title: Case C-444/11 P: Appeal brought on 30 August 2011 by Team Relocations NV and others against the judgment of the General Court (Eighth Chamber) delivered on 16 June 2011 in Joined Cases T-204/08 and T-212/08, Team Relocations NV and others v Commission

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/9

         Appeal brought on 30 August 2011 by Team Relocations NV and others against the judgment of the General Court (Eighth Chamber) delivered on 16 June 2011 in Joined Cases T-204/08 and T-212/08, Team Relocations NV and others v Commission
   (Case C-444/11 P)
   2011/C 347/14
   Language of the case: English

      Parties

      Appellants: Team Relocations NV, Amertranseuro International Holdings Ltd, Trans Euro Ltd, Team Relocations Ltd

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside the judgment of the General Court (Eighth Chamber) of 16 June 2011, in Joined Cases T-204/08 and T-212/08,

               —

               in the event that the Court decides to apply Article 61, first paragraph, second sentence, of its Statute,

                           —

                           annul Article 1 of the Commission Decision of 11 March 2008 in Case COMP/38.543 — International removal services, insofar as it declares that Appellants infringed Article 81 EC and Article 53(1) EEA in the period January 1997- September 2003;

                           —

                           annul Article 2 of the same Decision in so far as it imposes on Appellants a fine of EUR 3,49 million;

                           —

                           in the alternative, substantially reduce the fine imposed on Appellants by the aforementioned Decision;

                           —

                           further in the alternative, annul Article 2 of the same Decision in so far as it holds Amertranseuro International Holdings Ltd jointly and severally liable for an amount of EUR 1 300,000;

                           —

                           further in the alternative, to order the Commission to disclose the factors which it has taken into account in awarding Interdean NV a 70 % reduction of the fine that otherwise would have been imposed on Interdean, and to subsequently allow Team Relocations an opportunity to explain in writing why these reasons also apply to its own situation,

               —

               in any event, order the costs of the proceedings to be borne by the Commission.

      Pleas in law and main arguments

   In support of the appeal, the applicants rely on nine pleas in law.
   First plea, violation of Article 101 TFEU and the Court of Justice’s case law on that provision, distortion of evidence, violation of the rules regarding the burden of proof and the duty to state reasons in so far as the judgment under appeal declares Team Relocations liable for the ‘single and continuous infringement’ referred to in Article 1 of the Decision between January 1997 and September 2003.
   Second plea, violation of point 13 of the Commission’s 2006 fining guidelines, violation of the rules regarding the burden of proof, the in dubio pro reo and nulla poena sine culpa principles in so far as the judgment under appeal holds that the basic amount of Appellants’ fine may be computed on the basis of turnover to which Team Relocations’ alleged infringement did non relate.
   Third plea, violation of the principle of equal treatment and the principle that penalties must be specific to the offender and violation of the Court’s case law giving effect to these principles, violation of the duty to state reasons and the rules regarding the burden of proof in so far as the judgment under appeal holds that the Decision could apply, with respect to Team relocations, a percentage of 17 % in calculating the basic amount of its fine.
   Fourth plea, violation of the duty to state reasons, the principle of proportionality and Articles 7 and 23 of Regulation 1/2003 (1) in so far as the judgment under appeal holds that the Decision could multiply Team Relocations’ percentage of the ‘value of sales’ by the number of years during which it participated in the infringement.
   Fifth plea, violation of the patere legem quam ipse fecisti principle and the duty to state reasons in so far as the judgment under appeal holds that the imposition of an additional amount of 17 % on the Team Relocations was justified.
   Sixth plea, violation of Article 101 TFEU of the Court of Justice’s case law on that provision, the duty to state reasons, the patere legem quam ipse fecisti principle and distortion of evidence, in so far as the judgment under appeal holds that the Decision correctly held that there exist no mitigating circumstances that warrant a substantial reduction of appellants’ fine.
   Seventh plea, violation of Article 101 TFEU, the principle of non-discrimination and the duty to state reason in so far as the judgment under appeal holds Amertranseuro International Holdings Ltd jointly and severally liable for an amount of EUR 1 300,000.
   Eighth plea, violation of the principle of proportionality and the duty to state reasons in so far as the judgment under appeal holds that the fine as imposed on Team Relocations satisfies the proportionality requirement.
   Ninth plea, violation of the principle of non-discrimination, the duty to state reasons and the patere legem quam ipse fecisti principle in as far the judgment under appeal rejects Team Relocations’ eighth plea and in as far as it rejects Team Relocations’ request to order the Commission to disclose the reasons on the basis of which it granted Interdean a 70 % reduction in its fine.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance), OJ L 1, p. 1.


C 184/56               EN                           Official Journal of the European Union                                     2.8.2003
Pleas in law and main arguments                                                    Removal from the register of Case T-377/02 (1)
The applicants in this case seek the annulment of the Commis-                                       (2003/C 184/117)
sion's decision changing the method of calculating annual
travel expenses to Greece.                                                                     (Language of the case: French)
The pleas in law and main arguments put forward by the
applicants in support of their application are similar to those             By order of 15 May 2003 the President of the Second
of the applicants in Cases T-221/02 (1) and T-44/03 (2).                    Chamber of the Court of First Instance of the European
                                                                            Communities ordered the removal from the register of Case
                                                                            T-377/02: ‘P’ v Commission of the European Communities.
(1) OJ C 247, 12.10.02, p. 17.
(2) OJ C 101, 26.04.03, p. 40.
                                                                            (1) OJ C 44 of 22.02.2003.
        Removal from the register of Case T-22/00 (1)
                         (2003/C 184/116)                                           Removal from the register of Case T-92/03 (1)
                    (Language of the case: Italian)                                                 (2003/C 184/118)
                                                                                (Language of the case: French)
By order of 23 May 2003 the President of the Fourth
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case                   By order of 12 May 2003 the President of the Second
T-22/00: Enrico Sabbioni v Commission of the European                       Chamber of the Court of First Instance of the European
Communities.                                                                Communities ordered the removal from the register of Case
                                                                            T-92/03: Luis Escobar Guerrero v Commission of the European
                                                                            Communities.
(1) OJ C 122 of 29.04.2000.
                                                                            (1) OJ C 112 of 10.05.2003.


title: Case T-26/06: Action brought on  25 January 2006  — Trioplast Wittenheim v Commission

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/14

         Action brought on 25 January 2006 — Trioplast Wittenheim v Commission
   (Case T-26/06)
   (2006/C 96/28)
   Language of the case: Swedish
   Parties

      Applicant: Trioplast Wittenheim AS (Wittenheim, France) (represented by: Tommy Pettersson, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               partially, annul Article 1(g) of the decision regarding the period during which the applicant is held responsible for the violation;

               —

               partially, annul Article 2(f) of the decision regarding the fine imposed on the applicant; in the alternative reduce the fine;

               —

               order the Commission to pay the applicant's costs.

         Pleas in law and main arguments
   The applicant appeals against the Commission's decision in Case COMP/F/38.354 — Industrial sacks (C(2005) 4634 final; hereinafter ‘the contested decision’) by which a fine of EUR 17.85 million is imposed on the applicant for participating in anticompetitive conduct in the market for industrial sacks in Belgium, Germany, Spain, France, Luxembourg and the Netherlands contrary to Article 81 EC.
   The applicant does not dispute its participation in anticompetitive conduct up to 23 March 1999, but ceased its infringement in March 1999 when the applicant's new owner, Trioplast Industrier, became aware of the anticompetitive conduct. According to the applicant, the Commission has thus wrongly assessed the duration of the company's infringement.
   Furthermore, the applicant argues, with regard to the gravity of the infringement, that, in comparison with the other companies involved, the Commission has imposed a basic amount which is too high by reference to the applicant's market share.
   In addition, in support of its claim, the applicant submits that the Commission's method of calculation for determination of the fine was incorrect and that another method should have been used, by which account should have been taken of the fact that the applicant's infringement consists of three distinct periods of time, since the applicant was owned by three different owners (St. Gobain, FLS and Trioplast Industrier) over the time during which the infringement occurred. According to the applicant, the Commission's method gives the result that FLS and Trioplast Industrier's overall joint and several liability exceeds the total fine imposed on the applicant and that in practice FLS and Trioplast Industrier are held jointly and severally liable also to pay for the period when neither company owned the applicant.
   Furthermore, the applicant takes the view that the Commission should have taken account of the fact that there are attenuating circumstances with regard to the applicant's infringement since the applicant was throughout a minor and passive participant in the infringement. Moreover, according to the applicant, the Commission did not take account of the 10 % rule in Regulation No 1/2003, (1) and the Commission should have granted the applicant leniency to a greater degree than was the case in the contested decision.
   Finally, the applicant claims that the Commission has failed to apply the principles of legal certainty and proportionality.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).


