the assessment of the effects of certain public and
                                                                               private projects on the environment, Ireland has failed
                                                                               to fulfil its obligations under that Directive and in
                                                                               particular Article 12 thereof and under the Treaty,
Appeal brought on 4 December 1996 by Compagnie
                                                                         — order Ireland to pay the costs .
Continentale (France) against the judgment delivered on
24 September 1996 by the Third Chamber of the Court of
First Instance of the European Communities in Case T                    Pleas in law and main arguments adduced in support:
494/93 between Compagnie Continentale (France ) and the
          Commission of the European Communities
                                                                         Article 4 (2) of the Directive and Annex II
                         ( Case C-391 /96 P
                              ( 97/C 40/24 )                             In establishing criteria/thresholds for determining whether
                                                                         or not an environmental impact assessment ('EIA') is
An appeal against the judgment delivered on 24 September                 required for an individual project in project classes
                                                                         Annex II . 1 ( b ) ('projects for the use of uncultivated land
1996 by the Third Chamber of the Court of First Instance
                                                                         or semi-natural areas for intensive agriculture'), Annex
of the European Communities in Case T-494/93 between
                                                                         II . 2 ( a ) (' extration of peat') and Annex II . 1 ( d ) (' initial
Compagnie Continentale ( France ) and the Commission of
the European Communities was brought before the Court                    afforestation where this may lead to adverse ecological
                                                                         changes and land reclamation for the purposes of
of Justice of the European Communities on 4 December
                                                                         conversion to another type of land use '), there is a
1996 by Compagnie Continentale ( France ), represented by
                                                                         particular need to ensure that areas of importance for
Patrick Chabrier, of 15 Rue Toepffer, Geneva .
                                                                         nature conservation are satisfactorily taken into account .
                                                                         The Commission would contend that, globally considered,
The appellant claims that the Court should :                             the Irish system of thresholds for these project classes does
                                                                         not satisfactorily take such areas into account for a
— set aside the judgment of 24 September 1996 declaring                  number of reasons .
      Compagnie Continentale's action for annullment of
      the Commission's decision of 1 April 1992                          First, the thresholds draw no distinction between areas
      inadmissible ,
                                                                         which have recognized importance and value for nature
                                                                         conservation and areas which do not .
— order the Commission to pay the costs .
                                                                         Second, the thresholds do not take account of the fact that
Pleas in law and main arguments adduced in support:                      areas of importance and value for nature conservation will
                                                                         often be relatively small in relation to the thresholds .
The pleas in law and main arguments are the same as
those in Case C-386/96 P (').
                                                                         Third, the thresholds do not take into account the absence
                                                                         in Ireland of other mechanisms which might obviate the
 (') See p. 10 of this Official Journal .                                need for an EIA .
                                                                         Fourth, the thresholds fail to take any or any adequate
                                                                          account of the fact that, incrementally or cumulatively,
                                                                         projects of these classes may create significant
                                                                         environmental effects .
Action brought on 5 December 1996 by the Commission
         of the European Communities against Ireland
                           ( Case C-392/96 )                              Article 2 (3): Exemptions
                               ( 97/C 40/25 )
                                                                          Irish legislation provides for an exemption formula
                                                                          entitling the Minister with powers under the relevant
 An action against Ireland was brought before the Court of                enactment to dispense with the requirement of an EIA
Justice of the European Communities on 5 December                         where he is satisfied that this is warranted by exceptional
 1996 by the Commission of the European Communities,                      circumstances . This exemption formula does not oblige
 represented by Mr Richard Wainwright, principal legal                    the Minister concerned to consider whether another form
 adviser, acting as Agent, with an address for service in                 of assessment would be appropriate and whether the
 Luxembourg at the office of Mr Carlos Gomez de la Cruz,                  information thus collected should be made available to the
 member of the Legal Service , Centre Wagner.                             public, as stipulated under Article 2 ( 3 ) ( a ) and ( b ) of the


title: Case T-383/15: Action brought on 14 July 2015 — DIMA Verwaltungs v OHIM (Shape of a container)

