title: Action brought on 30 May 1997 by Daniel Varas Carrión against the Council of the European Union (Case T-168/97)

text:
No C 228/24           EN                  Official Journal of the European Communities                                   26 . 7. 97
unsupported by any statement of reasons and that it was              The contested decisions were therefore arbitrary and
adopted in breach of the second paragraph of Article 25              clearly went beyond the limits of the Council's discretion .
of the Staff Regulations .
Action brought on 30 May 1997 by Daniel Varas Carrion                Action brought on 2 June 1997 by Farine Laziali SpA
          against the Council of the European Union                    against the Commission of the European Communities
                        ( Case T-168/97 )                                                  ( Case T-169/97)
                          ( 97/C 228/57)                                                      97/C 228/58 )
                 (Language of the case: French)
                                                                                (Language of the case: Italian)
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 30 May 1997 by Daniel Varas Carrion,                  An action against the Commission of the European
residing in Barcelona ( Spain ), represented by Marianne             Communities was brought before the Court of First
Droinet, of the Brussels Bar.                                        Instance of the European Communities on 2 June 1997 by
                                                                     Farine Laziali SpA, represented by Wilma Viscardini
The applicant claims that the Court should:                          Dona, Mariano Paolin and Simonetta Dona, of the Padua
                                                                     Bar, with an address for service in Luxembourg at the
                                                                     Chambers of Ernst Arendt, Rue Matthias Hardt.
— annul the Council 's decision of 19 December 1996
     ( received on 31 December 1996 ), refusing to admit the
     applicant to the test of Competition ' Consejo/C/374'
                                                                     The applicant claims that the Court should:
     ( Spanish-language typist) on the ground that the
     application documents supplied did not demonstrate a
     sufficient level of knowledge of a second Community
     language,                                                       — annul the Commission's decision by which the planned
                                                                         investment for rationalizing plant used in the
                                                                         production of dried medicinal herbs, called 'Project
— annul the Council 's decision of 18 March               1997
                                                                         No 013 ', included in the operational programme
     ( received on 24 March 1997), which confirmed the                   92.CT.IT.05 submitted to the Regione Lazio, was
     decision of 19 December 1996, notwithstanding the                   excluded from the financing provided for by
     applicant's complaint of 14 January 1997,                           Regulation ( EEC ) No 866/90 (Articles 173 and 174 of
                                                                         the EC Treaty),
— annul the test which took place on 26 April 1997 and
     therefore order all the candidates to be called again,
     including the applicant,                                        — order the Commission to pay to the applicant
                                                                         compensation for damage under Article 178 and the
— order the Council to pay the costs.                                    second subparagraph of Article 215 of the EC Treaty
                                                                         in the amount to be quantified by the Court during
Pleas in law and main arguments adduced in support:                      the proceedings,
The Council refused to admit the applicant to the first test         — order the Commission to pay the costs .
of the Open Competition for Spanish-language typists
( Consejo/C/374 ), on the ground that his application
documents did not show that he had sufficient knowledge
of French .
                                                                     Pleas in law and main arguments adduced in support:
The applicant maintains that no reasons are stated for the           The applicant, an Italian company based in Ponzano
first contested decision, and that it therefore infringes            Romano and Sant'Oreste, which carries on the activities
Article 190 of the EC Treaty.                                        of growing, processing   and marketing fodder plants and of
                                                                     drying the medicinal     herbs obtained when it cuts the
Concerning the second contested decision, the applicant              plants, challenges the   defendant's decision excluding the
maintains that the Secretariat General of the Council                planned investment in    rationalization of plant used in the
wrongly added other conditions to those laid down in the             production of dried medicinal herbs, submitted to the
competition notice . The latter stated merely that                   Regione Lazio, from the financing provided for by
knowledge of a second Community language had to be                   Regulation ( EEC ) No 866/90 ( ] ). That contribution was
sufficient. There was no provision that certificates                 intended to be used to carry out a programme of
demonstrating that knowledge had to be enclosed with the             investments in the construction of a new storage
application documents .                                              warehouse and in various infrastructure works .


title: Case C-339/02: Action brought on 23 September 2002 by the Commission of the European Communities against the Portuguese Republic

text:
C 305/10               EN                    Official Journal of the European Communities                                     7.12.2002
      Netherlands Government further points out that, to date,          Action brought on 25 September 2002 by the Com-
      the Commission has been unwilling to grant access to the          mission of the European Communities against the Federal
      German documents which it clearly had in its possession                                Republic of Germany
      and on which, inter alia, it based its assessment of the
      alleged shortcomings within the German destruction
      plants.                                                                                (Case C-341/02)
                                                                                (2002/C 305/16)
( 1) OJ 1997 L 62.
                                                                        An action against the Federal Republic of Germany was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 25 September 2002 by the Commission of the
                                                                        European Communities, represented by J. Sack and H. Kreppel,
Action brought on 23 September 2002 by the Com-                         with an address for service in Luxembourg.
mission of the European Communities against the Portu-
                           guese Republic
                                                                        The Commission of the European Communities claims that
                          (Case C-339/02)                               the Court should:
                          (2002/C 305/15)                               (1) declare that, by not recognising as integral parts of the
                                                                              minimum wage all allowances and supplements — apart
                                                                              from the construction supplement — paid by employers
                                                                              in other Member States to their employees in the
An action against the Portuguese Republic was brought                         construction sector who are posted to Germany, and
before the Court of Justice of the European Communities on                    consequently by leaving out of account the wage elements
23 September 2002 by the Commission of the European                           actually paid by such employers to their employees thus
Communities, represented by António Caeiros, acting as                        posted, the Federal Republic of Germany has infringed
Agent, with an address for service in Luxembourg.                             Article 49 EC and Directive 96/71/EC ( 1) of the European
                                                                              Parliament and of the Council of 16 December 1996
                                                                              concerning the posting of workers in the framework of
The applicant claims that the Court should:                                   the provision of services;
—     Declare that, by failing to adopt and bring into force            (2) order the Federal Republic of Germany to pay the costs.
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with
      Directive 1999/103/EC of the European Parliament and
      of the Council of 24 January 2000 amending Council
                                                                        Pleas in law and main arguments
      Directive 80/181/EEC on the approximation of the laws
      of the Member States relating to units of measurement ( 1),
      the Portuguese Republic has failed to fulfil its obligations      The minimum wage fixed by national legislation in a Member
      under Article 2(1) of the abovementioned Directive 1999/          State pursuant to Article 3 of Directive 96/71/EC is to be
      103/EC; and                                                       assimilated to the earnings received from his employer by an
                                                                        employee posted abroad. In that connection, regard must be
—     In the alternative, declare that, by failing to inform            had to the fact that, in view of the frequent differences in
      the Commission immediately of such measures, the                  remuneration structures, a Member State may not impose its
      Portuguese Republic has failed to fulfil its obligations          own remuneration structure on employment relationships
      under Article 2(1) of the abovementioned Directive 1999/          with employees posted from other Member States. Conse-
      103/EC; and                                                       quently, for the purposes of comparison, all of the remuner-
                                                                        ation paid by his employer to an employee posted abroad in
—     Order the Portuguese Republic to pay the costs.                   respect of the full duration of the posting is to be included.
                                                                        The elements to be left out of account are those expressly
                                                                        excepted by the directive, namely contributions to supplemen-
Pleas in law and main arguments                                         tary occupational retirement pension schemes and expenditure
                                                                        actually incurred during the posting, such as expenditure on
                                                                        travel, board and lodging. Since the directive does not cover
The time-limit for implementation expired on 9 February                 either social insurance contributions or tax deductions, it is
2001.                                                                   the gross amounts, not the net ones, which are to be compared.
                                                                        Although the German Government, in its observations dated
                                                                        30 May 2001, goes so far as to concede, in part, that the
( 1) OJ 2000 L 34, p. 17.                                               general practice of leaving all allowances and supplements out
                                                                        of account is not in accordance with Community law, the
                                                                        Commission has established that Annex 4 to the ‘Merkblatt


