title: Case C-45/17: Request for a preliminary ruling from the Conseil d’État (France) lodged on 30 January 2017 — Frédéric Jahin v Ministre de l’Économie et des Finances, Ministre des Affaires sociales et de la Santé

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/15

         Request for a preliminary ruling from the Conseil d’État (France) lodged on 30 January 2017 — Frédéric Jahin v Ministre de l’Économie et des Finances, Ministre des Affaires sociales et de la Santé
   (Case C-45/17)
   (2017/C 121/21)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Frédéric Jahin

      Defendants: Ministre de l’Économie et des Finances, Ministre des Affaires sociales et de la Santé

      Questions referred

   Must Articles 63, 64 and 65 [TFEU] be interpreted as meaning that:

               1)

               the fact that a person insured under a social security scheme in a third country outside the European Union, other than members of the European Economic Area or Switzerland, is subject to contributions on income from assets provided for under French legislation and falling within the scope of Regulation (EC) No 883/2004 (1) of 29 April 2004, in the same way as persons insured under the social security scheme in France, whereas a person insured under the social security scheme of a Member State other than France cannot be subject to those contributions, taking into account the provisions of that regulation, constitutes a restriction on the movement of capital from and to third countries, which is in principle prohibited by Article 63 [TFEU];

               2)

               If that first question is answered in the affirmative, can that restriction on the movement of capital, which arises as a combined result of French legislation, which imposes the disputed contributions on all recipients of certain income from assets, without in itself making any distinction as to the place in which they are insured under a social security scheme, and a European Union act of secondary legislation, be regarded as compatible with the requirements of the said article of the Treaty on the Functioning of the European Union, in particular:

                           —

                           in light of Article 64(1) [TFEU], for the movement of capital falling within the scope of that paragraph, on the grounds that the restriction arises due to the application of the principle that the legislation of a single Member State is to apply, as provided in Article 11 of the Regulation [(EC) No 883/2004] of 29 April 2004, introduced into EU law by Article 13 of Regulation [(EEC) No 1408/71] of 14 June 1971, in other words, on a date prior to 31 December 1993, even though the contributions on income from assets in question were established or made applicable after 31 December 1993;

                           —

                           in light of Article 65(1) [TFEU], on the grounds that the French tax legislation, when applied in a way compliant with Regulation [(EC) No 883/2004] of 29 April 2004, creates a distinction between taxable persons whose situations differ in relation to the criterion for being insured under a social security scheme;

                           —

                           in light of the existence of overriding reasons in the public interest to justify a restriction on the free circulation of capital, derived from the fact that the provisions that might be regarded as restricting the movement of capital from or to a third country correspond to the aim of Regulation [(EC) No 883/2004] of 29 April 2004 of allowing free movement of workers within the European Union?

      (1)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).


title: Case C-34/01 to C-38/01: Reference for a preliminary ruling by the Corte Suprema di Cassazione — Sezione Tributaria by order of that court of 12 July 2000 in the case of Enirisorse SpA against Ministero delle Finanze

text:
10.3.2001              EN                  Official Journal of the European Communities                                        C 79/19
Reference for a preliminary ruling by the Hof van Beroep              The Applicant claims that the Court should:
te Brussel by order of 15 January 2001 in the case of NV
               Robelco and NV Robeco Groep                            —     declare that by failing to notify the laws, regulations
                                                                            and administrative provisions necessary to comply with
                                                                            European Parliament and Council Directive 98/4/EC (1) of
                         (Case C-23/01)                                     16 February 1998 amending Directive 93/38/EEC (2)
                                                                            coordinating the procurement procedures of entities
                                                                            operating in the water, energy, transport and telecom-
                         (2001/C 79/34)                                     munications sectors or by failing to adopt the measures
                                                                            to comply with it, the United Kingdom has failed to fulfil
                                                                            its obligations under Article 2(1) of the said Directive;
Reference has been made to the Court of Justice of the
European Communities by order of 15 January 2001 by the
                                                                      —     order the United Kingdom to pay the costs.
Hof van Beroep te Brussel (Court of Appeal, Brussels), which
was received at the Court Registry on 22 January 2001, for a
preliminary ruling in the case of NV Robelco and NV Robeco
Groep on the following questions:                                     Pleas in law and main arguments
—    Must Article 5(5) of First Council Directive 89/104/EEC          Article 249 EC (ex Article 189 of the EC Treaty), under which
     of 21 December 1988 to approximate the laws of the               a directive shall be binding, as to the result to be achieved,
     Member States relating to trade marks be interpreted             upon each Member State carries by implication an obligation
     as meaning that the possibility laid down therein for            on the Member States to observe the period for compliance
     protection by Member States can be afforded only against         laid down in the directive. That period expired on 16 February
     the use of a sign which is identical to the trade mark or        1999 without the United Kingdom having enacted the pro-
     can it also be afforded in that case against the use of a        visions necessary to comply with the directive referred to in
     sign similar to the trade mark?                                  the conclusions of the Commission.
—    If that protection can also be afforded against a sign           (1) OJ L 101, 1.4.1998, p. 1.
     similar to the trade mark, does unlawful similarity within       (2) OJ L 199, 9.8.1993, p. 84.
     the meaning of the abovementioned article require that
     confusion can arise as a consequence or is likelihood of
     association sufficient, in the sense that in the minds of
     those confronted by the trade mark and the sign one
     will suggest the other without any confusion resulting
     therefrom, or must no likelihood of association at all
     exist in this respect?
                                                                      Reference for a preliminary ruling by the Corte Suprema
                                                                      di Cassazione — Sezione Tributaria by order of that court
                                                                      of 12 July 2000 in the case of Enirisorse SpA against
                                                                                Ministero delle Finanze
                                                                                (Case C-34/01 to C-38/01)
                                                                                (2001/C 79/36)
Action brought on 24 January 2001 by the Commission of
the European Communities against the United Kingdom                   Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Corte Suprema di
                                                                      Cassazione — Sezione Tributaria (Supreme Court of Cassation,
                         (Case C-31/01)                               Tax Chamber) of 12 July 2000, which was received at the
                                                                      Court Registry on 25 January 2001, for a preliminary ruling
                                                                      in the case of Enirisorse SpA against Ministero delle Finanze
                         (2001/C 79/35)                               on the following questions:
                                                                      1.    Does allocation to a public undertaking — operating in
An action against the United Kingdom was brought before the                 the market for dockside unloading and loading of goods
Court of Justice of the European Communities on 24 January                  — of a significant proportion of a charge (port charge on
2001 by the Commission of the European Communities,                         loading and unloading goods) paid to the State by
represented by Mr Richard Wainwright, Principal Legal                       operators which have not obtained any services from that
Adviser, acting as Agent, with an address for service in                    undertaking, constitute a special or exclusive right or a
Luxembourg at the office of Mr Carlos Gómez de la Cruz,                    measure contrary to the rules of the Treaty, in particular
member of the Legal Service of the Commission, Centre                       the rules on competition, within the meaning of Article
Wagner.                                                                     90(1) of the Treaty?
 ---pagebreak--- C 79/20                EN                    Official Journal of the European Communities                                    10.3.2001
2.    Irrespective of the reply to the preceding question, does         The Applicant claims that the Court should:
      the allocation to such a public undertaking of a significant
      proportion of the proceeds from the charge amount to              —     declare that by failing to adopt the laws, regulations
      abuse of a dominant position as a result of a State                     or administrative provisions necessary to comply with
      legislative measure and is it thus contrary to Article 86 in            Council Directive 96/61/EC of 24 September 1996
      conjunction with Article 90 of the Treaty?                              concerning integral pollution prevention and control(1)
                                                                              or in any event by failing to inform the Commission
                                                                              thereof, the United Kingdom has failed to fulfil its
3.    May the allocation to such an undertaking of a significant              obligations under that Directive, and
      proportion of the abovementioned charge be defined as
      State aid, within the meaning of Article 92 of the Treaty,
                                                                        —     order the United Kingdom to pay the costs.
      and does it therefore justify, in the event that the
      Commission is either not notified or adopts a decision
      finding the aid to be incompatible with the common
      market, pursuant to Article 93, the exercise by national          Pleas in law and main arguments
      courts of their powers — in accordance with the case-law
      of the Court of Justice — to ensure disapplication of             Article 249 EC, under which a directive shall be binding, as to
      illegal and/or incompatible aid?                                  the result to be achieved, upon each Member State carries by
                                                                        implication an obligation on the Member States to observe the
4.    Does the appropriation to the abovementioned public               period for compliance laid down in the directive. That period
      undertaking, ab origine, of a significant proportion of the       expired on 30 October 1999 without the United Kingdom
      proceeds from a State charge levied for or upon the               having enacted the provisions necessary to comply with the
      unloading or loading of goods at ports, without such              directive referred to in the conclusions of the Commission.
      payment being reciprocated by any services rendered by
      the AMM itself, constitute a charge having an effect
                                                                        (1) OJ L 257, 10.10.1996, p. 26.
      equivalent to a customs duty on imports (prohibited by
      Articles 12 and 13 of the Treaty), or an internal taxation
      imposed on products of other Member States in excess of
      that imposed on similar domestic products (Article 95),
      or a barrier to imports, prohibited by Article 30?
5.    In the event that the national provisions are in conflict
      with Community law, do the factors set out in the
      foregoing paragraphs, considered individually, affect the         Action brought on 1 February 2001 by the Commission
      charge as a whole or only the portion allocated to the            of the European Communities against the Federal Repub-
      AMM?                                                                                lic of Germany
                                                                                (Case C-41/01)
                                                                                (2001/C 79/38)
                                                                        An action against the Federal Republic of Germany was
                                                                        brought before the Court of Justice on 1 February 2001 by the
                                                                        Commission of the European Communities, represented by
                                                                        Götz zur Hausen, Legal Adviser, of the Legal Service of the
Action brought on 29 January 2001 by the Commission of                  Commission of the European Communities, with an address
the European Communities against the United Kingdom                     for service in Luxembourg at the office of Carlos Gómez de la
                                                                        Cruz, of the Legal Service of the Commission of the European
                                                                        Communities, Wagner Centre C 254, Kirchberg.
                         (Case C-39/01)
                                                                        The applicant claims that the Court should:
                         (2001/C 79/37)
                                                                        (1) declare that, by having, contrary to the judgment of the
                                                                              Court of Justice of 22 October 1998 in Case C-301/95 (1),
An action against the United Kingdom was brought before the                   excluded in advance from the environmental impact
Court of Justice of the European Communities on 29 January                    assessment requirement whole classes of projects listed
2001 by the Commission of the European Communities,                           in Annex II to Council Directive 85/337/EEC (2) of 27 June
represented by Mr Richard Wainwright, Principal Legal                         1985 on the assessment of the effects of certain public
Adviser, acting as agent, with an address for service at the                  and private projects on the environment, the Federal
office of Mr Carlos Gómez de la Cruz, a member of its Legal                  Republic of Germany has failed to comply with its
Service, at the Wagner Centre, Kirchberg, Luxembourg.                         obligations under Article 228 of the EC Treaty;


