title: Action brought on 25 September 1995 by the Commission of the European Communities against the Italian Republic (Case C-302/95)

text:
28 . 10 . 95          1 EN 1                Official Journal of the European Communities                                  No C 286/7
     regulations and administrative provisions of the                  upon each Member State to which it is addressed, Member
     Member States with regard to liability for defective              States are required to observe the time limits laid down in
     products ('), and in particular Article 7 ( e ) thereof, the      directives for their transposition . That time limit expired on
     United Kingdom has failed to fulfil its obligations under         30 June 1993 without the Italian Republic having brought
     the Directive and under the EC Treaty;                            into force the necessary provisions in order to comply with
                                                                       the Directive referred to in the Commission 's application .
2 . order the United Kingdom to pay the costs .
                                                                       (') OJ No L 135 , 30 . 5 . 1991 , p . 40 .
Pleas in law and main arguments adduced in support:
Article 7 ( e ) of the Directive seeks to resolve the question as
to who must bear the risk of developments in the state of
scientific and technical knowledge in relation to the
possibility of discovering the defect. The test in Article 7 ( e )
is objective whereas that in Section 4 ( 1 ) ( e ) of Part I of the
Consumer Protection Act 1987, by which the United                      Action brought on 25 September 1995 by the Commission
Kingdom sought to implement the Directive, is subjective .                   of the European Communities against the Italian
The United Kingdom has thereby converted the strict                                                   Republic
liability imposed by Article 1 of the Directive into mere                                         Case C-303/95 )
liability for negligence .                                                                        ( 95/C 286/ 16 )
(') OJ No L 210 , 7 . 8 . 1985 , p . 29 .
                                                                       An action against the Italian Republic was brought before
                                                                       the Court of Justice of the European Communities on
                                                                       25 September 1995 by the Commission of the European
                                                                       Communities, represented by Laura Pignataro and Maria
                                                                       Condou Durande, of its Legal Service, acting as Agents, with
                                                                       an address for service in Luxembourg at the office of Carlos
                                                                       Gomez de la Cruz, of its Legal Service, Wagner Centre ,
Action brought on 25 September 1995 by the Commission                  Kirchberg.
      of the European Communities against the Italian
                              Republic
                                                                       The applicant claims that the Court should :
                         ( Case C-302/95 )
                           ( 95/C 286/15 )                             1 . declare that, by failing to adopt or, in any event, notify
                                                                            the laws, regulations or administrative provisions
An action against the Italian Republic was brought before                   necessary to comply with Council Directive 91 /1 57/EEC
the Court of Justice of the European Communities on                         of 18 March 1991 (') on batteries and accumulators
25 September 1995 by the Commission of the European                         containing certain dangerous substances, the Italian
Communities, represented by Laura Pignataro and                             Republic has failed to fulfil its obligations under that
Dominique Maidani of its Legal Service, acting as Agents,                   Directive and the EC Treaty;
with an address for service in Luxembourg at the office of
Carlos Gomez de la Cruz, of its Legal Service, Wagner                  2 . order the Italian Republic to pay the costs .
Centre, Kirchberg.
                                                                       Pleas in law and main arguments adduced in support:
The applicant claims that the Court should:
                                                                       Under Article 189 of the EC Treaty, according to which a
 1 . declare that, by failing to adopt or, in any event, notify        directive is to be binding, as to the result to be achieved ,
     the laws , regulations or administrative provisions               upon each Member State to which it is addressed , Member
     necessary to comply with Council Directive 91 /271/EEC            States are required to observe the time limits laid down in
     of 21 May 1991 ( 5 ) concerning urban waste water                 directives for their transposition . That time limit expired on
     treatment, the Italian Republic has failed to fulfill its          18 September 1992 without the Italian Republic having
     obligations under that Directive and the EC Treaty;               brought into force the necessary provisions in order to
                                                                       comply with the Directive referred to in the Commission's
2 . order the Italian Republic to pay the costs .                      application .
 Pleas in law and main arguments adduced in support:                    (') OJ No L 78 , 26 . 3 . 1991 , p . 38 .
 Under Article 189 of the EC Treaty, according to which a
 directive is to be binding, as to the result to be achieved,


title: Case C-441/00: Action brought on 29 November 2000 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

text:
27.1.2001               EN                  Official Journal of the European Communities                                       C 28/23
Pleas in law and main arguments                                        Reference for a preliminary ruling by the Tribunal
                                                                       Superior de Justicia de Castilla-La Mancha, Sala de lo
                                                                       Social, by order of that court of 27 October 2000 in the
The pleas in law and main arguments are similar to those
                                                                       case of Ángel Rodrı́guez Caballero against Fondo de
advanced in Case C-407/00 (2); the transposition period expired
                                                                                Garantı́a Salarial (FOGASA)
on 16 February 1999.
                                                                                (Case C-442/00)
(1) OJ L 101 of 1.4.1998, p. 1.
(2) See p. 13 of this Official Journal.
                                                                                (2001/C 28/45)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Tribunal Superior de
                                                                       Justicia, Sala de lo Social (High Court of Justice, Social
                                                                       Chamber), Castilla-La Mancha, Spain, of 27 October 2000,
                                                                       received at the Court Registry on 30 November 2000, for a
Action brought on 29 November 2000 by the Com-                         preliminary ruling in the case of Ángel Rodrı́guez Caballero
mission of the European Communities against the United                 against Fondo de Garantı́a Salarial (Wages Guarantee Fund,
      Kingdom of Great Britain and Northern Ireland                    FOGASA) on the following questions:
                                                                       (a)   Should a concept of the kind at issue in the present
                           (Case C-441/00)                                   proceedings, namely remuneration which is payable by
                                                                             the employer to the employee as a result of the dismissal
                            (2001/C 28/44)                                   being unfair, be regarded as falling within those
                                                                             ‘employees’ claims arising from contracts of employment
                                                                             or employment relationships’ referred to in Article 1(1)
An action against the United Kingdom of Great Britain and                    of Council Directive 80/987/EEC (1) of 20 October 1980
Northern Ireland was brought before the Court of Justice of                  on the approximation of the laws of the Member States
the European Communities on 29 November 2000 by the                          relating to the protection of employees in the event of
Commission of the European Communities, represented by                       the insolvency of their employer?
Marie Wolfcarius, Legal Adviser, acting as agent, with an
address for service in Luxembourg at the office of Carlos              (b) In the affirmative, is there an obligation under Article
Gómez de la Cruz, Centre Wagner.                                            1(1) of Directive 80/987 to determine employees’ claims
                                                                             by way of either a judicial decision or an administrative
The Applicant claims that the Court should:                                  decision, and should such claims include all those
                                                                             employee claims upheld in the course of any other
—     declare that by failing to adopt the laws, regulations                 procedure recognised at law and judicially reviewable,
      or administrative provisions necessary to comply with                  such as conciliation, a compulsory procedure conducted
      Council Directive 96/48/EC (1) of 23 July 1996 on the                  before a court, which must encourage the parties to
      interoperability of the trans-European high-speed rail                 negotiate before commencing any legal proceedings and
      system, the United Kingdom has failed to fulfil its                    approve the terms of any agreement, and may prevent an
      obligations under that Directive.                                      agreement being concluded if it considers that the terms
                                                                             of the agreement would seriously prejudice one of the
                                                                             parties or amount to a circumvention of the law or an
—     order the United Kingdom to pay the costs.
                                                                             abuse of process?
                                                                       (c)   In the event that post-dismissal remuneration agreed
Pleas in law and main arguments                                              upon in a court-supervised conciliation and approved by
                                                                             the court does fall within the scope of ‘employees’ claims’,
Article 249 EC (ex Article 189 of the EC Treaty), under which                may the national court responsible for giving judgment
a directive shall be binding as to the result to be achieved,                in the proceedings refrain from applying a provision of
upon each Member State, carries by implication an obligation                 national law which excludes the employee’s claim for
on the Member States to observe the period for compliance                    such remuneration from the scope of matters for which
laid down in the directive. That period expired on 8 April 1999              the national state guarantee institution, the Fondo de
without the United Kingdom having enacted the provisions                     Garantia Salarial, is responsible and apply Article 1(1) of
necessary to comply with the directive referred to in the                    the directive directly on the ground that it considers the
conclusions of the Commission.                                               provision to be clear, precise and unconditional?
(1) OJ L 235, 17.9.1996, p. 6.                                         (1) OJ L 283, 28.10.1980, p. 23.


