title: Action brought on 29 April 1997 by G. M. van den Berg against the European Community (Case T-143/97)

text:
28 . 6 . 97            EN                Official Journal of the European Communities                                 No C 199/37
Pleas in law and main arguments adduced in support:                        rights acquired by the applicant. Finally, the principle
                                                                           of proportionality was breached.
The applicant submitted to DAFSE ( Departamento para                (') OJ No C 31 , 3 . 2 . 1996, p . 18 .
Asuntos do Fundo Social Europeu — the Portuguese                    (2 ) OJ No L 289, 22 . 10 . 1983 , p. 1 .
European Social Fund agency) on 31 July 1987 its                    ( 3 ) OJ No L 289, 22 . 10 . 1983 , p. 38 .
application for financing to be granted by the European
Social Fund ( ESF ) in respect of a vocational training
programme to run from 2 January 1988 to 31 December
1988 inclusive . The training programme was approved as
a whole by a Commission decision notified to the
applicant by DAFSE on 25 May 1988 . Thus, on 12 August
1988 the applicant received Esc 31 095 749, which was an            Action brought on 29 April 1997 by G. M. van den Berg
advance of 50% of ESF's share, and Esc 25 441 977,                                   against the European Community
which was the Portuguese State's share. The applicant put                                     ( Case T-143/97)
in motion and pursued to its conclusion the
abovementioned training project and finished it within the                                      ( 97/C 199/86 )
agreed period. Subsequently, the applicant submitted the
claim for final payment. On 17 December 1993 the
applicant was notified by letter by DAFSE of the                                       (Language of the case: Dutch)
Commission's decision approving the final payment claim
but which found certain expenditure submitted by the                An action against the European Community was brought
applicant to be ineligible, reducing the ESF's contribution.         before the Court of First Instance of the European
The applicant brought the appropriate action for                     Communities on 29 April 1997 by G. M. van den Berg,
annulment against that decision of the Commission,                  residing at Dalfsen (Netherlands ), represented by E. H.
registered under Case No T-85/94 in the Court of First              Pijnacker Hordijk, of the Amsterdam Bar, with an address
Instance . That action was upheld and the decision at issue          for service in Luxembourg at the Chambers of L. Frieden,
annulled by judgment of 12 January 1995 ( ] ). Instead of            62 Avenue Guillaume .         .
implementing that judgment, the Commission took a
decision identical to that which was annulled except that,
on this occasion, it gave reasons for that decision and              The applicant claims that the Court should:
notified the applicant in order to allow it to submit
comments beforehand .
                                                                     — declare that the Community is liable to make good the
                                                                           damage which the applicant has suffered and may
The applicant maintains that the contested measure is                      suffer in the future as a result of the fact that, since
unlawful and should be annulled on the following                           the termination on 23 February 1985 of the non
grounds :                                                                   marketing undertaking given by the applicant pursuant
                                                                           to Council Regulation ( EEC ) No 1078/77 of 17 May
                                                                            1977, he has been refused a representative reference
— Breach of the principle of legitimate                                     quantity on the sole ground that he no longer
     expectation and legal certainty :                                      operates, in whole or in part, the holding on which he
                                                                            produced milk prior to giving the said non-marketing
                                                                            undertaking,
     Although the Commission's decision is not bound by a
     definite time-limit, it should nevertheless observe a
     reasonable period for its implementation . If the               — order the Community to pay the applicant, in relation
     Commission had been so minded, it could have taken                     to the damage suffered by him, the sum of Fl 606 315 ,
     the measure which it now sought to implement in                        together with interest thereon at the rate of 8 % per
     early 1995 , after the sentence delivered by the Court                 annum from the date when the application was lodged
     on 12 January 1995 . By taking the contested decision                  until the date of payment in full,
     after a long period elapsed, the Commission breached
     the principle of legitimate expectation and legal               — order the Community to pay the costs .
     certainty,
                                                                      Pleas in law and main arguments adduced in support:
 — Unlawfulness :
                                                                      In 1986, following the expiry of his SLOM undertaking,
      The contested decision infringed Council Regulation             the applicant voluntarily purchased another dairy holding
      ( EEC ) No 2950/83 ( 2) and Council Decision 83/516/            with the intention of resuming milk production thereon.
      EEC ( 3 ) since the applicant complied rigorously with          According to the final decision of the Netherlands
      the laws, regulations, directives, criteria, obligations        authorities, however, the effect of Article 3a ( 1 ) of
      and conditions required when the initial ESF decision           Regulation ( EEC ) No 1546/88 (') is that he is not entitled
      approving the training project was taken by the                 to a milk quota. He nevertheless considers, on the basis of
      Commission . The contested decision also breached the           the case-law of the Court of Justice, that the Community
 ---pagebreak--- No C 199/38                EN                    Official Journal of the European Communities                                   28 . 6 . 97
is liable for the loss of income which he has consequently                  residing at Beek ( Netherlands ), represented by E. H.
suffered and may suffer in the future, since, had he been                   Pijnacker Hordijk, of the Amsterdam Bar, with an address
in possession of a quota at the time of relocating his                      for service in Luxembourg at the Chambers of L. Frieden,
business activities, he could have transferred it to his new                62 Avenue Guillaume .
holding.
                                                                            The applicant claims that the Court should :
(') Commission Regulation ( EEC ) No 1546/88 of 3 June 1988
    laying down detailed rules for the application of the additional        — order the Community to pay to the applicant the sum
    levy referred to in Article 5c of Regulation ( EEC ) No 804/68
    ( OJ No L 139, 4 . 6 . 1988 , p. 12 ), as amended by Commission              of Fl 120 559 ( namely, the amount resulting from the
    Regulation ( EEC ) No 1033/89 of 20 April 1989 ( OJ No L 110,                application of Regulation ( EEC ) No 2187/93 ),
    21 . 4 . 1989 , p. 27 ).                                                     together with an amount corresponding to the damage
                                                                                sustained by the applicant in respect of tax
                                                                                disadvantages, monetary depreciation and loss of
                                                                                income, and interest on the principal sum at the rate
                                                                                of 8 % per annum from 19 May 1992 until the date of
                                                                                payment in full,
Action brought on 29 April 1997 by C. de Keijzer against
                       the European Community                               — order the Community to pay the costs .
                             ( Case T-144/97 )
                                ( 97/C 199/87 )
                                                                            Pleas in law and main arguments adduced in support:
                    (Language of the case: Dutch)                           The pleas in law and main arguments are the same as in
                                                                            Case T-532/ 93 .
An action against the European Community was brought
 before the Court of First Instance of the European
 Communities on 29 April 1997 by C. de Keijzer, residing
 at Noordgouwe ( Netherlands ), represented by E. H.
 Pijnacker Hordijk, of the Amsterdam Bar, with an address
 for service in Luxembourg at the Chambers of L. Frieden,                   Action brought on 30 April 1997 by J. M. M. Bakkers
 62 Avenue Guillaume .                                                      against the Council of the European Union and the
                                                                                Commission of the European Communities
 The applicant claims that the Court should:                                                        ( Case T-146/97 )
 — order the Community to pay to the applicant the sum                                                ( 97/C 199/ 89 )
      of Fl 118 995 ( namely, the amount resulting from the
      application of Regulation ( EEC ) No 2187/93 ),                                         (Language of the case: Dutch)
      together with an amount corresponding to the damage
      sustained by the applicant in respect of tax                           An action against the European Community was brought
      disadvantages, monetary depreciation and loss of                       before the Court of First Instance of the European
      income, and interest on the principal sum at the rate                  Communities on 30 April 1997 by J. M. M. Bakkers,
      of 8 % per annum from 19 May 1992 until the date of                    residing at Diessen (Netherlands ), represented by A. A. M.
      payment in full ,                                                      Beek, of the Tilburg Bar.
 — order the Community to pay the costs .                                    The applicant claims that the Court should:
 Pleas in law and main arguments adduced in support:                         — declare that the European Economic Community is
                                                                                liable in damages to the applicant,
 The pleas in law and main arguments are the same as in
 Case T-532/93 .
                                                                             — declare that the European Economic Community is
                                                                                liable to the applicant for the loss of income suffered
                                                                                by him as a result of the application of Council
                                                                                Regulation ( EEC ) No 857/84 of 31 March 1984 and
                                                                                of Council Regulation ( EEC ) No 764/89 of 20 March
                                                                                1989 amending Regulation ( EEC ) No 857/84,
 Action brought on 29 April 1997 by J. P. W. Vrencken                             inasmuch as those regulations contain(ed ) no provision
                 against the European Community                                   enabling a representative reference quantity to be
                              ( Case T-145 /97 )                                  granted to SLOM transferees who, pursuant to an
                                  97/C 199/ 88 )                                  undertaking given in accordance with Council
                                                                                Regulation ( EEC ) No 1078/77, did not supply any
                     (Language of the case: Dutch)                                milk during the reference year selected by the Member
                                                                                State concerned,
 An action against the European Community was brought
  before the Court of First Instance of the European                         — declare that the applicant has suffered a loss of income
  Communities on 29 April 1997 by J. P. W. Vrencken,                              amounting to the difference between, on the one hand,


