title: Case T-17/00: Action brought on 21 January 2000 by Willi Rothley and 70 other Members of the European Parliament against the European Parliament

text:
C 102/30               EN                     Official Journal of the European Communities                                        8.4.2000
Decision         contested     Refusal of registration by the            In support of their application, the applicants put forward, in
before the Board of            examiner                                  essence, the following pleas:
Appeal:
Grounds of claim:              — Infringement of Article 7(1)(b)         — Breach of essential procedural requirements:
                                   of Regulation (EC) No 40/94
                               — Incorrect      application      of          The procedure conducted prior to the adoption of the
                                   Article 7(1)(c) of Regulation             contested decision was vitiated by substantive procedural
                                   (EC) No 40/94                             defects, since the Parliament’s Rules of Procedure were
                                                                             infringed in several instances.
                                                                         — Violation of the free exercise of the parliamentary mandate:
                                                                             The powers of investigation and seizure granted by
Action brought on 21 January 2000 by Willi Rothley and                       the contested decision implicitly extend to cover the
70 other Members of the European Parliament against the                      performance by Members of their duties, without any
                      European Parliament                                    criteria for such measures having been laid down with the
                                                                             requisite normative clarity and certainty. In addition, the
                          (Case T-17/00)                                     investigatory powers of the OLAF are disproportionate,
                                                                             since they may be exercised simply on the grounds of mere
                        (2000/C 102/60)                                      irregularities.
                                                                             The obligation, contained in Article 2(1) of the decision,
                   (Language of the case: German)                            to provide information in relation to any relevant miscon-
                                                                             duct, even of a non-criminal nature, means that the
An action against the European Parliament was brought before                 personnel of the Parliament and staff working for Members
the Court of First Instance of the European Communities on                   are required constantly to monitor the performance by
Willi Rothley and 70 other Members of the European Parlia-                   Members of their duties. This will encourage ‘snooping’
ment, represented by Hans-Jürgen Rabe and Georg M. Berrisch,                 and informing, thereby prejudicing the general ability of
Rechtsanwälte, of Gaedertz Rechtsanwälte, 35 Avenue de                       the Parliament to function.
Tervuren, Brussels.
The applicants claim that the Court should:                              — Infringement of parliamentary immunity:
— annul the European Parliament’s decision of 18 November
                                                                             Article 10 of the Protocol on the Privileges and Immunities
    1999 amending the Rules of Procedure pursuant to the
                                                                             of the European Communities affords Members of the
    Interinstitutional Agreement of 25 May 1999 concerning
    internal investigations conducted by the European Anti-                  Parliament comprehensive immunity from criminal pros-
                                                                             ecution of any kind. Subparagraph (b) of Article 10, which,
    Fraud Office (OLAF);
                                                                             in contrast to subparagraph (a), does not refer to national
— order the defendant to pay the costs.                                      rights of immunity, creates a status of immunity specific
                                                                             to the Communities which also affords Members of the
                                                                             Parliament protection against the investigatory activities of
Pleas in law and main arguments                                              the OLAF.
In adopting the contested decision, the European Parliament              — Infringement of the parliamentary right of inquiry:
has fulfilled its obligation under the Interinstitutional Agree-
ment. According to that agreement, each of the Community
institutions signatories thereto is required to bring into force,            The investigatory powers of the OLAF laid down in the
by means of the adoption of an internal decision, the                        contested decision and in the corresponding rules of
implementing rules necessary in order to ensure the smooth                   conduct imposed on Members infringe the parliamentary
operation of the internal investigations carried out by the                  right of inquiry provided for in the first paragraph of Article
OLAF. The action for annulment is directed, in particular,                   193 EC, which the Parliament exercises, in particular, by
against the obligations imposed on the applicants by the                     setting up temporary committees of inquiry. The work of
decision, requiring them to provide information, to offer                    those committees could be substantially hindered if it were
cooperation and to exercise tolerance in connection with the                 not possible for a committee of inquiry and its members
OLAF’s investigatory powers within the domain of the internal                to observe their duty of confidentiality when dealing
affairs of the Parliament. The applicants claim that those                   with the OLAF. In addition, this affects the institutional
obligations represent an impermissible restriction on their                  equilibrium between Community institutions. The Parlia-
status as Members of Parliament, particularly as regards the                 ment should not be subject to the supervisory power of
free exercise of their mandate and their immunity.                           the executive, of which the OLAF notionally forms part.
 ---pagebreak--- 8.4.2000               EN                    Official Journal of the European Communities                                    C 102/31
— Nullity of the decision setting up the OLAF and of                           Removal from the register of Case T-219/94 (1)
     Regulation No 1073/1999:
     The applicants raise the objection, pursuant to Article 241                                (2000/C 102/62)
     EC, that the legal acts on which the contested decision is
     based are null and void. Both the Commission Decision of
     28 April 1999 establishing the OLAF (1) and Regulation                               (Language of the case: German)
     (EC) No 1073/1999 of the European Parliament and of
     the Council of 25 May 1999 concerning investigations               By order of 27 January 2000, the President of the Fourth
     conducted by the European Anti-Fraud Office (OLAF) (2)             Chamber, Extended Composition, of the Court of First Instance
     are invalid.                                                       of the European Communities has ordered the removal from
                                                                        the register of Case T-219/94, Hans-Henrich Fürstenwerth v
The Commission based the decision establishing the OLAF on              Commission of the European Communities.
Article 162 of the EC Treaty (now Article 218 EC), hence on a
provision designed to regulate the internal organisational
power, namely the Rules of Procedure. However, it is not                (1) OJ C 218 of 6.8.1994.
possible on that basis to set up a body which is in reality legally
separate from the organisational power of the Commission.
Moreover, in adopting its decision establishing the OLAF, the
Commission unlawfully relinquished part of the supervisory
powers conferred on it by Article 211 EC. In addition, it
delegated to the OLAF powers which it does not possess.
                                                                               Removal from the register of Case T-206/95 (1)
Finally, the regulation based on the decision is likewise founded
on an insufficient legal basis, since Article 280 EC merely                                     (2000/C 102/63)
concerns the combatting of fraud within the Member States. It
does not therefore cover the Community institutions. In
addition, the OLAF’s investigatory powers go beyond any                                   (Language of the case: German)
powers that could conceivably be needed in order to investigate
criminal offences committed within the Parliament.
                                                                        By order of 27 January 2000 the President of the Fourth
                                                                        Chamber of the Court of First Instance of the European
(1) OJ 1999 L 136, p. 20.                                               Communities has ordered the removal from the register of
(2) OJ 1999 L 136, p. 1.                                                Case T-206/95: Josef Gierse v Council of the European Union
                                                                        and Commission of the European Communities.
                                                                        (1) OJ C 351 of 30.12.1995.
Partial Removal from the register in Joined Cases
                     T-530/93 and Others (1)
                         (2000/C 102/61)
                                                                               Removal from the register of Case T-15/98 (1)
                   (Language of the case: Dutch)
                                                                                (2000/C 102/64)
By order of 24 January 2000, the President of the Fourth
Chamber, Extended Composition, of the Court of First Instance
of the European Communities has ordered the removal from
the register of M.A.M. Nijenhuis and J.I.M. and W. Spikker                                 (Language of the case: French)
from the list of applicants in Case T-533/93 — Joined Cases
T-530/93 and Others, R. Bathoorn and Others v Council                   By order of 19 January 2000, the President of the First
of the European Union and Commission of the European                    Chamber of the Court of First Instance of the European
Communities.                                                            Communities has ordered the removal from the register of
                                                                        Case T-15/98, Centre d’Action Culturelle du Sart-Tilman a.s.b.l.
                                                                        v Commission of the European Communities.
(1) OJ C 334 of 9.12.1993, C 27 of 28.1.1994, C 43 of 12.2.1994,
    C 59 of 26.2.1994, C 90 of 26.3.1994, C 103 of 11.4.1994,
    C 120 of 30.4.1994, C 132 of 14.5.1994, C 233 of 20.8.1994          (1) OJ C 94 of 28.3.1998.
    and C 370 of 24.12.1994.


title: Case T-310/04: Action brought on 26 July 2004 by Ferrero oHG mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/43

         Action brought on 26 July 2004 by Ferrero oHG mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-310/04)
   (2004/C 262/83)
   Language of the case: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 26 July 2004 by Ferrero oHG mbH, Frankfurt am Main, Germany, represented by Dr M. Schaeffer, lawyer.
   Cornu SA Fontain was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               overrule the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 17 March 2004 in case R 01540/2002-4 and allow the opposition No. B 245 714;

               —

               impose the costs on the Applicant for the trade mark.

