title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 14 May 1998 in Case T-338/94: Finnish Board Mills Association - Finnboard v. Commission of the European Communities (Competition - Article 85(1) of the EC Treaty - Information exchange - Order - Fine - Determination of the amount - Statement of reasons - Cooperation during the administrative procedure)

text:
C 209/34              EN                Official Journal of the European Communities                                     4.7.98
Bar, with an address for service in Luxembourg at                    JUDGMENT OF THE COURT OF FIRST INSTANCE
the Chambers of Alain Lorang, 51 Rue Albert 1er v.                                        of 14 May 1998
Commission of the European Communities (Agents:
Richard Lyal and Alberto Dal Ferro) Ð application for              in Case T-337/94: Enso-Gutzeit Oy v. Commission of the
annulment of Commission Decision 94/601/EC of 13 July                                European Communities (1)
1994 relating to a proceeding under Article 85 of the EC
                                                                    (Article 85(1) of the EC Treaty Ð Infringement Ð Proof)
Treaty (IV/C/33.833 Ð Cartonboard, OJ 1994, L 243,
p. 1) Ð the Court (Third Chamber, Extended                                                 (98/C 209/72)
Composition), composed of: B. Vesterdorf, President of
the Chamber, C. P. BrieÈt, P. Lindh, A. Potocki and J. D.
                                                                                (Language of the case: English)
Cooke, Judges; J. Palacio GonzaÂlez, Administrator, for the
Registrar, has given a judgment on 14 May 1998, in
which it:                                                          In Case T-337/94: Enso-Gutzeit Oy, established at
                                                                   Helsinki, represented by Ivo Van Bael and Jean-FrancËois
                                                                   Bellis, of the Brussels Bar, and CiaraÂn Keaney, Solicitor of
1. Annuls, as regards the applicant, the first to fourth           the Law Society of Ireland, with an address for service in
    paragraphs of Article 2 of Commission Decision 94/             Luxembourg at the Chambers of Freddy Brausch, 11 Rue
    601/EC of 13 July 1994 relating to a proceeding under          Goethe v. Commission of the European Communities
    Article 85 of the EC Treaty (IV/C/33.833 Ð                     (Agents: Hans Gerald Crossland and Richard Lyal) Ð
    Cartonboard) save and except the following passages:           application for annulment of Commission Decision 94/
                                                                   601/EC of 13 July 1994 relating to a proceeding under
                                                                   Article 85 of the EC Treaty (IV/C/33.833 Ð Cartonboard,
    The undertakings named in Article 1 shall forthwith           OJ L 243 of 19.9.1994 p. 1), the Court (Third Chamber,
    bring the said infringement to an end, if they have not        Extended Composition), composed of B. Vesterdorf,
    already done so. They shall henceforth refrain in              President of the Chamber, C. P. BrieÈt, P. Lindh, A. Potocki
    relation to their cartonboard activities from any              and J. D. Cooke, Judges; J. Palacio GonzaÂlez,
    agreement or concerted practice which may have the             Administrator, for the Registrar, has given a judgment on
    same or a similar object or effect, including any              14 May 1998 in which it:
    exchange of commercial information:
                                                                   1. Annuls, as regards the applicant, Commission
    (a) by which the participants are directly or                      Decision 94/601/EC of 13 July 1994 relating to a
          indirectly informed of the production, sales, order          proceeding under Article 85 of the EC Treaty (IV/C/
          backlog, machine utilisation rates, selling prices,          33.833 Ð Cartonboard).
          costs or marketing plans of other individual
          producers.                                               2. Orders the Commission to pay the costs.
                                                                   (1) OJ C 392, 31.12.1994.
    Any scheme for the exchange of general information
    to which they subscribe, such as the Fides system or its
    successor, shall be so conducted as to exclude any
    information from wich the behaviour of individual
    producers can be identified.'.
                                                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
2. Sets the amount of the fine imposed on the applicant                                   of 14 May 1998
    by Article 3 of Decision 94/601/EC at ECU
    14 000 000.                                                    in Case T-338/94: Finnish Board Mills Association
                                                                   Ð Finnboard v. Commission of the European
                                                                                Communities (1)
3. Dismisses the application as regards the remaining              (Competition Ð Article 85(1) of the EC Treaty Ð
    claims.                                                        Information exchange Ð Order Ð Fine Ð Determination
                                                                   of the amount Ð Statement of reasons Ð Cooperation
                                                                                during the administrative procedure)
4. Orders the applicant to bear its costs and to pay one-
    half of the Commission's costs;                                                        (98/C 209/73)
                                                                                (Language of the case: German)
5. Orders the Commission to bear one-half of its costs.
                                                                   In Case T-338/94: Finnish Board Mills Association Ð
(1) OJ C 380, 31.12.1994.                                          Finnboard, established at Helsinki, represented initially by
                                                                   Hans Hellmann and Hans-Joachim Voges, Rechtsanwälte,
                                                                   Cologne, then solely by Hans Hellmann, with an address
                                                                   for service in Luxembourg at the Chambers of Loesch and
 ---pagebreak--- 4.7.98                  EN                 Official Journal of the European Communities                                    C 209/35
Wolter, 11 Rue Goethe, v. Commission of the European                  Mills Ltd, established at Valkeakoski, Finland, Tampella
Communities (Agents: Bernd Langeheine, Richard Lyal                   Corporation, established at Tampere, Finland, Oy Kyro
and Dirk Schroeder) Ð application for annulment of                    AB, established at Kyröskoski, Finland, represented
Commission Decision 94/601/EC of 13 July 1994 relating                initially by Hans Hellmann and Hans-Joachim Voges,
to a proceeding under Article 85 of the EC Treaty (IV/C/              Rechtsanwälte, Cologne, then by Hans Hellmann and
33.833 Ð Cartonboard, OJ L 243 of 19.9.1994, p. 1) Ð                  Hans-Joachim Hellmann, Rechtsanwälte, Karlsruhe, with
the Court (Third Chamber, Extended Composition),                      an address for service in Luxembourg at the Chambers of
composed of B. Vesterdorf, President of the Chamber, C. P.            Loesch and Wolter, 11 Rue Goethe v. Commission of the
BrieÈt, P. Lindh, A. Potocki, and J. D. Cooke, Judges; J.             European       Communities      (Agents:   initially    Bernd
Palacio GonzaÂlez, Administrator, for the Registrar, has              Langeheine and Richard Lyal, then by Richard Lyal and
given a judgment on 14 May 1998 in which it:                          Dirk Schroeder) Ð application for annulment of
                                                                      Commission Decision 94/601/EC of 13 July 1994 relating
1. Annuls, as regards the applicant, the first to fourth              to a proceeding under Article 85 of the EC Treaty (IV/C/
     paragraphs of Article 2 of Commission Decision 94/               33.833 Ð Cartonboard, OJ L 243 of 19.9.1994, p. 1) Ð
     601/EC of 13 July 1994 relating to a proceeding under            the Court (Third Chamber, Extended Composition),
     Article 85 of the EC Treaty (IV/C/33.833 Ð                       composed of: B. Vesterdorf, President of the Chamber,
     Cartonboard) save and except the following passages:             C. P. BrieÈt, P. Lindh, A. Potocki and J. D. Cooke, Judges;
                                                                      J. Palacio GonzaÂlez, Administrator, for the Registrar, has
                                                                      given a judgment on 14 May 1998, in which it:
     The undertakings named in Article 1 shall forthwith
     bring the said infringement to an end, if they have not
     already done so. They shall henceforth refrain in                1. Dismisses the applications as unfounded in so far as
     relation to their cartonboard activities from any                     they seek annulment of Commission Decision 94/601/
     agreement or concerted practice which may have the                    EC of 13 July 1994 relating to a proceeding under
     same or a similar object or effect, including any                     Article 85 of the EC Treaty (IV/C/33.833 Ð
     exchange of commercial information:                                   Cartonboard).
     (a) by which the participants are directly or
           indirectly informed of the production, sales, order        2. Dismisses the applications as inadmissible in so far as
           backlog, machine utilisation rates, selling prices,             they seek reduction of the fine imposed by Article 3 of
           costs or marketing plans of other individual                    that decision.
           producers.
     Any scheme for the exchange of general information               3. Orders the applicants to pay the costs.
     to which they subscribe, such as the Fides sytem or its
     successor, shall be so conducted as to exclude any               (1) OJ C 386, 31.12.1994.
     information from which the behaviour of individual
     producers can be identified.'.
2. Dismisses the application as regards the remaining
     claims.
3. Orders the applicant to pay the costs.                               JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 14 May 1998
(1) OJ C 380, 31.12.1994.
                                                                      in Case T-347/94: Mayr-Melnhof Kartongesellschaft mbH
                                                                             v. Commission of the European Communities (1)
                                                                      (Competition Ð Article 85(1) of the EC Treaty Ð
                                                                      Concept of agreement Ð Information exchange Ð Order
                                                                      Ð Fine Ð Determination of the amount Ð Statement of
  JUDGMENT OF THE COURT OF FIRST INSTANCE                             reasons Ð Extenuating circumstances Ð Rights of the
                         of 14 May 1998                               defence Ð Cooperation during the administrative
                                                                                procedure Ð Principle of equal treatment)
in Joined Cases T-339/94, T-340/94, T-341/94 and
T-342/94: Metsä-Serla Oy and Others v. Commission of                                          (98/C 209/75)
                  the European Communities (1)
(Article 15(2) of Regulation No 17 Ð Joint and several                                (Language of the case: German)
                liability for payment of the fine)
                           (98/C 209/74)                              In Case T-347/94: Mayr-Melnhof Kartongesellschaft mbH,
                                                                      established at Vienna, represented initially by Otfried
                (Language of the case: German)                        Lieberknecht,       Burkhard     Richter,  Klaus       Benner,
                                                                      Rechtsanwälte, Düsseldorf, and by Michel Waelbroeck
In Joined Cases T-339/94, T-340/94, T-341/94 and T-342/               and Denis Waelbroeck, of the Brussels Bar, with an
94: Metsä-Serla Oy, established at Helsinki, United Paper             address for service in Luxembourg at the Chambers of