title: Case C-84/01: Reference for a preliminary ruling by the Corte Suprema di Cassazione, by order of that court of 11 December 2000 in the case of Istituto Nazionale Della Previdenza Sociale (INPS) v Anna Maria Venturi

text:
21.4.2001               EN                   Official Journal of the European Communities                                        C 118/17
Reference for a preliminary ruling by the Corte Suprema                 The applicant claims that the Court should:
di Cassazione, by order of that court of 11 December
2000 in the case of Istituto Nazionale Della Previdenza
             Sociale (INPS) v Anna Maria Venturi                        (1) declare that, by
                          (Case C-84/01)                                      —     failing to guarantee, with respect to the Federal
                                                                                Länder of Burgenland, Carinthia, Lower Austria,
                                                                                Salzburg and Vienna, the entitlement in law of
                         (2001/C 118/26)                                            natural and legal persons to free access to infor-
                                                                                mation requested concerning the environment, pur-
                                                                                suant to Article 3(1) of Council Directive
Reference has been made to the Court of Justice of the                              90/313/EEC of 7 June 1990 on the freedom of
European Communities by an order of the Corte Suprema di                            access to information on the environment (1), by
Cassazione of 12 December 2000, which was received at the                           granting such access in the form either of disclosure
Court Registry on 19 February 2001, for a preliminary ruling                        of the documents concerned or of the provision of
in the case of Istituto Nazionale Della Previdenza Sociale (INPS)                   copies thereof.,
v Anna Maria Venturi, on the following question:
                                                                              —     laying down, in the Federal Länder of Burgenland,
Is it permissible under Article 4(3) of Directive 80/987/EEC of                     Carinthia, Salzburg, Lower Austria and Vienna,
20 October 1980 (1) — which provides that, in order to avoid                        exceptions to the right of free access to information
the payment of sums going beyond the social objective of the                        which are not contained in Article 3(2) and (3) of
Directive, Member States may set a ceiling to the liability for                     the directive;
employees’ outstanding claims in respect of the last three
months of the employment relationship — to require sacrifice                  —     failing to ensure, with respect to the Federal Länder
of part of the claims of those who received pay in excess of                        of Burgenland, Carinthia, Lower Austria, Salzburg,
the ceiling and have received in the last three months of their                     Styria and Vienna, that within a period of two
employment relationship advances equal to or in excess of                           months the authorities either make the requested
that ceiling, whereas those who received pay below the ceiling                      information available or refuse the request, in
may then, through aggregation of any advances paid by the                           accordance with Article 3(4) of the directive;
employer with the payments made by the public body, secure
full satisfaction of their claims (or of a higher percentage
thereof)?                                                                     —     failing to ensure, with respect to the Federal Länder
                                                                                of Burgenland, Carinthia, Lower Austria, Salzburg
                                                                                and Vienna, that bodies with responsibilities for
(1) OJ L 283, 28.10.1980, p. 3.                                                     the environment and under the control of public
                                                                                authorities are obliged to provide information,
                                                                        the Republic of Austria has failed to fulfil its obligations under
                                                                        the said Directive 90/313/EEC;
                                                                        (2) order the Republic of Austria to pay the costs.
Action brought on 21 February 2001 by the Commission
of the European Communities against the Republic of                     Pleas in law and main arguments
                             Austria
                                                                        The pleas in law and main arguments are apparent from the
                          (Case C-86/01)                                claims made in the application. In the case of Austria, the
                                                                        time-limit for transposition of the directive in accordance with
                                                                        Article 168 of the Act of Accession expired on 1 January
                         (2001/C 118/27)                                1995.
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on              (1) OJ 1990 L 158, p. 56.
21 February 2001 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal Adviser,
of its Legal Service, with an address for service in Luxembourg
at the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre C 254, Kirchberg.


22.12.2001            EN                      Official Journal of the European Communities                                       C 369/15
The applicant claims that the Court should:                              Pleas in law and main arguments
—     annul the decision adopted by the appointing authority
      on 25 June 2001 and notified to the applicant on 3 July            The applicant contests the decision adopted in compliance
      2001 rejecting the complaint lodged by the applicant on            with the judgment of the Court of First Instance in Case
      19 March 2001 against the disciplinary decision of                 T-202/99 annulling the decision of the Commission not to
      19 December 2000 imposing on the applicant the                     promote the applicant in the 1998 promotions procedure.
      disciplinary measure of relegation by two steps, pursuant
      to Article 86(2)(D) of the Staff Regulations;                      In support of his application, the applicant pleads infringement
                                                                         of Article 45 of the Staff Regulations and breach of the
—     order the defendant to pay the costs.                              principle of equal treatment, as well as manifest error of
                                                                         assessment and breach of the principle of legitimate expec-
                                                                         tations.
Pleas in law and main arguments
In support of his application, the applicant claims infringement
of Article 21 of the Staff Regulations and manifest error
of assessment. According to the applicant, the documents
attributed to him in the context of the award of a contract for                 Removal from the Register of Case T-313/00 (1)
the security of Commission buildings were issued by a
hierarchical superior who was perfectly well aware of the                                         (2001/C 369/26)
situation. Accordingly, those documents cannot be attributed
to the applicant.                                                                           (Language of the case: French)
                                                                         By order of 13 June 2001, the Court of First Instance of
                                                                         the European Communities (Single Judge: M. Forwood), has
                                                                         ordered the removal from the Register of Case T-313/00,
Action brought on 19 October 2001 by Léon Rappe
                                                                         Sjoerd Feenstra v Commission of the European Communities.
    against Commission of the European Communities
                        (Case T-264/01)                                  (1) OJ C 355 of 9.12.00.
                        (2001/C 369/25)
                   (Language of the case: French)
                                                                                Removal from the Register of Case T-90/01 (1)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                        (2001/C 369/27)
European Communities on 19 October 2001 by Léon Rappe,
residing in Orp-Jauche (Belgium), represented by Jean-Noël                                 (Language of the case: German)
Louis and Véronique Peere, lawyers.
The applicant claims that the Court should:                              By order of 6 July 2001, the President of the Fourth Chamber
                                                                         of the Court of First Instance of the European Communities
—     annul the decision of the appointing authority of                  has ordered the removal from the Register of Case T-90/01,
      18 December 2000 not to promote the applicant to                   Christine Janush v European Central Bank.
      Grade A in the 1998 promotions procedure;
—     order the defendant to pay the costs.                              (1) OJ C 227 of 11.8.01.


title: Case T-160/99: Action brought on 8 July 1999 by Gunnar Svantesson and Others against the Council of the European Union