         Pleas in law and main arguments:

               Applicant for the Community trade mark:

               Cornu SA Fontain

               Community trade mark sought:

               Word mark ‘FERRO’ for goods in Classes 30 (salted biscuits)

               Proprietor of mark or sign cited in the opposition proceedings:

               The applicant

               Mark or sign cited in opposition:

               National word mark ‘FERRERO’ for goods in classes 5, 29, 30, 32 and 33 (chocolate, etc.)

               Decision of the Opposition Division:

               Opposition rejected

               Decision of the Board of Appeal:

               Appeal rejected

               Pleas in law:

               Infringement of Article 8(1)(b) of Regulation 40/94 (1)

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 11, p. 1).


title: Case C-413/12: Reference for a preliminary ruling from the Audiencia Provincial de Salamanca (Spain) lodged on 11 September 2012 — Asociación de Consumidores Independientes de Castilla y León

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/13

         Reference for a preliminary ruling from the Audiencia Provincial de Salamanca (Spain) lodged on 11 September 2012 — Asociación de Consumidores Independientes de Castilla y León
   (Case C-413/12)
   2012/C 379/22
   Language of the case: Spanish

      Referring court

   Audiencia Provincial de Salamanca

      Parties to the main proceedings

      Appellant: Asociación de Consumidores Independientes de Castilla y León

      Questions referred

               1.

               Does the protection afforded to the consumer under Council Directive 93/13/EEC (1) on unfair terms in consumer contracts allow the Audiencia Provincial, as a national court of appeal, to hear and determine, in spite of the absence of any relevant domestic legal rule, the appeal brought against the decision of the court of first instance assigning to a court of the place where the defendant has its address territorial jurisdiction to hear and determine the action for an injunction brought by a consumer association of restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?

               2.

               Must Articles 4, 12, 114 and 169 of the Treaty and Article 38 of the Charter of Fundamental Rights of the European Union, read in conjunction with Directive 93/13 and the case-law of the Court of Justice relating to the high level of protection of the interests of consumers, as well as to the practical effect of directives and the principles of equivalence and effectiveness, be interpreted as meaning that the court of the place where that association has its address, and not the court of the place where the defendant has its address, is to have territorial jurisdiction to hear and determine an action for an injunction against the use of unfair terms, to protect the collective or general interests of consumers and users, brought by a consumer association with restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?

      (1)  5 April 1993
   OJ L 95, p. 29.


title: Case T-172/07: Order of the Court of First Instance of 2 June 2008 — Atlantic Dawn and Others v Commission (Action for annulment — Fishing quotas — Regulation (EC) No 2371/2002 — Lack of direct concern — Inadmissibility)

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/20

         Order of the Court of First Instance of 2 June 2008 — Atlantic Dawn and Others v Commission
   (Case T-172/07) (1)

   (Action for annulment - Fishing quotas - Regulation (EC) No 2371/2002 - Lack of direct concern - Inadmissibility)
   (2008/C 183/42)
   Language of the case: English
   Parties

      Applicants: Atlantic Dawn and Others (Killybegs, Donegal, Ireland); Antarctic Fishing Co. Ltd (Killybegs, Donegal); Atlantean Ltd (Killybegs, Donegal); Killybegs Fishing Enterprises Ltd (Killybegs, Donegal); Doyle Fishing Co. Ltd (Killybegs, Donegal); Western Seaboard Fishing Co. Ltd (Killybegs, Donegal); O'Shea Fishing Co. Ltd (Killybegs, Donegal); Aine Fishing Co. Ltd (Burtonport, Donegal); Brendelen Ltd (Greencastle, Donegal); Cavankee Fishing Co. Ltd (Greencastle, Donegal); Ocean Trawlers Ltd (Killybegs, Donegal); Eileen Oglesby (Burtonport, Donegal); Noel McGing (Killybegs, Donegal); Mullglen Ltd (Dublin, Ireland); Bradan Fishing Co. Ltd (Sligo, Sligo, Ireland); Larry Murphy (Castletownbere, Cork, Ireland); Pauric Conneely (Claregalway, Galway, Ireland); Thomas Flaherty (Kilronan, Aran Islands, Galway); Carmarose Trawling Co. Ltd (Killybegs, Donegal); Colmcille Fishing Ltd (Killybegs, Donegal), (represented by: G. Hogan, SC, N. Travers, T. O'Sullivan, BL and D. Barry, Solicitor)

      Defendant: Commission of the European Communities (represented by: K. Banks, Agent)

      Intervener in support of the applicants: Kingdom of Spain (represented by: N. Díaz Abad, abogado del Estado)
   Re:
   Annulment of Commission Regulation (EC) No 147/2007 of 15 February 2007 adapting certain fish quotas from 2007 to 2012 pursuant to Article 23(4) of Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2007 L 46, p. 10)
   Operative part of the order

               1.

               The action is dismissed as being inadmissible.

               2.

               The applicants, Atlantic Dawn Ltd and Others, shall bear their own costs and pay those incurred by the Commission.

               3.

               The Kingdom of Spain shall bear its own costs.

      (1)  OJ C 170, 21.7.2007.


title: Case F-13/10: Judgment of the Civil Service Tribunal (First Chamber) of 28 September 2011 — De Nicola v EIB (Staff cases — Staff of the European Investment Bank — Assessment — Promotion — Action for damages — Admissibility)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/37

         Judgment of the Civil Service Tribunal (First Chamber) of 28 September 2011 — De Nicola v EIB
   (Case F-13/10) (1)

   (Staff cases - Staff of the European Investment Bank - Assessment - Promotion - Action for damages - Admissibility)
   2011/C 340/73
   Language of the case: Italian

      Parties

      Applicant: De Nicola (Strassen, Luxembourg) (represented by: L. Isola, lawyer)

      Defendant: European Investment Bank (represented by: T. Gilliams and F. Martin, Agents, assisted by A. Dal Ferro, lawyer)

      Re:

   First, application for annulment of the decision of the Appeals Committee rejecting the applicant’s appeal against the assessment of his work during 2008 and annulment of the staff report for 2008. Second, an application for an order that the EIB pay compensation for the material and non material damage suffered by the applicant.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr De Nicola to bear his own costs and to pay half the costs of the European Investment Bank;

               3.

               Orders the European Investment Bank to bear half its own costs.

      (1)  OJ C 134 of 22.05.10, p. 53.


title: Case C-373/00: Reference for a preliminary ruling by the Vergabekontrollsenat des Landes Wien (Austria) by order of 14 September 2000 in the case of Adolf Truley GmbH v Bestattung Wien GmbH

text:
C 372/4               EN                        Official Journal of the European Communities                                   23.12.2000
The Commission cannot accept from Member States rectifi-                   3.    Is the requirement laid down in Article 1(b) of Directive
cations with retroactive value such as that made by the Italian                  93/96/EEC that the management of the body governed
Ministry of the Treasury on 27 June 1996, given that credits                     by public law must be subject to supervision by the State
of sums with retroactive value make no sense in a system of                      or a regional or local authority also fulfilled by a
non-interest bearing accounts such as the ‘own resources’                        mere review as provided for through the Kontrollamt
account in the name of the Commission, and to allow                              (Monitoring Office) of the City of Vienna?
accounting rectifications with retroactive effect would deprive
the obligation to pay interest for delay of any practical
effectiveness whatsoever.
                                                                           (1) OJ 1993 L 199, p. 1.
(1) OJ L 130, 31.5.2000, p. 1.
(2) OJ L 155, 7.6.1989, p. 1.
                                                                           Action brought on 11 October 2000 by the Commission
                                                                           of the European Communities against the Italian Republic
                                                                                (Case C-375/00)
Reference for a preliminary ruling by the Vergabekon-
trollsenat des Landes Wien (Austria) by order of 14 Sep-                                            (2000/C 372/07)
tember 2000 in the case of Adolf Truley GmbH v
                    Bestattung Wien GmbH
                                                                           An action against the Italian Republic was brought before the
                                                                           Court of Justice of the European Communities on 11 October
                        (Case C-373/00)                                    2000 by the Commission of the European Communities,
                                                                           represented by Gregorio Valero Jordana, of its Legal Service,
                                                                           and Roberto Amorosi, judge on secondment to the Legal
                        (2000/C 372/06)                                    Service, acting as Agents, with an address for service in
                                                                           Luxembourg at the office of Carlos Gómez de la Cruz, of its
                                                                           Legal Service, Wagner Centre, Kirchberg.
Reference has been made to the Court of Justice of the
European Communities by order of 14 September 2000 by
the Vergabekontrollsenat des Landes Wien, which was received               The applicant claims that the Court should:
at the Court Registry on 11 October 2000, for a preliminary
ruling in the case of Adolf Truley GmbH v Bestattung Wien
GmbH on the following questions:                                           —     Declare that, by failing to draw up a systematic and
                                                                                complete plan of action at national level, including a
                                                                                timetable for the improvement of surface water, the
1.    Must the term ‘needs in the general interest’ in Article 1(b)              territorial plan for Lombardy still being missing, so that
      of Council Directive 93/36/EEC (1) of 14 June 1993                         the Commission has not been able to carry out a
      coordinating procedures for the award of public supply                     thorough examination of said national plans, the Italian
      contracts be interpreted as meaning that                                   Republic has failed to comply with Article 4(2) of Council
                                                                                Directive 75/440/EEC (1) of 16 June 1975 concerning
                                                                                the quality required of surface water intended for the
      (a)  the definition of needs in the general interest must                  abstraction of drinking water in the Member States.
           be derived from the national legal system of the
           Member State?
                                                                           —     Order the Italian Republic defendant to pay the costs.
      (b) the fact that a regional or local authority’s obligation
           is subsidiary is in itself sufficient for the existence of
           a need in the general interest to be assumed?                   Pleas in law and main arguments
2.    In interpreting the requirement ‘meeting needs ... not               The Commission claims that, although, so far as concerns
      having an industrial or commercial character’ laid down              certain types of water, there have been separate improvement
      in Directive 93/36/EEC, is (a) the existence of significant          plans at regional level, such plans do not cover all the water
      competition an imperative condition or (b) are the factual           referred to in Directive 75/440/EEC, so that the Commission
      or legal circumstances the determinant factors in that               takes the view that the Italian Republic has not drawn up the
      respect?                                                             systematic plan as required under Article 4(2) of the directive.