title: Case C-575/16: Action brought on 14 November 2016 — European Commission v Czech Republic

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/17

         Action brought on 14 November 2016 — European Commission v Czech Republic
   (Case C-575/16)
   (2017/C 022/23)
   Language of the case: Czech

      Parties

      Applicant: European Commission (represented by: H. Støvlbæk and K. Walkerová, acting as Agents)

      Defendant: Czech Republic

      Form of order sought

               —

               declare that, by laying down a condition of nationality for the exercise of the profession of notary, the Czech Republic has failed to fulfil its obligations under Article 49 of the Treaty on the Functioning of the European Union; and

               —

               order the Czech Republic to pay the costs.

      Pleas in law and main arguments

   The Commission considers that the condition of nationality laid down for the exercise of the profession of notary in the Czech legal system is discriminatory and constitutes a disproportionate restriction of the freedom of establishment. The Czech Republic has therefore failed to fulfil its obligations under Article 49 of the Treaty on the Functioning of the European Union.
   The Commission considers that the functions entrusted to notaries by the legislation of the Czech Republic are not by their nature linked to the exercise of public powers, so that the condition of nationality laid down for access to the profession of notary in the Czech legal system cannot be justified by the exception laid down in Article 51 of the Treaty on the Functioning of the European Union.


title: Order of the Court of First Instance of 16 March 1999 in Case T-58/98 Sardegna Lines v Commission of the European Communities (Disclaimer of jurisdiction)

text:
C 174/4                EN                       Official Journal of the European Communities                                         19.6.1999
                                                          COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               address for service at the Chambers of Francesco Caruso, 2A
                                                                           Rue Van Moer, Brussels v Commission of the European
                        of 11 March 1999                                   Communities (Agents: Dimitris Triantafyllou and Stefania
                                                                           Dragone) — application for annulment of Commission
in Case T-66/98: Giuliana Gaspari v European Parlia-                       Decision 98/95/EC of 21 October 1997 relating to aid granted
                             ment (1)                                      by the Sardinia Region to the maritime industry in Sardinia
                                                                           (OJ 1998 L 20, p. 30) — the Court of First Instance (Fifth
                                                                           Chamber, Extended Composition), composed of J.D. Cooke,
(Officials — Thermal cure — Decision rejecting a request                   President of the Chamber, and of R. Garcı́a-Valdecasas,
for prior authorisation for reimbursement of expenses —                    P. Lindh, J. Pirrung and M. Vilaras, Judges; H. Jung, Registrar,
      Statement of reasons — Medical opinion — Privacy)                    has given an order in which it:
                         (1999/C 174/07)                                   1. Declines jurisdiction in Case T-58/98 Sardegna Lines v Com-
                                                                               mission in favour of the Court of Justice, in order that the latter
                                                                               may rule on the claims for annulment;
                    (Language of the case: French)
                                                                           2. Orders the costs to be reserved.
In Case T-66/98: Giuliana Gaspari, an official of the European
Parliament, residing at Sandweiler (Luxembourg), represented
                                                                           (1) OJ No C 184 (13.6.1998).
initially by Jean-Noël Louis, Ariane Tornel and Françoise
Parmentier, and subsequently by Lucette Defalque, of the
Brussels Bar, with an address for service in Luxembourg at the
offices of Fiduciaire Myson SARL, 30 Rue de Cessange, v
European Parliament (Agents: Yannis Pantalis and Matthew
Moore) — application for annulment of the decision of
26 August 1997 of the office responsible for settling claims in                  ORDER OF THE COURT OF FIRST INSTANCE
Luxembourg, rejecting the request submitted by the applicant
on 9 June 1997 for prior authorisation for the reimbursement                                      of 9 February 1999
of expenses in respect of a thermal cure — the Court of First
Instance (Fourth Chamber), composed of: R.M. Moura Ramos,
                                                                           in Case T-124/98: Corrado Politi v European Training
President, and V. Tiili and P. Mengozzi, Judges; A. Mair,
                                                                                Foundation (1)
Administrator, for the Registrar, has given a judgment on
11 March 1999, in which it:
                                                                           (Members of the temporary staff — Time-limit for submit-
1. Dismisses the action;                                                   ting complaints — Time-limit for bringing proceedings —
                                                                                Inadmissibility)
2. Orders the parties to bear their own costs.
                                                                                (1999/C 174/09)
( 1) OJ C 209 of 4.7.1998.
                                                                                (Language of the case: French)
                                                                           In Case T-124/98: Corrado Politi, a former member of the
                                                                           temporary staff of the European Training Foundation, residing
                                                                           in Turin (Italy), represented by Jean-Noël Louis and Françoise
                                                                           Parmentier, of the Brussels Bar, with an address for service in
       ORDER OF THE COURT OF FIRST INSTANCE                                Luxembourg at the offices of Fiduciaire Myson SARL, 30 Rue
                                                                           de Cessange, v European Training Foundation (Agent: Bertrand
                        of 16 March 1999                                   Wägenbaur) — application for annulment, first, of the decision
                                                                           of 16 September 1997 concerning the drawing-up of the
in Case T-58/98 Sardegna Lines v Commission of the                         applicant’s final assessment report and, second, of the decision
                   European Communities (1)                                of 30 September 1997 refusing to renew his contract — the
                                                                           Court of First Instance (Second Chamber), composed of
                   (Disclaimer of jurisdiction)                            A. Potocki, President, and C.W. Bellamy and A.W.H. Meij,
                                                                           Judges; H. Jung, Registrar, made an order on 9 February 1999,
                                                                           the operative part of which is as follows:
                         (1999/C 174/08)
                                                                           1. The action is dismissed as inadmissible;
                    (Language of the case: Italian)                        2. The parties are ordered to bear their own costs.
In Case T-58/98 Sardegna Lines, Servizi Marittimi della
Sardegna SpA, whose registered office is in Cagliari, represent-           (1) OJ C 312 of 10.10.1998.
ed by Francesco Caruso and Ugo Iaccarino, Avvocati, and by
Beniamino Carnevale and Claudio Caruso, Avvocati, with an


title: Judgment of the Court (Tenth Chamber) of 24 October 2013 — Kone Oyj, Kone GmbH, Kone BV v European Commission (C-510/11 P) (Appeal — Competition — Agreements, decisions and concerted practices — Market for the installation and maintenance of elevators and escalators — Fines — Notice on immunity from fines and reduction of fines in cartel cases — Effective judicial remedy)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/2

         Judgment of the Court (Tenth Chamber) of 24 October 2013 — Kone Oyj, Kone GmbH, Kone BV v European Commission
   (C-510/11 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Market for the installation and maintenance of elevators and escalators - Fines - Notice on immunity from fines and reduction of fines in cartel cases - Effective judicial remedy)
   2013/C 367/03
   Language of the case: English

      Parties

      Appellants: Kone Oyj, Kone GmbH, Kone BV (represented by: T. Vinje, Solicitor, D. Paemen, avocat, and A. Tomtsis, dikigoros,)

      Other party to the proceedings: European Commission (represented by: E. Gippini Fournier and R. Sauer, acting as Agents)

      Re:

   Appeal against the judgment of the General Court (Eighth Chamber) of 13 July 2011 in Case T-151/07 Kone and Others v Commission, by which the General Court dismissed an action for annulment or reduction of the fine imposed on the applicants by Commission Decision C(2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E 1/38.823 — Elevators and Escalators), concerning a cartel in the market for the installation and maintenance of elevators and escalators in Belgium, Germany, Luxembourg and the Netherlands, concerning bid-rigging, market-sharing, price-fixing, the awarding of projects and contracts related thereto and exchange of information

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Kone Oyj, Kone GmbH and Kone BV to bear their own costs and, in addition, to pay the costs incurred by the European Commission.

