title: Joined Cases T-359/07 P to T-361/07 P: Judgment of the Court of First Instance of 20 February 2009 — Commission v Bertolete and Others (Appeal — Public service — Contract staff of OIB — Former salaried employees under Belgian law — Change of applicable regime — Commission decisions fixing remuneration — Equal treatment)

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/23

         Judgment of the Court of First Instance of 20 February 2009 — Commission v Bertolete and Others
   (Joined Cases T-359/07 P to T-361/07 P) (1)

   (Appeal - Public service - Contract staff of OIB - Former salaried employees under Belgian law - Change of applicable regime - Commission decisions fixing remuneration - Equal treatment)
   (2009/C 82/41)
   Language of the cases: French
   Parties

      Appellant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios, acting as Agents)

      Other parties to the proceedings: Marli Bertolete (Woluwé-Saint-Lambert, Belgium) and the eight other members of the contract staff of the Commission of the European Communities whose names are included in the annex to the judgment; Sabrina Abarca Montiel (Wauthier-Braine, Belgium) and the 19 other members of the contract staff of the Commission of the European Communities whose names are included in the annex to the judgment; Béatrice Ider (Halle, Belgium); Marie-Claire Desorbay (Meise, Belgium); and Lino Noschese (Braine-le-Château, Belgium) (represented by: L. Vogel, lawyer)
   Re:
   Three appeals brought against the judgments of the Civil Service Tribunal of the European Union (Second Chamber) of 5 July 2007 in Case F-26/06 Bertolete and Others v Commission (not yet published in the ECR); Case F-24/06 Abarca Montiel and Others v Commission (not yet published in the ECR); and Case F-25/06 Ider and Others v Commission (not yet published in the ECR), seeking to have those judgments set aside.
   Operative part of the judgment
   The Court:

               1.

               Sets aside the judgments of the Civil Service Tribunal (Second Chamber) of 5 July 2007 in Case F-26/06 Bertolete and Others v Commission (not yet published in the ECR), Case F-24/06 Abarca Montiel and Others v Commission (not yet published in the ECR) and Case F-25/06 Ider and Others v Commission (not yet published in the ECR);

               2.

               Dismisses the actions brought by the applicants at first instance, namely Marli Bertolete and the eight other members of the contract staff of the Commission of the European Communities whose names are included in the annex, Sabrina Abarca Montiel and the 19 other members of the contract staff of the Commission of the European Communities whose names are included in the annex, Béatrice Ider, Marie-Claire Desorbay and Lino Noschese;

               3.

               Orders the applicants at first instance and the Commission to bear their own costs.

      (1)  OJ C 283, 24.11.2007.


title: Case C-394/10: Order of the President of the Court of 17 November 2010 — European Commission v Grand Duchy of Luxembourg

text:
               19.3.2011

               EN

               Official Journal of the European Union

               C 89/13

         Order of the President of the Court of 17 November 2010 — European Commission v Grand Duchy of Luxembourg
   (Case C-394/10) (1)

   2011/C 89/29
   Language of the case: French
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 274, 9.10.2010.


title: Judgment of the Court (Second Chamber) of  15 December 2005  in Case C-66/02: Italian Republic v Commission of the European Communities (Application for annulment — State aid — Decision 2002/581/EC — Tax advantages granted to banks — Statement of reasons for a decision — Categorisation as State aid — Conditions — Compatibility with the common market — Conditions — Important project of common European interest — Development of certain activities)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/1

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 15 December 2005
   in Case C-66/02: Italian Republic v Commission of the European Communities (1)

   (Application for annulment - State aid - Decision 2002/581/EC - Tax advantages granted to banks - Statement of reasons for a decision - Categorisation as State aid - Conditions - Compatibility with the common market - Conditions - Important project of common European interest - Development of certain activities)
   (2006/C 48/01)
   Language of the case: Italian
   In Case C-66/02, Italian Republic (Agents: initially U. Leanza, and subsequently I. M. Braguglia; Lawyer: M. Fiorilli) v Commission of the European Communities (Agents: V. Di Bucci and R. Lyal) — action for annulment under Article 230 EC, brought on 21 February 2002 — the Court (Second Chamber), composed of C. W. A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), R. Schintgen, G. Arestis and J. Klučka, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 15 December 2005, in which it:

               1.

