title: Case C-407/02: Action brought on 15 November 2002 by the Commission of the European Communities against the Hellenic Republic

text:
C 19/14                EN                     Official Journal of the European Communities                                          25.1.2003
Reference for a preliminary ruling by the Tribunale di                          interest may assume a Community dimension, to provide
Milano, Sezione IV Penale by order of that Court of                             in respect of offences under Article 2622(1) of the Civil
29 October 2002 in the criminal proceedings against                             Code (those committed in regard to companies not listed
Marcello Dell’Utri, Romano Luzi and Romano Comincioli                           on the stock exchange) that proceedings may only be
                                                                                brought upon a complaint by members of the company
                                                                                concerned or by its creditors?
                        (Case C-403/02)
                                                                         (1 ) First Council Directive 68/151/EEC of 9 March 1968 on co-
                                                                              ordination of safeguards which, for the protection of the interests
                                                                              of members and others, are required by Member States of
                                                                              companies within the meaning of the second paragraph of
                         (2003/C 19/24)                                       Article 58 of the Treaty, with a view to making such safeguards
                                                                              equivalent throughout the Community (English Special Edition...:
                                                                              Series-I I Chapter 1968(I), p. 41).
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Milano,
Sezione IV Penale (Milan District Court, Fourth Criminal
                                                                         Action brought on 15 November 2002 by the Com-
Chamber) of 29 October 2002, received at the Court Registry
                                                                         mission of the European Communities against the Hellen-
on 12 November 2002, for a preliminary ruling in the criminal
                                                                                ic Republic
proceedings against Marcello Dell’Utri, Romano Luzi and
Romano Comincioli on the following questions:
                                                                                (Case C-407/02)
—    May Article 6 of Directive 68/151/EEC ( 1) (first directive)                                    (2003/C 19/25)
     be understood as requiring the Member States to establish
     appropriate penalties not only for non-disclosure by
     commercial companies of balance sheets and profit and
     loss accounts but also for false disclosure of such                 An action against the Hellenic Republic was brought before
     documents, of other company documents addressed to                  the Court of Justice of the European Communities on 15 Nov-
     members or to the public, or of any information on a                ember 2002 by the Commission of the European Communi-
     company’s assets and liabilities, and economic and finan-           ties, represented by Michel Nolin and Minas Konstantinidis, of
     cial situation which the company is required to provide             its Legal Service, with an address for service in Luxembourg.
     in relation to itself or to the group of which it forms a
     part?
                                                                         The Commission claims that the Court should:
—    Must the concept of the ‘appropriateness’ of the penalty,           a)     declare that, as a result of the direct award by the
     for the purposes also of Article 5 of the EC Treaty, be                    municipality of Serres of the contract ‘Renewal of the
     understood in terms to be specifically assessed within the                 town of Serres: framework of investigative study models
     legislative scope (both criminal and procedural) of the                    and pilot realisation programme’ without tenders first
     Member States as requiring a penalty which is ‘efficacious,                being invited, the Hellenic Republic has failed to fulfil its
     effective and genuinely dissuasive’?                                       obligations under the provisions of Directive 92/50/
                                                                                EEC (1) (Article 8 et seq.) which require a tender procedure
                                                                                to be carried out and lay down the tender procedure for
—    Do the combined provisions of new Articles 2621 and                        the award of public service contracts;
     2622 of the Civil Code, as amended by Legislative Decree
     No 61 of 11 April 2002, satisfy those criteria: in                  b)     order the Hellenic Republic to pay the costs.
     particular can Article 2621 of the Civil Code, which
     summarily punishes by a term of imprisonment of one
     year and six months offences in connection with non-
     disclosure of balance sheets not occasioning financial loss         Pleas in law and main arguments
     or occasioning loss but in respect of which no prosecution
     may be brought under Article 2622 of the Civil Code
     owing to the absence of a complaint, be described as                The provisions of Directive 92/50 govern the choice of
     ‘effectively dissuasive’ and ‘genuinely appropriate’? Finally,      procedures for the award of public service contracts and lay
     is it appropriate, in terms not least of the specific               down common rules in the field of design contests and in the
     protection of the collective interest in the ‘transparency’         technical field. Those provisions apply to contracts whose
     of the corporate market, and the possibility that that              estimated value is equal to or exceeds a specified threshold.
 ---pagebreak--- 25.1.2003               EN                   Official Journal of the European Communities                                           C 19/15
According to the Commission, the contract ‘Renewal of the               2.    annul the decision of the respondent (ECB) in its letter of
town of Serres: framework of investigative study models and                   28 June 2000 altering the responsibilities assigned to the
pilot realisation programme’ is a public service contract                     appellant;
falling within the directive given its subject-matter and value.
Nevertheless, the contract was not put out to tender but was            3.    order the ECB to pay the costs.
awarded directly by the municipality of Serres to the Aristotle
University of Thessaloniki.
                                                                        Pleas in law and main arguments
The Commission further maintains that in the present case               —     The judgment appealed against mistakes the scope and
neither the exception in Article 6 of the directive (contract                 structure of the EBC’s functional autonomy under the
with an entity which is itself a contracting authority within the             contractual system established by Article 36.1 of the
meaning of the directive) nor the exception in Article 1(a)(ix)               ESCB Statute and the first sentence of Article 9(a) of the
is applicable.                                                                Conditions of Employment. Owing to that error of law
                                                                              that judgment was based on the supposition that under
                                                                              the contractual system the ECB had the same wide
                                                                              discretion as is available to employers in the use of
( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the              staff under the law governing officials of the European
     coordination of procedures for the award of public service               Communities. That discretion relating to the use of staff
     contracts (OJ L 209, 24.7.1992, p. 1).                                   is, however, to be distinguished from discretion in terms
                                                                              of operational organisation. The Court of First Instance
                                                                              was wrong to consider the ECB entitled to disregard the
                                                                              applicant’s job description which had become a part
                                                                              of the contract and to withdraw contractually agreed
                                                                              responsibilities from him. In accordance with principles
                                                                              governing the law concerning officials, the Court of First
                                                                              Instance should not have had regard to whether the
                                                                              tasks withdrawn constituted ‘essential elements’ of the
                                                                              contractually agreed area of activity. It should have
                                                                              inquired into whether those tasks were contractually laid
                                                                              down.
Appeal by Jan Pflugradt against the judgment of the Court
of First Instance of the European Communities (Fifth                          In the event that the contractually agreed employment
Chamber) of 22 October 2002 in Joined Cases T-178/00                          cannot be continued because of cessation of employment,
and T-341/00, Jan Pflugradt v European Central Bank,                          Article 11(a)(ii) provides for the possibility of dismissal for
                  lodged on 18 November 2002                                  organisational reasons. That provision therefore makes it
                                                                              clear that it is not permissible unilaterally to alter the
                                                                              terms of the contract in order to enable employment
                         (Case C-409/02 P)                                    relations to be ‘developed further’ in disregard of contrac-
                                                                              tual agreements. It is not permissible to leave to the ECB
                                                                              as the employer from the point of view of employment
                                                                              law the decision on the application of two different
                           (2003/C 19/26)                                     arrangements which in the end are contradictory. If that
                                                                              were the case, the ECB could — in certain cases even
                                                                              arbitrarily — choose between termination of contract
                                                                              under Article 11(a)(ii) of the Conditions of Employment
                                                                              and continuation of the contract in disregard of contrac-
                                                                              tual agreements.
An appeal against the judgment delivered on 22 October 2002
by the Fifth Chamber of the Court of First Instance of the                    The Court of First Instance described the appellant’s
European Communities in Joined Cases T-178/00 and T-341/                      responsibility for appraisal of the members of the UNIX
99, Jan Pflugradt v the European Central Bank, was brought                    team as not an essential element of the contract of
before the Court of First Instance of the European Communities                employment, although in the job description it is termed
on 18 November 2002 by Jan Pflugradt, represented by Dr                       a ‘key responsibility’. The Court of First Instance also
Norbert Pflüger, 44 Kaiserstraße, D-60329 Frankfurt am Main,                  misconstrued the job description by assuming it to
with an address for service in Luxembourg.                                    constitute merely a provisional assignment of responsi-
                                                                              bilities.
                                                                        —     Infringement of the rules concerning evidence.
The appellant claims that the Court should, on setting aside
the judgment appealed against ( 1)
                                                                        (1 ) Not yet published in the Official Journal of the European
                                                                             Communities.
1.     annul the appellant’s performance appraisal report for
       1999 dated 23 November 1999;