text:
2.10.1999              EN                     Official Journal of the European Communities                                      C 281/19
Pleas in law and main arguments                                          — declare that the applicant has been suffering from total
                                                                             permanent invalidity, making it impossible for him to
                                                                             carry out the duties corresponding to a post in his career
The applicant entered the service of the General Secretariat of              bracket, from 23 September 1998, the date of his request
the Council as a grade C 5 official on 1 November 1995.                      that he be treated as suffering from invalidity, or such
During the 1998 promotions procedure, the list of officials                  other date as the Court may determine;
eligible for promotion and the number of posts to be filled by
way of promotion were published by Staff Notice No 140/98                — order that an expert medical opinion be sought in order to
on 5 November 1998. Amongst the 124 officials eligible for                   determine whether the applicant is suffering from total
promotion from grade C 5, the applicant was in 43rd place in                 invalidity;
order of seniority, out of all the grade C 5 officials having
the requisite seniority under the Staff Regulations. Upon                — make such ruling as to costs as may be appropriate.
completion of the work of the advisory committee on category
C promotions, a list of officials proposed for promotion to
                                                                         Pleas in law and main arguments
grade C 4, containing 38 names was sent to the appointing
authority, which decided to act on it. The applicant’s name did
not appear on that list.                                                 By note dated 23 September 1998 the applicant submitted a
                                                                         request for the grant to him of an invalidity pension. In
                                                                         consequence of that request, the administration of the Court
In support of her application, the applicant pleads:                     of Auditors referred the matter to the Invalidity Committee,
                                                                         which concluded that the applicant was not suffering from
— infringement of Article 25 of the Staff Regulations and                any complaint which could be regarded as total permanent
     failure to provide statement of reasons;                            invalidity making it impossible for his to perform his duties.
                                                                         The appointing authority of the Court of Auditors, noting that
— infringement of Article 45 of the Staff Regulations;                   decision, rejected his request that he be retired on grounds of
— failure properly to carry out the promotions procedure;                invalidity.
— failure to observe the principle of equal treatment; and               In support of his application, the applicant maintains:
— manifest error of assessment.                                          — that his current state of health shows that the sick leave
                                                                             proposed by the Invalidity Committee has not brought
                                                                             about an improvement in his health;
                                                                         — that the various medical certificates obtained from several
                                                                             specialists show that the treatment received at the Mondorf
                                                                             health spa has had no palpable result, that no significant
                                                                             improvement is to be expected in the applicant’s physical
                                                                             condition and moreover, that, from an osteoarticular and
                                                                             spinal standpoint, the applicant needs beyond all doubt to
Action brought on 7 July 1999 by Bjarne Christiansen                         be retired from his duties on grounds of invalidity;
                 against the Court of Auditors
                                                                         — that the decision of the Invalidity Committee should be
                                                                             reviewed, having regard to a new medical certificate dated
                         (Case T-159/99)                                     10 May 1999 concluding that the treatment has not
                                                                             improved the applicant’s muscular condition.
                         (1999/C 281/37)
                   (Language of the case: French)
An action against the Court of Auditors was brought before               Action brought on 8 July 1999 by Gunnar Svantesson
the Court of First Instance of the European Communities on                 and Others against the Council of the European Union
7 July 1999 by Bjarne Christiansen, residing at Nittel (Ger-
many), represented by Alain Lorang, of the Luxembourg Bar,                                       (Case T-160/99)
with an address for service in Luxembourg at his Chambers,
51 Rue Albert 1er.                                                                               (1999/C 281/38)
The applicant claims that the Court should:                                                 (Language of the case: French)
— find that new factors have arisen since the Invalidity
     Committee adopted its decision on 30 October 1998;                  An action against the Council of the European Union was
                                                                         brought before the Court of First Instance of the European
— declare that the action brought by the applicant against               Communities on 8 July 1999 by Gunnar Svantesson, Monica
     the decision of the European Court of Auditors of 7 April           Hägg and Lena Hellsten, residing in Brussels, represented by
     1999, by which it rejected the complaint lodged against             Marc-Albert Lucas, of the Liège Bar (Belgium), with an address
     the decision adopted by the appointing authority of the             for service at the offices of Fiduciaire Myson SARL 30 Rue de
     Court of Auditors on 26 November 1998, is well founded;             Cessange.
 ---pagebreak--- C 281/20               EN                    Official Journal of the European Communities                                        2.10.1999
The applicants claim that the Court should:                             Action brought on 8 July 1999 by the company Naviga-
                                                                        zione Libera del Golfo against the Commission of the
— order, by way of measures of inquiry, the production of all                               European Communities
    documents relating to the work done by the selection
    board, including the tests, and the taking of evidence from
    Mr Fischer Holm, Mr Merilla and Mr Welander and the                                          (Case T-161/99)
    other candidates in the competition;
                                                                                (1999/C 281/39)
— annul all the steps taken in the competition;
— annul the decisions of the selection board in competition
    LA/62 not to admit the applicants to the oral test and not                             (Language of the case: Italian)
    to mark their optional tests;
                                                                        An action against the Commission of the European Communi-
— annul the Council’s decision of 8 April 1999 rejecting the            ties was brought before the Court of First Instance of the
    administrative complaint lodged by the applicants on                European Communities on 8 July 1999 by the company
    8 December 1998;                                                    Navigazione Libera del Golfo, represented by Salvatore Raven-
                                                                        na and Emiliano Amato, of the Naples and Rome Bars, with
— order the defendant to pay the costs.                                 an address for service in Massalubrense (NA) at the chambers
                                                                        of S. Ravenna, 2 Corso S. Agata.
Pleas in law and main arguments                                         The applicant claims that the Court should:
                                                                        — declare that the Commission has failed to fulfil its obli-
The applicants, all of whom are Swedish nationals and grade                  gations under Article 93 of the EC Treaty (now Article 88
LA 7 officials of the Council, took part in the Council’s internal           EC) by failing to adopt a decision on the complaint made
competition LA/62 based on tests, which was held with a view                 by the applicant on 20 February 1999 concerning aid
to filling three LA 5 posts of reviser/principal translator                  granted to the undertaking CA.RE.MAR (Napoli) by the
(Swedish mother tongue). By letter of 9 September 1998 the                   Italian Government;
selection board informed the applicants that it had decided not
to admit them to the oral test, on the ground that they had             — order the Commission to bear the applicant’s costs.
not obtained at least 60 % of the maximum marks provided
for by the competition notice in respect of the revision test.
Consequently, the optional tests which they had done were               Pleas in law and main arguments
not marked.
                                                                        The applicant in the present case is a maritime transport
In support of their application, the applicants plead:                  company operating high speed vessels (hydroplanes and
                                                                        catamarans) serving the islands in the Bay of Naples. It
— infringement of Article 3 of Annex III to the Staff Regu-             challenges the system of State aid introduced by Law No 684
    lations and failure to observe the principles of objectivity        of 20 December 1974 in so far as it relates specifically to
    and equality in the assessment of the candidates, first, in         CA.RE.MAR., the only company operating in the Bay of Naples
    that no member of the selection board had a perfect                 which benefits from such aid.
    knowledge of the target language, namely Swedish, and,
    second, in that the members of the selection board did not
    have a perfect command of the source languages, in                  According to the applicant, the subsidies in question are
    particular French and English, alternatively that an insuf-         unlimited and are intended to make up the operating losses
    ficient number of them possessed such a command;                    which the recipient — a public concern — registers every year;
                                                                        the result being that the aid enables the company to escape
— infringement of the essential rules governing the work of             bankruptcy which would otherwise be inevitable. In addition,
    the selection boeard and failure to observe the principle of        the aid in question is operating aid, which is clearly inconsistent
    equal treatment, inasmuch as two assessors lacked a perfect         with the Commission Communication on Community guide-
    command of all the source languages;                                lines on State aid for rescuing and restructuring firms in
                                                                        difficulty (1) and the Community guidelines on State aid to
— infringement of the essential rules governing the work of             maritime transport (2).
    the selection board and failure to observe the principle of
    objectivity in the assessment of candidates, such that the
    assessors, who were colleagues of the applicants, were able         On this point, it is asserted that, between 1992 and 1997, the
    to penetrate the anonymity attaching to the papers;                 amount of aid has averaged something in the region of ITL
                                                                        40 billion, whereas revenue from ticket sales is just a little over
— failure to comply with the competition notice, in that the            50 % of that figure.
    selection board instructed the assessors to allow only a
    limited number of candidates to proceed to take the oral            The applicant submitted its complaint on 20 February 1999.
    test;                                                               Because of the particular urgency of the matter, in the
                                                                        complaint itself the applicant requested the defendant to take
— irregularity in the composition of the selection board.               action within the period of two months laid down in
                                                                        Article 175 of the EC Treaty (now Article 232). Since no
                                                                        decision was adopted within that period, the applicant brought
                                                                        the present action.


title: Case C-2/06: Judgment of the Court (Grand Chamber) of 12 February 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Willy Kempter KG v Hauptzollamt Hamburg-Jonas (Export of cattle — Export refunds — Final administrative decision — Interpretation of a judgment of the Court — Effect of a preliminary ruling given by the Court after that decision — Review and withdrawal — Time-limits — Legal certainty — Principle of cooperation — Article 10 EC)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/3

         Judgment of the Court (Grand Chamber) of 12 February 2008 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Willy Kempter KG v Hauptzollamt Hamburg-Jonas
   (Case C-2/06) (1)

   (Export of cattle - Export refunds - Final administrative decision - Interpretation of a judgment of the Court - Effect of a preliminary ruling given by the Court after that decision - Review and withdrawal - Time-limits - Legal certainty - Principle of cooperation - Article 10 EC)
   (2008/C 79/03)
   Language of the case: German
   Referring court
   Finanzgericht Hamburg
   Parties to the main proceedings

      Claimant: Willy Kempter KG

      Defendant: Hauptzollamt Hamburg-Jonas
   Re:
   Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 10 of the EC Treaty as interpreted by the judgment of the Court in Case C-453/00 Kühne & Heitz [2004] ECR I-837 — Review and amendment by an administrative body of an administrative decision by it that has become final in order to take account of the interpretation of the relevant Community provision given in the meantime in a judgment of the Court although the person to whom the decision was addressed had not relied on infringement of that provision at the time of the initial judicial proceedings and lodged its application for review only 19 months after that judgment was delivered
   Operative part of the judgment

               1.