title: Case C-10/12 P: Appeal brought on 5 January 2012 by Transnational Company ‘Kazchrome’ AO, ENRC Marketing AG against the judgment of the General Court (Second Chamber) delivered on 25 October 2011 in Case T-192/08: Transnational Company ‘Kazchrome’ AO, ENRC Marketing AG v Council of the European Union

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/9

         Appeal brought on 5 January 2012 by Transnational Company ‘Kazchrome’ AO, ENRC Marketing AG against the judgment of the General Court (Second Chamber) delivered on 25 October 2011 in Case T-192/08: Transnational Company ‘Kazchrome’ AO, ENRC Marketing AG v Council of the European Union
   (Case C-10/12 P)
   2012/C 65/18
   Language of the case: English

      Parties

      Appellants: Transnational Company ‘Kazchrome’ AO, ENRC Marketing AG (represented by: A. Willems, avocat, S. De Knop, advocate)

      Other parties to the proceedings: Council of the European Union, European Commission, Euroalliages

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside the judgement of the General Court of 25 October 2011 insofar as the General Court did not annul the Contested Regulation and insofar as it ordered the Appellants to bear the costs incurred for the procedure before the General Court;

               —

               adopt a definitive ruling and annul the Contested Regulation;

               —

               order the Council to pay the costs of the appeal and of the procedure before the General Court;

               —

               order any intervener(s) to pay the costs of the Appeal and of the procedure before the General Court.

      Pleas in law and main arguments

   The Appellants submit that the General Court:

               —

               Erred in law in holding that the Institutions’ violations of Article 3(7) of the Basic Regulation (1) were insufficient to annul the Contested Regulation (2);

               —

               Erred in law in holding that the Institutions were not required to conduct a collective analysis of the injurious effects caused by factors other than the dumped imports;

               —

               Erred in ordering the Appellants to pay the costs of the Council and of Euroalliages.

      (1)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community
   OJ L 56, p. 1

      (2)  Council Regulation (EC) No 172/2008 of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia
   OJ L 55, p. 6


title: Judgment of the Court of First Instance of 31 May 2005 in Case T-373/03 Solo Italia Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark PARMITALIA — Time-limit for bringing an appeal against the decision of the Opposition Division — Article 59 of Regulation (EC) No 40/94 — Rule 48 of Regulation (EC) No 2868/95 — Inadmissibility of the appeal)

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/27

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 31 May 2005
   in Case T-373/03 Solo Italia Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Word mark PARMITALIA - Time-limit for bringing an appeal against the decision of the Opposition Division - Article 59 of Regulation (EC) No 40/94 - Rule 48 of Regulation (EC) No 2868/95 - Inadmissibility of the appeal)
   (2005/C 193/44)
   Language of the case: French
   In Case T-373/03: Solo Italia Srl, established in Ossona (Italy), represented by A. Bensoussan, M.-E. Haas and L. Tellier-Loniewski, lawyers, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: I. de Medrano Caballero and A. Folliard-Monguiral), the other party to the proceedings before the Board of Appeal of OHIM and intervener before the Court of First Instance being Nuova Sala Srl, established in Brescia (Italy), represented by E. Gavuzzi, S. Hassan and C. Pastore, lawyers — application brought against the decision of the Second Board of Appeal of OHIM of 10 September 2003 (Case R 208/2003-2), confirming the refusal to register the word mark PARMITALIA — the Court of First Instance (First Chamber), composed of J.D. Cooke, President, I. Labucka and V. Trstenjak, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 31 May 2005, in which it:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 21 of 24.1.2004.


title: Case T-420/12: Action brought on 25 September 2012 — VHV v Commission

text:
               1.12.2012

               EN

               Official Journal of the European Union

               C 373/8

         Action brought on 25 September 2012 — VHV v Commission
   (Case T-420/12)
   2012/C 373/13
   Language of the case: German

      Parties

      Applicant: VHV Allgemeine Versicherung AG (Hanover, Germany) (represented by: A. Birnstiel, H. Heinrich and J.-O. Schrotz, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision of the European Commission of 17 July 2012 refusing the applicant’s request under Regulation (EC) No 1049/2001 (1) for access to certain documents in cartel proceedings (COMP/39.125 — Carglass);

               —

               order the defendant to bear its own costs and to pay those incurred by the applicant.

      Pleas in law and main arguments

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

               1.

               First plea in law: No examination of the individual documents requested
               In the context of the first plea the applicant submits that the decision is not based on a concrete and individual examination of each individual document. According to the applicant, the contested decision is based on the legally incorrect assumption that there was a general presumption in the present case that an exception would apply.

               2.