title: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 2 October 1997 in the case of Sarclad International Ltd, Wittington, Chesterfield, United Kingdom, against the Bundesamt für Finanzen (Case C-428/97)

text:
C 55/18                EN                Official Journal of the European Communities                                   20.2.98
Regulation No 17 which was adopted to implement                     Reference for a preliminary ruling by the Bundesfinanzhof
Article 86; (ii) infringement of Article 173; and (iii) breach      by order of that court of 2 October 1997 in the case of
of essential procedural requirements.                               Sarclad International Ltd, Wittington, Chesterfield, United
                                                                           Kingdom, against the Bundesamt für Finanzen
Pleas in law and main arguments adduced in support:                                        (Case C-428/97)
                                                                                (98/C 55/34)
Ð Error in classification
    Ð Erroneous interpretation of Regulation No 17.
                                                                    Reference has been made to the Court of Justice of the
                                                                    European Communities by order of the Bundesfinanzhof
    Ð Erroneous interpretation of Article 169 of the EC             (Federal Finance Court) of 2 October 1997, received at
        Treaty: in order for Article 169 concerning failure         the Court Registry on 18 December 1997, for a
        of a Member State to fulfil obligations to apply, it        preliminary ruling in the case of Sarclad International Ltd,
        is not sufficient that a failure to comply with            Wittington, Chesterfield, United Kingdom, against the
        Directive 93/38' is concerned and was expressly             Bundesamt für Finanzen (Federal Finance Office) on the
        referred to in the complaint, since the complaint           following question:
        was directed only at the conduct of the contracting
        entity, both as regards competition and free
        movement of goods.
                                                                    Is Article 3(a) of the eighth Council Directive 79/1072/
                                                                    EEC of 6 December 1979 on the harmonisation of the
        Nor does the Court of First Instance establish that
                                                                    laws of the Member States relating to turnover taxes (1) to
        the procedure followed by the Commission was
                                                                    be interpreted as meaning:
        appropriate by citing the case-law of the Court of
        Justice according to which acts of contracting
        entities are imputable to the Member States to
        which those entities belong. If that case-law is            Ð that the duplicate of a substitute document may also
        applied to the present case, the SNCB has no                    be regarded as the original import document or the
        liability, contrary to the principle set out in                 Member States are allowed in some circumstances to
        Article 222 of the Treaty, even though the same                 treat the duplicate as the original import document, or
        misconduct could be raised against a private
        undertaking.
                                                                    Ð that taxable persons not established in the territory of
    Ð Misinterpretation of the concept of an act against                the country Ð who are covered by the eighth
        which proceedings may be brought.                               Directive 79/1072/EEC Ð are definitively precluded
                                                                        from asserting their right to deduct input tax if the
Ð Breach of essential procedural requirements                           import document originally issued has been lost before
                                                                        the application for a refund of the value added tax is
                                                                        made?
    Ð Manifest violation of the rights as of defence: the
        Court of First Instance acted in breach of this
        fundamental principle by adopting the premise               (1) OJ L 331, 27.12.1979, p. 11.
        that, in the context of a procedure pursuant to
        Article 169 of the Treaty, persons who have lodged
        a complaint have no procedural rights.
    Ð Distortion of the subject-matter of the dispute:
        with regard to the plea of inadmissibility raised by
        the Commission, the Court of First Instance failed
        to find in limine litis that there was no legal basis       Action brought on 18 December 1997 by the Commission
        for the Commission's letter closing the file, as            of the European Communities against the French Republic
        SATEBA, in its application, requested it to do. The                                (Case C-429/97)
        Court of First Instance could not, therefore,
        without exceeding its powers, act in the place of                                    (98/C 55/35)
        the Commission in selecting one of the procedures
        made available to the Commission in the context
        of Article 155 of the Treaty, in order to establish a
        ground for declaring the applicant's action                 An action against the French Republic was brought before
        inadmissible.                                               the Court of Justice of the European Communities on
                                                                    18 December 1997 by the Commission of the European
                                                                    Communities, represented by HeÂleÁne Michard and Enrico
(1) OJ C 357, 22.11.1997, p. 27.
                                                                    Traversa, acting as Agents, with an address for service in
                                                                    Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                    Wagner Centre, Kirchberg.


title: Case C-582/10: Order of the President of the Sixth Chamber of the Court of 22 November 2011 — European Commission v Austrian Republic

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/22

         Order of the President of the Sixth Chamber of the Court of 22 November 2011 — European Commission v Austrian Republic
   (Case C-582/10) (1)

   2012/C 49/39
   Language of the case: German
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 30, 29.1.2011.


title: Order of the Court (Second Chamber) of 30 May 2002 in Case C-358/00 (Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf): Buchhändler-Vereinigung GmbH v Saur Verlag GmbH & Co. KG, Die Deutsche Bibliothek (Article 104(3) of the Rules of Procedure — Public service contracts — Directive 92/50/EEC — Public service concession)