title: Case T-87/08: Action brought on 18 February 2008 — Republic of Cyprus v Commission

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/27

         Action brought on 18 February 2008 — Republic of Cyprus v Commission
   (Case T-87/08)
   (2008/C 142/48)
   Language of the case: Greek
   Parties

      Applicant: Republic of Cyprus (represented by: P. Kliridis)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the procurement notice under reference EuropeAid/126225/C/SER/CY for the conclusion of a contract entitled ‘Technical assistance for engineering works for waste management infrastructure and rehabilitation of dumping sites in the northern part of Cyprus’, which was published, only in English, on the webpage http://ec.europa.eu/europaid/tender/data/ on or around 8 December 2007, and annul points 5 and 28.2 of the notice;

               —

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

         Pleas in law and main arguments
   The applicant submits that the notice is unlawful for the following reasons:

               —

               first, because, in issuing the notice, the Commission exceeded and/or infringed its legal basis, to be specific Council Regulation (EC) No 389/2006 of 27 February 2006 establishing an instrument of financial support for encouraging the economic development of the Turkish Cypriot community and amending Council Regulation (EC) No 2667/2000 on the European Agency for Reconstruction (1);

               —

               second, because the notice is contrary to and/or incompatible with Article 299 EC, as amended by Article 19 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (2) (‘the 2003 Act of Accession’) and Protocol No 10, on Cyprus, to the 2003 Act of Accession (3);

               —

               third, because the notice is contrary to or incompatible with both obligations flowing from rules of mandatory international law and United Nations Security Council Resolutions 541(1983) and 550(1984); and

               —

               fourth, because the notice was not published in the Official Journal.

      (1)  OJ 2006 L 65, p. 5.

      (2)  OJ 2003 L 236, p. 33.

      (3)  OJ 2003 L 236, p. 955.


title: Case C-578/16 PPU: Judgment of the Court (Fifth Chamber) of 16 February 2017 (request for a preliminary ruling from the Vrhovno sodišče Republika Slovenija — Slovenia) — C.K., H.F., A.S. v Republika Slovenija (Reference for a preliminary ruling — Area of freedom, security and justice — Borders, asylum and immigration — Dublin system — Regulation (EU) No 604/2013 — Article 4 of the Charter of Fundamental Rights of the European Union — Inhuman or degrading treatment — Transfer of a seriously ill asylum seeker to the State responsible for examining his application — No substantial grounds for believing that there are proven systemic flaws in that Member State — Obligations imposed on the Member State having to carry out the transfer)

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/11

         Judgment of the Court (Fifth Chamber) of 16 February 2017 (request for a preliminary ruling from the Vrhovno sodišče Republika Slovenija — Slovenia) — C.K., H.F., A.S. v Republika Slovenija
   (Case C-578/16 PPU) (1)

   ((Reference for a preliminary ruling - Area of freedom, security and justice - Borders, asylum and immigration - Dublin system - Regulation (EU) No 604/2013 - Article 4 of the Charter of Fundamental Rights of the European Union - Inhuman or degrading treatment - Transfer of a seriously ill asylum seeker to the State responsible for examining his application - No substantial grounds for believing that there are proven systemic flaws in that Member State - Obligations imposed on the Member State having to carry out the transfer))
   (2017/C 112/16)
   Language of the case: Slovenian

      Referring court

   Vrhovno sodišče Republika Slovenija

      Parties to the main proceedings

      Applicant: C.K., H.F., A.S.

      Defendant: Republika Slovenija

      Operative part of the judgment

               1.

               Article 17(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted as meaning that the question of the application, by a Member State, of the ‘discretionary clause’ laid down in that provision is not governed solely by national law and by the interpretation given to it by the constitutional court of that Member State, but is a question concerning the interpretation of EU law, within the meaning of Article 267 TFEU.

               2.

               Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that:

                           —

                           even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of Regulation No 604/2013 can take place only in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article;

                           —

                           in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that article;

                           —

                           it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person’s state of health. If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member States concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer; and

                           —

                           where necessary, if it is noted that the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of the person concerned, the requesting Member State may choose to conduct its own examination of that person’s application by making use of the ‘discretionary clause’ laid down in Article 17(1) of Regulation No 604/2013.

         Article 17(1) of Regulation No 604/2013, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, cannot be interpreted as requiring, in circumstances such as those at issue in the main proceedings, that Member State to apply that clause.

