title: ORDER OF THE COURT OF FIRST INSTANCE of 4 July 1997 in Case T-93/94 (92): Michael Becker v. Court of Auditors of the European Communities (Taxation of costs)

text:
18 . 10 . 97          EN                   Official Journal of the European Communities                                   C 318/ 13
Reference for a preliminary ruling from the Landskrona                1 . Can a Directive adopted pursuant to Article 100a of
Tingsrätt by order of that court of 6 August 1997 in the                  the Treaty of Rome have direct effect ?
             case of Åklagaren v. Antoine Kortas
                        ( Case C-3 19/97 )                            2 . If so, can such a Directive have direct effect even if the
                                                                          State has made notification pursuant to Article 100a (4 )
                          ( 97/C 318/24 )                                 of the Treaty of Rome ?
Reference has been made to the Court of Justice of the                3 . If Question 2 is answered in the affirmative, how does
European Communities by an order of the Landskrona                        the notification by the Member State affect the
Tingsrätt ( District Court, Landskrona ) of 6 August 1997,                question of direct effect during the following periods:
which was received at the Court Registry on 16 September                   ( a ) between notification and reply ?
1997, for a preliminary ruling in the case of Åklagaren v.
Antoine Kortas on the following questions:                                 ( b ) from the reply ?
                                                     COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                             4 . orders the applicant to pay the costs.
                     of 18 September 1997
                                                                      H OJ C 318 , 26 . 10. 1996 and
in Joined Cases T-121/96 and T-151/96: Mutual Aid                         OJ C 40, 8 . 2 . 1997.
Administration Services NV (MAAS ) v. Commission of the
                  European Communities (')
(Actions for the free supply of agricultural products to the
peoples of Georgia, Armenia, Azerbaijan, Kyrgyzstan and
Tajikistan — Successful tenderer's duty to pay dispatch
                               money)
                                                                           ORDER OF THE COURT OF FIRST INSTANCE
                           ( 97/C 318/25 )
                                                                                of 4 July 1997
                                                                      in Case T-93/94 ( 92 ): Michael Becker v. Court of
                (Language of the case: Dutch)                                     Auditors of the European Communities ( l )
                                                                                (Taxation of costs)
In Joined Cases T-121/96 and T-151 /96 : Mutual Aid                                              ( 97/C 318/26 )
Administration Services NV ( MAAS ), established in
Antwerp ( Belgium ), represented by Jan Tritsmans and
Koenraad Maenhout, of the Antwerp Bar, with an address
                                                                                (Language of the case: German)
for service in Luxembourg at the Chambers of Rene Faltz,
6 Rue Heinrich Heine, against Commission of the
European Communities ( Agents: Blanca Vila Costa and
Hubert van Vliet) — application for annulment of the                  In Case T-93/94 ( 92 ): Michael Becker, an official of the
Commission's decisions requiring the applicant to pay                 Court of Auditors of the European Communities, residing
dispatch money — the Court of First Instance ( Fourth                 in Luxembourg, represented by Roy Nathan, of the
Chamber), composed of: K. Lenaerts, President, R Lindh                Luxembourg Bar, with an address for service in
and J. D. Cooke, Judges; A. Mair, Administrator, for the              Luxembourg at the latter's Chambers, 18 Rue des Glacis,
Registrar, has given a judgment on 18 September 1997, in              against the Court of Auditors of the European
which it:                                                             Communities ( Agents: Jean-Marie Stenier, Jan Inghelram
                                                                      and Paolo Giusta ) — application for taxation of costs
                                                                      following the judgment of the Court of First Instance of
                                                                      6 March 1996 in Case T-93/94 ( Becker v. Court of
 1 . orders that Cases T-121 /96 and T-151 /96 he joined for          Auditors [ 1996] ECR II p. 141 ) — the Court of First
     the purposes of judgment;                                        Instance ( First Chamber ), composed of: A. Saggio,
                                                                      President, V. Tiili and R. M. Moura Ramos, Judges; H.
                                                                      Jung, Registrar, has given a judgment on 4 July 1997, in
2 . dismisses    the   application     in  Case   T-121 /96   as      which it:
     inadmissible:
                                                                      fixes the total amount of costs recoverable by the
3 . dismisses the application in Case T-151 /96;                      applicant up to the date of this order, including costs
 ---pagebreak--- C 318/ 14                 EN                  Official Journal of the European Communities                                   18 . 10 . 97
already reimbursed, at Lfrs 180 000, together with any                   of the Rotterdam Bar, with an address for service in
VAT due on that sum.                                                     Luxembourg at the Chambers of M. Loesch, 11 Rue
                                                                         Goethe, against Council of the European Union ( Agents:
(') OJ C 120, 30 . 4 . 1994 .                                            R. Torrent, J. Huber and G. Houttuin ), supported by
                                                                         Commission of the European Communities ( Agent: T. van
                                                                         Rijn ), Kingdom of Spain ( Agent: R. Silva de Lapuerta ),
                                                                         French Republic ( Agents: K. Rispal-Bellanger and, at the
                                                                         hearing of the parties, C. Chavance ) and Italian Republic
                                                                         (Agents: U. Leanza and F. Quadri ) — application for
                                                                         interim measures in the form of an order of the President
       ORDER OF THE COURT OF FIRST INSTANCE
                                                                         of the Court of First Instance enjoining the applicant and
                             of 11 July 1997                             defendant to negotiate a minimum price for imports into
in Case T-16/97: Bruno Chauvin v. Commission of the                      the Community of rice originating in the Netherlands
                       European Communities (')                          Antilles, to replace the tariff quotas introduced by Council
                                                                         Regulation ( EC ) No 1036/97 of 2 June 1997 introducing
(Officials — Judgment of the Court of First Instance —                   safeguard measures in respect of imports of rice
Application for reclassification in grade — Objection of                 originating in the overseas countries and territories ( OJ
      inadmissibility — Material new fact — Admissibility)               L 151 , 10 . 6 . 1997, p. 8 ), and to submit their conclusions
                                97/C 318/27 )                            to him within seven days — the President of the Court of
                                                                         First Instance made an order on 15 July 1997, the
                                                                         operative part of which is as follows:
                   (Language of the case: French)
In Case T-16/97: Bruno Chauvin, an official of the                       1 . The Kingdom of Spain, the French Republic, the
Commission of the European Communities, residing in                          Italian Republic and the Commission are granted leave
Brussels, represented by Nicolas Lhoëst, of the Brussels                     to intervene in support of the defendant in the
Bar, with an address for service in Luxembourg at the                        interlocutory proceedings.
office of Fiduciaire Myson sari, 30 Rue de Cessange, v.
Commission of the European Communities ( Agents :
Florence Clotuche and Christine Berardis-Kayser ) —                      2 . The application for interim measures is dismissed.
application for annulment of the Commission's decision of
18 June 1996 rejecting the applicant's request for a review
                                                                         3.   Costs are reserved.
of his classification in grade — the Court of First Instance
( First Chamber), composed of: B. Vesterdorf, President;
C. P. Briët and A. Potocki, Judges; H. Jung, Registrar,
made an order on 11 July 1997, the operative part of
which is as follows :
1 . The application is dismissed as inadmissible.                            ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 18 July 1997
2. The parties are ordered to bear their own costs.
                                                                         in Case T-180/95 : Nutria AE v. Commission of the
( ] ) OJ C 74, 8 . 3 . 1997.                                                                European Communities ( 1 )
                                                                         (Tendering procedure for the free supply of olive oil to the
                                                                         people of Georgia and Armenia — Damage alleged by the
                                                                         successful tenderer as a result of a delay in the collection
                                                                         of the olive oil by the carrier designated by the
                                                                         Commission       —   Action     to  establish non-contractual
                  ORDER OF THE PRESIDENT                                 liability — Contractual origin of the Commission 's
           OF THE COURT OF FIRST INSTANCE                                obligation on which the action is based — Absence of any
                             of 15 July 1997                             arbitration clause within the meaning of Article 181 of the
                                                                         EC Treaty — Clear lack of jurisdiction on the part of the
in Case T-l 79/97 R: Government of the Netherlands
                                                                                Court of First Instance)
           Antilles v. Council of the European Union
                                                                                ( 97/C 318/29 )
(Association of the overseas countries and territories —
Safeguard measure — Interlocutory proceedings —
     Application for interim measures — Urgency — None)                                   (Language of the case: Greek)
                              ( 97/C 318/28 )
                                                                         In Case T-180/95 , Nutria AE, established in Athens,
                   (Language of the case: Dutch)                         represented by Konstantinos Adamantopoulos, of the
                                                                         Athens Bar, with an address for service in Luxembourg at
In Case. T-179/97 R, Government of the Netherlands                       the Chambers of Arsène Kronshagen, 12 Boulevard de la
Antilles, represented by P. V. F. Bos and M. M. Slotboom,                Foire, against Commission of the European Communities