title: Case T-587/13: Judgment of the General Court of 21 January 2015 — Schwerdt v OHIM — Iberamigo (cat & clean) (Community trade mark — Opposition proceedings — Application for figurative Community mark cat & clean — Prior Spanish word mark CLEAN CAT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Obstacles to the free movement of goods — Article 34 TFEU — Article 16 of the Charter of Fundamental Rights)

text:
               2.3.2015

               EN

               Official Journal of the European Union

               C 73/25

      Judgment of the General Court of 21 January 2015 — Schwerdt v OHIM — Iberamigo (cat & clean)
      (Case T-587/13) (1)

      (Community trade mark - Opposition proceedings - Application for figurative Community mark cat & clean - Prior Spanish word mark CLEAN CAT - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Obstacles to the free movement of goods - Article 34 TFEU - Article 16 of the Charter of Fundamental Rights)
      (2015/C 073/33)
      Language of the case: German

         Parties

         Applicant: Miriam Schwerdt (Porta-Westfalica, Germany) (represented by: K. Kruse, lawyer)

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

         Other party to the proceedings before the Board of Appeal of OHIM: Iberamigo, SA (Rubi, Spain)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of OHIM of 3 September 2013 (Case R 1799/2012-4) concerning opposition proceedings between Iberamigo, SA and Ms Miriam Schwerdt.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Ms Miriam Schwerdt to pay the costs.

         (1)  OJ C 24, 25.1.2014.


               3.9.2005

               EN

               Official Journal of the European Union

               C 217/63

         Removal from the Register of Case T-66/97 (1)

   (2005/C 217/132)

      (Language of the case: Dutch)

   By order of 16 June 2005, the President of the Fifth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-66/97, J.T.F.J. Op 't Veld v Council of the European Union and Commission of the European Communities.

      (1)  OJ C 142 of 10.5.1997


title: Case C-94/11: Reference for a preliminary ruling from the Tribunale di Bergamo (Italy) lodged on 28 February 2011 — Criminal proceedings against Survival Godwin

text:
               7.5.2011

               EN

               Official Journal of the European Union

               C 139/14

         Reference for a preliminary ruling from the Tribunale di Bergamo (Italy) lodged on 28 February 2011 — Criminal proceedings against Survival Godwin
   (Case C-94/11)
   2011/C 139/26
   Language of the case: Italian

      Referring court

   Tribunale di Bergamo

      Party/parties to the main proceedings

   Survival Godwin

      Question(s) referred

   In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 15 and 16 of Directive 2008/115/EC (1) preclude the possibility that the conduct of a third-country national illegally staying in a Member State may be categorised as punishable under criminal law — simply on account of his lack of cooperation in the deportation procedure, in particular his mere failure to comply with a removal order issued by the administrative authorities — by a sentence of imprisonment of up to four years for failure to comply with the initial order issued by the Questore and a term of imprisonment of up to five years for failure to comply with subsequent orders?

      (1)  OJ 2008 L 348, p. 98.


title: Case T-622/14: Action brought on 15 August 2014 — Lauritzen Holding v OHIM — IC Companys (IWEAR)

text:
               6.10.2014

               EN

               Official Journal of the European Union

               C 351/26

         Action brought on 15 August 2014 — Lauritzen Holding v OHIM — IC Companys (IWEAR)
   (Case T-622/14)
   2014/C 351/34
   Language in which the application was lodged: English

      Parties

      Applicant: Lauritzen Holding AS (Drøbak, Norway) (represented by: P. Walsh and S. Dunstan, Solicitors)

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

      Other party to the proceedings before the Board of Appeal: IC Companys A/S (København, Denmark)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 June 2014 given in Case R 1935/2013-2.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘IWEAR’ for goods in Classes 18, 25 and 28 — Community trade mark application No 1 0 6 29  806

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: The earlier mark ‘INWEAR’ registered as CTM No 2 1 68  284

      Decision of the Opposition Division: Partially upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) CTMR.


title: Case T-153/11: Action brought on 14 March 2011 — Zenato Azienda Vitivinicola v OHIM — Camera di Commercio, Industria, Artigianato e Agricoltura di Verona (ZENATO RIPASSA)

text:
               7.5.2011

               EN

               Official Journal of the European Union

               C 139/24

         Action brought on 14 March 2011 — Zenato Azienda Vitivinicola v OHIM — Camera di Commercio, Industria, Artigianato e Agricoltura di Verona (ZENATO RIPASSA)
   (Case T-153/11)
   2011/C 139/46
   Language in which the application was lodged: Italian

      Parties

      Applicant: Zenato Azienda Vitivinicola Srl (Peschiera del Garda, Italy) (represented by: A. Rizzoli, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Camera di Commercio, Industria, Artigianato e Agricoltura di Verona (Verona, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the present action, together with the related annexes, admissible;

               —

               annul the decision of the Board of Appeal (points 1, 2 and 3 of the operative part) in so far as it upholds the appeal, upholds the opposition and rejects in its entirety the application for registration, and orders the applicant to pay the costs incurred by the opposing party in the opposition and appeal proceedings;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: Word mark ‘ZENATO RIPASSA’ (registration application No 5 848 015), for goods in Class 33 (alcoholic beverages)

      Proprietor of the mark or sign cited in the opposition proceedings: La Camera di Commercio, Industria, Artigianato e Agricoltura di Verona

      Mark or sign cited in opposition: Italian word mark ‘RIPASSO’ (No 682 213) for goods in Class 33 (‘Wines, spirits and liqueurs’)

      Decision of the Opposition Division: Opposition rejected

      Decision of the Board of Appeal: To uphold the opposition and to reject in its entirety the application for registration

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/09.


               21.8.2014

               EN

               Official Journal of the European Union

               C 274/4

         Request for an Advisory Opinion from the EFTA Court by Fürstliches Landgericht dated 18 March 2014 in the proceedings concerning Otto Kaufmann AG
   (Case E-9/14)
   (2014/C 274/04)
   A request has been made to the EFTA Court by a letter of 18 March 2014 from Fürstliches Landgericht (Princely Court of Justice, Liechtenstein), which was received at the Court Registry on 21 March 2014, for an Advisory Opinion in the proceedings concerning Otto Kaufmann AG, on the following question:

               —

               Does the EEA Agreement, in particular the provisions on the freedom to provide services and freedom of establishment and/or individual acts of secondary law (for example, Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts or Directive 2006/123/EC on services in the internal market, which have both been incorporated into EEA law), require that where national law allows for legal persons to be convicted by a criminal court those convictions must also be clearly recorded, for example, in a criminal record?


