title: Judgment of the Court 26 February 2002 in Case C-32/00 P: Commission of the European Communities v Boehringer Ingelheim Vetmedica GmbH e.a. (Appeal — Veterinary medicinal products — Partial annulment of Commission Regulation (EC) No 1312/96 in so far as, in fixing the maximum residue limits for clenbuterol chlorhydrate, it further specifies the permissible therapeutic indications for that substance — Possibility for the Commission, in fixing the maximum residue limits of veterinary medicinal products, to take into account Directive 96/22/EC concerning the prohibition on the use of certain substances)

text:
4.5.2002               EN                      Official Journal of the European Communities                                             C 109/7
3.    Orders the United Kingdom of Great Britain and Northern             1.    Sets aside points 2 and 5 of the operative part of the judgment
      Ireland, the Commission of the European Communities, the                  of the Court of First Instance of 1 December 1999 in Joined
      Fédération Européenne de la Santé Animale (Fedesa) and the                Cases T-125/96 and T-152/96 Boehringer v Council and
      Stichting Kwaliteitsgarantie Vleeskalverensector (SKV) to bear            Commission;
      their own costs.
                                                                          2.    Dismisses the action for annulment brought by Boehringer
                                                                                Ingelheim Vetmedica GmbH and C.H. Boehringer Sohn
(1) OJ C 102 of 8.4.2000.                                                       against Commission Regulation No 1312/96 of 8 July 1996
                                                                                amending Annex III to Council Regulation (EEC) No 2377/90
                                                                                laying down a Community procedure for the establishment of
                                                                                maximum residue limits of veterinary medicinal products in
                                                                                foodstuffs of animal origin;
                                                                          3.    Orders Boehringer Ingelheim Vetmedica GmbH and C.H.
                                                                                Boehringer Sohn, both in the proceedings before the Court of
                                                                                First Instance in Case T-152/96 and in those before the Court
                                                                                of Justice, to bear their own costs and to pay the whole of the
                 JUDGMENT OF THE COURT                                          costs incurred by the Commission of the European Communities;
                                                                          4.    Orders the Council of the European Union to bear the costs
                        26 February 2002                                        which it has incurred in the proceedings before the Court of
                                                                                First Instance in Case T-152/96;
in Case C-32/00 P: Commission of the European Com-                        5.    Orders the Fédération Européenne de la Santé Animale (Fedesa)
munities v Boehringer Ingelheim Vetmedica GmbH e.a. (1)                         and the Stichting Kwaliteitsgarantie Vleeskalverensector (SKV)
                                                                                to bear the costs which they have incurred both in the
                                                                                proceedings before the Court of First Instance in Case T-152/96
(Appeal — Veterinary medicinal products — Partial annul-                        and in those before the Court of Justice.
ment of Commission Regulation (EC) No 1312/96 in so far
as, in fixing the maximum residue limits for clenbuterol
chlorhydrate, it further specifies the permissible therapeutic            (1) OJ C 102 of 8.4.2000.
indications for that substance — Possibility for the Com-
mission, in fixing the maximum residue limits of veterinary
medicinal products, to take into account Directive 96/22/EC
 concerning the prohibition on the use of certain substances)
                                                                                JUDGMENT OF THE COURT
                         (2002/C 109/10)
                                                                                (Sixth Chamber)
                   (Language of the case: English)
                                                                                27 February 2002
                                                                          in Case C-37/00 (Reference for a preliminary ruling from
                                                                          the Hoge Raad der Nederlanden): Herbert Weber v
In Case C-32/00 P, Commission of the European Communities                                  Universal Ogden Services Ltd (1)
(agent: X. Lewis): Appeal against the judgment of the Court of
First Instance of the European Communities (Second Chamber)               (Brussels Convention — Article 5(1) — Courts for the place
of 1 December 1999 in Joined Cases T-125/96 and T-152/96                  of performance of the contractual obligation — Contract of
Boehringer v Council and Commission [1999] ECR II-3427,                   employment — Place where the employee habitually carries
seeking to have that judgment set aside in part, the other                out his work — Definition — Work performed partly at an
parties to the proceedings being: Boehringer Ingelheim Vetme-             installation positioned over the continental shelf adjacent to
dica GmbH, C.H. Boehringer Sohn, established in Ingelheim                 a Contracting State and partly in the territory of another
am Rheim (Germany) (agents: D. Waelbroeck and D. Fosselard),                                        Contracting State)
Council of the European Union, Fédération européenne de la
Santé animale (Fedesa), established in Brussels (Belgium)                                             (2002/C 109/11)
(agents: A. Vandencasteele and D. Brinckman), Stichting
Kwaliteistsgarantie Vleeskalverensector (SKV), established in
                                                                                (Language of the case: Dutch)
La Haye (Netherlands) (agents: G. van der Wal and L. Parret)
and United Kingdom of Great Britain and Northern Ireland,
the Court, composed of: G.C. Rodrı́guez Iglesias, President,              (Provisional translation; the definitive translation will be published
P. Jann, F. Macken and N. Colneric (Presidents of Chambers),                                   in the European Court Reports)
A. La Pergola (Rapporteur), J.-P. Puissochet, M. Wathelet,
R. Schintgen and V. Skouris, Judges; D. Ruiz-Jarabo Colomer,
Advocate General; R. Grass, Registrar, has given a judgment               In Case C-37/00: Reference to the Court under the Protocol of
on 26 February 2002, in which it:                                         3 June 1971 on the interpretation by the Court of Justice of


title: Case C-193/07: Action brought on 5 April 2007 — Commission of the European Communities v Republic of Poland

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/14

         Action brought on 5 April 2007 — Commission of the European Communities v Republic of Poland
   (Case C-193/07)
   (2007/C 199/25)
   Language of the case: Polish
   Parties

      Applicant: Commission of the European Communities (represented by: D. Recchia and K. Herrmann, acting as Agents)

      Defendant: Republic of Poland
   Form of order sought

               —

               Declare that, by failing to take appropriate measures to avoid deterioration in the habitats and significant disturbance to the species in the SPA Puszcza Augustowska, PLB 200002, in the context of the approval procedures for the bypass around Augustów, a town in the north-east of its territory, the Republic of Poland has failed to fulfil its obligations under Article 6(2) and (7) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (1);

               —

               Declare that, by failing to submit the project for the bypass around Wasilków, a town in the north-east of its territory, to due assessment of the impact of the project on the SPA Puszcza Knyszyńska, PLB 200003, and by approving that project despite its adverse impact on the integrity of the area in question and by starting work on that project, the Republic of Poland has failed to fulfil its obligations under Article 6(3) and (7) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora;

               —

               Declare that, by proposing to carry out an afforestation project as a compensatory measure for the loss of the Puszcza Augustowska area, PLB 200002, over the area which is to be proposed as a site of Community [Importance] in accordance with Directive 92/43/EEC (‘Pojezierze Sejneńskie’, PLH 200007, of a total surface area of 7 456,9 ha), the Republic of Poland has infringed the provisions of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the light of the judgments delivered by the Court in Cases C-117/03 Dragaggi and C-244/05 Bund Naturschutz;

               —

               Declare that, by approving the destruction of the habitat Puszcza Augustowska inside an area which is to be proposed as a Site of Community Importance in accordance with Directive 92/43/EEC (Ostoja Augustowska PLH 200005) in the context of the construction of the bypass around Augustów, a town in the north-east of its territory, the Republic of Poland has infringed the provisions of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the light of the judgments delivered by the Court in the Cases C-117/03 Dragaggi and C-244/05 Bund Naturschutz;

               —

               order the Republic of Poland to pay the costs.

         Pleas in law and main arguments
   The present action concerns incorrect application of Directives 79/409/EEC (2) (Birds) and 92/43/EEC (Habitats). The Habitats Directive aims to create a coherent European ecological network in order to promote the maintenance of or reestablishment to a suitable state of conservation of natural habitats and wild fauna and flora on the territory of the Member States. In order to achieve that objective, provision is made, inter alia, for the classification of special protection areas (‘SPAs’). Article 6(2) of the above directive requires the Member States to take appropriate measures to avoid, by any of their acts, the deterioration of sites and significant disturbance to the species for which sites were classified, while Article 6(3) provides that the Member States are required to submit any plan or project not directly linked or necessary to the management of a site but liable significantly to affect that site to due assessment of its impact on the site having regard to the conservation objectives of that site.
   Poland is in the process of carrying out two road projects to bypass the towns of Augustów and Wasilków inside protected areas within the meaning of the abovementioned directives, in breach of Article 6(2) and (3), in conjunction with Article 7, of the Habitats Directive with regard to two Special Protection Areas (SPAs) and in breach of the system of protection which follows from the case-law in Dragaggi (C-117/03) and Bund Naturschutz (C-244/05) with regard to a potential site of Community importance (SCI). In addition, Poland has proposed a compensatory measure for the ecological losses suffered because of the implementation of the project for a bypass, to be built on a potential Site of Community Important (SCI), which is likely to harm the ecological features of that site, around the town of Augustów.