title: Case C-308/11: Judgment of the Court (Fifth Chamber) of 6 September 2012 (reference for a preliminary ruling from the Oberlandesgericht Frankfurt am Main — Germany) — Chemische Fabrik Kreussler & Co. GmbH v Sunstar Deutschland GmbH, formerly John O. Butler GmbH (Directive 2001/83/EC — Medicinal products for human use — Article 1(2)(b) — Meaning of ‘medicinal product by function’ — Definition of the term ‘pharmacological action’ )

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/9

      Judgment of the Court (Fifth Chamber) of 6 September 2012 (reference for a preliminary ruling from the Oberlandesgericht Frankfurt am Main — Germany) — Chemische Fabrik Kreussler & Co. GmbH v Sunstar Deutschland GmbH, formerly John O. Butler GmbH
      (Case C-308/11) (1)

      (Directive 2001/83/EC - Medicinal products for human use - Article 1(2)(b) - Meaning of ‘medicinal product by function’ - Definition of the term ‘pharmacological action’)
      (2012/C 331/13)
      Language of the case: German

         Referring court

      Oberlandesgericht Frankfurt am Main

         Parties to the main proceedings

         Applicant: Chemische Fabrik Kreussler & Co. GmbH

         Defendant: Sunstar Deutschland GmbH, formerly John O. Butler GmbH

         Re:

      Reference for a preliminary ruling — Oberlandesgericht Frankfurt am Main — Interpretation of Article 1(2)(b) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 (OJ 2004 L 136, p. 34) — Classification of a product as a medicinal product — Mouthwash containing 0,12 % chlorhexidine — Definition of ‘pharmacological action’

         Operative part of the judgment

                  1.

                  Article 1(2)(b) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, must be interpreted as meaning that, for the purpose of defining the term ‘pharmacological action’ within the meaning of that provision, account may be taken of the definition of that term in the Guidance Document on the demarcation between the Cosmetic Products Directive 76/768 and the Medicinal Products Directive 2001/83 as agreed between the Commission services and the competent authorities of the Member States.

                  2.

                  Article 1(2)(b) of Directive 2001/83 must be interpreted as meaning that, for a substance to be regarded as exerting a ‘pharmacological action’ within the meaning of that provision, it is not necessary for there to be an interaction between the molecules of which it consists and a cellular constituent of the user’s body, as an interaction between that substance and any cellular constituent present within the user’s body may be sufficient.

         (1)  OJ C 282, 24.9.2011.


title: Case T-574/08: Action brought on 24 December 2008 — Syndicat des thoniers méditerranéens and Others v Commission

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/41

         Action brought on 24 December 2008 — Syndicat des thoniers méditerranéens and Others v Commission
   (Case T-574/08)
   (2009/C 69/94)
   Language of the case: French
   Parties

      Applicants: Syndicat des thoniers méditerranéens (Marseille, France), Jean-Luc Buono, Gérard Buono, Marc Carreno, Roger Louis Paul Del Ponte (Balaruc les Bains, France), Serge Antoine Di Rocco (Frontignan, France), Jean Louis Donnarel, Jean-François Flores, Jean Louis Étienne Jalabert (Sigean, France), Jean Gérald Lubrano (Marseille, France), Gérald Jean Lubrano (Balaruc les Bains, France), Jean Lubrano, Jean Lucien Lubrano, Fabrice Marin, Robert Marin, Hervé Marin, Nicolas Marin, Sébastien Marin, Jean-Marc Penniello, Serge Antoine José Perez (Sorède, France) (represented by: C. Bonnefoi, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declare that the European Commission is liable in respect of the consequences of the implementation of Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea;

               —

               Order payment of compensation commensurate with the consequences of that finding of liability; that compensation is estimated on the basis of the attached evidence and is in the process of confirmation; it is stated in EUR:

                           —

                           Buono Jean-Luc and Gérard: 323 053 or 564 956 (according to whether before or after taxation);

                           —

                           Carreno Marc: symbolic EUR 1;

                           —

                           Del Ponte Roger: 518 707 or 703 707 (according to whether before or after taxation);

                           —

                           Di Rocco Serge: 388 047 or 634 207 (according to whether before or after taxation);

                           —

                           Donnarel Jean-Louis: 351 685;

                           —

                           Flores Jean-François: symbolic EUR 1;

                           —

                           Jalabert Jean Louis Etienne: 144 643;

                           —

                           Lubrano Jean and Lubrano Jean Lucien: 212 358;

                           —

                           Lubrano Jean-Gérald: 237 160 or 474 320 (according to whether before or after taxation);

                           —

                           Lubrano Gérald: 213 588;

                           —

                           Marin Fabrice and Marin Robert: 466 665 or 610 820 (according to whether before or after taxation);

                           —

                           Marin Hervé, Marin Nicolas, Marin Robert and Marin Sébastien: symbolic EUR 1;

                           —

                           Penniello Jean-Marc: 624 000;

                           —

                           Perez Serge Antoine: 54 645;

               —

               Order payment of compensation for non-pecuniary losses to the Syndicat des thonniers méditerranéens commensurate with the consequences of that finding of liability, that is to say, a lump sum of EUR 30 000 which will be used to provide members with information regarding Community fishing law and legislation;

               —

               Order payment of all legal costs, fees and disbursements, details of which will be provided, arising out of the present proceedings.

         Pleas in law and main arguments
   The applicants, who are sea-fishermen, and their union seek compensation for the loss which they consider they have suffered because of the adoption of Commission Regulation (EC) No 530/2008 (1) prohibiting fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea by purse seiners flying the Greek, French, Italian, Cypriot, Maltese or Spanish flag or registered in those Member States.
   In support of their action, the applicants put forward a number of pleas in law and arguments alleging, respectively:

               —

               breach of the principles of the Code of Conduct annexed to the internal rules of the Commission, since the Commission did not hold a meeting with the Syndicat des thoniers méditerranéens, despite having promised to do so;

               —

               failure to compensate the applicant whose fishing activities are prohibited even though they have not yet filled their quota;

               —

               that the measures adopted by the Commission do not constitute a mere risk inherent to the sector of activity for which the applicants should not be compensated;

               —

               a lack of evidence of the need for the measures adopted, since those measures were adopted on the basis of mathematical extrapolations which do not constitute proof;

               —

               that the measures at issue were not adopted on the basis of a serious threat;

               —

               breach of the principle of legal certainty, since the Regulation at issue closing fishing of bluefin tuna was adopted in a very short time and annulled provisions which had just opened the fishing season;

               —

               breach of the fundamental rights guaranteed by the Charter of fundamental rights of the European Union (2), more specifically of the right to engage in work and the right to property.

      (1)  Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea (OJ 2008 L 155, p. 9).