               In the context of a procedure before an administrative body for review of an administrative decision that became final by virtue of a judgment, delivered by a court of final instance, which, in the light of a decision given by the Court subsequent to it, was based on a misinterpretation of Community law, Community law does not require the claimant to have relied on Community law in the legal action under domestic law which he brought against that decision.

               2.

               Community law does not impose any limit in time for making an application for review of an administrative decision that has become final. The Member States nevertheless remain free to set reasonable time-limits for seeking remedies, in a manner consistent with the Community principles of effectiveness and equivalence.

      (1)  OJ C 60, 11.3.2006.


title: Action brought on 12 May 1997 by the Commission of the European Communities against the Portuguese Republic (Case C-183/97)

text:
28 . 6 . 97          EN                  Official Journal of the European Communities                                 No C 199/ 17
The maritime agreement between the Belgo-Luxembourg                 Infringement of Council Regulation ( EEC )
Economic Union and Malaysia, signed at Kuala Lumpur                 No 1956 / 88 ( 2 ), as amended by Council
on 12 February 1985 , contains a cargo-sharing                      Regulation ( EC ) No 3067 / 95 ( 3 ) :
arrangement. Concluded by Belgium in the name of the
Union in accordance with Article 31 of the Treaty
establishing the Belgo-Luxembourg Economic Union, the               the contested provision also infringes paragraph 10 ( iv ) of
agreement entered into force on 17 August 1987 and is a             the Annex to the above regulation, which also provides
future agreement covered by Article 5 of the regulation,            that 'a NAFO inspector from another Contracting Party
with which it is incompatible.                                      may, subject to the consent of the Contracting Party of the
                                                                    vessel, board the vessel as it is proceeding to port, may
                                                                    remain on board the vessel as it proceeds to port and may
O OJ No L 378 , 31 . 12 . 1986, p . 1 .
                                                                    be present during the inspection of the vessel in port.' But,
                                                                    when Article 4 of Council Regulation ( EEC ) No 1956/88
                                                                    empowers the Commission to adopt implementing
                                                                    measures under the Management Committee procedure, it
                                                                    does not allow it in any circumstances to approve
                                                                    provisions which are contrary to the Regulation which it
Action brought on 12 May 1997 by the Kingdom of Spain               purports to implement.
     against Commission of the European Communities
                       ( Case C-l 79/97                             H OJ No L 77, 19 . 3 . 1997, p. 5 .
                                                                    ( 2 ) OJ No L 175 , 6 . 7. 1988 , p. 1 .
                         ( 97/C 199/32 )                            ( 3 ) OJ No L 329, 30 . 12 . 1995 , p . 1
An action against the Commission of the European
Communities was brought before the Court of Justice on
12 May 1997 by the Kingdom of Spain, represented by
Rosario Silva de la Puerta, with an address for service in
Luxembourg at the Spanish Embassy, 4-6 Boulevard                    Action brought on 12 May 1997 by the Commission of the
E. Servais .                                                            European Communities against the Portuguese Republic
                                                                                ( Case C-183/97)
The applicant claims that the Court of Justice should:
                                                                                97/C 199/33 )
— annul Article 4a ( 6 ) of Commission Regulation ( EEC )
     No 2868/88 establishing detailed rules for the                 An action against the Portuguese Republic was brought
     application of the Joint International Inspection              before the Court of Justice of the European Communities
     Scheme adopted by the North-West Atlantic Fisheries            on 12 May 1997 by the Commission of the European
     Organization, as modified by Commission Regulation             Communities, represented by Francisco de Sousa Fialho,
     ( EC ) No 494/97 H of 18 March 1997, and                       of its Legal Service, acting as Agent, with an address for
                                                                    service in Luxembourg at the office of Carlos Gomez de la
— order the Commission to pay the costs .                           Cruz, Wagner Centre, Kirchberg.
Pleas in law and main arguments adduced in support:                 The applicant claims that the Court should:
Infringement of Annex I , point II ( 9 ) ( e ) ( iv )               — declare that, by failing to adopt all the laws,
of the Convention between the Community                                    regulations or administrative provisions necessary to
and Canada on fishing under the NAFO                                       comply with Council Directive 80/68/EEC of
arrangements :                                                             17 December 1979 on the protection of groundwater
                                                                           against pollution caused by certain dangerous
                                                                           substances ('), in particular with respect to the
according to that Convention, for a NAFO inspector of
                                                                           obligations arising from Articles 8 , 9, 10, 11 and 15
another Contracting Party to take part in an inspection
                                                                           thereof, the Portuguese Republic has failed to fulfil its
carried out in port, the consent is required of the
Contracting Party whose flag the vessel is flying. There is                obligations under the third paragraph of Article 189 of
thus a clear contradiction between the content of the                      the EC Treaty and Article 21 ( 1 ) of Directive 80/68/
                                                                           EEC ,
contested regulation, which does not require the consent
to be obtained of the Contracting Party whose flag the
vessel is flying, and the Convention on which it is based.          — declare, in the alternative, that by failing to inform the
An internal Community provision cannot override the                        Commission       forthwith        of such measures,  the
provisions of an international commitment. The primacy                     Portuguese Republic has failed to fulfil its obligations
of international agreements concluded by the Community                     under the abovementioned provisions;
over instruments of secondary Community law means that
the latter must be interpreted in accordance with those
agreements .                                                        — order the Portuguese Republic to pay the costs .
 ---pagebreak--- No C 199/ 18              EN                   Official Journal of the European Communities                                   28 . 6 . 97
Pleas in law and main arguments adduced in support:                                 Removal from the register of C-282/94 ( ')
                                                                                ( 97/C 199/35 )
The mandatory nature of the provisions of the third
paragraph of Article 189 and the first paragraph of                       By order of 17 April 1997, the President of the Court of
Article 5 of the EC Treaty requires Member States to                      Justice of the European Communities has ordered the
adopt the measures necessary to transpose directives                      removal from the register of Case C-282/94 : French
addressed to them into their domestic law before the
                                                                          Republic v. Commission of the European Communities .
expiry of the period prescribed for doing so and forthwith
to inform the Commission thereof. That period, which is
                                                                          (') OJ No C 351 , 10 . 12 . 1994 .
laid down in Article 21 of the Directive, expired without
the Portuguese Republic having brought into force the
necessary provisions.
H OJNoL20, 26 . 1 . 1980 , p . 43 .
                                                                                Removal from the register of C- 174/95 ( ] )
                                                                                97/C 199/36 )
                                                                          By order of 7 March 1997, the President of the Court of
Action brought on 16 May 1997 by the Commission of                        Justice of the European Communities ordered the removal
the European Communities against the Kingdom of                           from the register of Case C-l 74/95 ( Reference for a
                                   Belgium                                preliminary ruling from the Pretura Circondariale di
                                                                          Roma, Sezione Distaccata di Tivoli ( Rome District
                             ( Case C-190/97 )
                                                                          Magistrates' Court, Tivoli Division )): criminal proceedings
                               ( 97/C 199/34 )                            against Siro Mattei .
                                                                          ( ] ) OJ No C 208 , 12 . 8 . 1995 .
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities
on 16 May 1997 by the Commission of the European
Communities, represented by Gotz zur Hausen, acting as
Agent, with an address for service in Luxembourg at the
office of Carlos Gomez de la Cruz, Wagner Centre,                                    Removal from the register of C-175/95 (')
Kirchberg.
                                                                                ( 97/C 199/37 )
The Commission of the European Communities claims
that the Court should :                                                    By order of 7 March 1997, the President of the Court of
                                                                          Justice of the European Communities ordered the removal
                                                                           from the register of Case C-175/95 ( Reference for a
— declare that, by failing to adopt the laws, regulations                  preliminary ruling from the Pretura Circondariale di
       and administrative provisions necessary to comply                   Roma, Sezione Distaccata di Tivoli ( Rome District
       with     Commission          Directives    93/72/EEC ( l ) . of     Magistrates' Court, Tivoli Division )): criminal proceedings
       1 September 1993 and 93/101 /EC (2 ) of 11 November                 against Bruno Belli .
       1993 adapting to technical progress for the 19th and
       20th time respectively Council Directive 67/548/EEC                 H OJ No C 208 , 12 . 8 . 1995 .
       on the approximation of the laws, regulations and
       administrative provisions relating to the classification,
       packaging and labelling of dangerous substances ( 3 ),
       the Kingdom of Belgium has failed to fulfil its
       obligations under those Directives, and
                                                                                Removal from the register of C-l 76/95 (')
 — order the Kingdom of Belgium to pay the costs .                                                       ( 97/C 199/38 )
 Pleas in law and main arguments adduced in support:
                                                                           By order of 7 March 1997, the President of the Court of
                                                                           Justice of the European Communities ordered the removal
 The pleas in law and main arguments are similar to those                  from the register of Case C-l 76/95 ( Reference for a
 put forward in Case C-l 86/97: the relevant time-limits                   preliminary ruling from the Pretura Circondariale di
 expired on 1 July 1994 and 1 January 1995 respectively.                   Roma, Sezione Distaccata di Tivoli ( Rome District
                                                                           Magistrates' Court, Tivoli Division )): criminal proceedings
 (') OJ No L 258 , 16 . 10 . 1993 , p . 29 .                               against Armando Scrocca .
 ( 2 ) OJ No L 13 , 15 . 1 . 1994 , p . 1 .
 ( 3 ) OJ, English Special Edition 1967, p. 234 .                          (') OJ No C 208 , 12 . 8 . 1995 .