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/12

         Action brought on 14 July 2015 — DIMA Verwaltungs v OHIM (Shape of a container)
   (Case T-383/15)
   (2015/C 328/11)
   Language of the case: German

      Parties

      Applicant: DIMA Verwaltungs GmbH (Hamburg, Germany) (represented by: T. Kerkhoff, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Three-dimensional Community trade mark (Shape of a container) — Application for registration No 12 649 364

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 27 March 2015 in Case R 2568/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the defendant to resume the registration procedure;

               —

               in the alternative, declare that Article 7(1)(b) of Regulation No 207/2009 does not preclude the registration and refer the case back to the Board of Appeal;

               —

               order OHIM to pay the costs.

      Plea in law

               —

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


title: Case T-170/06: Judgment of the Court of First Instance of 11 July 2007 — Alrosa v Commission (Competition — Abuse of a dominant position — World market for the production and supply of rough diamonds — Decision making binding the commitments proposed by the undertaking in a dominant position — Article 9 of Regulation (EC) No 1/2003 — Principle of proportionality — Contractual freedom — Right to be heard)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/37

         Judgment of the Court of First Instance of 11 July 2007 — Alrosa v Commission
   (Case T-170/06) (1)

   (Competition - Abuse of a dominant position - World market for the production and supply of rough diamonds - Decision making binding the commitments proposed by the undertaking in a dominant position - Article 9 of Regulation (EC) No 1/2003 - Principle of proportionality - Contractual freedom - Right to be heard)
   (2007/C 199/70)
   Language of the case: English
   Parties

      Applicant: Alrosa Company Ltd (Mirny, Russia) (represented by: R. Subiotto, S. Mobley and K. Jones, lawyers)

      Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre, A. Whelan and R. Sauer, Agents)
   Re:
   Annulment of Commission Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/B-2/38.381 — De Beers) (OJ 2006 L 205, p. 24) making binding the commitments given by De Beers to bring to an end its purchases of rough diamonds from Alrosa with effect from 2009, after a period of progressive reduction of the amounts purchased by it from 2006 to 2008, and bringing the proceedings to an end in accordance with Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).
   Operative part of the judgment
   The Court:

               1.

               Annuls Commission Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/B-2/38.381 — De Beers);

               2.

               Orders the Commission to pay its own costs and those incurred by Alrosa Company Ltd.

      (1)  OJ C 212, 2.9.2006.


title: Case C-242/01: Action brought on 22 June 2001 by the Commission of the European Communities against the Grand-Duchy of Luxembourg