text:
C 191/12                 EN                       Official Journal of the European Communities                                          10.8.2002
1.    The following are dismissed as manifestly inadmissible and/or          P.C. Gaito, lawyers — appeal against the judgment of the
      manifestly unfounded:                                                  Court of First Instance of the European Communities, Fourth
                                                                             Chamber, Extended Composition, of 15 March 2000 in Joined
      —     second ground of appeal, second to fifth parts;                  Cases T-25/95, T-36/95, T-30/95 to T-32/95, T-34/95 to
                                                                             T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95,
      —     third ground of appeal;                                          T-68/95 to T-71/95, T-87/95 to T-88/95 and T-103/95 to
                                                                             T-104/95 Cimenteries CBR v Commission [2000] ECR II-491,
      —     sixth ground of appeal;                                          seeking to have that judgment set aside, the other party to the
                                                                             proceedings being Commission of the European Communities
      —     eighth ground of appeal;                                         (Agents: R. Lyal, assisted by A. Dal Ferro) — the Court,
                                                                             composed of P. Jann, Presidents of the Chamber,
      —     ninth ground of appeal, first part;                              D.A.O. Edward (Rapporteur), A. La Pergola, M. Wathelet and
                                                                             A. Rosas, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
                                                                             R. Grass, Registrar, made an order on 5 June 2002, the
      —     eleventh ground of appeal, first, second, fourth and fifth
                                                                             operative part of which is as follows:
            parts;
      —     sixteenth ground of appeal;                                      1.    The fourth and fifth parts of the sixth ground of appeal are
                                                                                dismissed as manifestly unfounded.
      —     seventeenth ground of appeal;
                                                                             2.    Costs are reserved.
      —     nineteenth ground of appeal;
      —     twentieth ground of appeal, and                                  (1) OJ C 247 of 26.8.2000.
      —     twentieth and twenty-first grounds of appeal.
2.    Costs are reserved.
(1) OJ C 247 of 26.8.2000.
                                                                                ORDER OF THE COURT
                                                                                (Second Chamber)
                     ORDER OF THE COURT                                                                 of 30 May 2002
                           (Fifth Chamber)                                   in Case C-358/00 (Reference for a preliminary ruling
                                                                             from the Oberlandesgericht Düsseldorf): Buchhändler-
                            of 5 June 2002                                   Vereinigung GmbH v Saur Verlag GmbH & Co. KG, Die
                                                                                Deutsche Bibliothek (1)
in Case C-219/00 P: Cementir — Cementerie del Tirreno
    SpA v Commission of the European Communities (1)                         (Article 104(3) of the Rules of Procedure — Public service
                                                                             contracts — Directive 92/50/EEC — Public service con-
(Appeals — Competition — Cement — Article 85(1) of the                                                      cession)
EC Treaty (now, Article 81(1) EC) — Appeal in part
                       manifestly unfounded)                                                            (2002/C 191/21)
                           (2002/C 191/20)
                                                                                (Language of the case: German)
                     (Language of the case: Italian)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                             In Case C-358/00: Reference to the Court under Article 234 EC
In Case C-219/00 P: Cementir — Cementerie del Tirreno                        by the Oberlandesgericht Düsseldorf (Germany) for a prelimi-
SpA, established in Rome, represented by G.M. Roberti and                    nary ruling in the proceedings pending before that court
 ---pagebreak--- 10.8.2002                EN                       Official Journal of the European Communities                                           C 191/13
between Buchhändler-Vereinigung GmbH and Saur Verlag                         p. 1) — the Court, composed of: G.C. Rodrı́guez Iglesias,
GmbH & Co. KG, Die Deutsche Bibliothek, on the interpret-                    President, P. Jann, F. Macken, N. Colneric and S. von Bahr,
ation of Articles 1 and 8 of Council Directive 92/50/EEC of                  Presidents of Chamber, C. Gulmann (rapporteur),
18 June 1992 relating to the coordination of procedures for                  D. A. O. Edward, A. La Pergola, J.-P. Puissochet, M. Wathelet,
the award of public service contracts (OJ 1992 L 209, p. 1), as              V. Skouris, J. N. Cunha Rodrigues and C. W. A. Timmermans,
amended by European Parliament and Council Directive 97/                     Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar,
52/EC of 13 October 1997 (OJ 1997 L 328, p. 1), the Court                    has made an order on 26 April 2002, in which it has ruled:
(Second Chamber) composed of: N. Colneric, President of the
Chamber, R. Schintgen and V. Skouris (Rapporteur), Judges;
C. Stix-Hackl, Advocate General; R. Grass, Registrar, has made               The question referred by the Corte d’Appello di Milano by order of
an order on 30 May 2002, the operative part of which is as                   25 October 2000 is inadmissible.
follows:
                                                                             (1) OJ C 17, 19.1.2002.
A concession contract for public publishing services is excluded, under
Community law as it stands at present, from the scope of Council
Directive 92/50/EEC of 18 June 1992 relating to the coordination
of procedures for the award of public service contracts, as amended by
European Parliament and Council Directive 97/52/EC of 13 October
1997, even though, by reason of its specific object, it is covered by
Annex I A to that directive to which Article 8 thereof refers.
                                                                                ORDER OF THE COURT
(1) OJ C 355 of 9.12.2000.
                                                                                of 17 May 2002
                                                                             in Case C-406/01: Federal Republic of Germany v Euro-
                                                                               pean Parliament and Council of the European Union (1)
                     ORDER OF THE COURT                                      (Action for annulment — Manifest inadmissibility — Delay)
                          of 26 April 2002                                                             (2002/C 191/23)
in Case C-454/00 (reference for a preliminary ruling from                                       (Language of the case: German)
the Corte d’Appello di Milano): VIS Farmaceutici Istituto
scientifico delle Venezie SpA v Duphar International
                                                                             (Provisional translation; the definitive translation will be published
                            Research BV (1)
                                                                                in the European Court Reports)
            (Preliminary ruling — Inadmissibility)
                           (2002/C 191/22)                                   In Case C-406/01: Federal Republic of Germany (Agents:
                                                                             W.-D. Plessing and M. Lumma, assisted by J. Sedemund) v
                                                                             European Parliament (Agents: C. Pennera and E. Waldherr) and
                     (Language of the case: Italian)                         Council of the European Union (Agents: E. Karlsson and
                                                                             J.-P. Hix) — application for annulment of Article 3(1) in
                                                                             conjunction with Article 3(2) of Directive 2001/37/EC of the
(Provisional translation; the definitive translation will be published       European Parliament and of the Council of 5 June 2001 on
                    in the European Court Reports)                           the approximation of the laws, regulations and administrative
                                                                             provisions of the Member States concerning the manufacture,
                                                                             presentation and sale of tobacco products (OJ 2001 L 194,
                                                                             p. 26), in so far as those provisions prohibit the manufacture
In Case C-454/00: reference to the Court under Article 234 EC                of cigarettes for export from the European Community to
from the Corte d’appello di Milano (Italy) for a preliminary                 non-Member States — the Court, composed of: G.C. Rodrı́guez
ruling in the proceedings pending before that court between                  Iglesias, President, P. Jann, F. Macken, N. Colneric and S. von
VIS Farmaceutici Istituto scientifico delle Venezie SpA and                  Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,
Duphar International Research BV, intervener: Consorzio                      A. La Pergola (Rapporteur), J.-P. Puissochet, M. Wathelet,
Produttori Principi Attivi Generici (CPA) — on the interpret-                R. Schintgen, V. Skouris, J.N. Cunha Rodrigues, C.W.A. Tim-
ation of Article 4 of Council Regulation (EEC) No 1768/92 of                 mermans and A. Rosas, Judges; C. Stix-Hackl, Advocate
18 June 1992 concerning the creation of a supplementary                      General; R. Grass, Registrar, made an order on 17 May 2002,
protection certificate for medicinal products (OJ 1992 L 182,                the operative part of which is as follows:


title: Case T-26/02: Judgment of the Court of First Instance (Fourth Chamber) of  15 March 2006  — Daiichi Pharmaceutical v Commission (Competition — Cartels in the vitamin products sector — Guidelines on the method of setting fines — Determination of the starting amount of the fine — Attenuating circumstances — Leniency Notice)

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/16

         Judgment of the Court of First Instance (Fourth Chamber) of 15 March 2006 — Daiichi Pharmaceutical v Commission
   (Case T-26/02) (1)

   (Competition - Cartels in the vitamin products sector - Guidelines on the method of setting fines - Determination of the starting amount of the fine - Attenuating circumstances - Leniency Notice)
   (2006/C 108/26)
   Language of the case: English
   Parties

      Applicant: Daiichi Pharmaceutical Co. Ltd (Tokyo, Japan) (represented by: J.Buhart and P.-M.Louis, lawyers)

      Defendant: Commission of the European Communities (represented by: R.Wainwright and L.Pignataro-Nolin, agents)
   Re:
   APPLICATION for annulment or reduction of the fine imposed on the applicant by Article 3(f) of Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 — Vitamins) (OJ 2003 L 6, p. 1),
   Operative part of the judgment
   The Court:

               1)

               Reduces to EUR 18 000 000 the fine imposed on the applicant by Article 3(f) of Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 — Vitamins);

               2)

               Dismisses the remainder of the application;

               3)

               Orders the applicant to bear four fifths of its own costs and to pay four fifths of the costs incurred by the Commission and the Commission to bear one fifth of its own costs and to pay one fifth of the costs incurred by the applicant.

      (1)  OJ C 97, 30.4.2002


title: Case T-361/14: Judgment of the General Court of 5 April 2017 — HB and Others v Commission (Law governing the institutions — European citizens’ initiative — Protection of stray animals — Psychological effects on adults and children — Refusal of registration — Manifest lack of powers of the Commission — Article 4(2)(b) and (3) of Regulation (EU) No 211/2011)

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/21

         Judgment of the General Court of 5 April 2017 — HB and Others v Commission
   (Case T-361/14) (1)

   ((Law governing the institutions - European citizens’ initiative - Protection of stray animals - Psychological effects on adults and children - Refusal of registration - Manifest lack of powers of the Commission - Article 4(2)(b) and (3) of Regulation (EU) No 211/2011))
   (2017/C 161/29)
   Language of the case: German

      Parties

      Applicants: HB (Linz, Austria) and the six other applicants whose names are set out in the annex to the judgment (represented by: initially C. Kolar, and subsequently by F. Moyse, lawyers)

      Defendant: European Commission (represented by: H. Krämer and J. Vondung, acting as Agents)

      Re:

   Action pursuant to Article 263 TFEU for annulment of Commission Decision C(2014) 2119 final of 26 March 2014 rejecting the request for registration of the proposed citizens’ initiative entitled ‘Ethics for Animals and Kids’

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders HB and the other applicants whose names are set out in the annex to pay the costs.