title: Case C-386/05: Judgment of the Court (Fourth Chamber) of 3 May 2007 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Color Drack GmbH v Lexx International Vertriebs GmbH (Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Regulation (EC) No 44/2001 — Special jurisdiction — First indent of Article 5(1)(b) — Court for the place of performance of the contractual obligation in question — Sale of goods — Goods delivered in different places within a single Member State)

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/4

         Judgment of the Court (Fourth Chamber) of 3 May 2007 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Color Drack GmbH v Lexx International Vertriebs GmbH
   (Case C-386/05) (1)

   (Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Regulation (EC) No 44/2001 - Special jurisdiction - First indent of Article 5(1)(b) - Court for the place of performance of the contractual obligation in question - Sale of goods - Goods delivered in different places within a single Member State)
   (2007/C 140/07)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: Color Drack GmbH

      Defendant: Lexx International Vertriebs GmbH
   Re:
   Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Special jurisdiction — Place to which goods were delivered under a contract of sale — Multiple places of delivery
   Operative part of the judgment
   The first indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as applying where there are several places of delivery within a single Member State. In such a case, the court having jurisdiction to hear all the claims based on the contract for the sale of goods is that for the principal place of delivery, which must be determined on the basis of economic criteria. In the absence of determining factors for establishing the principal place of delivery, the plaintiff may sue the defendant in the court for the place of delivery of its choice.

      (1)  OJ C 10, 14.1.2006.


title: Case C-163/06 P: Appeal brought on  27 March 2006  by the Republic of Finland against the order made on  9 January 2006  in Case T-177/05 Republic of Finland v Commission of the European Communities

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/6

         Appeal brought on 27 March 2006 by the Republic of Finland against the order made on 9 January 2006 in Case T-177/05 Republic of Finland v Commission of the European Communities
   (Case C-163/06 P)
   (2006/C 154/12)
   Language of the case: Finnish
   Parties

      Appellant: Republic of Finland (Agent: E. Bygglin)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               set aside the order of the Court of First Instance of the European Communities of 9 January 2006 in Case T-177/05 Republic of Finland v Commission of the European Communities and declare Finland's action under Article 230 EC admissible and remit the main action to the Court of First Instance of the European Communities, in which the Commission should be ordered to reimburse Finland also the costs incurred in the appeal proceedings.

         Pleas in law and main arguments
   Finland submits that in its order the Court of First Instance infringed Community law within the meaning of Article 58 of the Statute of the Court of Justice.
   Finland submits that the Court of First Instance erred in law in considering that the contested letters of the Commission did not contain a decision amenable to an action under Article 230 EC.
   In Finland's view, the contested letters of the Commission contain a decision amenable to an action under Article 230 EC.
   By the contested decision the Commission in fact denied Finland the opportunity to make a conditional payment within the meaning of case-law of the Court of Justice.
   The contested decision thus has binding legal effects for Finland which affect Finland's interests and clearly change Finland's legal position, as required by the case-law concerning the application of Article 230 EC. In addition, the contested decision caused a loss of rights for Finland and is thus manifestly adverse to Finland.


title: Case C-348/16: Request for a preliminary ruling from the Tribunale di Milano (Italy) lodged on 22 June 2016 — Sacko Moussa v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/28

         Request for a preliminary ruling from the Tribunale di Milano (Italy) lodged on 22 June 2016 — Sacko Moussa v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano
   (Case C-348/16)
   (2016/C 343/40)
   Language of the case: Italian

      Referring court

   Tribunale di Milano

      Parties to the main proceedings

      Applicant: Sacko Moussa

      Defendant: Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano

      Question referred

   Must Directive 2013/32/EU (1) (in particular Articles 12, 14, 31 and 46) be interpreted as permitting a procedure, such as the Italian procedure (under Article 19(9) of Legislative Decree No 150 of 2011), whereby a judicial authority seised by an asylum-seeker — whose application has been rejected by the administrative authority responsible for considering applications for asylum after it has conducted a full examination, including an interview — may, in cases where the application for judicial review is manifestly unfounded and the administrative authority’s rejection of the application is thus incontrovertible, dismiss the application for judicial review without preparatory inquiries and without being required to afford the applicant a further opportunity to be heard?

      (1)  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).


title: Case C-90/06: Order of the President of the Court of 22 November 2006 — Commission of the European Communities v Portuguese Republic

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/25

         Order of the President of the Court of 22 November 2006 — Commission of the European Communities v Portuguese Republic
   (Case C-90/06) (1)

   (2006/C 331/50)

      Language of the case: Portuguese

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

      (1)  OJ C 86, 8.4.2006.


title: Case C-268/01: Reference for a preliminary ruling from the Verwaltungsgericht Weimar by order of that court of 23 May 2001 in the case of Agrargenossenschaft Alkersleben e.G. v Freistaat Thüringen

