title: Case C-539/13: Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 14 October 2013 — Merck Canada Inc., Merck Sharp & Dohme Ltd v Sigma Pharmaceuticals PLC

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/19

         Reference for a preliminary ruling from Court of Appeal (United Kingdom) made on 14 October 2013 — Merck Canada Inc., Merck Sharp & Dohme Ltd v Sigma Pharmaceuticals PLC
   (Case C-539/13)
   2014/C 9/29
   Language of the case: English

      Referring court

   Court of Appeal

      Parties to the main proceedings

      Applicants: Merck Canada Inc., Merck Sharp & Dohme Ltd

      Defendant: Sigma Pharmaceuticals PLC

      Questions referred

               1.

               May the holder, or his beneficiary, of a patent or supplementary protection certificate rely upon his rights under the first paragraph of the Specific Mechanism only if he has first demonstrated his intention to do so?

               2.

               If the answer to Question 1 is yes:

                           (a)

                           How must that intention be demonstrated?

                           (b)

                           Is the holder, or his beneficiary, precluded from relying upon his rights with respect to any import or marketing of the pharmaceutical product in a Member State that occurred prior to the demonstration of his intention to rely upon those rights?

               3.

               Who must give the prior notification to the holder or beneficiary of a patent or supplementary protection certificate under the second paragraph of the Specific Mechanism? In particular:

                           (a)

                           Must the prior notification be given by the person intending to import or market the pharmaceutical product?
                           or

                           (b)

                           Where. as permitted by the national regulatory system, an application for regulatory approval is made by someone other than the intended importer, can prior notification given by the applicant for regulatory approval be effective if that person does not itself intend to import or market the pharmaceutical product but where the intended importation and marketing will be carried out under the applicant's regulatory approval?; and

                                       (i)

                                       Does it make any difference if the prior notification identifies the person that will import or market the pharmaceutical product?

                                       (ii)

                                       Does it make any difference if the prior notification is given and the application for regulatory approval is made by one legal person within a group of companies which form a single economic unit, and the acts of importation and marketing are to be carried out by another legal person within that group under licence from the first legal person, but where the prior notification does not identify the legal person that will import or market the pharmaceutical product?

               4.

               To whom must prior notification be given under the second paragraph of the Specific Mechanism? In particular:

                           (a)

                           Is the beneficiary of a patent or supplementary protection certificate limited to persons who have a legal right under national law to bring proceedings to enforce that patent or supplementary protection certification?
                           or

                           (b)

                           In a case where a group of companies forms a single economic unit comprising a number of legal entities, is it sufficient if the notification is addressed to a legal entity which is the operating subsidiary and marketing authorisation holder in the Member State of importation rather than the entity within the group that has a legal right under national law to bring proceedings to enforce that patent or supplementary protection certificate, on the basis either that such legal entity may be characterised as a beneficiary of the patent or SPC, or that it is to be expected that such notification in the ordinary course of events will to come to the attention of the persons who make decisions on behalf of the patent or SPC holder?

                           (c)

                           If the answer to Question 4(b) is yes, is a notification which is otherwise compliant rendered non-compliant if it is addressed to the ‘the Manager, Regulatory Affairs’ of a company when that company is not the entity within the group that has a legal right under national law to bring proceedings to enforce that patent or supplementary protection certificate but is the operating subsidiary or marketing authorisation holder in the Member State of importation and when that Regulatory Affairs department in practice regularly receives notifications from parallel importers regarding the Specific Mechanism and other matters?


title: Case C-110/14: Judgment of the Court (Fourth Chamber) of 3 September 2015 (request for a preliminary ruling from the Judecătoria Oradea — Romania) — Horațiu Ovidiu Costea v SC Volksbank România SA (Request for a preliminary ruling — Directive 93/13/EEC — Article 2(b) — Concept of ‘consumer’ — Credit agreement concluded by a natural person who practises as a lawyer — Repayment of a loan secured on a building owned by the borrower’s law firm — Borrower who has the necessary knowledge to assess the unfairness of a term before signing the agreement)

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/6

         Judgment of the Court (Fourth Chamber) of 3 September 2015 (request for a preliminary ruling from the Judecătoria Oradea — Romania) — Horațiu Ovidiu Costea v SC Volksbank România SA
   (Case C-110/14) (1)

   ((Request for a preliminary ruling - Directive 93/13/EEC - Article 2(b) - Concept of ‘consumer’ - Credit agreement concluded by a natural person who practises as a lawyer - Repayment of a loan secured on a building owned by the borrower’s law firm - Borrower who has the necessary knowledge to assess the unfairness of a term before signing the agreement))
   (2015/C 354/06)
   Language of the case: Romanian

      Referring court

   Judecătoria Oradea

      Parties to the main proceedings

      Applicant: Horațiu Ovidiu Costea

      Defendant: SC Volksbank România SA

      Operative part of the judgment

   Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a natural person who practises as a lawyer and concludes a credit agreement with a bank, in which the purpose of the credit is not specified, may be regarded as a ‘consumer’ within the meaning of that provision, where that agreement is not linked to that lawyer’s profession. The fact that the debt arising out of the same contract is secured by a mortgage taken out by that person in his capacity as representative of his law firm and involving goods intended for the exercise of that person’s profession, such as a building belonging to that firm, is not relevant in that regard.

      (1)  OJ C 175, 10.6.2014.


title: Case T-263/02: Action brought on 30 August 2002 by Österreichische Postsparkasse Aktiengesellschaft against the Commission of the European Communities

text:
9.11.2002              EN                       Official Journal of the European Communities                                      C 274/31
Action brought on 30 August 2002 by Österreichische                        European Communities on 2 September 2002 by Erste Bank
Postsparkasse Aktiengesellschaft against the Commission                    der österreichischen Sparkassen AG, established in Vienna,
                of the European Communities                                represented by W. Kirchhoff, F. Montag and G. Bauer, Lawyers.
                         (Case T-263/02)
                                                                           The applicant claims that the Court should:
                         (2002/C 274/54)
                  (Language of the Case: German)                           —     annul Commission Decision C(2002)2091 final of
                                                                                11 June 2002 in Case COMP/36.571/D-1 — Austrian
                                                                                Banks, in so far as it relates to the applicant;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 —     in the alternative, set aside the fine imposed on the
European Communities on 30 August 2002 by Österreichische                        applicant;
Postsparkasse Aktiengesellschaft, established in Vienna, rep-
resented by H.-J. Niemeyer and M. von Hinden, Lawyers, with
                                                                           —     in the alternative, reduce the amount of the fine imposed
an address for service in Luxembourg.
                                                                                on the applicant in the contested decision to an appropri-
                                                                                ate sum;
The applicant claims that the Court should:
—     annul Articles 1 and 2 of the defendant’s decision of                —     in any event order the defendant to pay the costs.
      11 June 2002 in Case COMP/36.571/D-1 — Austrian
      banks, in so far as it is found therein that the applicant has
      infringed Article 81 EC and must cease that infringement;
—     annul Article 3 of the decision in so far as it imposes a            Pleas in law and main arguments
      fine of EUR 7 590 000 upon the applicant;
—     in the alternative, reduce the fine imposed on the
      applicant in Article 3 of the decision to an appropriate             The proceeding conducted by the defendant was directed
      amount;                                                              against regular meetings of banks in Austria (‘Bankenrunden’).
                                                                           By the contested decision the Commission found that the
—     order the defendant to pay the costs.                                applicant — together with seven other Austrian banking
                                                                           institutions — had infringed Article 81 EC by participating in
                                                                           agreements and concerted practices concerning prices, charges
Pleas in law and main arguments                                            and advertising measures, designed to restrict competition on
                                                                           the Austrian banking market from 1 January 1995 until
                                                                           24 June 1998. The Commission imposed fines on the banks
The pleas in law and arguments correspond to those put                     concerned.
forward in Case T-261/02 Bank für Arbeit und Wirtschaft AG
v Commission.
                                                                           The applicant submits that the decision has numerous defects.
                                                                           First, it infringes in many respects the right to a fair hearing.
                                                                           The applicant was not given the opportunity before the
                                                                           decision was adopted to state its views on the allegation that
                                                                           all independent savings banks were to be attributed to it as the
Action brought on 2 September 2002 by Erste Bank der                       leading institution. Nor is the statement of reasons for the
österreichischen Sparkassen AG against the Commission                      decision adequate. In particular, the reasons for attributing the
                of the European Communities                                savings banks to the applicant, and those for the calculation of
                                                                           the applicant’s market share, on the basis of which the amount
                                                                           of the fine was determined, do not satisfy the requirements of
                         (Case T-264/02)                                   the case-law on the duty to state reasons.
                         (2002/C 274/55)
                  (Language of the Case: German)                           The applicant further submits that the decision infringes the
                                                                           principle of good administration. The unlawful attribution of
                                                                           the conduct of all independent savings banks to the applicant/
                                                                           GiroCredit as the leading institution in the savings bank sector
An action against the Commission of the European Communi-                  is a particularly serious breach. The legal preconditions for
ties was brought before the Court of First Instance of the                 such attribution are manifestly not present.