      (1)  OJ C 362, 10.12.2011.


title: Case C-332/14: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 9 July 2014  — Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaft GbR v Finanzamt Krefeld

text:
               22.9.2014

               EN

               Official Journal of the European Union

               C 329/3

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 9 July 2014 — Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaft GbR v Finanzamt Krefeld
   (Case C-332/14)
   2014/C 329/05
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Claimant: Wolfgang und Dr Wilfried Rey Grundstücksgemeinschaft GbR

      Defendant: Finanzamt Krefeld

      Questions referred

               1.

               The Court of Justice of the European Union has ruled that the third subparagraph of Article 17(5) of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (‘the Sixth Directive’) allows Member States, for the purposes of calculating the proportion of input VAT deductible for a given operation, such as the construction of a mixed-use building, to give precedence, as the key to allocation, to an allocation key other than that based on turnover appearing in Article 19(1) of the Sixth Directive, on condition that the method used guarantees a more precise determination of that deductible proportion (judgment in Case C-511/10 BLC Baumarkt [EU:C:2012:689]).

                           (a)

                           At the time of acquisition or construction of a mixed-use building, for the purposes of calculating more precisely the deductible amounts of input tax, must inputs the basis of assessment of which is part of the acquisition or construction costs be attributed initially to the (taxable or exempt) turnover of the building and only the remaining input tax attributed by reference to a floor-area or turnover allocation key?

                           (b)

                           Do the principles established by the Court of Justice in its judgment in BLC Baumarkt and the answer to the foregoing question apply also to amounts of input tax on inputs for the use, conservation or maintenance of a mixed-use building?

               2.

               Is Article 20 of the Sixth Directive to be interpreted as meaning that the adjustment provided for in that provision as regards the initial input tax deduction applies also to circumstances in which a taxable person has attributed input tax arising from the construction of a mixed-use building in accordance with the turnover method provided for in Article 19(1) of the Sixth Directive and permitted by national law, and during the adjustment period a Member State subsequently provides that a different allocation key is to take precedence?

               3.

               If the answer to the previous question is in the affirmative: Do the principles of legal certainty and the protection of legitimate expectations preclude the application of Article 20 of the Sixth Directive if, for cases of the type described above, the Member State has neither expressly required input tax to be adjusted nor made any transitional provision, and if the input tax attribution applied by the taxable person in accordance with the turnover method had previously been recognised by the Bundesfinanzhof as being generally appropriate?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case C-143/03: Action brought on 28 March 2003 by the Commission of the European Communities against the Italian Republic

text:
7.6.2003                 EN                       Official Journal of the European Union                                           C 135/15
Action brought on 28 March 2003 by the Commission of                      2003 by the Commission of the European Communities,
 the European Communities against the Italian Republic                    represented by T. van Rijn, acting as Agent.
                           (Case C-143/03)
                                                                          The applicant claims that the Court should:
                           (2003/C 135/21)
                                                                          —     declare that, by
An action against the Italian Republic was brought before the                   1.    failing to adopt adequate provisions governing the
Court of Justice of the European Communities on 28 March                              utilisation of the quotas allocated to Belgium for the
2003 by the Commission of the European Communities,                                   fishing years 1991 to 1996,
represented by Luca Visaggio and Roberto Amorosi, acting as
Agents.
                                                                                2.    failing to ensure observance of the Community
                                                                                legislation on the conservation of fishery resources
The applicant claims that the Court should:                                           by monitoring fishing activity and adequately moni-
                                                                                toring the landing and recording of catches,
—     Declare that, by subjecting alkaline manganese batteries
      containing less than 0,0005 % of mercury by weight to a                   3.    failing to impose a provisional ban on fishing by
      marking system requiring, in particular, indication of the                      vessels flying its flag or registered in its territory
      presence of heavy metals, the Italian Republic has failed                       once the quota allocated to Belgium had to be
      to fulfil its obligations under Article 28 EC;                                  regarded as exhausted,
—     Order the Italian Republic to pay the costs.
                                                                                4.    failing to take penal or administrative measures
                                                                                against the master or any other person responsible
                                                                                for fishing after the entry into force of bans on
Pleas in law and main arguments                                                       fishing or in the absence of a quota,
                                                                                the Kingdom of Belgium has failed to fulfil its obligations
Alkaline manganese batteries containing less than 0,0005 %                      under Article 5(2) of Council Regulation (EEC) No 170/
of mercury by weight do not fall within the scope of                            83 ( 1) of 25 January 1983 establishing a Community
Council Directive 91/157/EEC on batteries and accumulators                      system for the conservation and management of fishery
containing certain dangerous substances.                                        resources, Article 9(2) of Council Regulation (EEC)
                                                                                No 3760/92 (2) of 20 December 1992 establishing a
                                                                                Community system for fisheries and aquaculture,
In the absence of harmonisation of national laws as regards                     Articles 1 and 11(1) and (2) of Council Regulation (EEC)
such goods, subjecting them to the marking requirement                          No 2241/87 ( 3) of 23 July 1987 establishing certain
provided for in Article 5(1) and (2) of Decree No 476/97                        control measures for fishing activities and Articles 2,
constitutes a barrier to the free movement of goods contrary                    21(1) and (2) and 31 of Council Regulation (EEC)
to Article 28 EC, there being no obvious overriding reason                      No 2847/93 ( 4) of 12 October 1993 establishing a control
relating to the public interest to justify its adoption.                        system applicable to the common fisheries policy;
                                                                          —     order the Kingdom of Belgium to pay the costs.
Action brought on 1 April 2003 by the Commission                          Pleas in law and main arguments
of the European Communities against the Kingdom of
                               Belgium
                           (Case C-149/03)                                Infringement of Article 5(2) of Regulation (EEC) No 170/83
                                                                          and Article 9(2) of Regulation (EEC) No 3760/92: under these
                                                                          provisions, the Member States are to lay down the criteria for
                           (2003/C 135/22)                                the distribution of the quotas allocated to them and detailed
                                                                          rules for the utilisation of those quotas. The Commission finds
                                                                          that, during the period 1991 to 1996, there was overfishing in
                                                                          respect of 22 fishery resources and that, in several cases, the
An action against the Kingdom of Belgium was brought before               quota was exceeded by more than 10 %, with the result that
the Court of Justice of the European Communities on 1 April               the Kingdom of Belgium has failed to fulfil its obligations.


title: Case T-113/06: Order of the Court of First Instance of 22 September 2009 — Fjord Seafood Norway and Others v Council

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/82

         Order of the Court of First Instance of 22 September 2009 — Fjord Seafood Norway and Others v Council
   (Case T-113/06) (1)

   2009/C 267/146

      Language of the case: English

   The President of the Fifth Chamber has ordered that the case be in part removed from the register.

