title: Case T-346/12: Action brought on 1 August 2012 — Hungary v European Commission

text:
               13.10.2012

               EN

               Official Journal of the European Union

               C 311/11

         Action brought on 1 August 2012 — Hungary v European Commission
   (Case T-346/12)
   2012/C 311/13
   Language of the case: Hungarian

      Parties

      Applicant(s): Hungary (represented by: Miklós Zoltán and Katalin Szíjjártó, agents)

      Defendant(s): European Commission

      Form of order sought

               —

               Annul the Commission Implementing Decision C(2012) 3324 final of 25 May 2012 on national financial assistance granted to producer organisations

      Pleas in law and main arguments

   In support of the action, the applicant alleges that the Commission exceeded its powers and breached the relevant provisions of European Union law in determining the amount of the partial reimbursement to Hungary of the national financial assistance granted in 2009 to producers’ organisations operating in the fruit and vegetable sector.
   The applicant states that Union law does not provide for the option for the Commission, in its decision on partial Community reimbursement of national financial assistance granted, pursuant to Article 103e of Regulation (EC) No 1234/2007, (1) to producers’ organisations operating in the fruit and vegetable sector, to agree to reimburse only those amounts which were indicated by Hungary in its application for the grant of national assistance, where they are given as estimated, expected or provisional amounts.
   The applicant considers that, under Article 103e of Regulation No 1234/2007, the Commission’s authorisation for national assistance relates to the grant of assistance and not to the establishment by the Commission of a maximum limit for the assistance which can be granted. That limit is laid down unequivocally in Regulation No 1234/2007 which provides that national assistance may not exceed 80 % of the financial contributions to the operational funds of members or producers’ organisations. Nor do the rules concerning partial Community reimbursement of national assistance allow the Commission, in authorising such partial reimbursement, to fix as a maximum limit the amount that the Member State communicated to the Commission in its application for authorisation either as the total amount of assistance or as the amount of assistance provided for certain producers’ organisations, especially when in that communication the Government of Hungary put forward the amounts in question as merely planned or provisional amounts.
   Similarly, the applicant states that the Commission has the right to verify that the assistance actually received has not exceeded the above-mentioned maximum limit of 80 %, and that the reimbursement sought does not exceed 60 % of the assistance granted, but not to lay down a maximum limit for reimbursement of the amounts set out in the application for authorisation or in the communication on that application, especially when that application or communication stresses the estimated, planned or provisional nature of the data. Where, for certain reasons, there is a change during the year in the amount of national assistance given to any producers’ organisation, partial Community reimbursement is to be granted in respect of the amount actually received, provided that the requirements laid down by Union law in that regard are fulfilled.

      (1)  Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (OJ 2007 L 299, p. 1).


title: Case C-156/07: Order of the Court (Sixth Chamber) of 10 July 2008 (reference for a preliminary ruling from the Cosiglio di Stato (Italy)) — Salvatore Aiello and Others v Comune di Milano, Sindaco di Milano, Comitato tecnico-scientifico per l'emergenza del traffico e della mobilità nella città di Milano, Provincia di Milano, Regione Lombardia, Ministero delle Infrastrutture e dei Trasporti, Ministero dell'Interno, Presidenza del Consiglio dei Ministri, Euromilano SpA, Metropolitana milanese SpA (Reference for a preliminary ruling — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Construction of a road in Milan)

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/11

         Order of the Court (Sixth Chamber) of 10 July 2008 (reference for a preliminary ruling from the Cosiglio di Stato (Italy)) — Salvatore Aiello and Others v Comune di Milano, Sindaco di Milano, Comitato tecnico-scientifico per l'emergenza del traffico e della mobilità nella città di Milano, Provincia di Milano, Regione Lombardia, Ministero delle Infrastrutture e dei Trasporti, Ministero dell'Interno, Presidenza del Consiglio dei Ministri, Euromilano SpA, Metropolitana milanese SpA
   (Case C-156/07) (1)

   (Reference for a preliminary ruling - Directive 85/337/EEC - Assessment of the effects of certain public and private projects on the environment - Construction of a road in Milan)
   (2008/C 285/17)
   Language of the case: Italian
   Referring court
   Consiglio di Stato (Italy)
   Parties

      Applicant: Salvatore Aiello and Others

      Defendants: Comune di Milano, Sindaco di Milano, Comitato tecnico-scientifico per l'emergenza del traffico e della mobilità nella città di Milano, Provincia di Milano, Regione Lombardia, Ministero delle Infrastrutture e dei Trasporti, Ministero dell'Interno, Presidenza del Consiglio dei Ministri

      Interveners: Euromilano SpA, Metropolitana milanese SpA
   Re:
   Reference for a preliminary ruling — Consiglio di Stato — Interpretation of Articles 2 and 4 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), and of Annex III thereto — Selection criteria to be taken into account in evaluating a project — Construction of a road (‘the Interquartiere Nord’) in Milan
   Operative part of the order

               1.

               Article 2(1) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, must be interpreted as meaning that it does not require any project that may have a significant effect on the environment to be made subject to the impact assessment provided for in that directive, but only projects of a kind listed in Annexes I and II of the directive, as provided in Article 4 of the directive and subject to Article 1(4) and (5) and Article 2(3) of the directive;

               2.

               Member States are under an obligation to take into account the relevant selection criteria set out in Annex III of Directive 85/337, as amended by Directive 97/11, when they determine, for projects listed in Annex II of the directive — on the basis of a case-by-case assessment or on the basis of thresholds or criteria that they lay down — whether the project at issue must be made subject to an environmental impact assessment;

               3.

               Where a Member State chooses to determine on a case-by-case basis which of the projects listed in Annex II of Directive 85/337, as amended by Directive 97/11, must be made subject to an environmental impact assessment, it must ensure — either by having its national rules refer back to Annex III of the directive or by incorporating the criteria set out in Annex III in its national rules — that, as long as a particular one is relevant to the project at issue, all of those criteria can effectively be taken into account, and cannot explicitly or implicitly exclude one of them.

      (1)  OJ C 140, 23.6.2007.


title: Case T-301/11: Order of the General Court of 11 January 2012 — Ben Ali v Council (Common foreign and security policy — Restrictive measures taken in the light of the situation in Tunisia — Action for annulment — Time-limit for bringing proceedings — Out of time — No force majeure — No excusable error — Application for alteration of the contested measure — Claim for compensation — Manifest inadmissibility)

text:
               25.2.2012

               EN

               Official Journal of the European Union

               C 58/10

         Order of the General Court of 11 January 2012 — Ben Ali v Council
   (Case T-301/11) (1)

   (Common foreign and security policy - Restrictive measures taken in the light of the situation in Tunisia - Action for annulment - Time-limit for bringing proceedings - Out of time - No force majeure - No excusable error - Application for alteration of the contested measure - Claim for compensation - Manifest inadmissibility)
   2012/C 58/18
   Language of the case: French

      Parties

      Applicant: Mehdi Ben Tijani Ben Haj Hamda Ben Haj Hassen Ben Ali (Tunis, Tunisia) (represented by: A. de Saint Remy, lawyer)

      Defendant: Council of the European Union (represented initially by A. Vitro and R. Liudvinaviciute-Cordeiro, and subsequently by R. Liudvinaviciute-Cordeiro and M. Bishop, Agents)

      Re:

   First, action for annulment of Council Regulation (EU) No 101/2011 of 4 February 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Tunisia (OJ 2011 L 31, p. 1), in so far as it concerns the applicant and, second, an application seeking an order for the Council to adopt certain derogations to the freezing of funds imposed by the regulation and a claim for damages for the harm allegedly suffered by the applicant.

      Operative part of the order

               1.

               The order is dismissed.

               2.

               Mr Mehdi Ben Tijani Ben Haj Hamda Ben Haj Hassen Ben Ali is ordered to bear his own costs and to pay those incurred by the Council of the European Union.

               3.

               There is no need to give a ruling on the application for leave to intervene by the European Commission.