title: Case T-324/01: Action brought on 11 December 2001 by Axions S.A. and Christian Belce against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 68/14                EN                     Official Journal of the European Communities                                       16.3.2002
The applicant claims that the Court should:                                    —     assessed the role played by Roquette in the cartel
                                                                                without taking account of part played by he appli-
                                                                                cant in restraining its implementation;
—     annul Article 1 of the contested decision in so far as it
      considers — in the case of Roquette — that the infringe-
      ment lasted from February 1987 to June 1995;                             —     minimised the nevertheless decisive nature of the
                                                                                information supplied by Roquette to prove the
                                                                                existence of the cartel and to explain the way in
—     annul Article 3 of the contested decision in so far as it                      which it worked;
      imposes a fine of 10,8 million euros on Roquette Frères;
                                                                         —     violation of the principle ne bis in idem, inasmuch as the
—     in the exercise of its unlimited jurisdiction, reduce the                Commission failed to take account of the fact that
      amount of the fine imposed on Roquette Frères;                           Roquette had already been fined $ 2 500 000 by the US
                                                                               authorities on account of a breach concerning the same
                                                                               subject-matter as that giving rise to the contested decision.
—     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                         Action brought on 11 December 2001 by Axions S.A.
By a decision adopted on 2 October 2001, the European Union              and Christian Belce against the Office for Harmonisation
imposed on the applicant company a fine of 10,8 million euros                 in the Internal Market (Trade Marks and Designs)
for having participated, together with other producers of
sodium gluconate, in an agreement and/or concerted practice
covering the entire European Economic Area whereby they                                           (Case T-324/01)
shared out sales quotas between them, fixed the price of the
product concerned and colluded as to the attribution of
                                                                                (2002/C 68/26)
contracts concluded with customers.
                                                                                (Language of the case: German)
By the present action, the applicant is contesting solely the
level of the fine imposed. In support of its claims, it pleads:
                                                                         An action against the Office for Harmonisation in the Internal
—     infringement of Article 15 of Regulation No 17 and                 Market (Trade Marks and Designs) was brought before the
      violation of the principles of equality and proportionality,       Court of First Instance of the European Communities on
      inasmuch as the Commission failed adequately to assess             11 December 2001 by Axions S.A., of Geneva (Switzerland),
      either the seriousness or the duration of the breach. More         and Christian Belce, of Veyrier (Switzerland), represented by
      particularly, according to the applicant, the defendant            C. Eckhartt, lawyer.
      included, in the turnover figure used to calculate the basic
      amount of the fine, the sales volumes relating to another
      product (stock-solutions) which never formed the subject-          The applicant claims that the Court should:
      matter of the breach. In addition, the Commission fixed
      the date of the breach as June 1995, whereas the leader            —     annul the decision adopted on 26 September 2001 by
      of the cartel in the Commission’s eyes itself confirmed                  the Third Board of Appeal of the Office for Harmonisation
      that Roquette had decided to cease providing statistics                  in the Internal Market (Trade Marks and Designs) in Case
      from 1994 onwards and various items of evidence arising                  No R 599/2001-3;
      from the Commission’s investigations and from the
      cooperation provided by the various undertakings
                                                                         —     order the defendant Office to pay the costs.
      showed that Roquette had left the cartel in 1994;
—     misapplication by the Commission of its guidelines for
      calculating fines, as regards mitigating factors, and of its       Pleas in law and main arguments
      communication concerning the non-imposition of fines
      or the reduction of the amount thereof in cartel cases. The
      applicant asserts in that connection that the defendant:
                                                                         The trade mark con-            a three-dimensional mark rep-
      —     assessed the supposed effects of the cartel without          cerned:                        resenting a cigar, brown in colour
            taking account of the information and evidence
            provided by the applicant, which show the limited            Goods or services:             goods in Class 30 (chocolate,
            effect which the cartel had on the market for the                                           chocolate goods, bakery wares
            product in question;                                                                        and confectionery)
 ---pagebreak--- 16.3.2002               EN                      Official Journal of the European Communities                                              C 68/15
Decision contested befo-         refusal of registration by the            vehicles to leasing companies as stock, and was party to
re the Board of Appeal:          examiner                                  agreements restricting the grant of discounts in Belgium.
Decision of the Board of         rejection of the appeal
Appeal:
                                                                           The applicant claims that the Mercedes-Benz agents are
                                                                           integrated in the Mercedes-Benz distribution organisation and
Grounds of claim:                —     no obstacles to registration
                                                                           that agreements with commercial agents and commission
                                       under Article 7(1)(e) of Regu-
                                                                           agents are genuine agency agreements to which the prohibition
                                       lation (EC) No 40/94 (1);
                                                                           on restrictive practices set out in Article 81(1) EC does not
                                 —     sufficient     distinctiveness      apply. The applicant further submits that everything of which
                                       under Article 7(1)(b) of            the Commission accuses Mercedes-Benz regarding the obstruc-
                                       Regulation (EC) No 40/94.           tion of exports from Germany fails to meet the conditions laid
                                                                           down in Article 81(1) EC. Mercedes-Benz is entitled to lay
                                                                           down rules for both its commercial agents and its dealers on
(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-             sales to non-resident persons. Irrespective of the foregoing, the
    munity trade mark (OJ 1994 L 11, p. 1).                                applicant claims that the documentary evidence does not
                                                                           establish that Mercedes-Benz obstructed cross-border sales
                                                                           to foreign consumers. Mercedes-Benz’s sole interest was in
                                                                           restricting transactions with non-authorised resellers.
                                                                           The applicant claims that its instruction to agents to require a
                                                                           15 % advance payment from foreign customers was not a part
Action brought on 20 December 2001 by DaimlerChrys-                        of any agreements in restraint of trade between Mercedes-Benz
ler AG against the Commission of the European Com-                         and its agents. The purpose of that instruction was to reduce
                              munities                                     Mercedes-Benz’s risk exposure and it concerned the conditions
                                                                           applicable to contracts for new cars, which were merely
                          (Case T-352/01)                                  negotiated by the agent and in which he did not participate.
                                                                           Irrespective of the foregoing, the applicant claims that the
                                                                           requirement of deposits from foreign customers is materially
                           (2002/C 68/27)                                  justified.
                    (Language of the case: German)
                                                                           The applicant further claims that the restrictions on German
                                                                           agents as regards the brokerage of sales of new cars to leasing
                                                                           companies do not infringe Article 81(1) EC because they
An action against the Commission of the European Communi-                  constitute permissible instructions to commercial agents. Even
ties was brought before the Court of First Instance of the                 if there were an infringement of Article 81(1) EC, it would in
European Communities on 20 December 2001 by DaimlerCh-                     any case be exempted under Article 81(3) EC in conjunction
rysler AG, Stuttgart (Germany), represented by R. Bechtold and             with Regulation No. 1475/95 (1).
W. Bosch, lawyers.
The applicant claims that the Court should:                                Furthermore, the applicant submits that Mercedes-Benz did
                                                                           not carry out, or participate in, any ‘sale-price fixing’ in
—     annul the Commission’s decision of 10 October 2001                   Belgium which can be imputed to the applicant. Finally, it
      (COMP/36.246 — Mercedes-Benz);                                       claims that the special status of commercial agents is in itself
                                                                           enough to preclude the imposition of a fine on the basis of the
—     in the alternative, reduce the fine imposed in Article 3 of          ‘German’ facts, and that, in any case, it was entitled to assume,
      that decision;                                                       on the basis of earlier statements by the Commission, that its
                                                                           previous practice did not infringe Article 81(1) EC. In addition,
                                                                           the applicant submits that even if the application of
—     order the Commission to pay the applicant’s costs.
                                                                           Article 81(1) is not precluded on legal grounds, the fine is, in
                                                                           any case, clearly excessive.
Pleas in law and main arguments
                                                                           (1) Commission Regulation (EC) No 1475/95 of 28 June 1995 on
                                                                               the application of Article 85(3) of the Treaty to certain categories
By the contested decision, the Commission imposed a fine of                    of motor vehicle distribution and servicing agreements (OJ 1995
EUR 71 825 million on the applicant for three infringements                    L 145 p. 25)
of Article 81(1) of the EC Treaty. The Commission found that
the applicant and its legal predecessors took measures to
restrict parallel trade, restricted the supply of passenger motor


title: Case T-338/07 P: Judgment of the General Court of 19 March 2010 — Bianchi v ETF (Appeal — Staff case — Temporary staff — Contract for a fixed period — Decision refusing to renew the contract — Article 47(b) of the CEOS)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/30

         Judgment of the General Court of 19 March 2010 — Bianchi v ETF
   (Case T-338/07 P) (1)

   (Appeal - Staff case - Temporary staff - Contract for a fixed period - Decision refusing to renew the contract - Article 47(b) of the CEOS)
   2010/C 134/49
   Language of the case: French

      Parties

      Appellant: Irène Bianchi (Turin, Italy) (represented by: M.-A. Lucas, lawyer)

      Other party to the proceedings: European Training Foundation (ETF) (Turin, Italy) (represented by: M. Dunbar, Agent, assisted by G. Vandersanden, then by L. Levi, lawyers)

      Re:

   Appeal against the judgment of 28 June 2007 of the European Union Civil Service Tribunal (Second Chamber) in Case F-38/06 Bianchi v ETF, not yet published in the ECR, seeking the setting aside of that judgment

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mrs Irène Bianchi to bear her own costs and to pay those incurred by the European Training Foundation (ETF) for the purposes of these proceedings.

