title: Case C-164/08: Reference for a preliminary ruling from the Monomeles Protodikio Rethimnon (Greece) lodged on 17 April 2008 — Mikhail Zakharioudakis v Dimos Labis

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/22

         Reference for a preliminary ruling from the Monomeles Protodikio Rethimnon (Greece) lodged on 17 April 2008 — Mikhail Zakharioudakis v Dimos Labis
   (Case C-164/08)
   (2008/C 171/34)
   Language of the case: Greek
   Referring court
   Monomeles Protodikio Rethimnon
   Parties to the main proceedings

      Applicant: Mikhail Zakharioudakis

      Defendant: Dimos Labis
   Questions referred

               1.

               Do clause 5 and clause 8(1) and (3) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which forms an integral part of Council Directive 1999/70/EC (OJ 1999 L 175 p. 43), mean that Community law (by reason of the application of the said Framework Agreement) does not allow a Member State to adopt measures

                           (a)

                           where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement already existed under national law before the directive entered into force and

                           (b)

                           where the measures adopted in order to apply the Framework Agreement reduce the general level of protection afforded to fixed-term workers under national law?

               2.

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

                           (a)

                           when the legal measure in question applying the Framework Agreement was adopted after the time-limit for transposing Directive 1999/70/EC had elapsed, but only fixed-term employment contracts and relationships which were in effect before its entry into force or had expired within a certain period before its entry into force but after the time-limit for transposing the Directive had elapsed fall within its chronological scope, although the equivalent legal measure which already existed does not have a chronologically restricted scope of application and covers all fixed-term employment contracts which had been concluded, were in effect or had expired when Directive 199/70/EC came into force and the time-limit for its transposition had elapsed;

                           (b)

                           when fixed-term employment contracts or relationships only fall within the scope of application of the legal measure in question applying the Framework Agreement if they can be regarded as successive within the meaning of that measure, satisfying the cumulative requirements: (i) that there is a maximum period of three months between them; (ii) that they extend for a total of at least 24 months before the measure in question enters into force, irrespective of the number of contract renewals or that, on the basis of those renewals, there has been a minimum total period of work of 18 months over an overall period of 24 months from the original contract, provided that there are at least three renewals since the original contract, whereas the existing equivalent legal measure does not lay down such conditions but covers all the fixed-term (successive) employment contracts, irrespective of a minimum total period of work and a minimum number of contract renewals;

                           (c)

                           when the legal measure in question applying the Framework Agreement provides as a legal consequence for the protection of fixed-term workers and the prevention of abuse, within the meaning of the Framework Agreement on fixed-term work, for the qualification thereafter (ex nunc) of fixed-term employment contracts as contracts of indefinite duration, whereas the pre-existing legal measure provides for the qualification of fixed-term contracts as contracts of indefinite duration from the time they were originally concluded (ex tunc)?

               3.

               If question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70/EC, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 7 of Presidential Decree 164/2004 at issue in the main proceedings an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, when that provides, as the sole means of protection of fixed-term workers from abuse, for an obligation on the part of the employer to pay wages and severance pay where workers have wrongfully been employed under successive fixed-term employment contracts, bearing in mind

                           (a)

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

                           (b)

                           that the legal consequence of the application of the earlier equivalent legal measure is that successive fixed-term contracts of employment are recognised as a contract of indefinite duration?

               4.

               If all the above questions are answered in the affirmative, should the national court, in interpreting national law in accordance with Directive 1999/70/EC, disapply the provisions of the legal measure which are not compatible with it, but which were adopted by reason of the application of the Framework Agreement and result in a reduction in the general level of protection afforded to fixed-term workers under national law, such as Articles 7 and 11 of Presidential Decree 164/2004 and apply instead an equivalent legal measure which existed before the directive entered into force, such as Article 8(3) of Law 2112/1920?

               5.

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

                           (a)

                           is it compatible with Community law for a national court to interpret and apply national law to the effect that the fact that a legal provision governing employment under a fixed-term contract of employment in order to meet seasonal, periodic, temporary, exceptional needs was used as the legal basis for concluding a fixed-term contract constitutes an objective reason in all cases for concluding such contracts, even though the requirements covered were in fact fixed and permanent, and

                           (b)

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


title: Action brought on 18 January 1999 by HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG and Others against the Commission of the European Communities (Case T-9/99)