text:
29.9.2001             EN                     Official Journal of the European Communities                                          C 275/5
Reference for a preliminary ruling by the Hoge Raad der                       territory (Thuringia) which, under the direction of the
Nederlanden, by judgment of 18 May 2001, in the case of                       manager of the holding, has been produced from its cows
Préservatrice Foncière T.I.A.R.D. Compagnie d’Assuran-                        installed in leased facilities in the accession territory
ces against the State of the Netherlands (Ministry of                         (Mecklenburg-Vorpommern)?
                            Finance)
                        (Case C-266/01)                                 2.    Or is the milk quantity thus acquired to be imputed to
                                                                              the provisionally allocated reference quantity of the
                        (2001/C 275/08)                                       lessor farmer who is himself partly producing and the
                                                                              provisionally allocated milk reference quantity withdrawn
Reference has been made to the Court of Justice of the                        in favour of Thuringia where, as in this case, federal land
European Communities, by judgment of the Hoge Raad der                        borders divide the part of the holding to which the
Nederlanden (Supreme Court of the Netherlands) of 18 May                      reference quantity was allocated from the part of the
2001, which was received at the Court Registry on 5 July                      holding in which the milk is produced and, in contradis-
2001, for a preliminary ruling in the case of Préservatrice                   tinction to the situation in the Ballmann case, cited above,
Foncière T.I.A.R.D. Compagnie d’Assurances v the State of the                 the holding or part of the holding to which the milk
Netherlands (Ministry of Finance) on the following questions:                 reference quantity was provisionally allocated is maintai-
1.    Is a claim lodged by the State under a private-law contract             ned only, as it were, as the holding’s head office and
      of suretyship which it has concluded in fulfilment of a                 produces and delivers only a proportion of less than
      condition determined by it pursuant to Article 6(1) of the              5 % of the milk reference quantity (dairy herd/milk
      1975 TIR Convention, and therefore in exercise of its                   production)?
      public powers, to be regarded as a civil or commercial
      matter within the meaning of Article 1 of the Brussels            3.    Is it material to the reply to these questions that the
      Convention on Jurisdiction and the Enforcement of                       holding producing the milk was formerly in the territory
      Judgments in Civil and Commercial matters?                              of the GDR but that this territory was transferred to
                                                                              Niedersachsen (Lower Saxony) by state treaty between
2.    Must proceedings which are brought by the State and                     the two länder of the Federal Republic of Germany known
      which have as their subject-matter a private-law contract               as Niedersachsen and Mecklenburg-Vorpommern?
      of suretyship be regarded as a customs matter within the
      meaning of Article 1 of the Brussels Convention on
      Jurisdiction and the Enforcement of Judgments in Civil            (1) OJ L 405, 31.12.1992, p. 1.
      and Commercial Matters, on the ground that pleas may              (2) OJ L 160, 26.6.1999, p. 73.
      be put forward by the defendant which necessitate an              (3) ECR I-25 [1991].
      investigation into, and a ruling on, the existence and
      content of the customs debts to which that contract
      relates?
Reference for a preliminary ruling from the Verwaltungs-                References for preliminary rulings by the Tribunale di
gericht Weimar by order of that court of 23 May 2001                    L’Aquila by orders of 20 June 2001 in the case of Flora
in the case of Agrargenossenschaft Alkersleben e.G. v                   Panepucci v Rina Iannarelli (Case C-269/01) and in that of
                      Freistaat Thüringen                                  Attilio Maria Cecchini v Mario Basile (Case C-270/01)
                                                                                (Cases C-269/01 and C-270/01)
                        (Case C-268/01)
                                                                                (2001/C 275/10)
                        (2001/C 275/09)
                                                                        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 orders of 20 June 2001 by the
European Communities by an order of the Verwaltungsgericht
                                                                        Tribunale di L’Aquila (District Court, L’Aquila), which were
(Administrative Court), Weimar, of 23 May 2001, which was
                                                                        received at the Court Registry on 6 July 2001, for preliminary
received at the Court Registry on 6 July 2001, for a preliminary
                                                                        rulings in the cases of Flora Panepucci v Rina Iannarelli and
ruling in the case of Agrargenossenschaft Alkersleben e.G. v
                                                                        Attilio Maria Cecchini v Mario Basile on the following
Freistaat Thüringen on the following questions:
                                                                        questions:
1.    Is Article 9(c) of Regulation (EEC) No 3950/92 (1)
      (amended by Regulation (EC) No 1256/99 (2)), or other             (1) Is the provision of binding minimum tariffs contrary to
      provisions concerning guaranteed quantities of milk, to                 free competition on the ground that it prevents the free
      be interpreted, by reference to Case C-341/89                           fixing of fees for a lawyer’s services, as provided for under
      Ballmann (3), as meaning that in the case of a holding or               Article 81(1)(a) EC, and does it also have the effect
      part of a holding in the territory of the former GDR a                  of reinforcing the compartmentalisation of markets at
      milk quantity is also to be imputed to the reference                    national level, thereby hindering the economic integration
      quantity provisionally allocated to it in the accession                 intended by the Treaty?


title: Case C-484/08: Judgment of the Court (First Chamber) of 3 June 2010 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc) (Directive 93/13/EEC — Consumer contracts — Terms defining the main subject-matter of the contract — Assessment by the courts as to their unfairness — Excluded — More stringent national provisions designed to afford a higher level of consumer protection)

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/6

         Judgment of the Court (First Chamber) of 3 June 2010 (reference for a preliminary ruling from the Tribunal Supremo (Spain)) — Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc)
   (Case C-484/08) (1)

   (Directive 93/13/EEC - Consumer contracts - Terms defining the main subject-matter of the contract - Assessment by the courts as to their unfairness - Excluded - More stringent national provisions designed to afford a higher level of consumer protection)
   2010/C 209/07
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicant: Caja de Ahorros y Monte de Piedad de Madrid

      Defendant: Asociación de Usuarios de Servicios Bancarios (Ausbanc)

      Re:

   Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Articles 2, 3(1)(g) and 4(1) EC and of Articles 4(2) and 8 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1995 L 95, p. 29) — Stricter national provisions to guarantee the consumer a higher level of protection — Review of terms defining the main subject matter of the contract or the adequacy of the price and remuneration as against the services or goods supplied.

      Operative part of the judgment

               1.

               Articles 4(2) and 8 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which authorises a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language;

               2.

               Articles 2 EC, 3(1)(g) EC and 4(1) EC do not preclude an interpretation of Articles 4(2) and 8 of Directive 93/13 according to which Member States may adopt national legislation which authorises a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language.

      (1)  OJ C 19, 24.01.2009.


title: Case T-10/02: Judgment of the Court of First Instance of 6 June 2006 — Girardot v Commission (Staff case — Members of the temporary staff — Illegal rejection of candidature — Annulment — Reinstatement of the situation existing prior to the illegality — Fair financial compensation — Loss of the opportunity to take up a vacant post — Equitable assessment)

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/16

         Judgment of the Court of First Instance of 6 June 2006 — Girardot v Commission
   (Case T-10/02) (1)

   (Staff case - Members of the temporary staff - Illegal rejection of candidature - Annulment - Reinstatement of the situation existing prior to the illegality - Fair financial compensation - Loss of the opportunity to take up a vacant post - Equitable assessment)
   (2006/C 190/27)
   Language of the case: French
   Parties

      Applicant: Marie-Claude Girardot (L'Haÿ-les-Roses, France) (represented by: N. Lhoëst and É. Schietere de Lophem, lawyers )

      Defendant: Commission of the European Communities (represented by: initially F. Clotuche-Duvieusart, L. Lozana-Palacios and H. Tserepa-Lacombe, then F. Clotuche-Duvieusart and H. Tserepa-Lacombe, agents)
   Re:
   Setting of the amount of fair financial compensation payable by the Commission to Ms Girardot pursuant to the judgment of the Court of First Instance of 31 March 2004 in Case T-10/02 Girardot v Commission (ECR-SC I-A-109 and II-483)
   Operative part of the judgment
   The Court:

               1.

               Sets the amount of financial compensation payable by the Commission to Ms Marie-Claude Girardot pursuant to the judgment of the Court of First Instance of 31 March 2004 in Case T-10/02 Girardot v Commission at EUR 92 785, together with interest payable from 6 September 2004, at the rate set by the European Central Bank for main refinancing operations, plus two percentage points;

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 68, 13.3.2002.


title: Case T-202/04: Action brought on 27 May 2004 by Madaus Aktiengesellschaft against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/22

         Action brought on 27 May 2004 by Madaus Aktiengesellschaft against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-202/04)
   (2004/C 201/45)
   Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure - language in which the application was submitted: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 27 May 2004 by Madaus Aktiengesellschaft, Köln, (Germany), represented by I. Valdelomar Serrano, lawyer.
   The Optima Health Limited was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               recognise that the OHIM made a judicial error when issuing the contested decision;

               —

               annul the contested decision.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               Optima Healthcare Ltd, changed to The Optimal Health Ltd.