text:
C 212/20               EN                      Official Journal of the European Communities                                        28.7.2001
of the project but also did not comply with Directive                     Action brought on 22 June 2001 by the Commission of
85/337/EEC, since Articles 5(2) and 6(2) of that directive were            the European Communities against the French Republic
not observed. First, in the procedure preceding the adoption
of the Study the file did not take account of the information
referred to in Article 5(2) of the directive (inter alia, the non-
technical summary of the information) and, second, the                                               (Case C-244/01)
information gathered was not made available to the public
before the Study was adopted, as required, in order to give
those concerned the opportunity to express an opinion.
                                                                                (2001/C 212/36)
(1) OJ L 175 of 5.7.1985, p. 40.
                                                                          An action against the French Republic was brought before the
                                                                          Court of Justice of the European Communities on 22 June
                                                                          2001 by the Commission of the European Communities,
                                                                          represented by D. Martin and M. França, acting as Agents, with
                                                                          an address for service in Luxembourg.
Action brought on 22 June 2001 by the Commission of
the European Communities against the Grand-Duchy of
                           Luxembourg
                                                                          The Commission of the European Communities claims that
                                                                          the Court should:
                         (Case C-242/01)
                                                                          —     Declare that, by failing to transpose in full Article 4(2) of
                         (2001/C 212/35)                                        Council Directive 93/13/EEC of 5 April 1993 on unfair
                                                                                terms in consumer contracts (1), the French Republic has
An action against the Grand-Duchy of Luxembourg was                             failed to fulfil its obligations under that directive;
brought before the Court of Justice of the European Communi-
ties on 22 June 2001 by the Commission of the European                    —     Order the French Republic to pay the costs.
Communities, represented by D. Martin and M. França, acting
as Agents, with an address for service in Luxembourg.
The Commission of the European Communities claims that
the Court should:
                                                                          Pleas in law and main arguments
—     Declare that, by failing to adopt all the measures necessary
      to implement fully and properly the provisions required
      to transpose Article 4(3) of Council Directive 90/314/EEC
      of 13 June 1990 on package travel, package holidays and
      package tours (1) in the Luxembourg legal system, the               The Commission points out that Article L-132-1, subpara-
      Grand-Duchy of Luxembourg has failed to fulfil its                  graph 7, of the French Code de la Consommation (Consumer
      obligations under that directive;                                   Affairs Code) does not contain the condition under which, in
                                                                          order to be excluded from assessment as to their potentially
—     Order the Grand-Duchy of Luxembourg to pay the costs.               unfair nature, fundamental terms must be ‘in plain intelligible
                                                                          language’. The Commission takes the view that reference to
                                                                          the actual concept of unfair terms is not a sufficient guarantee
                                                                          to prevent application of certain unfair terms which define the
Pleas in law and main arguments
                                                                          main subject-matter of the contract but which are drafted in
                                                                          unclear or unintelligible language.
The Commission takes the view that the directive was incor-
rectly transposed by Article 4 of the Grand-Ducal Regulation
of 4 November 1997 inasmuch as, by laying down a 21-day
period prior to departure, that article imposes unjustified
limitations on the right of transfer set out in Article 4(3) of the       (1) OJ L 95 of 21.4.1993, p. 29.
directive.
(1) OJ L 158 of 23.6.1990, p. 59.


title: Case C-257/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/22

         Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden
   (Case C-257/07)
   (2007/C 183/37)
   Language of the case: Swedish
   Parties

      Applicants: Commission of the European Communities (represented by: D. Kukovec and K. Nyberg, acting as Agents)

      Defendants: Kingdom of Sweden
   Form of order sought

               —

               Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/17/EC (1) of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (the procurement directive) or in any event by failing to inform the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

               —

               Order the Kingdom of Sweden to pay the costs.

         Pleas in law and main arguments
   The period for implementation of the Directive expired on 31 January 2006.

      (1)  OJ L 134, 30.4.2004, p. 1.


title: Case C-685/15: Request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich (Austria) lodged on 18 December 2015 — Online Games Handels GmbH and Others v Landespolizeidirektion Oberösterreich

text:
               4.4.2016

               EN

               Official Journal of the European Union

               C 118/7

         Request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich (Austria) lodged on 18 December 2015 — Online Games Handels GmbH and Others v Landespolizeidirektion Oberösterreich
   (Case C-685/15)
   (2016/C 118/08)
   Language of the case: German

      Referring court

   Landesverwaltungsgericht Oberösterreich

      Parties to the main proceedings

      Applicants: Online Games Handels GmbH, Frank Breuer, Nicole Enter, Astrid Walden

      Defendant authority: Landespolizeidirektion Oberösterreich

      Question referred

   Is Article 56 TFEU or Article 49 et seq. TFEU, in the light of Article 6 of the European Convention on Human Rights read in conjunction with Article 47 of the Charter of Fundamental Rights, to be interpreted, having regard to the judicial objectivity and impartiality required by the case-law of the European Court of Human Rights (in particular with regard to its judgment of 18 May 2010, Application No 64962/01, paragraph 54), as precluding, in the light of the case-law of the Court of Justice of the European Union (in particular its judgment of 30 April 2014, C-390/12, (1) a national rule according to which, in the case of administrative offence proceedings, it is not for the State prosecution services (or other State prosecution bodies) in their function of representing the prosecution but rather for the court called upon to rule on the legality of the criminal measure against which an action has been brought, of its own motion and independently of the conduct of the parties to the proceedings, (in one and the same person/function) to state and delimit wholly independently the evidence justifying the criminal law protection of the quasi-monopoly regulation of the national gambling market and then autonomously to investigate and evaluate it?