title: Case C-673/15 P: Appeal brought on 15 December 2015 by The Tea Board against the judgment of the General Court (Eighth Chamber) delivered on 2 October 2015 in Case T-624/13: The Tea Board v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/11

         Appeal brought on 15 December 2015 by The Tea Board against the judgment of the General Court (Eighth Chamber) delivered on 2 October 2015 in Case T-624/13: The Tea Board v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-673/15 P)
   (2016/C 106/15)
   Language of the case: English

      Parties

      Appellant: The Tea Board (represented by: M.C. Maier, A. Nordemann, Rechtsanwälte)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Delta Lingerie

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the contested judgment of the General Court of 2 October 2015 in Case T-624/13 as far as the General Court dismissed the action with respect to the following services covered by the mark applied for in Classes 35 and 38:

                  Business consultancy with regard to the creation and operation of retail outlets and central purchasing agencies for retailing and advertising purposes; Sales promotion (for others), advertising, business management, business administration, on-line advertising on a computer network, distribution of advertising material (leaflets, flyers, free newspapers, samples), arranging newspaper subscriptions for others; Business information or enquiries; organization of events and exhibitions for commercial or advertising purposes, advertising management, rental of advertising space, radio and television advertising, advertising sponsorship. (Class 35)

                  Telecommunications, computer-aided transmission of messages and images, interactive television broadcasting services relating to the presentation of products, communications by computer terminals, communications (transmissions) on the open and closed world wide web. (Class 38)

               —

               if necessary, remit the case back to the General Court,

               —

               order the Defendant to bear the costs of the proceedings.

      Pleas in law and main arguments

               1.

               The Action seeks the partial annulment of the judgment of the General Court in Case T-624/13 of 2 October 2015 in so far as the General Court dismissed the action with respect to services covered by the contested mark in Classes 35 and 38.

               2.

               The Action is based on two pleas in law: infringement of Article 8(1)(b) CTMR (1) and infringement of Article 8(5) CTMR.

               3.

               The Applicant is of the opinion that the essential function of a Community collective mark according to Article 66(2) CTMR, consisting of an indication which serves to designate the geographical origin of the goods covered, is not to serve as an indication of commercial origin but only to guarantee the collective origin of the goods or services offered and sold under the mark, i.e. that the products come from an undertaking which is located in the geographical region adopted as a Community collective mark and which is entitled to use the Community collective mark.

               4.

               Consequently, in the Applicant's view it must be concluded that, in the framework of Article 8(1)(b) CTMR, the geographical origin must be taken into account as a relevant factor- either when assessing the similarity of the goods and/or services at issue and/or when carrying out a global assessment of likelihood of confusion.

               5.

               Therefore, when comparing goods and/or services of an earlier Community collective mark according to Article 66(2) CTMR, consisting of geographical indication, with those of a Community individual mark, it is not, in the Applicant's opinion, decisive whether the goods and services in question are similar in regard to their nature, purpose, end users and/or distribution channels. Rather, it must be questioned whether the goods and/or services in question may have the same geographical origin.

               6.

               The Applicant's interpretation of Article 66(2) CTMR results from

                           1)

                           the inner logic of Regulation No. 207/2009, in particular the fact that

                                       i.

                                       Article 66(2) CTMR constitutes and exception within Regulation No. 207/2009 as, according to Article 7(1)(c) CTMR, trademarks which consist exclusively of signs or indications which may serve, in trade, to designate the geographical origin of the goods or of rendering of the service shall not be registered,

                                       ii.

                                       according to Article 67(2) CTMR, the regulations governing use of a Community collective trade mark consisting of geographical indication must authorise any person whose goods or services originate in the geographical area concerned to become a member of the association which is the proprietor of the mark, and consequently, a Community collective mark consisting of geographical indication is never capable of distinguishing goods or services of the members of the association which is the proprietor of the mark from those of other undertakings.

                           2)

                           an interpretation of that provision in the light of Regulation No. 1151/2012 (2) and in the light of the TRIPs-Agreement, according to which geographical indications should enjoy a high level of protection, and according to which presentations of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin, in a manner which misleads the public as to the geographical origin of the good, should be prohibited.

               7.

               The Applicant is of the opinion that the qualities established by the General Court in connection with DARJEELING can also be transferred to services such as business consultancy or telecommunication services, and are able to strengthen the power of attraction of the contested mark in that regard. Further, the Applicant points out that the General Court did not provide any substantiated grounds in its judgment, as to why the qualities associated with the mark DARJEELING could not be transferred to services in Class 35 and 38, which, in itself is an error in law.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

      OJ L 78, p. 1

      (2)  Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs

      OJ L 343, p. 1


title: ORDER OF THE COURT OF FIRST INSTANCE of 15 September 1998 in Case T-79/94: Odetti Nikou Petridi Anonimos Kapnemborikis Etairia AE v. Commission of the European Communities (Action for annulment - Regulation (EC) No 3477/93 - Inadmissibility)