      (1)  OJ C 22, 23.01.2017.


title: Case T-255/08: Judgment of the General Court of 22 June 2010 — Montero Padilla v OHIM — Padilla Requena (JOSE PADILLA) (Community trade mark — Opposition proceedings — Application for the Community word mark JOSE PADILLA — Earlier marks and sign JOSE PADILLA — Relative grounds for refusal — No well-known trade mark within the meaning of Article 6 bis of the Paris Convention or trade mark with a reputation — Article 8(2)(c) and Article 8(5) of Regulation (EC) No 40/94 (now Article 8(2)(c) and Article 8(5) of Regulation (EC) No 207/2009) — No earlier sign used in the course of trade — Article 8(4) of Regulation No 40/94 (now Article 8(4) of Regulation No 207/2009))

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/34

         Judgment of the General Court of 22 June 2010 — Montero Padilla v OHIM — Padilla Requena (JOSE PADILLA)
   (Case T-255/08) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark JOSE PADILLA - Earlier marks and sign JOSE PADILLA - Relative grounds for refusal - No well-known trade mark within the meaning of Article 6 bis of the Paris Convention or trade mark with a reputation - Article 8(2)(c) and Article 8(5) of Regulation (EC) No 40/94 (now Article 8(2)(c) and Article 8(5) of Regulation (EC) No 207/2009) - No earlier sign used in the course of trade - Article 8(4) of Regulation No 40/94 (now Article 8(4) of Regulation No 207/2009))
   2010/C 209/50
   Language of the case: Spanish

      Parties

      Applicant: Eugenia Montero Padilla (Madrid, Spain) (represented by: initially G. Aguillaume Gandasegui and P. Linde Puelles, and subsequently A. Salerno and M. Di Stefano, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J.F. Crespo Carrillo, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: José María Padilla Requena (Santa Eulalia, Spain) (represented by: J.F. Gallego Jiménez and J.R. Gil Cantons, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 1 March 2008 (Case R 516/2007-2), concerning opposition proceedings between Eugenia Montero Padilla and José María Padilla Requena

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Eugenia Montero Padilla to bear her own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by José María Padilla Requena.

      (1)  OJ C 209, 15.8.2008.


title: Case F-132/15: Action brought on 12 October 2015 — ZZ v Commission

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/46

         Action brought on 12 October 2015 — ZZ v Commission
   (Case F-132/15)
   (2015/C 406/49)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: J.-N. Louis and N. de Montigny, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the Commission’s decision to apply the medical reservation clause in Article 32 of the CEOS, retroactively, with effect from the date of entry into service of the applicant with the Commission and to suspend the invalidity and death insurance and, in addition, annulment of the decision to bar the applicant from being recruited by the Commission for a period of six years to run from the date on which her last contract ended.

      Form of order sought

               —

               Annul the decisions of the AECE concerning, firstly, the retroactive application to the applicant of the medical reservation in Article 32 of the CEOS and the suspension of the invalidity and death insurance and, secondly, the bar on the Commission’s recruiting the applicant for a period of six years;

               —

               Order the Commission to pay the costs.


title: Case C-458/03: Reference for a preliminary ruling by the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen by order of that Court of 27 September 2003 in the case of Parking Brixen G.m.b.H against Municipality of Brixen/Bressanone and Stadtwerke Brixen A.G.

text:
10.1.2004              EN                       Official Journal of the European Union                                            C 7/23
—     order the Italian Republic to pay the costs.                      Reference for a preliminary ruling by the Verwaltungsge-
                                                                        richt, Autonome Sektion für die Provinz Bozen by order
                                                                        of that Court of 27 September 2003 in the case of
                                                                        Parking Brixen G.m.b.H against Municipality of Brixen/
                                                                                Bressanone and Stadtwerke Brixen A.G.
Pleas in law and main arguments
                                                                                (Case C-458/03)
The period for transposition of the directive expired on 30 July
2002.
                                                                                (2004/C 7/38)
(1) OJ 1998 L 213, p. 13.
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Verwaltungsgericht,
                                                                        Autonome Sektion für die Provinz Bozen (Administrative
                                                                        Court, Autonomous Division for the Province of Bolzano) of
                                                                        27 September 2003, received at the Court Registry on
                                                                        30 October 2003, for a preliminary ruling in the case
                                                                        of Parking Brixen G.m.b.H against Municipality of Brixen/
Reference for a preliminary ruling by the Tribunale di                  Bressanone and Stadtwerke Brixen A.G. on the following
Bergamo by order of that Court of 3 August 2003 in the                  questions:
case brought by Azienda agricola Albergati Giovanni
Angelo against Agenzia Erogazioni in agricoltura ‘AGEA’
                                                                        1.   Does the award of the management of the public pay car
               and Coop. Latte 2005 S.C.A.R.L.
                                                                             parks in question concern a public service contract within
                                                                             the meaning of Directive 92/50/EEC (1) or a public service
                                                                             concession contract to which the competition rules of
                         (Case C-457/03)                                     the EC, in particular the obligation to ensure equal
                                                                             treatment and transparency, must be applied?
                          (2004/C 7/37)
                                                                        2.   If that award does concern a service concession contract
                                                                             relating to the management of a local public service, is
                                                                             the award of the management of public pay car parks
                                                                             which, under Article 44(6)(b) of Regional Law No 1 of
Reference has been made to the Court of Justice of the                       4 January 1993, as amended by Article 10 of Regional
European Communities by order of the Tribunale di Bergamo                    Law No 10 of 23 January 1998 and under Article 88(6)(a)
(Bergamo District Court) of 3 August 2003, received at the                   and (b) of the consolidated text of the provisions concern-
Court Registry on 29 October 2003, for a preliminary ruling                  ing local government, can be effected without a public
in the case brought by Azienda agricola Albergati Giovanni                   invitation to tender, compatible with Community law, in
Angelo against Agenzia Erogazioni in agricoltura ‘AGEA’ and                  particular with the principles of freedom to provide
Coop. Latte 2005 S.C.A.R.L. on the following question:                       services and freedom of competition, the prohibition of
                                                                             discrimination, and the resultant obligations to ensure
                                                                             equal treatment, transparency and proportionality, where
                                                                             a public limited company is involved which was set up
Must Article 1 of Regulation (EEC) No 856/84 (1) of 31 March                 pursuant to Article 115 of Legislative Decree No 267/
1984 and Articles 1 to 4 of Regulation No 3950/92 (2) of                     2000 by the conversion of a special undertaking of a
28 December 1992 be interpreted as meaning that the                          municipality, whose share capital at the time of the award
additional levy on milk and milk products is in the nature of                was held 100 % by the municipality itself but whose
an administrative penalty with the result that producers are                 administrative board enjoys all extensive powers of
liable to pay it only where quantities allocated have been                   routine administration up to a value of
exceeded by them intentionally or as a result of negligence?                 EURO 5 000 000,00 per transaction?
(1) OJ L 90 of 01.04.1984, p. 10.                                       (1) OJ L 209 [1992], p. 1.
(2) OJ L 405 of 31.12.1992, p. 1.


title: Judgment of the Court (sitting as a full Court) of 19 October 2004 in Case C-200/02 (reference for a preliminary ruling from the Immigration Appellate Authority): Kunqian Catherine Zhu, Man Lavette Chen v Secretary of State for the Home Department (Right of residence — Child with the nationality of one Member State but residing in another Member State — Parents nationals of a non-member country — Mother's right to reside in the other Member State)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/7

      JUDGMENT OF THE COURT

   (sitting as a full Court)
   of 19 October 2004
   in Case C-200/02 (reference for a preliminary ruling from the Immigration Appellate Authority): Kunqian Catherine Zhu, Man Lavette Chen v Secretary of State for the Home Department (1)

   (Right of residence - Child with the nationality of one Member State but residing in another Member State - Parents nationals of a non-member country - Mother's right to reside in the other Member State)
   (2004/C 300/13)
   Language of the case: English
   In Case C-200/02: reference for a preliminary ruling under Article 234 EC from the Immigration Appellate Authority (United Kingdom), made by decision of 27 May 2002, received at the Court on 30 May 2002, in the proceedings between Kunqian Catherine Zhu, Man Lavette Chen and Secretary of State for the Home Department — the Court (sitting as a full Court), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, R. Silva de Lapuerta and K. Lenaerts, Presidents of Chambers, C. Gulmann, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues (Rapporteur), Judges; A. Tizzano, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 19 October 2004, in which it has ruled:
   In circumstances like those of the main proceedings, Article 18 EC and Council Directive 90/364/EEC of 28 June 1990 on the right of residence confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor's primary carer to reside with the child in the host Member State.