text:
C 86/24                EN               Official Journal of the European Communities                                 27.3.1999
    Council Regulation (EC) No 384/96 (4) as well as the           Pleas in law and main arguments adduced in support:
    relevant provisions of the WTO Anti-Dumping
    Agreement.
                                                                   The Commission accuses the applicants, with other
                                                                   producers of pre-insulated district heating pipes, of
                                                                   participating in a system of agreements in restraint of
Ð The Council failed to respect the principle of                   competition during the period from October 1991 until at
    legitimate expectation.                                        least March or April 1996. The applicants are alleged,
                                                                   inter alia, to have shared the market, agreed prices and
                                                                   manipulated supplies, and to have engaged in concerted
                                                                   practices intended to damage competitors not participating
Ð The Council infringed the principle of proportionallity.         in the cartel.
(1) OJ L  33, 4.2.1997, p. 11.                                     A fine of ECU 4 950 000            was    imposed   on   the
(2) OJ L  208, 2.8.1997, p. 31.                                    Henss/Isoplus Gruppe'.
(3) OJ L  296, 5.11.1998, p. 1.
(4) OJ L  56, 6.3.1996, p. 1.
                                                                   The applicants argue that the Isoplus Fernwärmetechnik
                                                                   GmbH Ð Stille Gesellschaft' referred to in the decision
                                                                   does not have legal personality, is not capable of being a
                                                                   party and cannot therefore properly be an adressee under
                                                                   Article 85(1) of the EC Treaty or a party in a proceeding
                                                                   under Regulation No 17/62. They argue further that the
                                                                   loose Gruppe Henns/Isoplus' is a structure without legal
Action brought on 18 January 1999 by HFB Holding für               personality and thus also not capable of being a party,
Fernwärmetechnik Beteiligungsgesellschaft mbH & Co.                with the result that there has been a breach of the
KG and Others against the Commission of the European               essential procedural requirements laid down by Regulation
                           Communities                             No 17/62.
                          (Case T-9/99)
                                                                   The applicants also plead:
                         (1999/C 86/44)
                                                                   Ð infringement of Article 85 of the EC Treaty and
                                                                       Articles 3 and 15 of Regulation No 17/62;
                (Language of the case: German)
                                                                   Ð infringement of the right to a proper hearing and the
                                                                       duty to state reasons, since the statement of objections
An action against the Commission of the European
                                                                       was never served;
Communities was brought before the Court of First
Instance of the European Communities on 18 January
1999 by HFB Holding für Fernwärmetechnik Beteiligungs-             Ð infringement of Article 6(2) of the European
gesellschaft mbH & Co. KG, Rosenheim (Germany) and                     Convention on Human Rights and the principle of
four Others, represented by Peter Krömer and Friedrich                 mens rea under Article 15(2) of Regulation No 17/62;
Nusterer, Rechtsanwälte, St Pölten (Austria).
                                                                   Ð infringement of Commission Decision 94/810/ECSC,
                                                                       EC of 12 December 1994 on the terms of reference of
The applicants claim that the Court should:                            hearing officers in competition procedures before the
                                                                       Commission (OJ 1994 L 330, p. 67), and Regulation
                                                                       No 99/63/EEC;
1. annul the Commission's decision of 21 October 1998
    concerning a proceeding under Article 85 of the EC             Ð infringement of the formal requirements of
    Treaty (Case IV/35.691/E-4, Fernwärmetechnik-Kar-                  Articles 3(3) and 4 of Regulation No 99/63/EEC in
    tell), as amended by the Commission's corrective                   conjunction with Article 19 of Regulation No 17/62
    decision of 6 November 1998 (Case IV/35.691 Ð                      and Articles 6 and 7 of Commission Decision
    Vorisolierte Rohre);                                               94/810/ECSC, EC;
                                                                   Ð infringement      of further defence rights, such as
2. reduce the fines imposed on the applicants (or, as the              insufficiently  long periods for the making of
    case may be, the Gruppe Henns/Isoplus') by the above              observations   and failure to provide translation of
    decision;                                                          documents in   foreign languages;
                                                                   Ð infringement of the duty to state reasons under
3. order the Commission to pay the costs.                              Article 190 of the EC Treaty.
 ---pagebreak--- 27.3.1999             EN                 Official Journal of the European Communities                                    C 86/25
The applicants further claim that the Commission's                  (a) to rule upon the notification by Germany of an
Guidelines on the method of setting fines imposed                        amendment to the plan approved by Commission
pursuant to Article 15(2) of Regulation No 17/62 and                     Decision 94/1070/ECSC; and
Article 65(5) of the ECSC Treaty (1) are unlawful pursuant
to Article 184 of the EC Treaty, since the guidelines
constitute a genuine regulation, which the Commission               (b) to authorise Germany to grant aid to its coal industry
was not competent to issue.                                              1998.
                                                                    The applicant seeks the annulment of the purported
Finally, the applicants complain of irregularities in the           amendment to the plan on the following grounds:
setting of the fine. For example, their cooperation was not
sufficiently taken into account, and the principles that a
fine should not exceed 10 % of turnover or threaten to              Ð Infringement of an essential procedural
lead to insolvency were ignored.                                         requirement / lack of reasoning:
(1) OJ C 9, 14.1.1998, p. 3.
                                                                         the contested decision makes no mention of the
                                                                         purported amendments to the plan in the operative
                                                                         part of the ruling. Accordingly, there has been no
                                                                         ruling under Article 8(4) of the Code (2) as to the
                                                                         amendments to the plant notified by Germany.
Action brought on 18 January 1999 by RJB Mining PLC                 Ð Manifest failure to observe the provisions
   against the Commission of the European Communities                    o f t h e E C S C Tr e a t y a n d / o r a n y r u l e o f
                                                                         law relating to its application and misuse
                        (Case T-12/99)                                   of powers:
                        (1999/C 86/45)
                                                                         the purported ruling proceeds on the entirely false
                                                                         basis that the three main recipients of aid continued to
                (Language of the case: English)                          exist separately throughout 1998 and fails to take into
                                                                         account of the merger of those recipients in August
                                                                         1998 or the massive state aid inherent in and
An action against the Commission of the European                         conditional on the merger. Further, the purported
Communities was brought before the Court of First                        ruling, in so far as it relates to operating aid, makes
Instance of the European Communities on 18 January                       no assessment under Article 3(2) and Article 8 of the
1999 by RJB Mining PLC, represented by Mark Philip                       Code as to whether the amended plan requires the
Brealey, of Brick Court Chambers, and Jonathan Alex                      relevant undertakings to be capable of becoming
Lawrence, Solicitor of Freshfields, with an address for                  viable within the foreseeable future.
service in Luxembourg at the Chambers of Arendt and
Medernach, 8Ð10 Rue Mathias Hardt.
                                                                    The applicant seeks the annulment of the purported
                                                                    authorisation of aid for 1998 on similar grounds to those
                                                                    raised in Case T-110/98.
The applicant claims that the Court should:
                                                                    (1) Case T-110/98 (OJ C 299, 26.9.1998, p. 38.
                                                                    (2) Decision No 3632/93/ECSC (OJ L 329, 30.12.1993, p. 12).
1. annul the Commission Decision of 2 December 1998
     relating to aid to the German coal industry for 1998;
     and
2. order the Commission to pay the costs of action,
     including those of the applicant.                              Action brought on 18 January 1999 by Pfizer Animal
                                                                         Health against the Council of the European Union
                                                                                (Case T-13/99)
Pleas in law and main arguments adduced in support:
                                                                                (1999/C 86/46)
The applicant, which has already challenged the decision                            (Language of the case: English)
relating to aid paid to the German coal industry for
1997 (1), seeks in the present application the annulment of
the decision relating to aid for 1998 (the contested                An action against the Council of the European Union was
decision) which purports:                                           brought before the Court of First Instance of the European


title: Case T-333/04: Action brought on 11 August 2004 by House of Donuts International against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/42

         Action brought on 11 August 2004 by House of Donuts International against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-333/04)
   (2004/C 300/84)
   Language in which the application was lodged: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 11 August 2004 by House of Donuts International, George Town, Grand Cayman (British West Indies) represented by N. Decker, lawyer with an address for service in Luxembourg.
   Panrico S.A. was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               declare that the Community Trade Mark application No. 474 486 of the applicant has to be accepted;

               —

               annul the Decision of the Fourth Board of Appeal of the OHMI of 12 May 2004 (Case R 1034/2001-4);

               —

               order the opponent to bear the costs incurred by the applicant.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               The applicant

               Community trade mark concerned:

               The figurative mark AHouse of donuts@ for goods and services in classes 30, 32 and 42 (e.g. doughnuts, muffins, croissants, mineral and aerated waters and restaurant, cafeteria and catering services) B application No. 474 486

               Proprietor of mark or sign cited in the opposition proceedings:

               Panrico S.A.

               Trade mark or sign cited in opposition:

               The Spanish word marks and figurative marks ADONUT@ and Adonuts@ for goods and services in classes 30, 32 and 42 (e.g. all kinds of confectionary, pastry, sweets and candies, fruit drinks and fruits juices and services of cafeteria, bar, restaurant, hotel and camping)

               Decision of the Opposition Division:

               Rejection of the trade mark application

               Decision of the Board of Appeal:

               Dismissal of the applicant=s appeal

               Pleas in law:

               The trade marks in competition are not similar. The opponent should not be granted the exclusive use of the words Adonut@ or Adonuts@.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 14 December 1995 in Case T-285/94, Fred Pfloeschner v. Commission of the European Communities (Officials - Pensions - Weighting for Switzerland - Former official of Swiss nationality - Objection alleging illegality of Regulation No 2175/85)