      (1)  OJ C 269, 10.11.2007.


title: Order of the Court of First Instance of 28 June 2000 in Case T-338/99: Lily Karoline Schuerer v Council of the European Union (Retirement pension — Weighting — Action for annulment — Inadmissibility)

text:
9.9.2000                EN                     Official Journal of the European Communities                                        C 259/23
       ORDER OF THE COURT OF FIRST INSTANCE                               Auditors of the European Communities — application for
                                                                          suspension of operation of the decision of 15 May 2000
                          of 28 June 2000                                 relieving the applicant from her position as team leader in the
                                                                          Italian section of the translation service — the President of the
                                                                          Court of First Instance made an order on 3 July 2000, the
in Case T-338/99: Lily Karoline Schuerer v Council of the
                                                                          operative part of which is as follows:
                        European Union (1)
                                                                          1.    The application for interim measures is dismissed.
(Retirement pension — Weighting — Action for annulment
                        — Inadmissibility)                                2.    The costs are reserved.
                          (2000/C 259/41)
                   (Language of the case: German)
In Case T-338/99: Lily Karoline Schuerer, a former official of            Action brought on 15 May 2000 by Javier Reyna Gonzá-
the Commission of the European Communities, residing in                   lez del Valle against the Commission of the European
Munich (Germany), represented by H.J. Winzen and M. Anger-                                            Communities
maier, Rechtsanwälte, Munich, with an address for service in
Luxembourg at the Chambers of M. Steil, 12 Rue d’Anvers, v                                          (Case T-130/00)
Council of the European Union (Agents: M. Bauer and
P.M. Cossu) — application for a declaration that, by applying
to the calculation of the applicant’s pension a weighting for                                       (2000/C 259/43)
Germany which was not fixed on the basis of the cost of living
in Berlin, the Council has infringed the EC Treaty — the Court
of First Instance (Third Chamber), composed of: K. Lenaerts,                                 (Language of the case: Spanish)
President, and J. Azizi and M. Jaeger, Judges; H. Jung, Registrar,
made an order on 28 June 2000, the operative part of which                An action against the Commission of the European Communi-
is as follows:                                                            ties was brought before the Court of First Instance of the
                                                                          European Communities on 15 May 2000 by Javier Reyna
1.    The action is dismissed as inadmissible;                            González del Valle, residing in Madrid, represented by José
                                                                          Marı́a Valoria de Arana, lawyer.
2.    The applicant is to pay the costs.
                                                                          The applicant claims that the Court should:
(1) OJ C 79 of 18.3.2000.
                                                                          —     ‘partially’ annul the Commission’s decisions appointing
                                                                                the applicant initially as a probationer official (decision
                                                                                of 28 March 1989, taking effect from 1 March 1989) and
                                                                                subsequently as an official definitively classed in grade B3
                                                                                (decision of 14 November 1989, taking effect from
                                                                                1 December 1989), but only inasmuch as those decisions
                                                                                classified him in grade 3 of category B instead of grade 1,
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                    that being the grade corresponding to him;
                            INSTANCE
                                                                          —     declare that the applicant is entitled to pecuniary compen-
                           of 3 July 2000                                       sation corresponding to the remuneration which he
                                                                                would have received if, as should have happened, he had
in Case T-163/00 R: Rosemarie Carotti v Court of Audi-                          been appointed a grade B1 official, and which he did not
              tors of the European Communities                                  receive, during the period running from his appointment
                                                                                as a probationer official to the present time, together with
                                                                                interest at the statutory rate;
        (Proceedings for interim relief — Admissibility)
                                                                          —     order the Commission to pay the costs.
                          (2000/C 259/42)
                                                                          Pleas in law and main arguments
                    (Language of the case: French)
                                                                          The applicant in the present case contests his appointment in
In Case T-163/00 R: Rosemarie Carotti, an official of the                 grade 3 of category B. He maintains in that connection that
Court of Auditors of the European Communities, residing in                that appointment must be regarded as erroneous, inasmuch
Luxembourg, represented by G. Vogel and F. Burg, of the                   as, having been called to attend interviews in competitions
Luxembourg Bar, with an address for service in Luxembourg                 COM/B/611 (B 1) and COM/B/612 (B 2/3), the applicant never
at the latter’s Chambers, 42 Boulevard Joseph II, v Court of              attended the interview corresponding to the latter competition.


title: Judgment of the Court of First Instance of 30 September 2003 in Case T-17/01: Georgios Rounis v Commission of the European Communities (Officials — Articles 17(2)(a) and (b) of Annex VII to the Staff Regulations — Transfer of a part of remuneration in the currency of a Member State other than the country in which the institution has its seat — Conditions — Loss — Assessment of damages)

text:
13.12.2003             EN                          Official Journal of the European Union                                           C 304/23
1)    Dismisses the application.                                           3.    Orders the Commission to pay the costs of the proceedings
                                                                                which gave rise to the Judgment of the Court of First Instance
                                                                                of 16 May 2002 Rounis v Commission (T-17/01).
2)    Orders the applicant to bear its own costs and to pay those of
      the Commission and the interveners, KirchPayTV and BSkyB.
                                                                           4.    In the present proceedings, orders the Commission to bear its
                                                                                own costs and to pay one-third of the costs incurred by the
(1) OJ 2000 C 247 of 26.8.2000.                                                  applicant.
                                                                           (1) OJ C 95 of 24.3.2001.
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                     of 30 September 2003
                                                                               JUDGMENT OF THE COURT OF FIRST INSTANCE
in Case T-17/01: Georgios Rounis v Commission of the
                   European Communities (1)                                                     of 30 September 2003
(Officials — Articles 17(2)(a) and (b) of Annex VII to the                 in Case T-26/01: Fiocchi munizioni SpA v Commission of
Staff Regulations — Transfer of a part of remuneration in                                   the European Communities (1)
the currency of a Member State other than the country in
which the institution has its seat — Conditions — Loss —
                    Assessment of damages)                                 (Articles 296 EC and 298 EC — State aid granted to an
                                                                           arms production undertaking — Complaint — Action for
                                                                                declaration of failure to act — Inadmissibility)
                         (2003/C 304/40)
                                                                                (2003/C 304/41)
                   (Language of the case: French)
                                                                                (Language of the case: Italian)
In Case T-17/01, Georgios Rounis, an official of the Com-
mission of the European Communities, residing in Brussels
(Belgium), represented by É. Boigelot, lawyer, with an address
for service in Luxembourg, against the Commission of the                   In Case T-26/01, Fiocchi Munizioni SpA, established in Lecco
European Communities (Agents: J. Currall and F. Clotuche-                  (Italy), represented by I. Van Bael, E. Raffaelli, F. Di Gianni
Duvieusart) — application for determination of the amount of               and R. Antonini, lawyers, v Commission of the European
the loss for which the Commission was ordered to compensate                Communities (Agent: V. Di Bucci), supported by Kingdom of
the applicant following annulment by the Court of First                    Spain (Agent: S. Ortiz Vaamonde): Application for a declar-
Instance of the Commission’s decision of 24 February 2000                  ation that the Commission unlawfully refrained from taking a
limiting transfer of the applicant’s emoluments to the United              decision on the merits of the complaint by the applicant
Kingdom to 19 % of his net monthly earnings, the Court of                  concerning a State aid granted by the Kingdom of Spain to the
First Instance, M. Vilaras, Judge; and I. Natsinas, Administrator,         Santa Barbara company, the Court of First Instance (Third
for the Registrar, has given a judgment on 30 September                    Chamber, Extended Composition), composed of: K. Lenaerts,
2003, in which it:                                                         President, P. Lindh, J. Azizi, J.D. Cooke and M. Jaeger, Judges;
                                                                           J. Palacio González, Principal Administrator, for the Registrar,
                                                                           has given a judgment on 30 September 2003, in which it:
1.    Orders the Commission to pay the applicant damages of
      GBP 17 394,64, with interest for late payment at the annual
      rate of 5,25 % annually until payment.                               1.    Dismisses the action as inadmissible;
2.    Dismisses the remainder of the action for damages.                   2.    Orders the applicant to pay the costs;


title: Case T-516/09 P: Order of the General Court of 18 October 2010 — Marcuccio v Commission (Appeal — Civil service — Officials — Rejection of a request for investigation — Refusal of an institution to translate a decision — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/42

         Order of the General Court of 18 October 2010 — Marcuccio v Commission
   (Case T-516/09 P) (1)

   (Appeal - Civil service - Officials - Rejection of a request for investigation - Refusal of an institution to translate a decision - Appeal in part manifestly inadmissible and in part manifestly unfounded)
   2010/C 346/84
   Language of the case: Italian

      Parties

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

      Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Dal Ferro, lawyer)

      Re:

   Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) of 7 October 2009 in Case F-122/07 Marcuccio v Commission ECR-SC 0000 seeking the annulment of that order.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Luigi Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission in the present proceedings.