      With regard to the road project to bypass of the town of Augustów, its route is intended to cross the SPA Puszcza Augustowska and the potential SCI Ostoja Augustowska. The SPA forms the habitat of 41 species of birds listed in Annex I to the Birds Directive, while the site of Ostoja Augustowska contains 21 types of habitat listed in Annex I to the Habitats Directive. Furthermore, the latter site is the habitat of nine animal species and eight plant species listed in Annex II to the Habitats Directive, including a priority species, that is to say the wolf. The site of Ostoja Augustowska meets all the ecological criteria of Annex III of the Habitats Directive for proposal and subsequent classification as an SCI under that directive.
   With regard to the scheme applicable to that project and to its impact on the SPA, it should be noted that its authorisation procedure began before the date of accession of Poland. The Commission takes the view, in accordance with the ruling in Case C-209/04 Commission v Austria, that the provisions of Article 6(3) and (4) of the Habitats Directive do not apply. However, the substantive provisions of that directive, in particular Article 6(2), apply from the time of accession. With regard to that project and its impact on the potential SCI, the Commission takes the view that their legal scheme does not differ from that indicated in the judgments in Dragaggi and Bund Naturschutz, the requirements for protection being identical. Moreover, that scheme applies from the time of accession of Poland to the European Union because it constitutes substantive obligations relating to the objective of the Habitats Directive; if the opposite were the case the result would be that the Member States would not be bound by the objectives of the Directive with regard to projects whose authorisation procedure had begun before the date of accession.
   The project in question damages habitats, disturbs species for which the SPA was classified and does not constitute a measure liable to safeguard the interests of the potential SCI at a national level. The project will cause irreversible harm and will lead to deterioration of the unique and exceptional ecosystem of the valley of the Rospuda river in terms of its impact on birds, habitats and species in need of protection within the meaning of Directives 79/409/EEC and 92/43/EEC. It must be noted that, at the time of the impact assessment of the Augustów bypass project on the Natura 2000 areas, the Polish authorities did not take appropriate account of alternative solutions. By having failed to show the lack of alternative solutions, the Polish authorities cannot rely on an overriding public interest in order to approve the project in question.

      With regard to the road project to bypass of the town of Wasilków, its route is intended to cross the SPA Puszcza Knyszyńska which forms the habitat of 37 species of birds listed in Annex I of the Birds Directive. The authorisation procedure began before the accession of Poland to the European Union, and thus it is a project to which the procedural provisions in Article 6(3) and (4) apply. The impact assessment carried out for that project is defective from a number of points of view and does not constitute due assessment of the impact under Article 6(3) of the Habitats Directive. Furthermore, it must also be noted that the Polish authorities did not submit alternative solutions to the Wasilków bypass to the Commission and did not raise the question of compensatory measures with regard to the area which will be destroyed by that bypass.
   The work has already begun; in particular, trees have already been felled.

      The afforestation project to be carried out in the potential SCI of

         Pojezierze Sejneńskie

      as a compensatory measure for the ecological losses suffered in the areas affected by the Augustów bypass project not only fails to compensate for the ecological losses but also implies an adverse impact on the potential SCI. The site, which contains 15 types of habitat listed in Annex I to the Habitats Directive, meets all the ecological criteria of Annex III for proposal and subsequent classification as an SCI under that directive. The Commission has reliable information that two species included in Annexes II and IV to the abovementioned directive, that is to say the species Pulsatilla patens and the species Thesium ebracteatum, are present in that area. Furthermore, the area forms the habitat of six animal species and six plant species listed in Annex II to the Habitats Directive, including a priority species, that is to say the wolf. Part of the area of that priority habitat (approximately 17 hectares) and the habitats of two plant species listed in Annex II will be deforested as part of the measures envisaged by the project investor to compensate for the damage to the habitats caused by the construction of the Augustów bypass.
   The Polish authorities have confirmed that they wish to complete this afforestation project by the end of next June at the latest. The Commission requests the Court to order that the work be suspended or that it not begin until delivery of the judgment in the main proceedings.

      (1)  OJ L 206, 22.7.1992, p. 7.

      (2)  Directive 79/409/EEC on the conservation of wild birds (OJ L 103, 25.4.1979, p. 1).


title: ORDER OF THE COURT of 7 April 1995 in Case C-167/94 (reference for a preliminary ruling from the Juzgado de Instrucción de Sueca, Valencia (Spain)): criminal proceedings against Juan Carlos Grau Gomis and Others (Reference for a preliminary ruling - Lack of jurisdiction - Inadmissiblity)

text:
24 . 6 . 95             EN                      Official Journal of the European Communities                                   No C 159/5
                  ORDER OF THE COURT                                        of the European Communities, represented by Blanca
                          of 7 April 1995                                   Rodriguez Galindo, of its Legal Service, acting as Agent,
                                                                            with an address for service in Luxembourg at the office of
in Case C- 1 6 7/94 ( reference for a preliminary ruling from               Georgios Kremlis, of the Legal Service, Wagner Centre,
the Juzgado de Instrucciôn de Sueca, Valencia ( Spain )):                   Kirchberg.
criminal proceedings against Juan Carlos Grau Gomis and
                               Others (*)
(Reference for a preliminaryruling — Lack ofjurisdiction —                  The applicant claims that the Court should :
                           Inadmissiblity)
                            ( 95/C 159/09 )
                                                                            1 . declare that, by failing to adopt the laws, regulations and
                                                                                administrative provisions needed to give effect to:
                (Language of the case: Spanisb)
                                                                                — Directive 89/391/EEC of 12 June 1989 on the
(Provisional translation; the definitive translation will be                        introduction        of   measures     to     encourage
          published in the European Court Reports)                                  improvements in the safety and health of workers at
                                                                                work (*),
In Case C-167/94 : reference to the Court under Article 177
of the EEC Treaty from the Juzgado de Instrucciôn ( Local                       — Directive     89/654/EEC      of 30    November      1989
Criminal Court), Sueca, Valencia ( Spain ) for a preliminary                        concerning the minimum safety and health
ruling in the criminal proceedings pending before that court                        requirements for the workplace ( first individual
against Juan Carlos Grau Gomis and Others — on the                                  Directive within the meaning of Article 16 ( 1 ) of
interpretation of Articles 2, 3 ( a ), ( b ), ( f) and ( h ), 3a ( 1 ), 8b,         Directive 89/391 /EEC ) (2 ),
9 , 35 , 37 ( 1 ), 86 and 90 of the EC Treaty, on the
interpretation of Articles 2 , 9 , 35 and 51 of the Act
concerning the Conditions of Accession of the Kingdom of                        — Directive     89/655/EEC      of 30    November      1989
Spain and the Republic of Portugal and the Adjustments of                           concerning the minimum safety and health
the Treaties of 12 June 1985 ( 2 ) and on the interpretation of                     requirements for the use of work equipment by
Article B of the Treaty on European Union — the Court,                              workers at work ( second individual Directive within
composed of G. C. Rodriguez Iglesias, President, F. A.                              the meaning of Article 16 ( 1 ) of Directive
Schockweiler, P. J. G. Kapteyn, C. Gulmann and P. Jann                              89/391 /EEC ) ( 2 ),
( Presidents of Chambers ), G. F. Mancini, C. N. Kakouris,
J. C. Moitinho de Almeida, J. L. Murray, D. A. O. Edward,
J. -P. Puissochet ( Rapporteur ), G. Hirsch and H.                              — Directive 89/656/EEC of 30 November 1989 on the
Ragnemalm, Judges; G. Cosmas, Advocate-General; R.                                  minimum safety and health requirements for the use
Grass, Registrar, made an order on 7 April 1995 , the                               by workers of personal protective equipment at the
operative part of which is as follows :                                             workplace ( third individual Directive within the
                                                                                meaning of Article 16 ( 1 ) of Directive
                                                                                89/391 /EEC ) (2 ),
The Court has no jurisdiction to reply to a question on
Article B of the Treaty on European Union asked by the
Juzgado de Instrucciôn de Sueca, Valencia (Spain), in a                         — Directive 90/269/EEC of 29 May 1990 on the
request for a preliminary ruling made by order of 18 May                            minimum safety and health requirements for the
1 994. As to the remainder, the request from the Juzgado de                         manual handling of loads when there is a risk
Instrucciôn is inadmissible.                                                        particularly of back injury to workers ( fourth
                                                                                individual Directive within the meaning of
                                                                                Article 16 ( 1 ) of Directive 89/391 /EEC ) ( 3 ),
(') OJ No C 218 , 6 . 8 . 1994 .
( 2 ) OJ No L 302 , 15 . 11 . 1985 , p . 23 .
                                                                                — Directive 90/270/EEC of 29 May 1990 on the
                                                                                minimum safety and health requirements for work
                                                                                with display screen equipment ( fifth individual
                                                                                Directive within the meaning of Article 16 ( 1 ) of
                                                                                Directive 89/391 /EEC ) ( 3 ),
Action brought on 16 March 1995 by the Commission of
                                                                                — Directive 90/394/EEC of 28 June 1990 on the
the European Communities against the Kingdom of
                                                                                protection of workers from the risks related to
                                 Spain
                                                                                exposure to carcinogens at work ( sixth individual
                          ( Case C-79/95 )                                          Directive within the meaning of Article 16 ( 1 ) ' of
                            ( 95/C 159/10 )                                         Directive 89/391 /EEC ) (4 ),
An action against the Kingdom of Spain was brought before                       the Kingdom of Spain has failed to fulfil its obligations
the Court of Justice on 16 March 1 995 by the Commission                        under those Directives;