text:
No C 46/ 14            EN                  Official Journal of the European Communities                                      17. 2 . 96
 JUDGMENT OF THE COURT OF FIRST INSTANCE                               JUDGMENT OF THE COURT OF FIRST INSTANCE
                     of 14 December 1995                                                      ( Fourth Chamber)
in Case T-285/94, Fred Pfloeschner v. Commission of the                                       of 9 January 1996
                  European Communities ( ')                           in Case T-368/94 : Pierre Blanchard v. Commission of the
(Officials — Pensions — Weighting for Switzerland —                                       European Communities ( a )
Former official of Swiss nationality — Objection alleging
                                                                      (StaffRegulations — Staff Committee — Elections — Right
            illegality of Regulation No 2175/85)                      of trade unions or staff associations to submit several
                          ( 96/C 46/26 )                                                               lists )
                                                                                ( 96/C 46/27)
                (Language of the case: French)
                                                                                (Language of the case: French)
In Case T-285/94 : Fred Pfloeschner, a former official of the
                                                                      In Case T-368/94 : Pierre Blanchard, an official of the
Commission of the European Communities, residing in
Geneva,       Switzerland,       represented     by     Georges
                                                                      Commission of the European Communities, represented by
Vandersanden, of the Brussels Bar, with an address for                Marc-Albert Lucas, of the Liege Bar, with an address for
service in Luxembourg at the offices of Fiduciaire Myson              service in Luxembourg at the Chambers of Evelyn Korn, 21
Sari , 1 Rue Glesener, against Commission of the European             Rue de Nassau, supported by Union Syndicale-Bruxelles
Communities ( Agents: Joseph Griesmar, Denis Waelbroeck               ( European Public Service Union ), whose headquarters are in
and, in the hearing, Ana Maria Alves Vieira ), supported by           Brussels, represented by Luc Misson and, at the hearing, by
the Council of the European Union ( Agents : Yves Cretien             Beatrice Rixhon, both of the Liege Bar, with an address for
and Diego Canga ) — application for annulment of the                  service in Luxembourg at the Chambers of Evelyne Korn, 2 1
Commission decision contained in the applicant's                      Rue de Nassau, against the Commission of the European
retirement pension statement for December 1993 , in so far            Communities ( Agent: Gianluigi Valsesia ) — application for
                                                                      annulment of the decisions of the electoral office contained
as it applies a weighting of 100, and for an order that the
Commission draw from the judgment annulling that                      in the notes of 3 and 8 November 1994 from its president,
                                                                      addressed to the applicant in his capacity as political
statement all the appropriate conclusions in law regarding
                                                                      secretary fo the European Public Service Union, and in the
both the retirement pension and the survivor's pension —
the Court of First Instance ( Second Chamber ), composed of           president's oral decision of 8 November 1994 refusing
B. Vesterdorf, President of the Chamber, D. P. M.                     acceptance for the elections to the local section of the Staff
Barrington and A. Saggio, Judges; Registrar: J. Palacio               Committee of a list in which 27 pairs of candidates from the
                                                                      Research/European Public Service Union list had been
Gonzalez, gave a judgment on 14 December 1995 , the
                                                                      re-submitted under a name in which the designation
operative part of which is as follows :
                                                                      'European Public Service Union' did not appear — the Court
                                                                      of First Instance ( Fourth Chamber ), composed of D. P. M.
                                                                      Barrington, President, K. Lenaerts and P. Lindh, Judges; J.
 1 . the applicant's pension statement for December 1 993 is          Palacio Gonzalez, Administrator, for the Registrar, gave a
     annulled in so far as it applies a weighting of 1 00;            judgment on 9 January 1996, in which it:
2 . the Commission is ordered to pay the applicant default             1 . annuls the two decisions of the electoral office of
     interest at the rate of 8% per annum on the arrears of                  8 November 1994, without prejudice to the result of the
     pension; that interest shall be calculated with effect from             elections to the Staff Committee held on 31 January, 1
     the various dates on which the amounts payable under                    and 2 February 1 995, and rejects the remainder of the
     the pension scheme should have been paid until the date                 action for annulment;
     of actual payment;
                                                                      2 . rejects the claim for compensation;
 3 . the Commission is ordered to pay the costs;
                                                                       3 . orders the Commission to pay the costs incurred by the
                                                                             applicant, including those relating to the proceedings for
 4 . the Council is ordered to bear its own costs .                          interim relief, as well as its own costs; orders the
                                                                             intervener to pay its own costs.
 (') OJ No C 304 , 29 . 10 . 1994 .
                                                                       ( 1 ) OJ No C 370, 24 . 12 . 1994 .


title: Case T-54/16: Judgment of the General Court of 17 January 2017 — Netguru v EUIPO (NETGURU) (EU trade mark — Application for EU word mark NETGURU — Absolute ground for refusal — Lac k of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 41 of the Charter of Fundamental Rights — Article 75 of Regulation No 207/2009 — Article 76(2) of Regulation No 207/2009)

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/27

         Judgment of the General Court of 17 January 2017 — Netguru v EUIPO (NETGURU)
   (Case T-54/16) (1)

   ((EU trade mark - Application for EU word mark NETGURU - Absolute ground for refusal - Lac k of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 - Obligation to state reasons - Article 41 of the Charter of Fundamental Rights - Article 75 of Regulation No 207/2009 - Article 76(2) of Regulation No 207/2009))
   (2017/C 063/37)
   Language of the case: Polish

      Parties

      Applicant: Netguru sp. z o.o. (Poznań, Poland) (represented: initially by K. Jarosiński, and subsequently by T. Grzybkowski, T. Guzek and M. Jackowski, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: D. Walicka, acting as Agent)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 18 December 2015 (Case R 144/2015-5) concerning an application for registration of the word sign NETGURU as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Netguru sp. z o.o. to bear the costs.

      (1)  OJ C 111, 29.3.2016.


title: Case F-113/07: Action brought on 18 October 2007 — Šimonis v Commission

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/36

         Action brought on 18 October 2007 — Šimonis v Commission
   (Case F-113/07)
   (2008/C 79/69)
   Language of the case: Lithuanian
   Parties

      Applicant: Irmantas Šimonis (Luxembourg) (represented by: V. Vilkas, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision of the Commission of the European Communities by which, in the course of the selection procedure to fill a post which is the subject of notice of vacancy No COM/2007/142, it withdrew its request to transfer the applicant to the Commission and excluded him from the selection procedure;

               —

               annul the decision of the Commission of the European Communities of 8 August 2007 dismissing complaint No R/273/07 filed by the applicant on 27 April 2007;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his action, the applicant puts forward three pleas, the first of which alleges infringement of his legitimate expectations resulting from the conclusion of an institutional agreement between the heads of administration in 2005 which provides that a waiting period of three years would be imposed prior to any inter-institutional transfers of newly recruited officials.
   In his second three, the applicant claims the Commission's decision is unlawful on the grounds of failure to state reasons, the fact that it is not proportional to the interests protected, and that the Commission exceeded the limits of its discretion. Furthermore, the applicant submits that the decision operates discrimination based on nationality.
   In his third plea the applicant claims infringement of the principle of sound administration and breach of the duty of care towards officials.


title: Case C-581/12 P: Appeal brought on 11 December 2012 by Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-370/06: Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV v European Commission

text:
               23.2.2013

               EN

               Official Journal of the European Union

               C 55/4

         Appeal brought on 11 December 2012 by Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-370/06: Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV v European Commission
   (Case C-581/12 P)
   2013/C 55/06
   Language of the case: English

      Parties

      Appellants: Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV (represented by: D.W. Hull, Solicitor, G. Berrisch, Rechtsanwalt)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside the Contested Judgment;

               —

               to either (i) annul Article 2(i) of the Contested Decision (1) insofar as it imposes a fine on the Appellants; (ii) reduce the amount of the fine imposed on the Appellants, or (iii) refer the case back to the General Court; and

               —

               order the Commission to pay the costs of the appeal and of the proceedings before the General Court.

      Pleas in law and main arguments

   By a judgment dated 27 September 2012 (the ‘Contested Judgment’), the General Court upheld a Commission decision adopted on 13 September 2006 imposing on Kuwait Petroleum Corporation (‘KPC’), Kuwait Petroleum International Limited (‘KPI’), and Kuwait Petroleum (Nederland) BV (‘KPN’) (KPC, KPI, and KPN will be referred to collectively as the ‘Appellants’), jointly and severally, a fine of EUR 16 632 million for infringing Article 81 EC by fixing prices in the Dutch bitumen market. Each of the Appellants hereby seeks either the annulment of the Contested Judgment insofar as it imposes a fine, reduction of the fine, or referral back to the General Court on the following grounds:

               1.

               The Contested Judgment should be annulled insofar as it imposes a fine or, in the alternative, referred back to the General Court, because the Contested Judgment is vitiated by an error of law in that the General Court misinterpreted the last paragraph of Point 23(b) of the 2002 Leniency Notice, which provides that, when a leniency applicant ‘provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel,’ the Commission may not take those facts into account when setting the fine on the leniency applicant. The General Court ruled that a fact is ‘unknown’ to the Commission only if the Commission has no knowledge whatsoever of a fact. Thus, even if the Commission only has a very general idea about the existence of a cartel and no direct evidence that will allow it to prove the facts relating to the cartel, a leniency applicant that provides such evidence will not be able to benefit from the immunity provided for in the last paragraph of Point 23(b). The Appellants submit that this interpretation of this paragraph is too narrow and wrong as a matter of law.