      (1)  OJ C 51, 27.2.2010.


10.10.98             EN                Official Journal of the European Communities                                  C 312/9
       Removal from the register of Case C-12/96 (1)              removal from the register of Case C-30/98 (reference for a
                         (98/C 312/19)                            preliminary ruling from the Landgericht Berlin): VR-
                                                                  Leasing GmbH v. Margit Bertram.
By order of 26 June 1998 the President of the Court of
Justice of the European Communities has ordered the               (1) OJ C 94, 28.3.1998.
removal from the register of Case C-12/96: Portuguese
Republic v. Commission of the European Communities.
(1) OJ C 95, 30.3.1996.
                                                                         Removal from the register of Case C-351/97 (1)
                                                                                (98/C 312/23)
                                                                  By order of 10 July 1998 the President of the Court of
       Removal from the register of Case C-39/98 (1)              Justice of the European Communities has ordered the
                         (98/C 312/20)                            removal from the register of Case C-351/97: Commission
                                                                  of the European Communities v. Grand Duchy of
By order of 2 July 1998 the President of the Court of             Luxembourg.
Justice of the European Communities has ordered the
removal from the register of Case C-39/98: Commission of          (1) OJ C 357, 22.11.1997.
the European Communities v. Silena SpA.
(1) OJ C 137, 2.5.1998.
                                                                         Removal from the register of Case C-250/96 (1)
                                                                                (98/C 312/24)
      Removal from the register of Case C-327/96 (1)              By order of 13 July 1998 the President of the Court of
                         (98/C 312/21)                            Justice of the European Communities has ordered the
                                                                  removal from the register of Case C-250/96 (reference for
By order of 9 July 1998 the President of the Court of             a preliminary ruling from the Pretura Circondariale di Bre-
Justice of the European Communities has ordered the               scia): Criminal proceedings against Riccardo Piccaluga.
removal from the register of Case C-327/96 (reference for
a preliminiary ruling from the Tribunale di Genova): Ente         (1) OJ C 294, 5.10.1996.
Autonomo Fiera Internazionale di Genova v. Ministero
delle Finanze.
(1) OJ C 370, 7.12.1996.
                                                                         Removal from the register of Case C-297/97 (1)
                                                                                (98/C 312/25)
                                                                  By order of 17 July 1998 the President of the Court of
       Removal from the register of Case C-30/98 (1)              Justice of the European Communities has ordered the
                         (98/C 312/22)                            removal from the register of Case C-297/97: Commission
                                                                  of the European Communities v. Italian Republic.
By order of 9 July 1998 the President of the Court of
Justice of the European Communities has ordered the               (1) OJ C 318, 18.10.1997.


title: Joined Cases T-54/08 R, T-87/08 R, T-88/08 R, T-91/08 R, T-92/08 R and T-93/08 R: Order of the President of the Court of First Instance of 11 April 2008 — Cyprus v Commission (Applications for interim relief — Procurement notices for contracts to encourage economic development in the northern part of Cyprus — Applications for suspension of operation of the notices — No urgency)

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/38

         Order of the President of the Court of First Instance of 11 April 2008 — Cyprus v Commission
   (Joined Cases T-54/08 R, T-87/08 R, T-88/08 R, T-91/08 R, T-92/08 R and T-93/08 R)
   (Applications for interim relief - Procurement notices for contracts to encourage economic development in the northern part of Cyprus - Applications for suspension of operation of the notices - No urgency)
   (2008/C 171/71)
   Language of the case: Greek
   Parties

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

      Defendant: Commission of the European Communities (represented by: P. van Nuffel and I. Zervas, Agents)
   Re:
   Applications for suspension of the operation of a number of procurement notices issued by the Commission for the encouragement of economic development in the northern part of Cyprus, in the fields of energy, the environment, agriculture, telecommunications, education and crop management and irrigation.
   Operative part of the order

               1.

               Cases T-54/08 R, T-87/08 R, T-88/08 R, T-91/08 R, T-92/08 R and T 93/08 R are joined for the purposes of this order.

               2.

               The applications for interim relief are dismissed.

               3.

               Costs are reserved.


title: Action brought on 22 April 1997 by the Commission of the European Communities against the Hellenic Republic (Case C-154/97)

text:
No C 212/8             EN                  Official Journal of the European Communities                                 12 . 7. 97
     — Commission Directive 93/21 /EEC of 27 April                         15 April 1994 adapting to technical progress for the
         1993 adapting to technical progress for the 18th                  first time Council Directive 90/220/EEC on the
         time Directive 67/548/EEC, with the exception of                  deliberate release into the environment of genetically
         the provisions of that Directive applicable to                    modified organisms, the Kingdom of Belgium has
         mobile gas cylinders containing butane, propane or                failed to fulfil its obligations under the - first
         liquid petroleum gas, and                                         subparagraph of Article 2 of that Directive;
     — Commission Directive 93/90/EEC of 29 October                   2 . orders the Kingdom of Belgium to pay the costs.
          1 993 concerning the list of substances referred to
         in Article 13 (1 ) (fifth indent) of Directive 67/548/
         EEC,                                                         (') OJ No C 370, 7. 12 . 1996 .
     the Kingdom of Belgium has failed to fulfil its
     obligations under Article 2 of each of those Directives .
2 . The Kingdom of Belgium is ordered to pay the costs.               Action brought on 22 April 1997 by the Commission of
                                                                        the European Communities against the Hellenic Republic
(') OJ No C 354 , 23 . 11 . 1996 .                                                              ( Case C-154/97 )
                                                                                ( 97/C 212/16 )
                                                                      An action against the Hellenic Republic was brought
                                                                      before the Court of Justice of the European Communities
                JUDGMENT OF THE COURT                                 on 22 April 1997 by the Commission of the European
                         ( Sixth Chamber)                             Communities, represented by Maria Kondou-Durande, of
                                                                      its Legal Service, with an address for service in
                         of 29 May 1997                               Luxembourg at the office of Carlos Gomez de la Cruz, of
                                                                      its Legal Service, Wagner Centre, Kirchberg.
       in Case C-3 57/96: Commission of the European
             Communities v. Kingdom of Belgium ( J )
                                                                      The applicant claims that the Court should :
(Failure by a Member State to fulfil its obligations —
Directive 94/15/EC — Failure to transpose within the
                        prescribed period)                            — declare that, by not adopting within the prescribed
                           ( 97/C 212/15 )                                 period the laws, regulations and administrative
                                                                           provisions necessary to implement Commission
                                                                           Directive 93/106/EC of 29 November 1993 amending
                 (Language of the case: French)                            Directive 92/76/EEC recognizing protected zones
                                                                           exposed to particular plant health risks in the
                                                                           Community H , the Hellenic Republic has failed to
   (Provisional translation; the definitive translation will be            fulfil its obligations under the Treaty and that
           published in the European Court Reports)                        Directive,
In Case C-357/96 : Commission of the European                         — order the Hellenic Republic to pay the costs .
Communities (Agent: Gotz zur Hausen ) against Kingdom
of Belgium (Agent: Jan Devadder ) — application for a
declaration that, by failing to adopt the laws, regulations           Pleas in law and main arguments adduced in support:
and administrative measures necessary in order to comply
with Commission Directive 94/15/EC of 15 April 1994                   Pursuant to Article 2 of Directive 93/106/EC , the Member
adapting to technical progress for the first time Council             States were to adopt the measures needed to comply with
Directive 90/220/EEC on the deliberate release into the               its provisions by 15 December 1993 and to inform the
environment of genetically modified organisms ( OJ No                  Commission thereof.
L 103 , 22 . 4 . 1994, p. 20 ), the Kingdom of Belgium has
failed to fulfil its obligations under that Directive — the
 Court ( Sixth Chamber ) composed of: G. F. Mancini ,                 The Commission notes that the Hellenic Republic has not
President of the Chamber, J. L. Murray, C. N. Kakouris,                yet brought its legislation into line with the Directive,
 P. J. G. Kapteyn and H. Ragnemalm ( Rapporteur), Judges;              thereby failing to fulfil its obligations under the third
 D. Ruiz-Jarabo Colomer, Advocate-General; R. Grass,                   paragraph of Article 189 and the first paragraph of
 Registrar, gave a judgment on 29 May 1997, in which it:               Article 5 of the Treaty.
                                                                       (') OJ No L 298 , 3 . 12 . 1993 , p . 34 .
 1 . declares that, by failing to adopt the laws, regulations
      and administrative measures necessary in order to
      comply with Commission Directive 94/15/EC of