      (1)  OJ C 131, 3.6.2006.


title: Case T-99/14: Judgment of the General Court of 14 July 2016 — Alesa v Commission (Public services contracts — Tendering procedure — Supply of technical assistance to the Chinese authorities for the purposes of the project ‘Sustainable urbanisation project — Link between the eco-cities of Europe and China (EC LINK)’ — Negotiated procedure — Article 266(1) of Delegated Regulation (EU) No 1268/2012 — Transparency — Equal treatment — Non-contractual liability)

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/18

         Judgment of the General Court of 14 July 2016 — Alesa v Commission
   (Case T-99/14) (1)

   ((Public services contracts - Tendering procedure - Supply of technical assistance to the Chinese authorities for the purposes of the project ‘Sustainable urbanisation project - Link between the eco-cities of Europe and China (EC LINK)’ - Negotiated procedure - Article 266(1) of Delegated Regulation (EU) No 1268/2012 - Transparency - Equal treatment - Non-contractual liability))
   (2016/C 314/25)
   Language of the case: Italian

      Parties

      Applicant: Alesa Srl (Chieti, Italy) (represented by: N. Giampaolo, lawyer)

      Defendant: European Commission (represented by: F. Erlbacher and A. Aresu, acting as Agents)

      Re:

   First, an application based on Article 263 TFEU and seeking annulment of the Commission decision, published in the Supplement to the Official Journal of the European Union (OJ 2013/S 234 405244), to award the public contract DCI-ASIA/2013/329-453, relating to the supply of technical assistance to the project ‘Sustainable urbanisation project — Link between the eco-cities of Europe and China (EC LINK)’ to a tenderer other than the applicant, secondly, an application based on Article 268 TFEU and seeking compensation for damage which the applicant allegedly suffered and, thirdly, an application based on Article 277 TFEU and requesting the General Court to assess ‘the lawfulness/unlawfulness and applicability/inapplicability’ of Article 266 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1), and of point 2.4.13 of the Practical Guide to contract procedures for European Union external actions.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Alesa Srl to pay the costs.

      (1)  OJ C 102, 7.4.2014.


title: Case C-367/15: Judgment of the Court (Fifth Chamber) of 25 January 2017 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Stowarzyszenie ‘Oławska Telewizja Kablowa’ v Stowarzyszenie Filmowców Polskich (Reference for a preliminary ruling — Directive 2004/48/EC — Article 13 — Intellectual and industrial property — Infringement — Calculation of damages — Legislation of a Member State — Twice the amount of the royalties normally due)

text:
               13.3.2017

               EN

               Official Journal of the European Union

               C 78/2

         Judgment of the Court (Fifth Chamber) of 25 January 2017 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Stowarzyszenie ‘Oławska Telewizja Kablowa’ v Stowarzyszenie Filmowców Polskich
   (Case C-367/15) (1)

   ((Reference for a preliminary ruling - Directive 2004/48/EC - Article 13 - Intellectual and industrial property - Infringement - Calculation of damages - Legislation of a Member State - Twice the amount of the royalties normally due))
   (2017/C 078/02)
   Language of the case: Polish

      Referring court

   Sąd Najwyższy

      Parties to the main proceedings

      Appellant: Stowarzyszenie ‘Oławska Telewizja Kablowa’

      Respondent: Stowarzyszenie Filmowców Polskich

      Operative part of the judgment

   Article 13 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the holder of an intellectual property right that has been infringed may demand from the person who has infringed that right either compensation for the damage that he has suffered, taking account of all the appropriate aspects of the particular case, or, without him having to prove the actual loss, payment of a sum corresponding to twice the appropriate fee which would have been due if permission had been given for the work concerned to be used.

      (1)  OJ C 7, 11.1.2016.


title: Action brought on 4 January 1999 by O.G.T. Fruchthandelsgesellschaft against the Commission of the European Communities (Case T-4/99)

text:
C 71/36              EN               Official Journal of the European Communities                                 13.3.1999
4. order interest of 4 % on the applicant's claims for           2. order the Commission to compensate the applicant in
    damages, as from the commencement of proceedings;                kind for its loss by issuing import licences;
5. order the Council to pay the costs of the dispute;
                                                                 3. order the Commission to pay the costs.
In the alternative:
                                                                 Pleas in law and main arguments adduced in support:
5. order the Council to compensate the applicant for the
    above-mentioned losses suffered by it since
                                                                 According to the applicant, the Commission has, on
    8 September 1997;
                                                                 several occasions following tropical storm damage, opened
                                                                 additional import quotas for bananas by means of
                                                                 tropical storm regulations'.
Further in the alternative:
6. order the Council to compensate the applicant for the         The applicant, which is a traditional importer of bananas
    above-mentioned losses suffered by it since                  and a Category A operator within the meaning of
    25 September 1997.                                           Regulation (EEC) No 404/93, states that it has repeatedly
                                                                 applied to the competent German authorities, without
                                                                 success, for an allocation out of such quotas (9 000 tonnes
Pleas in law and main arguments adduced in support:              in total, of which 6 000 tonnes in respect of the 1995 and
                                                                 1996 quotas). Although it brought national legal
                                                                 proceedings against each refusal decision, its applications
The pleas in law and main arguments are the same as in           were either dismissed or withdrawn, since the German law
Case T-2/99.                                                     of administrative procedure did not permit further
                                                                 proceedings (claim for damages as a result of official
                                                                 liability). The applicant considers that its remedy in
                                                                 damages lies rather with the Court of First Instance of the
                                                                 European Communities.
Action brought on 4 January 1999 by O.G.T. Fruchthan-            By a decision of 29 April 1997, in a disputes resolution
delsgesellschaft against the Commission of the European          procedure, the WTO Panel stated that the tropical storm
                        Communities                              regulations', with their exclusive award of licences to
                                                                 Community and ACP producers, producer organisations
                        (Case T-4/99)                            and operators, would conflict, inter alia, with the
                       (1999/C 71/67)                            provisions of the GATT and the GATS. In the applicant's
                                                                 submission, the provisions of the GATT have since
                                                                 1 January 1995 taken general precedence over secondary
              (Language of the case: German)                     Community legislation and render Articles 1(2) and 2
                                                                 of the tropical storm regulations' for 1995 and 1996
                                                                 invalid.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 4 January 1999           The necessary conditions having been met, the applicant
by O.G.T. Fruchthandelsgesellschaft, whose registered            maintains that the Community organs which have enacted
office is in Cologne, represented by Gert Meier, Rechts-         Community law contrary to the GATT are liable to pay
anwalt, Jakordenstraûe 10, Köln.                                 compensation for resulting loss.
The applicant claims that the Court should:
                                                                 In this particular case, the applicant submits that
                                                                 compensation in kind through the issue of import licences,
                                                                 serving as a precedent for the future, is appropriate,
1. order the Commission to compensate the applicant for
                                                                 especially as the value of the tropical storms import
    its loss suffered since 1 January 1995 through not
                                                                 licences not granted is difficult to ascertain. That would
    being granted tropical storms import licences (licences
                                                                 also satisfy the applicant's claims for compensation in
    for the importation of bananas out of the exceptional
    allocations granted by Regulations (EC) Nos 510/95           respect of lost profit.
    of 7 March 1995 (OJ L 51, 8.3.1995, p. 8), 1163/95
    of 25 May 1995, 2358/95 of 6 October 1995, 127/96
    of 21 January 1996 and 822/96 of 3 May 1996);


title: Case C-465/16 P: Appeal brought on 20 August 2016 by Council of the European Union against the judgment of the General Court (Fifth Chamber) delivered on 9 June 2016 in Case T-276/13: Growth Energy and Renewable Fuels Association v Council of the European Union

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/21

         Appeal brought on 20 August 2016 by Council of the European Union against the judgment of the General Court (Fifth Chamber) delivered on 9 June 2016 in Case T-276/13: Growth Energy and Renewable Fuels Association v Council of the European Union
   (Case C-465/16 P)
   (2016/C 402/23)
   Language of the case: English

      Parties

      Appellant: Council of the European Union (represented by: S. Boelaert, Agent, N. Tuominen, Avocat)

      Other parties to the proceedings: Growth Energy, Renewable Fuels Association, European Commission, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of 9 June 2016, notified to the Council on 10 June 2016, in Case T-276/13 Growth Energy and Renewable Fuels Association v Council of the European Union;

               —

               reject the application at first instance brought by Growth Energy and Renewable Fuels Association for the annulment of the Contested Regulation (1);

               —

               order Growth Energy and Renewable Fuels Association to pay the Council’s costs both at first instance and on appeal.