      (1)  ECLI:EU:C:2014:281 Pfleger and Others.


title: Case T-139/00: Action brought on 24 May 2000 by Laurent Bal against the Commission of the European Communities

text:
C 233/30              EN                      Official Journal of the European Communities                                      12.8.2000
Action brought on 24 May 2000 by Laurent Bal against                     —     that the Commission committed a manifest error of
       the Commission of the European Communities                              appraisal in relation to the length of time for which the
                                                                               level-B tasks were performed and that the duty to have
                                                                               regard for the welfare of officials was infringed;
                        (Case T-139/00)
                                                                         —     that the duty to provide reasons was not complied with.
                        (2000/C 233/56)
                   (Language of the case: French)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Action brought on 25 May 2000 by Zapf Creation AG
European Communities on 24 May 2000 by Laurent Bal, who                  against the Office for Harmonization in the Internal
is resident in Walhain, Belgium, represented by Isabelle                               Market (Trade Marks and Designs)
Cooreman, of the Brussels Bar.
                                                                                (Case T-140/00)
The applicant claims that the Court should:
                                                                                (2000/C 233/57)
—     Annul the decision of the European Commission of
      28 January 2000;
                                                                                (Language of the case: German)
—     Annul the internal competition procedure with reference
      No COM/7TB/99 for posts in grades B5 or B4:                        An action against the Office for Harmonization in the Internal
                                                                         Market (Trade Marks and Designs) was brought before the
                                                                         Court of First Instance of the European Communities on
In the alternative:                                                      25 May 2000 by Zapf Creation AG, Rödental/Coburg, Federal
                                                                         Republic of Germany, represented by Axel Kockläuner,
—     Order the Commission to pay him BEF 300 000 in                     Rechtsanwälte Meissner, Bolte & Partner, Munich.
      compensation for material and non-material damage;
                                                                         The applicant claims that the Court should:
In the further alternative (by way of an interlocutory ruling):
                                                                         —     annul decision R 348/1999-3 of the Third Board of
—     Allow him to bring evidence by all legal means that his                  Appeal of the Office for Harmonization in the Internal
      tasks as a temporary member of staff were carried out in                 Market of 21 March 2000;
      the context of a B post and that his job as a temporary
      member of staff involved a level of tasks equivalent to            —     order the defendant to pay the costs of the procedure.
      level B;
                                                                         Pleas in law and main arguments
In any event:
                                                                         Trade mark:                   Word mark ‘New Born Baby’ —
—     Order the Commission to pay the costs in accordance                                              application no. 650234
      with Article 87 of the Rules of Procedure.
                                                                         Goods or services:            Goods in class 28 (dolls for
                                                                                playing with and accessories for
Pleas in law and main arguments                                                                        such dolls in the form of play-
                                                                                things)
                                                                                Refusal to register by the Exami-
The applicant claims that the Commission has infringed the               Decision contested befo-      ner
notice of competition and Article 5(1) of the Annex of the               re the Board of Appeal:
Staff Regulations. The Commission wrongly assumed that only
professional experience gained as a member of staff at grade B           Pleas in law relied on:       — Misapplication        of     Arti-
could be taken into account in order to be admitted to the                                                 cle 7(1)(b) of       Regulation
competition. The wording of the notice, however, is to be                                                  No 40/94
interpreted as meaning that the only relevant factor was the
actual level of the applicant’s experience.                                                            — Misapplication        of     Arti-
                                                                                cle 7(1)(c) of Regulation
                                                                                No 40/94
In support of his claims the applicant argues:                                                         — Infringment of the principle
                                                                                of the right to a hearing
—     that the Commission committed a manifest error of
      appraisal in relation to the level of experience acquired
      by performing level-B tasks;


title: Case C-134/08: Judgment of the Court (Fifth Chamber) of 2 April 2009 (Reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Hauptzollamt Bremen v J.E. Tyson Parketthandel GmbH hanse j. (Regulation (EC) No 2193/2003 — Additional customs duties on imports of certain products originating in the United States of America — Temporal scope — Article 4(2) — Products exported after the entry into force of that regulation for which it can be demonstrated that they were already on their way to the Community when those duties were first applied — Whether subject to duty)