               Second plea in law: Infringement of the obligation to state reasons
               Here the applicant submits that, in its decision, the Commission provided merely sweeping considerations as reasons for the comprehensive refusal of the applicant’s request and therefore did not provide sufficient reasons for its decision. In the applicant’s view, that constitutes an infringement of the obligation to state reasons and therefore an infringement of essential procedural requirements.

               3.

               Third plea in law: Legally incorrect interpretation and application of the first and third indents of Article 4(2) of Regulation No 1049/2001
               With the third plea, the applicant submits that the Commission’s interpretation and application of the exceptions set out in the first and third indents of Article 4(2) of Regulation No 1049/2001 were legally incorrect. In the applicant’s view, the Commission failed to take account of the ‘rule-exception’ relationship and proceeded on the basis of a much too broad understanding of ‘protection of investigations’ and of the term ‘commercial interests’.

               4.

               Fourth plea in law: Failure to take into consideration the fact that the enforcement of cartel law under private law is a public interest within the meaning of Article 4(2) of Regulation No 1049/2001
               In the fourth plea the applicant submits that the Commission erred in finding that there was no overriding public interest in the disclosure of the requested documents. In the applicant’s view the Commission should, in particular in the context of the balancing of the interests, have taken into account the fact that the enforcement of cartel law under private law also constitutes a public interest within the meaning of Article 4(2) of Regulation No 1049/2001.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


title: Case C-218/08: Order of the President of the Court of 18 November 2008 — Commission of the European Communities v Italian Republic

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/33

         Order of the President of the Court of 18 November 2008 — Commission of the European Communities v Italian Republic
   (Case C-218/08) (1)

   (2009/C 69/76)

      Language of the case: Italian

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

      (1)  OJ C 197, 2.8.2008.


title: Case T-437/14: Action brought on 16 June 2014 — United Kingdom v Commission

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/43

         Action brought on 16 June 2014 — United Kingdom v Commission
   (Case T-437/14)
   2014/C 282/57
   Language of the case: English

      Parties

      Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: V. Wakefield, Barrister, and M. Holt, agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul nine entries (namely the eighth, ninth and tenth entries on p. 51; and the first to sixth entries on p. 52) from the Annex to Commission Implementing Decision of 4 April 2014 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C (2014) 2008) (OJ L 104, p. 43);

               —

               Order the Commission to pay the United Kingdom’s costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on three pleas in law, all of which relate to the Commission’s interpretation of Statutory Management Requirement 8 (‘SMR 8’) in Council Regulation (EC) No 1782/2003 (1), Council Regulation (EC) No 73/2009 (2) and Council Regulation (EC) No 21/2004 (3).

               1.

               First plea in law, alleging that the Commission has committed an error in its interpretation of SMR 8. The three principal arguments in support of that plea are that:

                           —

                           the legislative decision to exclude Articles 6, 7 and 8 from SMR 8 must be given effect;

                           —

                           the inclusion of Articles 4 and 5 in SMR 8 indicates that Article 3 is insufficient to establish any of its ‘elements’ as cross-compliance obligations; and

                           —

                           there is a purposive logic to the EU legislature’s decision to treat Articles 4 and 5 differently from Articles 6, 7 and 8.

               2.

               Second plea in law, alleging that, in its interpretation of SMR 8, the Commission has acted in breach of the principle of legal certainty, which applies with particular force where a measure leads to financial consequences and/or the imposition of a penalty, requires that any uncertainty be resolved in favour of the farmer.

               3.

               Third plea in law, alleging that, in its interpretation of SMR 8, the Commission has acted in breach of the principles of non-discrimination and equal treatment, which require that a farmer who has failed to comply with an article of Regulation 21/2004 which is not listed in SMR 8 should not be treated in the same way as a farmer who has failed to comply with an article of Regulation 21/2004 which is listed in SMR 8.

      (1)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ L 270, p. 1)

      (2)  Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ L 30, p. 16)

      (3)  Council Regulation (EC) No 21/2004 of 17 December 2003 establishing a system for the identification and registration of ovine and caprine animals and amending Regulation (EC) No 1782/2003 and Directives 92/102/EEC and 64/432/EEC (OJ L 5, p. 8)


title: Case C-49/06: Action brought on  30 January 2006  by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/32

         Action brought on 30 January 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg
   (Case C-49/06)
   (2006/C 60/62)
   Language of the case: French
   An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 30 January 2006 by the Commission of the European Communities, represented by N. Yerrell, acting as Agent, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/37/EC of 29 April 1999 on the registration documents for vehicles, (1) or, in any event, by not informing the Commission of their adoption, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

               2.

               order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments
   The period prescribed for implementing Directive 1999/37/EC expired on 1 June 2004.

      (1)  OJ L 138 of 1.6.1999, p. 57


title: Joined Cases C-145/08 and C-149/08: Judgment of the Court (Fourth Chamber) of 6 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias (C-145/08) and Aktor Anonimi Tekhniki Etairia (Aktor ATE) v Ethniko Simvoulio Radiotileorasis (C-149/08) (Directive 92/50/EEC — Public service contracts — Service concessions — Mixed contract — Contract including the transfer of a block of shares in a public casino business — Contract under which the contracting authority entrusts to the contracting undertaking the management of a casino business and the execution of a development plan consisting in upgrading the casino premises and improving the surrounding area — Directive 89/665/EEC — Decision of the contracting authority — Effective and rapid remedies — National procedural law — Criteria for the award of damages — Prior annulment of the unlawful act or omission or a finding of its nullity by the competent court — Members of a consortium in a public procurement procedure — Decision adopted in the context of that procedure by an authority other than the contracting authority — Action brought, individually, by some members of the consortium — Admissibility)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/2

         Judgment of the Court (Fourth Chamber) of 6 May 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis v Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias (C-145/08) and Aktor Anonimi Tekhniki Etairia (Aktor ATE) v Ethniko Simvoulio Radiotileorasis (C-149/08)
   (Joined Cases C-145/08 and C-149/08) (1)

   (Directive 92/50/EEC - Public service contracts - Service concessions - Mixed contract - Contract including the transfer of a block of shares in a public casino business - Contract under which the contracting authority entrusts to the contracting undertaking the management of a casino business and the execution of a development plan consisting in upgrading the casino premises and improving the surrounding area - Directive 89/665/EEC - Decision of the contracting authority - Effective and rapid remedies - National procedural law - Criteria for the award of damages - Prior annulment of the unlawful act or omission or a finding of its nullity by the competent court - Members of a consortium in a public procurement procedure - Decision adopted in the context of that procedure by an authority other than the contracting authority - Action brought, individually, by some members of the consortium - Admissibility)
   2010/C 179/02
   Language of the case: Greek

      Referring court

   Simvoulio tis Epikratias

      Parties to the main proceedings

      Applicants: Club Hotel Loutraki AE, Athinaïki Techniki AE, Evangelos Marinakis

      Defendants: Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias

      Interveners in support of the defendants: Athens Resort Casino AE Simmetokhon, Ellaktor AE, formerly Elliniki Tekhnodomiki TEV AE, Regency Entertainment Psikhagogiki kai Touristiki AE, formerly Hyatt Regency Xenodokhiaki kai Touristiki (Ellas) AE, Leonidas Bompolas (C-145/08)
   and

      Applicant: Aktor Anonimi Tekhniki Etairia (Aktor ATE)

      Defendant: Ethniko Simvoulio Radiotileorasis

      Intervening party: Mikhaniki AE (C-149/08)

      Re:

   Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Articles 3(2), 9, 14 and 16 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) — Scope — Mixed agreement involving a contract for the sale of shares and a service concession — Interpretation of Articles 1(3) and 2 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33) — National legislation prohibiting members of a consortium without legal personality that has submitted a tender from bringing individually legal actions against acts falling within the procedure for award of the contract

      Operative part of the judgment

               1.