      (2)  OJ 2000 C 364, p. 1.


title: Case C-373/14 P: Appeal brought on 31 July 2014 by Toshiba Corporation against the judgment of the General Court (Third Chamber) delivered on 21 May 2014 in Case T-519/09: Toshiba Corporation v European Commission

text:
               29.9.2014

               EN

               Official Journal of the European Union

               C 339/15

         Appeal brought on 31 July 2014 by Toshiba Corporation against the judgment of the General Court (Third Chamber) delivered on 21 May 2014 in Case T-519/09: Toshiba Corporation v European Commission
   (Case C-373/14 P)
   2014/C 339/18
   Language of the case: English

      Parties

      Appellant: Toshiba Corporation (represented by: J. F. MacLennan, solicitor, A. Schulz, Rechtsanwalt, J. Jourdan, and P. Berghe, avocats)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the judgment of the General Court of 21 May 2014 in Case T-519/09 Toshiba Corporation v European Commission insofar as it rejected Toshiba’s claim for annulment of Articles 1 and 2 of the Decision of the European Commission in case COMP/39.129 — Power Transformers and annul the Decision;

               —

               Alternatively, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law; and, in any event

               —

               Award Toshiba its costs, including its costs in the proceedings before the General Court.

      Pleas in law and main arguments

   The applicant challenges the judgment of the General Court of 21 May 2014 in Case T-519/09 Toshiba Corporation v European Commission (the ‘Contested Judgment’), in which Toshiba Corporation (‘Toshiba’) applied for the annulment of a decision of the European Commission in case COMP/39.129 — Power Transformers. In the judgment under appeal, the General Court dismissed Toshiba’s application on all grounds and ordered Toshiba to pay the costs. In the present appeal, Toshiba submits that the General Court committed the following errors of law:

               —

                  First plea: Toshiba submits that the General Court applied the wrong legal test when considering that the Japanese manufacturers of power transformers were potential competitors on the EEA market (1) on the ground that barriers to entry on the EEA market were not insurmountable and (2) on the basis of the existence of the Gentlemen’s Agreement, instead it should have verified if the Japanese producers had real concrete possibilities to enter the EEA market and that such an entry was an economically viable strategy. In the absence of potential competition between Japanese and European producers, the Gentlemen’s Agreement could not infringe Article 81 EC and the Commission lacked jurisdiction to pursue a case. The Contested Judgment and Contested Decision should therefore be annulled as regards Toshiba.

               —

                  Second plea: Toshiba submits that the General Court distorted the content of a letter in which another party to the proceedings stated that it would not challenge the Commission’s findings. The Commission considered that the letter superseded that party’s previous statements confirming that it had not made any sales in the EEA. However, this is a distortion of the evidence on which the General Court relies to find that the barriers to entry on the EEA market were not insurmountable. Toshiba therefore submits that the Contested Judgment and Contested Decision should be annulled.

               —

                  Third plea: Toshiba submits that the General Court gave contradictory reasoning, applied the wrong legal test for public distancing and violated the principle of personal liability by considering that Toshiba’s argument regarding its non-participation in the 2003 Zurich meeting was ‘ineffective’. The Contested Judgment and Contested Decision should therefore be annulled in so far as they conclude that Toshiba continued to participate in the Gentlemen’s Agreement until May 2003.

               —

                  Fourth plea: Toshiba submits that the General Court gave the wrong interpretation to paragraph 18 of the Fining Guidelines in applying global market shares as a proxy for the parties’ weight in the infringement. The Contested Judgment and Contested Decision should therefore be annulled in so far as they calculate Toshiba’s fine on the basis of Toshiba’s worldwide market share and Toshiba’s fine should be reduced accordingly.


title: Case C-451/04: Action brought on 27 October 2004 by the Commission of the European Communities against the French Republic

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/7

         Action brought on 27 October 2004 by the Commission of the European Communities against the French Republic
   (Case C-451/04)
   (2004/C 314/14)
   An action against the French Republic was brought before the Court of Justice of the European Communities on 27 October 2004 by the Commission of the European Communities, represented by C. O'Reilly and A.-M. Rouchaud-Joët, acting as Agents, with an address for service in Luxembourg.
   The Commission of the European Communities claims that the Court should:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (1) or, in any event, by failing to inform the Commission of them, the French Republic has failed to fulfil its obligations under that directive;

               2.

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposing the directive into national law expired on 31 December 2002.

      (1)  OJ L 212 of 7.8.2001, p. 12.


title: Case C-161/04: Actionbrought on 30 March 2004 by the Republic of Austriaagainst the European Parliament and the Council of the European Union (fax of 24 March 2004)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/49

         Action brought on 30 March 2004 by the Republic of Austria against the European Parliament and the Council of the European Union (fax of 24 March 2004)
   (Case C-161/04)
   (2004/C 106/86)
   An action against the European Parliament and the Council of the European Union was brought before the Court of Justice of the European Communities on 30 March 2004 (fax of 24 March 2004) by the Republic of Austria, represented by Harald Dossi, acting as Agent, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul Regulation (EC) No 2327/2003 of the European Parliament and of the Council of 22 December 2003 establishing a transitional points system applicable to heavy goods vehicles travelling through Austria for 2004 within the framework of a sustainable transport policy; (1)

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:
   In the opinion of the Republic of Austria, Regulation (EC) No 2327/2003 of the European Parliament and of the Council of 22 December 2003 should be declared void on the following grounds:

               —

               Infringement of the primary-law principle of proportionality

         In light of the scientifically supported prognosis, the contested regulation falls to be classified as being (entirely) inappropriate for attaining the objective, set out in its preamble, of reducing pollution by heavy goods traffic as a sustainable and environmentally acceptable solution.
   Further, the burdens imposed by the regulation are out of all reasonable proportion to the means provided for achieving that objective.
   On the basis of a cost estimate established by the operator of the electronic ecopoint system applying up to now, it is to be assumed that the restructuring and/or reinforcement of the ecopoint system in force up to 31 December 2003 that will be required for the purpose of implementing the contested regulation, in conjunction with the current operating and maintenance works, will involve costs totalling some EUR 9 million.
   As implementation of the contested regulation would give rise to costs in the region of EUR 9 million and ultimately only an increase in emissions could thereby be ‘achieved’, the contested regulation infringes in any event the primary-law principle of proportionality and for that reason alone must therefore be declared void.

               —

               Breach of obligations under the environment ‘cross-section clause’ in Article 6 EC

         The contested regulation fails to do justice to the guarantee of maximal and optimal environmental protection laid down in Article 6 EC, because it will bring about, not a reduction, but rather an increase in emissions. To that extent the contested regulation (also) breaches Article 6 EC.

               —

               Breach of primary-law obligations under Article 11 of Protocol No 9 on Road, Rail and combined Transport in Austria

         The contested regulation is also unlawful inasmuch as it is at variance with the primary-law obligations under the Transit Protocol. Although the ecopoint system expired at the end of 2003, the objective of a sustainable and environmentally appropriate resolution of the environmental problems caused by traffic, implicit in the Transit Protocol, none the less remains unachieved.
   The transitional provisions in Article 11 of the Transit Protocol cannot be construed as meaning that the rules on protection of the environment and the health of the population, initially guaranteed in the EEC-Austria Transit Agreement and subsequently incorporated in the Transit Protocol, were simply to ‘expire’ (without being replaced) after a specified transitional period and be mandatorily ‘tipped over’ into a Community-law system providing a (significantly) lower standard of protection.
   Such transitional provisions would in large measure lose their useful effect and ought therefore to have been expressly and unequivocally designated as being transitional, had the Member States, as ‘Lords of the Treaties’, actually so intended.
   If the objective of the transit regime - videlicet, protection of the environment and health of the population in general and a 60 % reduction in NOx emissions in particular - is also to apply after expiry of the transitional period on 31 December 2003, that objective, as a constituent part of the Transit Protocol and thus part of primary Community law, is binding on the European Community.
   The Community is in this case obligated to continue to comply with the objective of the transit regime. Provisions of secondary law which do not permit attainment of that objective must be classified as unlawful. The contested regulation fails in any event to achieve the binding objective deriving from the Transit Protocol and is for that reason at variance with primary law.
   As is clear from the traffic and emissions report of 1 March 2004 entitled ‘LKW-Transitverkehr durch Österreich: Bilanz und Ausblick’ (‘HGV transit traffic through Austria: a balance and outlook’), it falls to be assumed that at any rate when the contested regulation comes into force there will be an increase in emissions, quite apart from the fact that the objective under Protocol No 9 to the 1994 Act of Accession (OJ 1994 C 241 of 29 August 1994, p. 361), that is to say, a reduction of nitrous oxide emissions of 40 % vis-à-vis the base value, could not be achieved at any given point during the period for which the agreement ran or on a permanent basis. Those emissions could, for the year 2006, amount to as much as 133 % or, viewed realistically, even 260 % (measured against the abovementioned base value).