title: Reference for a preliminary ruling from the Vaasan Hovioikeus by order of that court of 21 March 1997 in the case of Markku Läärä and Others v. District Prosecutor and Finnish State (Case C-124/97)

text:
No C 166/8             EN                    Official Journal of the European Communities                                        31 . 5 . 97
Pleas in law and main arguments adduced in support:                     ( b ) Do national rules exempting a public economic entity
                                                                              from complying with the general rules laid down by
Whilst Article 171 ( 1 ) of the EC Treaty does not lay down                   ordinary private-law provisions for all the other
a specific time-limit for the Member State concerned to                       operators in the sector in respect of fixed-term
fulfil its obligations arising under a judgment of the                        contracts of employment constitute an aid within the
Court of Justice, the latter must nevertheless begin                          meaning of Article 92 of the EEC Treaty ?
implementation of the judgment without delay and
conclude it as soon as possible .
The Federal Republic of Germany has failed to take
binding measures to transpose Article 3 ( 1 ) of Directive              Reference for a preliminary ruling from the Vaasan
75/440/EEC (2 ). It has also not yet drawn up a systematic              Hovioikeus by order of that court of 21 March 1997 in
plan of action under Article 4 ( 2 ) of the Directive, nor, in          the     case    of Markku Läärä and Others            v.   District
the Bundesländer, drawn up improvement plans for all                                         Prosecutor and Finnish State
watercourses . Finally, it has failed to comply with its                                           (Case C-124/97)
obligations to provide information under Article 8 of
Council Directive 79/869/EEC ( 3 ) of 9 October 1979 .                                              ( 97/C 166/14 )
The application for determination of a penalty payment                  Reference has been made to the Court of Justice of the
is based on Article 171 ( 2 ) of the EC Treaty. The                     European Communities by an order of the Vaasan
Commission justifies the amount of the penalty by                       Hovioikeus (Vaasa Court of Appeal ) of 21 March 1997,
reference to its calculation method set out in Official                 which was received at the Court Registry on 25 March
Journal No C 242 of 21 . 8 . 1996 , p. 6 . It assesses the              1997, for a preliminary ruling in the case of Markku
Treaty infringement as severe ( Coefficient 8/20 ) and                  Läärä , Cotswold Microsystems Limited and Oy
regards its duration as very considerable ( Coefficient 2/3 ).          Transatlantic        Software   Limited v.   District Prosecutor
Concerning the deterrent effect of the penalty applied for,             (Jyväskylä Prosecutor's Office ) and Finnish State,
the Commission uses a calculation formula notified to the               represented by the Provincial Governments of Keski-Suomi
Member States, whereby reference is made to the relative                und Uusimaa, on the following questions :
position of each Member State in relation to its gross
domestic product and its weighted voting strength in the                 1 . Is the judgment of the Court of Justice of 24 March
Council under Article 148 ( 2 ) of the EC Treaty.                             1994 in Case C-275/92 Her Majesty's Customs and
                                                                              Excise v. Gerhart Schindler and Jörg Schindler (^ to be
(') [ 1991 ] ECR 1-4983 .                                                     interpreted in such a way that it may be regarded as
( 2 ) OJ No L 194 , 1975 , p . 26 .                                           equivalent to the present case ( compare the judgment
( 3 ) OJ No L 271 , 1979 , p . 44 .                                           of the Court of Justice of 6 October 1982 in Case 283/
                                                                              81 Sri CILFIT and Lanificio di Gavardo SpA v.
                                                                              Ministry of Health ( 2 ) and that the provisions of the
                                                                              EC Treaty should therefore be interpreted in the
                                                                              present case in the same way as in the aforesaid case ?
Reference for a preliminary ruling by the Pretura                             In case the answer to the first question is wholly or
Circondariale di Padova by order of that court of                             partly negative, the Hovioikeus submits the following
17 December 1996 in the case of Tommaso Nalon against                         additional questions .
                        Ente Poste Italiane
                          ( Case C-123/97 )                             2 . Do the rules of the EC Treaty on the free movement of
                            ( 97/C 166/ 13 )                                  goods and services (Articles 30, 59 and 60 ) apply also
                                                                              to gaming machines like those in question here ?
Reference has been made to the Court of Justice of the                   3 . If the answer to the second question is affirmative,
European Communities by order of the Pretura Circonda
riale di Padova (Padua District Magistrate's Court ) of                       ( a ) do Articles 30 , 59 or 60 or any other article
 17 December 1996 , which was received at the Court                                 preclude Finland from restricting operation of the
Registry on 24 March 1997, for a preliminary ruling in                              gaming machines in question by granting the
the case of Tommaso Nalon against Ente Poste Italiane on                            sole right to the Raha-automaattiyhdistys ( Slot
the following questions concerning the interpretation of                            Machine Association ), irrespective of whether the
Articles 92 and 93 of the Treaty:                                                   restriction affects domestic and foreign organizers
                                                                                of gaming in the same way, and
 ( a ) May the questions concerning the compatibility of the                  ( b ) do there exist for that restriction any justifications
       national law with the Community provisions at issue                          as referred to in Articles 36 or 56 or any other
       be raised and determined in proceedings which have                           article of the EC Treaty, on the grounds put
       not been initiated by undertakings having interests                          forward in the Arpajaislaki ( Law on Lotteries ) or
       protected by the Community rules designed to                                 its preparatory work or any other grounds, and in
       safeguard competition ?                                                      considering that question may it be relevant how
 ---pagebreak--- 31 . 5 . 97           I EN 1                  Official Journal of the European Communities                                     No C 166/9
            large a prize can be obtained from the gaming                     the EC Treaty and, according to the rules of national
            machines and whether the opportunity to win is                    procedural law applicable to them, the arbitrators are
            based on chance or on the player's skill ?                        not at liberty to apply those provisions of their own
                                                                              motion ?
(') [ 1994 ] ECR 1-1039 .
( 2 ) [ 1982] ECR 3415 .
                                                                         2 . Notwithstanding the rules of Netherlands procedural
                                                                              law set out in paragraphs 4.2 and 4 .4 above, should a
                                                                              Netherlands court allow a claim, which otherwise
                                                                              complies with statuatory requirements, for the
                                                                              annulment of an arbitration award on the ground that
Reference for a preliminary ruling from the                                   the award conflicts with Article 85 of the EC Treaty, if
Arrondissementsrechtbank Alkmaar by order of that court                       it finds that there is in fact such a conflict ?
of 18 March 1997 in the case of A. G. R. Regeling against
Bestuur van de Bedrijfsvereniging voor de Metaalnijver
                                   heid                                  3 . Notwithstanding the rules of Netherlands procedural
                          ( Case C-125 /97 )                                  law set out in paragraph 4.5 above, is the court also
                                                                              required to allow such a claim if the applicability of
                            ( 97/C 166/ 15 )
                                                                              Article 85 of the EC Treaty was outside the scope of
                                                                              the dispute in the arbitration proceedings and the
Reference has been made to the Court of Justice                               arbitrators therefore made no decision in regard to it ?
of the European Communities by order of the
Arrondissementsrechtbank Alkmaar ( Alkmaar District
Court) of 18 March 1997, received at the Court Registry                  4 . Does Community law require the rules of Netherlands
on 26 March 1997, for a preliminary ruling in the case of                     procedural law set out in paragraph 5.3 above to be
A. G. R. Regeling against Bestuur van de Bedrijfsvereni                      disapplied if this is necessary in order to be able to
ging voor de Metaalnijverheid on the following question :                     examine , in proceedings for annulment of a
                                                                              subsequent arbitration award, whether an agreement
Are the requirements of Directive 80/987 (') fully satisfied                  held to be valid in an interim arbitration award with
by rules of national law which may result in a claim                          the force of res judicata may nevertheless be void
relating to pay^being met, as required by that Directive,                     because it conflicts with Article 85 of the EC Treaty ?
only if and in so far as that claim amounts, over the
period referred to in the Directive, to a sum greater than
the amount of pay which the employee received during                     5 . Alternatively, in a case such as that described in
that period but which is attributed, under national civil                     Question 4 , is it necessary to refrain from applying the
law, to a claim relating to pay which arose prior to that                     rule that, in so far as an interim arbitration award is
period ?                                                                      in the nature of a final award, annulment of that
                                                                              award may not be sought simultaneously with that of
(') OJ No L 283 , 1980 , p . 23 .                                             the subsequent arbitration award ?
                                                                         H OJ No C 77, 1996 , p . 1 .
Reference for a preliminary ruling from the Hoge Raad
der Nederlanden by order of that court of 21 March 1997
in the case of Eco Swiss China Time Ltd against Benetton
                          International NV                               Reference for a preliminary ruling by the Chamber for
                          ( Case C-126/97 )                              Labour Disputes of the Pretura Circondariale di Bologna,
                                                                         by order of that court of 2 December 1996 in the case of
                             ( 97/C 166/ 16 )                            Annalisa Carbonari and 121 other plaintiffs against
                                                                         1 . Università degli Studi di Bologna, 2 . Ministero della Sa
Reference has been made to the Court of Justice of the                   nità, 3 . Minstero dell'Università e della Ricerca Scientifica,
European Communities by order of the Hoge Raad der                                            4 . Ministero del Tesoro
Nederlanden ( Supreme Court of the Netherlands ) of                                               ( Case C-131 /97 )
21 March 1997, which was received at the Court Registry
 on 27 March 1997, for a preliminary ruling in the case of                                          ( 97/C 166/ 17 )
 Eco Swiss China Time Ltd and Benetton International NV
on the following questions :
                                                                         Reference has been made to the Court of Justice of the
 1 . To what extent is the ruling of the Court of Justice in             European Communities by an order of the Chamber for
        Joined Cases C-430/93 and C-431/93 Van Schijndel                 Labour Disputes of the Pretura Circondariale di Bologna
        and Van Veen v. SPF (') applicable by analogy if, in a           ( Bologna District Magistrates Court) of 2 December 1996,
        dispute concerning a private law agreement which is              which was received at the Court Registry on 1 April 1997,
        decided upon by arbitrators rather than the national             for a preliminary ruling in the case of Annalisa Carbonari
        courts, the parties make no reference to Article 85 of           and 121 other plaintiffs against 1 . Universita degli Studi di


title: Case C-435/11: Judgment of the Court (First Chamber) of 19 September 2013 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — CHS Tour Services GmbH v Team4 Travel GmbH (Directive 2005/29/EC — Unfair commercial practices — Sales brochure containing false information — Treated as ‘misleading commercial practice’ — Case in which the trader cannot be criticised for any breach of the duty of diligence)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/11