               A mixed contract of which the main object is the acquisition by an undertaking of 49 % of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, is the supply of services and the performance of works does not, as a whole, fall within the scope of the directives on public contracts.

               2.

               European Union law, in particular the right to effective judicial protection, precludes a national rule, such as that at issue in the main proceedings, interpreted as meaning that the members of a temporary association, tenderer in a public procurement procedure, are deprived of the possibility of seeking, individually, compensation for the loss which they suffered individually as a result of a decision adopted by an authority, other than the contracting authority, involved in that procedure in accordance with the applicable national rules, which is such as to influence the conduct of that procedure.

      (1)  OJ C 142, 7.6.2008.


title: Case C-329/11: Reference for a preliminary ruling from the Cour d’Appel de Paris (France) lodged on 29 June 2011 — Alexandre Achughbabian v Préfet du Val-de-Marne

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/10

         Reference for a preliminary ruling from the Cour d’Appel de Paris (France) lodged on 29 June 2011 — Alexandre Achughbabian v Préfet du Val-de-Marne
   (Case C-329/11)
   2011/C 298/19
   Language of the case: French

      Referring court

   Cour d’Appel de Paris

      Parties to the main proceedings

      Applicant: Alexandre Achughbabian

      Defendant: Préfet du Val-de-Marne

      Question referred

   Taking into account its scope, does Directive 2008/115/EC of 16 December 2008 (1) preclude national legislation, such as Article L.621-1 of the code de l'entrée et du séjour des étrangers et du droit d'asile (Code on the entry and stay of foreign nationals and on the right to asylum), which provides for the imposition of a sentence of imprisonment on a third-country national on the sole ground of his illegal entry or residence in national territory?

      (1)  Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348, 24.12.2008, p. 98).


title: Case T-292/13: Order of the General Court of 10 November 2014  — Evangelou v Commission and ECB (Action for annulment and compensation — Stability support programme for Cyprus — Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the ESM — Jurisdiction of the General Court — Causal link — Action in part inadmissible and in part manifestly lacking any foundation in law)

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/30

         Order of the General Court of 10 November 2014 — Evangelou v Commission and ECB
   (Case T-292/13) (1)

   ((Action for annulment and compensation - Stability support programme for Cyprus - Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the ESM - Jurisdiction of the General Court - Causal link - Action in part inadmissible and in part manifestly lacking any foundation in law))
   (2015/C 026/37)
   Language of the case: English

      Parties

      Applicant: Christos Evangelou (Derynia, Cyprus); and Yvonne Evangelou (Derynia) (represented by: C. Paschalides, Solicitor, and A. Paschalides, lawyer)

      Defendants: European Commission (represented by: B. Smulders and J.-P. Keppenne, Agents); and European Central Bank (ECB) (represented by: A. Sáinz de Vicuña Barroso, N. Lenihan and F. Athanasiou, Agents, and by W. Bussian, W. Devroe and D. Arts, lawyers)

      Re:

   First, application for annulment of paragraphs 1.23 to 1.27 of the Memorandum of Understanding on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) on 26 April 2013, and, second, for compensation for damage allegedly suffered by the applicant as a result of the inclusion of paragraphs 1.23 to 1.27 in the Memorandum of Understanding and an infringement of the Commission’s supervisory obligation.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Mr Christos Evangelou and Ms Yvonne Evangelou shall bear their own costs and pay those incurred by the European Commission and by the European Central Bank (ECB).

      (1)  OJ C 226, 3.8.2013.


title: Case C-206/02 P: Appeal brought on 3 June 2002 by LR af 1998 A/S, formerly Løgstør Rør A/S, against the judgment delivered on 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-23/99 between LR af 1998 A/S, formerly Løgstør Rør A/S, and the Commission of the European Communities