      (1)  OJ C 409, 17.11.2014.


title: Case T-78/02: Action brought on 19 March 2002 by Stephan-Harald Voigt against the European Central Bank

text:
15.6.2002             EN                     Official Journal of the European Communities                                      C 144/51
The pleas and arguments invoked in the present case are                 written reprimands within the meaning of Article 43(i) of the
largely similar to those raised in case T-45/02, DOW Agro-              Conditions of Employment by a valid decision of the Executive
Sciences and DOW AgroSciences -v- European Parliament and               Board.
Council of the European Union (not yet published in the OJ).
(1) Directive 2000/60/EC of the European Parliament and of the
    Council of 23 October 2000 establishing a framework for
    Community action in the field of water policy (OJ L 327,
    22.12.2000, p. 1)                                                   Action brought on 23 March 2002 by Pedro Diaz S.A.
                                                                        against the Office for Harmonisation in the Internal
                                                                                Market
                                                                                (Case T-85/02)
                                                                                (2002/C 144/103)
Action brought on 19 March 2002 by Stephan-Harald                                          (Language of the case: Spanish)
           Voigt against the European Central Bank
                         (Case T-78/02)                                 An action against the Office for Harmonisation in the Internal
                                                                        Market was brought before the Court of First Instance of the
                                                                        European Communities on 23 March 2002 by Pedro Diaz S.A.
                       (2002/C 144/102)                                 of Carretera de Cartagena-La Palma, Km 2,4, Cartagena (Spain),
                                                                        represented by Patricia Koch Moreno.
                  (Language of the case: German)
                                                                        The applicant claims that the Court should:
                                                                        —     annul the decision of 16 January 2002 of the Third Board
An action against the European Central Bank was brought                       of Appeal rejecting application number 199 265 for
before the Court of First Instance of the European Communities                registration of a Community trade mark CASTILLO to
on 19 March 2002 by Stephan-Harald Voigt, residing in                         describe ‘cheeses’ falling within Class 29;
Langenselbold (Germany), represented by N. Pflüger, lawyer.
                                                                        —     declare that application number 199 265 for registration
                                                                              of a Community trade mark CASTILLO to describe
                                                                              ‘cheeses’ falling within Class 29 should be allowed;
The applicant claims that the Court should:
                                                                        —     order the defendant and, where appropriate, the inter-
—     annul the written reprimand issued to the applicant by                  vener, to pay the costs of the proceedings.
      the defendant pursuant to Article 43(i) of the Conditions
      of Employment by letter of 1 March 2002;
                                                                        Pleas in law and main arguments
—     order the defendant to pay the costs.
                                                                        Applicant for the Com-          Pedro Diaz S.A.
                                                                        munity trade mark
Pleas in law and main arguments                                         Community trade mark            CASTILLO — application no 199
                                                                        applied for Word mark:          265 for products falling within
                                                                                Classes 29 and 30
In support of his application, the applicant claims that the            Proprietor of the trade         Granja Castello S.A.
written reprimand is invalid on the ground that general                 mark or sign invoked in
procedural principles were not respected. The reprimand is              the opposition pro-
based on incorrect assumptions and the applicant was, inter             cedure:
alia, not granted an adequate hearing in the procedure.
Moreover, the defendant’s conduct infringes European data-              Trade mark or sign being        Word mark with graphic elements
protection rules.                                                       opposed:                        ‘EL CASTILLO’ registered for
                                                                                products in Class 29 and word
                                                                                mark with graphic elements ‘EL
The applicant also disputes that the Vice-President of the                                              CASTILLO NADO 1’ for products
defendant had been granted the general authority to decide on                                           in Class 30


title: Case T-63/11: Action brought on 24 January 2011 — Air France v Commission

text:
               26.3.2011

               EN

               Official Journal of the European Union

               C 95/9

         Action brought on 24 January 2011 — Air France v Commission
   (Case T-63/11)
   2011/C 95/14
   Language of the case: French

      Parties

      Applicant: Société Air France (Roissy Charles de Gaulle, France) (represented by: A. Wachsmann and S. Thibault-Liger, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul, on the basis of Article 263 TFEU, the entirety of European Commission Decision No C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39.258 — Airfreight) in so far as it concerns Société Air France, as well the grounds underlying the operative part of the Decision;

               —

               at the very least, annul Article 5(b) and (d) of Decision No C(2010) 7694 final of 9 November 2010 which imposes a fine on Société Air France, and the grounds underlying those provisions or reduce, on the basis of Article 261 TFEU, that fine to an appropriate amount;

               —

               in any event, order the European Commission to pay all the costs.

      Pleas in law and main arguments

   In support of its action, the applicant puts forward ten pleas which are essentially identical or similar to those raised in Case T-62/11 Air France — KLM v Commission.


title: Case C-258/10: Reference for a preliminary ruling from the Tribunalul Dâmbovița (Romania) lodged on 25 May 2010 — Nicușor Grigore v Regia Națională a Pădurilor Romsilva — Direcția Silvică București

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/20

         Reference for a preliminary ruling from the Tribunalul Dâmbovița (Romania) lodged on 25 May 2010 — Nicușor Grigore v Regia Națională a Pădurilor Romsilva — Direcția Silvică București
   (Case C-258/10)
   ()
   2010/C 221/33
   Language of the case: Romanian

      Referring court

   Tribunalul Dâmbovița

      Parties to the main proceedings

      Applicant: Nicușor Grigore

      Defendant: Regia Națională a Pădurilor Romsilva — Direcția Silvică București

      Questions referred

               1.

               Does the time during which a forester, who works eight hours a day under his individual contract of employment, is required to carry out wardenship duties in respect of a certain section of the forest for which he is liable to disciplinary action, the payment of compensation and civil or criminal sanctions, as the case may be, for any damage ascertained in the area under his control, regardless of the time when the damage occurs, constitute ‘working time’ within the meaning of Article 2(1) of Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time? (1)

               2.

               Is the answer to question 1 different where the forester resides in accommodation provided for him within the section of the forest with the management of which he is entrusted?

               3.

               Are the provisions of Article 6 of Directive 2003/88/CE, entitled ‘Maximum weekly working time’, infringed where, even though the individual contract of employment provides for a maximum working time of 8 hours a day and 40 hours a week, the forester must in fact, because of legal obligations, carry out wardenship duties on a continuous basis in respect of the section of the forest with the management of which he is entrusted?

               4.

               In the event that question 1 is answered in the affirmative, is the employer obliged to pay wages or similar remuneration in respect of the time during which the forester is required to carry out wardenship duties?

               5.

               In the event that question 1 is answered in the negative, what legal rules apply to the hours during which a forester is responsible for carrying out wardenship duties in respect of the forest with the management of which he is entrusted?