               Community trade mark sought:

               The word mark ‘ECHINAID’ for goods in class 5 (vitamins, food supplements, herbal preparations, pharmaceutical and medical preparations) (CTM application No 1666239)

               Proprietor of mark or sign cited in the opposition proceedings:

               Madaus AG

               Mark or sign cited in opposition:

               The international trade mark registration of the word mark ‘ECHINACIN’ for goods in class 5 (chemical pharmaceuticals)

               Decision of the Opposition Division:

               Rejection of the opposition

               Decision of the Board of Appeal:

               Dismissal of the appeal brought by Madaus

               Pleas in law:

               The applicant submits that the Board of Appeal erred in applying the concept of relevant territory and relevant public. The applicant also claims that the prefix Echina is not descriptive and that there is a likelihood of confusion between the marks.


title: Judgment of the Court of First Instance of 8 July 2004 in Joined Cases T-67/00, T-68/00, T-7100 and T-78/00: JFE Engineering Corp and Others v Commission of the European Communities (Cartels — Market in seamless steel tubes and pipes — EFTA — Powers of the Commission — Infringement — Fines)

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/13

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 8 July 2004
   in Joined Cases T-67/00, T-68/00, T-7100 and T-78/00: JFE Engineering Corp and Others v Commission of the European Communities (1)

   (Cartels - Market in seamless steel tubes and pipes - EFTA - Powers of the Commission - Infringement - Fines)
   (2004/C 239/27)
   Language of the case: English
   In Joined Cases T-67/00, T-68/00, T-7100 and T-78/00: JFE Engineering Corp., formerly NKK Corp., established in Tokyo (Japan), represented initially by M. Smith and C. Maguire, solicitors, and subsequently by A. Vandencasteele and V. Dehin, lawyers, and A.-L. Marmagioli, solicitor, with an address for service in Luxembourg, Nippon Steel Corp., established in Tokyo, represented by J.-F. Bellis and K. Van Hove, lawyers, with an address for service in Luxembourg, JFE Steel Corp., formerly Kawasaki Steel Corp., established in Tokyo, represented by A. Vandencasteele, lawyer, with an address for service in Luxembourg, Sumitomo Metal Industries Ltd, established in Tokyo, represented by C. Vajda QC, G. Sproul and F. Weitzman, solicitors, with an address for service in Luxembourg, against Commission of the European Communities (Agents: M. Erhart and A. Whelan assisted by N. Khan, barrister, with an address for service in Luxembourg), supported by EFTA Surveillance Authority (Agents: D. Sif Tynes and P Bjørgan — application for the annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) (OJ 2003 L 140, p. 1) or, in the alternative, for reduction of the fines imposed on the applicants, — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, gave a judgment on 8 July 2004, in which it:

               1.

               Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) in so far as it establishes the existence of the infringement found in that article against the four applicants in Cases T-67/00, T-68/00, T-71/00 and T-78/00 as pre-dating 1 January 1991 and extending beyond 30 June 1994;

               2.

               Sets the fine imposed on each of the four applicants by Article 4 of Decision 2003/382 at EUR 10,935,000;

               3.

               Dismisses the remainder of the four applications;

               4.

               Orders the four applicants and the Commission to bear their own costs;

               5.

               Orders the EFTA Surveillance Authority to bear its own costs.

      (1)  OJ C 149 of 27.5.2000.


title: Judgment of the Court of First Instance of 5 March 2003 in Case T-194/01: Unilever NV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Three-dimensional mark — Shape of a product for dishwashers — Ovoid tablet — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
C 112/30                 EN                          Official Journal of the European Union                                       10.5.2003
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 26 February 2003
                        of 26 February 2003
                                                                             in Case T-164/01: Arnaldo Lucaccioni v Commission of
                                                                                the European Communities (1)
in Case T-145/01: Benito Latino v Commission of the
                     European Communities ( 1)                                      (Officials — Action for damages — Admissibility)
                                                                                (2003/C 112/58)
(Officials — Occupational disease — Validity of the opinion
of the Medical Committee — Evidence of the occupational                                           (Language of the case: Italian)
origin of the disease — Scientific uncertainty — Proper
conduct of the procedure preceding the reference to the
                         Medical Committee)
                                                                             In Case T-164/01: Arnaldo Lucaccioni, a former official of the
                                                                             Commission of the European Commmunities, residing in St-
                                                                             Leonard-on-Sea (United Kingdom), represented by M. Cimino
                            (2003/C 112/57)                                  and F. Apruzzi, lawyers, against Commission of the European
                                                                             Communities (Agents: J. Currall and A. Dal Ferro) — appli-
                                                                             cation for compensation under the ordinary law governing
                     (Language of the case: French)                          non-contractual liability applicable under Article 236 EC, for
                                                                             pain and suffering and physical harm suffered by the applicant
                                                                             for the period preceding the onset of his occupational disease
                                                                             as a result of the Commission’s negligence, — the Court of
                                                                             First Instance (First Chamber), composed of: B. Vesterdorf,
                                                                             President, and N. J. Forwood and H. Legal, Judges; J. Palacio
In Case T-145/01: Benito Latino, former official of the                      González, Principal Administrator, for the Registrar, has given
Commission of the European Communities, residing in Séri-                    a judgment on 26 February 2003, in which it:
gnac-Peboudou (France), represented by G. Vandersanden
and L. Levi, lawyers, against Commission of the European                     1.     Dismisses the application as inadmissible;
Communities (Agents: J. Currall and J.-L. Fagnart) — appli-
cation for the annulment of the decision of the Commission                   2.     Orders the parties to bear their own costs.
of 10 August 2000 rejecting the applicant’s request that it
acknowledge the occupational origin of his arthritic symptoms
and charging to the applicant the fees and incidental expenses               (1 ) OJ C 275 of 29.9.01.
of the doctor appointed by the applicant to the Medical
Committee and half of the fees and incidental expenses of the
third doctor making up the committee - the Court of First
Instance (First Chamber), composed of B. Vesterdorf, President,
N. J. Forwood and H. Legal, Judges; D. Christensen, Adminis-
trator, for the Registrar, gave a judgment on 26 February
2003, in which it:                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 5 March 2003
1.     annuls the decision of the Commission of 10 August 2000
       insofar as it charges to the applicant the fees and incidental        in Case T-194/01: Unilever NV v Office for Harmonisation
       expenses of the doctor appointed by the applicant to the Medical      in the Internal Market (Trade Marks and Designs)
       Committee and half of the fees and incidental expenses of the                                       (OHIM) ( 1)
       third doctor;
                                                                             (Community trade mark — Three-dimensional mark —
                                                                             Shape of a product for dishwashers — Ovoid tablet —
2.     dismisses the remainder of the application;                           Absolute ground for refusal — Article 7(1)(b) of Regulation
                                                                                (EC) No 40/94)
3.     orders the parties to bear their own costs.
                                                                                (2003/C 112/59)
                                                                                (Language of the case: English)
( 1) OJ C 245 of 1.9.01.
                                                                             In Case T-194/01, Unilever NV, established in Rotterdam
                                                                             (Netherlands), represented by V. von Bomhard and A. Renck,
 ---pagebreak--- 10.5.2003                EN                          Official Journal of the European Union                                       C 112/31
lawyers, v Office for Harmonisation in the Internal Market                   2.     dismisses the remainder of the application;
(Trade Marks and Designs) (OHIM) (Agents: F. López de Rego
and J. F. Crespo Carrillo): Action against the decision of the               3.     orders the Commission to pay the costs.
First Board of Appeal of the Office for Harmonisation in the
Internal Market (Trade Marks and Designs) of 22 May 2001
(Case R-1086/2000-1), the Court of First Instance (Second
                                                                             (1 ) OJ 2001 C 331.
Chamber), composed of: R. M. Moura Ramos, President,
J. Pirrung and A. W. H. Meij, Judges; D. Christensen, Adminis-
trator, for the Registrar, has given a judgment on 5 March
2003, in which it:
1.     Dismisses the action;
2.     Orders the applicant to pay the costs.
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
( 1) OJ C 303 of 27.10.2001.
                                                                                of 5 March 2003
                                                                             in Case T-237/01: Alcon Inc v Office for Harmonisation in
                                                                             the Internal Market (Trade Marks and Designs) (OHIM) (1)
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                 (Community trade mark — Invalidity proceedings — ‘BSS’
                                                                             — Article 51 of Regulation (EC) No 40/94 — Absolute
                                                                             ground for refusal — Article 7(1)(d) of Regulation No 40/
                        of 26 February 2003                                  94 — Distinctive character acquired through use —
                                                                                Articles 7(3) and 51(2) of Regulation No 40/94)
in Case T-212/01: Arnaldo Lucacioni v Commission of the
                    European Communities ( 1)
                                                                                (2003/C 112/61)
(Officials — Insurance Against the Risk of Accident and
of Occupational Disease — Aggravation of injuries —                                              (Language of the case: English)
Overlapping of capital and compensation provided by
     Articles 12 and 14 respectively of the Insurance Rules)
                           (2003/C 112/60)                                   In Case T-237/01, Alcon Inc, formerly Alcon Universal
                                                                             Ltd, established in Hünenberg (Switzerland), represented by
                                                                             H. Porter, Solicitor and C. Morcom QC, with an address for
                     (Language of the case: French)                          service in Luxembourg, v Office for Harmonisation in the
                                                                             Internal Market (Trade Marks and Designs) (OHIM) (Agent:
                                                                             S. Laitinen), the intervener before the Court of First Instance
                                                                             being Dr. Robert Winzer Pharma GmbH, established in
In Case T-212/01: Arnaldo Lucaccioni, former official of the                 Olching (Germany), represented by S.N. Schneller, lawyer:
Commission of the European Communities, residing in St-                      Action brought against the decision of the First Board of
Leonard-on-Sea (United Kingdom), represented by J. R. Iturria-               Appeal of the Office for Harmonisation in the Internal Market
gagoitia Bassas, lawyer, against Commission of the European                  (Trade Marks and Designs) (OHIM) of 13 July 2001 (Case R
Communities (Agents: J. Currall and J.-L. Fagnart) - application             273/2000-1), the Court of First Instance (Second Chamber),
for annulment of the decision of the Commission of 16 Nov-                   composed of: R.M. Moura Ramos, President, J. Pirrung and
ember 2000 suspending the procedure to examine a request                     A.W.H. Meij, Judges: J. Plingers, Administrator, for the Regis-
to recognise an aggravation of his occupational illness and                  trar, has given a judgment on 5 March 2003, in which it:
refusal to take action on that request and a claim for damages -
the Court of First Instance (First Chamber), composed of
B. Vesterdorf, President, N. J. Forwood and H. Legal, Judges;                1.     Dismisses the application;
J. Palacio González, Principal Administrator, for the Registrar,
gave a judgment on 26 February 2003, in which it:
                                                                             2.     Orders the applicant to pay the costs.
1.     annuls the decision of the Commission, notified to the applicant
       by letter of 16 November 2000, to suspend the procedure               (1 ) OJ C 369 of 22.12.2001.
       provided for by Article 22 of the Insurance Rules and not to act
       on the applicant’s request seeking the recognition of the
       aggravation of his occupational illness;