24 . 8 . 96              EN                   Official Journal of the European Communities                               No C 247/ 11
3 . If the answer to the preceding question is in the                          Removal from the register of Case C-306/95 ( )
      affirmative, the Court of Justice is asked to rule whether                                  ( 96/C 247/21 )
      the Community legal order is compatible with a national
      provision which provides that a prescription period
      should start to run ( to the detriment of a citizen of a
      Member State relying on the provisions of a directive in           By order of 29 April 1996 , the President of the Court of
      order to obtain repayment of a charge which was unduly             Justice of the European Communities ordered the removal
      collected ) before that directive was correctly transposed         from the register of Case C-306/95 : Commission of the
      into national law .                                                European Communities v. United Kingdom of Great Britain
                                                                         and Northern Ireland .
(!) 1993 | ECR 1-1915 .
( 2 ) O } No L 249 , 3 . 10 . 1969 , p . 25 .
                                                                         (') OJ No C 299 , 11 . 11 . 1995 .
                                                        COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                  JUDGMENT OF THE COURT OF FIRST INSTANCE
                            of 5 June 1996                                                       of 6 June 1996
in Case T-398/94 : Kahn Scheepvaart BV v. Commission of                  in Case T-262/94 : Jean Baiwir v. Commission of the
                   the European Communities ( 1 )                                          European Communities ( ' )
(State aid — Shipbuilding — General aid scheme — Action                  (Officials — Plea of illegality — Consistency between the
                 for annulment — Admissibility)                          complaint and the application — New method of assessing
                             ( 96/C 247/22 )                             careerprofiles for Categories B, C and D at the Commission
                                                                         — List of officials considered most deserving ofpromotion
                                                                         — Articles 5 (3) and 45 of the StaffRegulations — Principle
                                                                         of non-discrimination — Manifest errors of assessment of
                  (Language of the case: English)                                    fact and law — Action for damages)
                                                                                ( 96 /C 247/23 )
In Case T-398/94 : Kahn Scheepvaart BV, established in
Rotterdam ( Netherlands ), represented by Thomas Jestaedt,
Rechtsanwalt, Düsseldorf, and Tom R. Ottervanger, of the
Rotterdam Bar, with an address for service in Luxembourg                                (Language of the case: French)
at the Chambers of Carlos Zeyen , 67 Rue Ermesinde, v.
Commission of the European Communities ( Agents: Paul
Nemitz and Jean-Paul Keppenne ) — application for
annulment of the Commission 's decision of 25 October
 1994 authorizing for 1994 a German aid scheme for
shipbuilding — the Court of First Instance ( Third Chamber,              In Case T-262/94 : Jean Baiwir, an official of the
Extended Composition ), composed of C. P. Briët, President,              Commission of the European Communities , residing at
B. Vesterdorf, P. Lindh, A. Potocki and J. D. Cooke, Judges;             Court-Saint-Etienne ( Belgium ), represented by Georges
J. Palacio Gonzalez, Administrator, for the Registrar, has               Vandersanden , of the Brussels Bar, with an address for
given a judgment on 5 June 1996 , in which it:                           service in Luxembourg at the offices of Fiduciaire Myson
                                                                         Sari, 1 Rue Glesener v. Commission of the European
                                                                         Communities ( Agents : first, Joseph Griesmar, then Julian
 1 . dismisses the application as inadmissible;                          Currall , both assisted by Denis Waelbroeck ) — application
                                                                         for annulment of the list of officials considered most
                                                                         deserving of promotion to Grade B 4 under the 1993
2 . orders the applicant to pay the costs.                               promotion procedure in so far as it does not contain the
                                                                         applicant's name, reinstatement of the applicant in his
                                                                         career as an official in Grade B 4/2 with effect from
(') OJ No C 400 , 31 . 12 . 1994 .
                                                                          1 January 1993 and compensation for the non-material
                                                                         damage suffered — the Court of First Instance ( Fourth
                                                                         Chamber ), composed of K. Lenaerts, President, P. Lindh
                                                                         and J. D. Cooke , Judges; B. Pastor, Principal Administrator,
                                                                         for the Registrar, gave a judgment on 6 June 1996 , the
                                                                         operative part of which is as follows:


title: Case C-437/07: Judgment of the Court (Third Chamber) of 13 November 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Public procurement — Design and construction of a municipal tramway — Public works contract — Award by means of a procedure for the award of a public works concession — Infringement of Directive 93/37)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/8

         Judgment of the Court (Third Chamber) of 13 November 2008 — Commission of the European Communities v Italian Republic
   (Case C-437/07) (1)

   (Failure of a Member State to fulfil obligations - Public procurement - Design and construction of a municipal tramway - Public works contract - Award by means of a procedure for the award of a public works concession - Infringement of Directive 93/37)
   (2009/C 6/13)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: C. Zadra and D. Kukovec, Agents)

      Defendant: Italian Republic (represented by: I. Braguglia and G. Fiengo, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 43 EC and 49 EC and Articles 7 and 11 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) — Infringement of the principles of transparency and non-discrimination — Public works carried out by means of ‘project financing’
   Operative part of the judgment

               1.

               In so far as the Comune di l'Aquila (Municipality of Aquila) awarded a public works contract concerning the design and construction of a rubber tramway for public transport in that town by means of a procedure different to those laid down for the award of public works contracts by Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, the Italian Republic has failed to fulfil its obligations under that Directive;

               2.

               The Italian Republic is to pay the costs.

      (1)  OJ C 297, 8.12.2007.


title: Case C-353/15: Order of the Court (Seventh Chamber) of 24 May 2016 (Request for a preliminary ruling from the Corte di Appello di Bari — Italy) — Leonmobili Srl, Gennaro Leone v Homag Holzbearbeitungssysteme GmbH and Others (Request for a preliminary ruling — Regulation (EC) No 1346/2000 — Article 3(1) and (2) — Insolvency proceedings — International jurisdiction — Centre of a debtor’s main interests — Transfer of a company’s registered office to another Member State — No establishment in the Member State of origin — Presumption that the centre of main interests is the place of the new registered office — Proof to the contrary)

text:
               5.9.2016

               EN

               Official Journal of the European Union

               C 326/4

         Order of the Court (Seventh Chamber) of 24 May 2016 (Request for a preliminary ruling from the Corte di Appello di Bari — Italy) — Leonmobili Srl, Gennaro Leone v Homag Holzbearbeitungssysteme GmbH and Others
   (Case C-353/15) (1)

   ((Request for a preliminary ruling - Regulation (EC) No 1346/2000 - Article 3(1) and (2) - Insolvency proceedings - International jurisdiction - Centre of a debtor’s main interests - Transfer of a company’s registered office to another Member State - No establishment in the Member State of origin - Presumption that the centre of main interests is the place of the new registered office - Proof to the contrary))
   (2016/C 326/05)
   Language of the case: Italian

      Referring court

   Corte di Appello di Bari

      Parties to the main proceedings

      Applicants: Leonmobili Srl, Gennaro Leone

      Defendants: Homag Holzbearbeitungssysteme GmbH, Curatela del Fallimento Leonmobili Srl, ICO Srl, Arturo Salice SpA, Grafiche Ricciarelli di Ricciarelli Bernardino, Deutsche Bank SpA, Fida Srl, Elica SpA

      Operative part of the order

   Article 3(1) of Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that, where a company’s registered office has been transferred from one Member State to another Member State, the court seised, subsequent to that transfer, of an application to open insolvency proceedings in the Member State of origin may disregard the presumption that that company’s centre of main interests is situated at the place of the new registered office and find that the centre of those interests remained, as at the date on which that application was brought before it, in that Member State of origin, although the company no longer had an establishment there, only if it is apparent from other objective evidence, ascertainable by third parties, that, nonetheless, the company’s actual centre of management and supervision and of the management of its interests was still located there at that date.