      (1)  OJ 2003 L 299, p. 9.


title: Case C-470/16: Reference for a preliminary ruling from High Court (Irlande) made on 22 August 2016 — North East Pylon Pressure Campaing Limited, Maura Sheehy v An Bord Pleanála, The Minister for Communications Energy and Natural Resources, Ireland, Attorney General

text:
               21.11.2016

               EN

               Official Journal of the European Union

               C 428/7

         Reference for a preliminary ruling from High Court (Irlande) made on 22 August 2016 — North East Pylon Pressure Campaing Limited, Maura Sheehy v An Bord Pleanála, The Minister for Communications Energy and Natural Resources, Ireland, Attorney General
   (Case C-470/16)
   (2016/C 428/09)
   Language of the case: English

      Referring court

   High Court (Irlande)

      Parties to the main proceedings

      Applicants: North East Pylon Pressure Campaing Limited, Maura Sheehy

      Defendants: An Bord Pleanála, The Minister for Communications Energy and Natural Resources, Ireland, Attorney General

      Questions referred

               i.

               in the context of a national legal system where the legislature has not expressly and definitively stated at what stage of the process a decision is to be challenged and where this falls for judicial determination in the context of each specific application on a-case-by-case basis in accordance with common law rules, whether the entitlement under art. 11(4) of Directive 2011/92/EU (1) to a ‘not prohibitively expensive’ procedure applies to the process before a national court whereby it is determined as to whether the particular application in question has been brought at the correct stage;

               ii.

               whether the requirement that a procedure be ‘not prohibitively expensive’ pursuant to art. 11(4) of Directive 2011/92/EU applies to all elements of a judicial procedure by which the legality (in national or EU law) of a decision, act or omission subject to the public participation provisions of the directive are challenged, or merely to the EU law elements of such a challenge (or in particular, merely to the elements of the challenge related to issues regarding the public participation provisions of the directive);

               iii.

               whether the phrase ‘decisions, acts or omissions’ in art. 11(1) of Directive 2011/92/EU includes administrative decisions in the course of determining an application for development consent, whether or not such administrative decisions irreversibly and finally determine the legal rights of the parties;

               iv.

               whether a national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, should interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in art. 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 (a) in a procedure challenging the validity of a development consent process involving a project of common interest that has been designated under Regulation No. 347/2013 (2) of the European Parliament and of the Council of 17th April, 2013 on guidelines for trans-European energy infrastructure, and/or (b) in a procedure challenging the validity of a development consent process where the development affects a European site designated under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora;

               v.

               whether, if the answer to question (iv)(a) and/or (b) is in the affirmative, the stipulation that applicants must ‘meet the criteria, if any, laid down in its national law’ precludes the Convention being regarded as directly effective, in circumstances where the applicants have not failed to meet any criteria in national law for making an application and/or are clearly entitled to make the application (a) in a procedure challenging the validity of a development consent process involving a project of common interest that has been designated under Regulation No. 347/2013 of the European Parliament and of the Council of 1th April, 2013 on guidelines for trans-European energy infrastructure, and/or (b) in a procedure challenging the validity of a development consent process where the development affects a European site designated under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora;

               vi.

               whether it is open to a member state to provide in legislation for exceptions to the rule that environmental proceedings should not be prohibitively expensive, where no such exception is provided for in Directive 2011/92/EU or the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998; and

               vii.

               in particular, whether a requirement in national law for a causative link between the alleged unlawful act or decision and damage to the environment as a condition for the application of national legislation giving effect to art. 9(4) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 to ensure that environmental proceedings are not prohibitively expensive is compatible with the Convention.

      (1)  Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment

      OJ L 26, p. 1

      (2)  Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009

      OJ L 115, p. 39


title: Case C-147/06: Reference for a preliminary ruling from the Consiglio di Stato, Quinta Sezione lodged on  20 March 2006  — SECAP SpA v Comune di Torino

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/23

         Reference for a preliminary ruling from the Consiglio di Stato, Quinta Sezione lodged on 20 March 2006 — SECAP SpA v Comune di Torino
   (Case C-147/06)
   (2006/C 143/42)
   Language of the case: Italian
   Referring court
   Consiglio di Stato
   Parties to the main proceedings

      Applicant: SECAP SpA

      Defendant: Comune di Torino and Others
   Question(s) referred

               1.

               Does the rule laid down in Article 30(4) of Directive 93/37/EEC (1) or the similar rule contained in Art. 55(1) and (2) of Directive 2004/18/EC (2) (in cases where that is the relevant provision), that, where tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, constitute a fundamental principle of Community law?

               2.

               If the answer to the preceding question is in the negative, is the rule established by Art. 30(4) of Directive 93/37/EEC or the similar rule contained in Art. 55(1) and (2) of Directive 2004/18/EC (in cases where that is the relevant provision), according to which, if tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, while not presenting the characteristics of a fundamental principle of Community law, nevertheless an implied consequence of or a principle deriving from the principle of competition, considered in conjunction with the principles of administrative transparency and non-discrimination on grounds of nationality and is it therefore, as such, directly binding, taking precedence over possibly incompatible national provisions adopted by the Member States to regulate public works contracts to which Community law is not directly applicable?

      (1)  OJ L 199, p. 54.

      (2)  OJ L 134, p. 114.


title: Case C-427/06: Reference for a preliminary ruling from the Bundesarbetitsgericht (Germany) lodged on 18 October 2006 — Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/29

         Reference for a preliminary ruling from the Bundesarbetitsgericht (Germany) lodged on 18 October 2006 — Birgit Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH
   (Case C-427/06)
   (2006/C 326/61)
   Language of the case: German
   Referring court
   Bundesarbeitsgericht
   Parties to the main proceedings

      Applicant: Birgit Bartsch

      Defendants: Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH
   Questions referred

               1.

                           a)

                           Does the primary legislation of the European Communities contain a prohibition of discrimination on grounds of age the protection by which must be guaranteed by the Member States even if the possibly discriminatory treatment is not connected to Community law?

                           b)

                           In the event that question a) is answered in the negative:
                           Does such a connection to Community law arise from Article 13 EC or — even before the time-limit for transposition has expired — from Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1)?

               2.

               Is any prohibition of discrimination on grounds of age arising from the answer to question 1 also applicable between private employers on the one hand and their employees or pensioners and their survivors on the other hand?

               3.

               If question 2 is answered in the affirmative:

                           a)

                           Is a provision of an occupational pension scheme, which provides that a survivor's pension will not be granted to a surviving spouse in the event that the survivor is more than 15 years younger than the deceased former employee, within the scope of the prohibition of discrimination on grounds of age?

                           b)

                           If question a) above is answered in the affirmative:
                           Can such a provision be justified by the fact that the employer has an interest in limiting the risks arising from the occupational pension scheme?

                           c)

                           In the event that question 3 b) is answered in the negative:
                           Does the possible prohibition of discrimination on grounds of age have unlimited retroactive effect as regards the law relating to occupational pension schemes or is it limited as regards the past, and if so in what way?

      (1)  OJ L 303, p. 16.


title: Case C-98/11 P: Appeal brought on 1 March 2011 by Chocoladefabriken Lindt & Sprüngli AG against the judgment of the General Court (FirstChamber) delivered on 17 December 2010 in Case T-336/08 Chocoladefabriken Lindt & Sprüngli AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/11

         Appeal brought on 1 March 2011 by Chocoladefabriken Lindt & Sprüngli AG against the judgment of the General Court (FirstChamber) delivered on 17 December 2010 in Case T-336/08 Chocoladefabriken Lindt & Sprüngli AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-98/11 P)
   2011/C 145/16
   Language of the case: German

      Parties

      Appellant: Chocoladefabriken Lindt & Sprüngli AG (represented by: G. Hild and R. Lange, lawyers)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

               —

               Set aside the judgment of the General Court (First Chamber) of 17 December 2010 in Case T-336/08;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