title: Case T-245/15: Action brought on 15 May 2015 — Klymenko v Council

text:
               14.9.2015

               EN

               Official Journal of the European Union

               C 302/54

         Action brought on 15 May 2015 — Klymenko v Council
   (Case T-245/15)
   (2015/C 302/70)
   Language of the case: English

      Parties

      Applicant: Oleksandr Viktorovych Klymenko (Moscow, Russia) (represented by: B. Kennelly and J. Pobjoy, Barristers, and R. Gherson, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 Implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 1) insofar as they apply to the applicant;

               —

               alternatively, declare that article 1(1) of Council Decision 2014/119/CFSP of 5 March 2014 (as amended) and article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are inapplicable insofar as they apply to the applicant by reason of illegality.

               —

               order the Council to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Council has failed to identify a proper legal base for the Council Decision (CFSP) 2015/364 (the ‘Decision’) and the Council Implementing Regulation (EU) 2015/357 (the ‘Regulation’) (together the ‘Contested Measures’). Article 29 of the Treaty on the European Union is not a proper legal base for the Decision because the complaint made against the applicant did not identify him as an individual having undermined democracy in Ukraine or deprived the Ukrainian people of the benefits of the sustainable development of their country (within the meaning of article 23 TEU and the general provisions in article 21(2) TEU). As the Decision was invalid, the Council could not rely on article 215(2) of the Treaty on the Functioning of the European Union to enact the Regulation.

               2.

               Second plea in law, alleging that the Council has made manifest errors of assessment in considering that the criterion for listing the applicant in article 1(1) of Council Decision 2014/119/CFSP of 5 March 2014 (as amended) and article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended) was satisfied. The applicant is not subject to criminal proceedings ‘for the misappropriation of public funds or assets’, nor is he subject to criminal proceedings ‘for the abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party’.

               3.

               Third plea in law, alleging that the Council violated the applicant’s right of defence and the right to good administration and effective judicial review. In particular, the Council failed to carefully and impartially examine whether the alleged reasons said to justify redesignation were well founded in light of the representations made by the applicant prior to redesignation.

               4.

               Fourth plea in law, alleging that the Council has failed to comply with its obligations to provide adequate reasons for redesignating the applicant.

               5.

               Fifth plea in law, the Council has infringed, without justification or proportion, the applicant’s fundamental rights, including his right to protection of his property and reputation. The impact of the Contested Measures on the applicant is far-reaching, both as regards to his property, and to his reputation worldwide. The Council has failed to demonstrate that the freezing of the applicant’s assets and economic resources is related to, or justified by, any legitimate aim, still less that it is proportionate to such an aim.

               6.

               Sixth plea in law, raised in support of the declaration of illegality, alleging that if, contrary to the arguments advanced in the second plea, article 1(1) of Council Decision 2014/119/CFSP of 5 March 2014 (as amended) and article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are to be interpreted to capture (a) any investigation by a Ukrainian authority irrespective of whether there is any judicial decision or proceedings underpinning, controlling or overseeing it; and/or (b) any ‘abuse of office as a public-office holder in order to procure an unjustified advantage’ irrespective of whether there is an allegation of misappropriation of State funds, the designation criterion would, given the arbitrary width and scope that would result from such a broad interpretation, lack a proper legal base; and/or be disproportionate to the objectives of the Decision and Regulation. The provision would therefore be unlawful.


title: Case C-257/11: Judgment of the Court (Third Chamber) of 29 November 2012 (reference for a preliminary ruling from the Curtea de Apel București — Romania) — SC Gran Via Moinești SRL v Agenția Națională de Administrare Fiscală (ANAF), Administrația Finanțelor Publice București Sector 1 (Directive 2006/112/EC — Value added tax — Articles 167, 168 and 185 — Right of deduction — Adjustment of deductions — Acquisition of land and buildings constructed on that land, with a view to demolishing the buildings and carrying out a construction project on the land)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/8

         Judgment of the Court (Third Chamber) of 29 November 2012 (reference for a preliminary ruling from the Curtea de Apel București — Romania) — SC Gran Via Moinești SRL v Agenția Națională de Administrare Fiscală (ANAF), Administrația Finanțelor Publice București Sector 1
   (Case C-257/11) (1)

   (Directive 2006/112/EC - Value added tax - Articles 167, 168 and 185 - Right of deduction - Adjustment of deductions - Acquisition of land and buildings constructed on that land, with a view to demolishing the buildings and carrying out a construction project on the land)
   2013/C 26/14
   Language of the case: Romanian

      Referring court

   Curtea de Apel București

      Parties to the main proceedings

      Applicant: SC Gran Via Moinești SRL

      Defendants: Agenția Națională de Administrare Fiscală (ANAF), Administrația Finanțelor Publice București Sector 1

      Re:

   Reference for a preliminary ruling — Curtea de Apel București — Interpretation of Articles 167, 168 and 185(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Right of deduction in respect of the VAT relating to the purchase of buildings scheduled for demolition with a view to carrying out a construction project — Economic activity prior carrying out a construction project, consisting in the initial investment expenditure for the purposes of implementing that project — Adjustment of the VAT deductions

      Operative part of the judgment

               1.

               Articles 167 and 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those in the main proceedings, a company which has acquired land and buildings constructed on that land, for the purpose of demolishing the buildings and developing a residential complex on the land, has the right to deduct the value added tax relating to the acquisition of those buildings.

               2.

               Article 185 of Directive 2006/112 must be interpreted as meaning that, in circumstances such as those in the main proceedings, the demolition of buildings, acquired together with the plot of land on which they were constructed, which is carried out with a view to developing a residential complex in place of those buildings does not result in an obligation to adjust the initial deduction of the value added tax relating to the acquisition of those buildings.

      (1)  OJ C 238, 13.8.2011.


title: Case C-248/14 P: Appeal brought on 23 May 2014 by Schwenk Zement KG against the judgment of the General Court (Seventh Chamber) delivered on 14 March 2014 in Case T-306/11 Schwenk Zement KG v European Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/11

         Appeal brought on 23 May 2014 by Schwenk Zement KG against the judgment of the General Court (Seventh Chamber) delivered on 14 March 2014 in Case T-306/11 Schwenk Zement KG v European Commission
   (Case C-248/14 P)
   2014/C 223/16
   Language of the case: German

      Parties

      Appellant: Schwenk Zement KG (represented by: M. Raible and S. Merz, Rechtsanwälte)

      Other party to the proceedings: European Commission

      Form of order sought

               1.

               Set aside the judgment of the General Court (Seventh Chamber) of 14 March 2014 in Case T-306/11, in so far as the appellant’s application was thereby dismissed;

               2.

               annul in its entirety Commission Decision C(2011) 2367 final of 30 March 2011 in Case COMP/39520 — Cement and related products, in accordance with the fourth paragraph of Article 263 TFEU, in so far as it concerns the appellant;

               3.

               in the alternative to 2 above, refer the case back to the General Court for renewed determination in accordance with the judgment of the Court of Justice as to points of law;

               4.

               in any event, order the Commission to pay the appellant’s costs in respect of the proceedings before the General Court and the Court of Justice.