title: Case T-288/06: Action brought on 18 October 2006 — Huta 'Częstochowa' v Commission

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/63

         Action brought on 18 October 2006 — Huta 'Częstochowa' v Commission
   (Case T-288/06)
   (2006/C 294/125)
   Language of the case: Polish
   Parties

      Claimant: Huta ‘Częstochowa’ S.A. (represented by: Cz. Sadkowski and D. Sałajewski, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declare invalid point 2 of Article 3(2) of the Commission decision of 5 July 2005 in Case No C 20/04 (ex. NN 25/04) concerning State aid for the benefit of Huta ‘Częstochowa’ S.A.

         Pleas in law and main arguments
   The claimant seeks a declaration of invalidity in regard to the European Commission decision of 5 July 2005 in State aid Case No C 20/04 (ex. NN 25/04), Article 3(1) of which declares incompatible with the common market the aid which Poland accorded to Huta ‘Częstochowa’ S.A over the period from 1997 to May 2002 in the form of operating aid and aid for employment restructuring. The decision was notified to the claimant on 21 August 2006. In Article 3(2) of the contested decision the Commission imposed an obligation on Poland to take all requisite steps to recover the unlawfully granted aid from the undertakings named in that provision, which include the claimant. Pursuant to that decision, all the undertakings mentioned in that provision are jointly and severally liable for the recovery of that aid, which must be effected without delay and in accordance with the procedures under national law. Interest is payable in respect of the entire period from receipt of the aid up to the date on which it is actually repaid, in accordance with the provisions contained in Chapter V of Commission Regulation (EC) No 794/2004 (1).
   In support of its action, the claimant raises the following heads of complaint:

               —

               Breach of Articles 87 EC and 88 EC and of Article 7(5) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2) by reason of the Commission's acceptance that the abovementioned provisions permit the adoption of a decision defining aid granted by a Member State prior to its accession to the European Union as being aid incompatible with the common market, even though the aid in question was not applied after Poland acceded to the EC Treaty, and consequently the acceptance that the amounts subject to reimbursement must be increased by interest in respect of the entire period from the date on which the aid was granted to Huta ‘Częstochowa’ up to that of its actual repayment. The claimant submits that the aid granted in the years 1997 to 2002 and not applied after Poland's accession to the European Union cannot be treated as incompatible with the common market on the basis of Article 87 EC as it could not have affected intra-Community trade in the period prior to 1 May 2004, that is to say, prior to Poland's accession to the European Union, at a time when the Polish market did not constitute part of the intra-Community market. A further reason, in the claimant's view, lies in the fact that Protocol No 8 to the Accession Treaty (3) on the restructuring of the Polish steel industry makes no mention of the claimant in Annex 1, as a consequence of which the majority of the provisions of that protocol do not concern the claimant.

               —

               Breach of Article 9(4) of Commission Regulation (EC) No 794/2004 by virtue of the fact that no percentage rate for interest in respect of the repayment of the State aid was laid down in the decision. In the meantime, according to the claimant, pursuant to the provision cited, in connection with the absence in Poland of five-year swap rates for inter-bank transactions prior to Poland's accession to the European Union, there was a need for coordination between the Commission and Poland in this area which would subsequently have had to be reflected in the contested decision or in some other Commission decision.

      (1)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC)No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1).

      (2)  OJ 1999 L 83, p. 1.

      (3)  Treaty of 23 April 2003 concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (OJ 2003 L 236, p. 17).


title: Judgment of the Court of first instance 7 February 2002 in Case T-201/94: Erwin Kustermann v Council of the European Union and Commission of the European Communities (Action for damages — Non-contractual liability — Milk — Additional levy — Reference quantity — Regulation (EC) No 2187/93 — Compensation for producers — Interruption of the limitation period)

text:
18.5.2002              EN                     Official Journal of the European Communities                                            C 118/23
as supplemented by Commission Regulation (EEC) No 1371/                  1.    Declares that the defendants are bound to make good the
84 of 16 May 1984 laying down detailed rules for the                           damage sustained by the applicant as a result of the application
application of the additional levy referred to in Article 5c of                of Council Regulation (EEC) No 857/84 of 31 March 1984
Regulation (EEC) No 804/68 (OJ 1984 L 132, p. 11), Court of                    adopting general rules for the application of the levy referred to
First Instance (Fourth Chamber), composed of: P. Mengozzi,                     in Article 5c of Regulation (EEC) No 804/68 in the milk
President, V. Tilli and R. M. Moura Ramos, Judges; D. Christens-               and milk products sector, as supplemented by Commission
en, Administrator, for the Registrar, has given a judgment on                  Regulation (EEC) No 1371/84 of 16 May 1984 laying down
7 February 2002, in which it:                                                  detailed rules for the application of the additional levy referred
                                                                               to in Article 5c of Regulation (EEC) No 804/68, in so far as
1.    Dismisses the application;                                               those regulations did not make provision for the allocation of a
                                                                               reference quantity to producers who, pursuant to an undertaking
                                                                               given under Council Regulation (EEC) No 1078/77 of 17 May
2.    Orders the applicant to pay the costs.
                                                                               1977 introducing a system of premiums for the non-marketing
                                                                               of milk and milk products and for the conversion of dairy herds,
(1) OJ C 218 of 6.8.1994.                                                      did not deliver milk during the reference year opted for by the
                                                                               Member State concerned;
                                                                         2.    Declares that the period in respect of which the applicant must
                                                                               be compensated for the losses sustained as a result of the
                                                                               application of Regulation No 857/84 is that beginning on
                                                                               5 August 1987 and ending on 28 March 1989;
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              3.    Orders the parties to forward to the Court, within six months
                                                                               of this judgment, particulars of the amounts to be paid,
                         7 February 2002                                       established by mutual agreement;
                                                                         4.    Orders the parties, in the absence of such agreement, to submit
in Case T-201/94: Erwin Kustermann v Council of the                            to the Court within the same period their quantified claims;
European Union and Commission of the European Com-
                            munities (1)                                 5.    Reserves the costs.
(Action for damages — Non-contractual liability — Milk —
Additional levy — Reference quantity — Regulation (EC)                   (1) OJ C 218 of 6.8.1994.
No 2187/93 — Compensation for producers — Interruption
                     of the limitation period)
                         (2002/C 118/36)
                   (Language of the case: German)                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                7 February 2002
In Case T-201/94, Erwin Kustermann, residing in Eggenthal
                                                                         in Case T-261/94: Bernhard Schulte v Council of the
(Germany), represented by H.-P. Ried, Y. Schur and R. Bruk-
                                                                         European Union and Commission of the European Com-
hardt, lawyers, with an address for service in Luxembourg, v
                                                                                munities (1)
Council of the European Union (agent: A.-M. Colaert) and
Commission of the European Communities (Agents: D. Booß,
M. Niejahr, H.-J. Rabe and M. Núñez-Müller): Application for           (Action for damages — Non-contractual liability — Milk —
compensation under Article 178 and the second paragraph of               Additional levy — Reference quantity — Regulation (EC)
Article 215 of the EC Treaty (now Article 235 EC and the                 No 2187/93 — Compensation for producers — Act of the
second paragraph of Article 288 EC) for damage suffered by                               national authorities — Limitation)
the applicant as a result of his having been prevented from
marketing milk by virtue of Council Regulation (EEC)                                                (2002/C 118/37)
No 857/84 of 31 March 1984 adopting general rules for the
application of the levy referred to in Article 5c of Regulation                              (Language of the case: German)
(EEC) No 804/68 in the milk and milk products sector (OJ
1984 L 90, p. 13), as supplemented by Commission Regulation
(EEC) No 1371/84 of 16 May 1984 laying down detailed rules
for the application of the additional levy referred to in Article        In Case T-261/94, Bernhard Schulte, residing in Delbrück
5c of Regulation (EEC) No 804/68 (OJ 1984 L 132, p. 11),                 (Germany), represented by R. Freise, lawyer, v Council of the
Court of First Instance (Fourth Chamber), composed of:                   European Union (agents: A.-M. Colaert and M. Núñez-Müller)
P. Mengozzi, President, V. Tilli and R. M. Moura Ramos,                  and Commission of the European Communities (Agents:
Judges; D. Christensen, Administrator, for the Registrar, has            D. Booß, M. Niejahr and M. Núñez-Müller): Application for
given a judgment on 7 February 2002, in which it:                        compensation under Article 178 and the second paragraph of