      (1)  OJ C 180 du 27.7.2002.


title: Case C-39/10: Judgment of the Court (Fourth Chamber) of 10 May 2012 — European Commission v Republic of Estonia (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Income tax — Allowance — Retirement pensions — Effect on small pensions — Discrimination between resident and non-resident taxpayers)

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/2

         Judgment of the Court (Fourth Chamber) of 10 May 2012 — European Commission v Republic of Estonia
   (Case C-39/10) (1)

   (Failure of a Member State to fulfil obligations - Freedom of movement for workers - Income tax - Allowance - Retirement pensions - Effect on small pensions - Discrimination between resident and non-resident taxpayers)
   2012/C 194/02
   Language of the case: Estonian

      Parties

      Applicant: European Commission (represented by: W. Mölls, K. Saaremäel-Stoilov and R. Lyal, acting as Agents)

      Defendant: Republic of Estonia (represented by: M. Linntam, acting as Agent)

      Interveners in support of the defendant: Kingdom of Spain (represented by M. Muñoz Pérez and A. Rubio Gonzáles, acting as Agents), Portuguese Republic (represented by L. Inez Fernandes, acting as Agent), Kingdom of Sweden (represented by A. Falk, acting as Agent), United Kingdom of Great Britain and Northern Ireland (represented by S. Ossowski, acting as Agent), Federal Republic of Germany (represented by J. Möller, C. Blaschke and B. Klein, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 45 TFEU and Article 28 of the EEA Agreement — Income tax on retirement pensions — National legislation not providing for the granting of exemption from income tax to non-residents whose total income is so small that they would be exempted from income tax if they were resident taxpayers

      Operative part of the judgment:

      The Court:

               1.

               Declares that, by excluding non-resident pensioners from benefiting from the allowances laid down by the Law on income tax (Tulumaksuseadus) of 15 December 1999, as amended by the Law of 26 November 2009, where, because of the modest amount of their pensions, they are not taxable in the Member State of residence under the tax legislation of that State, the Republic of Estonia has failed to fulfil its obligations under Article 45 TFEU and Article 28 of the Agreement on the European Economic Area of 2 May 1992;

               2.

               Orders the Republic of Estonia to pay the costs;

               3.

               Orders the Kingdom of Spain, the Portuguese Republic, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the Federal Republic of Germany to bear their own costs.

      (1)  OJ C 63, 13.3.2010.


title: JUDGMENT OF THE COURT (First Chamber) of 18 December 1997 in Case C-382/95 (reference for a preliminary ruling from the Bundesfinanzhof): Techex Computer + Grafik Vertriebs GmbH v. Hauptzollamt München (Common Customs Tariff - Tariff headings - Tariff classification of a 'Vista' board electronic component intended for image processing and capable of being used as a graphics card in a computer - Classification in the Combined Nomenclature)

text:
C 55/10               EN                  Official Journal of the European Communities                                      20.2.98
(OJ L 228, 11.8.1992, p. 1) or, in the alternative, by               88 of 21 September 1988 (OJ L 298, 31.10.1988, p. 1),
failing to inform the Commission thereof, the Kingdom of             Commission Regulation (EEC) No 2886/89 of 2 August
Spain has failed to fulfil its obligations under the EC              1989 (OJ L 282, 21.10.1989, p. 1) and Commission
Treaty Ð the Court (Fifth Chamber), composed of: C.                  Regulation (EEC) No 2472/90 of 31 July 1990 (OJ L 247,
Gulmann, President of the Chamber, M. Wathelet, J. C.                10.9.1990, p. 1) Ð the Court (First Chamber), composed
Moitinho de Almeida (Rapporteur), P. Jann and L. Sevón,              of: M. Wathelet, President of the Chamber, D. A. O.
Judges; A. La Pergola, Advocate-General; L. Hewlett,                 Edward (Rapporteur) and L. Sevón, Judges; C. O. Lenz,
Administrator, for the Registrar, has given a judgment on            Advocate-General; H. A. Rühl, Principal Administrator,
18 December 1997, in which it:                                       for the Registrar, has given a judgment on 18 December
                                                                     1997, in which it has ruled:
1. declares that, by failing to adopt within the prescribed
     period the laws, regulations and administrative                 Image processing, as it can be carried out with an
     provisions necessary to comply with Council Directive           automatic data-processing machine unit which includes,
     92/49/EEC of 18 June 1992 on the coordination of                inter alia, an analogue/digital converter, a high-quality
     laws, regulations and administrative provisions                 graphics processor and a digital/analogue converter, is not
     relating to direct insurance other than life assurance          to be regarded as the performance of a specific function'
     and amending Directives 73/239/EEC and 88/357/                  for the purposes of the last paragraph of Note 5(B) to
     EEC (third non-life insurance Directive), the Kingdom           Chapter 84 of the Combined Nomenclature of the
     of Spain has failed to fulfil its obligations under that        Common Customs Tariff in Annex I to Council
     Directive;                                                      Regulation (EEC) No 2658/87 of 23 July 1987 on the
                                                                     tariff and statistical nomenclature and on the Common
                                                                     Customs Tariff, as amended by the Annexes to
2. orders the Kingdom of Spain to pay the costs.
                                                                     Commission Regulations (EEC) No 3174/88 of
                                                                     21 September 1988, (EEC) No 2886/89 of 2 August 1989
(1) OJ C 16, 20.1.1996.                                              and (EEC) No 2472/90 of 31 July 1990.
                                                                     (1) OJ C 31, 3.2.1996.
               JUDGMENT OF THE COURT
                        (First Chamber)
                    of 18 December 1997                                             JUDGMENT OF THE COURT
in Case C-382/95 (reference for a preliminary ruling from                                   (Fifth Chamber)
the Bundesfinanzhof): Techex Computer + Grafik
                                                                                of 18 December 1997
        Vertriebs GmbH v. Hauptzollamt München (1)
                                                                     in Case C-384/95 (reference for a preliminary ruling from
(Common Customs Tariff Ð Tariff headings Ð Tariff
                                                                     the Finanzgericht des Landes Brandenburg): Landboden-
classification of a Vista' board electronic component
                                                                        Agrardienste GmbH & Co. KG v. Finanzamt Calau (1)
intended for image processing and capable of being used
as a graphics card in a computer Ð Classification in the             (VAT Ð Supply of services Ð National compensation for
                  Combined Nomenclature)                                       the extensification of potato production)
                          (98/C 55/17)                                                        (98/C 55/18)
               (Language of the case: German)                                       (Language of the case: German)
  (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-382/95: reference to the Court under Article 177
of the EC Treaty from the Bundesfinanzhof (Federal                   In Case C-384/95: reference to the Court under Article 177
Finance Court), for a preliminary ruling in the proceedings          of the EC Treaty from the Finanzgericht des Landes
pending before that court between Techex Computer +                  Brandenburg (Finance Court of the Land of Brandenburg),
Grafik Vertriebs GmbH and Hauptzollamt München Ð                     Germany, for a preliminary ruling in the proceedings
on the interpretation of the Combined Nomenclature of                pending before that court between Landboden-
the Common Customs Tariff in Annex I to Council                      Agrardienste GmbH & Co. KG and Finanzamt Calau Ð
Regulation (EEC) No 2658/87 of 23 July 1987 on the                   on the interpretation of Articles 6(1), 11(A)(1)(a) and
tariff and statistical nomenclature and on the Common                12(3)(a) of and Annex H to the Sixth Council Directive
Customs Tariff (OJ L 256, 7.9.1987, p. 1), as amended by             77/388/EEC of 17 May 1977 on the harmonisation of the
the Annexes to Commission Regulation (EEC) No 3174/                  laws of the Member States relating to turnover taxes Ð