text:
C 340/20              EN                 Official Journal of the European Communities                                  7.11.98
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           in the tobacco sector (OJ L 317 of 18.12.1993, p. 30) Ð
                    of 16 September 1998                            the Court of First Instance (Second Chamber), composed
                                                                    of: A. Kalogeropoulos, President, and C. W. Bellamy and
in Case T-234/97: Lars Bo Rasmussen v. Commission of                J. Pirrung, Judges; H. Jung, Registrar, made an order on
                the European Communities (1)                        15 September 1998, the operative part of which is as
(Officials   Ð Promotion Ð Equal treatment                 Ð        follows:
            Consideration of comparative merits)
                         (98/C 340/36)                              1. the application is dismissed as inadmissible;
               (Language of the case: French)                       2. the applicant shall pay the Commission's costs. The
                                                                        intervener shall bear its own costs.
In Case T-234/97: Lars Bo Rasmussen, an official of the
Commission of the European Communities, residing at                 (1) OJ C 132 of 14.5.1994.
Dalheim (Luxembourg), represented by Carlo Revoldini,
of the Luxembourg Bar, with an address for service in
Luxembourg at the latter's Chambers, 180 Route de
Longwy, v. Commission of the European Communities
(Agents: Christine Berardis-Kayser and Alberto Dal Ferro)
Ð application, first, for annulment of the decision of the
Commission not to promote the applicant to grade A 4 in                  ORDER OF THE COURT OF FIRST INSTANCE
the 1996 promotions procedure and, second, for                                          of 15 September 1998
compensation for the resulting damage Ð the Court of
First Instance (Fourth Chamber), composed of: P. Lindh,             in Case T-100/94: Kapniki A. Michalidis AE and Others
President, and K. Lenaerts and J. D. Cooke, Judges; J.                    v. Commission of the European Communities (1)
Palacio GonzaÂlez, Administrator, for the Registrar, has            (Action for annulment Ð Regulation (EC) No 3477/93 Ð
given a judgment on 16 September 1998, in which it:                                         Inadmissibility)
                                                                                (98/C 340/38)
1. dismisses the action;
2. orders the parties to bear their own costs.                                      (Language of the case: Greek)
(1) OJ C 7 of 10.1.1998.                                            In Case T-100/94: Kapniki A. Michalidis AE, P. Moskof
                                                                    AE Kapna eis Filla, M. Bogiatzoglu Eksagogikos Oikos
                                                                    Kapnon AE, Diethnis Kapniki Ð Georgios Allamanis AE
                                                                    and Ekselka Emborikai kai Viomikhanikai Epikhirisis AE,
                                                                    established at Thessaloniki (Greece), represented by Elena
                                                                    Metaxaki, of the Athens Bar, with an address for service
                                                                    in Luxembourg at the Chambers of Aikaterini Thill-
     ORDER OF THE COURT OF FIRST INSTANCE
                                                                    Kamitakis, 4 rue de l'Avenir, supported by Hellenic
                    of 15 September 1998                            Republic (Agents: Panagiotis Mylonopoulos, Dimitra
in Case T-79/94: Odetti Nikou Petridi Anonimos                      Tsangaraki, Meletis Tsotsanis and Eleni Lyratzaki), v.
Kapnemborikis Etairia AE v. Commission of the European              Commission of the European Communities (Agent: Maria
                       Communities (1)                              Condou-Durande) Ð application for partial annulment of
                                                                    Commission Regulation (EC) No 3477/93 of 17 December
(Action for annulment Ð Regulation (EC) No 3477/93 Ð                1993 concerning the agricultural conversion rates to be
                        Inadmissibility)                            applied in the tobacco sector (OJ L 317 of 18.12.1993,
                         (98/C 340/37)                              p. 30) Ð the Court of First Instance (Second Chamber),
                                                                    composed of: A. Kalogeropoulos, President, and C. W.
                                                                    Bellamy and J. Pirrung, Judges; H. Jung, Registrar, made
                (Language of the case: Greek)                       an order on 15 September 1998, the operative part of
                                                                    which is as follows:
In Case T-79/94: Odetti Nikou Petridi Anonimos
Kapnemborikis Etairia AE, established at Kavala (Greece),
represented by Konstantinos Adamantopoulos, of the                  1. the application is dismissed as inadmissible;
Athens Bar, with an address for service in Luxembourg at
the Chambers of ArseÁne Kronshagen, 12 Boulevard de la              2. the applicants shall jointly and severally pay the
Foire, supported by Hellenic Republic (Agents: Panagiotis               Commission's costs. The intervener shall bear its own
Mylonopoulos, Dimitra Tsangaraki, Meletis Tsotsanis                     costs.
and Eleni Lyratzaki), v. Commission of the European
Communities (Agent: Maria Condou-Durande) Ð
application for partial annulment of Commission                     (1) OJ C 132 of 14.5.1994.
Regulation (EC) No 3477/93 of 17 December 1993
concerning the agricultural conversion rates to be applied


title: Case C-523/04: Judgment of the Court (Grand Chamber) of 24 April 2007 — Commission of the European Communities v Kingdom of the Netherlands (Failure by a Member State to fulfil its obligations — Conclusion by a Member State of a bilateral air transport agreement with the United States of America — Right of establishment — Secondary law governing the internal market in air transport — External competence of the Community)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/6

         Judgment of the Court (Grand Chamber) of 24 April 2007 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-523/04) (1)

   (Failure by a Member State to fulfil its obligations - Conclusion by a Member State of a bilateral air transport agreement with the United States of America - Right of establishment - Secondary law governing the internal market in air transport - External competence of the Community)
   (2007/C 96/09)
   Language of the case: Dutch
   Parties

      Applicant: Commission of the European Communities (represented by: M. Huttunen and W. Wils, Agents)

      Defendant: Kingdom of the Netherlands (represented by: H.G. Sevenster and M. de Grave, Agents)

      Intervener in support of the defendant: French Republic (represented by: G. de Bergues and A. Hare, Agents)
   Re:
   Failure of a Member State to fulfil its obligations — Infringement of Articles 5 and 52 of the EC Treaty (now Articles 10 and 43 EC) — Infringement of Council Regulations (EEC) Nos 2409/92 of 23 July 1992 on fares and rates for air services (OJ 1992 L 240, p. 15) and 2299/89 of 24 July 1989 on a code of conduct for computerised reservation systems (OJ 1989 L 220, p. 1), as amended by Council Regulation (EEC) No 3089/93 of 29 October 1993 (OJ 1993 L 278, p. 1) — ‘Open sky ’bilateral agreement with the US — Review — Restrictions on freedom to provide services
   Operative part of the judgment
   The Court:

               1.

               By contracting or maintaining in force, despite the renegotiation of the Air Transport Agreement concluded between the Kingdom of the Netherlands and the United States of America on 3 April 1957, international commitments towards the United States of America:

                           —

                           concerning air fares and rates charged by carriers designated by the United States of America on intra-Community routes,

                           —

                           concerning computerised reservations systems used or offered for use on Netherlands territory, and

                           —

                           recognising the United States of America as having the right to withdraw, suspend or limit traffic rights in cases where air carriers designated by the Kingdom of the Netherlands are not owned by the latter or by Netherlands nationals,

                     the Kingdom of the Netherlands has failed to fulfil its obligations under Article 5 of the EC Treaty (now Article 10 EC), Article 52 of the EC Treaty (now, after amendment, Article 43 EC), and under Council Regulations (EEC) Nos 2409/92 of 23 July 1992 on fares and rates for air services and 2299/89 of 24 July 1989 on a code of conduct for computerised reservation systems.

               2.

               The Kingdom of the Netherlands is ordered to pay the costs.

               3.

               The French Republic is ordered to bear its own costs.

      (1)  OJ C 57, 5.3.2005.


title: Case T-381/08: Action brought on 15 September 2008 — DAI v Commission

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/36

         Action brought on 15 September 2008 — DAI v Commission
   (Case T-381/08)
   (2008/C 313/65)
   Language of the case: Portuguese
   Parties

      Applicant: DAI — Sociedade de Desenvolvimento Agro-Industrial, SA (Coruche, Portugal) (represented by: J. da Cruz Vilaça, L. Romão and A. Mestre, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               A declaration that the action is admissible;

               —

               a decision allowing the action and annulment in part of Commission Decision 2008/445/EC of 11 June 2008 fixing the amounts per Member State of retroactive restructuring aid for growers and undertakings having restructured in the 2006/07 and 2007/08 marketing years in the framework of the temporary scheme for the restructuring of the sugar industry of the Community (notified under document number C(2008) 2557) (1), in so far as it refers to the amount of restructuring aid allocated to Portugal to be paid to growers and undertakings having restructured in the 2006/07 and 2007/08 marketing years;

               —

               an order that the Commission should pay the costs.

         Pleas in law and main arguments
   Infringement of Article 1(1)(c) of Regulation (EC) No 1261/2007 (2) and of Article 16a of Regulation (EC) No 1264/2007 (3).
   Breach of the principles of equality, legal certainty and of the non-retroactive effect of laws.

      (1)  OJ 2008 L 156, p. 20.

      (2)  Council Regulation (EC) No 1261/2007 of 9 October 2007 amending Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community.

      (3)  Commission Regulation (EC) No 1264/2007 of 26 October 2007 amending Regulation (EC) No 968/2006 laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community.


title: Case C-265/14 P: Appeal brought on 2 June 2014 by Cemex S.A.B. de C.V. and Others against the judgment of the General Court (Seventh Chamber) delivered on 14 March 2014 in Case T-292/11 Cemex and Others v Commission

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/19

         Appeal brought on 2 June 2014 by Cemex S.A.B. de C.V. and Others against the judgment of the General Court (Seventh Chamber) delivered on 14 March 2014 in Case T-292/11 Cemex and Others v Commission
   (Case C-265/14 P)
   2014/C 253/26
   Language of the case: Spanish

      Parties

      Appellants: Cemex S.A.B. de C.V., New Sunward Holding BV, Cemex España, S.A., Cemex Deutschland AG, Cemex UK, Cemex Czech Operations s.r.o., Cemex France Gestion and Cemex Austria AG (represented by: J. Folguera Crespo, P. Vidal Martínez, H. González Durántez and B. Martínez Corral, abogados)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside the judgment of the General Court of 14 March 2014.