               2.

               The Contested Judgment is vitiated by an error of law in that the General Court failed to properly consider the evidence put forward by the Appellants before concluding that the value of the evidence submitted to the Commission by KPN in the context of its leniency application was diluted by intervening submissions of other parties. The General Court could not have arrived at this conclusion without examining the evidence submitted by KPN and comparing it to the evidence submitted by the other parties, which it did not even attempt to do.

      (1)  Decision C(2006) 4090 final relationg to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands), OJ (2007) L196/40


title: Case C-651/16: Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 19 December 2016 — DW v Valsts sociālās apdrošināšanas aģentūra

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/10

         Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 19 December 2016 — DW v Valsts sociālās apdrošināšanas aģentūra
   (Case C-651/16)
   (2017/C 086/13)
   Language of the case: Latvian

      Referring court

   Augstākā tiesa

      Parties to the main proceedings

      Applicant: DW

      Defendant: Valsts sociālās apdrošināšanas aģentūra, Rīga.

      Question referred

   Must Article 4(3) of the Treaty on European Union and Article 45(1) and (2) of the Treaty on the Functioning of the European Union be interpreted as not precluding legislation of a Member State such as that at issue in the main proceedings that, for the purposes of determining the amount of a maternity benefit, does not exclude from the 12-month period which is to be used in determining the average contribution basis the months in which the person worked in an EU institution and was covered by the joint insurance scheme of the European Communities, but that, on the grounds that, during that period, the person was not insured in Latvia, equates her income with the average contribution basis in the State, which may substantially reduce the amount of the maternity benefit granted in comparison with the possible amount of the benefit that the person could have received if, during the period under consideration for the purposes of the calculation, she had not worked for an EU institution but had been employed in Latvia?


title: Action brought on 24 January 1995 by Nicolaos Kyrpitsis against the Economic and Social Committee (Case T-13/95)

text:
 No C 74/14            EN                Official Journal of the European Communities                                    25 . 3 . 95
 3% the additional rate of permanent partial invalidity             deserving candidates and to include officials from lower
which he suffers following the deterioration of his state of        down the list gof officials proposed unless it was established
health .                                                            that their merits were at least equal to his. He notes that the
                                                                    list of officials proposed is drawn up specifically in order of
                                                                    merit, which implies that the promotion committee
                                                                    unlawfully gave preference to the criterion of seniority over
                                                                    that of merit. It follows, he argues, that there has been a
                                                                    breach of the Staff Regulations and of the proper procedure
                                                                    for promotion.
Action brought on 24 January 1995 by Jose Hodar against
       the Commission of the European Communities                   Lastly, the applicant points out that there are no objective
                        (Case T-12/95 )                             factors to demonstrate why the promotion committee did
                          ( 95/C 74/26                              not include his name on the list in question when the four
                                                                    officials below him on the list of names proposed were
                                                                    included; the same applies to the inclusion on the list of
                 (Language of the case: French)                     officials who were not on the list of officials proposed.
                                                                    Accordingly, he considers that the decision infringed the
An action against the Commission of the European                    obligation to state the grounds on which it was based, as laid
Communities was brought before the Court of First                   down in Article 25 of the Staff Regulations.
Instance of the European Communities on 24 January 1995
by Jose Hodar, resident in Redange (France), represented by
Jean-Noel Louis, of the Brussels Bar, with an address for
service in Luxembourg at the offices of Sari Fiduciaire
Myson, 1 Rue Glesener.
The applicant claims that the Court of First Instance               Action brought on 24 January 1995 by Nicolaos Kyrpitsis
should :                                                                     against the Economic and Social Committee
                                                                                ( Case T-13/95 )
— annul the Commission's decision not to place the                                            ( 95/C 74/27)
     applicant on the list of officials considered most
     deserving of promotion to Grade D1 for the year
     1994,                                                                           (Language of the case: French)
— so far as is necessary, annul all subsequent decisions
     adopted in relation to promotion to Grade D1 for the           An action against the Economic and Social Committee was
     year 1994, and more particularly the decision not to           brought before the Court of First Instance of the European
     promote the applicant to that grade,                           Communities on 24 January 1995 by Nicolaos Kyrpitsis,
                                                                   resident in Gendebien, Belgium, represented by Jean-Noel
                                                                    Louis, of the Brussels Bar, with an address for service in
— order the defendant to pay the costs .
                                                                    Luxembourg at Fiduciaire Myson, 1 Rue Glesener.
Pleas in law and main arguments
                                                                   The applicant claims that the Court of First Instance
                                                                    should :
The applicant claims that he was placed on the list of
officials eligible for promotion to Grade D1 proposed by
DG IX for the promotion year 1994. He was not, however,            — annul the decisions to reject his candidature for vacant
included on the list of the most deserving officials drawn up            posts 2/94, 3/94 and 4/94,
by the promotion committee, whereas the committee did
include on that list some officials placed below him on the        — order the defendant to pay the costs.
list of officials proposed by DG IX as well as some officials
who had not even been proposed.
                                                                   Pleas in law and main arguments
Firstly, the applicant claims that the inclusion in the list of
most deserving candidates of officials who had not been            In support of his action, the applicant alleges breach of
proposed and who had a 'normal' career profile ( statistical       Article 29 of the Staff Regulations and the vacancy notice
representation of the group of officials eligible for              and also a manifest error of assessment and breach of
promotion, based on the objective factors of age and               Article 45 of the Regulations.
seniority) is contrary to the Commission's decision of
24 November 1976 concerning promotions, which provides             The applicant claims that the appointing authority has
that only 'slow' career officials can be so included.              acknowledged that it transferred an official to one of the
                                                                   vacant posts without consideration of the comparative
The applicant also claims that it was not open to the              merits of all the officials who applied for transfer to that
promotion committee to exclude him from the list of most           post. He concludes accordingly that the decision rejecting
 ---pagebreak--- 25 . 3 . 95           EN                  Official Journal -of the European Communities                              No C 74/15
his application for the three posts in question was adopted in        Pleas in law and main arguments
breach of the order of priority laid down in Article 29 of the
Regulations and in point 6 of the vacancy notice, which               The pleas in law and main arguments are similar to those in
specifically stated that the appointing authority would               Case T-20/94 .
consider whether the posts could be filled by transfer
according to priority.
The applicant also points out that the appointing authority
breached the vacancy notice by selecting candidates by
reference to criteria other than those appearing in the said          Action brought on 6 February 1995 by Gerd Kühle against
notice . He points out that the appointing authority                  Council of the European Union and Commission of the
expressly acknowledged that it had made its choice from                                 European Communities
among agents with occupational experience as messengers                                     ( Case T-16/95 )
who already occupied such posts .
                                                                                ( 95/C 74/29
Furthermore, the applicant considers that the contested
decision is vitiated by a manifest error of assessment and was                      (Language of the case: German)
adopted in breach of the gurantees given under Article 45 of
the Regulations.                                                      An action against the Council of the European Union and
                                                                      Commission of the European Communities was brought
Finally, the applicant alleges that the defendant failed, even        before the Court of First Instance of the European
when giving a reply expressly rejecting his complaint, to             Communities on 6 February 1995 by Gerd Kühle, Berge
provide the information which would enable him to                     ( Federal Republic of Germany), represented by Bernd
ascertain whether the contested decision was valid .                  Meisterernst, Mechtild Düsing, Dietrich Manstetten, Frank
                                                                      Schulze and Winfried Haneklaus, Rechtsanwälte, Munster,
                                                                      with an address for service in Luxembourg at the Chambers
                                                                      of Dupong & Associés, 14a Rue des Bains .
                                                                      The applicant claims that the Court should:
                                                                      1 . order the defendants jointly to pay to the applicant
Action brought on 27 January 1995 by Josef Blum against                    SLOM I compensation for the period from 7 May 1986
Council of the European Union and Commission of the                       to 29 March 1989 in the amount of DM 8 952,80,
                    European Communities                                  together with interest thereon at 8 % from 1 9 May
                                                                           1992, and jointly to pay the costs of the proceedings;
                         ( Case T-14/95 )
                            95/C 74/28                                2 . join the present action to that already pending in Case
                                                                          T-77/93 Hülseberg and Others v. Council and
                                                                           Commission and also stay the proceedings .
               (Language of the case: German)
                                                                      Pleas in law and main arguments
An action against the Council of the European Union and
Commission of the European Communities was brought                    The pleas in law and main arguments are similar to those in
before the Court of First Instance of the European                    Case T-20/94 .
Communities on 27 January 1995 by Josef Blum, Hallschlag
(Federal Republic of Germany), represented by Bernd
Meisterernst, Mechtild Düsing, Dietrich Manstetten, Frank
Schulze and Winfried Haneklaus, Rechtsanwälte, Munster,
with an address for service in Luxembourg at the Chambers
of Dupong & Associés, 14a Rue des Bains.                              Action brought on 6 February 1995 by Spyridoulia
                                                                      Alexopoulou against the Commission of the European
                                                                                Communities
The applicant claims that the Court should :
                                                                                (Case T-17/95 )
 1 . order the defendants jointly to pay to the applicant                                      ( 95/C 74/30 )
     SLOM III compensation for the period from 19 October
     1985 to 29 July 1993 in the amount of DM 29 355,23 ,                            (Language of the case: French)
     together with interest thereon at 8% from 19 May
     1992, and jointly to pay the costs of the proceedings;           An action against the Commission of the European
                                                                      Communities was brought before the Court of First
2 . join the present action to that already pending in Case           Instance of the European Communities on 6 February 1995
     T-77/93 Hülseberg and Others v. Council and                      by Spyridoulia Alexopoulou, residing in Brussels (Belgium),
     Commission and also stay the proceedings .                       represented by Constantin Nikis, of the Brussels Bar, with