         Judgment of the Court (First Chamber) of 19 September 2013 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — CHS Tour Services GmbH v Team4 Travel GmbH
   (Case C-435/11) (1)

   (Directive 2005/29/EC - Unfair commercial practices - Sales brochure containing false information - Treated as ‘misleading commercial practice’ - Case in which the trader cannot be criticised for any breach of the duty of diligence)
   2013/C 344/16
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Appellant: CHS Tour Services GmbH

      Respondent: Team4 Travel GmbH

      Re:

   Request for a preliminary ruling — Oberster Gerichtshof — Interpretation of Article 5 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22) — Brochure containing false information — Whether or not possible for a trader to show that the requirements of professional diligence have been complied with in order to prevent a commercial practice from being categorised as ‘unfair’

      Operative part of the judgment

   Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), must be interpreted as meaning that, if a commercial practice satisfies all the criteria specified in Article 6(1) of that directive for being categorised as a misleading practice in relation to the consumer, it is not necessary to determine whether such a practice is also contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the directive in order for it legitimately to be regarded as unfair and, therefore, prohibited in accordance with Article 5(1) of the directive.

      (1)  OJ C 340, 19.11.2011.


title: Case T-296/11: Action brought on 8 June 2011 — Cementos Portland Valderrivas v Commission

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/26

         Action brought on 8 June 2011 — Cementos Portland Valderrivas v Commission
   (Case T-296/11)
   2011/C 238/46
   Language of the case: Spanish

      Parties

      Applicant: Cementos Portland Valderrivas, SA (Pamplona, Spain) (represented by: L. Ortiz Blanco, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare the action admissible;

               —

               annul the Commission's decision of 30 March 2011;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The action has been brought against the Commission's decision of 30 March 2011 in proceedings pursuant to Article 18(3) of Council Regulation (EC) No 1/2003, adopted in relation to Case COMP/39.520 — Cement and related products.
   In support of its action, the applicant relies on a single plea of nullity, alleging an infringement of Article 18 of Regulation No 1/2003 and the principle of proportionality.

               —

               First, the applicant submits that the information requested in the contested decision bears no relation to the infringement under investigation and, as such, cannot assist the Commission in its task of verifying any evidence which justifies the investigation in relation to Valderrivas. Consequently, the applicant claims that the requirement of necessity to which requests for information are subject by way of Article 18 of Regulation No 1/2003 is not satisfied. Moreover, the applicant submits that the fact that the decision does not contain any references to such evidence cannot prevent the General Court from carrying out its task of reviewing the requirement of necessity.

               —

               Second, the applicant alleges that the contested decision infringes the principle of proportionality in that it imposes on it a disproportionate burden in relation to the requirements of the investigation. The disproportionate nature of the decision is reflected in the excessive scope of the information requested, the high level of detail required, the requirement to process and submit the requested information in the stated formats and within the time limit set out to that effect.


title: Case C-391/15: Request for a preliminary ruling from the Tribunal Superior de Justicia de Andalucía (Spain) lodged on 20 July 2015 — Marina del Mediterráneo, S.L. and Others v Consejería de Obras Públicas y Vivienda de la Junta de Andalucía

text:
               19.10.2015

               EN

               Official Journal of the European Union

               C 346/6

         Request for a preliminary ruling from the Tribunal Superior de Justicia de Andalucía (Spain) lodged on 20 July 2015 — Marina del Mediterráneo, S.L. and Others v Consejería de Obras Públicas y Vivienda de la Junta de Andalucía
   (Case C-391/15)
   (2015/C 346/07)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Andalucía

      Parties to the main proceedings

      Applicants: Marina del Mediterráneo, S.L., Marina del Mediterráneo Duquesa, S.L., Marina del Mediterráneo Estepona, S.L., Marina del Mediterráneo Este, S.L., Marinas del Mediterráneo Torre, S.L., Marina del Mediterráneo Marbella, S.L., Gómez Palma, S.C., Enrique Alemán, S.A., Cyes Infraestructuras, S.A., Cysur Obras y Medioambiente, S.A.

      Defendant: Consejería de Obras Públicas y Vivienda de la Junta de Andalucía

      Other parties to the proceedings: Agencia Püblica de Puertos de Andalucía, U.T.E. Nassir Bin Abdullah and Sons, S.L., Puerto Deportivo de Marbella, S.A., y Ayuntamiento de Marbella

      Questions referred

               1.

               In the light of the principles of sincere cooperation and the effectiveness of directives, are Articles 1(1) and 2(1)(a) of Directive 89/665 (1) to be interpreted as precluding national legislation such as Section 310(2) of Ley 30/2007, de 30 de octubre, de Contratos del Sector Público (now Section 40(2) RDLeg 3/2011, que aprueba el texto refundido de la Ley de Contratos del Sector Público), in so far as it prevents access to the special application in procurement proceedings in respect of the procedural acts of the procurement board, such as the decision to admit a tender from a tenderer which, it is alleged, fails to comply with the provisions concerning proof of technical and economic solvency laid down in the national and EU legislation?

               2.

               If the reply to the first question is in the affirmative, do Articles 1 (1) and 2 (1) (a) and (b) of Directive 89/665 have direct effect?

      (1)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).


title: Case C-514/15 P: Appeal brought on 25 September 2015 by HIT Groep BV against the judgment of the General Court (Sixth Chamber) delivered on 15 July 2015 in Case T-436/10 HIT Groep v Commission

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/18

         Appeal brought on 25 September 2015 by HIT Groep BV against the judgment of the General Court (Sixth Chamber) delivered on 15 July 2015 in Case T-436/10 HIT Groep v Commission

   (Case C-514/15 P)
   (2015/C 398/24)
   Language of the case: Dutch

      Parties

      Appellant: HIT Groep BV (represented by: G. van der Wal and L. Parret, advocaten)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               Declare the ground(s) of appeal put forward by the appellant to be well founded, set aside the judgment under appeal, declare the appellant’s action at first instance against the contested decision (1) to be well founded and annul the contested decision in so far as it is directed against the appellant, in particular Articles 1(9)(b), 2(9) and 4(22) thereof; in the alternative, set the fine imposed on the appellant in Article 2(9) at zero or reduce it equitably or, at least, set aside the judgment under appeal and refer the case back to the General Court for it to rule afresh in accordance with the judgment to be delivered by the Court of Justice in this case;

               —

               Order the respondent to pay the costs incurred by the appellant at first instance and those incurred on appeal in the present proceedings, including the costs of the appellant’s legal assistance.

      Pleas in law and main arguments

               (a)

               In paragraphs 174 to 188 and 228 of the judgment under appeal the General Court, wrongly and contrary to law, or on the basis of insufficient or incomprehensible reasoning, and in breach of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (2) (‘the Charter’), the second subparagraph of Article 23(2) of Regulation No 1/2003, (3) Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), Article 49 of the Charter and of general principles of law, in particular the principle of proportionality, ruled that the respondent, for the application of the fine ceiling applicable to the appellant by virtue of the second subparagraph of Article 23(2) of Regulation No 1/2003, could use the appellant’s 2003 business year as a basis and that the respondent did not infringe the principle of proportionality in using the 2003 business year as a basis, and dismissed the action of the (present) appellant and ordered the (present) appellant to pay the costs.

               (b)

               The General Court, wrongly and contrary to law and in breach of the second paragraph of Article 296 TFEU, Articles 41(2)(c) and 49(3) of the Charter and of general principles of law, in particular the principle of proportionality, failed to assess the proportionality of the fine imposed on the appellant by the respondent and (at least) the General Court’s assessment in that regard was not reasoned or was insufficiently reasoned (comprehensibly), and dismissed the action of the (present) appellant) and ordered the (present) appellant to pay the costs.