   The present appeal is brought against the judgment of the General Court, by which it dismissed the appellant’s claim seeking annulment of the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 June 2008 on the rejection of its application for registration of a three-dimensional mark comprising the shape of a chocolate rabbit with a red band.
   The appellant bases its appeal on an infringement of Article 7(1)(b) and Article 7(3) of Regulation No 40/94.
   As regards the first ground of appeal, concerning the assessment of the marks’ distinctive character, neither the assessment by OHIM nor the judicial review by the General Court satisfied the requirements in law, since both decisions were based on conjecture. OHIM speculated that the finding that a chocolate Easter bunny is a typical shape for Easter is valid for all Member States of the European Union and that that was not in dispute. That assertion has, however, always been in dispute, since the appellant has expressly disputed that assertion, adducing substantial evidence. OHIM and the General Court should have taken that into account in order correctly to fulfil their obligation of assessment under Article 74(1) of Regulation No 40/94. Further, the General Court reached the conclusion that the use of gold foil to wrap chocolate Easter bunnies is usual on the market, despite the fact that the judgment referred to only three other kinds wrapped in gold foil. Such a small number of goods cannot, in the view of the appellant, lead to that feature being regarded as ‘usual in the market’.
   The fact that the assumption made by the General Court, that the mark has no inherent distinctive character throughout the European Union, is unfounded also becomes clear from the fact that the mark in question is registered as a trade mark in 15 Member States of the European Union.
   The second ground of appeal concerns the ruling of the General Court that the mark must have acquired distinctive character through use throughout the European Union, which is incorrect for two reasons.
   First, the General Court misses the point that distinctive character must be acquired by use only in those places where the mark has no inherent distinctive character. In the 15 Member States where the mark in question has inherent distinctive character, there is no need to require the acquisition of distinctive character through use. If the view were to be accepted that, as part of the assessment, distinctive character had to be ascertained again in the individual Member States, the factual circumstances pertaining there would have to be established. Since, pursuant to Article 74 of the regulation, distinctive character is to be assessed by OHIM of its own motion, OHIM should thus have made specific findings for each individual Member State of the European Union. OHIM and the General Court failed to do so.
   Second, the considerations of the General Court cannot be reconciled with the principle of homogeneity of Community trade marks. In an assessment of registrability and, specifically in this case, distinctive character, the European Union is to be regarded as a common homogeneous market. If, as regards a significant part of the total population of the European Union, there is inherent distinctive character, that must also be sufficient for protection throughout the European market.


title: Order of the Court of First Instance of 14 January 2002 in Case T-84/01, Association contre l'heure d'été (ACHE), formerly Association contre l'horaire d'été (ACHE) v European Parliament and Council of the European Union (Action for annulment — Directive 2000/84/EC — Summer-time arrangements — Locus standi — Association — Inadmissibility)

text:
C 156/24                EN                      Official Journal of the European Communities                                         29.6.2002
      ORDER OF THE COURT OF FIRST INSTANCE                                 supported by Kingdom of the Netherlands (Agents: A. Fierstra
                                                                           and J. van Bakel) against Commission of the European
                        of 10 January 2002                                 Communities (Agents: R. Tricot and J. Stuyck) — application
                                                                           for annulment of the decisions of the Commission
                                                                           C(1999)2140 final (REC 8/98) and C(1999)2143 final (REC 9/
in Case T-87/97 DEP, Starway SA v Council of the                           98), of 19 July 1999, finding that it was appropriate, first, to
                        European Union (1)                                 make post clearance recovery and, secondly, to refuse to
                                                                           refund duties in respect of the importation of television sets
                        (Taxation of Costs)                                from Turkey — the Court of First Instance (Third Chamber),
                                                                           composed of M. Jaeger, President, K. Lenaerts, and J. Azizi,
                                                                           Judges; H. Jung, Registrar, made an order on 9 April 2002, the
                          (2002/C 156/45)                                  operative part of which is as follows:
                    (Language of the case: French)
                                                                           1.    There is no need to adjudicate on the present case.
                                                                           2.    The Commission shall pay all the costs.
In Case T-87/97 DEP, Starway SA, established in Luynes
(France), represented by J.-F. Bellis and P. De Baere, lawyers,
with an address for service in Luxembourg, against Council of
the European Union (Agents: R. Tanca and S. Marquardt),                    (1) OJ C 79 of 18.3.2000.
supported by Commission of the European Communities
(Agents: V. Kreuschitz and S. Meany) — application for
taxation of the costs to be paid to the applicant by the
defendent following the judgment of the Court of First Instance
of 26 September 2000 in Case T-80/97 Starway v Council
[2000] ECR II-3099 — the Court of First Instance (Third
Chamber, Extended Composition), composed of M. Jaeger,
President, R. Garcı́a-Valdecasas, K. Lenaerts, P. Lindh and
J. Azizi, Judges; H. Jung, Registrar, has made an order on                       ORDER OF THE COURT OF FIRST INSTANCE
10 January 2002, the operative part of which is as follows:
                                                                                of 14 January 2002
The total costs payable to the applicant by the Council in Case T-80/
97 are fixed at EUR 58 031,87.
                                                                           in Case T-84/01, Association contre l’heure d’été (ACHE),
                                                                           formerly Association contre l’horaire d’été (ACHE) v
                                                                           European Parliament and Council of the European
(1) OJ C 212 of 12.7.1997.                                                                               Union (1)
                                                                           (Action for annulment — Directive 2000/84/EC — Summer-
                                                                           time arrangements — Locus standi — Association —
                                                                                Inadmissibility)
      ORDER OF THE COURT OF FIRST INSTANCE                                                          (2002/C 156/47)
                          of 9 April 2002                                                      (Language of the case: French)
in Case T-353/99: N.V. Calberson Belgium v Commission
                of the European Communities (1)
                                                                           In Case T-84/01, Association contre l’heure d’été (ACHE),
(Action for annulment — Importation of television sets from                formerly Association contre l’horaire d’été (ACHE), established
                Turkey — No need to adjudicate)                            at Marly-le-Roy (France), represented by C. Lepage, lawyer,
                                                                           against European Parliament (Agents: C. Pennera and
                                                                           M. Goméz-Leal) and Council of the European Union (Agent:
                          (2002/C 156/46)                                  A. Lopes Sabino) — application for annulment of Directive
                                                                           2000/84/EC of the European Parliament and of the Council of
                    (Language of the case: Dutch)                          19 January 2001 on summer-time arrangements (OJ 2001
                                                                           L 31, p. 21) — the Court of First Instance (Second Chamber),
                                                                           composed of R.M. Moura Ramos, President of the Chamber,
                                                                           J. Pirrung and A.W.H. Meij, Judges; H. Jung, Registrar, has
In Case T-353/99: N.V. Calberson Belgium, represented by                   made an order on 14 January 2002, the operative part of
L. Gheysen, lawyer, with an address for service in Luxembourg,             which is as follows:
 ---pagebreak--- 29.6.2002              EN                     Official Journal of the European Communities                                     C 156/25
1.   The application is dismissed as inadmissible.                       ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
2.   The applicant shall bear the costs.
                                                                                of 20 December 2001
                                                                         in Case T-214/01 R: Bank für Arbeit und Wirtschaft AG v
                                                                                Commission of the European Communities
(1) OJ C 173 of 16.6.2001.
                                                                         (Proceedings for interim measures — Competition — Access
                                                                         to documents — Admissibility — Urgency — Weighing of
                                                                                interests)
                                                                                (2002/C 156/49)
                                                                                (Language of the case: German)
ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                           INSTANCE                                      In Case T-214/01 R: Bank für Arbeit und Wirtschaft AG,
                                                                         established in Vienna, represented by H.J. Niemeyer, lawyer,
                                                                         against Commission of the European Communities (Agent:
                     of 20 December 2001                                 S. Rating), — application principally for suspension of the
                                                                         operation of the Commission’s decision COMP/D-1/36.571 of
                                                                         25 July 2001 and, in the alternative, for an order restraining
in Case T-213/01 R: Österreichische Postsparkasse AG v                  the Commission from disclosing to the Freiheitliche Partei
        Commission of the European Communities                           Österreichs the statement of objections of 10 September 1999
                                                                         and the further statement of objections of 21 November 2000
                                                                         in Case COMP/36.571, — the President of the Court of First
(Proceedings for interim measures — Competition — Access                 Instance has made an order on 20 December 2001 in which
to documents — Admissibility — Urgency — Weighing of                     he:
                             interests)
                                                                         1.    Dismisses the application for interim measures.
                         (2002/C 156/48)
                                                                         2.    Reserves the costs.
                  (Language of the case: German)
In Case T-213/01 R: Österreichische Postsparkasse AG, estab-
lished in Vienna, represented by M. Klusmann, F. Wiener and                    ORDER OF THE COURT OF FIRST INSTANCE
A Reidlinger, lawyers, against Commission of the European
Communities (Agent: S. Rating), — application principally for                                      of 21 March 2002
suspension of the operation of the Commission’s decision
COMP/D-1/36.571 of 9 August 2001 and, in the alternative,
for an order restraining the Commission from disclosing to               in Case T-218/01: Laboratoire Monique Remy SAS against
the Freiheitliche Partei Österreichs the statement of objections             the Commission of the European Communities (1)
of 10 September 1999 and the further statement of objections
of 21 November 2000 in Case COMP/36.571, — the President                 (Action for annulment — Time-limits — Manifest inadmis-
of the Court of First Instance has made an order on 20 Decem-                                           sibility)
ber 2001 in which he:
                                                                                (2002/C 156/50)
1.   Dismisses the application for interim measures.
                                                                                (Language of the case: French)
2.   Reserves the costs.
                                                                         In Case T-218/02: Laboratoire Monique Remy SAS, established
                                                                         in Grasse (France), represented by J.-F. Pupel, lawyer, v
                                                                         Commission of the European Communities (Agent: A. Bordes)