title: Case T-331/11: Action brought on 16 June 2011 — Besselink v Council

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/35

         Action brought on 16 June 2011 — Besselink v Council
   (Case T-331/11)
   2011/C 238/60
   Language of the case: English

      Parties

      Applicant: Leonard Besselink (Utrecht, Netherlands) (represented by: O. Brouwer and J. Blockx, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul the decision of the Council of 1 April 2011 refusing to grant full access to document 9689/10 pursuant to Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), as communicated to the applicant on 7 April 2011 in a letter bearing the reference ‘04/c/01/11’; and

               —

               Order the Council to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the contested decision is based on a wrong interpretation and application of Article 4(1)(a), third indent of Regulation (EC) No 1049/2001, which relates to the protection of the public interest with regard to international relations, as:

                           —

                           The Council was wrong in not taking into account the constitutional nature of the document which the applicant requests to have access to;

                           —

                           The applicant considers that access to document 9689/10 is also warranted on the basis of the freedom of expression contained in Article 11 of the Charter of Fundamental Rights of the European Union;

                           —

                           The Council omitted to take into account the specific circumstances and subject matter of the present case; and

                           —

                           The Council wrongly referred to hypothetical negative consequences of disclosure for future negotiations to be conducted by the Union.

               2.

               Second plea in law, alleging that Article 4(6) of Regulation (EC) No 1049/2001 has been wrongly applied, and the principle of proportionality breached, insofar as the Council has failed to consider whether it was appropriate to grant partial access and to confine refusal to the parts of document 9689/10 that were appropriate and strictly necessary.

               3.

               Third plea in law, alleging that the Council did not fulfill its obligation to state sufficient and adequate reasons for the contested decision.


title: Action brought on 20 October 1995 by Le Nouveau Garage SA and Others against the Commission of the European Communities (Case T-199/95)

text:
30 . 12 . 95           EN                   Official Journal of the European Communities                                No C 351 / 15
Action brought on 18 October 1995 by Comafrica SpA and                 Action brought on 20 October 1995 by Le Nouveau Garage
Dole Fresh Fruit Europe Ltd & Co. against the Commission               SA and Others against the Commission of the European
                 of the European Communities                                                     Communities
                        ( Case T-198/95 )                                                     ( Case T-l 99/95 )
                          ( 95/C 351 /29 )                                                      ( 95/C 351 /30 )
                (Language of the case: English)                                        (Language of the case: French)
An action against the Commission of the European
Communities was brought before the Court of First                      An action against the Commission of the European
Instance of the European Communities on 1 8 October 1995               Communities was brought before the Court of First
by Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co .,               Instance of the European Communities on 20 October 1995
                                                                       by Le Nouveau Garage SA, established at Pierre Benite
represented by Mr. Bernard O'Connor, with an address for
service in Luxembourg at the offices of Arsene Kronshagen,             ( France ), Max Labat Automobiles 17, established at Royan
rue Marie Adelaide 22 .                                                ( France ) and Riviera Auto Service, established at Nice
                                                                       ( France ), represented by Christian Bourgeon, of the
                                                                       Paris Bar, with an address for service in Luxembourg
The applicant claims that the Court should :                           at the Chambers of Decker & Braun , 16 Avenue
                                                                       Marie-Therese .
— declare the application admissible,
— declare void, pursuant to Articles 173 , 174 and 184 of              The applicants claim that the Court should :
    the EC Treaty, Regulation ( EC ) No 1869/95 in so far as
    it affects the applicants, or alternatively, to declare the        — declare pursuant to Article 175 of the Treaty that the
    said Regulation void erga omnes,                                        Commission has failed to take a decision in relation to
                                                                            the complainant companies, despite the fact that they
— order the Commission, pursuant to Article 178 and the                     submitted in advance, and in good time, a request that it
    second paragraph of Article 215 of the EC Treaty, to                    should do so,
    make good any damage, and interest thereon, caused to
    the applicants by the wrongful adoption of Regulation              — order the Commission to pay the costs .
    ( EC ) No 1869/95 ,
— make any additional orders which the Court considers                 Pleas in law and main arguments adduced in support:
    necessary for the purposes of determining the damage
    caused to the applicants,                                          The applicants, three former Volkswagen & Audi
                                                                       concessionaires, currently in the process of recovery or in
— declare that the Commission pays the costs incurred by               compulsory liquidation, allege that the Commission failed
    the applicants in making this application .                        to act on complaints which they submitted to it concerning
                                                                       the application by VAG France, throughout the whole of
                                                                       France, of an exclusive and selective system for the
Pleas in law and main arguments adduced in support:                    distribution of new vehicles of the aforementioned makes
                                                                       and of spare parts for those vehicles , according to which the
The applicants, both of whom import bananas into the                   delivery of new vehicles and spare parts is reserved to
Community, attack the decisions of the Commission to                   selected retailers .
reduce the quantity of bananas allocated to them for the
year of 1995 through the application of a definitive
reduction coefficient set out in Commission Regulation                 They consider in that regard that the dealership agreements
( EC ) No 1869/95 of 25 July 1995 . The grounds on which               at issue, and the terms on which those agreements are
the applicants rely are similar to those raised in Case                applied, are not in accordance with the criteria governing
T-72/95 ('), in which they challenged the provisional                  eligibility for the block exemption arising from Regulation
reduction coefficient for 1995 , fixed by Commission                   ( EEC ) No 123/85 , and are not eligible . for individual
Regulation ( EC ) No 2947/94 .                                         exemption either.
With regard to the claim for damages, the applicants                   Following preliminary inquiries, at the end of which the
maintain that the Commission has breached a superior rule              defendant institution sent to VAG France a statement of
of law for the protection of the individual, that the                  objections, an inter partes hearing took place on
infringement is sufficiently serious and that such breach has          8 November 1994 . Although the investigation of the
caused damage to them .                                                complaints appears to have been concluded, the
                                                                       Commission has still not yet given its decision in the
                                                                       matter .
(') OJ No C 268 , 14 . 10 . 1995 , p . 23 .


title: Case F-53/13: Judgment of the Civil Service Tribunal (Third Chamber) of 26 February 2014 — Diamantopoulos v EEAS (Civil service — Officials — Promotion — Decision not to promote the applicant to grade AD 12 — Implied decision rejecting the complaint — Express decision rejecting the complaint subsequent to the action — Statement of reasons)

text:
               7.4.2014

               EN

               Official Journal of the European Union

               C 102/44

         Judgment of the Civil Service Tribunal (Third Chamber) of 26 February 2014 — Diamantopoulos v EEAS
   (Case F-53/13) (1)

   ((Civil service - Officials - Promotion - Decision not to promote the applicant to grade AD 12 - Implied decision rejecting the complaint - Express decision rejecting the complaint subsequent to the action - Statement of reasons))
   2014/C 102/64
   Language of the case: French

      Parties

      Applicant: Alkis Diamantopoulos (Brussels, Belgium) (represented by: S. Orlandi, J.-N. Louis and D. Abreu Caldas, lawyers)

      Defendant: European External Action Service (EEAS) (represented by: S. Marquardt and E. Chaboureau, acting as Agents)

      Re:

   Application for annulment of the decision not to promote the applicant to grade AD 12 in the 2012 promotion year.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the European External Action Service not to promote Mr Diamantopoulos to grade AD 12 in the 2012 promotion exercise;

               2.