         Alternatively,

               —

               refer the case back to the General Court for reconsideration;

               —

               reserve the costs of the proceedings at first instance and on appeal in case of referral back to the General Court.

      Pleas in law and main arguments

   By the present appeal, the Council respectfully requests that the Contested Judgment be set aside on the following grounds:
   The General Court’s findings on the admissibility of the action, and in particular its conclusions on the Applicants' direct and individual concern are legally erroneous.

               a.

               First, the General Court takes the view that for finding direct concern, it is sufficient that the four sampled US producers are producers of bioethanol. However, this finding on direct effect cannot be reconciled with established case-law which rejects direct effect on the basis of purely economic consequences.

               b.

               Second, it is not clear how the mere fact that the US producers have sold their bioethanol to domestic traders/blenders, which was subsequently resold domestically or exported by the domestic traders/blenders in significant quantities to the Union, prior to the imposition of duties, would substantially affect their market position. In order to show a substantial affectation of their market position by virtue of the introduction of the duties, it would have been necessary, at the very least, for the Applicants to establish the impact of the duties on the level of imports into the Union following the imposition of the anti-dumping duties. However, the Applicants did not provide any information in that regard, and the Contested Judgment does not contain any finding on that point either. This is both an error of law in the application of the test for individual concern, as well as a failure to state reasons.

         Insofar as the merits are concerned, the General Court committed an error of law in so far as the interpretation of the Basic Regulation (2) is concerned and a further two errors in law in so far as WTO law is concerned.

               a.

               First, the General Court has wrongly interpreted the Basic Regulation when it considers that Article 9(5) of the Basic Regulation implements both Article 9.2 and Article 6.10 of the AD Agreement. On the one hand, as can be seen from the wording of Article 9(5) of the Basic Regulation, the latter provision does not deal with the question of sampling. On the other hand, Article 6.10 of the AD Agreement is implemented by Article 17 and Article 9(6) of the Basic Regulation, and not by Article 9(5) of the Basic Regulation.

               b.

               Second, the General Court has wrongly interpreted the term ‘supplier’ in Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement. It follows from the logic and general scheme of Article 9(5) that only a ‘source found to be dumped and causing injury’ can be a supplier. However, as the US producers had no export price, they could not have been charged with dumping. Consequently, the General Court erred in law by qualifying them as ‘suppliers’ in the sense of Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement.

               c.

               Third, the General Court has wrongly interpreted the term ‘impracticable’ in Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement, by relying on an erroneous interpretation of Article 9(5) of the Basic Regulation in light of Article 6.10 of the AD Agreement, as well as on the Appellate Body report in EC — Fasteners (3). The latter report only deals with Article 9.2 of the AD Agreement and hence its examination of the term ‘impracticable’ only relates to the situation and treatment that Article 9(5) of the Basic Regulation provides for exporters in non-market economies. The Appellate Body therefore did not provide an interpretation of ‘impracticable’ that could be transposed to the current proceedings which do not concern exporters in nonmarket economies.

         Finally, the General Court has made substantially incorrect findings of fact when it concluded that the calculation of individual duties was ‘practicable’. A situation in which the producers of bioethanol do not have an export price, but only a domestic price, clearly renders it impracticable and impossible to establish an individual dumping margin, and authorises the Commission to establish one single countrywide dumping margin.

      (1)  Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of AmericaOJ L 49, p. 10

      (2)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European CommunityOJ L 343, p. 51

      (3)  European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners fromChina — AB-2011-2 — Report of the Appellate Body, WT/DS397/AB/R (‘EC — Fasteners,WT/DS397/AB/R’)


title: Case T-764/14: Judgment of the General Court of 13 December 2016 — European Dynamics Luxembourg and Evropaïki Dynamiki v Commission (Public service contracts — Call for tender procedure — Technical assistance, development and implementation of a computerised system for the ASEAN customs transit system (ACTS) — Rejection of a tenderer’s bid — Award of the contract to another tenderer — Selection criteria — Award criteria — Obligation to state reasons — Manifest error of assessment — Equal treatment — Openness)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/43

         Judgment of the General Court of 13 December 2016 — European Dynamics Luxembourg and Evropaïki Dynamiki v Commission
   (Case T-764/14) (1)

   ((Public service contracts - Call for tender procedure - Technical assistance, development and implementation of a computerised system for the ASEAN customs transit system (ACTS) - Rejection of a tenderer’s bid - Award of the contract to another tenderer - Selection criteria - Award criteria - Obligation to state reasons - Manifest error of assessment - Equal treatment - Openness))
   (2017/C 030/46)
   Language of the case: Greek

      Parties

      Applicants: European Dynamics Luxembourg SA (Luxembourg, Luxembourg) and Evropaïki Dynamiki — Proigmena Sistimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented initially by: M. Sfyri and I. Ampazis, lawyers, and subsequently by: M. Sfyri)

      Defendant: European Commission (represented initially by: S. Bartelt and A. Marcoulli, and subsequently by: S. Bartelt and M. Konstantinidis, acting as Agents)

      Re:

   Application on the basis of Article 263 TFEU seeking the annulment of the decision of the Commission of 5 September 2014 rejecting the bid submitted by the applicants in restricted call for tenders procedure EuropeAid/135040/C/SER/MULTI concerning the development of a computerised management system for the ASEAN customs transit system and awarding that contract to another tenderer.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Sistimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

      (1)  OJ C 26, 26.1.2015.


Avis juridique important

|

E1994P0009

Reference for an advisory opinion by Markedsrådet by decisions of that court of 28 October and 28 December 1994 in the case of Forbrukerombudet against Lego Norge A/S (Case E-9/94)

Official Journal C 398 , 31/12/1994 P. 0019 - 0019

Reference for an advisory opinion by Markedsrådet by decisions of that court of 28 October and 28 December 1994 in the case of Forbrukerombudet against Lego Norge A/S (Case E-9/94) (94/C 398/07)Reference has been made to the EFTA Court by decisions of 28 October and 28 December 1994 of Markedsrådet (the Market Council), Norway, received at the Court Registry on 28 December 1994, for an advisory opinion in the case of Forbrukerombudet (the Consumer Ombudsman) against Lego Norge A/S, on the following questions:1. Is Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, to be interpreted as preventing the receiving State from applying national provisions according to which an advertiser may be prohibited from making use of a commercial which specifically targets children, in a transmission which is specifically directed at Norway from another EEA State?2. Is Article 36 of the EEA Agreement on the freedom to provide services to be interpreted as preventing the receiving State from applying national provisions according to which an advertiser may be prohibited from making use of a commercial which specifically targets children, in a transmission which is specifically directed at Norway from another EEA State?3. Is the application of Section 1 of the Marketing Control Act, in conjunction with Section 3-1 of the Broadcasting Act, compatible with Articles 11 and 13 of the EEA Agreement concerning quantitative restrictions on imports?


title: Case C-125/16: Request for a preliminary ruling from the Prim’Awla tal-Qorti Ċivili (Malta) lodged on 29 February 2016 — Malta Dental Technologists Association and Others v Superintendent tas-Saħħa Pubblika, Kunsill tal-Professjonijiet Kumplimentari għall-Mediċina

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/11

         Request for a preliminary ruling from the Prim’Awla tal-Qorti Ċivili (Malta) lodged on 29 February 2016 — Malta Dental Technologists Association and Others v Superintendent tas-Saħħa Pubblika, Kunsill tal-Professjonijiet Kumplimentari għall-Mediċina
   (Case C-125/16)
   (2016/C 191/13)
   Language of the case: Maltese

      Referring court

   Prim’Awla tal-Qorti Ċivili

      Parties to the main proceedings

      Applicants: Malta Dental Technologists Association and Others

      Defendants: Superintendent tas-Saħħa Pubblika, Kunsill tal-Professjonijiet Kumplimentari għall-Mediċina

      Questions referred

               1.