      (1)  OJ C 302, 14.9.2015.


title: Case F-53/15: Action brought on 8 April 2015 — ZZ v Court of Justice

text:
               8.6.2015

               EN

               Official Journal of the European Union

               C 190/39

         Action brought on 8 April 2015 — ZZ v Court of Justice
   (Case F-53/15)
   (2015/C 190/47)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Orlandi, T. Martin, lawyers)

      Defendant: Court of Justice of the European Union

      Subject-matter and description of the proceedings

   Annulment of the AECE’s decision establishing the applicant’s rights to reimbursement of the annual travel expenses from the year 2014 onwards, under Article 8 of Annex VII of the Staff Regulations, as amended by Regulation No 1023/2013 of the Parliament and of the Council of 22 October 2013, amending the Staff Regulations and the CEOS.

      Form of order sought

               —

               Declare illegal and inapplicable Article 8 of Annex VII of the Staff Regulations;

               —

               annul the decision fixing the amount of the reimbursement of the annual travel expenses granted to the applicant for the year 2014;

               —

               order the Court of Justice to pay the costs.


title: Case C-51/99: Reference for a preliminary ruling from the Tribunale Amministrativo per la Basilicata (Administrative Tribunal of the Basilicata region) by order of that court of 22 October 1998, in the case of Massimo Triumbari v. Questore della provincia di Potenza (Chief of Police of the province of Potenza) and the Minister of Finance and the Minister of the Interior

text:
10.4.1999              EN                   Official Journal of the European Communities                                 C 100/15
Chambers of ArseÁne Kronshagen, 22 Rue Marie-AdeÂlaïde,                the case of Jean-Marie Podesta v. Caisse de Retraite par
against the order made on 8 December 1998 by the                       reÂpartition des IngeÂnieurs Cadres & AssimileÂs (CRICA),
Fourth Chamber (Extended Composition) of the Court of                  Association GeÂneÂrale des Institutions de Retraite des
First Instance of the European Communities in Case T-38/               Cadres (AGIRC), Union Interprofessionnelle de Retraite
98 Associazione Nazionale Bieticoltori (ANB), Francesco                de l'Industrie et du Commerce (UIRIC), Caisse GeÂneÂrale
Coccia and Vincenzo Di Giovine v. Council of the                       Interprofessionnelle de Retraite pour SalarieÂs (CGIS),
European Union.                                                        Association des ReÂgimes de Retraite CompleÂmentaire
                                                                       (ARRCO) on the following question:
The appellants claim that the Court should set aside the               Is Article 119 of the Treaty of Rome, which asserts the
Court of First Instance's order of 8 December 1998 in                  principle of equal pay for men and women, applicable to
Case T-39/98 by declaring the application to be admissible             the supplementary retirement pension schemes of AGIR
and refer the case back to the Court of First Instance for a           and ARRCO and does it prohibit them from
decision on the substance.                                             discriminating between men and women in respect of the
                                                                       age at which they are entitled to a survivor's pension
                                                                       following the death of their spouse?
Pleas in law and main arguments adduced in support
The legal effects of the contested regulation (1) are direct
inasmuch as its operative provision does not require any
subsequent measure of implementation by a Community
institution or a national authority.                                   Reference for a preliminary ruling from the Tribunale
                                                                       Amministrativo per la Basilicata (Administrative Tribunal
                                                                       of the Basilicata region) by order of that court of
That provision adversely affects the appellants                        22 October 1998, in the case of Massimo Triumbari v.
individually' and in a manner which distinguishes them                Questore della provincia di Potenza (Chief of Police of the
from any other producer.                                               province of Potenza) and the Minister of Finance and the
                                                                                Minister of the Interior
                                                                                (Case C-51/99)
It follows      that   the   application   must     be  declared                              (1999/C 100/28)
admissible.
(1) Council Regulation (EC) No 2613/97 of 15 December 1997             Reference has been made to the Court of Justice of the
    authorising Portugal to grand aid to sugar beet producers and      European Communities by order of 22 October 1998,
    abolishing all State aid from the 2001/2002 marketing year         which was received at the Court Registry on 16 February
    (OJ L 353, 24.12.1997, p. 3).                                      1999, for a preliminary ruling in the case of Massimo
                                                                       Triumbari v. Questore della provincia di Potenza and the
                                                                       Minister of Finance and the Minister of the Interior on the
                                                                       following questions:
                                                                       Do the Treaty provisions on the provision of services
                                                                       preclude rules such as the Italian betting legislation in
                                                                       view of the social policy concerns and of the concern to
Reference for a preliminary ruling from the Tribunal de                prevent fraud that justify it?
Grande Instance (First Chamber), Paris, by judgment of
that court of 12 January 1999 in the case of Jean-Marie
Podesta v. Caisse de Retraite par reÂpartition des IngeÂnieurs
Cadres & AssimileÂs (CRICA), Association GeÂneÂrale des
Institutions de Retraite des Cadres (AGIRC), Union
Interprofessionnelle de Retraite de l'Industrie et du
Commerce (UIRIC), Caisse GeÂneÂrale Interprofessionnelle               References for preliminary rulings from the Cour du
de Retraite pour SalarieÂs (CGIS), Association des ReÂgimes            Travail de LieÁge (13th Chamber) by judgments of that
            de Retraite CompleÂmentaire (ARRCO)                        court of 2 February 1999 in the cases of Office National
                                                                       des Pensions v. Gioconda Camarotto and Office National
                         (Case C-50/99)
                                                                                des Pensions v. Giuseppina Vignone
                        (1999/C 100/27)                                                (Case C-52/99 and C-53/99)
                                                                                (1999/C 100/29)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Tribunal de                  Reference has been made to the Court of Justice of the
Grande Instance (Regional Court) (First Chamber), Paris,               European Communities by judgments of the 13th
of 12 January 1999, which was received at the Court                    Chamber of the Cour du Travail (Higher Labour Court),
Registry on 16 February 1999, for a preliminary ruling in              LieÁge, of 2 February 1999, which were received at the


title: Case T-570/13: Judgment of the General Court of 28 January 2016 — Agriconsulting Europe v Commission (Public service contracts — Tendering procedure — Operational technical assistance to set up and manage a network facility for the implementation of the European Innovation Partnership ‘Agricultural Productivity and Sustainability’ — Rejection of a tenderer’s bid — Award of the contract to another tenderer — Abnormally low tender — Non-contractual liability)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/31

         Judgment of the General Court of 28 January 2016 — Agriconsulting Europe v Commission
   (Case T-570/13) (1)

   ((Public service contracts - Tendering procedure - Operational technical assistance to set up and manage a network facility for the implementation of the European Innovation Partnership ‘Agricultural Productivity and Sustainability’ - Rejection of a tenderer’s bid - Award of the contract to another tenderer - Abnormally low tender - Non-contractual liability))
   (2016/C 098/40)
   Language of the case: Italian

      Parties

      Applicant: Agriconsulting Europe SA (Brussels, Belgium) (represented by: R. Sciaudone, lawyer)

      Defendant: European Commission (represented by: L. Capelletti and L. Di Paolo, acting as Agents)

      Re:

   Application for compensation for the harm suffered as a result of alleged irregularities on the part of the Commission in the tender procedure ‘Establishing a network facility for the implementation of the European Innovation Partnership (EIP) “Agricultural Productivity and Sustainability”’ (AGRI-2012-EIP-01).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders Agriconsulting Europe SA to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 367, 14.12.2013.


title: Case C-497/14: Request for a preliminary ruling from the Tribunale ordinario di Torino (Italy) lodged on 7 November 2014  — Criminal proceedings against Stefano Burzio

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/8

         Request for a preliminary ruling from the Tribunale ordinario di Torino (Italy) lodged on 7 November 2014 — Criminal proceedings against Stefano Burzio
   (Case C-497/14)
   (2015/C 034/08)
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Torino

      Party to the main proceedings

   Stefano Burzio

      Question referred

   On a proper construction of Article 4 of [Protocol No 7 to the European Convention on the Protection of Human Rights and Fundamental Freedoms] and Article 50 [of the Charter of Fundamental Rights of the European Union], is the provision made under Article 10a of Legislative Decree No 74 [of 10 March 2000] consistent with Community law, in so far as it permits the criminal liability of a person on whom an irreversible administrative penalty under Article 13(1) of Legislative Decree No 471 [of 18 December 1997] has already been imposed (through the application of a surtax) to be assessed in respect of the same act or omission (non-payment of withholding tax)?