title: Case F-91/13: Action brought on 19th September 2013 — ZZ v Commission

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/40

         Action brought on 19th September 2013 — ZZ v Commission
   (Case F-91/13)
   2013/C 367/70
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: L. Levi and A. Blot, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   The annulment of the Commission’s decision requesting the reimbursement of the expatriation allowance and the travel costs perceived by the Applicant during his secondment in Germany, together with the reimbursement of the amount already recovered and the reparation of moral prejudice.

      Form of order sought

               —

               Annul the Commission’s decision dated 20 December 2012 by which the Applicant was requested to reimburse his expatriation allowance and annual travel costs granted during his secondment in Germany;

               —

               annul the 24 June 2013 Commission’s decision rejecting the Applicant’s complaint;

               —

               by consequence, reimburse the amount already recovered by the Appointing authority, plus late interest at the European Central Bank rate +2 points;

               —

               in any case, the reparation of the moral prejudice suffered, assessed ex aequo et bono at 5 000 euros;

               —

               order the Defendant to pay all the costs.


title: Joined Cases C-162/12 and C-163/12: Judgment of the Court (Third Chamber) of 13 February 2014 (requests for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio (Italy)) — Airport Shuttle Express scarl (C-162/12), Giovanni Panarisi (C-162/12), Società Cooperativa Autonoleggio Piccola arl (C-163/12) and Gianpaolo Vivani (C-163/12) v Comune di Grottaferrata (Requests for a preliminary ruling — Articles 49 TFEU, 101 TFEU and 102 TFEU — Regulation (EEC) No 2454/92 — Regulation (EC) No 12/98 — Car and driver hire services — National and regional legislation — Authorisation issued by municipalities — Conditions — Purely internal situations — Jurisdiction of the Court — Whether the requests are admissible)

text:
               29.3.2014

               EN

               Official Journal of the European Union

               C 93/5

         Judgment of the Court (Third Chamber) of 13 February 2014 (requests for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio (Italy)) — Airport Shuttle Express scarl (C-162/12), Giovanni Panarisi (C-162/12), Società Cooperativa Autonoleggio Piccola arl (C-163/12) and Gianpaolo Vivani (C-163/12) v Comune di Grottaferrata
   (Joined Cases C-162/12 and C-163/12) (1)

   (Requests for a preliminary ruling - Articles 49 TFEU, 101 TFEU and 102 TFEU - Regulation (EEC) No 2454/92 - Regulation (EC) No 12/98 - Car and driver hire services - National and regional legislation - Authorisation issued by municipalities - Conditions - Purely internal situations - Jurisdiction of the Court - Whether the requests are admissible)
   2014/C 93/07
   Language of the case: Italian

      Referring court

   Tribunale amministrativo regionale per il Lazio

      Parties to the main proceedings

      Applicants: Airport Shuttle Express scarl (C-162/12), Giovanni Panarisi (C-162/12), Società Cooperativa Autonoleggio Piccola arl (C-163/12) and Gianpaolo Vivani (C-163/12)

      Defendant: Comune di Grottaferrata

      In the presence of: Federnoleggio

      Re:

   Requests for a preliminary ruling — Tribunale amministrativo regionale del Lazio — Interpretation of Articles 26 TFEU, 49 TFEU and 90 TFEU; Article 3 TEU, read in conjunction with Article 4(3) TEU and Articles 3 TFEU, 4 TFEU, 5 TFEU and 6 TFEU; Articles 101 and 102 TFEU; Council Regulation (EEC) No 2454/92 of 23 July 1992 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State (OJ 1992 L 251, p. 1); and Council Regulation (EC) No 12/98 of 11 December 1997 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State (OJ 1998 L 4, p. 10) — Car and driver hire service — National legislation making the provision of that service conditional upon possession of an authorisation issued by the municipal authorities and requiring anyone holding such an authorisation to have the normal base for their vehicle(s) located in the territory of the municipality which issued the authorisation, and to begin and end the hire in that territory.

      Operative part of the judgment

   The Court of Justice of the European Union does not have jurisdiction to answer the requests from the Tribunale amministrativo regionale per il Lazio (Italy) for a preliminary ruling, made by decisions of 19 October 2011 and 1 December 2011 in Joined Cases C-162/12 and C-163/12, to the extent that those requests concern the interpretation of Article 49 TFEU. Those requests are inadmissible to the extent that they concern the interpretation of other provisions of EU law.

      (1)  OJ C 165, 9.6.2012.


title: Order of the Court of First Instance of 27 June 2005 in Case T-349/04 Parfümerie Douglas GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Removal of the earlier mark from the register — No need to adjudicate)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/42

      ORDER OF THE COURT OF FIRST INSTANCE

   of 27 June 2005
   in Case T-349/04 Parfümerie Douglas GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Removal of the earlier mark from the register - No need to adjudicate)
   (2005/C 217/93)
   Language of the case: German
   In Case T-349/04: Parfümerie Douglas GmbH, established in Hagen (Germany), represented by C. Schumann, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: A. von Mühlendahl), the other party to the proceedings before the OHIM Board of Appeal having been Jürgen Heinz Douglas, residing in Hamburg (Germany) — action brought against the decision of the First Board of Appeal of OHIM of 24 May 2004 (Case R 795/2002-4) relating to opposition proceedings between Parfümerie Douglas GmbH and Jürgen Heinz Douglas — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges; H. Jung, Registrar, made an order on 27 June 2005, the operative part of which is as follows:

               1.

               There is no longer any need to adjudicate on the application.

               2.

               Each party shall bear its own costs.

      (1)  OJ C 300, 4.12.2004


title: Case F-6/10: Action brought on 19 January 2010 — Yannick Munch v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/55

         Action brought on 19 January 2010 — Yannick Munch v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case F-6/10)
   2010/C 63/97
   Language of the case: German

      Parties

      Applicant(s): Yannick Munch (Barcelona, Spain) (represented by: H. Tettenborn, Rechtsanwalt)

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

      Subject-matter and description of the proceedings

   Application for, first, a declaration of invalidity of the clause of the applicant's contract providing for the automatic termination of the employment contract in the event that the applicant is not selected in an external selection procedure for the OHIM, and second a declaration that selection procedures OHMI/AD/01/07, OHMI/AD/02/07, OHMI/AST/01/07 and OHMI/AST/02/02 have no effect on the contract of the applicant. In addition, application for damages.

      Form of order sought

               —

               The Tribunal should set aside the letter from OHIM of 12 March 2009 and the decisions of OHIM contained in it, according to which the applicant's employment relationship is terminated with seven months' notice as of 16 March 2009, and declare that the applicant's employment relationship with the OHIM continues and has not been terminated. To the extent that the Tribunal considers it necessary, the applicant claims that the Tribunal should also set aside a further letter from OHIM of 9 October 2009, classified by the applicant as related (rejection of complaint).