title: Case T-241/03: Action brought on 16 June 2003 by Luigi Maruccio against the Commission of the European Communities

text:
23.8.2003               EN                           Official Journal of the European Union                                          C 200/31
In support of its action the applicant relies on the following               Action brought on 16 June 2003 by Luigi Maruccio
grounds:                                                                       against the Commission of the European Communities
                                                                                (Case T-241/03)
In respect of its claims for the annulment of the contested
decision:
                                                                                (2003/C 200/56)
—      alleged infringements of procedural rules, more particu-
       larly alleged infringement of the rights of the defence, by                              (Language of the case: Italian)
       reason of the alleged failure to provide reasons in the
       statement of objections, and alleged infringement of
       essential procedural requirements owing to the alleged
       insufficiency of the reasoning of the decision on not                 An action against the Commission of the European Commu-
       exceeding the ceiling of 10 % of turnover in determining              nities was brought before the Court of First Instance of the
       the amount of the fine;                                               European Communities on 16 June 2003 by Luigi Maruccio,
                                                                             represented by Prof. Luciano Garofalo.
—      manifest errors of appraisal and law concerning the
       existence and the characterisation of the agreement                   The applicant claims that the Court should:
       covered by the contested decision and its effect on
       competition;                                                          —     annul the note dated 15 October 2002;
—      alleged infringement of Regulation 26/62 (1) in that the              —     order the defendant to pay the applicant damages in the
       Commission should have granted the derogation provided                      sum of EUR 100 000, without prejudice to any subse-
       for by Article 2 of that regulation;                                        quent applicant for further damages.
—      alleged infringement of Article 15(2) of Regulation 17/
       62 (2) in that the Commission has given no information
       on the turnover used in determining the fines and has                 Pleas in law and main arguments
       not checked whether the amount of the fine was within
       the limit of 10 % of turnover.
                                                                             The applicant was employed at the defendant's delegation in
                                                                             Angola. He challenges the decision contained in a note dated
In respect of its claims for the reduction of the amount of the              15 October 2002 informing him, amongst other things, that
fine imposed, the applicant relies on the following grounds:                 in his absence on sick leave in Italy, where he was awaiting
                                                                             reassignment to another service, it would be necessary for
                                                                             agents of the delegation to enter the lodgings reserved for his
—      alleged infringement of Point 5(b) of the guidelines for              occupation and to permit others to enter thereon in order to
       determining the amount of the fine (3), in relation to the            pack up his personal effects.
       calculation of the amount of the fine;
                                                                             In support of his claim, the applicants argues that, irrespective
—      alleged manifest errors of appraisal and law concerning               of whether or not the note was put into effect, it contains a
       the characterisation of the infringement as ‘very serious’            decision which is unlawful for the following reasons:
       and of the agreement as ‘secret’, the alleged failure to take
       account of extenuating circumstances (lack of effect on               —     Infringement of the law by reason of trespass to the
       the market, cessation of the infringement as soon as the                    home, unlawful appropriation of property and invasion
       Commission intervened, the applicant's exclusively passive                  of privacy;
       role in the making of the agreement), and the determina-
       tion as to the duration of the agreement;                             —     Breach of the principle of ‘neminem laedere’ in that the
                                                                                note in issue was sent against a background of aggressive
—      alleged infringement of Article 15(2) of Regulation 17/62                   behaviour towards and persecution of the applicant;
       concerning the fixing of the amount of the fine;
                                                                             —     Breach of the duty to have regard for the welfare of
                                                                                officials;
—      alleged infringement of the principle that penalties should
       not be cumulative.
                                                                             —     Breach of the principle of force majeure and of the prin-
                                                                                ciple of reasonableness in that the defendant failed to take
(1) OJ, English Special Edition 1959-62 (II), p. 20.                               the applicant's state of health into account.
(2) OJ, English Special Edition 1959-1962 (I), p. 87. Amended on the
    last occasion by Regulation (EC) No 1216/1992 (OJ 1999 L 148,
    p. 5).                                                                   Lastly, the applicant argues breach of the duty to state reasons
(3) Guidelines on the method of setting fines imposed pursuant to            and of the principle of the protection of legitimate expecta-
    Article 15(2) of Regulation No 17 etc., (OJ 1998 C 9, p. 3).             tions.


title: Case C-123/15: Judgment of the Court (Second Chamber) of 30 June 2016 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Max-Heinz Feilen v Finanzamt Fulda (Reference for a preliminary ruling — Taxation — Free movement of capital — Inheritance tax — Legislation of a Member State providing for a reduction in inheritance tax applicable to estates containing assets which have already formed part of an inheritance giving rise to the imposition of inheritance tax in that Member State — Restriction — Justification — Coherence of the tax system)

text:
               12.9.2016

               EN

               Official Journal of the European Union

               C 335/15

         Judgment of the Court (Second Chamber) of 30 June 2016 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Max-Heinz Feilen v Finanzamt Fulda
   (Case C-123/15) (1)

   ((Reference for a preliminary ruling - Taxation - Free movement of capital - Inheritance tax - Legislation of a Member State providing for a reduction in inheritance tax applicable to estates containing assets which have already formed part of an inheritance giving rise to the imposition of inheritance tax in that Member State - Restriction - Justification - Coherence of the tax system))
   (2016/C 335/19)
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Appellant: Max-Heinz Feilen

      Respondent: Finanzamt Fulda

      Operative part of the judgment

   Articles 63(1) TFEU and 65 TFEU do not preclude legislation of a Member State, such as that at issue in the main proceedings, which provides for a reduction in inheritance tax in the case of inheritance by persons within a particular tax class where the estate includes assets that had already been acquired, by way of inheritance, by persons within that tax class during the 10 years prior to the acquisition, on condition that inheritance tax was levied in that Member State in respect of that earlier acquisition.

      (1)  OJ C 213, 29.6.2015.