      (1)  OJ C 226, 30.7.2011.


title: Action brought on 17 February 1995 by Philippe Guebels against the Commission of the European Communities (Case T-40/95)

text:
8 . 4 . 95            EN                 Official Journal of the European Communities                                 No C 87/17
Action brought on 15 February 1995 by Antonio B. De                 — order the defendant to pay the costs'.
Menezes against the Commission of the European
                          Communities
                                                                    Pleas in law and main arguments adduced in support:
                        (Case T-29/95 )
                          (95/C 87/36                               The action is directed against the decision removing the
                                                                    applicant from his post, adopted following disciplinary
               (Language of the case: French)                       proceedings, on the ground that he colluded, as one of the
                                                                    persons marking the written papers in open competition
                                                                    EUR/B/21 , with two of the candidates and had knowledge
An action against the Commission of the European                    of the model answers .
Communities was brought before the Court of First
Instance of the European Communities on 15 February
1995 by Antonio B. De Menezes, residing in Brussels,                In support of his action, the applicant pleads, first, an
represented by Georges Vandersanden, of the Brussels                infringement of Article 6 of the European Convention on
Bar.                                                                Human Rights. He considers that the preliminary
                                                                    administrative inquiry was not conducted in such a way as
                                                                    to ensure the necessary objectivity, dispassion and
The applicant claims that the Court should:                         impartiality; he further maintains that the opinions
                                                                    delivered by the Disciplinary Board and the contested
— declare the action admissible and well-founded,
                                                                    decision removing him from his post were not adopted
                                                                    within the reasonable period referred to in the
— consequently, annul the decision rejecting _ the
                                                                    aforementioned Article and that the time limits laid down by
     applicant's application for the vacant post COM/030/94
     of Director in Directorate A — Information and                 the first and third paragraphs of Article 7 of Annex IX to the
                                                                    Staff Regulations were not complied with.
     Communication Strategy (DG X/A), and the resulting
     decision to appoint another candidate to that post,
                                                                    The applicant pleads, second, a breach of his right to a fair
— order the. defendant to pay all the costs .                       hearing, in that the file produced to the Disciplinary Board
                                                                    and to the appointing authority was not communicated to
                                                                    him in its entirety.
Pleas in law and main arguments adduced in support:
The applicant, a Grade A 3 official assigned to ECHO                The applicant maintains, third, that the disciplinary
( European Community Humanitarian Office ), contests the            measure taken against him is unlawful, inasmuch as the
rejection of his application for the post of Director of            appointing authority did not prove the matters alleged
Directorate    A   —     Information    and   Communication         against him.
Strategy.
                                                                    He further states that the official nominated by the
The pleas and main arguments are the same as those in Case          appointing authority to conduct the preliminary inquiry
T-27/95 .                                                           prior to the referral of the matter to the Disciplinary Board,
                                                                    and the appointing authority itself, uttered threats against
                                                                    him, and that the disciplinary proceedings are vitiated by an
                                                                    abuse of power.
                                                                    Lastly, the applicant pleads a manifest error of assessment,
Action brought on 17 February 1995 by Philippe Guebels              disregard of the principle of proportionality and breach of
  against the Commission of the European Communities                the obligation to provide a statement of reasons laid down
                                                                    by Article 25 of the Staff Regulations .
                        (Case T-40/95 )
                          ( 95/C 87/37
                (Language of the case: French)
An action against the Commission of the European
Communities was brought before the Court of First                   Action brought on 17 February 1995 by Andrew Macrae
Instance of the European Communities on 17 February                 Moat against the Commission of the European
                                                                                Communities
1995 by Philippe Guebels, residing in Arlon (Belgium ),
represented by Jean-Noel Louis, Thierry Demaseure and                                       (Case T-41/95 )
Ariane Tornel, of the Brussels Bar, with an address for                                       ( 95/C 87/38 )
service in Luxembourg at the offices of Fiduciaire Myson
Sari, 1 Rue Glesener.
                                                                                (Language of the case: English)
The applicant claims that the Court should:
                                                                    An action against the Commission of the European
— annul the decision of the Commission of 18 January                Communities was brought before the Court of First
     1995 ,                                                         Instance of the European Communities on 17 February


title: Case C-446/02: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 29 October 2002 in the case of Hauptzollamt Hamburg-Jonas against Gouralnik & Partner GmbH

text:
C 55/6                  EN                          Official Journal of the European Union                                          8.3.2003
1.     Must Regulation No 2913/92 (1) (the Community Cus-                   Reference for a preliminary ruling by the Bundesfinanz-
       toms Code) and Regulation No 2454/93 ( 2) (the regu-                 hof by order of that Court of 29 October 2002 in the case
       lation implementing the Community Customs Code), in                  of Hauptzollamt Hamburg-Jonas against Gouralnik &
       particular Article 379(1) of the regulation implementing                                      Partner GmbH
       the Community Customs Code, be construed as meaning
       that the customs debt arising by reason of an offence or
       irregularity in connection with external Community                                           (Case C-446/02)
       transit cannot be recovered by the office of departure
       from the principal if the principal did not, before the end
       of the eleventh month following the date of registration                                      (2003/C 55/12)
       of the Community transit declaration, receive the notifi-
       cation referred to in Article 379 of the regulation
       implementing the Community Customs Code?
                                                                            Reference has been made to the Court of Justice of the
2.     Does the fact that the office of departure did not follow
                                                                            European Communities by order of the Bundesfinanzhof
       an administrative instruction for the transmission of
                                                                            (Federal Finance Court) of 29 October 2002, received at the
       information laid down in the Customs Code Committee
                                                                            Court Registry on 10 December 2002, for a preliminary ruling
       (early warning system) or that the authorities in the office
                                                                            in the case of Hauptzollamt Hamburg-Jonas against Gouralnik
       of departure can be criticised for failure to notify in good
                                                                            & Partner GmbH on the following questions:
       time have any bearing on the answer to this question?
                                                                            1.   Does an entitlement to an export refund exist at least at
( 1) OJ L 302 [1992], p. 1.                                                      the rate of refund applicable to the product actually
( 2) OJ L 253 [1993], p. 1.                                                      exported where it is established during a control by
                                                                                the customs authorities that the declared and exported
                                                                                consignment did not consist entirely of the declared
                                                                                product but contained a proportion of another product
                                                                                to which a lower rate of refund applied?
Reference for a preliminary ruling by the Vestre Landsret                   2.   Does the fact that the product which was incorrectly
by order of that Court of 15 November 2002 in the case                           declared is similar to that actually declared have any
of Fonden Marselisborg Lystbådehavn against Skattemini-                          bearing on the decision?
                                steriet
                                                                            3.   If Question 2 is answered in the affirmative, in accordance
                          (Case C-428/02)                                        with which criteria must it be determined whether the
                                                                                declaration also covers the incorrectly declared goods?
                           (2003/C 55/11)
Reference has been made to the Court of Justice of the
European Communities by order of the Vestre Landsret
(Western Regional Court) of 15 November 2002, received at
the Court Registry on 26 November 2002, for a preliminary
ruling in the case of Fonden Marselisborg Lystbådehavn against
Skatteministeriet (Ministry of Fiscal Affairs) on the following             Appeal brought on 11 December 2002 by KWS Saat AG
questions:                                                                  against the judgment delivered on 9 October 2002 by the
                                                                            Second Chamber of the Court of First Instance of the
1)     Must Article 13.B(b) of the Sixth VAT Directive (Council             European Communities in Case T-173/00 between KWS
       Directive 77/388) (1) be construed as meaning that the               Saat AG and the Office for Harmonisation in the Internal
       term ‘letting of immovable property’ includes the letting                         Market (Trade Marks and Designs)
       of a boat site consisting of a section of a land-based port
       area and of a defined and identifiable water-based area?
                                                                                (Case C-447/02 P)
2)     Must Article 13.B(b)(2) of the Sixth VAT Directive be
       construed as meaning that the term ‘vehicles’ includes
       boats?                                                                                (2003/C 55/13)
( 1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
     harmonization of the laws of the Member States relating to
     turnover taxes — Common system of value added tax: uniform             An appeal against the judgment delivered on 9 October 2002
     basis of assessment (OJ L 145 of 13.6.1977, p. 1).                     by the Second Chamber of the Court of First Instance of the
                                                                            European Communities in Case T-173/00 between KWS Saat
                                                                            AG and the Office for Harmonisation in the Internal Market


title: Case C-488/13: Order of the Court (Fifth Chamber) of 9 September 2014 (request for a preliminary ruling from the Okrazhеn sad — Тargоvishte — Bulgaria) — ‘Parva Investitsionna Banka’ AD, ‘UniKredit Bulbank’ AD, ‘Siyk Faundeyshan’ LLS v ‘Ear Proparti Development — v nesastoyatelnost’ AD, Sindik na ‘Ear Proparti Development — v nesastoyatelnost’ AD (Reference for a preliminary ruling — Regulation (EC) No 1896/2006 — Definition of ‘uncontested pecuniary claims’ — Insolvency proceedings — Extra-judicial enforcement order relating to a contested claim — Claim for payment out of the insolvency estate, on the basis of such an enforcement order — Situation falling outside the scope of Regulation No 1896/2006 — Court clearly lacking jurisdiction)

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/5

         Order of the Court (Fifth Chamber) of 9 September 2014 (request for a preliminary ruling from the Okrazhеn sad — Тargоvishte — Bulgaria) — ‘Parva Investitsionna Banka’ AD, ‘UniKredit Bulbank’ AD, ‘Siyk Faundeyshan’ LLS v ‘Ear Proparti Development — v nesastoyatelnost’ AD, Sindik na ‘Ear Proparti Development — v nesastoyatelnost’ AD
   (Case C-488/13) (1)