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/17

         Judgment of the Court (Fifth Chamber) of 2 April 2009 (Reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Hauptzollamt Bremen v J.E. Tyson Parketthandel GmbH hanse j.
   (Case C-134/08) (1)

   (Regulation (EC) No 2193/2003 - Additional customs duties on imports of certain products originating in the United States of America - Temporal scope - Article 4(2) - Products exported after the entry into force of that regulation for which it can be demonstrated that they were already on their way to the Community when those duties were first applied - Whether subject to duty)
   2009/C 141/28
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Hauptzollamt Bremen

      Defendant: J.E. Tyson Parketthandel GmbH hanse j.

      Re:

   Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 4(2) of Council Regulation (EC) No 2193/2003 of 8 December 2003 establishing additional customs duties on imports of certain products originating in the United States of America (OJ 2003 L 328, p. 3) — Application of additional customs duties to products exported from the United States of America to the Community after the entry into force of that regulation for which it can be demonstrated that they were already on their way to the Community, with no possibility of changing their destination, when those duties were first applied

      Operative part of the judgment

   Article 4(2) of Council Regulation (EC) No 2193/2003 of 8 December 2003 establishing additional customs duties on imports of certain products originating in the United States of America must be interpreted in a manner consistent with its wording, namely that products for which it can be demonstrated that they are already on their way to the European Community on the date of entry into force of that regulation, and whose destination cannot be changed, are not to be subject to the additional duty.

      (1)  OJ C 171, 5.7.2008.


title: Case T-184/15: Action brought on 14 April 2015 — Trivisio Prototyping v Commission

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/30

         Action brought on 14 April 2015 — Trivisio Prototyping v Commission
   (Case T-184/15)
   (2015/C 262/40)
   Language of the case: German

      Parties

      Applicant: Trivisio Prototyping GmbH (Trier, Germany) (represented by: A. Bartosch and A. Böhlke, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission Decision C(2015) 633 final of 2 February 2015 concerning recovery of the sum of EUR 3 85  112 ,19 together with interest owed by Trivisio Prototyping GmbH;

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an error of assessment of the facts

                           —

                           The applicant claims, inter alia, that the Commission was aware, or should in any event have been aware, of the involvement of Russian engineers at the time of signing the ULTRA (‘Ultra portable augmented reality for industrial maintenance applications’), IMPROVE (‘Improving Display and Rendering Technology for Virtual Environments’) and CINeSPACE (‘Experiencing urban film and cultural heritage while on-the-move’) grant agreements. It adds that recovery of the sum claimed in those circumstances is an abuse of power.

               2.

               Second plea in law, alleging that the applicant did not infringe the rules of Annex 2 to the grant agreement relating to subcontracting

                           —

                           The applicant claims that there existed a relationship of control between it and the employer of the Russian engineers — irrespective of fact that they consist of independent legal persons — with the result that there is no infringement of the provisions of Annex II to the grant agreement.

               3.

               Third plea in law, alleging in the alternative an infringement of the principle of the protection of legitimate expectations

                           —

                           In the alternative, the applicant relies on the principle of the protection of legitimate expectations against the recovery of the contested sum.


title: Case T-387/17: Action brought on 20 June 2017 — Triggerball v EUIPO (Shape of a ball-like object with edges)

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/40

         Action brought on 20 June 2017 — Triggerball v EUIPO (Shape of a ball-like object with edges)
   (Case T-387/17)
   (2017/C 256/47)
   Language of the case: German

      Parties

      Applicant: Triggerball GmbH (Baiern-Piusheim, Germany) (represented by: H. Emrich, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the procedure before EUIPO

      Mark at issue: Three-dimensional EU mark (Shape of a ball-like object with edges) — Application No 15 528 615

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 20 April 2017 in Case R 376/2017-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

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