               —

               Rule on the merits of the action for annulment brought before the General Court and annul the Decision.

               —

               Order the Commission to pay the costs incurred by Cemex and its subsidiaries both in the proceedings at first instance before the General Court and in the present proceedings before the Court of Justice of the European Union.

      Pleas in law and main arguments

   1 —   Erroneous assessment of the grounds of the Decision

   The appellants claim that the General Court erred in its assessment of the grounds of the contested decision requesting information, which was formulated in general terms. The General Court did not take into consideration in its analysis the circumstances of the case in point or the content of the contested decision, nor did it make an assessment of proportionality in the light of the possibilities actually open to the Commission, the period in which the decision at issue was to be taken and the technical circumstances.
   2 —   Erroneous assessment of the necessity of the information

   The General Court also erred in its ruling as to whether the information sought in the contested decision was necessary, given that some of that information was already in the Commission’s possession or had no bearing on the subject-matter of the investigation.
   3 —   Error in the grounds of the judgment under appeal and in the assessment of an infringement of Article 18(3) of Regulation No 1/2003
       (1)
      in relation to the nature of the information sought

   The appellants also claim that there is an error in the grounds of the judgment under appeal, for the General Court has not given a ruling on some of the claims relating to the nature of the information sought, the reply to which required value judgments on hypothetical situations. Moreover, the General Court erred in finding that there was no infringement of Article 18(3) of Regulation No 1/2003, given that the contested decision required answers to questions that did not deal with facts and bore no relation to factual matters.
   4 —   Erroneous assessment of the criterion of proportionality

   The appellants claim that the General Court erred in dismissing their action for annulment in part of the contested decision requesting information, inasmuch as that court considered that by adopting the decision and fixing the time allowed for responding, the Commission did not act inappropriately or disproportionately. The appellants also claim that the General Court erred in finding that the Commission’s request for information was justified, despite the fact the appellants’ response involved a particularly heavy workload.
   5 —   Erroneous assessment of the existence of an infringement of Article 3 of Regulation No 1
       (2)

   The General Court erred in finding that that, by giving notice of the decision at issue only in Spanish, the Commission had not infringed Article 3(1) of Regulation No 1.
   6 —   Erroneous assessment of an infringement of the principle of sound administration

   Finally, the appellants claim that the General Court erred in not finding that various courses of conduct of the Commission, which drew criticism from the General Court, did not, however, constitute an infringement of the principle of sound administration.

      (1)  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 TFUE]

      OJ 2003, L 1, p. 1

      (2)  Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ 1958, 17, p. 385; EE 01/01, p. 8)


title: Case T-190/06: Action brought on 19 July 2006 — Total and Elf Aquitaine v Commission

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/40

         Action brought on 19 July 2006 — Total and Elf Aquitaine v Commission
   (Case T-190/06)
   (2006/C 212/70)
   Language of the case: French
   Parties

      Applicants: Total SA and Elf Aquitaine (Courbevoie, France) (represented by: E. Morgan de Rivery, lawyer, and A. Noël-Baron, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Articles 1(o) and (p), 2(i), 3 and 4 of Commission Decision C(2006) 1766 final of 3 May 2006;

               —

               in the alternative, amend Article 2(i) of Commission Decision C(2006) 1766 final of 3 May 2006, in so far as it imposes a fine of EUR 78.663 million on Arkema SA, of which Total SA is held jointly and severally liable for EUR 42 million, and ELF Aquitaine SA for EUR 65.1 million, and reduce the amount of the fine in question to an appropriate level;

               —

               in any event, order the Commission to pay all the costs.

         Pleas in law and main arguments
   By the present action, the applicants seek the partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and perborate, by which the Commission found that the undertakings to which the decision was addressed, which included the applicants, infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a complex of agreements and concerted practices consisting of the exchange of information between competitors and agreements on prices and production capacities and also of supervision of the implementation of those agreements in the hydrogen peroxide and sodium perborate sector. In the alternative, they seek the reduction of the amount of the fine imposed on their subsidiary for which they are held jointly and severally liable.
   The main claim is based on ten pleas in law.
   Firstly, the applicants submit that the contested decision breaches their rights to a defence and also the presumption of innocence.
   Secondly, they contend that the contested decision, in so far as it finds them liable for the disputed breach committed by their subsidiary, breaches the obligation to state reasons, firstly because the reasoning of the Commission, which the applicants consider to be partially contradictory, is insufficiently developed, having regard to the novelty of the position adopted in regard to them, and, secondly, because the Commission, by refusing to respond, ignored the specific factors put forward by the applicants to justify their lack of involvement in the management of the subsidiary.
   The applicants also consider that the contested decision breaches the unitary nature of the concept of an undertaking within the meaning of Article 81 EC and Article 23(2) of Regulation 1/2003 (1), and also the rules which govern whether breaches committed by a subsidiary can be imputed to its parent company. As regards that plea, the applicants claim that the Commission has disregarded the restrictive guidelines of the Community Courts regarding its power to hold a parent company liable for breaches committed by its subsidiary. It also adopted an interpretation of the case-law relating to imputability which was incorrect and went against its decision-making practice. According to the applicants, the Commission also breached the principle of independence of legal persons.
   The applicants consider in addition that the Commission made manifest errors of assessment by incorrectly applying to Total the presumption of imputability and by considering, when assessing the repetition of the breaches, that Total's subsidiary fined by the contested decision had always belonged to it.
   Furthermore, the applicants contend that the Commission infringed several essential principles that are recognised by the Member States and which form part of Community law, such as the principle of non-discrimination, the principle of liability for one's own acts, the principle of the individual nature of penalties and the principle of legality.
   The applicants also submit that the contested decision compromises the principles of good administration and legal certainty.
   The applicants finally consider that the Commission infringes the rules governing the calculation of fines such as the principle of equal treatment, in so far as it does not apply a reduction of 25 % to the starting amount of the fine imposed on the applicants whereas it did apply it to another undertaking to which the contested decision was addressed. According to the applicants, the contested decision also exceeds the limits placed on the Commission's power regarding the taking into account of the deterrent effect, in breach of the principle of the presumption of innocence and the principle of legal certainty.
   Lastly, the applicants claim that the contested decision constitutes a misuse of powers in that it holds them liable for the breach committed by their subsidiary and penalises them jointly and severally with it.
   In the alternative, the applicants consider that the fine imposed upon their subsidiary, and for which they are held jointly and severally liable, should be reduced to a fair level. They seek to obtain a reduction of 25 % in the starting amount of the fine imposed upon them and also to rely on mitigating circumstances in that they were ordered to pay large fines almost simultaneously in two similar cases.

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


title: Case F-84/11: Action brought on 29 August 2011 — ZZ and Others v Court of Justice

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/42

         Action brought on 29 August 2011 — ZZ and Others v Court of Justice
   (Case F-84/11)
   2011/C 340/87
   Language of the case: French

      Parties

      Applicants: ZZ and Others (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Court of Justice of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision of the Court of Justice rejecting the applicants’ request for payment of the allowance for continuous work or shiftwork provided for in Article 1 of Council Regulation (ECSC, EEC, Euratom) No 300/76 of 9 February 1976 determining the categories of officials entitled to allowances for shiftwork, and the rates and conditions thereof (OJ 1976 L 38, p. 1) and damages

      Form of order sought

               —

               Annulment of the Appointing Authority’s decision of 17 May 2011 rejecting the applicants’ request of 17 January 2011 for, first, payment of the allowance for shiftwork provided for in Article 1 of Council Regulation (ECSC, EEC, Euratom) No 300/76 of 9 February 1976, as most recently amended by Council Regulation (EC, Euratom) of 11 December 2006, and, second, compensation for the damage caused by the Appointing Authority’s failure to reply to their first or to their second request within the statutory time-limit and its failure to indicate the available remedies in the express rejection which caused the loss of their chance to succeed in legal proceedings;

               —

               Order the Court of Justice to pay to each applicant a sum of EUR 10 700,76 as compensation for their material damage and a sum of EUR 3 000 each for non-material damage;