   ((Reference for a preliminary ruling - Regulation (EC) No 1896/2006 - Definition of ‘uncontested pecuniary claims’ - Insolvency proceedings - Extra-judicial enforcement order relating to a contested claim - Claim for payment out of the insolvency estate, on the basis of such an enforcement order - Situation falling outside the scope of Regulation No 1896/2006 - Court clearly lacking jurisdiction))
   (2014/C 431/09)
   Language of the case: Bulgarian

      Referring court

   Okrazhеn sad — Тargоvishte

      Parties to the main proceedings

      Applicants:‘Parva Investitsionna Banka’ AD, ‘UniKredit Bulbank’ AD, ‘Siyk Faundeyshan’ LLS

      Defendants:‘Ear Proparti Developmant — v nesastoyatelnost’ AD, Sindik na ‘Ear Proparti Developmant — v nesastoyatelnost’ AD

      Intervening parties: Natsionalna agentsia za prihodite, ‘Aset Menidzhmant’ EAD, ‘Ol Siyz Balgaria’ OOD, ‘Si Dzhi Ef — aktsionerna obshtnost’ AD, ‘Silvar Biych’ EAD, ‘Rudersdal’ EOOD, ‘Kota Enerdzhi’ EAD, Chavdar Angelov Angelov

      Operative part of the order

   The Court of Justice of the European Union clearly lacks jurisdiction to answer the questions referred by the Okrazhеn sad — Тargоvishte (Bulgaria).

      (1)  OJ C 344, 23.11.2013.


title: Case C-176/10: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Danilo Spina v Ministero dell’Interno

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/34

      Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio lodged on 2 April 2010 — Danilo Spina v Ministero dell’Interno
      (Case C-176/10)
      (2010/C 161/50)
      Language of the case: Italian

         Referring court

      Tribunale Amministrativo Regionale per il Lazio

         Parties to the main proceedings

         Applicant: Danilo Spina

         Defendant: Ministero dell’Interno

         Question referred

      Is a national system under national legislation (introduced as from the Bersani Decree, Decree-Law No 223 of 4 July 2006, converted into Law No 248 of 4 August 2006) compatible with Articles 43 and 49 of the EC Treaty, when it, inter alia:

                  (a)

                  tends generally to protect holders of licences issued at an earlier period following a tendering procedure that unlawfully excluded some operators;

                  (b)

                  in fact ensures the maintenance of acquired commercial positions (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);

                  (c)

                  provides for cases in which the licence may lapse when the licensee directly or indirectly carries on cross- border gaming activities analogous to those under the licence?


title: Case T-365/04: Action brought on 10 September 2004 by Dominique Cantoni against Council of the European Union and Commission of the European Communities

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/24

         Action brought on 10 September 2004 by Dominique Cantoni against Council of the European Union and Commission of the European Communities
   (Case T-365/04)
   (2004/C 284/47)
   Language of the case: French
   An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 10 September 2004 by Dominique Cantoni, residing in Marseilles (France), represented by Jean-François Péricaud, lawyer.
   The applicant claims that the Court should:

               —

               order the Council of the European Union and the Commission of the European Communities jointly and severally to pay to Mr Cantoni, as a primary claim, the sum of EUR 916 000, and, in the alternative, the sum of EUR 862 010, together, in any event, with interest at the rate prescribed by law from the date this action for payment was brought;

               —

               order the Council of the European Union and the Commission of the European Communities jointly and severally to pay the costs.

         Pleas in law and main arguments:
   The pleas in law and main arguments are those relied on in Case T-440/03 Arizmendi and Others v Council and Commission. (1)

      (1)  OJ C 59 of 6.3.2004, p. 31.


title: Case T-359/14: Judgment of the General Court of 18 September 2015 — Federación Nacional de Cafeteros de Colombia v OHIM — Accelerate (COLOMBIANO COFFEE HOUSE) (Community trade mark — Invalidity proceedings — Community figurative mark COLOMBIANO COFFEE HOUSE — Earlier protected geographical indication Café de Colombia — Articles 13 and 14 of Regulation (EC) No 510/2006 — Relative ground for refusal — Article 8(4) of Regulation (EC) No 207/2009)

text:
               9.11.2015

               EN

               Official Journal of the European Union

               C 371/24

         Judgment of the General Court of 18 September 2015 — Federación Nacional de Cafeteros de Colombia v OHIM — Accelerate (COLOMBIANO COFFEE HOUSE)
   (Case T-359/14) (1)

   ((Community trade mark - Invalidity proceedings - Community figurative mark COLOMBIANO COFFEE HOUSE - Earlier protected geographical indication Café de Colombia - Articles 13 and 14 of Regulation (EC) No 510/2006 - Relative ground for refusal - Article 8(4) of Regulation (EC) No 207/2009))
   (2015/C 371/27)
   Language of the case: English

      Parties

      Applicant: Federación Nacional de Cafeteros de Colombia (Bogota, Colombia) (represented by: A. Pomares Caballero and M. Pomares Caballero, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Accelerate s.a.l. (Beirut, Lebanon)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 27 March 2014 (Case R 1200/2013-5) relating to invalidity proceedings between the Federación Nacional de Cafeteros de Colombia and Accelerate s.a.l.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 27 March 2014 (Case R 1200/2013-5) in so far as it rejected the application for a declaration of invalidity;

               2.

               Orders OHIM to bear its own costs and to pay those incurred by the Federación Nacional de Cafeteros de Colombia.

      (1)  OJ C 253, 4.8.2014.


title: Case T-146/09: Action brought on 9 April 2009 — Parker ITR and Parker-Hannifin v Commission

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/51

         Action brought on 9 April 2009 — Parker ITR and Parker-Hannifin v Commission
   (Case T-146/09)
   2009/C 141/106
   Language of the case: English

      Parties

      Applicants: Parker ITR Srl (Veniano, Italy) and Parker-Hannifin Corp. (Mayfield Heights, Unites States) (represented by: B. Amory, F. Marchini Càmia and F. Amato, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul the Decision insofar as it holds Parker ITR liable from 1 April 1986 until 9 June 2006, and Parker Hannifin liable from 31 January 2002 until 9 June 2006;

               —

               substantially reduce the fine imposed on the applicants;

               —

               order the Commission to pay its own costs and those of the applicants.

      Pleas in law and main arguments

   The applicants seek the annulment of Commission Decision C(2009) 428 Final of 28 January 2009 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/39406 — Marine Hoses insofar as it holds them liable for participation in a single and continuous infringement in the marine hose sector in the EEA, which consisted of allocating tenders, fixing prices, fixing quotas, fixing sales conditions, geographic market sharing, and the exchange of sensitive information on prices, sales volumes and procurement tenders. Furthermore, they seek the reduction of the fine imposed on the applicants.
   The applicants put forward nine pleas in law in support of its claims.
   Under the first three pleas which concern issues of attribution of liability, the applicants submit as follows:
   First, they claim that, in holding Parker OTR liable for the infringement committed before 1 January 2002 by legal entities which still exist, carry out economic activities, and belong to a different undertaking, the contested decision infringed the principle of personal liability, misused its powers in order to circumvent the rules on prescription, infringed the principle of non-discrimination and failed to state reasons.
   Second, the applicants argue that the contested decision infringed the principle of personal responsibility in holding them liable for the illegal conduct of Parker ITR’s employee given that: (i) the employee engaged in the cartel activities for his own personal benefit; (ii) towards achieving his illegal gains the employee operated Parker ITR’s Oil & Gas Business Unit independently of the applicants; (iii) Parker ITR suffered damage as a result of the employee’s illegal conduct.
   Third, they submit that the contested decision erred in holding Parker Hannifin liable for the period between 31 January 2002 and 9 June 2006, because any presumption of Parker Hannifin’s decisive influence over the marine oil and gas hose activities of its wholly owned subsidiary Parker ITR has been amply rebutted by the Applicants and non of the arguments or documents cited in the decision undermines such rebuttal or constitutes evidence of Parker Hannifin’s decisive influence over Parker ITR during such period.
   Under the remaining six pleas, which concern the amount of the fine, the applicants submit as follows:
   Fourth, they contend that the contested decision manifestly erred in defining the infringement from 1 April 1986 to 13 May 1997 and the infringement from 11 June 1999 to 2 May 2007 as either a single and continuous infringement or as a repeated infringement, within the meaning of Article 25, paragraph 2, second sentence, of Regulation 1/2003 (1). Consequently, in the applicants’ view, the Commission’s power to impose a fine for the infringement from 1 April 1986 to 13 May 1997 is time barred.
   Fifth, the applicants claim that the decision erred in considering Parker ITR as a leader of the cartel from 11 June 1999 to 30 September 2001.
   Sixth, they submit that the contested decision violated the principle of personal responsibility and failed to state reasons with regard to the increase of the fine imposed on Parker Hannifin for Parker ITR’s alleged role of leader.
   Seventh, the applicants argue that the decision infringed the principle of legitimate expectation by taking into account for the purposes of calculating the ‘aggregate sales within the EEA’, within the meaning of paragraph 18 of the Commission Guidelines on Fines (2), the sales of goods invoiced to companies located in the EEA, but not delivered within the EEA.
   Eighth, they claim that in relaying on Parker Hannifin’s consolidated turnover for the purposes of calculating the 10 % ceiling for the portion of the fine for which Parker ITR was held solely liable, the contested decision misinterpreted Article 23 of Regulation 1/2003, infringed the principle of personal responsibility and failed to state reasons.
   Ninth, they submit that the decision violated the principle of legitimate expectation and the duty to state reasons in refusing to apply to the applicants a reduction of the fine for cooperation.