         Contrary to what the General Court held, it is (in this case) not permitted and contrary to law to derogate from the second subparagraph of Article 23(2) of Regulation No 1/2003. Such a derogation — whereby, instead of the previous business year (2009), the 2003 business year would have to apply for the application of that provision — is incompatible with that provision and its purpose. The second subparagraph of Article 23(2) of Regulation No 1/2003 is aimed at preventing a fine from being imposed in an amount that exceeds the financial capacity of the undertaking on the date on which it is held liable by the Commission for the infringement and on which the Commission imposes a monetary sanction on it. That provision safeguards the principle of proportionality, which is no longer safeguarded if the text of the provision is derogated from.
   Derogation from (the text of) that provision is (in this case) also incompatible with Article 7(1) ECHR and Article 49 of the Charter and with the principle of proportionality (principle of legality and of legal certainty).
   The judgments of the Court in which derogation from the express text of the second subparagraph of Article 23(2) of Regulation No 1/2003 has been permitted (Britannia Alloys, C-76/06 P, EU:C:2007:326 and 1.garantovaná, C-90/13 P, EU:C:2014:326) date from (long) after the facts for which the fine was imposed on the appellant in the present case. Retroactive application of that case-law is therefore contrary to Article 7(1) ECHR and Article 49 of the Charter.
   In the event that derogation from the second subparagraph of Article 23(2) of Regulation No 1/2003 were legally permissible in exceptional cases, it would require a comprehensive statement of reasons, which, contrary to Article 296 TFEU and Article 41(2)(c) of the Charter, is lacking or insufficient in the judgment under appeal.
   Safeguarding the principle of proportionality requires that (in any event), where there is a derogation from the second subparagraph of Article 23(2) of Regulation No 1/2003, the European Union Court (then) determines whether the fine is compatible with the intent of that provision and with the principle of proportionality, something which the General Court failed to do in the judgment under appeal (as did the Commission in the contested decision), or at least furnished inadequate reasoning for that purpose.

      (1)  Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (case COMP/38344 — Prestressing Steel), amended by Commission Decision C(2010) 6676 final of 30 September 2010 and by Commission Decision C(2011) 2269 final of 4 April 2011.

      (2)  OJ 2000 C 364, p. 1.

      (3)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1).


title: Case T-55/15: Action brought on 3 February 2015 — Certified Angus Beef v OHIM — Certified Australian Angus Beef (CERTIFIED AUSTRALIAN ANGUS BEEF)

text:
               30.3.2015

               EN

               Official Journal of the European Union

               C 107/34

      Action brought on 3 February 2015 — Certified Angus Beef v OHIM — Certified Australian Angus Beef (CERTIFIED AUSTRALIAN ANGUS BEEF)
      (Case T-55/15)
      (2015/C 107/45)
      Language in which the application was lodged: English

         Parties

         Applicant: Certified Angus Beef, LLC (Wooster, Ohio, United States of America) (represented by: C. Aikens, Barrister)

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

         Other party to the proceedings before the Board of Appeal: Certified Australian Angus Beef Pty Ltd (Surrey Hills, Australia)

         Details of the proceedings before OHIM

         Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

         Trade mark at issue: International registration designating the European Union in respect of the figurative mark containing the word elements ‘CERTIFIED AUSTRALIAN ANGUS BEEF’ — International registration designating the European Union No 1 095 394

         Procedure before OHIM: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of OHIM of 30 October 2014 in Case R 662/2014-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  uphold the Opposition in its entirety;

                  —

                  order OHIM to pay the costs.

         Plea in law

                  —

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


title: Case T-137/05: Judgment of the Court of First Instance of 16 May 2007 — La Perla v OHIM — Worldgem Brands (NIMEI LA PERLA MODERN CLASSIC) (Community trade mark — Cancellation proceedings — Community word mark NIMEI LA PERLA MODERN CLASSIC — Earlier national figurative and word marks la PERLA and LA PERLA PARFUMS — Relative grounds for refusal — Article 52(1)(a) of Regulation (EC) No 40/94 — Article 8(5) of Regulation No 40/94)

text:
               7.7.2007

               EN

               Official Journal of the European Union

               C 155/21

         Judgment of the Court of First Instance of 16 May 2007 — La Perla v OHIM — Worldgem Brands (NIMEI LA PERLA MODERN CLASSIC)
   (Case T-137/05) (1)

   (Community trade mark - Cancellation proceedings - Community word mark NIMEI LA PERLA MODERN CLASSIC - Earlier national figurative and word marks la PERLA and LA PERLA PARFUMS - Relative grounds for refusal - Article 52(1)(a) of Regulation (EC) No 40/94 - Article 8(5) of Regulation No 40/94)
   (2007/C 155/41)
   Language of the case: Italian
   Parties

      Applicant: Gruppo La Perla SpA (Bologna, Italy) (represented by: R. Morresi and A. Dal Ferro, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially M. Capostagno, and subsequently O. Montalto, Agents)

      Other party to the proceedings before the OHIM Board of Appeal, intervener before the Court of First Instance: Worldgem Brands — Gestão e Investimentos Lda, formerly Cielo Brands — Gestão e Investimentos Lda, (Madeira, Portugal) (represented by: G. Bozzola et C. Bellomunno, lawyers)
   Re:
   Appeal lodged against the decision of the First Board of Appeal of OHIM of 25 January 2005 (Case R 537/2004-1) relating to cancellation proceedings between Gruppo La Perla SpA and Worldgem Brands — Gestão e Investimentos Lda.
   Operative part of the judgment

               1.

               The decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 January 2005 (Case R537/2004-1) is annulled.

               2.

               The intervener is ordered to bear its own costs and to bear one third of the applicant's costs.

               3.

               The applicant is ordered to bear two thirds of its own costs.

               4.

               OHIM is ordered to bear its own costs.

      (1)  OJ C 132 of 28.5.2005.


title: Case C-22/10 P: Appeal brought on 14 January 2010 by REWE-Zentral AG against the judgment of the Court of First Instance (Sixth Chamber) delivered on 11 November 2009 in Case T-150/08 REWE-Zentral AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), intervener: Aldi Einkauf GmbH & Co. OGH

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/15

         Appeal brought on 14 January 2010 by REWE-Zentral AG against the judgment of the Court of First Instance (Sixth Chamber) delivered on 11 November 2009 in Case T-150/08 REWE-Zentral AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), intervener: Aldi Einkauf GmbH & Co. OGH
   (Case C-22/10 P)
   2010/C 80/28
   Language of the case: German

      Parties

      Appellant: REWE-Zentral AG (represented by: M. Kinkeldey and A. Bognár, lawyers)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Aldi Einkauf GmbH & Co. OHG

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the contested decision of the Court of First Instance of 11 November 2009;

               —

               order the defendant and respondent to pay the costs of these proceedings and the costs of the proceedings before the Court of First Instance

      Pleas in law and main arguments

   The present appeal is against the judgment of the Court of First Instance by which that court dismissed the appellant’s action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 15 February 2008 rejecting its application for registration of the word sign CLINA. By its judgment the Court of First Instance confirmed the Board of Appeal’s decision according to which there is a likelihood of confusion with the earlier Community word mark CLINAIR.
   The appellant relies on one ground of appeal alleging breach of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.
   The Court of First Instance erred in law by not carrying out a comprehensive global assessment of all the relevant factors when it assessed the likelihood of confusion. As a result of its assumption that there is a high degree of aural and visual similarity between the signs at issue, which was in turn the result of an error of law, it held that the conceptual differences between those signs could not be counteracted, which is correspondingly likewise due to an error of law. Furthermore, the Court of First Instance did not assess the very low degree of distinctiveness of the earlier mark in a legally correct manner. The Court of First Instance therefore erred in law in its application of Article 8(1)(b) of Regulation No 40/94 and thus breached Community law.
   In particular, the Court of First Instance did not sufficiently take into account the fact that the signs to be compared CLINAIR and CLINA exhibit fundamental aural and visual differences which have to be taken into account for legal reasons and that the earlier mark CLINAIR has a particular meaning, which likewise has to be taken into account for legal reasons and which the later mark completely lacks. Likewise, the Court of First Instance did not take into consideration that the element ‘CLIN’ has a particularly weak distinctive character and can therefore, for legal reasons, only have a minimal effect on the overall impression made by the mark CLINAIR. For that reason in turn the mere fact that there is correspondence as regards that element is not, for legal reasons, sufficient to give rise to a likelihood of confusion under Article 8(1)(b) of Regulation No 40/94, particularly as the existing aural, visual and conceptual differences are significant.