title: Case T-618/13: Judgment of the General Court of 11 December 2014  — Oracle America v OHIM — Aava Mobile (AAVA CORE) (Community trade mark — Opposition proceedings — Application for Community word mark AAVA CORE — Earlier Community word mark JAVA and well-known mark within the meaning of Article 6a of the Paris Convention JAVA — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — No likelihood of association — Link between the signs — No similarity of the signs — Article 8(5) of Regulation No 207/2009)

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/38

         Judgment of the General Court of 11 December 2014 — Oracle America v OHIM — Aava Mobile (AAVA CORE)
   (Case T-618/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark AAVA CORE - Earlier Community word mark JAVA and well-known mark within the meaning of Article 6a of the Paris Convention JAVA - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - No likelihood of association - Link between the signs - No similarity of the signs - Article 8(5) of Regulation No 207/2009))
   (2015/C 034/45)
   Language of the case: English

      Parties

      Applicant: Oracle America, Inc. (Wilmington, Delaware, United States) (represented by: T. Heydn, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock and N. Bambara, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: Aava Mobile Oy (Oulu, Finland)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 11 September 2013 (Case R 1369/2012-2), relating to opposition proceedings between Oracle America, Inc. and Aava Mobile Oy.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action.

               2)

               Orders Oracle America, Inc. to pay the costs.

      (1)  OJ C 344, 23.11.2013.


title: Case C-318/04: Action brought on 27 July 2004 by the European Parliament against the Commission of the European Communities

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/32

         Action brought on 27 July 2004 by the European Parliament against the Commission of the European Communities
   (Case C-318/04)
   (2004/C 228/67)
   An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 27 July 2004 by the European Parliament, represented by H. Duintjer Tebbens and A. Caiola, acting as Agents, with an address for service in Luxembourg.
   The European Parliament claims that the Court should:

               —

               annul under Article 230 EC Commission Decision 2004/535/EC of 14 May 2004 (1);

               —

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

         Pleas in law and main arguments
   The European Parliament puts forward four pleas in support of its action, namely, misuse of powers by the Commission, breach of the fundamental principles of Directive 95/46/EC, breach of fundamental rights and breach of the principle of proportionality.
   In respect of misuse of powers, the Parliament argues that the Commission's decision was adopted ultra vires, without complying with the provisions laid down in the basic directive 95/46/EC on the protection of personal data and in breach of, inter alia, the first indent of Article 3(2) of Directive 95/46 on the exclusion of activities which fall outside the scope of Community law.
   The European Parliament stresses in addition the following aspects: the CBP (United States Bureau of Customs and Border Protection) is not a third country within the meaning of Article 25 of Directive 95/46, the decision on adequacy authorises transfers to other US governmental authorities as well as to third countries, the decision entails infringement of Article 13 of Directive 95/46 on exemptions from and restrictions on the principles on the processing of personal data (exemptions and restrictions reserved to the Member States), and on the basis of the decision, the CBP has direct access to PNR (Passenger Name Record) data, not provided for by the directive. In the light of the interdependence between the decision on adequacy and the agreement between the European Community and the United States, the decision must be considered a measure which is not appropriate for the objective pursued, namely to provide for transfers of PNR data.
   In its second plea, the European Parliament takes the view that the Commission's decision on adequacy also infringes the fundamental principles of Directive 95/46. In particular, the purpose of the processing referred to in the decision is incompatible with the purpose of the initial processing; there is no legal processing obligation; the principles of the basic directive are infringed as regards the processing of sensitive data, the right of access and related rights; the right to judicial protection is not guaranteed and the authorisation to transfer to other US authorities and other countries is incompatible with Directive 95/46.
   Thirdly, the European Parliament maintains that the Commission's decision on adequacy infringes fundamental rights, in particular the right to private life and the right to protection of personal data laid down in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as applied by the Court of Justice and the European Court of Human Rights.
   The Parliament's fourth plea alleges that the decision on adequacy also infringes the principle of proportionality, in particular on account of the fact that an excessive amount of PNR data can be transferred and those data can be kept by the US authorities for too long.

      (1)  Commission Decision 2004/535/EC of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the United States Bureau of Customs and Border Protection (OJ 2004 L 235, p. 11).


title: Joined Cases T-267/08 and T-279/08: Judgment of the General Court of 12 May 2011 — Région Nord-Pas-de-Calais and Communauté d'agglomération du Douasis v Commission (State aid — Construction of railway equipment — Repayable advances — Decision declaring the aid incompatible with the common market and ordering its recovery — Alteration of heads of claim — Rights of defence — Obligation to state reasons — State resources — Whether State held responsible — Criterion of private investor — Undertaking in difficulties)

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/19

         Judgment of the General Court of 12 May 2011 — Région Nord-Pas-de-Calais and Communauté d'agglomération du Douasis v Commission
   (Joined Cases T-267/08 and T-279/08) (1)

   (State aid - Construction of railway equipment - Repayable advances - Decision declaring the aid incompatible with the common market and ordering its recovery - Alteration of heads of claim - Rights of defence - Obligation to state reasons - State resources - Whether State held responsible - Criterion of private investor - Undertaking in difficulties)
   2011/C 186/34
   Language of the case: French

      Parties

      Applicants: Région Nord-Pas-de-Calais (represented by M. Cliquennois and F. Cavedon, lawyers) (Case T-267/08) and Communauté d’agglomération du Douasis (represented by M.Y. Benjamin and D. Rombi, lawyers) (Case T-279/08)

      Defendant: European Commission (represented by: C. Giolito and B. Stromsky, Agents)

      Re:

   Originally, application for annulment of Decision C(2008) 1089 final of the Commission of 2 April 2008 concerning State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail SA, and then application for annulment of Decision C(2010) 4112 final of the Commission of 23 June 2010 concerning State aid C 38/2007 implemented by France in favour of Arbel Fauvet Rail.