      Pleas in law and main arguments

   The appeal has been brought against the judgment of the General Court of the European Union (‘the General Court’) of 14 March 2014 in Case T-306/11, in so far as it affects the appellant. The judgment was served on SCHWENK Zement AG on 14 March 2014. By its judgment, the General Court upheld in part and dismissed in part the appellant’s action against Commission Decision C(2011) 2367 final of 30 March 2011 in a proceeding under Article 18(3) of Council Regulation (EC) No 1/2003 (1) (Case 39520 — Cement and related products).
   The appellant puts forward three grounds of appeal:
   First, the appellant claims that the General Court failed to have regard to the principle of proportionality in its assessment of the conduct of the Commission. The General Court infringed EU law by disregarding the hierarchical element inherent in the principle of proportionality, whereby, if there is any doubt, the milder of two available approaches is to be applied. Referring merely to the best guarantee of obtaining information, the General Court deemed it permissible that action was taken directly against the appellant by means of a decision requiring information under Article 18(3) of Regulation No 1/2003. That is not sufficient for the purposes of the principle of proportionality.
   Secondly, the General Court carried out only an inadequate examination of the particular case and thus failed to take into account the appellant’s substantive submissions. The General Court did not examine the individual case or take into account the special circumstances in relation to the appellant. Instead, the General Court proceeded on the basis of a large number of cement producers.
   Thirdly, the appellant challenges the fact that, contrary to the obligation to state reasons, the General Court regarded the Commission’s formulaic explanations as sufficient. The General Court infringed the obligation to state reasons in two respects. First, it failed to have regard to the requirements relating to the obligation to state reasons arising from the second paragraph of Article 296 TFEU and Article 18 of Regulation No 1/2003 in respect of legal acts of the Commission. Secondly, the General Court disregarded its own requirements concerning the obligation to state reasons. Lastly, the General Court’s appraisal precluded any possibility of verifying whether the principle of proportionality had been observed. Should the General Court’s judgment prevail to that extent, all that would remain of the principle of proportionality in the context of investigative measures under Article 18 of Regulation No 1/2003 would be an empty shell.

      (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 2003 L 1, p. 1).


title: Case C-199/13 P: Order of the Court (Eighth Chamber) of 27 March 2014 — Polyelectrolyte Producers Group, SNF SAS, Travetanche Injection SPRL v European Commission, Kingdom of the Netherlands (Appeal — Article 181 of the Rules of Procedure — Regulation (EC) No 1907/2006 (REACH regulation) — Restrictions on the placing on the market and use of acrylamide — Regulation (EU) No 366/2011 amending Annex XVII of Regulation (EC) No 1907/2006)

text:
               16.6.2014

               EN

               Official Journal of the European Union

               C 184/6

         Order of the Court (Eighth Chamber) of 27 March 2014 — Polyelectrolyte Producers Group, SNF SAS, Travetanche Injection SPRL v European Commission, Kingdom of the Netherlands
   (Case C-199/13 P) (1)

   ((Appeal - Article 181 of the Rules of Procedure - Regulation (EC) No 1907/2006 (REACH regulation) - Restrictions on the placing on the market and use of acrylamide - Regulation (EU) No 366/2011 amending Annex XVII of Regulation (EC) No 1907/2006))
   2014/C 184/08
   Language of the case: English

      Parties

      Appellants: Polyelectrolyte Producers Group, SNF SAS, Travetanche Injection SPRL (represented by: K. Van Maldegem and R. Cana, avocats)

      Other parties to the proceedings: European Commission (represented by: E. Manhaeve and P. Oliver, Agents, and by J. Stuyck and A.-M. Vandromme, advocaten), Kingdom of the Netherlands (represented by: M. Bulterman and B. Koopman, Agents)

      Re:

   Appeal brought against the judgement of the General Court (Seventh Chamber) of 1 February 2013 in Case T-368/11 Polyelectrolyte Producers Group and Others v Commission wherein the General Court dismissed an action for annulment of Commission Regulation (EU) No 366/2011 of 14 April 2011 amending Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2011 L 101, p. 12) insofar as it imposes restrictions on the marketing of acrylamide for grouting applications

      Operative part of the order

               1.

               The appeal is dismissed;

               2.

               Polyelectrolyte Producers Group, SNF SAS and Travetanche Injection SPRL shall pay the costs;

               3.

               The Kingdom of the Netherlands shall bear its own costs.

      (1)  OJ C 171, 15.6.2013.


title: Judgment of the Court of 12 September 2011 in Case E-16/10 — Philip Morris Norway AS v the Norwegian State, represented by the Ministry of Health and Care Services (Free movement of goods — Prohibition on the visual display of tobacco products — Articles 11 and 13 EEA — Measures having equivalent effect to quantitative restrictions — Selling arrangements — Protection of public health — Proportionality)

text:
               27.9.2012

               EN

               Official Journal of the European Union

               C 291/14

         JUDGMENT OF THE COURT
   of 12 September 2011
   in Case E-16/10
   Philip Morris Norway AS v the Norwegian State, represented by the Ministry of Health and Care Services
   (Free movement of goods — Prohibition on the visual display of tobacco products — Articles 11 and 13 EEA — Measures having equivalent effect to quantitative restrictions — Selling arrangements — Protection of public health — Proportionality)
   2012/C 291/05
   In Case E-16/10, Philip Morris Norway AS v the Norwegian State, represented by the Ministry of Health and Care Services — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Oslo District Court (Oslo tingrett), regarding the interpretation of Articles 11 and 13 of the Agreement on the European Economic Area (EEA), in particular, whether a rule prohibiting the visible display of tobacco products in retail outlets, such as the one established by Norwegian law, constitutes an unlawful restriction pursuant to Article 11 of the EEA Agreement, and, should such a restriction be found to exist, the criteria which are decisive in order to determine if the said display ban is proportionate for the purposes of Article 13 of the EEA Agreement the Court, composed of Carl Baudenbacher, President, Thorgeir Örlygsson (Judge-Rapporteur) and Per Christiansen, Judges, gave judgment on 12 September 2011, the operative part of which is as follows:

               1.

               A visual display ban on tobacco products, imposed by national legislation of an EEA State, such as the one at issue in the case at hand, constitutes a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 11 EEA if, in fact, the ban affects the marketing of products imported from other EEA States to a greater degree than that of imported products which were, until recently, produced in Norway.

               2.

               It is for the national court to identify the aims which the legislation at issue is actually intended to pursue and to decide whether the public health objective of reducing tobacco use by the public in general can be achieved by measures less restrictive than a visual display ban on tobacco products.


title: Judgment of the Court (First Chamber) of 28 April 1999 in Case C-250/98: Commission of the European Communities v French Republic (Failure by a Member State to fulfil obligations - Failure to transpose Directive 89/594/EEC)