      (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

      (2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, OJ 2006 C 210, p. 2


title: Case C-180/15: Request for a preliminary ruling from the Nacka tingsrätt, Mark- och miljödomstolen (Sweden) lodged on 21 April 2015 — Borealis Ab and Others v Naturvårdsverket

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/21

         Request for a preliminary ruling from the Nacka tingsrätt, Mark- och miljödomstolen (Sweden) lodged on 21 April 2015 — Borealis Ab and Others v Naturvårdsverket
   (Case C-180/15)
   (2015/C 205/30)
   Language of the case: Swedish

      Referring court

   Nacka tingsrätt, Mark- och miljödomstolen

      Parties to the main proceedings

      Applicants: Borealis AB, Kubikenborg Aluminium AB, Yara AB, SSAB EMEA AB, Lulekraft AB, Värmevärden i Nynäshamn AB, Cementa AB, Höganäs Sweden AB

      Defendant: Naturvårdsverket

      Questions referred

               1.

               In the calculation of the cross-sectoral correction factor for the industrial sector, is it compatible with Article 10a(1) and (4) of the trading directive (1) to attribute all emissions from incineration of residual gas for electricity production to the auction pot and not to the Industritaket (ceiling for free allocation of allowances; ‘industry ceiling’), despite the fact that emissions from residual gas are eligible for free allocation of allowances under Article 10a(1) of the trading directive?

               2.

               In the calculation of the cross-sectoral correction factor for the industrial sector, is it compatible with Article 10a(1) and (4) of the trading directive to attribute all emissions produced in heat production in cogeneration installations for onward delivery to … installations [covered by the emissions trading system (‘ETS installations’)] to the auction pot and not to the industry ceiling, despite the fact that the emissions from heat production are eligible for free allocation of allowances under Article 10a(4) of the trading directive?

               3.

               If the answers to questions 1 and 2 are negative, is the calculation, in that case, of the industries’ share (34,78 per cent) of the total emissions in the reference period correct?

               4.

               Is Commission Decision 2013/448/EU (2) invalid and incompatible with the third subparagraph of Article 10a(5) of the trading directive, since the Commission’s calculation of the industry ceiling means that a cross-sectoral correction factor must inevitably be applied instead of being applied ‘if necessary’?

               5.

               Has the product benchmark for hot metal been established in accordance with Article 10a(2) of the trading directive on the basis of the fact that, in defining the principles for setting ex-ante benchmarks, the starting point is to be the average performance of the 10 per cent most efficient installations in the relevant sector?

               6.

               As regards the free allocation of allowances for the export of heating to private households, is it compatible with Article 10a(4) of the trading directive not to grant allocation of free allowances in respect of heating which is exported to private households?

               7.

               In connection with applications for the free allocation of allowances, is it compatible with Annex IV to Commission Decision 2011/278/EU (3), as the Naturvårdsverket (Swedish Environmental Protection Agency) has done, not to state all greenhouse gas emissions arising from the production of heating which is exported to private households?

               8.

               In the allocation of free allowances for the export of heating to private households, is it compatible with Article 10a(1) and (4) of the trading directive and Article 10(3) of Commission Decision 2011/278/EU not to give allocation of extra free allowances in respect of the fossil-fuel emissions which exceed the allocation given for heating exported to private households?

               9.

               In connection with applications for allocation of free allowances, is it compatible with Annex IV to Commission Decision 2011/278/EU, as the Naturvårdsverket has done, to adjust the figures in an application so that the greenhouse gas emissions attributable to the incineration of residual gas are equated to those attributable to the incineration of natural gas?

               10.

               Does Article 10(8) of Commission Decision 2011/278/EU mean that an operator cannot obtain an allocation of free allowances in respect of heat consumption in a heat benchmark sub-installation produced in a different fuel benchmark sub-installation?

               11.

               If the answer to question 10 is affirmative, does Article 10(8) of Commission Decision 2011/278/EU run counter to Article 10a(1) of the trading directive?

               12.

               In the allocation of free allowances in respect of heat consumption, is it compatible with the trading directive and Guidance Documents No 2 and 6 to have regard in the assessment to the heat source which produces the heat consumed?

               13.

               Is Commission Decision 2013/448/EU invalid and incompatible with Article 290 TFEU and Article 10a(1) and (5) of the trading directive on the basis that it alters the calculation method set out in Article 10a(5), second subparagraph, (a) and (b) of the trading directive by excluding from the basis of calculation emissions which are caused by the incineration of residual gas and the production of combined heat and power, despite the fact that the free allocation of allowances is permitted in that regard pursuant to Article 10a(1) and (4) of the trading directive and Commission Decision 2011/278/EU?

               14.

               Is measurable heat in the form of steam from an ETS installation which is delivered to a steam network with many consumers of steam, of which at least one is not an ETS installation, to be regarded as constituting a heat benchmark sub-installation under Article 3(c) of Commission Decision 2011/278/EU?

               15.

               Is it relevant to the answer to question 14:

                           (a)

                           whether the steam network is owned by the largest consumer of steam in the network and that consumer is an ETS installation,

                           (b)

                           what share of the total heat delivery to the steam network is used by the largest consumer,

                           (c)

                           how many suppliers and consumers of steam there are in the steam network,

                           (d)

                           whether there is uncertainty as to who has produced the measurable heat which the respective consumers of steam acquire, and

                           (e)

                           whether the allocation of steam usage within the network can be altered in such a way that a number of consumers of steam which are not ETS installations join it or the existing non-ETS installations’ usage increases?

               16.

               If the answer to question 14 depends on the facts of the individual case, to which facts is particular weight to be given?’

      (1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

      (2)  Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (notified under document C(2013) 5666) (OJ 2013 L 240, p. 27).

      (3)  Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (notified under document C(2011) 2772) (OJ 2011 L 130, p. 1).


title: Case T-215/16: Judgment of the General Court of 3 April 2017 — Cop v EUIPO — Conexa (AMPHIBIAN) (EU trade mark — Invalidity proceedings — International registration designating the European Union — Figurative mark AMPHIBIAN — Absolute grounds for refusal — Distinctive character — Lack of descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/36

         Judgment of the General Court of 3 April 2017 — Cop v EUIPO — Conexa (AMPHIBIAN)
   (Case T-215/16) (1)

   ((EU trade mark - Invalidity proceedings - International registration designating the European Union - Figurative mark AMPHIBIAN - Absolute grounds for refusal - Distinctive character - Lack of descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))
   (2017/C 151/46)
   Language of the case: German

      Parties

      Applicant: Cop Vertriebs-GmbH (Aresing, Germany) (represented by: H. Hofmann, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: D. Hanf, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Conexa LLC (Dover, Delaware, United States) (represented by: H. Twelmeier, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 7 March 2016 (Case R 1984/2015-4) relating to invalidity proceedings between Cop and Conexa.

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Cop Vertriebs-GmbH to pay the costs.

      (1)  OJ C 251, 11.7.2016.


title: Case F-71/05: Judgment of the Civil Service Tribunal (Second Chamber) of 25 October 2007 — Milella and Campanella v Commission (Staff case — Officials — Elections — Staff Committee — Appointment of representatives of the Commission's Local Staff Committee for Luxembourg to the Central Staff Committee of the Commission — Principle of overall proportional allocation of election results — Action for annulment — Admissibility)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/47

         Judgment of the Civil Service Tribunal (Second Chamber) of 25 October 2007 — Milella and Campanella v Commission
   (Case F-71/05) (1)

   (Staff case - Officials - Elections - Staff Committee - Appointment of representatives of the Commission's Local Staff Committee for Luxembourg to the Central Staff Committee of the Commission - Principle of overall proportional allocation of election results - Action for annulment - Admissibility)
   (2007/C 297/94)
   Language of the case: French
   Parties

      Applicants: Arcangelo Milella (Niederanven, Luxembourg) and Delfina Campanella (Luxembourg, Luxembourg) (represented by: M.-A. Lucas, lawyer)

      Defendant: Commission of the European Communities (represented by: J. Currall and H. Kraemer)
   Re:
   Annulment of the Commission decisions concerning the appointment of representatives of the Local Staff Committee for Luxembourg (LSCL) to the Central Staff Committee (CSC) and a declaration that the LSCL's decisions are illegal.
   Operative part of the judgment
   The Tribunal:

               1.