text:
C 202/4                 EN                    Official Journal of the European Communities                                       24.8.2002
—     but in any event order the Commission of the European              European Communities in case T-23/99 between LR af 1998
      Communities to pay the costs of the proceedings at first           A/S, formerly Løgstør Rør A/S, and the Commission of the
      instance and on appeal.                                            European Commuinities, was brought before the Court of
                                                                         Justice of the European Communities on 3 June 2002 by LR af
                                                                         1998 A/S, formerly Løgstør Rør A/S, established in Løgstør,
Pleas and main arguments                                                 Denmark, represented by D. Waelbroeck and H. Peytz, lawyers.
—     Infringement of substantive Community law
      —     Infringement of the business principle (equal treat-
            ment and reliance on previous decision-making                The Appellant claims that the Court should:
            practice): the Commission was not entitled to depart
            from its previous decision-making practice and to
            apply the ‘guidelines’ particularly since it promised        —     annul the contested judgment of the Court of First
            the appellant advantages for cooperation (infor-                   Instance of 20 March 2002 in Case T-23/99;
            mation concerning cooperation). By securing coop-
            eration the Commission was bound to existing
            practices in regard to the setting of fines.                 —     annul the Commission’s Decision of 21 October 1998,
                                                                               as modified by a decision of 6 November 1998 in Case
      —     Infringement of the principle of equal treatment and               IV/35.691, District Heating Pipes, fining the Appellant or
            discrimination (in relation to the duration of the                 at the very least substantially reduce the amount of the
            infringement): Whilst, according to the intendment                 fine, or in the alternative refer the case back to the Court
            and wording of the guidelines, fines are to be                     of First Instance for judgment;
            graduated in line with the duration of an infringe-
            ment, the judgment appealed against admits, in the
            appellant’s case, of a clearly greater than linear
            increase even where the reference period of one year         —     declare the Guidelines on the method of setting fines
            has been exceeded only by three months.                            pursuant to Article 15(2) of Regulation 17/62 (2) and
                                                                               Article 65(5) of the ECSC Treaty, (OJ 1998 C 9/3) illegal
      —     Infringement of the prohibition of retroactive effect              pursuant to Article 241 of the EC Treaty; and
            owing to application of the ‘guidelines’ inasmuch as,
            for the purpose of determining the fine, those
            guidelines have regard to overall turnover instead of        —     order the Commission to pay the costs.
            product turnover, as before.
—     Infringement of essential procedural requirements
      —     Infringement of the right to be heard;
      —     Infringement of the duty to provide a statement of           Pleas in law and main arguments
            reasons.
(1) KE KELIT Kunststoffwerke Gesellschaft m.b.H v Commission of
    the European Communities [2002] ECR II-0000.
                                                                         Erroneous appreciation of the criteria for setting the fine
                                                                         (infringement of Article 15(2) of Regulation 17/62 and the
                                                                         principles of proportionality and equal treatment; misapplica-
                                                                         tion or — in the alternative — illegality of the 1998
                                                                         Guidelines): the Court of First Instance cannot claim to have
                                                                         taken sufficiently account of all factors relevant to the fine in
Appeal brought on 3 June 2002 by LR af 1998 A/S,                         upholding the Commission’s calculation of the fine starting
formerly Løgstør Rør A/S, against the judgment delivered                 from a basic amount which, in the case of the Appellant, was
on 20 March 2002 by the Fourth Chamber of the Court                      set so high that adjustments for duration, aggravating, and
of First Instance of the European Communities in case                    mitigating factors, all took place or would have taken place at
T-23/99 (1) between LR af 1998 A/S, formerly Løgstør Rør                 a level high above the maximum limit of the fine (10 % of
 A/S, and the Commission of the European Communities                     world wide turnover) set out in Regulation 17/62. The entire
                                                                         method for calculation of the fine is flawed and represents a
                                                                         wrong interpretation and application of Regulation 17/62.
                         (Case C-206/02 P)
                                                                         The method results in final fines which do not reflect properly
                                                                         the relevant individual factors, and do not even reflect the
                          (2002/C 202/05)                                relative size of the basic amounts chosen by the Commission
                                                                         as adjusted for relevant factors, but instead — in the case of all
                                                                         undertakings in categories 2 and 3 — solely reflect the size
An appeal against the judgment delivered on 20 March 2002                of the undertakings’ world wide group turnover, thereby
by the Fourth Chamber of the Court of First Instance of the              attributing a disproportionate importance to this figure.
 ---pagebreak--- 24.8.2002               EN                     Official Journal of the European Communities                                        C 202/5
Infringement of the principles of legitimate expectations and             The appellant claims that the Court should:
of non-retroactivity: the Court of First Instance erred in law in
considering that the discretion of the Commission to set fines
and its right ‘to raise the general level of fines’ take precedence
                                                                          1.    At the same time as setting aside the judgment at first
over Article 7 of the European Convention of Human Rights
                                                                                instance of 20 March 2002, set aside Article 1 of the
and Fundamental Freedoms, as introduced in EC law by
                                                                                Commission Decisions of 21 October 1998 (Com(1998)
Article 49 of the Charter of Fundamental Rights of the
                                                                                3117 fin.) and 6 November 1998 (Com(1098) 3415 fin.
European Union. The Appellant was entitled to rely on the
                                                                                and Com(1998) 3117 fin. corrig.) (2) to the extent to
Commission’s practice on the setting of fines applicable at the
                                                                                which the appellant is therein accused of participating in
time when it approached the Commission. Moreover, a right
                                                                                an agreement and in the conduct of concerted practices
to increase the general level of fines within the prescribed
                                                                                against Powerpipe AB; annul Article 3 of those Com-
ceiling cannot be compared with the adoption in casu of a true
                                                                                mission decisions. In the alternative the appellant seeks a
quasi-legislation in the form of guidelines and notices which
                                                                                reduction, as the Court deems fit, of the fine imposed on
alter entirely the whole method of setting the fines.
                                                                                it in Article 3.
Insufficient regard to mitigating circumstances                           2.    Order the Commission to pay the appellant’s costs at first
                                                                                instance and on appeal.
Incorrect application of the Leniency Notice
(1) OJ C 86, 27.03.1999, p. 31.
(2) EEC Council: Regulation No 17: First Regulation implementing
    Articles 85 and 86 of the Treaty (OJ L 13, 21.02.1962, p. 204         Pleas and main arguments
    [SE SER1 (59-62) p. 87]).
                                                                          —     Infringements of the prohibition of retroactive effect, the
                                                                                principle of protection of legitimate expectations and the
                                                                                principle of sound administration in the setting of fines:
                                                                                the retroactive application of the ‘guidelines’ leads in the
                                                                                appellant’s case more or less to a trebling of the fine in
                                                                                consequence not of an individual assessment but of a
                                                                                regulation operating in the nature of a penalty.
Appeal brought on 4 June 2002 by Brugg Rohrsysteme                        —     Infringement of the principle of protection of legitimate
GmbH against the judgment delivered on 20 March 2002                            expectations as a result of the alteration of the method
by the Fourth Chamber of the Court of First Instance of                         for setting fines after cooperation with the appellant. An
the European Communities in Case T-15/99 between                                undertaking which cooperates has a legitimate expec-
Brugg Rohrsysteme GmbH and the Commission of the                                tation that the Commission will not subsequently alter
                     European Communities                                       the principles determining the calculation of fines in such
                                                                                a way that cooperation is in the end to no avail.
                         (Case C-207/02 P)
                                                                          —     Infringement of the rights of the defence as a result of
                          (2002/C 202/06)                                       application of the new guidelines on setting fines without
                                                                                affording the appellant the right to be heard.
                                                                          —     Infringement of the principle of equal treatment by failure
An appeal against the judgment delivered on 20 March 2002                       to reduce the starting amount for setting the appellant’s
by the Fourth Chamber of the Court of First Instance of the                     fine: the Court and the Commission are mistaken as to
European Communities in Case T-15/99 between Brugg                              the scope and significance of the 10 percent limit in
Rohrsysteme GmbH and the Commission of the European                             Article 15(2) of Regulation No 17. It is not only the final
Communities (1) was brought before the Court of Justice of the                  amount of the calculation which is decisive: rather in the
European Communities on 4 June 2002 by Brugg Rohrsysteme                        course of the calculation no amount may exceed the 10 %
GmbH, represented by Dr Thomas Jestaedt, Prof. Dr Hans-                         limit. On account of the ratio of 5 to 1 (which is not
Joachim Salger and Dr Martin Sura, of the law firm, Lovells, in                 disputed) between the third and fourth categories of the
Brussels, with an address for service in Luxembourg at the                      undertakings concerned the starting amount should also
Chambers of Philippe Dupont, of Arendt & Medernach.                             have been reduced for the appellant.


title: Case T-456/11: Action brought on 12 August 2011 — ICdA and Others v Commission

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/27

         Action brought on 12 August 2011 — ICdA and Others v Commission
   (Case T-456/11)
   2011/C 298/50
   Language of the case: English

      Parties

      Applicants: International Cadmium Association (ICdA) (Bruxelles, Belgium), Rockwood Pigments (UK) Ltd (Stoke-on-Trent, United Kingdom) and James M Brown Ltd (Stoke-on-Trent, United Kingdom) (represented by: R. Cana and K. Van Maldegem, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Contested Act, in so far, as it restricts the use of cadmium pigments in plastic materials, other than those plastic materials in which the use was restricted before the adoption of the Contested Act; and

               —

               Order the Commission to pay all the cost and expenses.

      Pleas in law and main arguments

   In support of the action, the applicants rely on eight pleas in law.

               1.

               First plea in law, alleging

                           —

                           that the contested regulation infringes Articles 137 (1)(a) and 68-71 of the REACH Regulation (1);

               2.

               Second plea in law, alleging

                           —

                           that the contested regulation is based on a manifest error of assessment;

               3.

               Third plea in law, alleging

                           —

                           that the contested regulation infringes the principle of legal certainty and legitimate expectations;

               4.

               Fourth plea in law, alleging

                           —

                           that the contested regulation infringes REACH regulation in so far as it imposes restrictions on a group of substances, not assessed individually;

               5.

               Fifth plea in law, alleging

                           —

                           that the contested regulation infringes the TBT agreement;

               6.

               Sixth plea in law, alleging

                           —

                           that the contested regulation infringes the applicants’ procedural rights;

               7.

               Seventh plea in law, alleging

                           —

                           that the contested regulation is inadequately reasoned, contrary to Article 296 TFEU;

               8.

               Eight plea in law, alleging

                           —

                           that the contested regulation infringes the principle of proportionality.

      (1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1)


title: Case C-75/07: Action brought on 12 February 2007 — Commission of the European Communities v French Republic

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/20

         Action brought on 12 February 2007 — Commission of the European Communities v French Republic
   (Case C-75/07)
   (2007/C 95/35)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: B. Stromsky, Agent)

      Defendant: French Republic
   Form of order sought

               —

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/28/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/82/EC on the Community code relating to veterinary medicinal products (1), the French Republic has failed to fulfil its obligations under Article 3 of that directive;
               in the alternative:
               declare that, by failing to communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Directive 2004/28/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/82/EC on the Community code relating to veterinary medicinal products, the French Republic has failed to fulfil its obligations under Article 3 of that directive;

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposing Directive 2004/28/EC expired on 30 October 2005.

      (1)  OJ 2004 L 136, p. 58.


title: Case C-284/04: Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 7 June 2004 in the case of T-Mobile Austria GmbH against the Republic of Austria

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/12

         Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that court of 7 June 2004 in the case of T-Mobile Austria GmbH against the Republic of Austria
   (Case C-284/04)
   (2004/C 262/24)
   Reference has been made to the Court of Justice of the European Communities by order of the Landesgericht für Zivilrechtssachen Wien (Regional Civil Court, Vienna) (Austria), of 7 June 2004, which was received at the Court Registry on 1 July 2004, for a preliminary ruling in the case of T-Mobile Austria GmbH against the Republic of Austria.
   The Landesgericht für Zivilrechtssachen Wien asks the Court of Justice to give a preliminary ruling on the following questions:

               1.