text:
C 204/8                  EN                     Official Journal of the European Communities                                           17.7.1999
On a proper interpretation of the Combined Nomenclature, in the                               JUDGMENT OF THE COURT
version contained in Annex I to Commission Regulation (EEC) No
2551/93 of 10 August 1993 amending Annex I to Council
                                                                                (First Chamber)
Regulation (EEC) No 2658/87 on the tariff and statistical nomencla-
ture and on the common customs tariff, dried walnut pieces, imported
from a non-member country, which have been stored in the                                               of 28 April 1999
Community at a temperature of −24 oC and which, after thawing
out, arc cleared through customs to be admitted into free circulation
                                                                           in Case C-250/98: Commission of the European Communi-
must be classified under tariff heading 0802.
                                                                                ties v French Republic (1)
(1) OJ C 41 of 7.2.1998.
                                                                           (Failure by a Member State to fulfil obligations — Failure to
                                                                                transpose Directive 89/594/EEC)
                                                                                (1999/C 204/15)
                  JUDGMENT OF THE COURT
                            (First Chamber)                                                      (Language of the case: French)
                           of 28 April 1999
in Case C-31/98 (reference for a preliminary ruling from                   (Provisional translation; the definitive translation will be published
the Finanzgericht München): Peter Luksch v Hauptzollamt                                         in the European Court Reports)
                               Weiden (1)
(Agriculture — Common organisation of the markets —                        In Case C-250/98: Commission of the European Communities
Fruit and vegetables — Importation of sour cherries from a                 (Agents: Antonio Caeiro and Bernard Mongin) v French
third country — Levy of a countervailing charge equal to the               Republic (Agents: Kareen Rispal-Bellanger and Anne de
difference between the minimum price and the import price                  Bourgoing) — application for a declaration that, by failing to
                — Applicability to spoiled goods)                          adopt all the laws, regulations and administrative provisions
                                                                           necessary to comply with Council Directive 89/594/EEC of 30
                            (1999/C 204/14)                                October 1989 amending Directives 75/362/EEC, 77/452/EEC,
                                                                           78/686/EEC, 78/1026/EEC and 80/154/EEC relating to the
                   (Language of the case: German)                          mutual recognition of diplomas, certificates and other evidence
                                                                           of formal qualifications as doctors, nurses responsible for
                                                                           general care, dental practitioners, veterinary surgeons and
(Provisional translation; the definitive translation will be published     midwives, together with Directives 75/363/EEC, 78/1027/EEC
                    in the European Court Reports)                         and 80/155/EEC concerning the coordination of provisions
In Case C-31/98: reference to the Court under Article 177 of               laid down by law, regulation or administrative action relating
the EC Treaty from the Finanzgericht München (Finance Court,               to the activities of doctors, veterinary surgeons and midwives
Munich), Germany, for a preliminary ruling in the proceedings              (OJ 1989 L 341, p. 19), the French Republic has failed to fulfil
pending before that court between Peter Luksch and Hauptzoll-              its obligations under Directive 89/594 — the Court (First
amt Weiden — on the interpretation of Article 1 of Com-                    Chamber), composed of: P. Jann, President of the Chamber,
mission Regulation (EC) No 1395/94 of 17 June 1994                         D.A.O. Edward (Rapporteur) and L. Sevón, Judges; D. Ruiz-
establishing a minimum import price for sour cherries (OJ                  Jarabo Colomer, Advocate General; R. Grass, Registrar, has
1994 L 152, p. 31) and Annex I to Council Regulation (EEC)                 given a judgment on 28 April 1999, in which it:
No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff (OJ 1987                     1. Declares that, by failing to adopt all the laws, regulations and
L 256, p. 1) as amended by Commission Regulation (EEC) No                      administrative provisions necessary to comply with Council
2551/93 of 10 August 1993 (OJ 1993 L 241, p. 1), and in                        Directive 89/594/EEC of 30 October 1989 amending Direc-
particular Note 1 to Chapter 8 of the Combined Nomenclature                    tives 75/362/EEC, 77/452/EEC, 78/686/EEC, 78/1026/EEC
— the Court (First Chamber), composed of: P. Jann (Rappor-                     and 80/154/EEC relating to the mutual recognition of diplomas,
teur), President of the Chamber, D.A.O. Edward and L. Sevón,                  certificates and other evidence of formal qualifications as doctors,
Judges; P. Léger, Advocate General; R. Grass, Registrar, has                   nurses responsible for general care, dental practitioners, veterinary
given a judgment on 28 April 1999, in which it has ruled:                      surgeons and midwives, together with Directives
                                                                               75/363/EEC,78/1027/EEC and 80/155/EEC concerning the
Article 1 of Commission Regulation (EC) No 1395/94 of 17 June                  coordination of provisions laid down by law, regulation or
1994 establishing a minimum import price for sour cherries must be             administrative action relating to the activities of doctors, vet-
interpreted as meaning that a countervailing charge may not be levied          erinary surgeons and midwives, the French Republic has failed to
in respect of sour cherries released for free circulation within the           fulfil its obligations under that directive;
Community at a low price, where their low price is attributable to
circumstances beyond the control of the importer and unconnected           2. Orders the French Republic to pay the costs
with the origin of the goods, such as a significant and unexpected
deterioration of the fruit.
                                                                           (1) OJ C 278 of 5.9.1998.
( 1) OJ C 94 of 28.3.1998.