      Operative part of the judgment

   The Court:

               1.

               Declares that there is no longer any need to adjudicate on the applications for annulment of Decision C(2008) 1089 final of the Commission of 2 April 2008 concerning State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail SA;

               2.

               Dismisses the actions;

               3.

               Orders the European Commission to pay the costs, save those incurred by Région Nord-Pas-de-Calais and the Communauté d’agglomération du Douasis after they were sent Decision C(2010) 4112 final of the Commission of 23 June 2010 concerning State aid C 38/2007 (ex NN 45/2007) implemented by France in favour of Arbel Fauvet Rail and withdrawing Decision C(2008) 1089 final.

      (1)  OJ C 247, of 27.9.2008.


title: Reference for a preliminary ruling from the Hof van Cassatie van België by judgment of that court of 30 June 1997 in the case of Rijksdienst voor Pensioenen against Gerdina Lustig (Case C-244/97)

text:
No C 252/22                    EN                 Official Journal of the European Communities                                        16 . 8 . 97
Reference for a preliminary ruling from the Regeringsratt                    Reference for a preliminary ruling from the Hof van
by order of that court of 11 June 1997 in the case brought                   Cassatie van Belgie by judgment of that court of 30 June
by Skandia Insurance Company (publ), 103 50 Stockholm                        1997 in the case of Rijksdienst voor Pensioenen against
                                                                                Gerdina Lustig
                                Case C-241 /97)
                                                                                ( Case C-244/97 )
                                 ( 97/C 252/44
                                                                                ( 97/C 252/45
Reference has been made to the Court of Justice of the                       Reference has been made to the Court of Justice of the
European Communities by an order of the Regeringsratt                        European Communities by judgment of the Hof van
of 11 June 1997, which was received at the Court Registry                    Cassatie van Belgie ( Belgian Court of Cassation ) of 30 June
on 2 July 1997, for a preliminary ruling in the case                         1997, received at the Court Registry on 4 July 1997, for a
brought by Skandia Insurance Company ( publ ) on the                         preliminary ruling in the case of Rijksdienst voor
following questions:                                                         Pensioenen against Gerdina Lustig on the following
                                                                             question:
1 . Is it compatible with Article 18 ( 1 ) of Directive 73/
        239/EEC { l ), as amended by Article 26 of Directive                 Is Article 49 ( 1 ) ( b ) ( ii ) of Regulation ( EEC ) No 1408/71
        92/49/EEC (2 ) and with Article 21 ( 1 ) of Directive 79/            in conjunction with Article 45 of that Regulation to be
        267/EEC ( 3 ), as amended by Article 27 of Directive                 interpreted as meaning that, where the person concerned
        92/96/EEC (4), for national legislation to prescribe                 fulfils the conditions laid down by one legislation for
        that, so far as an insurance company's free assets ( i.e.            entitlement to an old-age pension, albeit a limited one,
        those assets not used to cover the technical provisions )            without having recourse to periods of insurance completed
        are concerned, the insurance company may not,                        under another legislation whose conditions of pension
        without special administrative authorization, own                    entitlement are not satisfied, the competent national
        more shares in a domestic or foreign joint-stock                     authority is nevertheless obliged to take into account
        company than corresponds to 5 % of the votes                         periods completed under the latter legislation where that
        attached to all the shares ?                                         could result in the award of a greater old-age pension up
                                                                             until such time as the conditions laid down under the
                                                                             latter legislation are fulfilled ?
If Question 1 is answered in the negative :
2.      Are the aforementioned Articles of the Directive of
        such a character, as regards clarity and so forth, that
        they have the consequence that a national court must                 Reference for a preliminary ruling from the Cour de
        disregard a national provision having the tenor                      Cassation, Belgium, by judgment of that court of 25 June
        described above when called upon to examine the task                 1997 in the case of Marcel Schoonbroodt, Marc
        of examining the permissibility of an insurance                      Schoonbroodt and Transports A. M. Schoonbroodt v.
        company's investments of its free assets ?                                                          Belgian State
                                                                                ( Case C-247/97)
(') First Council Directive ( 73/239/EEC ) of 24 July 1993 on the
       coordination of laws, regulations and administrative                                                ( 97/C 252/46 )
       provisions relating to the taking-up and pursuit of the business
       of direct insurance other than life assurance ( OJ No L 228 ,
       16 . 8 . 1973 , p. 3 ).
 ( 2 ) Council Directive ( 92/49/EEC) of 18 June 1992 on the                 Reference has been made to the Court of Justice of the
       coordination of laws, regulations and administrative                  European Communities by a judgment of the Cour de
       provisions relating to direct insurance other than life assurance      Cassation ( Court of Cassation ), Belgium, of 25 June 1997,
       and amending Directives 73/329/EEC and 88/357/EEC ( OJ No             which was received at the Court Registry on 7 July 1997,
       L 228 , 11 . 8 . 1992 , p. 1 ).                                        for a preliminary ruling in the case of Marcel
 ( 3 ) First Council Directive ( 79/267/EEC ) of 5 March 1979 on the
                                                                              Schoonbroodt, Marc Schoonbroodt and Transports A. M.
       coordination of laws, regulations and administrative
       provisions relating to the taking up and pursuit of the business       Schoonbroodt v. Belgian State, on the following questions:
       of direct life assurance ( OJ No L 63 , 13 . 3 . 1979 , p. 1 .).
 ( 4 ) Council Directive ( 92/96/EEC ) of 10 November 1992 on the
       coordination of laws, regulations and administrative                   Are tanks fixed to containers equipped with a
       provisions relating to direct life assurance and amending              refrigeration system and intended for long-distance road
       Directives 79/267/EEC and 90/61 9/EEC ( OJ No L 360, 9 . 12 .
                                                                              haulage to be regarded as ' standard' tanks within the
       1992, p. 1 ).
                                                                              meaning of Article 112 of Regulation ( EEC ) No 918/83
                                                                              setting up a Community system of reliefs from customs
                                                                              duty (*), as amended by Regulation ( EEC ) No 1315/88 ( 2),
                                                                              where :


title: Case T-750/15: Action brought on 22 December 2015 — Mitteldeutsche Braunkohlengesellschaft and Others v Commission

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/47

         Action brought on 22 December 2015 — Mitteldeutsche Braunkohlengesellschaft and Others v Commission
   (Case T-750/15)
   (2016/C 059/54)
   Language of the case: German

      Parties

      Applicants: Mitteldeutsche Braunkohlengesellschaft mbH (Zeitz, Germany), RWE Power AG (Essen, Germany), Vattenfall Europe Mining AG (Cottbus, Germany) (represented by: U. Karpenstein, K. Dingemann and M. Kottmann, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul Commission Decision C(2014) 5081 final of 23 July 2014 in the case State aid SA. 38632 (2014/N) (ex 2013/NN) — Germany — EEG 2014 — Reform of the Renewable Energy Law, in so far as it classified the regime for existing installations relating to self-sufficiency in Article 61(3) and (4) of the EEG 2014 as State aid and declared it in the second indent of point 5 (p. 75) to be compatible with the internal market only until 31 December 2017;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on two pleas in law.

               1.

               First plea in law, alleging a lack of selective favouring of certain undertakings
               By their first plea in law, the applicants claim that the contested decision wrongly defines the regime for existing installations relating to self-sufficiency in electricity (Art. 61(3) and (4) EEG 2014) as selective measures and therefore as State aid.