               Dismisses the action;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 109 of 04.05.2002.


title: Case F-43/14: Order of the Civil Service Tribunal (Second Chamber) of 20 July 2016 — Gaj v Commission (Civil service — Officials — Pensions — Transfer of national pension rights — Proposal concerning additional pensionable years — Act not having an adverse effect — Application for a decision not going to the substance of the case — Article 83 of the Rules of Procedure — Action in part inadmissible and in part manifestly lacking any foundation in law — Article 81 of the Rules of Procedure)

text:
               3.10.2016

               EN

               Official Journal of the European Union

               C 364/49

      Order of the Civil Service Tribunal (Second Chamber) of 20 July 2016 — Gaj v Commission
      (Case F-43/14) (1)

      ((Civil service - Officials - Pensions - Transfer of national pension rights - Proposal concerning additional pensionable years - Act not having an adverse effect - Application for a decision not going to the substance of the case - Article 83 of the Rules of Procedure - Action in part inadmissible and in part manifestly lacking any foundation in law - Article 81 of the Rules of Procedure))
      (2016/C 364/62)
      Language of the case: French

         Parties

         Applicant: Wanda Gaj (Brussels, Belgium) (represented by: S. Orlandi, lawyer)

         Defendant: European Commission (represented initially by: J. Currall and G. Gattinara, acting as Agents, and subsequently by: G. Gattinara and F. Simonetti, acting as Agents)

         Subject matter of the case

      Application for annulment of the decision to credit the applicant’s pension in the European Union’s pension scheme pursuant to the new GIPs relating to Articles 11 and 12 of Annex VIII to the Staff Regulations and the decision of 19 August 2013 which closes the file concerning the transfer of the applicant’s pension rights acquired under the Caisse Nationale d’Assurance Vieillesse des Travailleurs Salariés (CNAVTS) (National Old-Age Insurance Fund for Employees).

         Operative part of the order

                  1)

                  The action is dismissed as in part inadmissible and in part manifestly unfounded.

                  2)

                  Wanda Gaj is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

         (1)  OJ C 292, 1.9.2014, p. 61.


title: Case C-553/13: Request for a preliminary ruling from the Tallinna Ringkonnakohus (Estonia) lodged on 28 October 2013 — Statoil Fuel & Retail Eesti AS v Tallinna Ettevõtlusamet

text:
               18.1.2014

               EN

               Official Journal of the European Union

               C 15/8

         Request for a preliminary ruling from the Tallinna Ringkonnakohus (Estonia) lodged on 28 October 2013 — Statoil Fuel & Retail Eesti AS v Tallinna Ettevõtlusamet
   (Case C-553/13)
   2014/C 15/10
   Language of the case: Estonian

      Referring court

   Tallinna Ringkonnakohus

      Parties to the main proceedings

      Applicant: Statoil Fuel & Retail Eesti AS

      Defendant: Tallinna Ettevõtlusamet

      Question referred

               1.

               May the funding of the organisation of public transport in the territory of a local authority be regarded as a specific purpose within the meaning of Article 1(2) of Council Directive 2008/118/EC (1) if the performance and funding of such a task is an obligation of the local authority?

               2.

               If the answer to the preceding question is in the affirmative, must Article 1(2) of Council Directive 2008/118/EC be interpreted as meaning that making provision in national law for an indirect tax which is charged on the sale of excise goods to the final consumer and is used solely for the organisation of public transport is consistent with that provision, if the organisation of public transport is an obligation of the local authority receiving the tax which must be fulfilled regardless of the existence of such an indirect tax, and the level of funding of the organisation of public transport ultimately does not depend automatically on the amount of tax collected, because the amount of the sum allocated to the organisation of public transport is calculated precisely in such a way that if the indirect tax being collected produces more income, the allocation of other funds by the public authorities to the organisation of public transport is reduced to that extent and, conversely, if the sales tax produces less income, the local authority has to increase other funds to that extent for the organisation of public transport, it being possible, however, in the event of the revenue differing from that forecast to change the amount of expenditure on the organisation of public transport by means of amending the local authority’s budget?