               Is the third subparagraph of Article 4(5) of, in conjunction with No 1 of Annex D to, the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment — (‘the Sixth Directive’) to be interpreted as meaning that the allocation of rights to use frequencies for mobile telecommunications systems in accordance with the UMTS/IMT-2000, GSM-DCS-1800 and TETRA standards (‘frequency use rights for mobile telecommunications systems’) by a Member State in return for a frequency use payment is a telecommunications activity?

               2.

               Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that a Member State whose national law does not provide for the criterion mentioned in the third subparagraph of Article 4(5) of the directive of the ‘non-negligible’ extent of an activity (the de minimis rule) as a condition for having the status of taxable person must therefore be regarded as a taxable person for all telecommunications activities in every case regardless of whether the extent of those activities is negligible?

               3.

               Is the third subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State in return for frequency use payments of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA) is to be regarded as an activity of non-negligible extent, so that the Member State is considered a taxable person in respect of that activity?

               4.

               Is the second subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that it would lead to significant distortions of competition if a Member State, when allocating frequency use rights for mobile telecommunications systems in return for payment of a total of EUR 831 595 241.10 (UMTS/IMT 2000) or EUR 98 108 326.00 (DCS-1800 channels) or EUR 4 832 743.47 (TETRA), does not subject those payments to turnover tax and private bidders for those frequencies must subject that activity to turnover tax?

               5.

               Is the first subparagraph of Article 4(5) of the Sixth Directive to be interpreted as meaning that an activity of a Member State which allocates frequency use rights for mobile telecommunications systems to mobile telecommunications operators in such a way that a highest bid for the frequency use payment is first ascertained in an auction procedure and the frequencies are then allocated to the highest bidder does not take place in the exercise of public authority, so that the Member State is considered a taxable person in respect of that activity, regardless of the legal nature under the Member State's national law of the act which effects the allocation?

               6.

               Is Article 4(2) of the Sixth Directive to be interpreted as meaning that the allocation of frequency use rights for mobile telecommunications systems by a Member State described in Question 5 is to be regarded as an economic activity, so that the Member State is considered a taxable person in respect of that activity?

               7.

               Is the Sixth Directive to be interpreted as meaning that the frequency use payments determined for the allocation of frequency use rights for mobile telecommunications systems are gross payments (which already include value added tax) or net payments (to which value added tax may still be added)?

      (1)  OJ L 145, p. 1.


title: Action brought on 5 March 1998 by Sadam Zuccherifici Divisione della Seci, Sadam Castiglionese Spa, Sadam Abruzzo Spa, Zuccherificio del Molise Spa and Società Fondiaria Industriale Romagnola Sfir Spa v. Council of the European Union (Case T-39/98)

text:
2.5.98                   EN                 Official Journal of the European Communities                                  C 137/19
Action brought on 5 March 1998 by Sadam Zuccherifici                   Ð annul the decision of the appointing authority of
Divisione della Seci, Sadam Castiglionese Spa, Sadam                       8 December 1997 rejecting the applicant's complaint
Abruzzo Spa, Zuccherificio del Molise Spa and SocietaÁ                     through official channels lodged pursuant to
Fondiaria Industriale Romagnola Sfir Spa v. Council of the                 Article 9(2) of the Staff Regulations inasmuch as it
                          European Union                                   does not take account of certified professional
                           (Case T-39/98)                                  experience,
                            (98/C 137/41)
                                                                       Ð order the defendant to pay BEF 2 130 849,
                  (Language of the case: Italian)
                                                                       Ð order the defendant to pay legal interest, which the
                                                                           applicant requests to be applied at the rate of 8 % per
An action against the Council of the European Union was                    annum from 13 May 1993 until the date on which the
brought before the Court of First Instance on 5 March                      Court gives judgment in the case,
1998 by Sadam Zuccherifici Divisione della Seci, Sadam
Castiglionese Spa, Sadam Abruzzo Spa, Zuccherificio del
Molise Spa and SocietaÁ Fondiaria Industriale Romagnola                Ð order the defendant in any event to pay the entire
Sfir Spa, represented by Vincenzo Cerulli Irelli, Gualtiero                costs.
Pittalis and Giancarlo Fanzini, of the Bar of Teramo,
Bologna and Forlì Cesena, with an address for service in               Pleas in law and main arguments adduced in support:
Luxembourg at the chambers of ArseÁne Kronshagen, 22,
rue Marie AdeÂlaïde.                                                   The applicant, employed on 13 May 1993 as a member of
                                                                       the temporary staff, contests the decision classifying him,
The applicant claims that the Court of First Instance                  claiming that Articles 31 and 32 have been wrongly
should:                                                                applied. According to the applicant, the appointing
                                                                       authority did not take account of his overall professional
Ð annul Article 2 of Council Regulation (EC) No 2613/                  experience of 24 years and 1 month either on recruitment
     97 of 15 December 1997,                                           or in its decision to reject the appeal made through official
                                                                       channels. Moreover, the appointing authority did not take
                                                                       account of the university training and the specific
Ð order the defendant to pay the costs.
                                                                       professional experience in the naval field which the
                                                                       applicant was able to offer within DG XIV.
Pleas in law and main arguments adduced in support:
                                                                       Secondly, the applicant alleges infringement of Article 7 of
The pleas in law and main arguments adduced in support                 the Staff Regulations and discriminatory treatment as
are the same as those in Case T-38/98 ANB and Others v.                between officials inasmuch as he covered for duties of a
Council (1).                                                           higher grade than his own, and worked with colleagues
                                                                       who are classified in Grade B 1, step 1.
(1) See page 18 of this Official Journal.
                                                                       Finally, the appointing authority failed in its duty to have
                                                                       regard for the interests of officials and to protect the
                                                                       legitimate expectations of the applicant by looking only to
                                                                       the interests of the service without considering those of
                                                                       the applicant.
Action brought on 5 March 1998 by Giuliano Pagliarani
   against the Commission of the European Communities
                           (Case T-40/98)
                            (98/C 137/42)
                                                                       Action brought on 9 March 1998 by the Netherlands
                  (Language of the case: French)
                                                                             Antilles against the Commission of the European
                                                                                Communities
An action against the Commission of the European
                                                                                (Case T-41/98)
Communities was brought before the Court of First
Instance of the European Communities on 5 March 1998                                            (98/C 137/43)
by Giuliano Pagliarani, residing at Brussels, represented by
Mario Spandre, of the Brussels Bar, with an address for                                (Language of the case: Dutch)
service in Luxembourg at the Chambers of Pierre Thielen,
21, rue de Nassau.
                                                                       An action against the Commission of the European
                                                                       Communities was brought before the Court of First
The applicant claims that the Court should:                            Instance of the European Communities on 9 March 1998
                                                                       by the Netherlands Antilles, represented by P. V. F. Bos
Ð annul the decision of the appointing authority                       and M. M. Slotboom, of the Rotterdam Bar, with an
     inasmuch as, on appointing him to the temporary                   address for service in Luxembourg at the Chambers of
     staff, it classified the applicant in Grade B 3 step 3,           Loesch & Wolter, 11, rue Goethe.


title: Case T-241/07: Action brought on 10 July 2007 — Buzzi Unichem v Commission

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/44

         Action brought on 10 July 2007 — Buzzi Unichem v Commission
   (Case T-241/07)
   (2007/C 211/82)
   Language of the case: Italian
   Parties

      Applicant: Buzzi Unichem SpA (represented by: C. Vivani and M. Vellano, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the Commission Decision of 15.5.2007 concerning the national plan for the allocation of greenhouse gas emission allowances notified by Italy in accordance with Directive 2003/87/EC of the European Parliament and of the Council — for infringement of the EC Treaty and the principles and rules of law adopted in its application — to the extent that the national allocation plan must be altered so as to render no longer permissible rationalisation measures which envisage that the operator may maintain part of the allocated allowances in the event of ‘closure due to processes of production rationalisation’ (Article 1(4) and Article 2(4) of the Decision);

               —

               Order the Commission to pay to the applicant all the costs of these proceedings.