title: Reference for a preliminary ruling from the Landesgericht Linz, by order of that court of 26 March 1997, in the case of Walter Rechberger and Others v. Republic of Austria (Case C-140/97)

text:
No C 181 /4           EN                    Official Journal of the European Communities                                          14 . 6 . 97
     States and have as their object and effect the                    Republic having brought into force the necessary
     prevention, restriction or distortion of competition              provisions in order to comply with the Directive referred
     within the common market ?                                        to in the Commission's application .
                                                                       (') OJ No L 45 , 17 . 2 . 1994 , p . 1 .
4 . What effects any finding of incompatibility in                     ( 2 ) OJ No L 297, 13 . 10 . 1992 , p . 16 .
     accordance with Question 3 may have on the
     corresponding clauses of the ' all-embracing' guarantee
     agreements and on the agreements themselves
     concluded ' downstream' by individual banks, since, as
     a group, the banks belonging to the ABI may be
     regarded, within the meaning and for the purposes of
     Article 86 of the Treaty, as holding a joint dominant             Reference for a preliminary ruling from the Landesgericht
     position in the national credit market, whose specific            Linz, by order of that court of 26 March 1997, in the case
     application of the rules in question is regarded as an                 of Walter Rechberger and Others v. Republic of Austria
     abuse ?                                                                                ( Case C-140/97 )
                                                                                ( 97/C 181 /08 )
(') Italian Banking Association .
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by an order of the Landesgericht
                                                                       ( Regional Court) Linz of 26 March 1997, which was
                                                                       received at the Court Registry on 15 April 1997, for a
                                                                       preliminary ruling in the case of Walter Rechberger and
Action brought on 14 April 1997 by the Commission of                   Others v. Republic of Austria on the following questions :
   the European Communities against the Italian Republic
                         ( Case C-139/97 )                              1 . Does the protective purpose of Article 7 of Council
                                                                              Directive 90/314/EEC (') of 13 June 1990 on package
                           ( 97/C 181 /07 )                                   travel , package holidays and package tours
                                                                               ( hereinafter 'the Directive ') extend also to trips for
                                                                              which, on the basis of the contract, the main
An action against the Italian Republic was brought before                     contracting party must pay:
the Court of Justice of the European Communities on
14 April 1997 by the Commission of the European                                ( a ) as a single traveller, in addition to the airport
Communities, represented by Paolo Stancanelli , of its                               security charge ( departure tax ), only a single room
Legal Service, acting as Agent, assisted by Massimo                                  supplement, or
Merola, of the Rome Bar, with an address for service in
Luxembourg at the office of Carlos Gomez de la Cruz, of                        ( b ) where accompanied by at least one additional
its Legal Service, Wagner Centre, Kirchberg .                                        passenger paying the full price, only the airport
                                                                                security charge ( departure tax ),
The applicant claims that the Court should :
                                                                               while he does not have to pay anything in respect of
                                                                               the flight and accommodation in a double room ?
— find and declare that, by failing to adopt the laws,
     regulations or administrative provisions necessary to             2 . Do such trips also fall within the scope of the
     comply with Commission Directive 94/2/EC (') of                           Directive where they are offered by the highest
     21 January 1994 implementing Council 92/75/EEC ( 2 )                      circulation daily paper of a Member State, exclusively
     with regard to energy labelling of household electric                     for its subscribers, as a ' gift' in an anti-competitive
     freezers and their combinations, the Italian Republic                     advertising campaign ?
     has failed to fulfil its obligations under that Directive,
                                                                               If Questions 1 and 2 are to be answered in the
                                                                               affirmative :
— order the Italian Republic to pay the costs .
                                                                        3 . Has Article 7 of the Directive been transposed within
Pleas in law and main arguments adduced in support:                            the period fixed, where the national rules announced
                                                                               on 15 November 1994 were to be applied only to
                                                                               package holidays booked after 1 January 1995 with a
Under Article 189 of the EC Treaty, according to which a                       fixed departure date of 1 May 1995 at the earliest,
directive is to be binding, as to the result to be achieved,                   and indeed
upon each Member State to which it is addressed,
Member States are required to observe the time-limits laid                     ( a ) in view of the fact that Austria was part of the
down in directives for their transposition. That time-limit                          European Economic Area from 1 January 1994
expired on 31 December 1994 without the Italian                                      and
 ---pagebreak--- 14 . 6 . 97              EN                   Official Journal of the European Communities                                     No C 181 /5
     ( b) in view of Austria's accession to the European                 15 April 1997 by the Commission of the European
           Union on 1 January 1995 ?                                     Communities, represented by Paolo Stancanelli, of its
                                                                         Legal Service, assisted by Claudio Tesauro, of the Naples
                                                                         Bar, acting as Agents, with an address for service in
     If Question 3 is to be answered in the negative :                   Luxembourg at the office of Carlos Gomez de la Cruz,
                                                                         Wagner Centre, Kirchberg.
4. Does the failure to transpose merely Article 7 of the
     Directive within the period fixed in itself constitute a
     sufficiently serious breach of Community law and give               The applicant claims that the Court should:
     rise to a right of reparation on the part of the persons
     injured where the Member State has adopted relevant
                                                                         — declare that, by failing to adopt the provisions
     measures for the transposition of all other provisions                     necessary to comply with Commission Directive
     of the Directive within that period ?                                      94/1 /EC ( 1 ) of 6 January 1994 adapting some
                                                                                technicalities of Council Directive 75/324/EEC ( 2 ) on
5 . Must Article 7 of the Directive be interpreted as                           the approximation of the laws of the Member States
     meaning that its objectives are not achieved where                         relating to aerosol dispensers, the Italian Republic has
     national rules :                                                           failed to fulfil its obligations under that Directive,
     ( a ) require, for the purpose of covering the risk, only           — order the Italian Republic to pay the costs.
           a contract of insurance or a bank guarantee for a
           sum insured ( insurance cover) of at least 5 % of
           turnover from an organizer's activity as organizer            Pleas in law and main arguments adduced in support:
           in the corresponding quarter of the previous
           calendar year,
                                                                         Under Article 189 of the EC Treaty, according to which a
     ( b ) require the organizer, in the first year of his               directive is to be binding, as to the result to be achieved,
           activity, to take his estimated turnover from his             upon each Member State to which it is addressed,
           intended activity as organizer as the basis for               Member States are required to observe the time-limits laid
           determining the sum insured ( insurance cover ),              down in directives for their transposition . That time-limit
                                                                         expired on 1 October 1994 without the Italian Republic
     ( c ) do not thereby take into consideration increases in           having brought into force the necessary provisions in
           the organizer's turnover during the current year,             order to comply with the Directive referred to in the
           and                                                           Commission 's application .
     ( d ) do not provide for any duty on the Member State               (') OJNoL 23 , 28 . 1 . 1994, p . 28 .
                                                                         ( 2 ) OJ No L 147, 9 . 6 . 1975 , p . 40 .
           to monitor the security required ?
6.   Is there a direct causal link between a failure to
     transpose Article 7 of the Directive on time or
     completely and a loss on the part of the consumer
     which renders the Member State liable to refund the
     unsecured payments in full even where the Member                    Action brought on 15 April 1997 by the Commission of
     State proves that unlawful acts on the part of the                       the European Communities against the Italian Republic
     organizer (a third party ) or a wholly extraordinary or
     unforeseeable      increase   in   the  risk  are  the  cause                                   ( Case C-142/97
     ( essential contributory cause ) of the loss ?                                                    ( 97/C 181 / 10 )
(') OJ No L 158 , 1990, p . 59 .
                                                                         An action against the Italian Republic was brought before
                                                                         the Court of Justice of the European Communities on
                                                                         15 April 1997 by the Commission of the European
                                                                         Communities, represented by Gotz zur Hausen, Legal
                                                                         Adviser, Paolo Stancanelli, of its Legal Service, assisted by
                                                                         Claudio Tesauro, of the Naples Bar, acting as Agents, with
Action brought on 15 April 1997 by the Commission of                     an address for service in Luxembourg at the office of
   the European Communities against the Italian Republic                 Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.
                          ( Case C-141 /97
                            ( 97/C 181 /09 )                             The applicant claims that the Court should :
An action against the Italian Republic was brought before                — declare that, by failing to adopt the laws, regulations
the Court of Justice of the European Communities on                             or administrative provisions necessary to comply with


title: Judgment of the Court (Fourth Chamber) of 28 April 2005 in Case C-410/03: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 1999/95/EC — Seafarers' hours of work on board ships — Failure to transpose within the prescribed period)

text:
               9.7.2005

               EN

               Official Journal of the European Union

               C 171/2

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 28 April 2005
   in Case C-410/03: Commission of the European Communities v Italian Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 1999/95/EC - Seafarers' hours of work on board ships - Failure to transpose within the prescribed period)
   (2005/C 171/04)
   Language of the case: Italian
   In Case C-410/03, Commission of the European Communities (Agents: K. Banks and K. Simonsson) v Italian Republic (Agent: I.M. Braguglia, assisted by A. Cingolo) — action under Article 226 EC for failure to fulfil obligations, brought on 1 October 2003 — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, N. Colneric (Rapporteur) and J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 28 April 2005, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Articles 3 to 7, 8(2) and 9 of Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of seafarers' hours of work on board ships calling at Community ports, the Italian Republic has failed to fulfil its obligations under that directive;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 304 of 13.12.2003.