               Is the prohibition by the Maltese health authorities, or their refusal to grant recognition to the profession of clinical dental technologists/denturists, whereby, despite the absence of discrimination in law, individuals from other Member States who have made an application in this respect are in practice precluded from establishing their profession in Malta, incompatible with the principles and the legal provisions regulating the creation of the single market, in particular those resulting from Articles 49 TFEU, 52 TFEU and 56 TFEU, in a situation where there is no risk to public health?

               2.

               Should Directive 2005/36/EC (1) of the European Parliament and of the Council of 7 September 2005, known as the Professional Qualifications Directive, be applied with respect to clinical dental technologists in view of the fact that, should a denture prove to be defective, the only consequence would be that the defective dental appliance would have to be modified or replaced, without any risk to the patient?

               3.

               Can the prohibition by the Maltese health authorities, which is being contested in the present case, serve to ensure the aim of having a high level of public health protection, when any defective denture can be replaced without any risk to the patient?

               4.

               Does the way in which the defendant, the Superintendent of Public Health, interprets and enforces Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 with respect to clinical dental technologists who have applied for recognition by the same Maltese health authorities constitute an infringement of the principle of proportionality?

      (1)  Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).


title: Case T-96/05: Judgment of the Court of First Instance of 4 October 2006 — Monte di Massima v OHIM — Höfferle Internationale (Valle della Luna) (Community trade mark — Opposition procedure — Application for figurative Community trade mark Valle della Luna — Earlier national figurative mark VALLE DE LA LUNA — Proof of use of the earlier mark — Article 15(2)(a), and Article 43(2) and (3) of Regulation (EC) No 40/94)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/34

         Judgment of the Court of First Instance of 4 October 2006 — Monte di Massima v OHIM — Höfferle Internationale (Valle della Luna)
   (Case T-96/05) (1)

   (Community trade mark - Opposition procedure - Application for figurative Community trade mark Valle della Luna - Earlier national figurative mark VALLE DE LA LUNA - Proof of use of the earlier mark - Article 15(2)(a), and Article 43(2) and (3) of Regulation (EC) No 40/94)
   (2006/C 281/59)
   Language of the case: Italian
   Parties

      Applicant: Monte di Massima SAS di Pruneddu Leonardo & C. (Viddalba, Italy) (represented by: E. Masu and P. Pittalis, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: J.M. Höfferle Internationale Handelsgesellschaft mbH (Hamburg, Germany) (represented by: G. Brugmann, lawyer)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 24 Noevember 2004 (Case R 269/2004-1), concerning opposition proceedings between Monte di Massima SAS di Pruneddu Leonardo & C. and J.M. Höfferle Internationale Handelsgesellschaft mbH.
   Operative part
   The Court

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and by the intervener.

      (1)  OJ C 115, 14.5.2005


title: Case C-301/11: Action brought on 16 June 2011 — European Commission v Kingdom of the Netherlands

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/20

         Action brought on 16 June 2011 — European Commission v Kingdom of the Netherlands
   (Case C-301/11)
   2011/C 252/38
   Language of the case: Dutch

      Parties

      Applicant: European Commission (represented by: R. Lyal and W. Roels, acting as Agents)

      Defendant: Kingdom of the Netherlands

      Form of order sought

               —

               Declare that, by approving and maintaining in force Articles 3.60 and 3.61 of the 2001 Law on income tax (Wet inkomstenbelasting) and Articles 15c and 15d of the 1969 Law on corporation tax (Wet Vennootschapsbelasting), as currently in force, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty on the Functioning of the European Union, in particular Article 49 thereof;

               —

               order the Kingdom of the Netherlands to pay the costs.

      Pleas in law and main arguments

   The Commission takes the view that the taxation of unrealised capital gains on the transfer of an undertaking or part of an undertaking to another Member State or on the relocation to another Member State of an undertaking’s head office or of its actual centre of administration amounts to an obstacle to the freedom of establishment that is incompatible with Article 49 TFEU.


title: Reference for a preliminary ruling from the Tribunal de Grande Instance, Angoulême (First Civil Chamber) by judgment of that court of 8 January 1998 in the case of SA Otor Godard v. Directeur des Services Fiscaux de la Charente (Case C-5/98)