               Declares that the European External Action Service is to bear its own costs and orders it to pay the costs incurred by Mr Diamantopoulos.

      (1)  OJ C 215, 27.7.2013, p. 20.


title: Case C-137/10: Reference for a preliminary ruling from the Conseil d’État (Belgium) lodged on 15 March 2010 — The European Communities v The Région de Bruxelles-Capitale

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/15

         Reference for a preliminary ruling from the Conseil d’État (Belgium) lodged on 15 March 2010 — The European Communities v The Région de Bruxelles-Capitale
   (Case C-137/10)
   2010/C 148/24
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: The European Communities

      Defendant: The Région de Bruxelles-Capitale

      Questions referred

               1.

               Must Article 282 of the Treaty establishing the European Community, in particular the phrase ‘[t]o this end, the Community shall be represented by the Commission’, contained in the second sentence of that article, be interpreted as meaning that an institution is properly authorised to represent the Community simply by virtue of the existence of an authority by which the Commission has delegated to that institution its powers of representation in legal proceedings, irrespective of whether or not that authority appointed by name a natural person empowered to represent the delegate institution?

               2.

               If not, can a national court such as the Conseil d’Etat verify the admissibility of an appeal lodged by a European institution which has been duly authorised to bring legal proceedings by the Commission, pursuant to the second sentence of Article 282 of the Treaty establishing the European Community, by examining whether that institution is represented by the appropriate natural person empowered to bring proceedings before the national court?

               3.

               In the alternative, and in the event of an affirmative reply to the foregoing question, must the first sentence of the first subparagraph of Article 207(2) of the Treaty establishing the European Community, more specifically the phrase ‘assisted by a Deputy Secretary-General responsible for the running of the General Secretariat’, be interpreted as meaning that the Deputy Secretary-General of the Council may properly represent the Council for the purposes of bringing proceedings before the national courts?


title: Case C-201/05: Reference for a preliminary ruling from the High Court of Justice (England and Wales), Chancery Division, by order of that court of 18 March 2005 in The Test Claimants in the CFC and Dividend Group Litigation v Commissioners of Inland Revenue

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/27

         Reference for a preliminary ruling from the High Court of Justice (England and Wales), Chancery Division, by order of that court of 18 March 2005 in The Test Claimants in the CFC and Dividend Group Litigation v Commissioners of Inland Revenue
   (Case C-201/05)
   (2005/C 182/50)
   Language of the case: English
   Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England and Wales), Chancery Division of 18 March 2005, received at the Court Registry on 6 May 2005, for a preliminary ruling in the proceedings between The Test Claimants in the CFC and Dividend Group Litigation and Commissioners of Inland Revenue on the following questions:

               1.

               Is it contrary to Articles 43 or 56 of the EC Treaty for a Member State to keep in force and apply measures which:

                           (i)

                           exempt from corporation tax dividends received by a company resident in that Member State (‘the resident company’) from other resident companies; but which

                           (ii)

                           subject to corporation tax dividends received by the resident company from a company resident in another Member State and in particular a company controlled by it resident in another Member State and subject to a lower level of taxation there (‘the controlled company’), after giving double taxation relief for any withholding tax payable on the dividend and for the underlying tax paid by the controlled company on its profits?

               2.

               Do Articles 43, 49 or 56 of the EC Treaty preclude national tax legislation such as that in issue in the main proceedings under which, prior to 1st July 1997:

                           (i)

                           certain dividends received by an insurance company resident in a Member State from a company resident in another Member State (‘the non-resident company’) were chargeable to corporation tax; but

                           (ii)

                           the resident insurance company was allowed to elect that corresponding dividends received from a company resident in the same Member State should not be chargeable to corporation tax, with the further consequence that a company which had made the election was unable to claim payment of the tax credit to which it would otherwise have been entitled?

               3.

               Do Articles 43, 49 or 56 of the EC Treaty preclude national tax legislation in a Member State such as that in issue in the main proceedings which:

                           a)

                           provides in specified circumstances for the imposition of a charge to tax upon the resident company in respect of the profits of a controlled company being a company resident in another Member State as defined in Question 1 (ii) above; and

                           b)

                           imposes certain compliance requirements where the resident company does not seek or is not able to claim any exemption and pays tax in respect of the profits of that controlled company; and

                           c)

                           imposes further compliance requirements where the resident company seeks to obtain exemption from that tax?

               4.

               Would the answer to Questions 1, 2 or 3 be different if the controlled company (in Questions 1 and 3) or the non-resident company (in Question 2) was resident in a third country?

               5.

               Where, prior to 31 December 1993, a Member State adopted the measures outlined in Questions 1, 2 and 3, and after that date amended those measures in the manner described in Part C of this Schedule, and if those measures as amended constitute restrictions prohibited by Article 56 of the EC Treaty, are those restrictions to be taken to be restrictions which did not exist on the 31 December 1993 for the purposes of Article 57 EC?

               6.

               In the event that any of the measures referred to in Questions 1, 2 and 3 are contrary to the Community provisions referred to, then in circumstances where the resident company and/or the controlled company make any of the following claims:

                           (i)

                           a claim for repayment of (or the loss of use of money paid as) corporation tax unlawfully levied on the resident company in the circumstances referred to in Questions 1, 2 or 3 above;

                           (ii)

                           a claim for restitution and/or compensation in respect of losses, reliefs and expenses that were used by the resident company (or surrendered to the resident company by other companies in the same group resident in the same Member State) to eliminate or reduce taxation charges incurred by virtue of the measures referred to in Questions 1, 2 and 3 above where such losses, reliefs and expenses would have been available for alternative use or could have been carried forward;

                           (iii)

                           a claim for compensation for costs, losses, expenses and liabilities incurred in complying with the domestic legislation referred to in Question 3 above;

                           (iv)

                           where a controlled company has distributed reserves to the resident company to meet the requirements of the national legislation as an alternative to the resident company incurring the charge referred to in Question 3, and the controlled company has incurred costs, expenses and liabilities in doing so which it could have avoided had it been able to put those reserves to alternative use, a claim for compensation for those costs, expenses and liabilities.

                     are such claims to be regarded as:

                           a claim for repayment of sums unduly levied which arise as a consequence of, and adjunct to, the breach of the abovementioned Community provisions; or

                           a claim for compensation or damages such that the conditions set out in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame must be satisfied; or

                           a claim for payment of an amount representing a benefit unduly denied?

               7.

               In the event that the answer to any part of Question 6 is that the claim is a claim for payment of an amount representing a benefit unduly denied:

                           a)

                           are such claims a consequence of, and an adjunct to, the right conferred by the abovementioned Community provisions; or

                           b)

                           must some or all of the conditions for recovery laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame be satisfied; or

                           c)

                           must some other conditions be met?