               —

               Order the Court of Justice to pay the costs.


title: Removal from the register of Case C-471/93 and Case C-47/94

text:
23 . 9 . 95             EN                   Official Journal of the European Communities                               No C 248/ 13
      16 of the EEC Treaty ), the prohibition of discrimination         Kingdom of Spain v. Commission of the European
      ( Article 95 of the EEC Treaty) and other provisions of           Communities .
      Community law to make the exporter bear the full costs
      under national law of regular or occasional analyses ?            (') OJ No C 103 , 11 . 4 . 1994 .
(>) OJ No L 180 , 6 . 7 . 1976 , p . 9 .
(2 ) OJ No L 199 , 7. 8 . 1979 , p . 10 .
( 3 ) OJ No L 199 , 7. 8 . 1979 , p . 1 .                                        Removal from the register of Case C-95/94 ( J )
                                                                                ( 95/C 248/29 )
                                                                        By order of 1 1 July 1995 the President of the Sixth Chamber
                                                                        of the Court of Justice of the European Communities
        Removal from the register of Case C-l 80/94 ( )                 ordered the removal from the register of Case C-95/94 :
                            ( 95/C 248 /26 )                            Commission of the European Communities v. Kingdom of
                                                                        Spain.
By order of 12 June 1995 the President of the Sixth Chamber
of the Court of Justice of the European Communities                     (') OJ No C 161 , 11 . 6 . 1994 .
ordered the removal from the register of Case C-l 80/94 :
Commission of the European Communities v. Hellenic
Republic .
                                                                                Removal from the register of Case C-471/93
 (') OJ No C 233 , 20 . 8 . 1994 .                                                              and Case C-47/94 (M
                                                                                ( 95/C 248 /30 )
                                                                        By order of 1 4 July 1995 the President of the Court of Justice
                                                                        of the European Communities ordered the removal from the
         Removal from the register of Case C-67/92 (*)                  register of Case C-471 /93 and Case C-47/94 : United
                            ( 95/C 248/27 )                             Kingdom of Great Britain and Northern Ireland v.
                                                                        Commission of the European Communities, supported by
 By order of 30 June 1995 the President of the Court of                 the Kingdom of Spain, the Italian Republic and the Hellenic
Justice of the European Communities ordered the removal                 Republic .
 from the register of Case C-67/92 ( reference for a
 preliminary ruling from the Tribunal de Grande Instance                 (') OJ No C 43 , 12 . 2 . 1994 and
 de Rennes): Societe l'Hexagone v. Societe des Auteurs,                        OJ No C 90 , 26 . 3 . 1994 .
 Compositeurs et Editeurs de Musique ( SACEM ).
 O OJ No C 86 , 7. 4 . 1992 .
                                                                                Removal from the register of Case C-154/94 ( )
                                                                                95/C 248/31
                                                                         By order of 14 July 1995 the President of the Court of Justice
         Removal from the register of Case C-53/94 ( )                   of the European Communities ordered the removal from the
                             ( 95/C 248/28 )                             register of Case C-154/94 ( reference for a preliminary
                                                                         ruling from the Sozialgericht Berlin ): Bahar Kockaya v.
  By order of 1 1 July 1 995 the President of the Fifth Chamber          Bundesanstalt fiir Arbeit.
  of the Court of Justice of the European Communities
  ordered the removal from the register of Case C-53/94 :                t 1 ) OJ No C 218 , 6 . 8 . 1994 .


title: Case T-377/10: Action brought on 6 September 2010 — Preparados Alimenticios v OHIM — Rila Feinkost-Importe (Jambo Afrika)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/39

         Action brought on 6 September 2010 — Preparados Alimenticios v OHIM — Rila Feinkost-Importe (Jambo Afrika)
   (Case T-377/10)
   ()
   2010/C 301/64
   Language in which the application was lodged: English

      Parties

      Applicant: Preparados Alimenticios, SA (Barcelona, Spain) (represented by: D. Pellisé Urquiza, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Rila Feinkost-Importe GmbH & Co. KG (Stemwede-Levern, Germany)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 June 2010 in case R 1144/2009-1;

               —

               Declare the present action admissible and justified; and

               —

               Declare that the contested Community trade mark application shall not be granted.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The word mark ‘Jambo Afrika’, for goods in classes 29, 30 and 33

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited: Spanish trade mark registrations No 2573221, No 2573219 and No 2573216 of the figurative mark ‘JUMBO’, for goods in classes 29 and 30; Community trade mark registration No 2217404 of the figurative mark ‘JUMBO CUBE’, for goods in class 29; Community trade mark registration No 2412823 of the figurative mark ‘JUMBO MARINADE’, for goods in classes 29 and 30; Community trade mark registration No 2413391 of the figurative mark ‘JUMBO NOKKOS’, for goods in classes 29 and 30; Community trade mark registrations No 2413581, No 2423275, No 2970754, No 3246139, No 3754462 and No 4088761 of the figurative mark ‘JUMBO’ for goods in classes 29 and 30

      Decision of the Opposition Division: Upheld the opposition for part of the contested goods

      Decision of the Board of Appeal: Rejected the opposition in its entirety

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal incorrectly excluded likelihood of confusion.


title: Case C-185/14: Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 14 April 2014  — EasyPay AD, Finance Engineering AD v Ministerski savet na Republika Balgaria, Natsionalen osiguritelen institut

text:
               24.6.2014

               EN

               Official Journal of the European Union

               C 194/17

         Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 14 April 2014 — EasyPay AD, Finance Engineering AD v Ministerski savet na Republika Balgaria, Natsionalen osiguritelen institut
   (Case C-185/14)
   2014/C 194/21
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad

      Parties to the main proceedings

      Applicants: EasyPay AD, Finance Engineering AD

      Defendants: Ministerski savet na Republika Balgaria, Natsionalen osiguritelen institut

      Questions referred

               1.

               Is a postal service such as the postal money transfer service by which sums of money are transferred from the sender, which in this case is the State, to the recipients — persons entitled to social security payments — to be regarded as not being covered by the scope of Directive 97/67, (1) as amended by Directives 2002/39 (2) and 2008/6, (3) such that it is subject to the provisions of Articles 106 and 107 TFEU?

               2.

               If the first question is answered in the affirmative, are Articles 106 and 107 TFEU to be interpreted as meaning that they do not permit a restriction of free competition in the provision of a postal service such as that described if that is justified by compelling considerations relating to the guarantee of a constitutional right of citizens and the social policy of the State and if at the same time the service, by its nature, may be qualified as a service of general economic interest, provided that the compensation received by the service provider is public service compensation which does not exceed the sum laid down in Article 2(1)(a) of European Commission Decision C(2011) 9380 of 20 December 2011?

      (1)  Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1997 L 15, p. 14).

      (2)  Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (OJ 2002 L 176, p. 21).

      (3)  Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, p. 3).


title: Case T-187/03: Action brought on 28 May 2003 by Isabella Scippacercola against the Commission of the European Communities