               2.

               Second plea in law, alleging a lack of State resources
               By their second plea in law, the applicants claim that the support for renewable energy financed by the EEG-surcharge is not received from State funds, but rather from private funds. Neither the collection nor the use of the EEG-surcharge takes place under the control of the State, as is required by the case-law. Moreover, the regime at issue is not a burden on the State treasury, since the entire amount of the EEG-surcharge is not reduced by the fact that the provision of self-sufficiency by means of existing installations is exempt from surcharges.


title: Case C-184/16: Request for a preliminary ruling from the Dioikitiko Protodikeio Thessalonikis (Greece) lodged on 1 April 2016 — Ovidiu-Mihaita Petrea v Ypourgos Esoterikon kai Dioikitikis Anasygrotisis (Ministry of Interior and Administrative Reconstruction)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/33

      Request for a preliminary ruling from the Dioikitiko Protodikeio Thessalonikis (Greece) lodged on 1 April 2016 — Ovidiu-Mihaita Petrea v Ypourgos Esoterikon kai Dioikitikis Anasygrotisis (Ministry of Interior and Administrative Reconstruction)
      (Case C-184/16)
      (2016/C 211/43)
      Language of the case: Greek

         Referring court

      Dioikitiko Protodikeio Thessalonikis (Greece)

         Parties to the main proceedings

         Applicant: Ovidiu-Mihaita Petrea

         Defendant: Ypourgos Esoterikon kai Dioikitikis Anasygrotisis

         Questions referred

                  1.

                  Are Articles 27 and 32 of Directive 2004/38/EC (1) to be interpreted, in the light of Articles 45 and 49 TFEU, and having regard to the procedural autonomy of the Member States and the principles of protection of legitimate expectations and good administration, as meaning that the withdrawal of a certificate of registration as a European Union citizen, previously granted, under Article 8(1) of [Greek] Decree 106/2007, to a national of another Member State, and the imposition on him of a measure for his removal from the host Member State, is required or permitted in circumstances where, although he had been registered in the national list of undesirable aliens and was the subject of an exclusion order on grounds of public policy and public security, that person again entered the Member State concerned and conducted a business, while failing to observe the procedure laid down in Article 32 of Directive 2004/38 for the submission of an application for the lifting of that exclusion order, when the latter (the exclusion order) was imposed on the self-sufficient ground of public policy which justifies the withdrawal of the certificate of registration of a citizen of a Member State?

                  2.

                  In the event of an affirmative answer to the first question, are such circumstances to be treated in the same way as circumstances where a European Union citizen is staying illegally in the territory of the host Member State, so that it is permissible, pursuant to Article 6(1) of Directive 2008/115/EC, (2) for the body which is competent to withdraw the certificate of registration as a Union citizen to issue a return order, given that (i) the registration certificate does not constitute, as is well established, evidence of a right of legal residence in Greece, and (ii) only third county nationals fall within the scope ratione personae of Directive 2008/115/EC?

                  3.

                  In the event of a negative answer to the first question, if the competent national authorities, acting within the framework of the procedural autonomy of the host Member State, were to withdraw, on grounds of public policy and public security, the registration certificate of a citizen of another Member State, which does not constitute evidence of a right of legal residence in Greece, and simultaneously impose, on that citizen, an order to return, could that be considered to involve, according to the correct legal classification, one and the same administrative act concerning administrative expulsion under Articles 27 and 28 of Directive 2004/38 subject to judicial review under the conditions laid down in those provisions, which lay down what is possibly the sole means of administrative removal of EU citizens from the territory of the host Member State?

                  4.

                  In the event that the answer to the first and second questions referred for a preliminary ruling is either affirmative or negative, is national legal practice compatible with the principle of effectiveness if that practice prohibits administrative authorities and thereafter courts with jurisdiction, which are seised of a case, from undertaking an examination, in the context of the withdrawal of a certificate of registration of a Union citizen or the imposition of a measure for the removal from the host Member State on the grounds of the continuing validity of an order excluding the national of another Member State from the Member State concerned, of the extent to which the procedural safeguards of the provisions in Articles 30 and 31 of Directive 2004/38 were observed in the issue of the exclusion order concerned?

                  5.

                  In the event of an affirmative answer to the fourth question, does it follow from Article 32 of Directive 2004/38 that the competent administrative authorities of the Member State are obliged to notify, in all cases, the national of another Member State concerned of the decision ordering his removal in a language which he understands, so that he is in a position properly to exercise the legal rights which he derives from the provisions concerned of the directive, irrespective of whether the relevant application has been submitted by him?

         (1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

         (2)  Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).


title: Case C-457/17: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 31 July 2017 — Heiko Jonny Maniero v Studienstiftung des deutschen Volkes eV

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/12

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 31 July 2017 — Heiko Jonny Maniero v Studienstiftung des deutschen Volkes eV
   (Case C-457/17)
   (2017/C 347/14)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellant: Heiko Jonny Maniero

      Respondent: Studienstiftung des deutschen Volkes eV

      Questions referred

               1.

               Is the award by a registered association of scholarships intended to promote projects for research and studies abroad covered by the concept of ‘education’ within the meaning of Article 3(1)(g) of Directive 2000/43/EC? (1)

               2.

               If Question 1 is to be answered in the affirmative:
               In the case of the award of scholarships referred to in Question 1, does the participation requirement relating to the passing of the First State Law Examination in Germany constitute indirect discrimination against an applicant within the meaning of Article 2(2)(b) of Directive 2000/43/EC where the applicant, who is a Union citizen, has indeed acquired a comparable qualification in a State which does not belong to the European Union, without the choice of this place of qualification being related to the ethnic origin of the applicant, but, on account of his residence in national territory and fluent command of German, had, in the same way as a national, the possibility of taking the First State Law Examination after studying law in national territory?
               Is any difference made by the fact that the objective pursued by the scholarship programme is, without being linked to any discriminatory characteristics, to provide law graduates in Germany with knowledge of foreign legal systems, experience of being abroad and knowledge of languages by promoting a project for research and studies abroad?

      (1)  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000 L 180, p. 22.


title: Case T-410/04: Action brought on 4 October 2004 by the Italian Republic against the Commission of the European Communities

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/29

         Action brought on 4 October 2004 by the Italian Republic against the Commission of the European Communities
   (Case T-410/04)
   (2005/C 19/63)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 4 October 2004 by the Italian Republic, represented by Danilo Del Gaizo, Avvocato dello Stato.
   The applicant claims that the Court should:

               —

               declare the contested decision void ab initio;

               —

               in the alternative, declare the contested decision void ab initio in so far as it reduces the Italian Republic's total allocation for the years 2000 to 2006 on the basis of Decision 1999/659, as amended by Decision 2000/426;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   The contested decision in this case is Commission Decision 2004/592/EC of 23 July 2004 [C(2004) 2837 final] amending Decision 1999/659/EC fixing an indicative allocation by Member State of the allocations under the European Agricultural Guidance and Guarantee Fund-Guarantee section for rural development measures for the period 2000 to 2006. (1)