               8.

               Does it make any difference whether as a matter of domestic law the claims referred to in Question 6 are brought as restitutionary claims or are brought, or have to be brought, as claims for damages?

               9.

               What guidance, if any, does the Court of Justice think it appropriate to provide in the present cases as to which circumstances the national court ought to take into consideration when it comes to determine whether there is a sufficiently serious breach within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame, in particular as to whether, given the state of the case law on the interpretation of the relevant Community provisions, the breach was excusable?

               10.

               As a matter of principle, can there be a direct causal link (within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame) between any breach of Articles 43, 49 and 56 EC and the losses falling into the categories identified in Question 6 (i) to (iv) above that are claimed to flow from it? If so, what guidance, if any, does the Court of Justice think it appropriate to provide as to the circumstances which the national court should take into account in determining whether such a direct causal link exists?

               11.

               In determining the loss or damage for which reparation may be granted, is it open to the national court to have regard to the question of whether injured persons showed reasonable diligence in order to avoid or limit their loss, in particular by availing themselves of legal remedies which could have established that the national provisions did not [by reason of the application of double taxation conventions) have the effect of imposing the obligations set out in Questions 1, 2 and 3 above?

               12.

               Is the answer to Question 11 above affected by the beliefs of the parties at the relevant times as to the effect of the double taxation conventions?


title: Case T-241/99: Action brought on 19 October 1999 by Antonio Pernice against the Commission of the European Communities

text:
C 6/32                EN                     Official Journal of the European Communities                                        8.1.2000
The applicant claims that the Court should:                             Pleas in law and main arguments
(a) annul Articles 2 and 3 of the Commission’s decision
    (C(1999) 2539 final) (1) of 20 July 1999 concerning State           The applicant pleads, first of all, that he was denied his right
    aid granted by the Netherlands to 633 service stations in           to a fair hearing, submitting:
    the region bordering Germany.
                                                                        (a) that the third paragraph of Article 7 of Annex IX to the
Pleas in law and main arguments                                              Staff Regulations has been infringed, in that the authority
                                                                             empowered to conclude contracts (‘the Authority’) failed
                                                                             to meet the time-limit laid down by that provision, without
The pleas in law and main arguments are the same as in Case                  furnishing any explanation to justify that failure;
T-210/99.
                                                                        (b) that the rules of sound administration with regard to
                                                                             personnel management have been infringed, inasmuch as:
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                             — one of the three members called on to exercise jointly,
                                                                                by delegation, the powers of the Authority had also
                                                                                acted when the Authority, exercising its powers by
                                                                                delegation, adopted an initial disciplinary measure
                                                                                which was subsequently withdrawn, so that his objec-
                                                                                tivity and impartiality was not beyond doubt;
Action brought on 19 October 1999 by Antonio Pernice                         — the contested decision was adopted without the Auth-
  against the Commission of the European Communities                             ority having studied either the applicant’s comments
                                                                                on the draft minutes of the hearing held pursuant to
                                                                                the third paragraph of Article 7 of Annex IX to the
                        (Case T-241/99)                                          Staff Regulations or the pleas and arguments in defence
                                                                                put forward both before the Disciplinary Board and in
                         (2000/C 6/57)                                           the course of the abovementioned hearing; and
                                                                        (c) that Article 2 of Annex IX to the Staff Regulations and
                  (Language of the Case: French)
                                                                             Article 25 of the Staff Regulations have been infringed, in
                                                                             that the alleged failures by the applicant to comply with
An action against the Commission of the European Communi-                    his obligations under the first paragraph of Article 11 and
ties was brought before the Court of First Instance of the                   the first paragraph of Article 12 of the Staff Regulations
European Communities on 19 October 1999 by Antonio                           were not disclosed to him in due time, a fact which
Pernice, resident in Torre d’Isola, Italy, represented by Jean-              prevented him from putting forward his grounds of
Noël Louis, Greta-Françoise Parmentier and Véronique Peere,                  defence.
of the Brussels Bar, with an address for service in Luxembourg
at the offices of Société de Gestion Fiduciaire, ‘Um Piquet’,
2-4 Rue Beck.
                                                                        The applicant also submits that the contested decision is
                                                                        vitiated by a manifest error of assessment, inasmuch as the
The applicant claims that the Court should:                             truth of the evidence against him was not established or, at the
                                                                        very least, the view taken as to the facts was manifestly
                                                                        exaggerated having regard to the circumstances. Furthermore,
— annul the Commission decision of 22 December 1998                     the Authority offended against the principle of proportionality
    imposing upon him the disciplinary measure of termin-               by imposing a disciplinary measure on him which was out of
    ation without notice of his contract as a temporary                 proportion to the degree of seriousness of his alleged failures to
    member of staff, with effect from 1 January 1999;                   comply with his obligations, failures which, in the unanimous
                                                                        opinion of the members of the Disciplinary Board, justify only
— order the Commission to pay him compensation assessed                 a mild penalty, namely a reprimand.
    on an equitable basis at EUR 250 000 for the material and
    non-pecuniary damage suffered following a series of faults
    on the part of the institution;
— order the Commission to pay the costs.


title: Case C-472/13: Request for a preliminary ruling from the Bayerisches Verwaltungsgericht München (Germany) lodged on 2 September 2013 — Andre Lawrence Shepherd v Federal Republic of Germany

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/9

         Request for a preliminary ruling from the Bayerisches Verwaltungsgericht München (Germany) lodged on 2 September 2013 — Andre Lawrence Shepherd v Federal Republic of Germany
   (Case C-472/13)
   2013/C 336/19
   Language of the case: German

      Referring court

   Bayerisches Verwaltungsgericht München

      Parties to the main proceedings

      Applicant: Andre Lawrence Shepherd

      Defendant: Federal Republic of Germany

      Questions referred

               1.

               Is Article 9(2)(e) of Directive 2004/83/EC (1) to be interpreted as meaning that the protection afforded extends only to those persons whose specific military duties include direct participation in combat, that is armed operations, and/or who have the authority to order such operations (first alternative), or can other members of the armed forces also fall within the scope of the protection afforded by that legislation if their duties are confined to logistical, technical support for the unit outwith actual combat and have only an indirect effect on the actual fighting (second alternative)?

               2.

               If the answer to Question 1 is that the second alternative applies:
               Is Article 9(2)(e) of Directive 2004/83/EC to be interpreted as meaning that military service in a conflict (international or domestic) must predominantly or systematically call for or require the commission of crimes or acts as defined in Article 12(2) of Directive 2004/83/EC (first alternative), or is it sufficient if the applicant for asylum states that, in individual cases, crimes, as defined in Article 12(2)(a) of Directive 2004/83/EC, were committed by the armed forces to which he belongs in the area of operations in which they were deployed, either because individual operational orders have proved to be criminal in that sense, or as a result of the excesses of individuals (second alternative)?

               3.

               If the answer to Question 2 is that the second alternative applies:
               Is refugee protection granted only if it is significantly likely, beyond reasonable doubt, that violations of international humanitarian law can be expected to occur in the future also, or is it sufficient if the applicant for asylum sets out facts which indicate that such crimes are (necessarily or probably) occurring in that particular conflict, and the possibility of his becoming involved in them therefore cannot be ruled out?

               4.

               Does the intolerance or prosecution by military service courts of violations of international humanitarian law preclude refugee protection pursuant to Article 9(2)(e) of Directive 2004/83/EC, or is that aspect immaterial?
               Must there even have been a prosecution before the International Criminal Court?