               Annuls the decision of the Director General of the ‘Personnel and Administration’ Directorate-General of the Commission of the European Communities of 18 April 2005 inasmuch as it formally called on the representatives of the Commission's Local Staff Committee for Luxembourg to abide by ‘[t]he indications which appear in this decision’;

               2.

               Annuls the decision of the Director General of the ‘Personnel and Administration’ Directorate-General of the Commission of the European Communities of 11 May 2005;

               3.

               Dismisses the remainder of the action;

               4.

               Orders the Commission of the European Communities to pay the costs.

      (1)  OJ C 229, 17.9.2005, p. 36.


title: Case T-267/14: Judgment of the General Court of 28 April 2016 — Zehnder Group International v EUIPO — Stiebel Eltron (comfotherm) (EU trade mark — Invalidity proceedings — EU word mark comfotherm — Earlier national word mark KOMFOTHERM — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Likelihood of confusion — Similarity of the goods — Relevant public — Interdependence of factors)

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/45

      Judgment of the General Court of 28 April 2016 — Zehnder Group International v EUIPO — Stiebel Eltron (comfotherm)
      (Case T-267/14) (1)

      ((EU trade mark - Invalidity proceedings - EU word mark comfotherm - Earlier national word mark KOMFOTHERM - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009 - Likelihood of confusion - Similarity of the goods - Relevant public - Interdependence of factors))
      (2016/C 211/56)
      Language of the case: German

         Parties

         Applicant: Zehnder Group International AG (Gränichen, Switzerland) (represented by: J. Krenzel, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO) (represented by: initially A. Pohlmann and subsequently S. Hanne, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Stiebel Eltron GmbH & Co. KG (Holzminden, Germany) (represented by: J. Eberhardt, H. Förster and Y. Holderied, lawyers)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 21 February 2014 (Case R 1318/2013-4), relating to invalidity proceedings between Stiebel Eltron GmbH & Co. KG and Zehnder Group International AG.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Zehnder Group International AG to pay the costs.

         (1)  OJ C 194, 24.6.2014.


title: Case T-174/09: Order of the General Court of 18 December 2009 — Complejo Agrícola v Commission

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/49

         Order of the General Court of 18 December 2009 — Complejo Agrícola v Commission
   (Case T-174/09) (1)

   2010/C 37/76

      Language of the case: Spanish

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

      (1)  OJ C 153, 4.7.2009.


title: Action brought on 25 September 1995 by Accinauto SA against the Commission of the European Communities (Case T-176/95)

text:
25 . 11 . 95           EN                    Official Journal of the European Communities                                  No C 315/ 19
— in the alternative, cancel or mitigate the fine imposed on                Treaty, such infringement was negligible in its effects .
    the applicant by Article 2 of the said Decision,                        The part of the market which was affected by the Treaty
                                                                            and by the single case of non-delivery was so minuscule
— order the defendant to pay all of the costs of the                        that there can be no question of market conditions
    proceedings incurred by the applicant,                                  having been effected .
— order the defendant, in the event that the applicant is               5 . The defendant's assumption regarding the duration of
    successful, to reimburse to the applicant the costs of the              the agreement is untenable . Since there was in any event
    bank guarantee provided by the applicant as security for                only one single case of refusal to supply, a distinction
    the payment of the fine .                                               should have been drawn in assessing the duration .
Pleas in law and main arguments adduced in support:                     6 . The defendant has abused its discretionary powers . It
                                                                            has failed to have reasonable regard to :
I. The applicant complains of infringement of essential
procedural requirements .                                                   — the gravity of the infringement,
1 . The defendant refused to allow the applicant's                          — the duration of the alleged infringement,
     representative the complete access to the file to which he
     was entitled on grounds of equality of arms .                          — the economic situation of the applicant, or
     Consequently, the applicant was disadvantaged in                       — the absence of intent .
     putting forward its defence .
2 . The applicant was not provided with a translation into
     German , the language of the proceeding applicable in its
     case , of the minutes of the hearing on 23 September
     1993 . This constitutes an infringement of Article 3 of
     Regulation No 1 of the Council of 15 April 1958 . It also
     resulted at the same time in a restriction of the                  Action brought on 25 September 1995 by Accinauto SA
     applicant's ability to defend itself.                                against the Commission of the European Communities
                                                                                ( Case T-176/95 )
II . The agreement concluded on 8 October 1 982 between                                            ( 95/C 315/38 )
the applicant and Accinauto does not infringe Article 85 ( 1 )
of the EC Treaty .
                                                                                (Language of the case: German)
1 . The defendant could not have reached the contrary
     conclusion were it not for the totally inadequate
     clarification of the circumstances . The conduct of the            An action against the Commission of the European
                                                                        Communities was brought before the Court of First
     parties was caused by the supply problems existing                 Instance of the European Communities on 25 September
     during the period in question and the need to ensure
                                                                        1995 by Accinauto SA, Brussels , represented by Helmut
     uniformity in the provision of supplies to all of the
                                                                        Glassen, Rechtsanwalt, Leimen ( Federal Republic of
     markets served by the applicant.                                   Germany ), with an address for service in Luxembourg at the
                                                                        Chambers of Loesch & Wolters, 1 1 Rue Goethe .
2 . There is nothing in the wording of the Treaty, or the way
     in which it is applied, which conflicts with that
     interpretation . In the light of the evolution of the Treaty,      The applicant claims that the Court should :
     and the way in which it is applied, the term 'pass on '
     used in the agreement can only have meant that the                 — annul the defendant's decision of 12 July 1995 , notified
     applicant was to be kept informed about the flow of                    on 24 July 1995 , concerning a proceeding under
     goods . That was a legally unobjectionable practice . The              Article 85 of the EC Treaty ( Case IV/33.802 — BASF
     provision of such information was particularly                         Lacke + Farben AG and SA Accinauto ) in so far as it
     indispensable in times of shortage, in order to ensure, as             concerns the applicant,
     far as possible, uniformity of supply to the different
     markets     and    to    avoid    a   situation    in  which
                                                                        — in the alternative, cancel or mitigate the fine imposed on
     coach-building works switched to other competitors .
                                                                            the applicant by Article 2 of the said decision,
3 . If the evidence submitted is interpreted in the light of
     that background, it becomes clear that its overall                 — order the defendant to pay all of the costs of the
     context supports the applicant's case : the conduct of the             proceedings incurred by the applicant,
     parties involved is due purely and solely to the shortage
     situation and the problems arising from it. It cannot be           — order the defendant, in the event that the applicant is
     attributed to any collusion .                                          successful , not only to reimburse to the applicant the
                                                                            amount of the fine but also to pay it interest at the same
4 . Even if the agreement in question could be regarded as                  rate ( 9,5 % ) as that fixed by the defendant in Article 2 ( 2 )
     constituting an infringement of Article 85 ( 1 ) of the EC             of the contested decision .
 ---pagebreak--- No C 315/20            EN                  Official Journal of the European Communities                                    25 . 11 . 95
Pleas in law and main arguments adduced in support:                   Action brought on 28 September 1995 by Patrick Barraux,
                                                                      Klaus Kammerichs and Vittorino Tebaldi against the
                                                                               Commission of the European Communities
 I. The applicant complains of infringement of essential
                                                                                ( Case T- 177/95 )
procedural requirements . The applicant was not provided
with a translation into French, the language of the                                             ( 95/C 315/39 )
proceeding applicable in its case, of the minutes of the
hearing on 23 September 1993 . This constitutes an                                   (Language of the case: French)
infringement of Article 3 of Council Regulation No 1 . It also
resulted at the same time in a restriction of the applicant's
ability to defend itself.                                             An action against the European Communities was brought
                                                                      before the Court of First Instance of the European
                                                                      Communities on 28 September 1995 by Patrick Barraux,
II . The agreement concluded on 8 October 1982 between                residing at Karlsruhe ( Germany ), Klaus Kammerichs,
the applicant and BASF L + F does not infringe Article 85(1 )         residing at Stutensee ( Germany ) and Vittorino Tebaldi ,
of the EC Treaty .                                                    residing at Marxzell-Burbach ( Germany ), represented by
                                                                      Jean-Noel Louis, Thierry Demaseure, Veronique Leclerq
                                                                      and Ariane Tornel , of the Brussels Bar, with an address for
1 . The defendant could not have reached the contrary                 service in Luxembourg at the offices of Fiduciaire Myson
    conclusion were it not for the totally inadequate                 Sari , 1 Rue Glesener.
    clarification of the circumstances . The conduct of the
    parties was caused by the supply problems existing                The applicants claim that the Court should :
    during the period in question and the need to ensure
    uniformity in the provision of supplies to all of the
    markets served by the applicant.                                  — annul the applicants ' pay slips for the period from 1 July
                                                                          to 31 December 1994 ,
2 . There is nothing in the wording of the Treaty, or the way         — order the defendant to pay the applicants the
    in which it is applied, which conflicts with that                     remuneration to which they are entitled, together with
    interpretation . In the light of the evolution of the Treaty,         default interest calculated at the annual rate of 8 % from
    and the way in which it is applied, the term 'pass on '               the date when the remuneration became due until the
    used in the agreement can only have meant that the                    date when it is paid,
    applicant was to keep BASF L + F informed about the
    flow of goods . That was a legally unobjectionable               — order the defendant to pay the costs .
    practice . The provision of such information was
    particularly indispensable in times of shortage, in order
    to ensure, as far as possible, uniformity of supply to the        Pleas in law and main arguments adduced in support:
    different markets and to avoid a situation in which
    coach-building works switched to other competitors .              The applicants, three Commission officials employed in the
                                                                      Institute for Transuranic Elements, Karlsruhe, contest the
                                                                      reduction of their remuneration with retroactive effect in
3 . If the evidence submitted is interpreted in the light of          consequence of the entry into force of Council Regulation
    that background, it becomes clear that its overall                ( EC, ECSC, Euratom ) No 3161 /94 adjusting, with effect
    context supports the applicant's case : the conduct of the        from 1 July 1994, the remuneration and pensions of officials
    parties involved is due purely and solely to the shortage         and other servants of the European Communities and the
    situation and the problems arising from it . It cannot be        weightings applied thereto .
    attributed to any collusion .
                                                                     That Regulation, adopted in compliance with the judgment
                                                                      of 27 October 1994 in Case T-64/92 , in which the Court of
4 . Even if the agreement in question could be regarded as
    constituting an infringement of Article 85 ( 1 ) of the EC        First Instance held that the Council was not empowered to
    Treaty, such infringement was negligible in its effects .         fix a weighting for Germany on the basis of the cost of living
    The part of the market which was affected by the Treaty           in a city other than the capital , provides in particular, in
    and by the single case of non-delivery was so minuscule          Article 6(1 ), for the fixing of a specific weighting applicable
    that there can be no question of market conditions               to the remuneration of officials employed at Karlsruhe .
    having been affected .
                                                                     The applicants plead, first of all , the illegality of the
                                                                      aforementioned Regulation, inasmuch as the power of the
5 . The defendant's assumption regarding the duration of              Council to prescribe weightings pursuant to Articles 64 and
    the agreement is untenable . Since there was in any event         65 of the Staff Regulations and Article 9 of Annex XI
    only one single case of refusal to supply, a distinction         thereto, which entails the obligation, in accordance with the
    should have been drawn in assessing the duration .                principle of equality of treatment between officials, to fix a
                                                                      specific weighting ' forthwith', may only be exercised in the
                                                                     event that an appreciable disparity is found to have arisen
                                                                      between the cost of living in a place of employment and the
                                                                     cost of living in the capital .