title: Case C-76/02: Action brought on 5 March 2002 by the Commission of the European Communities against the Republic of Austria

text:
4.5.2002               EN                   Official Journal of the European Communities                                        C 109/37
Action brought on 5 March 2002 by the Commission                       Action brought on 13 March 2002 by the Commission of
of the European Communities against the Republic of                      the European Communities against the Italian Republic
                             Austria
                         (Case C-76/02)                                                          (Case C-87/02)
                        (2002/C 109/62)
                                                                                (2002/C 109/63)
An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 5 March
2002 by the Commission of the European Communities,
represented by Götz zur Hausen, Legal Adviser, with an                 An action against the Italian Republic was brought before the
address for service in Luxembourg at the office of Luis Escobar        Court of Justice of the European Communities on 13 March
Guerrero, of the Commission’s legal Service, Wagner Centre             2002 by the Commission of the European Communities,
C 254, Kirchberg.                                                      represented by Michel Van Beek and Roberto Amorosi, acting
                                                                       as Agents.
The applicant claims that the Court should:
                                                                       The applicant claims that the Court should:
(1) declare that, by failing to adopt the laws, regulations and
      administrative provisions necessary in order to comply
      with Commission Directive 2000/71/EC of 7 November               —     Declare that, by the failure of the Abruzzo regional
      2000 to adapt the measuring methods as laid down in                    authority to check whether the plans for the construction
      Annexes I, II, III and IV to Directive 98/70/EC of the                 of a road to by-pass the city of Teramo (the ‘Lotto Zero’
      European Parliament and of the Council to technical                    project — an alternative to the SS 80 trunk road between
      progress as foreseen in Article 10 of that Directive (1), or           Termano and Giulianova), which fell within the scope of
      at any rate to communicate the same to the Commission,                 Annex II to Directive 85/337/EEC (1), required to be
      the Republic of Austria has failed to fulfil its obligations           assessed for its effects on the environment, in accordance
      under Article 2(1) of that directive;                                  with Articles 5 to 10 of the directive, the Italian Republic
                                                                             has failed to fulfil its obligations under Article 4(2) of
                                                                             Directive 85/337/EEC;
(2) order the Republic of Austria to pay the costs.
                                                                       —     Order the Italian Republic to pay the costs.
Pleas in law and main arguments
The binding nature of the third paragraph of Article 249 EC            Pleas in law and main arguments
and the first paragraph of Article 10 EC is such as to require
Member States to whom directives are addressed to transpose
such directives into national law so as to give full effect to
them before the expiry of the time-limit for transposition. The
time-limit prescribed in Article 2(1) of Directive 2000/71             Article 4(1) of the directive provides that projects of the classes
expired on 1 January 2000 but the Republic of Austria has not          listed in Annex I are to be made subject to an assessment in
adopted the requisite provisions.                                      accordance with Articles 5 to 10. According to Article 4(2),
                                                                       projects of the classes listed in Annex II are to be made subject
                                                                       to an assessment, in accordance with Articles 5 to 10, where
                                                                       Member States consider that their characteristics so require.
(1) OJ 2000 L 287, p. 46.                                              To that end, the Member States may inter alia specify certain
                                                                       types of projects as being subject to an assessment or may
                                                                       establish the criteria and/or thresholds necessary to determine
                                                                       which of the projects of the classes listed in Annex II are to be
                                                                       subject to an assessment in accordance with Articles 5 to 10.


title: Case T-487/14: Action brought on 27 June 2014 — CHEMK and KF v Commission

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/49

         Action brought on 27 June 2014 — CHEMK and KF v Commission
   (Case T-487/14)
   2014/C 282/64
   Language of the case: English

      Parties

      Applicants: Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) (Chelyabinsk, Russia) and Kuzneckie ferrosplavy OAO (KF) (Novokuznetsk, Russia) (represented by: B. Evtimov and M. Krestiyanova, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Annul Commission’s Implementing Regulation (EU) No 360/2014 of 9 April 2014 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China and Russia (the Contested Regulation), following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (1) (the Basic Regulation), (OJ L 107, p. 13);

               —

               Order the European Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an error in law, resulting from an erroneous interpretation of Article 2(9) of the Basic Regulation and/or a manifest error of assessment in the Commission’s finding that a single economic entity is irrelevant for the calculation of a constructed export price (including adjustments to export price) pursuant to Article 2(9) of the Basic Regulation, and in the consequential finding that a full deduction for all SG&A costs and profit of RFA International from the constructed export price of the CHEMK Group was warranted. To the extent that the Commission may have relied in the above findings on the rejection of the applicants’ claim of existence of a single economic entity, the applicants contend that such rejection is also vitiated by an error in law and/or a manifest error of assessment.

               2.

               Second plea in law, alleging a breach of Article 11(10) of the Basic Regulation and a related breach of Article 11(9) of the Basic Regulation in the Commission’s deduction of the anti-dumping duties from the applicants’ constructed export price. The breach of Article 11(9) of the Basic Regulation results from the Commission’s application of a new methodology for assessing whether the duties are duly reflected in the resale price, which was different from the methodology used in the last interim review investigation which led to the duty in force against the applicants.

               3.

               Third plea in law, alleging that the Commission’s findings on an alleged likelihood of recurrence of injurious dumping in relation to Russian imports is flawed by series of manifest errors of assessment of facts and evidence.

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, p. 51)


title: Case T-323/07: Action brought on 30 August 2007 — El Morabit v Council of the European Union

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/52

         Action brought on 30 August 2007 — El Morabit v Council of the European Union
   (Case T-323/07)
   (2007/C 269/93)
   Language of the case: Dutch
   Parties

      Applicant: Mohamed El Morabit (Amsterdam, Netherlands) (represented by: U. Sarikaya, lawyer)

      Defendant: Council of the European Union
   Form of order sought

               —

               Annul the Council's decision of 28 June 2007.

         Pleas in law and main arguments
   The applicant contests the decision (1) whereby the Council decided that a decision had been taken with respect to the applicant by a competent authority within the meaning of Article 1(4) of the common position and that the applicant should continue to be subject to the specific restrictive measures provided for in Regulation (EC) No 2580/2001.
   The applicant submits that, although he has been found guilty by a court of participating in a criminal organisation with terrorist aims, he has appealed against that judgment. The Council's decision is also premature and conflicts with Article 6 of the ECHR and Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

      (1)  2007/445/EC: Council Decision of 28 June 2007 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decisions 2006/379/EC and 2006/1008/EC (OJ 2007 L 169, p. 58).


title: Case C-193/16: Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 7 April 2016 — E v Subdelegación del Gobierno en Álava

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/4

         Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 7 April 2016 — E v Subdelegación del Gobierno en Álava
   (Case C-193/16)
   (2016/C 251/05)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

      Parties to the main proceedings

      Applicant/appellant: E

      Defendant/respondent: Subdelegación del Gobierno en Álava

      Question referred

   In accordance with Article 27 [(1) and (2)] of Directive 2004/38/EC, (1) does the appellant, sentenced to 12 years’ imprisonment for repeated offences of child abuse, represent a genuine and present threat to public security, bearing in mind that he is detained in prison and, having served six years, has several years left to serve before being released?

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


title: Case C-423/17: Request for a preliminary ruling from the Gerechtshof Den Haag (Netherlands) lodged on 13 July 2017 — Staat der Nederlanden v Warner-Lambert Company LLC

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/8

         Request for a preliminary ruling from the Gerechtshof Den Haag (Netherlands) lodged on 13 July 2017 — Staat der Nederlanden v Warner-Lambert Company LLC
   (Case C-423/17)
   (2017/C 318/13)
   Language of the case: Dutch

      Referring court

   Gerechtshof Den Haag

      Parties to the main proceedings

      Applicant: Staat der Nederlanden

      Defendant: Warner-Lambert Company LLC

      Questions referred

               1.

               Must Article 11 of Directive 2001/83 (1) or any other provision of European Union law be interpreted as meaning that a communication whereby the marketing authorisation applicant or holder for a generic medicine, within the meaning of Article 10 of Directive 2001/83, notifies the authority that he is not including in the Summary of Product Characteristics and the package leaflet those parts of the Summary of Product Characteristics for the reference medicine which refer to indications or dosage forms covered by the patent right of a third party, should be considered as a request to limit the marketing authorisation which must result in the marketing authorisation not applying, or no longer applying, to the patented indications or dosage forms?

               2.

               If the answer to question 1 is in the negative, do Articles 11 and 21(3) of Directive 2001/83 or any other provisions of EU law preclude the competent authority from making public, by means of an authorisation granted under Article 6 in conjunction with Article 10 of Directive 2001/83, the Summary of Product Characteristics and the package leaflet, including those parts which refer to indications or dosage forms which fall under the patent rights of a third party, in a situation where the marketing authorisation applicant or holder has notified the authority that he is not including in the Summary of Product Characteristics and the package leaflet those parts of the Summary of Product Characteristics for the reference medicine which refer to indications or dosage forms covered by the patent right of a third party?

               3.