               5.

               Does the fact that the deployment of troops and/or the occupation statute is sanctioned by the international community or is based on a mandate from the United Nations Security Council preclude refugee protection?

               6.

               Is it necessary, in order for refugee protection to be granted pursuant to Article 9(2)(e) of Directive 2004/83/EC, that the applicant for asylum could, if he performs his duties, be convicted under the statutes of the International Criminal Court (first alternative), or is refugee protection afforded even before that threshold is reached and the applicant for asylum thus has no criminal prosecution to fear but is nevertheless unable to reconcile the performance of the military service with his conscience (second alternative)?

               7.

               If the answer to Question 6 is that the second alternative applies:
               Does the fact that the applicant for asylum has not availed himself of the ordinary conscientious objection procedure — even though he would have had the opportunity to do so — preclude refugee protection pursuant to the abovementioned provisions, or is refugee protection also a possibility in the case of a particular decision based on conscience?

               8.

               Does a dishonourable discharge from the army, the imposition of a prison sentence and the social ostracism and disadvantages associated therewith constitute an act of persecution within the meaning of Article 9(2)(b) or (c) of Directive 2004/83/EC?

      (1)  Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).


title: Case C-571/16: Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 14 November 2016 — Nikolay Kantarev v Balgarska narodna banka

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/9

         Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 14 November 2016 — Nikolay Kantarev v Balgarska narodna banka
   (Case C-571/16)
   (2017/C 038/12)
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Varna

      Parties to the main proceedings

      Applicant: Nikolay Kantarev

      Defendant: Balgarska narodna banka

      Questions referred

               1.

               Are Article 4(3) TEU and the principles of equivalence and effectiveness to be interpreted as permitting, in the absence of national rules, the courts having jurisdiction and the procedure for hearing actions for damages based on an infringement of EU law to be determined by reference to the authority which committed the infringement and by reference to the nature of the act/failure to act through which the infringement was committed if, as a result of the application of those criteria, the actions are heard by different courts, general and administrative courts, on the basis of different codes of procedure, the Code of civil procedure [Grazhdansko-protsesualen kodeks, GPK] and the Code of administrative procedure [Administrativnoprotsesualen kodeks, APK], which require payment of different fees, namely proportionate and flat-rate, and proof of satisfaction of different conditions, including fault?

               2.

               Are Article 4(3) TEU and the requirements laid down by the Court in Frankovich to be interpreted as precluding [the possibility of] actions for damages based on an infringement of EU law being heard in a procedure such as that under Article 45 and Article 49 of the Law on obligations and contracts [Zakon za zadalzheniata i dogovorite, ZZD], which requires payment of a proportionate fee and proof of fault, and also in a procedure such as that under Article 1 of the Law on liability of the State and of municipalities for damage [Zakon za otgovornostta na darzhavata i obshtinite za vredi, ZODOV], which provides for objective liability and includes special rules to facilitate access to the courts, but which is nevertheless applicable only to damage arising from annulled unlawful legal acts and unlawful acts/failures to act by the administration and does not cover infringements of EU law committed by other State authorities through legal acts/failures to act not annulled under the procedure in question?

               3.

               Are Article 1(3)(i) and Article 10(1) of Directive 94/19 (1) to be interpreted as permitting a legislative approach such as that taken in Article 36(3) of the Law on credit institutions [Zakon za kreditnite institutsii, ZKI] and Article 23(5) of the Law on guarantees for bank deposits [Zakon za garantirane na vlogovete v bankite, ZGVB], under which ‘the condition that the credit institution concerned appears to be unable for the time being, for reasons which are directly related to its financial circumstances, to repay the deposit and to have no current prospect of being able to do so’ is a synonymous with the declaration of the insolvency of the institution and the withdrawal of its authorisation and the deposit-guarantee scheme takes action from the time of withdrawal of the banking licence?

               4.

               Is Article 1(3) of Directive 94/19 to be interpreted as meaning that in order for a deposit to be classified as ‘unavailable’, its unavailability must be expressly determined by the ‘relevant competent authorities’ after completing the assessment pursuant to point i of that provision or does it permit, where there is a gap in national law, the assessment and the intention of the ‘relevant competent authority’ to be inferred by way of an interpretation of other legal acts of that authority — in the present case, for example, Decision No 73 of 20 June 2014 of the Management Board (upravitelen savet, US) of the BNB, by which ‘KTB’ AD was placed under special supervision — or to be presumed in the light of circumstances like those in the main proceedings?

               5.

               Under circumstances like those in the main proceedings, where, by Decision No 73 of 20 June 2014 of the Management Board of the BNB, all payments and transactions were suspended and in the period from 20 June 2014 to 6 November 2014 depositors were neither able to make requests for payment nor had access to their deposits, are all secured indefinite deposits (which may be disposed of without prior notice and which are to be paid out immediately upon request) to be considered as unavailable within the meaning of Article 1(3)(i) of Directive 94/19 or does the condition that a deposit ‘is due and payable but has not been paid by a credit institution’ mean that depositors with the credit institution must have made a claim for payment (by application or request) which was not granted?

               6.

               Are Article 1(3)(i), Article 10(1) of Directive 94/19 and recital 8 of Directive 2009/14 (2) to be interpreted as meaning that the discretion enjoyed by the ‘relevant competent authorities’ in respect of the assessment under Article 1(3)(i) is in any case limited by the time-limit laid down in the second sentence of point i or do they permit, for the purposes of special supervision, as under Article 115 of the ZKI, deposits to remain unavailable for longer periods than provided for in the directive?

               7.

               Do Article 1(3)(i) and Article 10(1) of Directive 94/19 have direct effect and do they confer on holders of deposits in a bank which is a member of a deposit-guarantee scheme, in addition to their right to compensation under that scheme up to the amount specified in Article 7(1) of Directive 94/19, the right to hold the State liable for an infringement of EU law by bringing an action against the authority required to determine the unavailability of deposits, seeking compensation for the damage which has arisen as a result of the late payment of the guaranteed deposit, if the decision under Article 1(3)(i) was taken after the expiry of the time-limit of five days laid down in the directive and that lateness is due to the effect of a reorganisation measure which was intended to protect the bank from insolvency and was adopted by that authority, or, in circumstances like those in the main proceedings, do they permit a national provision such as Article 79(8) of the ZKI, under which the BNB, its organs and persons authorised by them are liable for damage arising in the performance of their supervisory activity only if it was caused intentionally?

               8.

               Does an infringement of EU law where ‘the relevant competent authority’ has not taken a decision pursuant to Article 1(3)(i) of Directive 94/19 constitute a ‘sufficiently serious breach’ which can trigger the liability of a Member State for damage by way of an action brought against the supervisory authority, under what conditions is this the case and, in this connection, are the following circumstances relevant: (a) that the Bank Deposit Guarantee Fund [Fond za garantirane na vlogovete v bankite, FGVB] did not have sufficient funds to cover all the guaranteed deposits; (b) that in the period in which payments were suspended the credit institution was placed under special supervision in order to protect it against insolvency; (c) that the applicant’s deposit was paid out after the BNB had established that the reorganisation measures had been unsuccessful; [(d)] that the applicant’s deposit was paid out together with income from interest, calculated for the period from 20 June 2014 to 6 November 2014 inclusive?

      (1)  Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ 1994 L 135, p. 5).

      (2)  Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009 amending Directive 94/19/EC on deposit-guarantee schemes as regards the coverage level and the payout delay (OJ 2009 L 68, p. 3).