               —

               Infringement of the primary-law principle of certainty

         The contested regulation is contrary to the Community-law principle of certainty and is for that reason at variance with primary law.

      (1)  OJ 2003 L 345, p. 30.


title: Case T-741/15: Action brought on 18 December 2015 — British Aggregates e.a. v Commission

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/38

         Action brought on 18 December 2015 — British Aggregates e.a. v Commission
   (Case T-741/15)
   (2016/C 068/48)
   Language of the case: English

      Parties

      Applicants: British Aggregates Association (Lanark, United Kingdom), Tinney Quarries Ltd (St. Johnston, Ireland), MBC Quarries Ltd (Ballybofey, Ireland), Mac Sand Ltd (Stranorlar, Ireland) (represented by: L. Van den Hende, lawyer, and A. White, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               order the annulment of the Commission Decision of 4 August 2014 published in the Official Journal of the European Union on 25 September 2015 on the Aid Scheme SA.18859 (11/C) (ex 65/10 NN) implemented by the United Kingdom — Relief from Aggregates Levy in Northern Ireland (ex N 2/04); and

               —

               order the Commission to pay the applicants’ costs in these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission has made an error of law in determining that the breach of Article 110 TFUE, and thereby of Article 107 TFEU, could be retroactively rectified and thereby render the relief from the Aggregates Levy for Northern Ireland compatible with the internal market.

               2.

               Second plea in law, alleging that, in the alternative to the first plea in law, the Commission has made an error of law and errors of assessment in determining that the retroactive remedy undertaken by the United Kingdom was compatible with the principle of effectiveness and the right to an effective remedy.

               3.

               Third plea in law, alleging that the Commission has made errors of assessment in determining that the relief from the Aggregates Levy for Northern Ireland was compatible with the Community guidelines on State aid for environmental protection (1) (2008 Environmental Aid Guidelines), and thereby with Article 107(3)(c) TFEU. In particular, the Commission has made errors of assessment in finding that the third limb of the necessity criterion under the 2008 Environmental Aid Guidelines had been fulfilled, namely whether or not Northern Irish quarries could not pass on the Aggregates Levy to customers without leading to important sales reductions.

               4.

               Fourth plea in law, alleging that the Commission has failed to make a genuinely diligent and impartial examination as to whether the retroactive remedy undertaken by the United Kingdom was compatible with the principle of effectiveness and the right to an effective remedy, and as to whether the third limb of the necessity test under the 2008 Environmental Aid Guidelines had been fulfilled.

               5.

               Fifth plea in law, alleging that the Commission has failed to state reasons in accordance with Article 296 TFEU on why the retroactive remedy undertaken by the United Kingdom was compatible with the principle of effectiveness and the right to an effective remedy, and on why the third limb of the necessity test under the 2008 Environmental Aid Guidelines had been fulfilled.

      (1)  Community guidelines on State aid for environmental protection, OJ 2008 C 82, p. 1.


title: Case T-534/15: Action brought on 16 September 2015 — LG Electronics v OHIM — Cyrus Wellness Consulting (Viewty GT)

text:
               9.11.2015

               EN

               Official Journal of the European Union

               C 371/38

         Action brought on 16 September 2015 — LG Electronics v OHIM — Cyrus Wellness Consulting (Viewty GT)
   (Case T-534/15)
   (2015/C 371/39)
   Language in which the application was lodged: English

      Parties

      Applicant: LG Electronics, Inc. (Seoul, Republic of Korea) (represented by: M. Graf, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Other party to the proceedings before the Board of Appeal: Cyrus Wellness Consulting GmbH (Berlin, Germany)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word elements ‘Viewty GT’ — Community trade mark application No 9 017 237

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 12 June 2015 in Joined Cases R 1937/2014-2 and R 1564/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-454/09: Action brought on 19 November 2009 — Commission of the European Communities v Italian Republic

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/33

         Action brought on 19 November 2009 — Commission of the European Communities v Italian Republic
   (Case C-454/09)
   2010/C 24/60
   Language of the case: Italian

      Parties

      Applicant: Commission of the European Communities (represented by: E. Righini and B. Stromsky, agents)

      Defendant: Italian Republic

      Form of order sought

               —

               Declare that, by failing to take, within the prescribed time-limits, all the measures necessary to withdraw the aid considered unlawful and incompatible with the common market by Commission Decision No 2008/697/EC (1) of 16 April 2008 on State Aid C 13/07 (ex NN 15/06 and N 734/06) implemented by Italy for New Interline (notified under document number C(2008) 1321 on 17 June 2008), the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision and the EC Treaty.

               —

               order the Italian Republic to pay the costs.

      Pleas in law and main arguments

   The time limit within which Italy was required to withdraw and recover the unlawfully paid aid expired four months after the date of notification of the decision in question. More than a year later, the Italian authorities have yet to adopt the measures necessary to implement the decision and recover the aid.

      (1)  OJ 2008 L 235, p. 12.


title: Case T-81/15: Action brought on 20 February 2015  — Facchinello v OHIM — Olimpia Splendid (Synthesis)

text:
               13.4.2015

               EN

               Official Journal of the European Union

               C 118/41

         Action brought on 20 February 2015 — Facchinello v OHIM — Olimpia Splendid (Synthesis)
   (Case T-81/15)
   (2015/C 118/53)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Danila Facchinello (Molinella, Italy) (represented by: F. Torlontano, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Other party to the proceedings before the Board of Appeal: Olimpia Splendid SpA (Gualtieri, Italy)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word element ‘Synthesis’ — Community trade mark No 2 8 71  069

      Procedure before OHIM: Revocation proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 21 November 2014 in Case R 2169/2013-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of OHIM of 21 November 2014 and, consequently, declare that the Community trade mark Synthesis is not revoked in respect of goods in Class 11 (apparatus for air conditioning);

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 51(1)(a) of Regulation No 207/2009, insofar as the First Board of Appeal revoked the Community trade mark on the ground that the evidence adduced by its proprietor was not capable of establishing genuine use of that mark.


title: Case T-545/13: Action brought on 8 October 2013 — Al Matri v Council

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/18

         Action brought on 8 October 2013 — Al Matri v Council
   (Case T-545/13)
   2013/C 359/35
   Language of the case: English

      Parties

      Applicant: Fahed Mohamed Sakher Al Matri (Doha, Qatar) (represented by: M. Lester, Barrister, and G. Martin, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Council Implementing Decision 2013/409/CFSP (1) and Council Implementing Regulation (EU) No 735/2013 (2), insofar as they apply to the applicant; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the defendant has manifestly erred in its assessment that the criteria for listing in the contested measures were fulfilled as regards the applicant.

               2.

               Second plea in law, alleging infringement of the applicant’s rights of defence and to effective judicial protection.

               3.

               Third plea in law, alleging failure to give adequate reasons.

               4.

               Fourth plea in law, alleging an unjustified and disproportionate restriction of the applicant’s right to property and to conduct his business.