text:
23.8.2003             EN                           Official Journal of the European Union                                          C 200/25
Action brought on 28 May 2003 by Isabella Scippacercola                    hence Article 4(4) of Regulation 1049/2001 should have been
   against the Commission of the European Communities                      applied.
                         (Case T-187/03)                                   The applicant also claims in this respect that the Commission
                                                                           infringed Article 1(a) of Regulation 1049/2001 and the prin-
                                                                           ciple of the widest possible access to documents held by the
                         (2003/C 200/45)                                   Commission.
                   (Language of the case: English)                         Secondly, the applicant invokes a violation of Article 4(5) of
                                                                           Regulation 1049/2001 and Article 5(4) of Decision 2001/937
                                                                           (sic) to the extent that the Commission failed to assess the
                                                                           justification given by Greece and, in doing so, gave a de facto
An action against the Commission of the European Commu-                    power of veto to the Member State concerned.
nities was brought before the Court of First Instance of the
European Communities on 28 May 2003 by Isabella                            The applicant furthermore invokes a violation of the obligation
Scippacercola,      Brussels,     Belgium,       represented      by       to state reasons and, finally, a violation of Article 4(6) of
Dr K. Adamantopoulos and Mr D. Papakrivopoulos, lawyers,                   Regulation 1049/2001 to the extent that the Commission
with an address for service in Luxembourg.                                 have allegedly failed to examine whether partial access should
                                                                           have been granted.
The applicant claims that the Court should:
                                                                           (1) Regulation (EC) No 1049/2001 of the European Parliament and of
—     annul the Commission decision in the form of a letter                    the Council of 30 May 2001 regarding public access to European
      dated 19 March 2003 and notified to the applicant by fax                 Parliament, Council and Commission documents (OJ L 145, p. 43).
                                                                           (2) 2001/937/EC, ECSC, Euratom: Commission Decision of 5 December
      of 31 March 2003, refusing to the latter access to the
                                                                               2001 amending its rules of procedure (notified under document
      cost-benefit study relating to the construction of the                   number C(2001) 3714) (OJ L 345, p. 94).
      Spata Airport;
—     order that the costs of, and occasioned by, these proceed-
      ings be borne by the respondent.
                                                                           Action brought on 4 June 2003 by Gustav Thommes
Pleas in law and main arguments                                               against the Commission of the European Communities
                                                                                (Case T-195/03)
The applicant has requested from the Commission, amongst
others, a copy of the cost-benefit analysis concerning the
creation of the Spata Airport. According to the applicant, this                                      (2003/C 200/46)
document should have accompanied the application by Greece
for assistance from the Cohesion Fund. The request for access
to documents was refused by the Commission. With the                                          (Language of the case: German)
refusal however, the Commission transmitted part of the
application for assistance from the Cohesion Fund, which
contained a short description of the main topics of the cost-              An action against the Commission of the European Commu-
benefit analysis. The confirmatory application by the applicant            nities was brought before the Court of First Instance of the
was also rejected.                                                         European Communities on 4 June 2003 by Gustav Thommes,
                                                                           residing in Wezembeek-Oppem in Brussels (Belgium), repre-
In support of its application, the applicant submits in the first          sented by M. Thewes, lawyer, with an address for service in
place that the Commission made a manifest error in law and a               Luxembourg.
manifest error in the appreciation of the facts. According to
the applicant, the Commission erred in its assumption that the             The applicant claims that the Court should:
document for which access was requested originated from a
Member State. According to the applicant, Greece was not the               —     annul the defendant's decisions of 17 July 2002, 1 August
original creator of the document, but merely forwarded the                       2002 and 3 March 2003;
document as part of its application for assistance from the
Cohesion Fund.
                                                                           —     declare void the recovery of the second half of the
                                                                                installation allowance for the resettlement of his family;
The applicant claims that, as a consequence, the Commission
wrongly relied on and misinterpreted Article 4(5) of Regulation            —     grant the applicant the installation allowance in respect of
1049/2001 (1) regarding public access to European Parliament,                    his transfer to Brussels;
Council and Commission documents and Article 5(4) of Deci-
sion 2001/937 (2) (sic). The applicant claims that the document            —     order the defendant to pay all the costs of the proceed-
should have been considered as a third party document and                        ings.


title: Case C-456/03: Action brought on 27 October 2003 by the Commission of the European Communities against the Italian Republic

text:
C 7/22                 EN                          Official Journal of the European Union                                           10.1.2004
                (i)   do the transactions between B and connec-            trative Court) dated 23 October 2003, which was received at
                      ted companies within the Member State                the Court Registry on 27 October 2003, for a preliminary
                      (‘A’, ‘C’ and ‘D’) qualify for VAT purposes          ruling in the case of The Queen on the application of 1) ABNA
                      as supplies made by or to those companies            Ltd, 2) Denis Brinicombe (a partnership), 3) BOCM Pauls Ltd,
                      in the course of their economic activities;          4) Devenish Nutrition Ltd, 5) Nutrition Services (International)
                      if not,                                              Ltd, 6) Primary Diets Ltd and 1) Secretary of State for Health,
                                                                           2) Food Standards Agency on the following question:
                (ii) what factors should be considered in
                      determining the identity of the supplier of
                      the slot gaming services?                            Are Article 1(1)(b) of Directive 2002/02 (1) and/or Article 1(4)
                                                                           of Directive 2002/02, to the extent that it amends
      4.   a)   Is there a principle of abuse of right which               Article 5c(2)(a) of Directive 79/373 (2) by requiring percentages
                (independently of the interpretation given to              to be listed, invalid by reason of
                the VAT Directives) is capable of precluding the
                advantage sought in a case such as the present?            a.    the absence of a legal basis in Article 152(4)(b) EC;
           b)   If so, how does it operate in the circumstances            b.    infringement of the fundamental right to property;
                such as the present?
                                                                           c.    infringement of the principle of proportionality?
      5.   a)   What significance, if any, should be attached to
                the fact that A, C and D are not subsidiaries of
                B and that B does not control A, C and D either
                legally or economically?                                   (1) Directive 2002/02/EC of the European Parliament and of the
                                                                               Council of 28 January 2002 amending Council Directive 79/373/
                                                                               EEC on the circulation of compound feedingstuffs and repealing
           b)   Would it make a difference to any of the                       Commission Directive 91/357/EEC (OJ L 63, 06.03.2002, p. 23).
                answers given above if the type of management              (2) Directive 79/373/EEC of the Council of 2 April 1979 on the
                undertaken by B at its business establishment                  marketing of compound feedingstuffs (OJ L 86, 06.04.1979,
                outside the territory of the Community were                    p. 30).
                necessary for the provision of slot gaming
                services to customers and neither A, C nor D
                performs those activities?
(1) OJ L 145, 13.06.77, p. 1.
(2) OJ L 326, 21.11.1986, p. 40.
                                                                           Action brought on 27 October 2003 by the Commission
                                                                           of the European Communities against the Italian Republic
                                                                                (Case C-456/03)
Reference for a preliminary ruling by the High Court                                                 (2004/C 7/36)
of Justice (England & Wales), Queen’s Bench Division
(Administrative Court), by order of that court dated
23 October 2003, in the case of The Queen on the
application of 1) ABNA Ltd, 2) Denis Brinicombe (a part-
nership), 3) BOCM Pauls Ltd, 4) Devenish Nutrition Ltd,                    An action against the Italian Republic was brought before the
5) Nutrition Services (International) Ltd, 6) Primary Diets                Court of Justice of the European Communities on 27 October
Ltd against 1) Secretary of State for Health, 2) Food                      2003 by the Commission of the European Communities,
                        Standards Agency                                   represented by Karen Banks, acting as Agent.
                         (Case C-453/03)
                                                                           The applicant claims that the Court should:
                           (2004/C 7/35)                                   —     declare that, by failing to bring into force the laws,
                                                                                regulations and administrative provisions necessary to
                                                                                comply with Directive 1998/44/EC (1) of the European
                                                                                Parliament and of the Council of 6 July 1998 on the legal
Reference has been made to the Court of Justice of the                           protection of biotechnological inventions, the Italian
European Communities by an order of the High Court of                            Republic has failed to fulfil its obligations under Article 15
Justice (England & Wales), Queen’s Bench Division (Adminis-                      of that directive;
 ---pagebreak--- 10.1.2004              EN                       Official Journal of the European Union                                            C 7/23
—     order the Italian Republic to pay the costs.                      Reference for a preliminary ruling by the Verwaltungsge-
                                                                        richt, Autonome Sektion für die Provinz Bozen by order
                                                                        of that Court of 27 September 2003 in the case of
                                                                        Parking Brixen G.m.b.H against Municipality of Brixen/
                                                                                Bressanone and Stadtwerke Brixen A.G.
Pleas in law and main arguments
                                                                                (Case C-458/03)
The period for transposition of the directive expired on 30 July
2002.
                                                                                (2004/C 7/38)
(1) OJ 1998 L 213, p. 13.
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Verwaltungsgericht,
                                                                        Autonome Sektion für die Provinz Bozen (Administrative
                                                                        Court, Autonomous Division for the Province of Bolzano) of
                                                                        27 September 2003, received at the Court Registry on
                                                                        30 October 2003, for a preliminary ruling in the case
                                                                        of Parking Brixen G.m.b.H against Municipality of Brixen/
Reference for a preliminary ruling by the Tribunale di                  Bressanone and Stadtwerke Brixen A.G. on the following
Bergamo by order of that Court of 3 August 2003 in the                  questions:
case brought by Azienda agricola Albergati Giovanni
Angelo against Agenzia Erogazioni in agricoltura ‘AGEA’
                                                                        1.   Does the award of the management of the public pay car
               and Coop. Latte 2005 S.C.A.R.L.
                                                                             parks in question concern a public service contract within
                                                                             the meaning of Directive 92/50/EEC (1) or a public service
                                                                             concession contract to which the competition rules of
                         (Case C-457/03)                                     the EC, in particular the obligation to ensure equal
                                                                             treatment and transparency, must be applied?
                          (2004/C 7/37)
                                                                        2.   If that award does concern a service concession contract
                                                                             relating to the management of a local public service, is
                                                                             the award of the management of public pay car parks
                                                                             which, under Article 44(6)(b) of Regional Law No 1 of
Reference has been made to the Court of Justice of the                       4 January 1993, as amended by Article 10 of Regional
European Communities by order of the Tribunale di Bergamo                    Law No 10 of 23 January 1998 and under Article 88(6)(a)
(Bergamo District Court) of 3 August 2003, received at the                   and (b) of the consolidated text of the provisions concern-
Court Registry on 29 October 2003, for a preliminary ruling                  ing local government, can be effected without a public
in the case brought by Azienda agricola Albergati Giovanni                   invitation to tender, compatible with Community law, in
Angelo against Agenzia Erogazioni in agricoltura ‘AGEA’ and                  particular with the principles of freedom to provide
Coop. Latte 2005 S.C.A.R.L. on the following question:                       services and freedom of competition, the prohibition of
                                                                             discrimination, and the resultant obligations to ensure
                                                                             equal treatment, transparency and proportionality, where
                                                                             a public limited company is involved which was set up
Must Article 1 of Regulation (EEC) No 856/84 (1) of 31 March                 pursuant to Article 115 of Legislative Decree No 267/
1984 and Articles 1 to 4 of Regulation No 3950/92 (2) of                     2000 by the conversion of a special undertaking of a
28 December 1992 be interpreted as meaning that the                          municipality, whose share capital at the time of the award
additional levy on milk and milk products is in the nature of                was held 100 % by the municipality itself but whose
an administrative penalty with the result that producers are                 administrative board enjoys all extensive powers of
liable to pay it only where quantities allocated have been                   routine administration up to a value of
exceeded by them intentionally or as a result of negligence?                 EURO 5 000 000,00 per transaction?
(1) OJ L 90 of 01.04.1984, p. 10.                                       (1) OJ L 209 [1992], p. 1.
(2) OJ L 405 of 31.12.1992, p. 1.