               —

               The Tribunal should set aside or declare invalid the cancellation clause in Article 5 of the applicant's employment contract with OHIM, and in the alternative,
               declare that the applicant's contract of employment cannot in future be terminated on the basis of the cancellation clause in his employment contract;
               in the further alternative, declare that, in any event, the selection procedures referred to in the letter from OHIM of 12 March 2009 were not capable of entailing negative consequences on the basis of the cancellation clause.

               —

               The Tribunal should order OHIM to pay to the applicant damages of an appropriate amount at the discretion of the Tribunal for the non-material damage arising from the decisions referred to in paragraph 1 of the application.

               —

               The Tribunal should declare that OHIM is under an obligation to continue to employ the applicant under the same conditions as hitherto and to reinstate him and order OHIM to compensate the applicant fully for the material damage suffered by him, in particular by paying any outstanding salary and all other expenses incurred by the applicant as a result of OHIM's unlawful conduct (after deduction of unemployment benefit received),
               in the alternative, in the event that, in the present situation, for legal or practical reasons the applicant is not reinstated or re-employed under the same conditions as hitherto, order OHIM to pay the applicant compensation for the unlawful termination of his employment corresponding to the difference between his actual lifetime earnings and the lifetime earnings the applicant would have achieved if the contract had remained in force, taking into account pension benefits and other entitlements;
               at the least, however, pay the applicant compensation for the material damage caused to the applicant by the unlawful termination of his employment, corresponding to the difference between his income earned until 15 October 2009 and the income the applicant would have earned if the contract had run until 15 November 2009, taking account of pension benefits and other entitlements;

               —

               The Tribunal should order OHIM to pay the costs.


title: Case T-275/12: Judgment of the General Court of 6 October 2015 — FC Dynamo-Minsk v Council (Common foreign and security policy — Restrictive measures adopted against Belarus — Freezing of funds — Action for annulment — Period allowed for modifying the form of order sought — Partial inadmissibility — Entity owned or controlled by a person or entity subject to the restrictive measures — Obligation to state reasons — Error of assessment)

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/29

         Judgment of the General Court of 6 October 2015 — FC Dynamo-Minsk v Council
   (Case T-275/12) (1)

   ((Common foreign and security policy - Restrictive measures adopted against Belarus - Freezing of funds - Action for annulment - Period allowed for modifying the form of order sought - Partial inadmissibility - Entity owned or controlled by a person or entity subject to the restrictive measures - Obligation to state reasons - Error of assessment))
   (2015/C 398/39)
   Language of the case: English

      Parties

      Applicant: Football Club ‘Dynamo-Minsk’ ZAO (Minsk, Belarus) (represented by: D. O’Keeffe, Solicitor, B. Evtimov, lawyer, and M. Lester, Barrister)

      Defendant: Council of the European Union (represented by: F. Naert and E. Finnegan, acting as Agents)

      Re:

   Application for the annulment of Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639/CFSP concerning restrictive measures against Belarus (OJ 2012 L 87, p. 95), of Council Implementing Decision (EU) No 265/2012 of 23 March 2012, implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 87, p. 37), Council Decision 2012/642/CFSP of 15 October 2012, concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 307, p. 7), Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 (OJ 2013 L 288, p. 69), Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2013 L 288, p. 1), Council Decision 2014/750/CFSP of 30 October 2014 amending Council Decision 2012/642 (OJ 2014 L 311, p. 39) and Council Implementing Regulation (EU) No 1159/2014 of 30 October 2014 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2014 L 311, p. 2), in so far as those acts apply to the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639/CFSP concerning restrictive measures against Belarus, Council Implementing Regulation (EU) No 265/2012 of 23 March 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus, Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, Council Decision 2014/750/CFSP of 30 October 2014 amending Decision 2012/642 and Council Implementing Regulation (EU) No 1159/2014 of 30 October 2014 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus in so far as they relate to Football Club ‘Dynamo-Minsk’ ZAO;

               2.

               Dismisses the action as inadmissible in so far as it seeks annulment of Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 and Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders the Council of the European Union to bear its own costs and to pay the costs of Football Club ‘Dynamo-Minsk.

      (1)  OJ C 250, 18.8.2012.


title: Case T-284/12: Judgment of the General Court of 16 September 2013 — Oro Clean Chemie v OHIM (PROSEPT) (Community trade mark — Opposition proceedings — Application for Community word mark PROSEPT — Earlier national word mark Pursept — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 — Rights of defence — Article 75 of Regulation No 207/2009)

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/21

         Judgment of the General Court of 16 September 2013 — Oro Clean Chemie v OHIM (PROSEPT)
   (Case T-284/12) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark PROSEPT - Earlier national word mark Pursept - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009 - Rights of defence - Article 75 of Regulation No 207/2009)
   2013/C 336/41
   Language of the case: German

      Parties

      Applicant: Oro Clean Chemie AG (Fehraltorf, Switzerland) (represented by: F. Ekey, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

      Other party/parties to the proceedings before the Board of Appeal of OHIM: Merz Pharma GmbH & Co. KGaA (Frankfurt am Main, Germany) (represented by: M. Hirsch and C. Mayerhöffer, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 29 March 2012 (Case R 1053/2011-1), relating to opposition proceedings between Merz Pharma GmbH & Co. KGaA and Oro Clean Chemie AG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Oro Clean Chemie AG to pay the costs.

      (1)  OJ C 258, 25.8.2012.


title: Case T-579/08: Action brought on 23 December 2008 — Eridania Sadam v Commission

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/65

         Action brought on 23 December 2008 — Eridania Sadam v Commission
   (Case T-579/08)
   (2009/C 44/111)
   Language of the case: Italian
   Parties

      Applicant: Eridania Sadam SpA (Bologna, Italy) (represented by: G.M. Roberti, lawyer, I. Perego, lawyer, B. Amabile, lawyer, and M. Serpone, lawyer)

      Defendant: Commission of the European Communities
   Forms of order sought
   The applicant claims that the Court should:

               —

               annul the contested Decision;

               —

               require by way of measure of inquiry, in accordance with Articles 65 and 66 of the Rules of Procedure, the production before the Court of the documents in the Commission's case-file;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   By the present action, Eridania Sadam SpA contests, in accordance with the fourth paragraph of Article 230 EC, the Commission's decision of 16 July 2008 in State aid case C 29/2004 (ex N 328/2003).
   In support of its action, the applicant relies on four pleas in law, respectively alleging:

               —

               misapplication of Article 87(1) EC to the facts and, in any event, erroneous assessment of the facts and failure to state sufficient reasons, in so far as the Commission found that the financial aid scheme duly notified by the Italian authorities was likely, if implemented, to affect trade between Member States and to distort competition;

               —

               infringement of Article 87(2)(b) EC and of the guidelines applicable to State aid in the agricultural sector, and breach of the Commission's own working practice — and, in any case, erroneous assessment of the facts and failure to state sufficient reasons — in so far as the Commission found that the financial aid scheme duly notified by the Italian authorities could not be treated as an exception under Article 87(2)(b) EC;

               —

               infringement of Article 87(3)(c) EC — and, in any case, erroneous assessment of the facts and failure to state sufficient reasons — in so far as the Commission found that the financial aid scheme duly notified by the Italian authorities could not be treated as an exception under Article 87(3)(c) EC;

               —

               breach of the principles of sound administration and diligence and of the duty of care, by reason inter alia of the excessive length of the administrative procedure.


title: Case T-422/05: Action brought on  21 November 2005  — Combescot v Commission

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/22

         Action brought on 21 November 2005 — Combescot v Commission
   (Case T-422/05)
   (2006/C 22/40)
   Language of the case: Italian
   Parties

      Applicant(s): Philippe Combescot (Lecce, Italy) (represented by: A. Maritati and V. Messa, lawyers)

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

               —

               annul the Commission's decision of 29 July 2004 to reassign him to Brussels headquarters, such decision being in substitution for a previous, similar decision of 13 June 2003;

               —

               acknowledge that the applicant has suffered non-material damage, to his health and to his image as a result of the decision, with serious repercussions on his psychological balance;

               —

               award the applicant damages of EUR 150 000.