title: Case T-485/12: Action brought on 9 November 2012 — Grupo Bimbo v OHIM (SANISSIMO)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/54

         Action brought on 9 November 2012 — Grupo Bimbo v OHIM (SANISSIMO)
   (Case T-485/12)
   2013/C 26/109
   Language of the case: Spanish

      Parties

      Applicant: Grupo Bimbo, SAB de CV (Mexico, Mexico) (represented by N. Fernández Fernández-Pacheco, lawyer)

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

      Form of order sought

   The applicant claims that the General Court should find the present application and the accompanying documents to be duly lodged and admissible, take note that an action has been brought against the Decision of 29 August 2012 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) in Case R 1218/2011-2 and, following the appropriate procedural steps, give judgment annulling the abovementioned decision and expressly order the Office to pay the costs and, consequently, register Community trade mark application No 9.274.119 SANISSIMO.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘SANISSIMO’ for goods in Classes 29 and 30 — Community trade mark application No 9 274 119

      Decision of the Examiner: rejection of the application

      Decision of the Board of Appeal: dismissal of the appeal

      Pleas in law: infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 and of Article 7(3) of that regulation.


title: Case C-473/09 P: Appeal brought on 26 November 2009 by Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava — Diputación Foral de Álava and Comunidad Autónoma del País Vasco — Gobierno Vasco and Others v Commission of the European Communities

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/14

         Appeal brought on 26 November 2009 by Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava — Diputación Foral de Álava and Comunidad Autónoma del País Vasco — Gobierno Vasco and Others v Commission of the European Communities
   (Case C-473/09 P)
   2010/C 37/15
   Language of the case: Spanish

      Parties

      Appellant: Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

      Other parties to the proceedings: Comunidad Autónoma del País Vasco — Goberierno Vasco, Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, Territorio Histórico de Álava — Diputación Foral de Álava, Confederación Empresarial Vasca (Confebask), Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámera Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, Commission of the European Communities and Comunidad Autónoma de la Rioja

      Form of order sought

               —

               declare the present appeal to be admissible and well founded;

               —

               set aside the judgment under appeal;

               —

               grant the form of order sought at first instance, that is the alternative claim to annul Article 3 of the contested decision

               —

               alternatively, refer the case back to the Court of First Instance and, order it to examine the evidence rejected;

               —

               order the Commission to pay the costs of the proceedings at first instance and on appeal and the intervener, the Comunidad Autónoma de la Rioja, to pay the costs of the proceedings at first instance.

      Pleas in law and main arguments

               1.

               The CFI erred in law by holding, in this case, that there are no exceptional circumstances which give rise to a legitimate expectation that the tax measure at issue is lawful, so as to preclude an order to recover the aid in accordance with Article 14(1) of Regulation No 659/1999 (1) which relates to the principle of the protection of legitimate expectations. The CFI distorted the issues in the case and infringed the rule that the parties should be heard. It also misinterpreted the case-law concerning the duty to give reasons for a decision. The Court of First Instance erred in law by failing to comply with the procedural rules relating to the assessment of evidence by disregarding the substantive content of documents submitted for the purposes of the written procedure.
               Neither the formal difference between the tax measure at issue and the measure which is the subject of Decision 93/337 (2), nor the fact that the Commission could have justified the selectivity criterion on information other than that which is explicitly mentioned in Decision 93/337, nor the finding of incompatibility in Decision 93/337, constitute sufficient reasons in law for the CFI not to determine whether there existed an exceptional circumstance that by itself or in combination with other circumstances in this case could preclude the Commission from ordering the recovery of the aid to which the contested decision relates.
               By holding that the measures at issue in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 are not analogous to the tax measure at issue for technical tax reasons and the because of amount of the subsidy, the CFI has distorted the issues between the parties, has disregarded the rule that the parties should be heard and has clearly misinterpreted the case-law specifically relating to the duty to state reasons.
               The CFI erred in law by holding that the Commission's attitude with respect to the tax exemption and/or the 1993 tax credit — which, as is clear from the from the case file, has not been assessed by the CFI, contrary to the Rules of Procedure — does not constitute an exceptional circumstance which could have justified some kind of legitimate expectation that the tax measure was lawful which would have precluded the recovery of the aid under Article 14(1) of Regulation on the ground that it would be contrary to the principle of the protection of legitimate expectations.

               2.

               The CFI erred in law by failing to comply with Article 14(1) of Regulation No 659/1999 with respect to the principle of proportionality that precludes the recovery of investment aid which does not exceed the limit for regional aid.
               The CFI has breached the general principle of proportionality by not finding that the Commission breached that principle by demanding the recovery of all the amounts granted in accordance with the tax credit of 45 % of the investments rather than only the amounts which exceeded the maximum limit for regional aid in the Basque Country.

               3.

               The CFI erred in law by failing to comply with the procedural rules regarding the assessment of evidence and by deciding not to require disclosure of the evidence requested by the applicant with respect to certain Commission documents that, in the light of the arguments used by the CFI in order to dismiss the applicant's application, are essential to the defence of its interests. The CFI also infringed the right to a fair trial, the principle of equality of arms and the rights of defence.
               The CFI, by failing to order the disclosure of the evidence requested, has infringed the fundamental right to a fair trial to which the applicant is entitled, by refusing to assess evidence which is essential to the applicant's case thereby infringing its rights of defence, since its application was dismissed on the ground that it had not proved what it specifically sought to establish with the evidence which was not produced: if not the Commission's final position with respect to the complaint of 1994 against the tax rules of 1993 (including a tax credit), which are measures which are essentially the same as the contested measure, which rejected that complaint, then at least the attitude of the Commission which would constitute an exceptional circumstance in so far as its conduct gave rise to a legitimate expectation that the 1993 tax measures were lawful, which led to the adoption of the contested tax measure.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

      (2)  Commission Decision of 10 May 1993 concerning a scheme of tax concessions for investment in the Basque country (OJ 1993 L 134, p. 25).


title: Case C-519/10: Order of the Court (Seventh Chamber) of 18 November 2011 (reference for a preliminary ruling from the Tribunale di Bari — Italy) — Giovanni Colapietro v Ispettorato Centrale Repressioni Frodi (Reference for a preliminary ruling — Articles 92(1), 103(1) and the second subparagraph of 104(3) of the Rules of Procedure — Wine sector — Regulation (EEC) No 822/87 and Regulation (EC) No 343/94 — Answer to the question admitting of no reasonable doubt — Manifest inadmissibility)

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/14

         Order of the Court (Seventh Chamber) of 18 November 2011 (reference for a preliminary ruling from the Tribunale di Bari — Italy) — Giovanni Colapietro v Ispettorato Centrale Repressioni Frodi
   (Case C-519/10) (1)

   (Reference for a preliminary ruling - Articles 92(1), 103(1) and the second subparagraph of 104(3) of the Rules of Procedure - Wine sector - Regulation (EEC) No 822/87 and Regulation (EC) No 343/94 - Answer to the question admitting of no reasonable doubt - Manifest inadmissibility)
   2012/C 49/22
   Language of the case: Italian

      Referring court

   Tribunale di Bari

      Parties to the main proceedings

      Applicant: Giovanni Colapietro

      Defendant: Ispettorato Centrale Repressioni Frodi

      Re:

   Reference for a preliminary ruling — Tribunale di Bari — Wine sector — Compulsory distillation system — 1993/1994 wine year — Scope of temporal application of Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organisation of the market in wine (OJ 1987 L 84, p. 1) — Repealing of that regulation by Commission Regulation (EC) No 343/94 of 15 February 1994 opening compulsory distillation as provided for in Article 39 of Council Regulation (EEC) No 822/87 and derogating for the 1993/94 wine year from certain detailed rules for the application thereof (OJ 1994 L 44, p. 9) — Administrative sanction under national law for infringements of Regulation No 882/87 — Applicability in the case of infringement of Regulation No 343/94 — Proportionality of the administrative sanction imposed

      Operative part of the order

   Commission Regulation (EC) No 343/94 of 15 February 1994 opening compulsory distillation as provided for in Article 39 of Council Regulation (EEC) No 822/87 and derogating for the 1993/94 wine year from certain detailed rules for the application thereof implements Regulation No 822/87 and neither repeals nor replaces it.