title: Action brought on 27 March 1997 by Sofivo and Others against the Commission of the European Communities (Case T-76/97)

text:
31 . 5 . 97          EN                  Official Journal of the European Communities                              No C 166/ 19
— declare, pursuant to Article 184 of the EC Treaty, that            Instance of the European Communities on 27 March 1997
     Council Regulation ( EC ) No 71/97 is inapplicable in           by Sofivo, established at Conde sur Vire ( France ), Sofivo
     so far as it constitutes the legal basis for Regulation        Production, established at Brece ( France ), Sovinor,
     No 88/97,                                                      established at Conde sur Vire ( France ), Denkavit France,
                                                                    established at Montreuil-Bellay ( France ), Sobeval Viande,
— declare, pursuant to Article 184 of the EC Treaty, that           established at Perigueux ( France ), Serval, established at
     Article 13 of Council Regulation ( EC ) No 384/96 is           Sainte Eanne ( France ), Besnier Industrie, established at
     inapplicable in so far as it constitutes the legal basis       Bourgbarre ( France ), Sovida, established at Chateaubriand
     for Regulations ( EC ) No 71/97 and (EC ) No 88/97,             ( France ), Sica Ouest Elevage, established at Ploudaniel
                                                                    ( France ), Guinde, established at Montauban de Bretagne
— order the defendant to pay the costs .                            ( France ), Tarbouriech, established at Villeneuve sur Lot
                                                                    ( France ), Mamellor, established at Charnay les Macon
Pleas in law and main arguments adduced in support:                 ( France ), Coopagri Bretagne, established at Landerneau
                                                                    ( France ), Collet et Compagnie, established at
The applicant has already, with Case T-74/97, brought an            Chateaubourg ( France ), Kermene SA, established at Saint
action against the Council before the Court of First                Jacut du Mene ( France ), and Vals, established at
Instance of the European Communities .                              Champagne ( France ), represented by Philippe Denesle, of
                                                                    the Rouen Bar, with an address for service in Luxembourg
In the present action, the applicant challenges Commission          at the Chambers of Marc Loesch, 11 Rue Goethe .
Regulation (EC ) No 88/97 ( the 'Exemption Regulation'),
which lays down the detailed rules for the procedure for            The applicants claim that the Court should:
the exemption of undertakings provided for by Council
Regulation ( EC ) No 71 /97 (the 'Reference Regulation').           — annul Commission Regulation ( EC ) No 200/97
The Reference Regulation extended the duty originally                     adopted on 31 January 1997,
introduced for bicycles originating in the People's
Republic of China to the import of bicycle parts                    — order the Commission to pay the costs .
originating in that country. Although the applicant does
not satisfy the factual preconditions for circumvention, it         Pleas in law and main arguments adduced in support:
was not granted exemption from the duty applicable in
the case of circumvention .                                         The applicants, who are also the applicants in Cases T-14/
                                                                    97, T-15/97, T-20/97 (^ and T-61/97 ( 2), are contesting the
The applicant contends that the Exemption Regulation                way in which, by establishing a supplementary early
should be annulled and relies thereby essentially on the            marketing premium in the beef and veal sector, Regulation
following grounds .                                                 ( EC ) No 200/97 ( 3 ) purports to tackle the unequal
                                                                    treatment and anti-competitive discrimination criticized in
The end-use system before the national customs                      the applications lodged in the cases cited above .
authorities introduced for importers by the Exemption
Regulation, which does not grant undertakings an                    According to the applicants, the Commission has adopted,
exemption automatically if they do not satisfy the factual          in the contested measure, the principle of the payment of
preconditions for circumvention but makes exemption                 a supplementary premium, which, although introducing a
dependent on further conditions, is not covered by                  differentiation as regards the amount of the aid,
Article 3 of the Reference Regulation and Article 13 of             nevertheless fails to remedy the unequal treatment and
Regulation ( EC ) No 384/96 ( the 'Basic Regulation') and           anti-competitive discrimination in any way. In their view,
therefore lacks a legal basis .                                     the grant of a supplementary premium in the same
                                                                    amount, the sole consideration for which is the weight of
In addition, the applicant pleads in an ancillary claim the         the slaughtered animal, without taking into account any
inapplicability of the Reference Regulation and Article 13          other objective market factor, cannot restore a balance
of the Basic Regulation in so far as they constitute the            between competing products .
legal basis for the Exemption Regulation. The applicant
relies in that regard essentially on the arguments already          The applicants have stated in their previous applications
made in Case T-74/97 .                                              that, since the average carcase weight qualifying for the
                                                                    premium may vary from one Member State to the next,
                                                                    without such variation being justified by objective,
                                                                    relevant divergences, the provisions in issue did not
                                                                    comply with Article 40 of the Treaty. In the contested act,
                                                                    however, the Commission once again adopts reference
Action brought on 27 March 1997 by Sofivo and Others                weights without providing any objective data .
   against the Commission of the European Communities
                        (Case T-76/97 )                             In addition, however, and as their main point, the
                         ( 97/C 166/39 )                            applicants state that, whilst the Commission is right in its
                                                                    view that production no longer meets normal demand in
               (Language of the case: French)                       the market, the provisions adopted by it cannot remedy
                                                                    the effect under consideration . The supplementary
An action against the Commission of the European                    premium of ECU 10 per 108 kilograms in respect of
Communities was brought before the Court of First                   animals reared in France does not in any way permit the
 ---pagebreak--- No C 166/20              EN                       Official Journal of the European Communities                                   31 . 5 . 97
restoration of competition with, for example, animals                        Pleas in law and main arguments adduced in support:
reared in the Netherlands, which, at a weight of 138
kilograms, will be capable of being sold on the French                       The pleas in law and main arguments are the same as in
market at a higher price, having regard not only to the                      Case T- 16/97 ( M.
number of additional kilograms but also to the higher
price per kilogram paid for animals with superior physical                   (') OJ No C 74 , 8 . 3 . 1997, p . 27.
characteristics, for which a premium of ECU 60 is to be
paid .
O OJ No C 94, 22 . 3 . 1997, pp . 20, 21 and 22 respectively.
( 2 ) Not yet published in the Official Journal .
( 3 ) Commission Regulation ( EC ) No 200/97 of 31 January 1997              Action brought on 28 March 1997 by F. Javier Maetzu
      amending Regulation (EEC ) No 3886/92 laying down detailed             Nieva against the . Commission of the European
      rules for the application of premium schemes in the beef and                                         Communities
      veal sector ( OJ No L 31 , 1 . 2 . 1997, p. 62 ).                                                 ( Case T-78/97 )
                                                                                ( 97/C 166/41 )
                                                                                (Language of the case: French)
                                                                             An action against the Commission of the European
Action brought on 27 March 1997 by Jose Baiges Planas                        Communities was brought before the Court of First
and 16 others against the Commission of the European                         Instance of the European Communities on 28 March 1997
                               Communities                                   by F. Javier Maetzu Nieva, residing in Brussels,
                                                                             represented by Nicolas Lhoëst, of the Brussels Bar, with an
                            ( Case T-77/97)                                  address for service in Luxembourg at the offices of
                              ( 97/C 166/40                                  Fiduciaire Myson Sari, 30 Rue de Cessange .
                                                                             The applicant claims that the Court should:
                    (Language of the case: French)
                                                                             — annul the Commission's decision of 18 June 1996
                                                                                rejecting the applicant's request that it give
An action against the Commission of the European                                  consideration to the possible application of Article 31
Communities was brought before the Court of First                                 ( 2 ) of the Staff Regulations,
Instance of the European Communities on 27 March 1997
by Jose Baiges Planas, residing in Brussels, Viviane Baretti-                — annul, in so far as may be necessary, the decision
Piazzi, residing at Rhode St Genese ( Belgium ), David                            adopted by the Commission on 27 December 1996
Broderick, residing in Brussels, Alessandro Buttice,                              expressly rejecting the applicant's complaint,
residing in Brussels, Peter Grasmann, residing in Brussels,
Timothy Hayes, residinig at Wezembeek-Oppem                                  — order the defendant to pay all the costs .
 ( Belgium ), Louis Hersom, residing in Brussels, Owen
Jones, residing in Brussels, Jean-Louis Levy-Gorgeot,                        Pleas in law and main arguments adduced in support:
residing at Bereldange ( Luxembourg), Saturno Mallia,
residing at Overijse ( Belgium ), Fernardo Mazza, residing
                                                                             The pleas in law and main arguments are the same as in
 at Steinsel ( Luxembourg), Yasmine Pire, residing in
                                                                             Case T- 16/97 (').
 Brussels, William Richer, residing at Hoeilaart ( Belgium ),
Josefa Rodriguez Portero, residing in Brussels, Robert
                                                                             H OJ No C 74, 8 . 3 . 1997, p . 27 .
 Smyth, residing at Sterrebeek ( Belgium), Alain Van
 Hamme, residing at Grimbergen ( Belgium ), and Fionnuala
Walker, residing in Brussels, represented by Marc-Albert
 Lucas, of the Liege Bar, with an address for service in
 Luxembourg at the Chambers of Evelyne Korn, 21 Rue de
 Nassau .
                                                                             Action brought on 28 March 1997 by Michael A. Köhler
                                                                                against the Commission of the European Communities
 The applicants claim that the Court should:                                                             ( Case T- 79/97 )
                                                                                ( 971C 166/42 )
 — annul the Commission's decision rejecting their request                                     (Language of the case: French)
       to be regraded,
                                                                             An action against the Commission of the European
                                                                              Communities was brought before the Court of First
 — annul the Commission's                   decision    rejecting their       Instance of the European Communities on 28 March 1997
        administrative complaint,                                             by Michael A. Köhler, residing at Wezembeek-Oppem
                                                                              ( Belgium), represented by Nicolas Lhoëst, of the Brussels
                                                                              Bar, with an address for service in Luxembourg at the
 — order the Commission to pay the costs.                                     offices of Fiduciaire Myson Sari, 30 Rue de Cessange .