      (1)  Council Implementing Decision 2013/409/CFSP of 30 July 2013 implementing Decision 2011/72/CFSP concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2013 L 204, p. 52)

      (2)  Council Implementing Regulation (EU) No 735/2013 of 30 July 2013 implementing Regulation (EU) No 101/2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2013 L 204, p. 23)


title: Case C-153/02: Reference for a preliminary ruling by the Giudice di Pace di Genova by order of that Court of 18 April 2002 in the action brought by Valentina Neri against the European School of Economics (ESE INSIGHT World Education System Ltd)

text:
C 144/26              EN                    Official Journal of the European Communities                                      15.6.2002
Question 2                                                             interpreted as precluding the Belgian administrative authority,
                                                                       to which an application to change the surname of minor
Is the answer to Question 1 affected by whether the effective          children residing in Belgium who have dual Belgian and
date of the pay rise commences:                                        Spanish nationality has been made on the ground, without
                                                                       other special circumstances, that those children should bear
(i)   prior to the beginning of the woman’s maternity leave,           the surname to which they are entitled according to Spanish
                                                                       law and tradition, from refusing that change by stating that
(ii) prior to the ending of the period of the earnings-related         that type of application is habitually rejected on the ground
      period of her SMP, or                                            that, in Belgium, children bear their father’s surname’, particu-
                                                                       larly where the position usually adopted by the authority
                                                                       results from the fact that it considers that the grant of a
(iii) on some other date and, if so, on what date?
                                                                       different surname may, in the context of social life in Belgium,
                                                                       arouse questions as to the parentage of the child concerned,
                                                                       but that, in order to reduce the difficulties associated with dual
Question 3                                                             nationality, it is suggested to applicants in that situation
                                                                       that they adopt only the father’s first surname, and that,
If the answer to Question 1 is in the affirmative,                     exceptionally, where there are few connecting factors to
                                                                       Belgium or it is appropriate to re-establish the same surname
(i)   how should the calculation or re-alculation of the normal        among siblings, a favourable decision may be taken?
      weekly earnings in the relevant period take into account
      the pay rise?
(ii) Should the relevant period be changed?
(iii) What allowance, if any, should be made for other factors
      occurring within the period to which the pay rise relates
      such as the numbers of hours worked, and the reason for
      the pay increase?
(iv) Does it follow that if there is a reduction in pay after the      Reference for a preliminary ruling by the Giudice di Pace
      end of the relevant period but before the end of the             di Genova by order of that Court of 18 April 2002 in the
      woman’s period of maternity leave, her SMP should be             action brought by Valentina Neri against the European
      calculated or re-calculated to take account of the               School of Economics (ESE INSIGHT World Education
      reduction of pay, and if so, how is this to be done?                                       System Ltd)
                                                                                (Case C-153/02)
                                                                                (2002/C 144/45)
Reference for a preliminary ruling by the Conseil d’Etat,
section d’administration by judgment of that Court of
21 December 2001 in the case of Carlos Garcia Avello
                       against Etat Belge
                        (Case C-148/02)                                Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Giudice di Pace di
                                                                       Genova (Office of the Magistrate Genoa) of 18 April 2002,
                        (2002/C 144/44)                                received at the Court Registry on 26 April 2002, for a
                                                                       preliminary ruling in the action brought by Valentina Neri
                                                                       against the European School of Economics (ESE INSIGHT
                                                                       World Education System Ltd) on the following questions:
Reference has been made to the Court of Justice of the
European Communities by judgment of the Conseil d’Etat,
section d’administration (Belgian Council of State, administrat-       1.    Are the rules or administrative practices of the national
ive section) of 21 December 2001, received at the Court                      legal order, such as those described at points III and IV
Registry on 24 April 2002, for a preliminary ruling in the case              hereof, compatible with the principles of the EC Treaty
of Carlos Garcia Avello against Etat Belge on the following                  concerning the free movement of persons (Article 39 et
question:                                                                    seq EC), the right of establishment (Article 43 et seq. EC)
                                                                             and freedom to provide services (Article 49 et seq. EC), as
Are the principles of Community law relating to European                     interpreted by the Court of Justice. Of particular relevance
citizenship and to the freedom of movement of persons,                       in that regard are national rules and/or administrative
enshrined particularly in Articles 17 [EC] and 18 [EC], to be                practices which:
 ---pagebreak--- 15.6.2002               EN                    Official Journal of the European Communities                                      C 144/27
     —      impede the Italian establishment of a limited com-                 —     require production of an attestation from the diplo-
            pany whose principal business is in the United                           matic representation — Italian consulate in the
            Kingdom from carrying on in the host state the                           foreign country in which the degree was awarded —
            business of organising and administering courses of                      proving actual residence in that country by the
            study for preparation for university examinations,                       person concerned for the whole period of the
            for which the company is duly authorised and                             university studies;
            accredited by the United Kingdom public auth-
            orities?
                                                                               —     limit recognition of degrees ‘solely’ to pursuit of a
                                                                                profession already pursued in the State of origin,
                                                                                thus precluding recognition for the purposes of
     —      discriminate as between nationals pursuing the same                      access to a regulated profession even though not
            activities;                                                              previously exercised.
                                                                         3.    What is the meaning and scope of the expression ‘harmful
     —      prohibit and/or seriously impede the Italian estab-                interruption (...) of vocational training’ in Council
            lishment of that undertaking in obtaining, in another              Decision 63/266/EEC (3) and does it cover the creation at
            Member State and for valuable consideration, the                   national level by the public authorities of a permanent
            services conducive to the pursuit of the abovemen-                 system of information which evidences that degrees
            tioned activity;                                                   awarded by a university, even though legally recognised
                                                                               in the United Kingdom, cannot be recognised under
                                                                               national legislation if they have been obtained on the
                                                                               basis of periods of study completed in Italy.
     —      discourage students from enrolling in those courses
            of study;
                                                                         (1) OJ L 19 of 24.1.1989, p. 16.
                                                                         (2) OJ C 109 of 4.5.2002, p. 2.
     —      impede the professional training of enrolled students
                                                                         (3) OJ 63 of 20.4.1963, p. 1338.
            and the obtaining of an award capable of conferring
            on its holder advantages either in securing access to
            a professional activity or in exercising it with greater
            reward in other Member States as well.
2.   On an interpretation — herein requested — of Article 2
     of Council Directive 89/48/EC (1), does that directive
     confer rights which may be relied on also before acqui-
     sition of the degree mentioned in Article 1 of the directive        Reference for a preliminary ruling by the Hässleholms
     itself. If the reply to that question is affirmative, does the      Tingsrätt by order of that Court of 22 April 2002 in the
     directive itself, regard also being had to the judgment in                               case against Jan Nilsson
     Case C-145/99 Commission v Italian Republic [2001] (2),
     permit rules or administrative practices in the national
     legal order which:                                                                           (Case C-154/02)
                                                                                (2002/C 144/46)
     —      make recognition of university degrees obtained on
            completion of training of at least three years’
            duration subject to the discretion of the public
            authorities;
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Hässleholms Tingsrätt
                                                                         (district court) of 22 April 2002, received at the Court Registry
     —      grant recognition in Italy of degrees awarded by             on 26 April 2002, for a preliminary ruling in the case against
            universities recognised in the United Kingdom only           Jan Nilsson on the following questions:
            if completed after regular attendance for the whole
            course of studies at those universities, to the
            exclusion therefore of degrees awarded to Italian            1)    Do stuffed animals listed in Annex A fall within the
            nationals on the basis of periods of study completed               definition of ‘worked specimens’?
            with foreign institutions operating in Italy even
            though they are approved and accredited by the
            competent public authorities in the Member State to          2)    What is covered by the term ‘acquire’ in Article 8(3) of
            which they belong;                                                 Regulation No 338/97(1)?


title: Case C-549/11: Judgment of the Court (Eighth Chamber) of 19 December 2012 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Burgas pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite v Orfey Balgaria EOOD (VAT — Directive 2006/112/EC — Articles 63, 65, 73 and 80 — Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons — Barter contract — VAT on construction services — Chargeable event — When chargeable — Payment on account of the entire consideration — Payment on account — Basis of assessment for a transaction in the event of consideration in the form of goods or services — Direct effect)

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/10

         Judgment of the Court (Eighth Chamber) of 19 December 2012 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Burgas pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite v Orfey Balgaria EOOD
   (Case C-549/11) (1)

   (VAT - Directive 2006/112/EC - Articles 63, 65, 73 and 80 - Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons - Barter contract - VAT on construction services - Chargeable event - When chargeable - Payment on account of the entire consideration - Payment on account - Basis of assessment for a transaction in the event of consideration in the form of goods or services - Direct effect)
   2013/C 46/18
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad — Bulgaria

      Parties to the main proceedings

      Applicant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Burgas pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

      Defendant: Orfey Balgaria EOOD

      Re:

   Request for a preliminary ruling — Varhoven administrativen sad — Interpretation of Articles 63, 65, 73 and 80 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p.1) — Occurrence of the chargeable event for VAT on the supply of a construction service — Creation by natural persons of a building right for a company in exchange for construction services by that company for those persons — Advance payment — National legislation laying down as basis of assessment for a transaction, in the event of consideration in the form of goods or services, the open market value of the supply of goods or services

      Operative part of the judgment

               1.