         Pleas in law and main arguments
   The action is brought against the Commission's decision of 29 July 2004 to reassign the applicant to headquarters.
   In support of his claims, the applicant argues that the decision:

               —

               is unlawful, unjustified and arbitrary for failing to take account of the fact that, at the time of the assignment, the medical committee had recognised that the applicant was unfit for service until 31 December 2004;

               —

               does not allow the official to continue the therapy prescribed by his doctor;

               —

               cannot be justified by the interests of the service, since an official on sick leave cannot fulfill the work requirements of the service.

         The applicant adds that the contested decision has caused him to lose the rights of an official in a non-member country, since his illness arose at a time when he was performing the functions of resident adviser in Guatemala.


title: Case C-520/04: Judgment of the Court (First Chamber) of 9 November 2006 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Pirkko Marjatta Turpeinen (Freedom of movement for persons — Income tax — Retirement pension — Higher rate of tax for retired persons residing in another Member State)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/6

         Judgment of the Court (First Chamber) of 9 November 2006 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Pirkko Marjatta Turpeinen
   (Case C-520/04) (1)

   (Freedom of movement for persons - Income tax - Retirement pension - Higher rate of tax for retired persons residing in another Member State)
   (2006/C 326/13)
   Language of the case: Finnish
   Referring court
   Korkein hallinto-oikeus
   Parties to the main proceedings

      Applicant: Pirkko Marjatta Turpeinen
   Re:
   Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Articles 12 EC and 39 EC and of Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity (OJ 1990 L 180, p. 28) — National legislation under which the income of non-residents is subject to a withholding tax — Pension paid to a retired person resident in another Member State subject to a higher rate of tax than if that person had been resident in the Member State concerned
   Operative part of the judgment
   Article 18 EC must be interpreted as meaning that it precludes national legislation according to which the income tax on a retirement pension paid by an institution of the Member State concerned to a person residing in another Member State exceeds in certain cases the tax which would be payable if that person resided in the first Member State, where that pension constitutes all or nearly all of that person's income.

      (1)  OJ C 57, 05.03.2005.


title: Case F-64/11: Order of the European Union Civil Service Tribunal of 20 June 2012 — Westeren v Commission

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/33

         Order of the European Union Civil Service Tribunal of 20 June 2012 — Westeren v Commission
   (Case F-64/11) (1)

   2013/C 46/70
   Language of the case: English
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 252, 27.08.2011, p. 57


title: Judgment of the Court (Second Chamber) of 11 October 2001 in Case C-77/99: Commission of the European Communities v Oder-Plan Architektur GmbH, NCC Deutsche Ban GmbH, Esbensen Consulting Engineers (Arbitration clause — Financial support for the energy sector — Thermie Programme — Non-performance of a contract — Termination — Right to repayment of an advance)

text:
C 17/4                  EN                      Official Journal of the European Communities                                          19.1.2002
     The direct effect which that provision must therefore be                                JUDGMENT OF THE COURT
     recognised as having means that Polish nationals relying on it
     have the right to invoke it before the courts of the host Member
                                                                                (Second Chamber)
     State, notwithstanding the fact that the authorities of that State
     remain competent to apply to those nationals their own national
     laws and regulations regarding entry, stay and establishment,                                 of 11 October 2001
     in accordance with Article 58(1) of that Agreement.
                                                                           in Case C-77/99: Commission of the European Communi-
2.   The right of establishment, as defined by Article 44(3) of the        ties v Oder-Plan Architektur GmbH, NCC Deutsche Ban
     above Association Agreement, means that rights of entry and                     GmbH, Esbensen Consulting Engineers (1)
     residence, as corollaries of the right of establishment, are
     conferred on Polish nationals wishing to pursue activities of an      (Arbitration clause — Financial support for the energy
     industrial or commercial character, activities of craftsmen, or       sector — Thermie Programme — Non-performance of a
     activities of the professions in a Member State. However, it          contract — Termination — Right to repayment of an
     follows from Article 58(1) of that Agreement that those rights                                       advance)
     of entry and residence are not absolute privileges, inasmuch as
     their exercise may, in some circumstances, be limited by the
     rules of the host Member State governing the entry, stay and                                     (2002/C 17/05)
     establishment of Polish nationals.
                                                                                (Language of the case: German)
3.   Articles 44(3) and 58(1) of the above Association Agreement,
     read together, do not in principle preclude a system of prior         (Provisional translation; the definitive translation will be published
     control which makes the issue by the competent immigration                                in the European Court Reports)
     authorities of leave to enter and remain subject to the condition
     that the applicant must show that he genuinely intends to take
     up an activity as a self-employed person without at the same
     time entering into employment or having recourse to public            In Case C-77/99: Commission of the European Communities
     funds, and that he possesses, from the outset, sufficient financial   (Agents: R.B. Wainwright and K. Schreyer, assisted by
     resources and has reasonable chances of success. Substantive          M. Núñez-Müller) v Oder-Plan Architektur GmbH, in liqui-
     requirements such as those set out in paragraphs 217 and 219          dation, established in Berlin (Germany), represented by its
     of the United Kingdom Immigration Rules (House of Commons             liquidator, C. Schlote, NCC Deutsche Ban GmbH, formerly
     Paper 395) have as their very purpose to enable the competent         NCC Siab Bau GmbH, established in Fürstenwalde (Germany),
     authorities to carry out such checks and are appropriate for          represented by D. Stoecker, Rechtsanwalt, and Esbensen
     achieving such a purpose.                                             Consulting Engineers, established in Virum (Denmark), rep-
                                                                           resented by D. Stoecker — application by the Commission of
                                                                           the European Communities under Article 181 of the EC Treaty
4.   Article 58(1) of the above Association Agreement must be              (now Article 238 EC) for repayment of an advance paid by the
     construed as meaning that the competent authorities of the host       Commission under the Thermie Programme referred to in
     Member State may reject an application made pursuant to               Article 1 of Council Regulation (EEC) No 2008/90 of 29 June
     Article 44(3) of that Agreement on the sole ground that, when         1990 concerning the promotion of energy technology in
     that application was submitted, the Polish national was residing      Europe (Thermie programme) (OJ 1990 L 185, p. 1) —
     illegally within the territory of that State because of false         the Court (Second Chamber), composed of: N. Colneric
     representations made to those authorities for the purpose of          (Rapporteur), President of the Chamber, R. Schintgen and
     obtaining initial leave to enter that Member State on a different     V. Skouris, Judges; S. Alber, Advocate General; H. von Holstein,
     basis or of non-compliance with an express condition attached         Deputy Registrar, for the Registrar, has given a judgment on
     to that entry and relating to the authorised duration of his stay     11 October 2001, in which it:
     in that Member State. Consequently, those authorities may
     require that national to submit, in due and proper form, a new        1.    By way of judgment by default, orders Oder-Plan Architektur
     application for establishment on the basis of that Agreement                GmbH, jointly and severally with NCC Deutsche Bau GmbH
     by applying for an entry visa to the competent authorities in his           and Esbensen Consulting Engineers, to pay to the Commission
     State of origin or, as the case may be, in another country,                 of the European Communities the sum of EUR 54 510, plus
     provided that such measures do not have the effect of preventing            interest of EUR 12 077.09 for the period from 1 January
     such a national from having his situation reviewed at a later               1995 to 15 January 1999;
     date when he submits that new application.
                                                                           2.    Orders NCC Deutsche Ban GmbH and Esbensen Consulting
                                                                                Engineers, jointly and severally as between each other and with
                                                                                Oder-Plan Architektur GmbH, to pay to the Commission of
(1) OJ C 121 of 1.5.1999.                                                        the European Communities the sum of EUR 54 510, plus
                                                                                interest of EUR 12 077.09 for the period from 1 January
                                                                                1995 to 15 January 1999;
                                                                           3.    Dismisses the remainder of the application;
 ---pagebreak--- 19.1.2002                EN                      Official Journal of the European Communities                                             C 17/5
4.    Orders Oder-Plan Architektur GmbH, NCC Deutsche Bau                                    JUDGMENT OF THE COURT
      GmbH and Esbensen Consulting Engineers, jointly and sever-
      ally, to pay the costs.
                                                                                (Third Chamber)
( 1) OJ C 160 of 5.6.1999.
                                                                                of 22 November 2001
                                                                            in Joined Cases C-541/99 and C-542/99 (references for
                                                                            preliminary rulings from the Giudice di Pace di Viadana):
                                                                            Cape Snc and Idealservice Srl (C-541/99) and between
                  JUDGMENT OF THE COURT
                                                                                Idealservice MN RE Sas and OMAI Srl (C-542/99) (1)
                          (Sixth Chamber)
                                                                            (Article 2(b) of Directive 93/13/EEC — Meaning of ‘con-
                       of 22 November 2001                                  sumer’ — Undertaking concluding a standard contract with
                                                                            another undertaking to acquire merchandise or services solely
                                                                                for the benefit of its employees)
in Case C-147/99: Italian Republic v Commission of the
                    European Communities (1)
                                                                                (2002/C 17/07)
(EAGGF — Clearance of accounts — Ineligible durum wheat
— Quantities missing from the stockpile — Withdrawal of
approval of undertakings packaging olive oil — Inadequate
  management and checks of premiums for sheep and goats)                                        (Language of the case: Italian)
                            (2002/C 17/06)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: Italian)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                            In Joined Cases C-541/99 and C-542/99: references to the
                                                                            Court under Article 234 EC from the Giudice di Pace
In Case C-147/99: Italian Republic (Agent: U. Leanza, assisted              (Magistrate), Viadana, (Italy) for preliminary rulings in the
by D. Del Gaizo) v Commission of the European Communities                   proceedings pending before that court between Cape Snc and
(Agent: F.P. Ruggeri Laderchi, assisted by A. Dal Ferro) —                  Idealservice Srl (C-541/99) and between Idealservice MN RE
application for annulment of the part concerning the Italian                Sas and OMAI Srl (C-542/99) — on the interpretation of
Republic of Commission Decision 1999/187/EC of 3 February                   Article 2(b) of Council Directive 93/13/EEC of 5 April 1993
1999 on the clearance of the accounts presented by the                      on unfair terms in consumer contracts (OJ 1993 L 95, p. 29)
Member States in respect of the expenditure for 1995 of the                 — the Court, composed of: F. Macken (Rapporteur), President
Guarantee Section of the European Agricultural Guidance and                 of the Chamber, C. Gulmann and J.-P. Puissochet, Judges;
Guarantee Fund (OJ 1999 L 61, p. 37) — the Court (Sixth                     J. Mischo, Advocate General; D. Louterman-Hubeau, Head of
Chamber), composed of: F. Macken, President of the Chamber,                 Division, for the Registrar, has given a judgment on 22 Novem-
N. Colneric, C. Gulmann (Rapporteur), V. Skouris and                        ber 2001, in which it has ruled:
J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General;
R. Grass, Registrar, has given a judgment on 22 November
2001, in which it:                                                          The term ‘consumer’, as defined in Article 2(b) of Council Directive
                                                                            93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,
1.    Dismisses the action;                                                 must be interpreted as referring solely to natural persons.
2.    Orders the Italian Republic to pay the costs.
                                                                            (1) OJ C 47 of 19.2.2000.
(1) OJ C 188 of 3.7.1999.