title: Election of the President of the Court

text:
1 . 11 . 97              EN                  Official Journal of the European Communities                                   C 331 /1
                                                                     I
                                                              (Information)
                                                 COURT OF JUSTICE
                                                           COURT OF JUSTICE
      Taking of the oath by new Members of the Court                          Decisions adopted by the Court at its meeting of
                                                                                7 October 1997
                            ( 97/C 331 /01 )
                                                                                ( 97/C 331/03 )
                                                                        The Court of Justice of the European Communities
Following his appointment as Judge of the Court of                      adopted the following decisions at its meeting of 7 October
Justice of the European Communities by Decision of the                  1997 :
Representatives of the Governments of the Member States
of 29 May 1997 ( ] ), for the period from 7 October 1997                Assignment of Judge Ioannou
to 6 October 2003 , Mr Krateros Ioannou took the oath
before the Court on 6 October 1997.                                     The Court decided to assign Judge Ioannou to the Fourth
                                                                        and Sixth Chambers .
                                                                        Appointment of the Presidents of the Chambers
Following his appointment as Advocate General of the
Court of Justice of the European Communities by                         In accordance with Article 10 ( 1 ) of the Rules of
Decision of the Representatives of the Governments of the               Procedure, the Court has appointed for a period of one
Member States of 29 May 1997 H, for the period from                     year starting on 7 October 1997:
7 October 1997 to 6 October 2003 , Mr Siegbert Alber
took the oath before the Court on 6 October 1997.                       — Mr Wathelet as President of the First Chamber,
                                                                        — Mr Schintgen as President of the Second Chamber,
(') OJ L 145 , 5 . 6 . 1997, p . 28 .
                                                                        — Mr Gulmann as President of the Third and Fifth
                                                                             Chambers,
                                                                        — Mr Ragnemalm as President of the Fourth and Sixth
                                                                             Chambers .
                                                                        Composition of the Chambers
            Election of the President of the Court                      1 . The composition of the Chambers for the same period
                                                                        has been determined as follows :
                            ( 97/C 331/02 )
                                                                        First Chamber
                                                                        Mr Wathelet, President of the Chamber,
At the meeting on 7 October 1997, the Judges of the
Court of Justice of the European Communities elected, in                Mr Edward, Mr Jann and Mr Sevón, Judges .
accordance with Article 7 ( 1 ) of the Rules of Procedure,
Mr Gil Carlos Rodriguez Iglesias as President of the Court              Second Chamber
for the period from 7 October 1997 up to and including
6 October 2000 .                                                        Mr Schintgen, President of the Chamber,
                                                                        Mr Mancini and Mr Hirsch, Judges.
                                                                        Third Chamber


title: Judgment of the Court (Fifth Chamber) of 13 July 2000 in Case C-174/99 P: European Parliament v Pierre Richard (Officials — Recruitment procedure — Application of Article 29(1) of the Staff Regulations)