text:
C 72/10              EN                  Official Journal of the European Communities                                    7.3.98
is not open to the Member State in which he is                          If the answer to Question 2 is in the affirmative, the
temporarily working to regard work carried out on its                   following further questions are raised:
territory as salaried employment, or must those provisions
be interpreted as meaning that it is open to the latter State
to regard that temporary work as salaried employment in
order to bring the person concerned on that ground within           3. Does the determination whether the legislation of non-
its legislation on employed persons?                                    member country or countries in question offers the
                                                                        guarantee of reciprocity referred to in Question 2 fall
                                                                        within the scope of Article 177 of the Treaty
                                                                        establishing the European Community so that a court
                                                                        in a Member State is entitled or even, according to the
                                                                        circumstances, bound to refer a question to the Court
                                                                        of Justice?
Reference for a preliminary ruling by Sù- og                            If the answer to Question 3 is in the affirmative, the
Handelsretten, Copenhagen, by order of that court of                    following further questions are raised:
3 December 1997 in the cases of Calvin Klein Trademark
Trust v. Cowboyland A/S, Dansk Supermarked
Administration A/S, HBN Marketing ApS, Progress, in the
    person of Peter Jensen, and Bilka Lavprisvarehus A/S            4. Should the trade mark legislation in the United States
                                                                        of America be regarded as offering the guarantee of
                        (Case C-4/98)                                   reciprocity referred to in Question 2?
                         (98/C 72/17)
                                                                        Lastly, if the answer to Question 1 is in the negative
                                                                        and/or Question 2 is answered in the affirmative, the
                                                                        following final question is raised:
Reference has been made to the Court of Justice of the
European Communities by an order of Sù- og
Handelsretten (Maritime and Commercial Court) of
3 December 1997, which was received at the Court                    5. Should the term legitimate reasons' in Article 7(2) of
Registry on 12 January 1998, for a preliminary ruling in                the said Directive be understood as meaning that the
the cases of Calvin Klein Trademark Trust v. Cowboyland                 proprietor of a trade mark may oppose use of the
A/S and Others, on the following questions:                             mark in a Member State on goods which have been
                                                                        marketed in a non-member country by the proprietor,
                                                                        or with his consent, when those goods are different in
                                                                        design, fit, colour, labelling information, handling of
                                                                        the material used, sewing and similar ways from
1. Does Article 7(1) of the First Council Directive of                  equivalent goods marketed by the proprietor of the
     21 December 1988 to approximate the laws of the                    mark, or with his consent, in the Member State in
     Member States relating to trade marks (89/104/                     question or in other Member States?
     EEC) (1) preclude the individual Member States from
     maintaining, introducing or reintroducing a general
     rule in their national trade mark legislation to the           (1) OJ L 40, 11.2.1989, p. 1.
     effect that the proprietor of a trade mark may not
     prevent the use of the trade mark in that Member
     State for goods which have been put on the market
     under that mark by the proprietor of the mark
     himself, or with his consent, in a non-member country,
     in other words outside the Community area?
                                                                    Reference for a preliminary ruling from the Tribunal de
                                                                    Grande Instance, AngouleÃme (First Civil Chamber) by
                                                                    judgment of that court of 8 January 1998 in the case of
2. Are the courts in a Member State entitled to preclude
                                                                    SA Otor Godard v. Directeur des Services Fiscaux de la
     the proprietor of a trade mark from preventing the use
                                                                                Charente
     in the Member State of the mark for goods which
     have been put on the market under that mark by the                                      (Case C-5/98)
     proprietor of the mark himself, or with his consent, in
     a non-member country whose trade mark legislation                                        (98/C 72/18)
     guarantees that the proprietor of the mark is precluded
     from preventing the use of a mark in the non-member
     country in question for goods which have been put on
     the market for the first time by the proprietor of the         Reference has been made to the Court of Justice of the
     mark himself, or with his consent, in a Member State?          European Communities by a judgment of the First Civil
 ---pagebreak--- 7.3.98                EN                 Official Journal of the European Communities                                   C 72/11
Chamber of the Tribunal de Grande Instance (Regional                     primary Community law (Articles 5, 6, 30 et seq., 59
Court), AngouleÃme, of 8 January 1998, which was                         et seq. and 85 et seq. of the EC Treaty and the
received at the Court Registry on 12 January 1998, for a                 general principle of equality)?
preliminary ruling in the case of SA Otor Godard v.
Directeur des Services Fiscaux de la Charente (Director of          (1) OJ L 202, 30.7.1997, p. 60.
the Charente Tax Office) on the following question:
Must Article 5 of the EC Treaty and the principle of legal
certainty be interpreted as meaning that they preclude
Article L 190(3) of the Code of Fiscal Procedures from
limiting an action for recovery of amounts unduly paid to           Reference      for    a     preliminary   ruling   by    the
the period subsequent to 1 January of the fourth year               Bundesgerichtshof by order of that court of 4 December
prior to that in which the judgment establishing non-                1997 in the case of Dieter Krombach v. AndreÂ Bamberski
conformity was established, where that judgment is a                                        (Case C-7/98)
judgment of the Court of Justice delivered following
failure by a Member State to transpose a directly                                            (98/C 72/20)
applicable provision of a directive affecting the State
budget.'
                                                                    Reference has been made to the Court of Justice of the
                                                                    European Communities by order of the Ninth Civil Senate
                                                                    of the Bundesgerichtshof (Federal Court of Justice) of
                                                                    4 December 1997, received at the Court Registry on
                                                                    14 January 1998, for a preliminary ruling in the case of
                                                                    Dieter Krombach v. AndreÂ Bamberski on the following
Reference for a preliminary ruling from the                         questions:
Oberlandesgericht Stuttgart by order of that court of
17 December 1997 in the case of Arbeitsgemeinschaft                 1. May the provisions on jurisdiction form part of public
Deutscher Rundfunkanstalten (ARD) v. PRO Sieben                         policy within the meaning of Article 27(1) of the
Media AG, interveners: (1) SAT 1 Satellitenfernsehen                    Convention of 27 September 1968 on Jurisdiction and
        GmbH and (2) Kabel 1, K 1 Fernsehen GmbH                        the Enforcement of Judgments in Civil and
                         (Case C-6/98)                                  Commercial Matters where the State of origin has
                                                                        based its jurisdiction as against a person domiciled in
                          (98/C 72/19)                                  another contracting State (first paragraph of Article 2
                                                                        of the Convention) solely on the nationality of the
                                                                        injured party (as in the second paragraph of Article 3
Reference has been made to the Court of Justice of the
                                                                        of the Convention in relation to France)?
European Communities by an order of the Fourth Civil
Senate of the Oberlandesgericht Stuttgart (Higher
Regional Court, Stuttgart) of 17 December 1997, which                   If Question 1 is answered in the negative:
was received at the Court Registry on 12 January 1998,
for a preliminary ruling in the case of Arbeitsgemeinschaft         2. May the court of the State in which enforcement is
Deutscher Rundfunkanstalten (ARD) v. PRO Sieben                         sought (first paragraph of Article 31 of the
Media AG, interveners: (1) SAT 1 Satellitenfernsehen                    Convention) take into account under public policy
GmbH and (2) Kabel 1, K 1 Fernsehen GmbH, on the                        within the meaning of Article 27(1) that the criminal
following questions:                                                    court of the State of origin did not allow the debtor to
                                                                        be defended by a lawyer in a civil-law procedure for
(a) Does Article 11(3) of Directive 97/36/EC of the                     damages instituted within the criminal proceedings
      European Parliament and of the Council of 30 June                 (Article II of the Protocol of 27 September 1968 on
      1997 amending Council Directive 89/552/EEC (the                  the interpretation of the Convention) because he, a
      Television Amendment Directive') (1) or the identical             resident of another Contracting State, was charged
      Article 11(3) of Council Directive 89/552/EEC of                  with an intentional offence and did not appear in
      3 October 1989 on the coordination of certain                     person?
      provisions laid down by law, regulation or
      administrative action in Member States concerning                 If Question 2 is also answered in the negative:
      the pursuit of television broadcasting activities (the
      Television Directive') prescribe the gross principle or       3. May the court of the State in which enforcement is
      the net principle?                                                sought take into account under public policy within
                                                                        the meaning of Article 27(1) of the Convention that
(b) On the assumption that Article 44(4) of the Dritter                 the court of the State of origin based its jurisdiction
      Staatsvertrag zur ¾nderung rundfunkrechtlicher                    solely on the nationality of the injured party (see
      Staatsverträge (Third Treaty amending Treaties on                 Question 1 above) and additionally prevented the
      Broadcasting Law, Annex B 33, p. 437 of the case-                 defendant from being legally represented (see
      file) prescribes the net principle, is that then                  Question 2 above)?
      compatible with Article 11(3) in conjunction with
      Article 3(1) of the Television Directive or with


title: Case T-356/16: Order of the General Court of 7 March 2017 — Brita v EUIPO — Aquis Wasser-Luft-Systeme (maxima)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/63

         Order of the General Court of 7 March 2017 — Brita v EUIPO — Aquis Wasser-Luft-Systeme (maxima)
   (Case T-356/16) (1)

   (2017/C 144/96)
   Language of the case: German
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 305, 22.8.2016.


title: Case C-17/08 P: Order of the Court (Eighth Chamber) of 6 February 2009 — MPDV Mikrolab GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 7(1)(c) — Refusal of registration — Word mark manufacturing score card — Descriptive character)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/15

         Order of the Court (Eighth Chamber) of 6 February 2009 — MPDV Mikrolab GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-17/08 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 7(1)(c) - Refusal of registration - Word mark manufacturing score card - Descriptive character)
   2009/C 113/29
   Language of the case: German

      Parties

      Applicant: MPDV Mikrolab GmbH (represented by: W. Göpfert, Rechtsanwalt)

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

      Re:

   Appeal against the judgment of the Court of First Instance (First Chamber) of 8 November 2007 in Case T-459/05 MPDV Mikrolab v OHIM (manufacturing score card), by which the Court of First Instance dismissed the action for annulment of the decision of the Second Board of Appeal of OHIM of 19 October 2005, which dismissed the appeal against the decision of the examiner refusing registration of the word mark ‘manufacturing score card’ for goods and services in Classes 9, 35 and 42 — Distinctive character of a word mark consisting of words each of which is descriptive of the characteristics of the goods or services concerned

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               MPDV Mikrolab GmbH is ordered to pay the costs.