title: Case T-435/11: Action brought on 8 August 2011 — Universal Display v OHIM (UniversalPHOLED)

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/22

         Action brought on 8 August 2011 — Universal Display v OHIM (UniversalPHOLED)
   (Case T-435/11)
   2011/C 298/41
   Language of the case: English

      Parties

      Applicant: Universal Display Corp. (New Jersey, USA) (represented by: A. Poulter and C. Lehr, Solicitors)

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

      Form of order sought

               —

               Overturn the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 May 2011 in case R 215/2011-2; and

               —

               Accept the Community trade mark application and allow it to proceed to publication;

      Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘UniversalPHOLED’ for goods in class 1 — Community trade mark application No W01015224

      Decision of the Examiner: Refused the application for a Community trade mark

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 207/2009, as the Board of Appeal erred in its analysis of the registrability of the Community trade mark application ‘UniversalPHOLED’.


title: Case C-452/11 P: Appeal brought on 2 September 2011 by Heineken Nederland BV and Heineken NV against the judgment delivered by the General Court (Sixth Chamber, Extended Composition) on 16 June 2011 in Case T-240/07 Heineken Nederland BV and Heineken NV v European Commission

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/9

         Appeal brought on 2 September 2011 by Heineken Nederland BV and Heineken NV against the judgment delivered by the General Court (Sixth Chamber, Extended Composition) on 16 June 2011 in Case T-240/07 Heineken Nederland BV and Heineken NV v European Commission
   (Case C-452/11 P)
   2011/C 340/15
   Language of the case: Dutch

      Parties

      Appellants: Heineken Nederland BV and Heineken NV (represented by: T.R. Ottervanger and M.A. de Jong, advocaten)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside in whole or in part the judgment under appeal in accordance with the pleas in law put forward by this appeal, in so far as the appellants’ action was dismissed;

               —

               annul the decision at issue (1) in whole or in part in so far as it relates to the appellants;

               —

               cancel or reduce the fine imposed on the appellants;

               —

               in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

               —

               order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

      Pleas in law and main arguments

   In support of their appeal the appellants rely on six pleas in law:

                     By the first plea
                   the appellants submit that the General Court erred in deciding that the Commission was not obliged to grant access to InBev’s reply to the objections.

                     By the second plea
                   the appellants submit that the General Court erred in law in deciding that the Commission was correct in taking the view in relation to the off-trade segment that the conduct of the undertakings concerned could be characterised as a complex of agreements and/or concerted practices.

                     By the third plea
                   the appellants submit that the General Court exceeded the limits of its jurisdiction and erred in law in the manner in which it determined the starting date of the infringement.

                     By the fourth plea
                   the appellants submit that the General Court erred in law by failing to recognise that an unreasonably large fine was imposed on the appellants exclusively as a result of the excessive duration of the administrative procedure that was caused by the Commission itself.

                     By the fifth plea
                   the appellants submit that, particularly by failing — or at least by failing sufficiently — to consider the comparison with the Belgian beer case Interbrew and Alken-Maes, the General Court erred in law in taking the view that the Commission had not acted contrary to the principle of equal treatment.

                     By the sixth plea
                   the appellants submit that the 5 % reduction in the fine granted by the General Court on account of the excessive duration of the administrative procedure is insufficient in view of the particularly large fine imposed on the appellants and the fact that the Commission has no justification for exceeding a reasonable period of time.

      (1)  Commission Decision C(2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B-2/37.766 — Dutch beer market)


title: Judgment of the Court of 18 December 2014 in Case E-10/14 — Enes Deveci and Others v Scandinavian Airlines System Denmark-Norway-Sweden (Directive 2001/23/EC — Transfer of undertakings — Collective agreements — Freedom to conduct a business)

text:
               4.6.2015

               EN

               Official Journal of the European Union

               C 183/10

         JUDGMENT OF THE COURT
   of 18 December 2014
   in Case E-10/14
   Enes Deveci and Others v Scandinavian Airlines System Denmark-Norway-Sweden
   (Directive 2001/23/EC — Transfer of undertakings — Collective agreements — Freedom to conduct a business)
   (2015/C 183/11)
   In Case E-10/14, Enes Deveci and Others v Scandinavian Airlines System Denmark-Norway-Sweden – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice from Eidsivating Court of Appeal (Eidsivating lagmannsrett) concerning the interpretation of Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave judgment on 18 December 2014, the operative part of which is as follows:

               1.