      (1)  OJ C 13, 15.1.2011.


title: Case T -72/05: Order of the Court of First Instance of  13 June 2006  — Deutsche Telekom v OHIM (Telekom Global Net)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/40

         Order of the Court of First Instance of 13 June 2006 — Deutsche Telekom v OHIM (Telekom Global Net)
   (Case T -72/05) (1)

   (2006/C 178/74)

      Language of the case: German

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

      (1)  OJ C 115, 14.5.2005.


title: Case F-143/07: Action brought on 21 December 2007 — Yannoussis v Commission

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/49

         Action brought on 21 December 2007 — Yannoussis v Commission
   (Case F-143/07)
   (2008/C 92/101)
   Language of the case: French
   Parties

      Applicant: Georgios Yannoussis (Brussels, Belgium) (represented by: A. Pappas, lawyer)

      Defendant: Commission of the European Communities
   Re:
   Annulment of the decision of the appointing authority of 21 December 2006 rejecting the applicant's candidature for the vacant position of Head of the Representation of the Commission in Greece.
   Form of order sought

               —

               Annul the decision of the appointing authority of 21 December 2006;

               —

               Order the Commission to pay the costs.


title: Case C-562/12: Judgment of the Court (Fourth Chamber) of 17 September 2014 (request for a preliminary ruling from the Tartu Ringkonnakohus — Estonia) — Liivimaa Lihaveis MTÜ v Eesti-Läti programmi 2007-2013 Seirekomitee (Reference for a preliminary ruling — Structural funds — Regulations (EC) No 1083/2006 and No 1080/2006 — European Regional Development Fund (ERDF) — Operational programme aiming to promote European territorial cooperation between the Republic of Estonia and the Republic of Latvia — Decision of the monitoring committee rejecting a subsidy — Provision that the decisions of that committee cannot be subject to legal review — Article 267 TFEU — Act adopted by an institution, organ or body of the European Union — Charter of Fundamental Rights of the European Union — Implementation of EU law — Article 47 — Right to effective judicial protection — Right of access to the courts — Determination of which Member State’s courts have jurisdiction to rule on an action)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/5

         Judgment of the Court (Fourth Chamber) of 17 September 2014 (request for a preliminary ruling from the Tartu Ringkonnakohus — Estonia) — Liivimaa Lihaveis MTÜ v Eesti-Läti programmi 2007-2013 Seirekomitee
   (Case C-562/12) (1)

   ((Reference for a preliminary ruling - Structural funds - Regulations (EC) No 1083/2006 and No 1080/2006 - European Regional Development Fund (ERDF) - Operational programme aiming to promote European territorial cooperation between the Republic of Estonia and the Republic of Latvia - Decision of the monitoring committee rejecting a subsidy - Provision that the decisions of that committee cannot be subject to legal review - Article 267 TFEU - Act adopted by an institution, organ or body of the European Union - Charter of Fundamental Rights of the European Union - Implementation of EU law - Article 47 - Right to effective judicial protection - Right of access to the courts - Determination of which Member State’s courts have jurisdiction to rule on an action))
   2014/C 421/07
   Language of the case: Estonian

      Referring court

   Tartu Ringkonnakohus

      Parties to the main proceedings

      Appellant: Liivimaa Lihaveis MTÜ

      Respondent: Eesti-Läti programmi 2007-2013 Seirekomitee

      Intervening party: Eesti Vabariigi Siseministeerium

      Operative part of the judgment

               1)

               Article 263 TFEU must be interpreted as meaning that, in the context of an operational programme under Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999, and Regulation (EC) No 1080/2006 of the European Parliament and of the Council of 5 July 2006 on the European Regional Development Fund and repealing Regulation (EC) No 1783/1999 and intended to promote European territorial cooperation, an action against a decision of a monitoring committee rejecting an application for aid does not fall within the jurisdiction of the General Court of the European Union.

               2)

               Point (b) of the first paragraph of Article 267 TFEU must be interpreted as meaning that a programme manual adopted by a monitoring committee in the context of an operational programme under Regulations No 1083/2006 and No 1080/2006 and intended to promote European territorial cooperation between two Member States, such as that at issue in the main proceedings, does not constitute an act of an institution, body, office or agency of the European Union and, in consequence, the Court of Justice of the European Union does not have jurisdiction to review the validity of the provisions of such a manual.

               3)

               Regulation No 1083/2006, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a provision of a programme manual adopted by a monitoring committee in the context of an operational programme established by two Member States and intended to promote European territorial cooperation, where that provision does not provide that a decision of the monitoring committee rejecting an application for aid can be subject to appeal before a court of a Member State.

      (1)  OJ C 38, 9.2.2013.


title: Case T-351/05: Action brought on  7 September 2005  — Provincia di Imperia v Commission

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/30

         Action brought on 7 September 2005 — Provincia di Imperia v Commission
   (Case T-351/05)
   (2005/C 296/66)
   Language of the case: French
   Parties

      Applicant(s): Provincia di Imperia (Imperia, Italy) (represented by: S. Rostagno, lawyer, K. Platteau, lawyer)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant(s) claim(s) that the Court should:

               —

               annul the contested decision and any related act;

               —

               order the defendant to pay the costs

         Pleas in law and main arguments
   The present action seeks annulment of the Commission's decision of 30 June 2005 not to accept the proposal presented by the applicant in response to the call for proposals launched by the Commission in the context of Community co-financing in the sphere of innovative measures under Article 6 of the Regulation on the European Social Fund (1) for the planning period 2000-2006.
   By the contested decision, the Commission informed the applicant that its proposal did not satisfy the evaluation criteria in the call for proposals. It based its decision on the fact that the applicant's proposal did not succeed in explaining the way in which it elaborates and takes into consideration the experience previously acquired in that sphere in Liguria and claimed that there are serious inconsistencies between the budget information supplied in Annex 6 and that supplied in Annex 7.
   The applicant challenges the decision on two main points:

               —

               it maintains that, contrary to the findings of the contested decision, there are no serious inconsistencies in the budget information supplied in the annexes to its proposal, in that it follows the model of a claim for subsidy published in the Applicant's Guide and the annex thereto forming an integral part of the call for proposals. The applicant does not dispute the existence of the difference between the budget information supplied in Annex 6 and that supplied in Annex 7, but maintains that that difference relates to the structure and the different information requested in both annexes; whereas Annex 6 provides only an indication of the direct eligible expenditure, Annex 7b requires the applicant to indicate both direct eligible expenditure and indirect eligible expenditure. The applicant claims, first, that there is no inconsistency between Annexes 6 and 7 to its proposal and, second, that its proposal complies meticulously and on all points with the model established by the Commission.

               —

               the applicant also contends that it demonstrated sufficiently the way in which the proposal elaborates and takes into consideration the experience previously acquired in the sphere to which the innovative measure in question relates. It claims that the alleged failure to explain the connection between the proposal and the experience previously acquired is based on a reading of only one part of its proposal. A reading of the proposal as a whole would show the opposite.

         The applicant further alleges that by the contested decision the Commission infringes the principle of legal certainty in that it does not follow the rules it has itself established on the manner of establishing the innovative nature of the project. More specifically, in the applicant's submission, in assessing the innovative nature of its project, the confined itself to one of the evaluation criteria, namely its method of constructing and developing the new project on the basis of previous experience, whereas its project was innovative from the aspect of a different evaluation criterion, namely a departure from the ordinary activities of the organisations concerned, a criterion also accepted in the Applicant's Guide.
   In support of its claims, the applicant also alleges that the contested decision infringes Article 53 of the EC Treaty, Article 6 of Regulation No 1784/1999, the rules laid down in Notice No COM (2000) 894 final (2) and also the rules established by the Commission in the context of its call for proposals (3). Last, the applicant maintains that the Commission has made a manifest error of assessment of the facts, has misused its powers and has infringed the principle of legal certainty.

      (1)  Regulation (EC) No 1784/1999 of the European Parliament and of the Council of 12 July 1999 on the European Social Fund OJ L 213, 13/08/1999, p. 5.

      (2)  Commission Notice of 12 January 2000 on the implementation of innovation measures under Article 6 of the European Social Fund Regulation for the planning period 2000-2006.