      (1)  OJ C 79, 29.3.2008.


title: Case C-473/06: Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Ionas Stroumsas EPE v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/6

         Reference for a preliminary ruling from the Efetio Athinon (Greece) lodged on 21 November 2006 — Ionas Stroumsas EPE v GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   (Case C-473/06)
   (2007/C 20/08)
   Language of the case: Greek
   Referring court
   Efetio Athinon
   Parties to the main proceedings

      Claimant: Ionas Stroumsas EPE

      Defendant: GlaxoSmithKline Anonimi Emporiki Viomikhaniki Etairia Farmakeftikon Proionton
   Questions referred:

               1.

               Where the refusal of an undertaking holding a dominant position to meet fully the orders sent to it by pharmaceutical wholesalers is due to its intention to limit their export activity and, thereby, the harm caused to it by parallel trade, does the refusal constitute per se an abuse within the meaning of Article 82 EC? Is the answer to that question affected by the fact that the parallel trade is particularly profitable for the wholesalers because of the different prices, resulting from State intervention, in the Member States of the European Union, that is to say by the fact that pure conditions of competition do not prevail in the pharmaceuticals market, but a regime which is governed to a large extent by State intervention? Is it ultimately the duty of a national competition authority to apply Community competition rules in the same way to markets which function competitively and those in which competition is distorted by State intervention?

               2.

               If the Court holds that limitation of parallel trade, for the reasons set out above, does not constitute an abusive practice in every case where it is engaged in by an undertaking holding a dominant position, how is possible abuse to be assessed? In particular:

               2.1

               Do the percentage by which normal domestic consumption is exceeded and/or the loss suffered by an undertaking holding a dominant position compared with its total turnover and total profits constitute appropriate criteria? If so, how are the level of that percentage and the level of that loss determined (the latter as a percentage of turnover and total profits), above which the conduct in question may be abusive?

               2.2

               Is an approach entailing the balancing of interests appropriate, and, if so, what are the interests to be compared? In particular:

                           (a)

                           is the answer affected by the fact that the ultimate consumer/patient derives limited financial advantage from the parallel trade and

                           (b)

                           is account to be taken, and to what extent, of the interests of social insurance bodies in cheaper medicinal products?

               2.3

               What other criteria and approaches are considered appropriate in the present case?


title: JUDGMENT OF THE COURT of 16 June 1998 in Case C-53/96 (reference for a preliminary ruling from the Arrondissementsrechtbank te Amsterdam): Hermès International v FHT Marketing Choice BV (Agreement establishing the World Trade Organisation - TRIPS Agreement - Article 177 of the Treaty - Jurisdiction of the Court of Justice - Article 50 of the TRIPS Agreement - Provisional measures)

text:
15.8.98              EN                  Official Journal of the European Communities                                      C 258/9
              JUDGMENT OF THE COURT                                 Ð although the parties remain free to initiate proceedings
                                                                         on the merits of the case, the decision is usually
                      of 16 June 1998
                                                                         accepted by the parties as a final' resolution of their
in Case C-53/96 (reference for a preliminary ruling from                 dispute,
the Arrondissementsrechtbank te Amsterdam): HermeÁs
       International v FHT Marketing Choice BV (1)
                                                                    is to be regarded as a provisional measure' within the
(Agreement establishing the World Trade Organisation Ð              meaning of Article 50 of the Agreement on Trade-Related
TRIPS Agreement Ð Article 177 of the Treaty Ð                       Aspects of Intellectual Property Rights, as set out in
Jurisdiction of the Court of Justice Ð Article 50 of the            Annex 1 C to the Agreement establishing the World Trade
        TRIPS Agreement Ð Provisional measures)                     Organisation, approved on behalf of the Community, as
                                                                    regards matters within its competence, in Council
                       (98/C 258/15)
                                                                    Decision 94/800/EC of 22 December 1994.
               (Language of the case: Dutch)                        (1) OJ C 95 of 30.3.1996.
 (Provisional translation; the definitive translation will be
         published in the European Court Reports)
                                                                                JUDGMENT OF THE COURT
In Case C-53/96: reference to the Court under Article 177
of the EC Treaty by the Arrondissementsrechtbank te                                        of 16 June 1998
Amsterdam for a preliminary ruling in the proceedings               in Case C-162/96 (reference for a preliminary ruling from
pending before that court between HermeÁs International             the Bundesfinanzhof): A. Racke GmbH & Co. v
(a partnership limited by shares) and FHT Marketing                                    Hauptzollamt Mainz (1)
Choice BV on the interpretation of Article 50(6) of the
Agreement on Trade-Related Aspects of Intellectual                  (EEC/Yugoslavia Cooperation Agreement Ð Suspension
Property Rights, as set out in Annex 1 C to the Agreement           of trade concessions Ð Vienna Convention on the Law of
establishing the World Trade Organisation, approved on                         Treaties Ð Rebus sic stantibus clause)
behalf of the Community, as regards matters within its
                                                                                (98/C 258/16)
competence, in Council Decision 94/800/EC of
22 December 1994 (OJ L 336 of 23.12.1994, p. 1) Ð the
Court, composed of: G. C. Rodríguez Iglesias, President,                           (Language of the case: German)
C. Gulmann, H. Ragnemalm, M. Wathelet, Presidents of
Chambers, G. F. Mancini, J. C. Moitinho de Almeida,
P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward
                                                                      (Provisional translation; the definitive translation will be
(Rapporteur), J.-P. Puissochet, G. Hirsch and P. Jann, L.
                                                                             published in the European Court Reports)
Sevón, Judges; Advocate General: G. Tesauro, Registrar:
L. Hewlett, Administrator, has given a judgment on
16 June 1998, in which it has ruled:                                In Case C-162/96: reference to the Court under Article 177
                                                                    of the EC Treaty by the Bundesfinanzhof (Germany) for a
                                                                    preliminary ruling in the proceedings pending before that
A measure whose purpose is to put an end to alleged                 court between A. Racke GmbH & Co. and Hauptzollamt
infringements of a trade-mark right and which is adopted            Mainz Ð on the validity of Council Regulation (EEC)
in the course of a procedure distinguished by the following         No 3300/91 of 11 November 1991 suspending the trade
features:                                                           concessions provided for by the Cooperation Agreement
                                                                    between the European Economic Community and the
                                                                    Socialist Federal Republic of Yugoslavia (OJ L 315 of
Ð the measure is characterised under national law as an             15.11.1991, p. 1) Ð the Court composed of: G. C.
    immediate provisonal measure' and its adoption must            Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm
    be required on grounds of urgency',                            and M. Wathelet, Presidents of the Chambers, J. C.
                                                                    Moitinho de Almeida, P. J. G. Kapteyn (Rapporteur), J. L.
                                                                    Murray, D. A. O. Edward, G. Hirsch, P. Jann and L.
Ð the opposing party is summoned and is heard if he                 Sevón, Judges; F. G. Jacobs, Advocate General; D.
    appears before the court,                                       Louterman-Hubeau, Principal Administrator, for the
                                                                    Registrar, has given a judgment on 16 June 1998, in which
                                                                    it has ruled:
Ð the decision adopting the measure is reasoned and
    given in writing following an assessment of the
    substance of the case by the judge hearing the interim          Examination of the questions referred has disclosed no
    application,                                                    factor of such a kind as to affect the validity of Council
                                                                    Regulation (EEC) No 3300/91 of 11 November 1991
                                                                    suspending the trade concessions provided for by the
Ð an appeal may lodged against the decision, and                    Cooperation Agreement between the European Economic