               It is consistent with Article 3(3) of Directive 2001/23/EC when terms and conditions of pay enjoyed by the transferred employees under the collective agreement with the transferor are replaced, in conformity with national law, by conditions of pay laid down in the collective agreement in force with the transferee after the expiry of the former collective agreement.
               A pay reduction – whether significant or otherwise – cannot influence this assessment.
               However, the national court must assess whether the applicable national law provides for continuing effects in a situation such as the present. Article 3(3) of Directive 2001/23/EC has to be interpreted as meaning that terms and conditions laid down in a collective agreement to which such continuing effects apply constitute ‘terms and conditions agreed in any collective agreement’ so long as those employment relationships are not subject to a new collective agreement or new individual agreements are not concluded with the employees concerned.

               2.

               Article 3(3) of Directive 2001/23/EC does not prevent the transferee from applying to the transferred employees the transferee's collective agreement two months after the transfer, if that collective agreement is made applicable in accordance with national law.
               However, Article 3 of Directive 2001/23/EC precludes the possibility that transferred employees suffer a substantial loss of income, in comparison with their situation immediately prior to the transfer, because the duration of their service with the transferor is not sufficiently taken into account when their starting salary position at the transferee is determined and where the conditions for remuneration under the newly applicable collective agreement have regard, inter alia, to the length of service. In that determination the equivalent duration of service of those employees already in the service of the transferee must be taken into consideration.
               It is for the national court to examine whether the conditions of pay under the transferee's collective agreement take due account of the length of service.


title: Case T-138/13: Action brought on 2 March 2013 — Evonik Oil Additives v OHIM — BRB International (VISCOTECH)

text:
               18.5.2013

               EN

               Official Journal of the European Union

               C 141/23

         Action brought on 2 March 2013 — Evonik Oil Additives v OHIM — BRB International (VISCOTECH)
   (Case T-138/13)
   2013/C 141/42
   Language in which the application was lodged: German

      Parties

      Applicant: Evonik Oil Additives GmbH (Darmstadt, Germany) (represented by: J. Albrecht, lawyer)

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

      Other party to the proceedings before the Board of Appeal: BRB International BV (Ittervoort, Netherlands)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 December 2012 in Case R 907/2012-5;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: BRB International BV

      Community trade mark concerned: the word mark ‘VISCOTECH’ for goods in Classes 1 and 4

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

      Mark or sign cited in opposition: the national and international word marks ‘VISCOPLEX’ for goods in Classes 1 and 4

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the appeal was upheld and the opposition was rejected

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009


title: ORDER OF THE COURT OF FIRST INSTANCE of 23 July 1997 in Case T-85/96: Francis Alan Clarke v. European Centre for the Development of Vocational Training (Cedefop) (Case not proceeding to judgment)

text:
18 . 10 . 97             EN                 Official Journal of the European Communities                                  C 318/15
(Agents: Dimitrios Gouloussis and Blanca Vila Costa ) —                      ORDER OF THE COURT OF FIRST INSTANCE
application pursuant to Article 178 of the EC Treaty for                                          of 23 July 1997
compensation for the damage alleged to have been
suffered by the applicant as a result of the delay in                  in Case T-85/96: Francis Alan Clarke v. European Centre
collection by the carrier designated by the Commission of                for the Development of Vocational Training ( Cedefop ) (')
the olive oil made available by the applicant under a                                 (Case not proceeding to judgment)
tendering procedure for the free supply thereof to the
people of Georgia and Armenia — the Court of First                                                  ( 97IC 318/31 )
Instance ( Third Chamber), composed of B. Vesterdorf,
President, C. P. Briet and A. Potocki, Judges; H. Jung,                                (Language of the case: German)
Registrar, made an order on 18 July 1997, the operative
part of which is as follows:
                                                                       In Case T-85/96: Francis Alan Clarke, an official of the
                                                                       European Centre for the Development of Vocational
 1 . The application is dismissed as clearly inadmissible.             Training ( Cedefop ), resident at Eischen ( Luxembourg),
                                                                       represented by Frank Montag, of the Cologne and Brussels
2 . The applicant shall hear the costs.                                Bars, with an address for service in Luxembourg at the
                                                                       Chambers of Aloyse May, 31 Grand-Rue, against the
                                                                       European Centre for the Development of Vocational
(') OJ C 333 , 9 . 12 . 1995 .
                                                                       Training ( Cedefop ) ( Agent: Bertrand Wagenbaur) —
                                                                       application for the annulment of 1 . the decision of 5 April
                                                                        1996, as amended by the decision of 22 April 1996 and
                                                                       2 . the decision of 21 May 1996, whereby the defendant
                                                                       rejected an application for the extension of the applicant's
                                                                       secondment to the Statistical Office of the European
     ORDER OF THE COURT OF FIRST INSTANCE                              Communities in Luxembourg and ordered his posting to
                                                                       Thessaloniki — the Court of First Instance             ( Fifth
                           of 23 July 1997
                                                                       Chamber), composed of R. Garcia-Valdecasas, President,
       in Case T-24/96: U v. European Centre for the                   J. Azizi and M. Jaeger, Judges; H. Jung, Registrar, made
      Development of Vocational Training ( Cedefop ) (')               an order on 23 July 1997, the operative part of which is
                                                                       as follows :
              (Case not proceeding to judgment)
                            ( 97/C 318/30 )
                                                                       1 . There is no need for the action to proceed to
                                                                            judgment.
                (Language of the case: German)
                                                                       2. The applicant is ordered to bear his own costs and
In Case T-24/96 : U, an official of the European Centre for                 those incurred by the defendant in the interlocutory
the Development of Vocational Training ( Cedefop ),                         proceedings and these proceedings.
residing in Berlin, represented by Frank Montag,
Rechtsanwalt, Cologne and Brussels, with an address for                (') OJ C 233 , 10 . 8 . 1996 .
service in Luxembourg at the Chambers of Aloyse May,
31 Grand-Rue, v. European Centre for the Development
of Vocational Training ( Cedefop) ( Agent: Bertrand
Wagenbaur) — application for annulment of Cedefop's
decision of 8 February 1996 rejecting a request for an
extension of the applicant's secondment to the office of
the Commission of the European Communities in Berlin                        ORDER OF THE COURT OF FIRST INSTANCE
and ordering his posting to Thessaloniki — the Court of                                           of 24 July 1997
First Instance ( Fifth Chamber ), composed of: R. Garcfa
Valdecasas, President; J. Azizi and M. Jaeger, Judges;                 in Case T-573/93 ( 129): Manuel Francisco Caballero
H. Jung, Registrar, made an order on 23 July 1997, the                 Montoya v. Commission of the European Communities (')
operative part of which is as follows :                                                 (Judgments — Interpretation)
                                                                                ( 97IC 318/32 )
I. There is no need to give a decision on the application.
                                                                                (Language of the case: Spanish)
2 . The applicant is ordered to bear his own costs and to
     pay the costs incurred by the defendant in the
     proceedings for the interim relief and in the present             In Case T-573/93 ( 129 ): Manuel Francisco Caballero
     proceedings.                                                      Montoya, an official of the Commission of the European
                                                                       Communities, represented by Juan Ramon Iturriagagoitia
                                                                       Bassas, of the Madrid Bar, against Commission of the
H OJ C 133 , 4 . 5 . 1996 .
                                                                       European Communities ( Agents: Ana Maria Alves Vieira
                                                                       and Maria Isabel Jimenez Rojas ) — application for
                                                                       interpretation of the judgment of the Court of First


title: Case C-503/03: Action brought on 27 November 2003 by the Commission of the European Communities against the Kingdom of Spain