title: Action brought on 14 October 1996 by Giorgio Lebedef against the Commission of the European Communities (Case T-196/96)

text:
22 . 2 . 97          ΓEN                   Official Journal of the European Communities                                  No C 54/27
She considers in that regard that the appointing authority            The pleas in law and main arguments are the same as
misused its power of assessment in taking the view that               those previously relied on in Cases T-128/96 Lebedef v.
her extensive experience in the field in which she was                Commission (M and T-161 /96 Bosetti v. Commission ( 2 ).
established and her significant intellectual and human
qualities were not so exceptional as to justify appointment           (') OJ No C 318 , 26 . 10 . 1996 , p. 17.
to grade A6 .                                                         ( 2 ) Not yet published in the Official Journal .
According to the applicant, the contested decision
therefore infringes Article 31 ( 2 ) of the Staff Regulations,
as well as the 1983 decision on the criteria applicable to
appointment in grade and classification in step on
recruitment .                                                         Action brought on 2 December 1996 by Consorzio del
                                                                      Formaggio Parmigiano Reggiano and Società Cooperativa
                                                                      Latteria Sociale Spadarotta ari against Commission of the
(>) [ 1995 ] ECR-SC 11-683 .                                                                European Communities
                                                                                ( Case T-197/96 )
                                                                                ( 97/C 54/45 )
                                                                                (Language of the case: Italian)
Action brought on 14 October 1996 by Giorgio Lebedef
   against the Commission of the European Communities                 An action against the Commission of the European
                                                                      Communities was brought before the Court of First
                         ( Case T-196/96 )                            Instance of the European Communities on 2 December
                            ( 97/C 54/44 )                            1996 by Consorzio del Formaggio Parmigiano Reggiano,
                                                                      whose registered office is at Reggio Emilia ( Italy ), and
                                                                      Societa Cooperativa Latteria Sociale Spadarotta arl, whose
                 (Language of the case: French)                       registered office is at Montecchio Emilia ( Italy ),
                                                                      represented by Fausto Capelli and Luigi Sordelli, of the
                                                                      Milan Bar, and Louis Schiltz, of the Luxembourg Bar, with
An action against the Commission of the European                      an address for service in Luxembourg at the Chambers of
Communities was brought before the Court of First                     Louis Schiltz, 2 rue du Fort Rheinsheim .
Instance of the European Communities on 14 October
1996 by Giorgio Lebedef, residing at Senningerberg
( Luxembourg ), represented by Gilles Bouneou, of the                 The applicants claim that the Court should:
Luxembourg Bar, with an address for service in
Luxembourg at his Chambers, 15 avenue du Bois .                       — declare that the applicants have capacity to bring this
                                                                            action,
The applicant claims that the Court should :                          — annul Commission Decision ( 96/536/EEC ) of 29 July
                                                                             1996 ( ] ) in so far as it mentions in the Annex the
— annul the Commission's decision of 31 October 1995,                       German cheeses 'Kase von Typ Parmesan', ' Parmesan'
                                                                            and 'Duramont-Typ Parmesan',
— annul the refusal to admit the independent trade union              — order the Commission to pay all the costs of the
      'Action & Defense — Luxembourg' to the framework                      proceedings .
      agreement,
                                                                      Pleas in law and main arguments adduced in support:
— annul the prohibition against carrying on trade union
      activities during working hours and on the                      The applicants contest the inclusion of the names 'Kase
      Commission's premises,                                          von Typ Parmesan', ' Parmesan ' and 'Duramont-Typ
                                                                      Parmesan' in the list drawn up by the Commission of
                                                                      milk-based products in respect of which Member States
— order the Commission to pay all the costs .                         are authorized to grant individual or general derogations
                                                                      pursuant to Article 8 ( 2 ) of Directive 92/46/EEC ( 2 ) laying
                                                                      down the health rules for the production and placing on
Pleas in law and main arguments adduced in support:                   the market of raw milk, heat-treated milk and milk-based
                                                                      products .
The applicant, secretary-general of the trade union 'Action
&c Defense — Luxembourg', contests in particular the                  According to the applicants, the designations of the
defendant's refusal to admit that trade union to the                  cheeses so protected constitute obvious imitation of the
framework agreement of 20 September 1974 concerning                   names of famous Italian cheeses . It should be noted in this
relations between the Commission and trade unions and                 respect that the term 'Parmesan' is the literal translation
staff associations .                                                  of the Italian term 'parmigiano'.


title: Case T-38/14: Action brought on 14 January 2014  — Kafetzakis and Others v Hellenic Republic and Others

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/45

         Action brought on 14 January 2014 — Kafetzakis and Others v Hellenic Republic and Others
   (Case T-38/14)
   2014/C 292/55
   Language of the case: Greek

      Parties

      Applicants: Georgios Kafetzakis and 102 other applicants (Athens, Greece) (represented by: X. Papadimitriou, lawyer)

      Defendants: Hellenic Republic, European Parliament, European Council, Council of the European Union, European Commission, European Central Bank, Eurogroup

      Form of order sought

   The applicants claim that the General Court should:

               —

               declare that the defendants have omitted to adopt legislation explicitly to except the bonds which were given of necessity to the applicants by the Hellenic Republic, on their being made redundant by the former Olympic Airways, as required by a decision of the European Commission;

               —

               order that the applicants and all employees made redundant of the former Olympic Airways be given by means of a Community act of direct effect, directive, regulation or other Community legal instrument the capacity to recover 100 % of the value of the bonds which were given to them in place of compensation on their compulsory redundancy-retirement from Olympic Airways and,

               —

               order payment of EUR 3 00  000 by means of a Community act of direct effect, directive, regulation or other Community legal instrument to each of the applicants as compensation for their suffering and distress, the flagrant breach of fundamental rights and the premature termination of their working lives.