         Pleas in law and main arguments
   The decision contested by this action has determined that the national allocation plan notified by Italy by letter of 15 December 2006 is incompatible with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC.
   The specific point at issue is the possibility for the operator to maintain part of the allocated allowances in the event of closure, due to processes of rationalisation, of all or part of the production installations.
   In support of its claims, the applicant submits:

               —

               That the defendant (the Commission) erroneously applied its own critical analysis in terms of ‘adjustment of allocations’, excluding the possibility of so-called ‘ex-post adjustments’. In that regard, the applicant accepts that any type of adjustment may distort the market and create business uncertainty and infringe Criterion 10 of Annex III to the Directive. According to the applicant, what is at issue is rather avoidance of the loss of ownership of the allocation, and therefore loss of the legal capacity to make use of it at other installations. In essence, the issue should be to avoid an obstacle to the free organisation and development of an undertaking's subjective rights, which is moreover contrary to the principles of reasonableness, proportionality, and protection of the environment and competition, pursuant to Article 5, Article 174 and Article 157 EC.

               —

               The contested decision in addition contradicts the logical premises on which it is based. Specifically on this point, in recital 4 to the contested decision the Commission itself admits that the Directive envisages the possibility that Member States may introduce adjustments, provided that the effect of adjustment is not retroactive, and that it does not harm the functioning of the Community system. In the present case, the operator of an installation which is closed will continue to be present on the market and to operate at other authorised installations. In the words of the Commission itself, an ‘adjustment of allocations’ should therefore be possible.

               —

               The defendant has failed to explain the reasoning which led it to hold that the criticised scheme was incompatible as ‘ex-post adjustment’.

               —

               Infringement of the principle of non-discrimination, in the light of the provisions of the Commission's decision approving the national allocation plan of the United Kingdom.


title: Case C-289/11 P: Appeal brought on 9 June 2011 by Legris Industries SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-376/06 Legris Industries v Commission

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/17

         Appeal brought on 9 June 2011 by Legris Industries SA against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-376/06 Legris Industries v Commission
   (Case C-289/11 P)
   2011/C 252/31
   Language of the case: French

      Parties

      Appellant: Legris Industries SA (represented by: A. Wachsmann and S. Thibault-Liger, avocates)

      Other party to the proceedings: European Commission

      Forms of order sought

               —

                     First
                  :

                           —

                           Set aside in its entirety, on the basis of Article 256 TFEU and Article 56 of Protocol No 3 on the Statute of the Court of Justice of the European Union, the judgment of the General Court of 24 March 2011 in Case T-376/06 Legris Industries v European Commission;

                           —

                           Grant the order sought by Legris Industries SA at first instance before the General Court;

                           —

                           Consequently,

                                       —

                                       Annul European Commission decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) as it concerns Legris Industries SA, and the grounds underlying the decision adopted, in so far as that decision imposes a fine on Legris Industries SA on the basis that the practices found to have been committed by Comap were attributed to Legris Industries SA; and

                                       —

                                       Allow Legris Industries SA to adopt the written submissions, heads of claim and applications of Comap in respect of the abovementioned decision of the European Commission;

               —

                     In the alternative
                   annul, on the basis of Article 261 TFEU, the fine of EUR 46,8 million imposed on Legris Industries SA, of which EUR 18,56 million was imposed jointly and severally with Comap SA, pursuant to Article 2(g) of the abovementioned decision of the European Commission or reduce, on the basis of Article 261 TFEU, that fine of EUR 46,8 million to an appropriate amount;

               —

               In any case, order the European Commission to pay all the costs, including those incurred by Legris Industries SA before the General Court.

      Pleas in law and main arguments

   The applicant relies on four pleas in law in support of its appeal.
   By its first plea, Legris Industries alleges the infringement of the right of access to an independent and impartial tribunal to the extent that the review carried out by the General Court of the decision of the Commission, an institution combining both investigatory and penal functions, limited itself to manifest errors of law and fact and was not a full review involving a complete re-examination of the facts of the case and, in particular, the proof adduced.
   By its second plea, which comprises three branches, the applicant alleges infringement of the principles governing the attributability to a parent company of an infringement of Article 101 TFEU found to have been committed by its subsidiary. By the first branch, the applicant claims first that the application to it of a de facto irrebuttable presumption of liability is not permitted under European Union law, taking into account the penal nature of the sanction imposed on it. By its second branch, the applicant then submits that the application to it of that de facto irrebuttable presumption of liability stems from the General Court’s rejection of its arguments when relying on insufficient and contradictory reasoning. In the third branch, the applicant alleges finally failure to comply with the case-law which disapplies that presumption of liability to financial holdings which do not engage in operational activity, and infringement of the principles of equal treatment and legitimate expectations.
   By its third plea, the parent company complains of the infringement of the principles of equal treatment, personal liability and the principle that the penalty must be specific to the offender, stemming from the General Court’s refusal to allow the applicant to use the pleas in law seeking annulment of the contested decision submitted by its subsidiary Comap, while holding the applicant liable for the practices found to have been committed by Comap.
   By its fourth and final plea, the applicant finally requests the Court to draw the appropriate conclusions, with regard to it, from the possible setting aside of the Comap judgment on the basis of Comap’s grounds of appeal.


title: Case T-513/08 P: Appeal brought on 25 November 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-135/07 Smadja v Commission

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/50

         Appeal brought on 25 November 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-135/07 Smadja v Commission
   (Case T-513/08 P)
   (2009/C 44/88)
   Language of the case: French
   Parties

      Appellant: Commission of the European Communities (represented by K. Hermann and D. Martin, Agents)

      Other party to the proceedings: Daniele Smadja (New Delhi, India)
   Form of order sought by the appellant

               —

               Set aside the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-135/07;

               —

               Dismiss the action brought by Mrs Smadja;

               —

               Order that each of the parties bear their own costs before the Court of First Instance and the Civil Service Tribunal.

         Pleas in law and main arguments
   By the present appeal, the Commission seeks the setting aside of the judgment of the Civil Service Tribunal (CST) of 11 September 2000 in Case F-135/07, by which the CST annulled the Commission decision of 21 December 2006 grading the applicant at first instance in Grade A*15, step 1, in consequence of the judgment of the Court of First Instance of 29 September 2005 in Case T-218/02 Napoli Buzzanca v Commission.
   In support of its appeal, the Commission relies one one ground of appeal, alleging error of law in the interpretation of the principle of proportionality.
   In three parts, the Commission claims that:

               —

               the principle of proportionality cannot be invoked when statutory provisions, such as Articles 3 and 4 of the Staff Regulations of Officials of the European Communities, prohibit the Commission from making appointments with retrospective effect;

               —

               the principle of proportionality cannot lead to the denial of the authority of a judgment delivered but still possibly subject to appeal enjoyed by a judgment of the Court of First Instance;

               —

               the principle of proportionality cannot be invoked when statutory provisions, such as Article 5(5) of Annex XIII, read with Article 46(1)(a) of the Staff Regulations of Officials of the European Communities, exclude in this instance grading in a step higher than step 1.