text:
C 316/8                  EN                     Official Journal of the European Communities                                          4.11.2000
1.    Protocol No 2 on Article 119 of the Treaty establishing the          1.    Dismisses the appeal;
      European Community, annexed to the EC Treaty, applies to a
      payment such as the additional pre-retirement payment provided       2.    Orders the European Parliament to pay the costs.
      for by Collective Agreement No 17, rendered compulsory by the
      Royal Decree of 16 January 1975 and provided for in the
      Collective Labour Agreement of 23 May 1984 concluded                 (1) OJ C 246 of 28.8.1999.
      within Joint Sub-Committee No 315.1.
2.    An additional payment which, as in the present case, constitutes
      ‘pay’ within the meaning of Article 119 of the EC Treaty
      (Articles 117 to 120 of the EC Treaty have been replaced by
      Articles 136 EC to 143 EC) is not covered by Article 5 of
      Council Directive 76/207/EEC of 9 February 1976 on the
      implementation of the principle of equal treatment for men and
      women as regards access to employment, vocational training                            JUDGMENT OF THE COURT
      and promotion, and working conditions.
                                                                                of 12 September 2000
(1) OJ C 188 of 3.7.1999.
                                                                           in Case C-276/97: Commission of the European Communi-
                                                                                ties v French Republic (1)
                                                                           (Failure to fulfil obligations — Article 4(5) of the Sixth VAT
                                                                           Directive — Access to roads on payment of a toll — Failure to
                                                                           levy VAT — Regulations (EEC, Euratom) Nos 1552/89 and
                                                                                1553/89 — Own resources accruing from VAT)
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                           (2000/C 316/15)
                            of 13 July 2000
                                                                                (Language of the case: French)
in Case C-174/99 P: European Parliament v Pierre
                               Richard (1)                                 (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Officials — Recruitment procedure — Application of
             Article 29(1) of the Staff Regulations)
                                                                           In Case C-276/97: Commission of the European Communities
                                                                           (Agents: H. Michard and E. Traversa) v French Republic
                           (2000/C 316/14)                                 (Agents: K. Rispal-Bellanger, and G. Mignot) — application for
                                                                           a declaration that,
                     (Language of the case: French)                        —     by failing to charge value added tax on motorway tolls as
                                                                                consideration for the service supplied to users, contrary
                                                                                to Articles 2 and 4 of the Sixth Council Directive
(Provisional translation; the definitive translation will be published           77/388/EEC of 17 May 1977 on the harmonisation of
                    in the European Court Reports)                               the laws of the Member States relating to turnover taxes
                                                                                — Common system of value added tax: uniform basis of
In Case C-174/99 P: European Parliament (Agent: J. Sant’Anna,                    assessment (OJ 1977 L 145, p. 1), and
assisted by D. Waelbroeck) appeal against the judgment of the
Court of First Instance of the European Communities (Fifth                 —     by failing to make the corresponding sums, with interest
Chamber) of 9 March 1999 in Case T-273/97 Richard v                              for late payment, available to the Commission as own
Parliament [1999] ECR-SC I-A-45 and II-235, seeking to have                      resources,
that judgment set aside, the other party to the proceedings
being: Pierre Richard, an official of the European Parliament,             the French Republic has failed to fulfil its obligations under
residing in Luxembourg, represented by A. Lutgen and J. Felt-              the EC Treaty, — the Court, composed of: G.C. Rodrı́guez
gen, of the Luxembourg Bar, with an address for service in                 Iglesias, President, J.C. Moitinho de Almeida (Rapporteur),
Luxembourg at their Chambers, 1 Rue Jean-Pierre Brasseur —                 L. Sevón and R. Schintgen (Presidents of Chambers), P.J.G. Kap-
the Court (Fifth Chamber), composed of: D.A.O. Edward,                     teyn, C. Gulmann, J.-P. Puissochet, P. Jann, H. Ragnemalm,
President of the Chamber, P.J.G. Kapteyn, P. Jann, H. Ragne-               V. Skouris and F. Macken, Judges; S. Alber, Advocate General;
malm (Rapporteur) and M. Wathelet, Judges; J. Mischo, Advo-                D. Louterman-Hubeau and H.A. Rühl, Principal Adminis-
cate General; H.A. Rühl, Principal Administrator, for the                  trators, for the Registrar, has given a judgment on 12 Septemb-
Registrar, has given a judgment on 13 July 2000, in which it:              er 2000, in which it:


title: Case T-45/15: Action brought on 2 February 2015  — Hydrex v Commission

text:
               23.3.2015

               EN

               Official Journal of the European Union

               C 96/23

         Action brought on 2 February 2015 — Hydrex v Commission
   (Case T-45/15)
   (2015/C 096/29)
   Language of the case: Dutch

      Parties

      Applicant: Hydrex NV (Antwerp, Belgium) (represented by: P. Van Eysendeyk, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               declare unlawful and therefore annul European Commission decision C(2015) 103 final of 12 January 2015, notified to the applicant under Article 297 TFEU by letter of 13 January 2015, concerning recovery order No. 3241405101 for the amount of EUR 5 40  721,10, on the ground that there was a manifest failure to state reasons and, consequently, a manifest error of assessment;

               —

               order the European Commission to return all the amounts wrongly claimed and/or retained;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   In 2006, the grant contract LIFE06 ENV/B/000362, entitled ‘Demonstration of a 100 % non-toxic durable hull protection and anti-fouling system contributing to zero emission to the aquatic environment and saving 3-8 % heavy fuels’, was signed by the European Commission and the applicant. The recovery by the Commission at issue is based on an ex-post audit which allegedly showed that the eligible costs of the project had to be reduced.
   In support of its action, the applicant submits that the obligation to state reasons has been infringed. It submits that the Commission took no account of an audit that was carried out when all the documents were still available. In the alternative, the applicant submits that the Commission took no account of its observation on the ex-post audit report, which justified an additional amount.


title: Case T-56/12: Action brought on 9 February 2012 — IRISL Maritime Training Institute and Others v Council

text:
               14.4.2012

               EN

               Official Journal of the European Union

               C 109/22

         Action brought on 9 February 2012 — IRISL Maritime Training Institute and Others v Council
   (Case T-56/12)
   2012/C 109/48
   Language of the case: English

      Parties

      Applicants: IRISL Maritime Training Institute (Tehran, Iran), Kara Shipping and Chartering GmbH & Co. KG (Hamburg, Germany), Kheibar Co. (Tehran, Iran), Kish Shipping Line Manning Co. (Kish Island, Iran), Fairway Shipping Ltd (London, United Kingdom) and IRISL Multimodal Transport Co. (Tehran, Iran) (represented by: F. Randolph and M. Lester, Barristers, and M. Taher, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ L 319, 2.12.2011, p. 71) and Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ L 319, 2.12.2011, p. 11), insofar as they concern the applicants;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of their action, the applicants rely on four pleas in law, alleging that in including their names in the lists enclosed to the contested Decision and Regulation, the Council has:

               —

               failed to give adequate or sufficient reasons;

               —

               failed to fulfil the criteria for listing, and/or committed a manifest error of assessment in determining that those criteria were satisfied in relation to the applicants and/or included the applicants without an adequate legal basis for doing so;

               —

               failed to safeguard the applicants’ rights of defence and right to effective judicial review; and

               —

               infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of their property, business, and reputation.


title: Case T-578/14: Order of the General Court of 16 September 2015 — VSM Geneesmiddelen v Commission (Action for failure to act and for annulment — Consumer protection — Health claims relating to food — Regulation (EC) No 1924/2006 — Botanical substances — Time-limit for bringing proceedings — No interest in bringing proceedings — Non-actionable measure — Inadmissibility)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/31

         Order of the General Court of 16 September 2015 — VSM Geneesmiddelen v Commission
   (Case T-578/14) (1)

   ((Action for failure to act and for annulment - Consumer protection - Health claims relating to food - Regulation (EC) No 1924/2006 - Botanical substances - Time-limit for bringing proceedings - No interest in bringing proceedings - Non-actionable measure - Inadmissibility))
   (2015/C 381/34)
   Language of the case: English

      Parties

      Applicant: VSM Geneesmiddelen BV (Alkmaar, Netherlands) (represented by: U. Grundmann, lawyer)

      Defendant: European Commission (represented initially by J. Enegren and subsequently by M. Wilderspin and S. Grünheid, acting as Agents)

      Re:

   Application for a declaration that the Commission failed to act in that it unlawfully failed to instruct the European Food Safety Authority (EFSA) to assess health claims relating to botanical substances as a precondition for the adoption of the definitive list of permitted claims in accordance with Article 13(3) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (OJ 2006 L 404, p. 9) and, in the alternative, an application for annulment of the decision purportedly contained in the Commission’s letter of 19 June 2014 refusing to instruct the EFSA to assess those claims.

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               VSM Geneesmiddelen BV is ordered to pay the costs.

      (1)  OJ C 339, 29.9.2014.


title: Case C-120/07: Order of the President of the Court of 27 February 2008 — Commission of the European Communities v Kingdom of the Netherlands

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/21

         Order of the President of the Court of 27 February 2008 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-120/07) (1)

   (2008/C 142/37)

      Language of the case: Dutch

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

      (1)  OJ C 95, 28.4.2007.


title: Case T-231/11: Judgment of the General Court of 19 September 2012 — Fraas v OHIM (Tartan pattern in dark grey, light grey, light blue, dark blue, ochre and beige) (Community trade mark — Application for a figurative Community trade mark representing a tartan pattern in dark grey, light grey, light blue, dark blue, ochre and beige — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b), Article 75 and Article 76(1) of Regulation (EC) No 207/2009)

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/22

      Judgment of the General Court of 19 September 2012 — Fraas v OHIM (Tartan pattern in dark grey, light grey, light blue, dark blue, ochre and beige)
      (Case T-231/11) (1)

      (Community trade mark - Application for a figurative Community trade mark representing a tartan pattern in dark grey, light grey, light blue, dark blue, ochre and beige - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b), Article 75 and Article 76(1) of Regulation (EC) No 207/2009)
      (2012/C 331/40)
      Language of the case: German

         Parties

         Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by: R. Kunze and G. Würtenberger, lawyers)

         Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially R. Manea then D. Walicka, acting as Agents)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of OHIM of 4 March 2011 (Case R 2041/2010-4) concerning an application for registration of a figurative sign representing a tartan pattern in dark grey, light grey, light blue, dark blue, ochre and beige as a Community trade mark.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders V. Fraas GmbH to pay the costs.

         (1)  OJ C 238, 13.8.2011.