      Pleas in law and main arguments

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

               1.

               First plea in law: The legislative and other measures which led Greece to the compulsory participation in P.S.I. [private sector involvement in debt relief] of the holders of Greek State bonds governed by Greek law are in reality Community acts;

               2.

               Second plea in law: The measures adopted by the Greek Government to deal with Greek public debt were in reality imposed by the institutions of the European Union, including the European Central Bank and the European Commission;·

               3.

               Third plea in law: The defendants omitted to adopt legislation explicitly to except the Greek State bonds which were given to them of necessity by the Greek State as compensation by means of acts of the Council of Ministers, by which the terms of application of P.S.I. to Greece were specified;

               4.

               Fourth plea in law: The assimilation of the workers made redundant by the former Olympic Airways with ordinary Greek State bondholders and the failure to except them and their express compensation from P.S.I. caused them direct, personal and serious harm, and deprived them of the enjoyment of their fundamental human rights;

               5.

               Fifth plea in law: All the legislative measures adopted by the Greek Government were on the instructions of and strictly speaking after a decision of Eurogroup, ΕCOFIN, the European Central Bank and the European Commission.


title: Case C-470/03: Judgment of the Court (Grand Chamber) of 17 April 2007 (reference for a preliminary ruling from the Tampereen käräjäoikeus, Finland) — AGM-COS.MET Srl v Suomen valtio, Tarmo Lehtinen (Directive 98/37/EC — Measures having equivalent effect — Machinery presumed to comply with Directive 98/37/EC — Criticism expressed publicly by a State official)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/2

         Judgment of the Court (Grand Chamber) of 17 April 2007 (reference for a preliminary ruling from the Tampereen käräjäoikeus, Finland) — AGM-COS.MET Srl v Suomen valtio, Tarmo Lehtinen
   (Case C-470/03) (1)

   (Directive 98/37/EC - Measures having equivalent effect - Machinery presumed to comply with Directive 98/37/EC - Criticism expressed publicly by a State official)
   (2007/C 96/02)
   Language of the case: Finnish
   Referring court
   Tampereen käräjäoikeus
   Parties to the main proceedings

      Applicant: AGM-COS.MET Srl

      Defendants: Suomen valtio, Tarmo Lehtinen
   Re:
   Reference for a preliminary ruling — Tampereen käräjäoikeus — Interpretation of Article 28 EC and Directive 98/37/EC of the European Parliament and of the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery (OJ 1998 L 207, p. 1) — Measures having equivalent effect — Criticism of car lifts imported from another Member State expressed in public by a State official — Machines not compliant with a harmonised standard — Responsibility of the State for the actions of an official
   Operative part of the judgment

               1.

               Statements which, by reason of their form and circumstances, give the persons to whom they are addressed the impression that they are official positions taken by the State, not personal opinions of the official, are attributable to the State. The decisive factor for the statements of an official to be attributed to the State is whether the persons to whom those statements are addressed can reasonably suppose, in the given context, that they are positions taken by the official with the authority of his office. To the extent that they are attributable to the State, statements by an official describing machinery certified as conforming to Directive 98/37/EC of the European Parliament and the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery as contrary to the relevant harmonised standard and dangerous thus constitute a breach of Article 4(1) of that directive.

               2.

               In circumstances such as those at issue in the main proceedings, a breach of Article 4(1) of Directive 98/37 occasioned by the conduct of an official, in so far as it is attributable to the official's Member State, cannot be justified either on the basis of the objective of protection of health or on the basis of the freedom of expression of officials.

               3.

               Article 4(1) of Directive 98/37 must be interpreted as meaning that, first, it confers rights on individuals and, second, it leaves the Member States no discretion in this case as regards machinery that complies with the directive or is presumed to do so. A failure to comply with that provision as a result of statements made by an official, assuming that they are attributable to the Member State, constitutes a sufficiently serious breach of Community law for the Member State to incur liability.

               4.

               Community law does not preclude specific conditions from being laid down by the domestic law of a Member State with reference to compensation for damage other than damage to persons or property, provided that those conditions are not framed in such a way as to make it impossible or excessively difficult in practice to obtain compensation for loss or damage resulting from a breach of Community law.

               5.

               In the event of a breach of Community law, Community law does not preclude an official from being held liable in addition to the Member State, but does not require this.

      (1)  OJ C 35, 7.2.2004.


title: Case C-340/07: Judgment of the Court (Eighth Chamber) of 6 March 2008 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2002/73/EC — Equal treatment for men and women — Access to employment, vocational training and promotion — Working conditions — Failure to transpose within the prescribed period)

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/9

         Judgment of the Court (Eighth Chamber) of 6 March 2008 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-340/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/73/EC - Equal treatment for men and women - Access to employment, vocational training and promotion - Working conditions - Failure to transpose within the prescribed period)
   (2008/C 107/14)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: G.Rozet and M. van Beek. acting as agents)

      Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to take, within the prescribed period, all the measures necessary to comply with Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 2002 L 269, p. 1)
   Operative part of the judgment
   The Court:

               1.

               declares that, by not having adopted within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the first paragraph of Article 2(1) of that directive.

               2.

               orders the Grand Duchy of Luxembourg to pay the costs.

      (1)  OJ C 211, 8.9.2007.


title: Case C-100/15 P: Appeal brought on 26 February 2015 by Netherlands Maritime Technology Association, formerly Scheepsbouw Nederland against the judgment of the General Court (Seventh Chamber) delivered on 9 December 2014 in Case T-140/13: Netherlands Maritime Technology Association v European Commission

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/15

         Appeal brought on 26 February 2015 by Netherlands Maritime Technology Association, formerly Scheepsbouw Nederland against the judgment of the General Court (Seventh Chamber) delivered on 9 December 2014 in Case T-140/13: Netherlands Maritime Technology Association v European Commission
   (Case C-100/15 P)
   (2015/C 127/21)
   Language of the case: English

      Parties

      Appellant: Netherlands Maritime Technology Association, formerly Scheepsbouw Nederland (represented by: K. Struckmann, Rechtsanwalt, G. Forwood, Barrister)

      Other parties to the proceedings: European Commission, Kingdom of Spain

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the judgment under appeal insofar as it rejected the Appellant’s application for annulment of the Decision;

               —

               Annul the contested Decision, or alternatively, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law; and

               —

               In any event, award the Appellant its costs, including its costs in the proceedings before the General Court.

      Pleas in law and main arguments

   The appellant argues that the General Court erred in law when considering the sufficiency and completeness of the Commission’s preliminary examination, specifically:

               —

               In failing to properly consider all the arguments relied upon by the Appellant at first instance;

               —

               In committing a manifest error of appreciation; and

               —

               In giving insufficient and contradictory reasoning.

         The main arguments can be summarized as follows:

               —

               Regarding the first ground, the General Court misread the Appellant’s arguments with respect to the complex structure of the New STL Scheme, its self-implementation and selectivity and thus did not consider whether the Decision properly analysed the functioning of the scheme as a whole, and in conjunction with other provisions of tax and corporate law.

               —

               Regarding the second ground, the General Court committed a manifest error in its reading of the Decision, leading it to conclude, wrongly, that the Decision sufficiently assessed the scope of beneficiaries of the New STL Scheme.

               —

               Regarding the third ground, the General Court failed to provide sufficient and coherent reasoning as to why the contested decision was right not to consider EIGs as potential beneficiaries of the New STL Scheme, or to define a reference framework to assess the effects of the measure. Furthermore, the General Court failed to provide sufficient reasoning explaining why the contested decision sufficiently explained how the New STL Scheme was an inherent part of the general system.