               Articles 63 and 65 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 of the main proceedings, where a building right is established in favour of a company in order to erect a building, by way of consideration for construction services of certain real property in that building and that company has undertaken to deliver on a turn-key basis to the persons who established that building right, they do not preclude the VAT on those construction services from becoming chargeable as from the moment when the building right is established, that is to say, before those services are performed, provided that, at the time that right is established, all the relevant information concerning that future supply of services is already known and, therefore, in particular, the services in question are precisely identified, and the value of that right may be expressed in monetary terms, which it is for the national court to verify.

               2.

               In circumstances such as those of the main proceedings, where the transaction is not completed between parties having ties within the meaning of Article 80 of Directive 2006/112, which it is for the national court to verify, Articles 73 and 80 of that directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, under which, when the consideration for a transaction is made up entirely of goods or services, the taxable amount of the transaction is the open market value of the goods or services supplied.

               3.

               Articles 63, 65 and 73 of Directive 2006/112 have direct effect.

      (1)  OJ C 13, 14.1.2012.


title: Case T-205/04: Action brought on 8 June 2004 by Alessandro Ianniello against the Commission of the European Communities

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/26

         Action brought on 8 June 2004 by Alessandro Ianniello against the Commission of the European Communities
   (Case T-205/04)
   (2004/C 217/47)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 June 2004 by Alessandro Ianniello, residing at Brussels, represented by S. Rodrigues and Y. Minatchy, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the decision of the appointing authority (AIPN) of 18 February 2004 replying to Mr Alessandro Ianniello's complaint, and annul the career evaluation report established with regard to him for the period from 1 July 2001 to 31 December 2002;

               —

               declare that the European Community is liable extra-contractually because of the contested decision and the late establishment of the career evaluation report concerning the applicant for the period from 1 July 2001 to 31 December 2002;

               —

               award the applicant damages for the loss suffered, in the sum of EUR 5 000;

               —

               order the defendant to pay all the costs.

         Pleas in law and main arguments:
   This action is brought against the AIPN's decision of 18 February 2004 rejecting the applicant's complaint seeking the reconsideration of his career evaluation report for the period from 1 July 2001 to 31 December 2002, by which it was not considered necessary to open an administrative enquiry on certain documents produced to the Joint Evaluation Commission of the RELEX Directorate General.
   In support of his claims, the applicant relies on breach of certain essential procedural requirements, such as the rights of the defence, the administration's duty of impartiality and the duty to state reasons for its decisions.
   In addition, the contested decision disregarded the applicant's right to protection of his personal data, the duty to have regard to the interests of officials and the principle of good administration.


title: Case C-257/17: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 15 May 2017 — C, A v Staatssecretaris van Veiligheid en Justitie

text:
               14.8.2017

               EN

               Official Journal of the European Union

               C 269/2

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 15 May 2017 — C, A v Staatssecretaris van Veiligheid en Justitie
   (Case C-257/17)
   (2017/C 269/03)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Appellants: C, A

      Respondent: Staatssecretaris van Veiligheid en Justitie

      Questions referred

               1.

               Having regard to Article 3(3) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, [p. 12]) and to the Nolan judgment (C-583/10, EU:C:2012:638), does the Court of Justice have jurisdiction to answer questions referred for a preliminary ruling by the courts of the Netherlands concerning the interpretation of certain provisions of that directive in proceedings relating to the right of residence of members of the family of sponsors who have Netherlands nationality, if that directive has been declared to be directly and unconditionally applicable under Netherlands law to those family members?

               2.

               Should Article 15(1) and (4) of Council Directive 2003/86/EC … be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which an application for an autonomous residence permit on the part of a foreign national who has resided lawfully for more than five years on the territory of a Member State for family-reunification purposes may be rejected because of non-compliance with conditions relating to integration laid down in national law?

               3.

               Should Article 15(1) and (4) of Council Directive 2003/86/EC … be interpreted as precluding national legislation, such as that at issue in the main proceedings, on the basis of which an autonomous residence permit cannot be granted earlier than the date on which it is applied for?


title: Case C-245/05: Order of the President of the Fourth Chamber of the Court of 20 November 2007 (reference for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Metro International GmbH v Hauptzollamt Düsseldorf

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/31

         Order of the President of the Fourth Chamber of the Court of 20 November 2007 (reference for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Metro International GmbH v Hauptzollamt Düsseldorf
   (Case C-245/05) (1)

   (2008/C 64/45)

      Language of the case: German

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

      (1)  OJ C 205, 20.8.2005.


title: Case T-626/11: Action brought on 2 December 2011 — Sky Deutschland and Sky Deutschland Fernsehen v Commission

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/26

         Action brought on 2 December 2011 — Sky Deutschland and Sky Deutschland Fernsehen v Commission
   (Case T-626/11)
   2012/C 49/47
   Language of the case: German

      Parties

      Applicants: Sky Deutschland AG (Unterföhring, Germany) and Sky Deutschland Fernsehen GmbH & Co. KG (Unterföhring) (represented by: A. Cordewener, F. Kutt and C. Jehke, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul in its entirety the defendant’s decision of 26 January 2011 in the procedure on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’);

               —

               in the alternative, annul that decision at least in so far as it does not provide for any exception on the basis of the principle of the protection of legitimate expectations in favour of undertakings in the applicants’ position to the obligation to recover aid set out in Articles 4 and 5 of that decision or at least does not provide for any transitional provisions in favour of such undertakings;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely in essence on the following:

               —

               The defendant incorrectly comes to the conclusion in the contested decision that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is unlawful State aid pursuant to Article 107(1) TFEU. In that regard the applicants submit inter alia that the defendant incorrectly assumes that the provision in Paragraph 8c(1a) of the KStG is selective and constitutes an unjustified exception to the principle set out in Paragraph 8c(1) of the KStG according to which the tax losses of a corporation are under certain conditions extinguished if there is a change in the shareholders of that corporation. The applicants take the view that the provision in Paragraph 8c(1) of the KStG is incorrectly regarded by the defendant as the relevant domestic reference system for the investigation of the aid.

               —

               The relevant reference system is the possibility, which is fundamentally given under German law, of transferring losses between different tax periods, which arises out of the principle known as the principle of net profit or loss. The applicants take the view that that reference system is merely confirmed by the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG. In addition, Paragraph 8c(1) of the KStG cannot constitute the relevant domestic reference system because that legal provision is unconstitutional according to the requirements of the German Basic Law.

               —

               Moreover, the provision in Paragraph 8c(1a) of the KStG constitutes what is known as a general measure, which potentially benefits all economic operators encumbered with losses and does not give preference to a delimited group of operators on the market. The applicants take the view that the provision enabling the fiscal carry forward of losses is not therefore selective.

               —

               The provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is also justified on the basis of the nature and general scheme of the German tax system because that provision limits the effects of the restriction on the deduction of losses in Paragraph 8c(1) of the KStG. The applicants submit in that regard that the original version of Paragraph 8c of the KStG was a provision to avoid abuse which had become too wide and that the subsequent (and retroactive) amendment of that provision by Paragraph 8c(1) of the KStG merely reduced the surplus normative content of Paragraph 8c(1) of the KStG and in that respect restored the general transfer of losses between different tax periods as the relevant reference system.