5.9.98                 EN               Official Journal of the European Communities                                   C 278/13
Ð the view taken by the Court of First Instance,                       programmes provided for by Article 6 of Council
     according to which the Commission had three months                Directive 91/157/EEC (1) of 18 March 1991 on
     in which to complete its examination, is consistent               batteries and accumulators containing certain
     neither with the Aids Code nor with the need,                     dangerous substances, the Hellenic Republic has failed
     recognised by case-law, to complete that examination              to fulfil its obligations under the Treaty and that
     expeditiously,                                                    Directive,
Ð infringement of Article 6(6) of the Steel Aids Code and          Ð order the Hellenic Republic to pay the costs.
     breach of the general principles of law relating to aid:
     in proceeding on the basis of the legally erroneous
     premise that the Commission's competence is limited           Pleas in law and main arguments adduced in support:
     in time, the Court of First Instance disregarded the
     case-law of the Court of Justice, according to which a
                                                                   Under the third paragraph of Article 189 of the EC Treaty,
     definitive order for the repayment of aid must
                                                                   directives are binding, as to the result to be achieved,
     invariably be preceded by a conclusive opinion of the
                                                                   upon each Member State to which they are addressed.
     Commission finding the aid substantively illegal. By
                                                                   Under the first paragraph of Article 5 of the Treaty,
     concluding from a failure to comply with a time-limit
                                                                   Member States are to take all appropriate measures,
     Ð which not even the Commission regards as a
                                                                   whether general or particular, to ensure fulfilment of the
     prescriptive deadline, and which it has in numerous
                                                                   obligations arising out of the Treaty or resulting from
     parallel cases treated as a mere administrative deadline
                                                                   action taken by the institutions of the Community.
     for notification purposes Ð that the aid was
     substantively illegal, the Court of First Instance
     unlawfully confused the formal and the substantive            It is not disputed that, up until the time when this
     aspects of the aid procedure,                                 application was drafted, the Hellenic Republic still had
                                                                   not drawn up programmes for the period from 18 March
Ð breach of the prohibition of discrimination: in dealing          1993 to 18 March 1997 as provided for by Article 6 of the
     extremely summarily with this head of claim, the              Directive, nor had it communicated to the Commission
     Court of First Instance failed to comment on the              programmes to secure the objectives laid down by that
     comparison made by the appellant between its own              Article.
     situation and the aid case of EKO Stahl,
                                                                   The Commission is therefore obliged to find that the
Ð breach of the principle of protection of legitimate              Hellenic Republic has failed to fulfil its obligations under
     expectations,                                                 the Treaty and Directive 91/157/EEC.
Ð breach of the obligation to provide a statement of               (1) OJ L 78, 26.3.1991, p. 38.
     reasons.
(1) OJ C 166, 30.5.1998, p. 14.
(2) Decision No 3855/91/ECSC (OJ L 362, 31.12.1991, p. 57).
                                                                   Action brought on 16 June 1998 by the Commission of
                                                                     the European Communities against the French Republic
                                                                                (Case C-221/98)
Action brought on 10 June 1998 by the Commission of                                         (98/C 278/23)
 the European Communities against the Hellenic Republic
                        (Case C-215/98)
                                                                   An action against the French Republic was brought before
                         (98/C 278/22)                             the Court of Justice of the European Communities on
                                                                   16 June 1998 by the Commission of the European
                                                                   Communities, represented by Marie Wolfcarius, of its
An action against the Hellenic Republic was brought                Legal Service, acting as Agent, with an address for service
before the Court of Justice of the European Communities            in Luxembourg at the office of Carlos Gómez de la Cruz,
on 10 June 1998 by the Commission of the European                  Wagner Centre, Kirchberg.
Communities, represented by Maria Kondou-Durande,
of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of            The Commission of the European Communities claims
its Legal Service, Wagner Centre, Kirchberg.                       that the Court should:
The Commission claims that the Court should:                       1. declare that:
Ð declare that, by failing to adopt or to communicate                  Ð by not allowing students, who are nationals of
     to the Commission within the prescribed period the                     other Member States and seek to have their right
 ---pagebreak--- C 278/14              EN                 Official Journal of the European Communities                                      5.9.98
        to reside in France recognised, to assure the                  A fortiori, the fact that the French rules impose yet
        authorities that they have sufficient resources                further limits on the types of resources which can be
        solely by means of the declaration provided for by             taken into account when a residence permit is renewed
        the Directive, or by such alternative means chosen             is also contrary to the Directive. For the same reasons,
        by the student as are at least equivalent,                     the requirement that the student declare that he has at
                                                                       his disposal at least a certain amount established by
                                                                       the decree goes beyond what is permitted by the
    Ð by limiting the type and characteristics of the                  Directive, which leaves to the student responsibility for
        resources which may be taken into account as                   assessing the amount he will need to live and study
        evidence that the beneficiaries of Directive 90/364/           without becoming a burden on the social assistance
        EEC (1) meet the requirement that they have                    system of the host Member State,
        sufficient resources,
                                                                    Ð Incorrect transposition of Directive 90/364/EEC into
    Ð by limiting the types of sickness insurance which
                                                                       national law
        are taken into account as evidence that the
        beneficiaries of Directives 90/364/EEC, 90/365/
        EEC (2) and 93/96/EEC (3) meet the requirement
                                                                       Whilst Member States may, under paragraphs 2 and 3
        that they are covered by sickness insurance, and
                                                                       of Article 1 of the Directive, determine the minimum
                                                                       resources required to enjoy a right of residence, it
    Ð by stipulating that the competent authorities must               is not permissible for them to determine the
        check whether the beneficiaries of Directives 90/              characteristics or nature of those resources. The
        364/EEC, 90/365/EEC and 93/96/EEC are still able               requirement of regular resources seems to preclude
        to provide a certificate of cover under a sickness             consideration of factors such as:
        insurance scheme, where the first certificate is
        valid for a shorter period than the residence                  Ð occupation of a house as owner or made available
        permit,                                                             free of charge by the owner,
                                                                       Ð paid work (in itself too unimportant or minor to
    the French Republic has failed to fulfil its obligations
                                                                            count as employment within the meaning of
    under Directive 90/364/EEC, Directive 90/365/EEC
                                                                            Article 48 of the EC Treaty),
    and Directive 93/96/EEC.
                                                                       Ð access to irregular resources (such as royalties) or
2. order the French Republic to pay the costs.                              resources provided by a relative, cohabitee or
                                                                            friend who can act as guarantor,
Pleas in law and main arguments adduced in support:                    Ð access to a small amount of capital (not producing
                                                                            income),
Ð Incorrect transposition of Directive 93/96/EEC into
    national law                                                       Ð absence abroad for part of the year.
                                                                       The Commission is aware that such situations may
    Directive 93/96/EEC prohibits Member States from                   give rise to difficulties where it is a matter of assessing
    requiring other proof or documents relating to                     the value of various resources to determine whether
    resources where a foreign student has chosen to make               their total is higher than the minimum level fixed
    the declaration provided for in Article 1. That                    under subparagraphs 2 and 3 of Article 1(1) of
    interpretation Ð which simply reflects the actual                  Directive 90/364/EEC. However, this is a practical
    wording of the relevant passage of the provision in                difficulty which does not in itself allow certain
    question Ð is confirmed by the structure and origin of             resources to be disregarded because of their type or
    the Directive and by comparison with Directives 90/                characteristics,
    364/EEC and 90/365/EEC.
                                                                    Ð Incorrect transposition of the three Directives into
    Although an affidavit' in a form determined by the                national law as regards the requirement of sickness
    authorities is not in itself contrary to Directive 93/96/          insurance cover against all risks in the host Member
    EEC, the requirement that a student declare that he                State
    has adequate, regular resources, payment of which is
    not liable to be interrupted or reduced by a change of
    residence', clearly goes beyond what is permissible                No doubt the three types of documentary evidence
    under the Directive. Moreover, it is a declaration                 required by the French rules cover the vast majority of
    which certain students will not always be able to                  cases. Moreover, in certain situations, beneficiaries
    make, if, for example, they intend to supplement their             can obtain cover under French sickness insurance
    resources by means of some form of paid employment.                schemes. However, the Commission considers that
 ---pagebreak--- 5.9.98                 EN                   Official Journal of the European Communities                                       C 278/15
     these provisions, which list exhaustively the types of                 of occupational conditions to be undertaken in an
     sickness insurance allowed, do not cover all potential                 equal treatment case should be made by way of an
     circumstances and are therefore too restrictive,                       overall assessment of all the factors en bloc or by way
                                                                            of a point-for-point comparison as in equal pay cases.
Ð Incorrect transposition of the three directives into
     national law as regards verification of continued                      It can be assumed in answering the question that
     sickness insurance cover                                               the transformationsmodel' (reorganisation scheme
                                                                            for medical specialists' practices, hereinafter the
     Whilst, under Article 3 of Directives 90/364/EEC and                   reorganisation scheme')/agreement assessed en bloc
     90/365/EEC and under Article 4 of Directive 93/96/                     and as a whole is neutral as regards sex in both its
     EEC, a right of residence can be revoked when the                      effect and purpose.
     person concerned no longer meets the conditions laid
     down, in particular that regarding sickness insurance
     cover, that provision cannot be construed so as                        It can further be assumed that the reorganisation
     to allow active and constant monitoring by the                         scheme/agreement contains provisions which, viewed
     authorities responsible for issuing residence permits                  in isolation, result in sex bias, inasmuch as it is noted
     of the position of the beneficiaries of Directives 90/                 that that biased effect, with regard to some provisions,
     364/EEC, 90/365/EEC and 93/96/EEC. Any other                           is predominantly experienced by female medical
     approach would be contrary, not only to those                          specialists and, with regard to other provisions, is
     Directives, but, more fundamentally, to the principles                 predominantly       experienced       by     male    medical
     embodied in Article 8a of the EC Treaty.                               specialists.
(1) Council Directive 90/364/EEC on the right of residence (OJ         2. If the answer to question 1 is in the affirmative, a
    L 180, 13.7.1990, p. 26).                                               ruling is requested as to how far considerations
(2) Council Directive 90/365/EEC on the right of residence for
                                                                            relating to budgetary safeguards, savings and planning
    employees and self-employed persons who have ceased their
    occupational activity (OJ L 180, 13.7.1990, p. 28).                     as regards medical practices may be treated as
(3) Council Directive 93/96/EEC on the right of residence for               objective and valid considerations such as to make it
    students (OJ L 317, 18.12.1993, p. 59).                                 acceptable that proportionately more women than
                                                                            men are affected by the provision in question.
                                                                       3. In view of the applicant's age (she was born in 1939),
                                                                            can the consideration for goodwill which the applicant
                                                                            should obtain when she gives up her practice on
Reference for a preliminary ruling by the éstre Landsret                    reaching retirement age be likened to an employee's
by a decision of that court of 4 June 1998 in the case of                   pension savings?
Birgitte Jùrgensen v. Foreningen af Speciallñger and Syge-
                 sikringens Forhandlingsudvalg
                         (Case C-226/98)                               4. If the Court of Justice replies to question 3 in
                                                                            the affirmative, clarification is sought as to the
                           (98/C 278/24)                                    repercussions for the answer to question 1 if one
                                                                            aspect of the disadvantage to which the provision in
                                                                            question gives rise is lower consideration for goodwill
Reference has been made to the Court of Justice of the                      when a practice is relinquished, and thereby worse
European Communities by order of the éstre Landsret                         pension insurance, if account is taken of the fact that
(Eastern Regional Court) of 4 June 1998, which was                          in Case C-297/93 Grau-Hupka [1994] ECR 5535,
received at the Court Registry on 24 June 1998, for a                       paragraph 27, it was held that the Member States are
preliminary ruling in the case of Birgitte Jùrgensen v. Fore-               not obliged to grant advantages in respect of old-age
ningen af Speciallñger and Sygesikringens Forhandlings-                     pension schemes to persons who have brought-up
udvalg on the following questions:                                          children or to provide benefit entitlements where
                                                                            employment has been interrupted in order to bring up
                                                                            children.
1. The Court of Justice is asked to clarify how
     an assessment as to whether there is indirect
     discrimination on grounds of sex should be                        (1) On the implementation of the principle of equal treatment for
     undertaken in a case concerning equal treatment under                 men and women as regards access to employment, vocational
     Council Directive 76/207/EEC (1) of 9 February 1976                   training and promotion, and working conditions (OJ L 39,
                                                                           14.2.1976, p. 40).
     and Council Directive 86/613/EEC (2) of 11 December
                                                                       (2) On the application of the principle of equal treatment between
     1986.                                                                 men and women engaged in an activity, including agriculture,
                                                                           in a self-employed capacity, and on the protection of self-
                                                                           employed women during pregnancy and motherhood (OJ
     In view of the fact that under the settled case-law of                L 359, 19.12.1986, p. 56).
     the Court of Justice in equal pay cases a comparison
     should be made on a point-for-point-basis,
     clarification is requested as to whether the comparison