               Does it make any difference to the answer to question 2 that the competent authority requires the authorisation holder to include in the package leaflet which the authorisation holder must insert in the packaging of the medicine a reference to the authority’s website on which the Summary of Product Characteristics is published, including the parts which refer to indications or dosage forms covered by the patent rights of a third party, whereas those parts, pursuant to Article 11 of Directive 2001/83, are not included in the package leaflet?

      (1)  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).


title: Case T-256/15: Action brought on 22 May 2015 — Telefónica v Commission

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/37

         Action brought on 22 May 2015 — Telefónica v Commission
   (Case T-256/15)
   (2015/C 245/44)
   Language of the case: Spanish

      Parties

      Applicant: Telefónica, S.A. (Madrid, Spain) (represented by: J. Ruiz Calzado and J. Domínguez Pérez, lawyers)

      Defendant: European Commission

      Forms of order sought

               —

               annul Article 1 of the contested decision;

               —

               annul Article 4(1) of the contested decision insofar as it orders the Kingdom of Spain to put an end to the aid scheme referred to in Article 1;

               —

               annul Article 4(2),(3),(4) and (5) of the contested decision, insofar as it orders the recovery of the State aid established by the Commission;

               —

               in the alternative, limit the recovery obligation laid down by Article 4(2) of the contested decision under the same conditions as those established in the First and Second Decisions, and

               —

               order the Commission to bear the total costs of the proceedings.

      Pleas in law and main arguments

   The contested decision in these proceedings is the same as that in Cases T-12/15, Banco de Santander and Santusa v Commission and T-252/15 Ferrovial SA and others v Commission.
   The pleas and main arguments relied on are similar to those already raised in those cases.
   It is claimed in particular that the Commission committed errors of law and assessment in examining the interpretation of the Spanish tax administration (DGT) and concluding that it amounts to a new measure likely to constitute new state aid, and in claiming that the first two decisions did not cover the possible application of the measure at issue to the acquisition of indirect shareholdings.


title: Case C-76/14: Judgment of the Court (Grand Chamber) of 14 April 2015 (request for a preliminary ruling from the Curtea de Apel Braşov (Romania)) — Mihai Manea v Instituția Prefectului județul Brașov — Serviciul Public Comunitar Regim de Permise de Conducere și Înmatriculare a Vehiculelor (Reference for a preliminary ruling — Internal taxation — Article 110 TFEU — Tax levied by a Member State on motor vehicles at the time of their first registration or of the first transfer of the right of ownership — Neutrality as between second-hand motor vehicles imported from other Member States and similar motor vehicles available on the domestic market)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/12

         Judgment of the Court (Grand Chamber) of 14 April 2015 (request for a preliminary ruling from the Curtea de Apel Braşov (Romania)) — Mihai Manea v Instituția Prefectului județul Brașov — Serviciul Public Comunitar Regim de Permise de Conducere și Înmatriculare a Vehiculelor
   (Case C-76/14) (1)

   ((Reference for a preliminary ruling - Internal taxation - Article 110 TFEU - Tax levied by a Member State on motor vehicles at the time of their first registration or of the first transfer of the right of ownership - Neutrality as between second-hand motor vehicles imported from other Member States and similar motor vehicles available on the domestic market))
   (2015/C 198/15)
   Language of the case: Romanian

      Referring court

   Curtea de Apel Braşov

      Parties to the main proceedings

      Applicant: Mihai Manea

      Defendant: Instituția Prefectului județul Brașov — Serviciul Public Comunitar Regim de Permise de Conducere și Înmatriculare a Vehiculelor

      Operative part of the judgment

   Article 110 TFEU must be interpreted as:

               —

               not precluding a Member State from introducing a tax on motor vehicles which is levied on imported second-hand vehicles at the time of their first registration in that Member State and on vehicles already registered in that Member State at the time of the first transfer, within that Member State, of the ownership of those vehicles;

               —

               precluding that Member State from exempting from that tax vehicles already registered and in respect of which a tax previously in force but found to be incompatible with EU law has been paid.

      (1)  OJ C 151, 19.5.2014.


title: Case T-404/08: Judgment of the General Court of 18 June 2013 — Fluorsid and Minmet v Commission (Competition — Agreements, decisions and concerted practices — World market in aluminium fluoride — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Action for annulment — Period allowed for commencing proceedings — Out of time — Inadmissibility — Price-fixing and market-sharing — Evidence of the infringement — Rights of defence — Definition of the relevant market — Fines — Gravity of the infringement — 2006 Guidelines on fines)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/60

         Judgment of the General Court of 18 June 2013 — Fluorsid and Minmet v Commission
   (Case T-404/08) (1)

   (Competition - Agreements, decisions and concerted practices - World market in aluminium fluoride - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Action for annulment - Period allowed for commencing proceedings - Out of time - Inadmissibility - Price-fixing and market-sharing - Evidence of the infringement - Rights of defence - Definition of the relevant market - Fines - Gravity of the infringement - 2006 Guidelines on fines)
   2013/C 225/134
   Language of the case: Italian

      Parties

      Applicants: Fluorsid SpA (Assemini, Italy); and Minmet financing Co. (Lausanne, Switzerland) (represented by: L. Vasques and F. Perego, lawyers)

      Defendant: European Commission (represented by: V. Di Bucci, C. Cattabriga and K. Mojzesowicz, Agents)

      Re:

   Application for annulment of Commission Decision C(2008) 3043 of 25 June 2008 relating to a proceeding under Article 81[EC] and Article 53 of the EEA Agreement (COMP/39.180 — Aluminium fluoride), concerning a worldwide price-fixing and market-sharing cartel on the world aluminium fluoride market and, in the alternative, reduction of the fine imposed on the applicants

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Fluorsid SpA and Minmet financing Co. to bear their own costs and to pay those incurred by the European Commission.

      (1)  OJ C 301, 22.11.2008.


title: Case C-339/05: Reference for a preliminary ruling from the Landesgericht Innsbruck by order of that court of 22 June 2005 in Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol

text:
               12.11.2005

               EN

               Official Journal of the European Union

               C 281/9

         Reference for a preliminary ruling from the Landesgericht Innsbruck by order of that court of 22 June 2005 in Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol
   (Case C-339/05)
   (2005/C 281/17)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht Innsbruck (Austria) of 22 June 2005, received at the Court Registry on 19 September 2005, for a preliminary ruling in the proceedings between Zentralbetriebsrat der Landeskrankenhäuser Tirols and Land Tirol on the following question:
   Must a Member State or one of a Member State's regional or local authorities take account, when calculating the remuneration of contractual public servants, of periods of employment in certain institutions in Switzerland, which are comparable to institutions listed in Paragraph 41(2) of the Tiroler Landesvertragsbedienstetengesetz (Law of the Province of Tyrol on Contractual Public Servants) (or, in the alternative, of Paragraph 26(2) of the Vertragsbedienstetengesetz 1948 (Federal Law on Contractual Public Servants of 1948)) without temporal limitation, or is the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (OJ 2002 L 114), in particular Article 9(1) of Annex I thereto, rather to be interpreted as meaning that it is permissible to take account only of periods of employment by contractual public servants in Switzerland after the entry into force of that agreement on 1 June 2002?


title: Case T-337/12: Judgment of the General Court of 21 November 2013 — El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers Ltd (Corkscrew) (Community design — Invalidity proceedings — Registered Community design representing a corkscrew — Earlier national design — Ground for invalidity — Lack of individual character — Overall impression not different — Informed user — Degree of freedom of the designer — Articles 4, 6 and 25(1)(b) of Regulation (EC) No 6/2002)

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/22

         Judgment of the General Court of 21 November 2013 — El Hogar Perfecto del Siglo XXI v OHIM — Wenf International Advisers Ltd (Corkscrew)
   (Case T-337/12) (1)

   (Community design - Invalidity proceedings - Registered Community design representing a corkscrew - Earlier national design - Ground for invalidity - Lack of individual character - Overall impression not different - Informed user - Degree of freedom of the designer - Articles 4, 6 and 25(1)(b) of Regulation (EC) No 6/2002)
   2014/C 9/36
   Language of the case: Spanish

      Parties

      Applicant: El Hogar Perfecto del Siglo XXI, SL (Madrid (Spain)) (represented by: C. Ruiz Gallegos and E. Veiga Conde, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Wenf International Advisers Ltd (Tortola, British Virgin Islands) (represented by J.L. Rivas Zurdo, E. Seijo Veiguela and I. Munilla Muñoz, lawyers)

      Re:

   ACTION brought against the decision of the Third Board of Appeal of OHIM of 1 June 2012 (Case R 89/2011-3) in relation to invalidity proceedings between Wenf International Advisers Ltd and El Hogar Perfecto del Siglo XXI, SL.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders El Hogar Perfecto del Siglo XXI, SL to pay the costs.

      (1)  OJ C 287, 22.9.2012.