   According to the applicant, the amendment contained in the contested decision not only adapts the allocation of Community funds to the Italian Republic for 2004 in respect of the expenditure forecasts submitted by the latter, but redetermines the total allocation of funds for the Italian Republic, reducing by about EUR 40 million – by setting a total allocation of EUR 4 473.2 million – the amount available under the ‘Berlin envelope’ (EUR 4 512.3 million).
   In support of its claims, the applicant pleads infringement of the principle of non-retroactivity. It argues that Regulation No 817/2004 (2) was adopted on 20 April 2004 and entered into force on 7 May 2004, long after expiry of the time-limit of 30 September laid down in Article 47(1) of Regulation No 445/2002 for the Member States to forward to the Commission the statement of expenditure incurred in 2003 and expenditure remaining to be disbursed by the end of that year, and the forecasts for 2004 and subsequent years. The Commission should therefore have determined the budget appropriations for 2004 on the basis of the provisions of Article 49 of Regulation No 445/2002, which was still in force on 30 September 2003, and not on the basis of Article 57 of Regulation No 817/2004. Accordingly, in 2004 the Commission was not entitled to adopt the contested decision, which relies on the new implementing rules of Regulation No 1257/1999 (3) as its legal basis, or make the relevant adjustment of the initial allocations by Member State defined in Decision 659/1999, as amended by Decision 426/2000, provided for by Article 57, cited above.
   In the alternative, even if it is held that Regulation 817/2004, and in particular Article 57 thereof in its entirety, was correctly applicable also to the forecasts provided by the Member States by 30 September, under Regulation No 445/2002, the applicant disputes that the Commission is authorised to revise the allocations laid down by Decision 1999/659, as amended by Decision 2000/426, by reducing the total allocation under the ‘Berlin envelope’ and, in any event, contends that that reduction could not include the Italian Republic. In that connection, the applicant alleges infringement of Article 46 of Regulation No 1257/1999 and of Article 57 of Regulation No 817/2004. The applicant maintains that the complete absence of any legal basis which would allow the reduction made in the contested decision shows that, in adopting that decision, the defendant completely disregarded the purpose of the Regulation underlying the measure, thereby also misusing its powers.
   In the further alternative, the applicant pleads infringement of the principle of the protection of legitimate expectations and of the duty to give a statement of the reasons on which a measure is based.

      (1)  OJ L 263 of 10.8.2004, p. 24.

      (2)  Commission Regulation (EC) No 817/2004 of 29 April 2004 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ L 153 of 30.4.2004, p. 30).

      (3)  Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ L 160 of 26.6.1999, p. 80).


title: Case T-239/09 P: Appeal brought on 16 June 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 31 March 2009 in Case F-146/07, Marcuccio v Commission

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/28

         Appeal brought on 16 June 2009 by Luigi Marcuccio against the order of the Civil Service Tribunal made on 31 March 2009 in Case F-146/07, Marcuccio v Commission
   (Case T-239/09 P)
   2009/C 193/45
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

      Other party to the proceedings: Commission of the European Communities

      Form of order sought by the appellant

   In any event:

               —

               Set aside in its entirety and without exception the order under appeal;

               —

               Declare that the action at first instance, in relation to which the order under appeal was made, was perfectly admissible in its entirety and without any exception whatsoever.

         In the main:

               —

               Allow in its entirety and without any exception whatsoever the relief sought at first instance, and order the Commission to reimburse the applicant in respect of all costs and fees incurred in relation to the present case at all stages of the proceedings.

         In the alternative:

               —

               Refer the case back to the Civil Service Tribunal, sitting in a different formation, for a fresh decision.

      Pleas in law and main arguments

   The present appeal has been brought against the order of 31 March 2009 in Case F-146/07 by which the Civil Service Tribunal (CST) dismissed, as partly inadmissible and partly unfounded, an action for annulment of the Commission’s decision not to follow up on the appellant’s request for an investigation into a postal package contaminated by anthrax, of which the applicant was a victim during the period when he was posted to the Commission’s delegation in Angola, as well as a claim for compensation in respect of the damage suffered as a result of that decision.
   In support of his appeal, the appellant claims that the CST erred in law in the case of a number of statements that it made concerning the inadmissibility and the unfounded nature of the appellant’s submissions at first instance; the appellant also claims misrepresentation and distortion of the facts.


title: Case T-197/10: Judgment of the General Court of 9 September 2011 — BVR v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich) (Community trade mark — Opposition Proceedings — Application for Community figurative mark Austria Leasing Gesellschaft m.b.H Mitglied der Raiffeisen-Bankengruppe Österreich — Earlier national figurative mark Raiffeisenbank — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/43

         Judgment of the General Court of 9 September 2011 — BVR v OHIM — Austria Leasing (Austria Leasing Gesellschaft m.b.H. Mitglied der Raiffeisen-Bankengruppe Österreich)
   (Case T-197/10) (1)

   (Community trade mark - Opposition Proceedings - Application for Community figurative mark Austria Leasing Gesellschaft m.b.H Mitglied der Raiffeisen-Bankengruppe Österreich - Earlier national figurative mark Raiffeisenbank - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 311/80
   Language of the case: German

      Parties

      Applicant: Bundesverband der Deutschen Volksbanken und Raiffeisenbanken e.V. (BVR) (Berlin, Germany) (represented by: I. Rinke, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Austria Leasing GmbH (Eschborn, Germany) (represented by: B. Joachim, lawyer)

      Re:

   Action brought for the annulment of the decision of the First Board of Appeal of OHIM of 3 February 2010 (Case R 248/2009-1), relating to opposition proceedings between the Bundesverband der Deutschen Volksbanken und Raiffeisenbanken e.V. (BVR) and Austria Leasing GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Bundesverband der Deutschen Volksbanken und Raiffeisenbanken e.V. (BVR) to pay the costs.

      (1)  OJ C 179, 3.7.2010.


title: Case C-121/08: Order of the President of the Court of 8 July 2008 — Commission of the European Communities v Hellenic Republic

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/32

         Order of the President of the Court of 8 July 2008 — Commission of the European Communities v Hellenic Republic
   (Case C-121/08) (1)

   (2008/C 285/57)

      Language of the case: Greek

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

      (1)  OJ C 116, 9.5.2008.


21.4.2001              EN                  Official Journal of the European Communities                                     C 118/23
        Removal from the register of Case C-367/99 (1)                       Removal from the register of Case C-463/99 (1)
                        (2001/C 118/40)                                                      (2001/C 118/43)
By order of 13 September 2000 the President of the Court of           By order of 26 September 2000 the President of the Court of
Justice of the European Communities has ordered the removal           Justice of the European Communities has ordered the removal
from the register of Case C-367/99: [reference for a preliminary      from the register of Case C-463/99: Commission of the
ruling from Landesgericht Korneuburg (Austria)]: Hugo BOSS            European Communities v Hellenic Republic.
AG v Coalle FA-93.
                                                                      (1) OJ C 47 of 19.2.2000.
( 1) OJ C 352 of 4.12.1999.
                                                                             Removal from the register of Case C-467/99 (1)
        Removal from the register of Case C-246/97 (1)
                                                                                (2001/C 118/44)
                        (2001/C 118/41)
                                                                      By order of 26 September 2000 the President of the Court of
By order of 19 September 2000 the President of the Court of           Justice of the European Communities has ordered the removal
Justice of the European Communities has ordered the removal           from the register of Case C-467/99: Commission of the
from the register of Case C-246/97: Portuguese Republic v             European Communities v Hellenic Republic.
Commission of the European Communities.
                                                                      (1) OJ C 47 of 19.2.2000.
(1) OJ C 271 of 6.9.1997.
                                                                              Removal from the register of Case C-47/00 (1)
        Removal from the register of Case    C-330/97 (1)
                                                                                (2001/C 118/45)
                        (2001/C 118/42)
                                                                      By order of 26 September 2000 the President of the Court of
By order of 19 September 2000 the President of the Court of           Justice of the European Communities has ordered the removal
Justice of the European Communities has ordered the removal           from the register of Case C-47/00: (reference for a preliminary
from the register of Case C-330/97: Portuguese Republic v             ruling from the Bundessozialgericht): Hasan Gevin v Bundesan-
Commission of the European Communities.                               stalt für Arbeit — Kindergeldkasse.
(1) OJ C 357 of 22.11.1997.                                           (1) OJ C 122 of 29.4.2000.