title: Case C-481/12: Judgment of the Court (Second Chamber) of 16 January 2014 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — UAB ‘Juvelta’ v VĮ ‘Lietuvos prabavimo rūmai’ (Free movement of goods — Article 34 TFEU — Quantitative restrictions on imports — Measures having equivalent effect — Marketing of articles made of precious metals — Hallmark — Requirements laid down in the legislation of the Member State of import)

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/9

         Judgment of the Court (Second Chamber) of 16 January 2014 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — UAB ‘Juvelta’ v VĮ ‘Lietuvos prabavimo rūmai’
   (Case C-481/12) (1)

   (Free movement of goods - Article 34 TFEU - Quantitative restrictions on imports - Measures having equivalent effect - Marketing of articles made of precious metals - Hallmark - Requirements laid down in the legislation of the Member State of import)
   2014/C 85/14
   Language of the case: Lithuanian

      Referring court

   Lietuvos vyriausiasis administracinis teismas

      Parties to the main proceedings

      Applicant: UAB ‘Juvelta’

      Defendant: VĮ ‘Lietuvos prabavimo rūmai’

      Re:

   Request for a preliminary ruling — Lietuvos vyriausiasis administracinis teismas — Interpretation of Articles 34 and 36 TFEU — Measures having equivalent effect — Hallmarking of articles of precious metals — National legislation requiring articles to bear a specific hallmark of the authorised independent office — Consumer protection — Prohibition on the marketing of articles bearing a hallmark of the country of origin which does not conform to the national requirements — Presence of an additional mark giving the necessary information but not stamped by the authorised independent office.

      Operative part of the judgment

               1.

               Article 34 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which, for it to be permissible for them to be sold on the market of a Member State, articles of precious metal imported from another Member State, in which they are authorised to be put on the market and which have been stamped with a hallmark in accordance with the legislation of that second Member State, must, where the information concerning the standard of fineness of those articles provided in that hallmark does not comply with the requirements of the legislation of that first Member State, be stamped again, by an independent assay office authorised by that first Member State, with a hallmark confirming that those articles have been inspected and showing their standard of fineness in accordance with those requirements;

               2.

               The fact that additional marking of imported articles of precious metal, intended to provide information relating to the standard of fineness of those articles in a form intelligible to consumers of the Member State of import has not been effected by an independent assay office authorised by a Member State has no effect on the answer to the first question, since a hallmark of the standard of fineness had already been stamped on those articles by an independent assay office authorised by the Member State of export and the information provided by that marking is compatible with that on that hallmark.

      (1)  OJ C 9, 12.1.2013.


title: Case T-95/13: Judgment of the General Court of 22 May 2014  — Walcher Meßtechnik v OHIM (HIPERDRIVE) (Community trade mark — Application for Community word mark HIPERDRIVE — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/29

         Judgment of the General Court of 22 May 2014 — Walcher Meßtechnik v OHIM (HIPERDRIVE)
   (Case T-95/13) (1)

   ((Community trade mark - Application for Community word mark HIPERDRIVE - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   2014/C 212/36
   Language of the case: German

      Parties

      Applicant: Walcher Meßtechnik GmbH (Kirchzarten, Germany) (represented by: S. Walter, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 13 December 2012 (Case R 1779/2012-1) concerning an application for registration of the word sign HIPERDRIVE as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Walcher Meßtechnik GmbH to pay the costs.

      (1)  OJ C 108, 13.4.2013.


title: Case C-114/12: Action brought on 1 March 2012 — European Commission v Council of the European Union

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/5

         Action brought on 1 March 2012 — European Commission v Council of the European Union
   (Case C-114/12)
   2012/C 138/09
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: F. Castillo de la Torre, J. Samnadda, Agents)

      Defendant: Council of the European Union

      The applicant claims that the Court should:

               —

               annul the Decision of the Council and of the Representatives of Governments of the Member States meeting within the Council on the participation of the European Union and its Member States in negotiations for a Convention of the Council of Europe on the protection of the rights of broadcasting organisations

               —

               order the Council to bear the costs.

      Pleas in law and main arguments

                  First plea: Infringement of Articles 2(2) and 3(2) TFUE, because the Council has considered that the matter is one of shared competence, and has authorised Member States or an Institution other than the Commission to negotiate the agreement, in a matter of exclusive competence. The future Council of Europe Convention may affect or alter the scope of EU Directives dealing with the rights of broadcasting organisations, as well as that of EU Directives on intellectual property law generally. The future Convention will be based on the existing EU acquis, and will inevitably lead to the amendment of the EU Directives should a higher degree of protection be granted to broadcasting organisations within the Council of Europe.

                  Second plea: Breach of the procedure and the conditions to authorise negotiations of international agreements by the Union. It is only the Council (and not the Council acting jointly with Member States) which is competent to authorise negotiations by the Union.

                  Third plea: Violation of the voting rules in the Council. By adopting the contested Decision, the Council violated Article 218(8) pursuant to which the Council shall act by qualified majority.

                  Forth plea: Breach of the objectives of the Treaties and the principle of sincere cooperation. The Council, by acting jointly with the Member States, undermines the standing of the Union and weakens the institutional framework of the Union.


title: Case T-418/11 P: Judgment of the General Court of 16 September 2013 — De Nicola v EIB (Appeal — Civil service — EIB staff — Sickness insurance — Refusal to reimburse medical expenses — Request to designate an independent doctor — Reasonable period — Rejection of a request to institute arbitration proceedings — Claim for setting aside — Claim for reimbursement of medical expenses — Lis pendens)

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/23

         Judgment of the General Court of 16 September 2013 — De Nicola v EIB
   (Case T-418/11 P) (1)

   (Appeal - Civil service - EIB staff - Sickness insurance - Refusal to reimburse medical expenses - Request to designate an independent doctor - Reasonable period - Rejection of a request to institute arbitration proceedings - Claim for setting aside - Claim for reimbursement of medical expenses - Lis pendens)
   2013/C 313/45
   Language of the case: Italian

      Parties

      Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by: L. Isola, lawyer)

      Other party to the proceedings: European Investment Bank (EIB) (represented by: initially by T. Gilliams and F. Martin, and subsequently by Gilliams and G. Nuvoli, acting as Agents, and by A. Dal Ferro, lawyer)

      Re:

   Appeal against the judgment of the Civil Service Tribunal of the European Union (First Chamber) in Case F-49/10 De Nicola v EIB, not yet published in the ECR, seeking the setting aside of that judgment.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the Civil Service Tribunal (First Chamber) in Case F-49/10 De Nicola v EIB, in so far as it rejects Mr Carlo De Nicola’s claims seeking the annulment of the decision of the European Investment Bank (EIB) rejecting his request to designate a third doctor;

               2.