title: Case C-333/02: Action brought on 20 September 2002 by the Italian Republic against the Commission of the European Communities

text:
C 274/22                EN                    Official Journal of the European Communities                                       9.11.2002
Pleas in law and main arguments                                          —     order the Commission of the European Communities and
                                                                               the Council of the European Union to pay the costs.
The obligation on the part of the United Kingdom to take
measures in order to comply with the directive for the entirety
of its territory is not disputed.
                                                                         Pleas in law and main arguments
Since the United Kingdom has not informed the Commission
of the provisions adopted and brought into force to comply               For the fifth year running the regulation adopted by the
with the directive concerned for Gibraltar and since the                 Council, identifying the deficit areas for which ‘derived’ prices
Commission is in possession of no other information enabling             for sugar and beet are fixed, did not include Italy, with
it to conclude that the United Kingdom has adopted and                   the result that the ‘ordinary’ intervention price fixed by
brought into force the necessary provisions, it is compelled to          Article 2(1)(a) of the regulation is applicable to Italy.
assume that the United Kingdom has not yet adopted such
provisions and has thus failed to fulfil its obligations under the
directive.
                                                                         The criterion used in describing an area as a ‘deficit’ area has
                                                                         been to take as a basis the figures for production and
( 1) OJ L 85, 29.3.1999, p. 1.                                           consumption shown in the balance sheets communicated by
                                                                         the Member States.
                                                                         It is forecast that Italy’s production of sugar will be
                                                                         111 400 tonnes greater than its estimated consumption.
                                                                         The Commission reaches that result by using a criterion
Action brought on 20 September 2002 by the Italian                       for assessing consumption which the Italian Government
Republic against the Commission of the European Com-                     considers to be unlawful and incorrect.
                               munities
                          (Case C-333/02)                                In particular, the calculation of foreseeable consumption did
                                                                         not include sugar used in products intended for export.
                          (2002/C 274/38)
                                                                         The Commission has, therefore, considered that ‘consumption’
                                                                         means solely white sugar used directly in Italy, to the exclusion
                                                                         of sugar used (still in Italy) in the preparation of sugar-based
                                                                         products intended for export.
An action against the Commission of the European Communi-
ties and the Council of the European Union was brought
before the Court of Justice of the European Communities on
20 September 2002 by the Italian Republic, represented by                What has been determined is not, therefore, the ‘demand’ for
Prof. Umberto Leanza, acting as Agent, and Giacomo Aiello,               sugar, understood as ‘consumption’ by the market, but rather
Avvocato dello Stato.                                                    consumption stricto sensu in the national territory.
The applicant claims that the Court of Justice should:                   That operating method does not appear to be right, since it
                                                                         uses an unduly restrictive definition of consumption.
—     annul Commission Regulation (EC) No 1129/2002 ( 1) of
      7 June 2002 fixing the derived intervention prices for
      white sugar for the 2002/2003 marketing year (OJ of                (1 ) OJ L 169, 28.6.2002, p. 22.
      28 June 2002), in so far as it fails to fix the derived            (2 ) OJ L 178, 30.6.2001, p. 1.
      intervention price for white sugar for all areas of Italy and,
      in so far as may be necessary, annul also Article 2(1)(a) of
      Council Regulation (EC) No 1260/2001 (2) of 19 June
      2001;


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 8 March 1995 in Case T-493/93: Hansa-Fisch GmbH v. Commission of the European Communities (Fisheries - EEC-Morocco Agreement - Issue of licences - Act of Accession of Spain and Portugal - Relative stability - Legitimate expectations)

text:
No C 87/10            EN                  Official Journal of the European Communities                                     8 . 4 . 95
the European Social Fund's contribution to Project No                JUDGMENT OF THE COURT OF FIRST INSTANCE
860012/P1 , relating to vocational training carried out by the                              of 8 March 1995
applicants in 1986, was legally non-existent prior to 10 July        in Case T-493/93 : Hansa-Fisch GmbH v. Commission of
1991 and is void since that date and for an order that the
Commission pay the final balance of the Community                                    the European Communities (*)
contribution claimed under Project No 860012/P1 — the                (Fisheries — EEC-Morocco Agreement — Issue oflicences
Court of First Instance (First Chamber), composed of J. L.           — Act of Accession of Spain and Portugal — Relative
Cruz Vilaça, President, H. Kirschner and A.                                      stability — Legitimate expectations)
Kalogeropoulos,        Judges;     J.    Palacio     Gonzalez,                                  ( 95/C 87/22 )
Administrator, for the Registrar, gave a judgment on
7 March 1995, in which it:
                                                                                (Language of the case: German)
1 . declares void the Commission 's Decision reducing the
    amount of the European Social Fund's contribution to             In Case T-493/93 : Hansa-Fisch GmbH, established at
    Project No 860012/P1 , relating to vocational training in        Schenefeld,       Germany,        represented initially       by
    Portugal in 1986;                                                Heinrich-Werner Goltz, then by Rafael Barber-Llorente,
                                                                     Rechtsanwalte, Hamburg, against the Commission of the
                                                                     European Communities (Agents: T. van Rijn and U.
2. dismisses the remainder of the application;                       Wölker) — application for the annulment of the
                                                                     Commission's decision refusing to submit the applicant's
3 . orders the Commission to pay all the costs.                      request for a fishing licence to the Moroccan authorities in
                                                                     accordance with Annex I to the Agreement on relations in
(M OJ No C 291 , 8 . 11 . 1991 .                                     the sea fisheries sector between the European Economic
                                                                     Community and the Kingdom of Morocco, as approved by
                                                                     Council Regulation ( EEC ) No 2054/88 of 23 June 1988 (2 )
                                                                     and by Council Regulation (EEC ) No 3954/92 of
                                                                     19 December 1992 ( 3 ) — the Court of First Instance (Fourth
                                                                     Chamber), composed of K. Lenaerts, President, R.
                                                                     Schintgen and R. Garcia-Valdecasas, Judges, H. Jung,
JUDGMENT OF THE COURT OF FIRST INSTANCE                              Registrar, gave a judgment on 8 March 1995 , in which
                       of 8 March 1995                               it:
in Case T-34/93 : Société Générale v. Commission of the
                  European Communities (*)                           1 . dismisses the application;
(Competition — Decision requiring information pursuant
to Article 11 (5) of Regulation No 17 — Statement of                 2. orders the applicant to pay the costs.
              reasons — Rights of the defence)
                          ( 95/C 87/21 )                             (!) OJ No C 231 , 27. 8 . 1993 .
                                                                     (2) OJ No L 181 , 12. 7. 1988, p. 1 .
               (Language of the case: French)                        (3 ) OJ No L 407, 31 . 12 . 1992, p. 1 .
In Case T-34/93 : Societe Generale, established in Paris,
represented by Robert Saint-Esteben, of the Paris Bar, with
an address for service in Luxembourg at the Chambers of
Aloyse May, 31 Grand-Rue, against the Commission of the
European Communities (Agents: E. Traversa and H.                          ORDER OF THE COURT OF FIRST INSTANCE
Lehman) — application for (i ) the annulment of the
Commission's decision of 1 April 1993 relating to a                                       of 13 January 1995
proceeding pursuant to Article 11 ( 5 ) of Regulation No 17          in Case T-524/93 : Humphrey Hennessy and Others v.
and (ii ) compensation for the loss which the applicant claims       Council of the European Union and Commission of the
to have suffered as a result of that decision — the Court of                           European Communities (*)
First Instance ( Fourth Chamber), composed of K. Lenaerts,                        (Partial removal from the register)
President, R. Schintgen and R. Garcia-Valdecasas, Judges,                                       ( 95/C 87/23
H. Jung, Registrar, gave a judgment on 8 March 1995 , in
which it:
                                                                                (Language of the case: English)
I. dismisses the application;
                                                                     In Case T-524/93 : Humphrey Hennessy, residing in
2. orders the applicant to bear the costs.                           Timoleague (Ireland ), and the other milk producers whose
                                                                     names appear in an Annex to the order, represented by
                                                                     James O'Reilly SC, of the Bar of Ireland, and Philippa
(!) OJ No C 188 , 10 . 7. 1993 .                                     Watson, Barrister-at-Law, instructed by Oliver
                                                                     Ryan-Purcell, Solicitor, with an address for service in
                                                                     Luxembourg at Fyfe Business Centre, 29 Rue Jean-Pierre