               —

               Lastly, the applicants submit that they have legitimate expectations because the defendant’s negative decision was unforeseeable and the defendant did not complain about the similarly structured preceding provision in Paragraph 8(4) of the older version of the KStG and comparable provisions in other Member States.


title: Case C-656/13: Request for a preliminary ruling from the Nejvyšší soud České republiky (Czech Republic) lodged on 12 December 2013 — L v M, R and K

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/11

         Request for a preliminary ruling from the Nejvyšší soud České republiky (Czech Republic) lodged on 12 December 2013 — L v M, R and K
   (Case C-656/13)
   2014/C 85/19
   Language of the case: Czech

      Referring court

   Nejvyšší soud České republiky

      Parties to the main proceedings

      Applicant: L

      Other parties to the proceedings: M; R and K

      Questions referred

               1.

               Must Article 12(3) of Council Regulation (EC) No 2201/2003 (1) of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, (‘the Brussels IIa Regulation’) be interpreted as establishing jurisdiction over proceedings concerning parental responsibility even where no other related proceedings (that is, ‘proceedings other than those referred to in paragraph 1’) are pending?

         In the event of an affirmative answer to Question 1:

               2.

               Must Article 12(3) of the Brussels IIa Regulation be interpreted as meaning that acceptance expressly or otherwise in an unequivocal manner includes also the situation in which the party who has not initiated proceedings makes a separate application for the initiation of proceedings in the same case but immediately on doing the first act required of him objects that the court lacks jurisdiction in the proceedings previously started on the application by the other party?

      (1)  OJ 2003 L 388, p. 1.


title: Case T-368/08: Action brought on 26 August 2008 — Atlantean v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/43

         Action brought on 26 August 2008 — Atlantean v Commission
   (Case T-368/08)
   (2008/C 301/74)
   Language of the case: English
   Parties

      Applicant: Atlantean Ltd (Killybegs, Ireland) (represented by: M. Fraser, D. Hennessy, Solicitors, G. Hogan SC, E. Regan, and C. Toland, Barristers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Decision C(2008) 3236 of 26 June 2008 addressed to Ireland responding to the request by Ireland concerning the Atlantean;

               —

               Order the Commission to pay the applicant's costs of these proceedings.

         Pleas in law and main arguments
   In the present case, the applicant is bringing an action for partial annulment of Commission Decision C(2008) 3236 final of 26 June 2008 which provided for the rejection of the request by Ireland in respect of the applicant's vessel Atlantean to increase capacity under the fourth multi-annual guidance programme (MAGP IV) applicable for the reasons of improvements in safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall. The first Commission Decision 2003/245/EC of 4 April 2003 (1) rejecting the request by Ireland was annulled by the Court's judgment of 13 June 2006 in so far as it applied to the applicant's vessel Atlantean (2).
   The applicant states in support of its contentions that the contested decision was not made on the basis of criteria set out in Council Decision 97/413/EC (3), which it considers to be the appropriate legal base, but on application of Article 11(5) of Council Regulation 2371/2002/EC (4). The applicant therefore submits that the Commission not only lacked the competence to make the decision but it also infringed the principles of non-retroactivity, legal certainty, protection of legitimate expectations, the principles of non-discrimination and of equal treatment and the principle of proportionality. It states that the Commission breached its obligation to state reasons laid down in Article 253 EC as well as the applicant's right to be heard and its rights to property. The applicant further claims that the Commission misused its powers, acted mala fides and made inexcusable and manifest error in its decision. It also submits that the Commission acted in excess in the bounds of its discretion.
   Furthermore, the applicant claims that the Commission, in adopting the contested decision, sought to defeat a related claim for damages made by the applicant in Case T-125/08 (5), pending before the Court, and was therefore not bona fide.

      (1)  OJ 2003 L 90, p. 48.

      (2)  Case T-192/03, Atlantean Ltd. v Commission [2006] ECR II-42.

      (3)  Council Decision of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with a view to achieving a balance on a sustainable basis between resources and their exploitation, OJ L 175, p. 27.

      (4)  Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, OJ L 358, p. 59.

      (5)  Case T-125/08, Atlantean Ltd. v Commission, OJ C 116, p. 28.


title: Case T-636/13: Judgment of the General Court of 23 October 2015 — Trekstor v OHIM — MSI Technology (MovieStation) (Community trade mark — Invalidity proceedings — Community word mark MovieStation — Absolute grounds for refusal — Lack of distinctive character — Descriptive character — Article 7(1(b) and (c) of Regulation (EC) No 207/2009 — Article 52 of Regulation No 207/2009)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/26

         Judgment of the General Court of 23 October 2015 — Trekstor v OHIM — MSI Technology (MovieStation)
   (Case T-636/13) (1)

   ((Community trade mark - Invalidity proceedings - Community word mark MovieStation - Absolute grounds for refusal - Lack of distinctive character - Descriptive character - Article 7(1(b) and (c) of Regulation (EC) No 207/2009 - Article 52 of Regulation No 207/2009))
   (2015/C 414/33)
   Language of the case: German

      Parties

      Applicant: TrekStor Ltd (Hong Kong, China) (represented by: O. Spieker and M. Alber, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider and A. Schifko, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: MSI Technology GmbH (Frankfurt-am-Main, Germany) (represented by: T. Lieb, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 September 2013 (Case R 1914/2012-4), relating to invalidity proceedings between TrekStor Ltd and MSI Technology GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders TrekStor Ltd to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);

               3.

               Orders MSI Technology GmbH to bear its own costs.

      (1)  OJ C 39, 8.2.2014.


title: Case F-110/07: Order of the Civil Service Tribunal (Second Chamber) of 12 December 2007 — Kerelov v Commission (Officials — Manifest inadmissibility — Article 44(1)(c) of the Rules of Procedure of the Court of First Instance)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/64

         Order of the Civil Service Tribunal (Second Chamber) of 12 December 2007 — Kerelov v Commission
   (Case F-110/07)
   (Officials - Manifest inadmissibility - Article 44(1)(c) of the Rules of Procedure of the Court of First Instance)
   (2008/C 64/105)
   Language of the case: French
   Parties

      Applicant: Georgi Kerelov (Pazardzhik, Bulgaria) (represented by: A. Kerelov, lawyer)

      Defendant: Commission of the European Communities
   Re:
   Application for the annulment of EPSO's decision of 7 February 2007 not to transmit to the applicant information and documents relating to a competition and for compensation for the damage he has suffered.
   Operative part of the order

               1.

               The application is dismissed as manifestly inadmissible.

               2.

               Each party shall bear its own costs.


title: Case T-78/06: Action brought on  24 February 2006  — Armando Álvarez v Commission of the European Communities

text:
               20.5.2006

               EN

               Official Journal of the European Union

               C 121/14

         Action brought on 24 February 2006 — Armando Álvarez v Commission of the European Communities
   (Case T-78/06)
   (2006/C 121/24)
   Language of the case: Spanish
   Parties

      Applicant: Armando Álvarez (Madrid, Spain) (represented by: E. Garayar and A. García Castillo, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declare the present action for annulment admissible;

               —

               Annul Decision C(2005) 4634 Final of 30 November 2005, in Case COMP/F/38.354 in so far as it imputes liability to Armando Álvarez, S.A.;

               —

               Order the Commission to pay all costs incurred by Armando Álvarez, S.A. in the present proceedings.