      (3)  Notice entitled ‘Budget heading 04.021000.00.11 – Innovative measures under Article 6 of the European Social Fund Regulation: “Innovative Approaches to the Management of Change” – Call for proposals VP/2003/021’, OJ 2004 C 255, p. 11, and the ruler fixed in the Applicant's Guide forming an integral part of that notice.


title: Reference for a preliminary ruling by the Diikitiko Protodikio Thessalonikis (Fifth Chamber, Three Judges) by judgment of that court of 29 October 1998 in the case of Kapniki Mikhailidis A.E. against the Idrima Kinonikon Asfalision (Case C-442/98)

text:
C 33/4                EN                 Official Journal of the European Communities                                    6.2.1999
down in directives for their transposition. That time-limit             refund to a trader financial charges on the value of
expired on 30 November 1996 without the Italian                         exported goods which must be regarded as levied in
Republic having brought into force the necessary                        breach of Community law, on the basis that it is
provisions in order to comply with the directive referred               established that the person who was required to pay
to in the Commission's application.                                     the charges at issue in fact passed them on to other
                                                                        persons, namely the purchasers of the goods, and it
(1) OJ L 155, 6.7.1995, p. 1.                                           does not follow, nor does the trader claim, that that
(2) OJ L 374, 31.12.1990, p. 1.                                         charge caused an increase in the price of the products
(3) OJ L 183, 29.6.1989, p. 1.                                          and a reduction in the volume of his sales with the
                                                                        result that he suffered subsequent loss?
Reference for a preliminary ruling by the Diikitiko
Protodikio Thessalonikis (Fifth Chamber, Three Judges)
by judgment of that court of 29 October 1998 in the case            Reference for a preliminary ruling by the Diikitiko
of Kapniki Mikhailidis A.E. against the Idrima Kinonikon            Protodikio Thessalonikis (Fifth Chamber, Three Judges)
                           Asfalision                               by judgment of that court of 29 October 1998 in the case
                                                                    of Kapniki Mikhailidis A.E. against the Idrima Kinonikon
                       (Case C-441/98)
                                                                                Asfalision
                        (1999/C 33/05)
                                                                                (Case C-442/98)
                                                                                (1999/C 33/06)
Reference has been made to the Court of Justice of the
European Communities by judgment of the Diikitiko
Protodikio Thessalonikis (Administrative Court of First
Instance, Thessaloniki) (Fifth Chamber, Three Judges) of            Reference has been made to the Court of Justice of the
29 October 1998, received at the Court Registry on                  European Communities by judgment of the Diikitiko
4 December 1998, for a preliminary ruling in the case of            Protodikio Thessalonikis (Administrative Court of First
Kapniki Mikhailidis A.E. against the Idrima Kinonikon               Instance, Thessaloniki) (Fifth Chamber, Three Judges) of
Asfalision (Social Security Institution) on the following           29 October 1998, received at the Court Registry on
questions:                                                          4 December 1998, for a preliminary ruling in the case of
                                                                    Kapniki Mikhailidis A.E. against the Idrima Kinonikon
                                                                    Asfalision (Social Security Institution) on the following
1. Does a charge which is levied by a Member State on               questions:
    domestic goods exported to another Member State in
    proportion to their value constitute a charge having
    equivalent effect to customs duties on exports, having          1. Does a charge which is levied by a Member State on
    regard to the fact that that charge, which is invariably            domestic goods exported to another Member State in
    imposed on a particular category of domestic goods,                 proportion to their value constitute a charge having
    in accordance with objective criteria and within the                equivalent effect to customs duties on exports, having
    framework of a general system of taxation, is not                   regard to the fact that that charge, which is invariably
    imposed on domestic products which are distributed in               imposed on a particular category of domestic goods,
    the home market or on like goods which are imported                 in accordance with objective criteria and within the
    into the country from another Member State?                         framework of a general system of taxation, is not
    Alternatively is the abovementioned proportional                    imposed on domestic products which are distributed in
    contribution payable by tobacco exporters Ð which is                the home market or on like goods which are imported
    levied and credited as income of the IKA, a social                  into the country from another Member State?
    security institution, for the benefit of the Tobacco                Alternatively is the abovementioned proportional
    Workers' Pensions Branch Ð by reason of its                         contribution payable by tobacco exporters Ð which is
    objective, that is to say boosting the financial                    levied and credited as income of the IKA, a social
    resources of the particular insurance branch, not                   security institution, for the benefit of the Tobacco
    inconsistent with Community law, in that it constitutes             Workers' Pensions Branch Ð by reason of its
    in a broader sense a contribution in favour of an                   objective, that is to say boosting the financial
    insurance body for the purpose of achieving the social              resources of the particular insurance branch, not
    security objectives in respect of the particular group of           inconsistent with Community law, in that it constitutes
    workers, who may be employed in undertakings like                   in a broader sense a contribution in favour of an
    the plaintiff's, and are in any event entitled, even by             insurance body for the purpose of achieving the social
    means of the imposition of charges such as the one in               security objectives in respect of the particular group of
    this case, to social security, in accordance with the               workers, who may be employed in undertakings like
    appropriate provisions of the constitution of the                   the plaintiff's, and are in any event entitled, even by
    particular Member State?                                            means of the imposition of charges such as the one in
                                                                        this case, to social security, in accordance with the
2. If the first part of the first question is answered in the           appropriate provisions of the constitution of the
    affirmative, is a Member State in principle obliged to              particular Member State?
 ---pagebreak--- 6.2.1999             EN                  Official Journal of the European Communities                                       C 33/5
2. If the first part of the first question is answered in the       Reference for a preliminary ruling by the Second Chamber
    affirmative, is a Member State in principle obliged to          of the Supremo Tribunal Administrativo by judgment of
    refund to a trader financial charges on the value of            that court of 28 October 1998, in the case of Fazenda
    exported goods which must be regarded as levied in                          PuÂblica v CaÃmara Municipal do Porto
    breach of Community law, on the basis that it is                                        (Case C-446/98)
    established that the person who was required to pay
    the charges at issue in fact passed them on to other                                     (1999/C 33/08)
    persons, namely the purchasers of the goods, and it
    does not follow, nor does the trader claim, that that
    charge caused an increase in the price of the products          Reference has been made to the Court of Justice of the
    and a reduction in the volume of his sales with the             European Communities by a judgment of the Second
    result that he suffered subsequent loss?                        Chamber of the Supremo Tribunal Administrativo
                                                                    (Supreme Administrative Court) of 28 October 1998,
                                                                    which was received at the Court Registry on 7 December
                                                                    1998, for a preliminary ruling in the case of Fazenda
                                                                    PuÂblica v CaÃmara Municipal do Porto, on the following
                                                                    questions:
Reference for a preliminary ruling by the Pretura                   (a) Does the expression activities or transactions in
Circondariale di Milano by order of that court of                         which they engage as public authorities' used in the
6 November 1998 in the case of Unilever Italia SpA                        first subparagraph of Article 4(5) of the Sixth VAT
                  against Central Food SpA                                Directive (1) cover the renting out of areas for the
                                                                          parking of vehicles (both on-street and off-street
                       (Case C-443/98)                                    parking) by the public authorities (a municipality)?
                        (1999/C 33/07)
                                                                    (b) May the significant distortions of competition
                                                                          referred to in the second subparagraph of Article 4(5)
                                                                          of the Sixth VAT Directive be defined case by case by
                                                                          the Minister of Finance of a Member State?
Reference has been made to the Court of Justice of the
European Communities by order of the Pretura
Circondariale di Milano (District Magistrate's Court,               (c)   If the national provision which empowers the
Milan) of 6 November 1998, which was received at the                      Minister of Finance to define, case by case,
Court Registry on 7 December 1998, for a preliminary                      significant     distortions     of    competition      is
ruling in the case of Unilever Italia SpA against Central                 unconstitutional, in that it infringes the principle that
Food SpA on the following question:                                       taxation must have a legislative basis, but conforms
                                                                          with Community law (with the Sixth Directive), must
                                                                          the national court comply with its Constitution or
                                                                          must it, first and foremost, comply with Community
May a national provision which has been promulgated                      law by virtue of the principle of the primacy of that
and entered into force in the Member State (Law No 313                    law over constitutions?
of 3 August 1998) be disapplied by a national court called
upon to issue an order for payment in relation to the
supply of extra virgin olive oil labelled in a manner not in        (d) Will the public authorities always be regarded as
accordance with the provisions of the aforementioned                      taxable persons provided that the activities in which
national provision, considering that, following the                       they engage are not insignificant, or are they taxable
notification and the subsequent examination of a draft                    persons only as regards the activities or transactions
national Law concerning the labelling of extra virgin olive               listed in Annex D, to which the third subparagraph
oil, virgin olive oil and olive oil, the European                         of Article 4(5) of the Sixth VAT Directive refers?
Commission, on the basis of Article 9(3) of Council
Directive 83/189/EEC (1) laying down a procedure for the
provision of information in the field of technical standards        (e)   May a national law authorise the Minister of Finance
and regulations, formally requested the notifying State not               to define, case by case, what activities are being
to legislate, prescribing a period (until 14 September                    engaged in on a basis that is not significant?
1999) in respect of the marketing rules for olive oil,
pending the adoption of a Community regulation on the
matter at issue?'                                                   (f)   For the purposes of the last subparagraph of
                                                                          Article 4(5) of the Sixth VAT Directive, may a
                                                                          Member State regard on activity of renting out areas
(1) OJ L 109, 26.4.1983, p. 8.                                            intended for the parking of vehicles, when it is
                                                                          carried on by a municipality, as an activity in which
                                                                          the municipality engages as a public authority, having
                                                                          regard to the provisions of Article 13B(b)(2) of the
                                                                          Sixth VAT Directive?