               Dismisses the remainder of the appeal;

               3.

               Annuls the EIB’s decision rejecting, on the ground of having been submitted out of time, Mr De Nicola’s request to designate a third doctor;

               4.

               Orders Mr De Nicola and the EIB to bear their own costs relating to the proceedings at first instance and on appeal.

      (1)  OJ C 282, 24.9.2011.


title: Case C-187/02 P: Appeal brought on 21 May 2002 against the judgment delivered on 6 March 2002 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-127/99, T-129/99 and T-148/99 (not yet published) between Territorio Histórico de Álava — Diputación Foral de Álava and Others and Commission of the European Communities

text:
27.7.2002                EN                     Official Journal of the European Communities                                       C 180/11
—     Order the Portuguese Republic to pay the costs.                      The appellant claims that the Court should:
                                                                           1.    declare the present appeal admissible and consequently:
Pleas in law and main arguments
The Commission is of the view that the Portuguese Republic                 2.    set aside the judgment of the Court of First Instance of
has still not notified to it the plans and projects required by                  6 March 2002;
Article 11 of Directive 96/59/EC. The ‘National plan for the
decontamination and/or disposal of equipment listed in the
inventories and of the PCB contained in such equipment’                    3.    itself give final judgment in the matter on the basis of the
forwarded by the Portuguese Government, not having been                          appellant’s pleadings at first instance and, in particular,
adopted by the Government or published in the Diário da                         annul the decision of the Commission of 24 February
República (official gazette), does not appear to be binding.                    1999 inasmuch as the tax credit of 45 % of investment
Moreover, it fails to deal with a number of questions or                         provided for by the Norma Foral de Alava (Alava regional
restricts itself, with regard to others, to statements of intention.             Law) No 22/1994 does not constitute aid within the
Finally, it does not contain any reference to timings (timetable)                meaning of Article 87 EC or, if it should be deemed so to
for the measures which the Portuguese authorities intend to                      be, is existing aid, pursuant to Article 88 EC and Article 1
implement.                                                                       of the State aid Rules;
The Portuguese authorities have still not drawn up an inventory            4.    in the alternative, to refer the case back to the Court of
of the equipment containing in excess of 5 dm3 of PCB in                         First Instance for judgment, if the Court of Justice should
accordance with Article 4(1) of Directive 96/59/EC. Thus, the                    deem that appropriate;
‘summary’ which the Portuguese Government claims to have
transmitted to the Commission cannot be regarded as a
summary within the meaning of Article 4.                                   5.    order the Commission to pay the costs in both sets of
                                                                                proceedings.
(1) OJ 1996 L 243, p. 31.
                                                                           Pleas in law and main arguments
Appeal brought on 21 May 2002 against the judgment
delivered on 6 March 2002 by the Third Chamber,                            are similar to the first two pleas in law in Case C-183/02 P (1),
Extended Composition, of the Court of First Instance of                    together with a third plea in law:
the European Communities in Joined Cases T-127/99,
T-129/99 and T-148/99 (not yet published) between
Territorio Histórico de Álava — Diputación Foral de                     —     infringement of Community law inasmuch as there was
Álava and Others and Commission of the European                                 no finding of misuse of powers by the Commission and
                            Communities                                          no reasons were provided in that respect: the public
                                                                                at large is extremely well-aware of the problems at
                                                                                Community level for harmonising tax, which would
                          (Case C-187/02 P)
                                                                                allow undertakings and private individuals to operate in
                                                                                fairer conditions. The unwillingness of a number of
                           (2002/C 180/19)                                       Member States makes it impossible to achieve the necess-
                                                                                ary level of agreement within the Council. By means of
                                                                                the indirect route of State aid proceedings, in which the
                                                                                Commission enjoys wide powers, that institution has
An appeal against the judgment delivered on 6 March 2002                         succeeded in doing away with ‘controversial’ tax
by the Third Chamber, Extended Composition, of the Court of                      measures.
First Instance of the European Communities in Joined Cases
T-127/99, T-129/99 and T-148/99 between Territorio His-
tórico de Álava — Diputación Foral de Álava and Others and
Commission of the European Communities was brought                         (1) See p. 9 of this Official Journal.
before the Court of Justice of the European Communities on
21 May 2002 by Territorio Histórico de Alava — Diputación
Foral de Alava, represented by Antonio Creus Carreras and
Begoña Uriarte Valiente, Abogados, of Calle Velázquez No 63,
Madrid.


title: Case T-513/08 P: Order of the General Court of 27 April 2012 — Commission v Smadja

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/19

         Order of the General Court of 27 April 2012 — Commission v Smadja
   (Case T-513/08 P) (1)

   2012/C 184/35
   Language of the case: French
   The President of the Appeal Chamber has ordered that the case be removed from the register.

      (1)  OJ C 44, 21.2.2009.


title: Case T-159/16: Judgment of the General Court of 16 May 2017 — Metronia v EUIPO — Zitro IP (TRIPLE O NADA) (EU trade mark — Opposition proceedings — Application for EU figurative mark TRIPLE O NADA — Earlier EU figurative mark TRIPLE BINGO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               3.7.2017

               EN

               Official Journal of the European Union

               C 213/29

         Judgment of the General Court of 16 May 2017 — Metronia v EUIPO — Zitro IP (TRIPLE O NADA)
   (Case T-159/16) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark TRIPLE O NADA - Earlier EU figurative mark TRIPLE BINGO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 213/38)
   Language of the case: Spanish

      Parties

      Applicant: Metronia, SA (Madrid, Spain) (represented by: A. Vela Ballesteros, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the Court: Zitro IP Sàrl (Luxembourg, Luxembourg) (represented by: A. Canela Giménez, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 15 February 2016 (Case R 2605/2014-4) concerning opposition proceedings between Zitro IP and Metronia.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Metronia, SA to pay the costs.

      (1)  OJ C 211, 13.6.2016.


title: Case C-176/05: Reference for a preliminary ruling from the Landesgericht für ZRS Wien by order of that court of 8 April 2005 in KVZ retec GmbH v Republic of Austria (Federal Minister for Agriculture, Forestry, the Environment and Water Management)

text:
               11.6.2005

               EN

               Official Journal of the European Union

               C 143/28

         Reference for a preliminary ruling from the Landesgericht für ZRS Wien by order of that court of 8 April 2005 in KVZ retec GmbH v Republic of Austria (Federal Minister for Agriculture, Forestry, the Environment and Water Management)
   (Case C-176/05)
   (2005/C 143/45)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht für ZRS Wien (Vienna Regional Civil Court) (Austria) of 8 April 2005, received at the Court Registry on 20 April 2005, for a preliminary ruling in the proceedings between KVZ retec GmbH and Republic of Austria (Federal Minister for Agriculture, Forestry, the Environment and Water Management) on the following questions:

               1.

               Is the shipment (transit or return) of meat-and-bone meal, whether or not free of special risk material, subject, in so far as it involves waste, to the notification obligation in Council Regulation (EEC) No 259/93 (‘the Waste Shipment Regulation’)?
               If so,

               2.

               Is the shipment of meat-and-bone meal, whether or not free of special risk material, excluded from the application of the Waste Shipment Regulation in accordance with Article 1(2)(d) of that regulation?
               If the answer to Question 2 is in the negative,

               3.

               Is the shipment (transit or return) of meat-and-bone meal

                           (a)

                           which is free of special risk material; or

                           (b)

                           which contains special risk material (classified as ‘Category 1’ material under the EC By-products Regulation (Regulation (EC) No 1774/2002)

                     illegal under Article 26(1)(a) and (b) of the Waste Shipment Regulation, in the absence of notification to and the consent of the authorities concerned, waste on the ground that it involves within the meaning of the Waste Shipment Regulation?