text:
C 21/26                  EN                       Official Journal of the European Union                                         24.1.2004
The applicant claims that the Court should:                               The Commission claims that the Court should:
—     Declare that, by approving Order No 783/98 without                  1.     Declare that, by failing to adopt the laws, regulations
      notifying it at the draft stage, the Portuguese Republic has               and administrative provisions necessary to comply with
      failed to fulfil its obligations under Article 8 of Directive              Directive 2001/12/EC (1) of the European Parliament and
      98/34/EC (1) of the European Parliament and of the                         of the Council of 26 February 2001 amending Council
      Council of 22 June 1998 laying down a procedure for                        Directive 91/440/EEC (2) on the development of the
      the provision of information in the field of technical                     Community’s railways, Directive 2001/13/EC (3) of the
      standards and regulations, in the version in force at the                  European Parliament and of the Council of 26 February
      material time;                                                             2001 amending Council Directive 95/18/EC (4) on the
                                                                                licensing of railway undertakings and Directive 2001/14/
—     Order the Portuguese Republic to pay the costs.                            EC (5) of the European Parliament and of the Council
                                                                                of 26 February 2001 on the allocation of railway
                                                                                infrastructure capacity and the levying of charges for the
                                                                                use of railway infrastructure and safety certification and,
                                                                                in any event, by not having communicated them to the
Pleas in law and main arguments                                                  Commission, the Kingdom of Sweden has failed to fulfil
                                                                                its obligations thereunder; and
Article 2 of the Regulamento da Navegação em Albufeiras                   2.     Order the Kingdom of Sweden to pay the costs.
(Waterway Navigation Regulations) (Order No 783/98 of
19 September 1998) contains technical regulations within the
meaning of Community law. It is a regulatory measure adopted
by the Government of the Portuguese Republic which is de jure
mandatory and which lays down the technical characteristics               Pleas in law and main arguments
(dimensions and power) which pleasure craft must observe in
order to be used in Portugal for pleasure navigation in public
waterways in Portugal, the only exception being the waterways
                                                                          The time-limit for transposition of the directives expired on
in the Douro River. The article thus manifestly applies to
                                                                          15 March 2003.
Portugal or, at least, to a major part of it. Accordingly, the
Portuguese Republic ought, pursuant to Article 8(1) of Direc-
tive 98/34/EC, to have forwarded to the Commission the draft
legislative measure which was adopted by the Portuguese                   (1 ) OJ 2001 L 75, p. 1.
Government as Order No 783/98.                                            (2 ) Of 29 July 1991 (OJ 1991 L 237, p. 1).
                                                                          (3 ) OJ 2001 L 75, p. 26.
                                                                          (4 ) Of 19 June 1995 (OJ 1995 L 143, p. 70).
                                                                          (5 ) OJ 2001 L 75, p. 29.
(1) OJ L 204 of 21.7.1998, p. 37.
Action brought on 26 November 2003 by the Com-                            Action brought on 27 November 2003 by the Com-
mission of the European Communities against the                           mission of the European Communities against the
                        Kingdom of Sweden                                                          Kingdom of Spain
                           (Case C-501/03)                                                          (Case C-503/03)
                            (2004/C 21/48)                                                           (2004/C 21/49)
An action against the Kingdom of Sweden was brought                       An action against the Kingdom of Spain was brought before
before the Court of Justice of the European Communities on                the Court of Justice of the European Communities on 27 No-
26 November 2003 by the Commission of the European                        vember 2003 by the Commission of the European Communi-
Communities, represented by W. Wils and K. Simonsson,                     ties, represented by Carmel O’Reilly and Luis Escobar Guerrero,
acting as Agents, with an address for service in Luxembourg.              acting as Agents, with an address for service in Luxembourg.
 ---pagebreak--- 24.1.2004              EN                          Official Journal of the European Union                                              C 21/27
The applicant claims that the Court should:                                The Spanish authorities have failed to fulfil the obligations
                                                                           deriving from Directive 64/221/EEC since, having established
                                                                           that the persons concerned are included in the SIS reporting
1.    Declare that (i) by rejecting a visa application for the             list and that they are covered by Community law, they
      entry into Spanish territory of two persons, both nationals          concluded automatically, and without carrying out an individ-
      of third countries (or of non-member countries), who are             ual assessment, that entry into Spanish territory and the visa
      members of a family of citizens of the European Union,               application had to be refused, and failed to carry out the
      on the sole ground that they are included in the national            necessary checks to ascertain whether that inclusion in the
      reporting list in the Schengen Information System of                 reporting list was well-founded as regards the requirements of
      persons not to be permitted entry (at the request of a               Community law.
      Member State) and, (ii) for failing to give adequate reasons
      for the refusal of the visa applications and entry, the
      Kingdom of Spain has failed to fulfil its obligations under          (1) OJ, English Special Edition Series I, Chapter 1963-1964, p. 117.
      Articles 1, 2, 3 and 6 of Directive 64/221/EEC of
      25 February 1964 (1) on the co ordination of special
      measures concerning the movement and residence of
      foreign nationals which are justified on grounds of public
      policy, public security or public health;
2.    Order the Kingdom of Spain to pay the costs.                         Action brought on 27 November 2003 by the Com-
                                                                           mission of the European Communities against the French
                                                                                Republic
                                                                                (Case C-504/03)
Pleas in law and main arguments                                                                       (2004/C 21/50)
                                                                           An action against the French Republic was brought before the
Directive 64/221/EEC constitutes the Community                             Court of Justice of the European Communities on 27 Novem-
implementing legislation on the movement and residence (for                ber 2003 by the Commission of the European Communities,
persons covered by Community law or citizens of a non-                     represented by J.-P. Keppenne and V. Di Bucci, acting as
member country who are members of a family of Community                    Agents, with an address for service in Luxembourg.
citizens); it precludes the inclusion of those persons in the
national reporting list of citizens not to be permitted entry
pursuant to Article 96 of the Convention implementing the                  The Commission of the European Communities claims that
Schengen Agreement, since the result of inclusion is as a rule             the Court should:
that all the Member States which apply the Schengen acquis
must refuse the person concerned entry to their territory.                 1.    declare that, by failing to bring into force within the
                                                                                period prescribed for that purpose the measures necessary
                                                                                to ensure reimbursement by Bull of the cash advance,
                                                                                including interest, in accordance with Commission
                                                                                Decision 2003/599/EC concerning the cash advance
Access by a citizen of the Union or of a third country who is a                  granted by France to Bull (notified under document
family member of a Community citizen to the territory of a                       number C(2002) 4366) (1), the French Republic has failed
Member State may be refused entry on grounds of public                           to fulfil its obligations under the fourth paragraph of
policy only when the person concerned represents a present,                      Article 249 EC and Articles 2 and 3 of the decision;
genuine and sufficiently serious threat, affecting a fundamental
interest of society. Facts constituting a threat to public policy
                                                                           2.    order the French Republic to pay the costs.
within the usual Community law meaning (Directive 64/221/
EEC) cannot be treated in the same way as facts constituting
such a threat within the meaning of Article 96(2) of the
Convention implementing the Schengen Agreement. In the
present case, the inclusion in the Schengen Information System             Pleas in law and main arguments
(SIS) at the request of Germany cannot constitute on its own a
sufficient indication of a genuine and serious threat to public
policy, given that on one hand the grounds for that inclusion              The French Republic has not taken any measures to comply
are not known, and on the other hand the parties concerned                 with the decision of 13 November 2002 and has not informed
legally reside in the territory of a Member State, which                   the Commission in due time of any proposals for alternative
constitutes evidence that there is no threat of that kind.                 measures.


title: Case F-95/10: Action brought on 8 October 2010 — Eberhard Bömcke v EIB

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/62

         Action brought on 8 October 2010 — Eberhard Bömcke v EIB
   (Case F-95/10)
   ()
   2010/C 328/101
   Language of the case: French

      Parties

      Applicant: Eberhard Bömcke (Athus, Belgium) (represented by: D. Lagasse, lawyer)

      Defendant: European Investment Bank

      Subject-matter and description of the proceedings

   Annulment of the decision taken by the Director of Human Resources of the defendant confirming that the applicant’s mandate as staff representative has expired and application for damages

      Form of order sought

               —

               Annul the decision of the Director of Human Resources of the EIB notified to the applicant by letter of 22 September 2010 and received on 24 September 2010;

               —

               Order the EIB to pay compensation for the non-material harm caused to the applicant by the above decision and in that regard award him the sum of EUR 25 000;

               —

               Order the EIB to pay the costs.