         Pleas in law and main arguments
   This action seeks annulment of Commission C(2005) 4634 Final of 30 November 2005 in Case COMP/F/38.354 — industrial bags. In the contested decision, the Commission states that the applicant, together with other companies, infringed Article 81 EC by participating, in the period 1991-2002, in agreements and concerted practices in the industrial plastic bag sector in Germany, Belgium, the Netherlands, Luxembourg, Spain and France. In respect of these infringements, the Commission imposed a fine on the applicant jointly and severally with Plásticos Españoles, S.A.
   In support of its claim, the applicant alleges that the Commission wrongly assessed the facts and infringed the principle of the presumption of innocence and the claimant's rights of defence.


title: Case F-14/09: Judgment of the Civil Service Tribunal (Third Chamber) of 15 December 2010 — Almeida Campos and Others v Council (Civil Service — Officials — Promotion — 2008 promotion procedure — Comparative examination of the merits of administrators assigned to language posts and administrators assigned to general posts)

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/18

         Judgment of the Civil Service Tribunal (Third Chamber) of 15 December 2010 — Almeida Campos and Others v Council
   (Case F-14/09) (1)

   (Civil Service - Officials - Promotion - 2008 promotion procedure - Comparative examination of the merits of administrators assigned to language posts and administrators assigned to general posts)
   2011/C 38/34
   Language of the case: French

      Parties

      Applicants: Ana Maria Almeida Campos (Brussels, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer, G. Kimberley, Agents)

      Re:

   Annulment of the appointing authority’s decisions not to promote the applicants to grade AD 12 under the 2008 promotion procedure and, so far as necessary, the decisions to promote to that grade, under the same promotion procedure, the officials whose names are included on the list of promoted officials published in Staff Note No 72/08 of 21 April 2008.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decisions of the Council of the European Union refusing to promote to grade AD 12 Ms Almeida Campos, Ms Dariol, Ms Morello and Ms Verstreken under the 2008 promotion procedure;

               2.

               Dismisses the rest of the action;

               3.

               Orders the Council of the European Union to pay all the costs.

      (1)  OJ C 90, 18.4.2009, p. 40.


title: Case C-483/07 P: Order of the Court of 17 February 2009 — Galileo Lebensmittel GmbH & Co. KG v Commission of the European Communities (Appeal — Action for annulment — Reservation by the Commission of the domain galileo.eu — Fourth paragraph of Article 230 EC — Decision of individual concern to a natural or legal person — Appeal clearly unfounded)

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/15

         Order of the Court of 17 February 2009 — Galileo Lebensmittel GmbH & Co. KG v Commission of the European Communities
   (Case C-483/07 P) (1)

   (Appeal - Action for annulment - Reservation by the Commission of the domain ‘galileo.eu’ - Fourth paragraph of Article 230 EC - Decision of individual concern to a natural or legal person - Appeal clearly unfounded)
   2009/C 220/25
   Language of the case: German

      Parties

      Appellant: Galileo Lebensmittel GmbH & Co. KG (represented by: K. Bott, Rechtsanwalt)

      Other party to the proceedings: Commission of the European Communities (represented by: G. Braun and E. Montaguti, Agents)

      Re:

   Appeal against the Order of the Court of First Instance (Second Chamber) of 28 August 2007 in Case T–46/06 Galileo Lebensmittel v Commission, by which the Court of First Instance dismissed as inadmissible the action seeking annulment of the Commission's decision to register ‘galileo.eu’ as a.eu Top Level Domain reserved for use by the Community institutions and bodies, pursuant to Article 9 of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the ‘eu’ Top Level Domain and the principles governing registration (OJ 2004 L 162, p. 40) — Requirement that applicant should be individually concerned by the contested decision — Infringement of the fourth paragraph of Article 230 EC

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Galileo Lebensmittel GmbH & Co. KG is ordered to pay the costs.

      (1)  OJ C 8, 12.1.2008.


title: Case T-276/09: Judgment of the General Court of 21 June 2012 — Kavaklidere-Europe v OHIM — Yakult Honsha (Yakut) (Community trade mark — Opposition proceedings — Application for the Community word mark Yakut — Earlier Community figurative mark Yakult — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/17

         Judgment of the General Court of 21 June 2012 — Kavaklidere-Europe v OHIM — Yakult Honsha (Yakut)
   (Case T-276/09) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark Yakut - Earlier Community figurative mark Yakult - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2012/C 227/24
   Language of the case: English

      Parties

      Applicant: Kavaklidere-Europe (Schoten, Belgium) (represented: initially by J. Vercraeye and I. Tytgat, and subsequently by J. Vercraeye and B. De Vuyst, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Yakult Honsha Kabushiki Kaisha (Tokyo, Japan) (represented by M. Edenborough QC, P. Harris, Solicitor, and T. Elias, Barrister)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 May 2009 (Case R 1396/2008-4) concerning opposition proceedings between Yakult Honsha Kabushiki Kaisha and Kavaklidere-Europe

      Operative part of the judgment

   The General Court:

               1.

               Dismisses the action;

               2.

               Orders Kavaklidere-Europe to pay the costs.

      (1)  OJ C 244, 10.10.2009.


title: Case C-51/12: Reference for a preliminary ruling from the Giudice di Pace di Revere (Italy) lodged on 2 February 2012 — Criminal proceedings against Xiamie Zhu and Others

text:
               31.3.2012

               EN

               Official Journal of the European Union

               C 98/19

         Reference for a preliminary ruling from the Giudice di Pace di Revere (Italy) lodged on 2 February 2012 — Criminal proceedings against Xiamie Zhu and Others
   (Case C-51/12)
   2012/C 98/32
   Language of the case: Italian

      Referring court

   Giudice di Pace di Revere

      Parties to the main proceedings

   Xiamie Zhu, Guo Huo Xia, Xie Fmr Ye, Jian Hui Luo, Ua Zh Th

      Question(s) referred

               1.

               In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 2, 4, 6, 7 and 8 of Directive 2008/115/EC (1) preclude the possibility that a third-country national illegally staying in a Member State may be liable to a fine, for which home detention is substituted by way of criminal-law sanction, solely as a consequence of that person’s illegal entry and stay, even before any failure to comply with a removal order issued by the administrative authorities?

               2.

               In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 2, 15 and 16 of Directive 2008/115/EC preclude the possibility that, subsequent to the adoption of the directive, a Member State may enact legislation which provides that a third-country national illegally staying in that Member State may be liable to a fine, for which an enforceable order for expulsion with immediate effect is substituted by way of criminal-law sanction, without respecting the procedure and rights of the foreign national laid down in the directive?

               3.

               Does the principle of sincere cooperation established in Article 4(3) TEU preclude national rules adopted during the period prescribed for transposition of a directive in order to circumvent or, in any event, limit the scope of the directive, and what measures must the national court adopt in the event that it concludes that there was such an objective?

      (1)  OJ 2008 L 348, p. 98.


title: Judgment of the Court (Grand Chamber) of  8 November 2005  in Case C-443/03, Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) Götz Leffler v Berlin Chemie AG (Judicial cooperation in civil matters — Service of judicial and extrajudicial documents — No translation of the document — Consequences)

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/2

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 8 November 2005
   in Case C-443/03, Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) Götz Leffler v Berlin Chemie AG (1)

   (Judicial cooperation in civil matters - Service of judicial and extrajudicial documents - No translation of the document - Consequences)
   (2006/C 10/04)
   Language of the case: Dutch
   In Case C-443/03: reference for a preliminary ruling under Articles 68 EC and 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 17 October 2003, received at the Court on 20 October 2003, in the proceedings between Götz Leffler and Berlin Chemie AG — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas (Rapporteur) and J. Malenovský, Presidents of Chambers, S. von Bahr, J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Lenaerts, E. Juhász, G. Arestis, A. Borg Barthet and M. Ilešič, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 8 November 2005, the operative part of which is as follows:

               1.

               On a proper construction of Article 8(1) of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, when the addressee of a document has refused it on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, it is possible for the sender to remedy that by sending the translation requested.

               2.

               On a proper construction of Article 8 of Regulation No 1348/2000, when the addressee of a document has refused it on the ground that it is not in an official language of the Member State addressed or in a language of the Member State of transmission which the addressee understands, that situation may be remedied by sending the translation of the document in accordance with the procedure laid down by Regulation No 1348/2000 and as soon as possible.
               In order to resolve problems connected with the way in which the lack of translation should be remedied that are not envisaged by Regulation No 1348/2000 as interpreted by the Court, it is incumbent on the national court to apply national procedural law while taking care to ensure the full effectiveness of that regulation, in compliance with its objective.

      (1)  OJ C 304, 13.12.2003.