               3.

               If the answer to the preceding question is in the affirmative, must Article 1(2) of Council Directive 2008/118/EC then be interpreted as meaning that the additional taxation of excise goods by an indirect tax, the particular objective of using which is determined after the time of coming into being of the obligation to pay such an indirect tax, is consistent with that provision?

      (1)  Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).


title: Case F-80/15: Order of the Civil Service Tribunal of 11 November 2015 — GK and GH v Commission

text:
               21.12.2015

               EN

               Official Journal of the European Union

               C 429/30

         Order of the Civil Service Tribunal of 11 November 2015 — GK and GH v Commission
   (Case F-80/15) (1)

   (2015/C 429/42)
   Language of the case: French
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 279, 24/8/2015, p. 58.


title: Case C-267/14 P: Judgment of the Court (Third Chamber) of 10 March 2016 — Buzzi Unicem SpA v European Commission (Appeal — Competition — Market for ‘cement and related products’ — Administrative procedure — Regulation (EC) No 1/2003 — Article 18(1) and (3) — Decision requesting information — Statement of reasons — Clarification of the application)

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/7

         Judgment of the Court (Third Chamber) of 10 March 2016 — Buzzi Unicem SpA v European Commission
   (Case C-267/14 P) (1)

   ((Appeal - Competition - Market for ‘cement and related products’ - Administrative procedure - Regulation (EC) No 1/2003 - Article 18(1) and (3) - Decision requesting information - Statement of reasons - Clarification of the application))
   (2016/C 156/08)
   Language of the case: Italian

      Parties

      Appellant: Buzzi Unicem SpA (represented by: C. Osti, A. Prastaro and A. Sodano, avvocati)

      Other party to the proceedings: European Commission (represented by: L. Cappelletti and L. Malferrari, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the General Court of the European Union of 14 March 2014 in Buzzi Unicem v Commission (T-297/11, EU:T:2014:122);

               2.

               Annuls Commission Decision C(2011) 2356 final of 30 March 2011 relating to a proceeding under Article 18(3) of Council Regulation (EC) No 1/2003 (Case COMP/39520 — Cement and related products);

               3.

               Orders the European Commission to bear its own costs and to pay those incurred by Buzzi Unicem SpA with respect to both the proceedings at first instance in Case T-297/11 and the appeal.

      (1)  OJ C 282, 25.8.2014.


title: Case C-455/04: Action brought on 28 October 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/30

         Action brought on 28 October 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland
   (Case C-455/04)
   (2005/C 6/54)
   Language of procedure: English
   An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 28 October 2004 by the Commission of the European Communities, represented by Carmel O'Reilly, acting as agent, with an address for service in Luxembourg.
   The Commission requests the Court to:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (1), or in any event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;

               2.

               order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

         Pleas in law and main arguments:
   The period within which the directive had to be transposed expired on 31 December 2002.

      (1)  OJ L 212, 7.8.2001, p. 12


title: Case T-210/01: Action brought on 12 September 2001 by the General Electric Company against the Commission of the European Communities

text:
C 331/24               EN                      Official Journal of the European Communities                                      24.11.2001
Pleas in law and main arguments                                                 economic analysis, and does not provide any evidence or
                                                                                quantification of the alleged effects of bundling, cross-
                                                                                subsidisation or predation on Honeywell’s rivals.
                                                                          —     The decision also infringes the applicant’s rights of
The applicant in the present case is a diversified technology                   defence in that it relies on new theories of cross-
and manufacturing company incorporated under the laws of                        subsidisation and predation, which either were not men-
the State of Delaware (USA). It seeks annulment of the                          tioned or were not developed in the statement of
Commission’s decision of 3 July 2001 (C(2001)1746 final,                        objections in such a way as to allow the applicant to
adopted pursuant to Article 8(3) of Council Regulation (EEC)                    defend itself.
No 4064/89 of 21 December 1989 on the control of
concentrations between undertakings, as last amended by
Regulation (EC) No 1310/97 of 30 June 1997 (‘the Merger                   The applicant underlines the fact that the present case concerns
Regulation’).                                                             the same markets and one of the same parties as those involved
                                                                          in a merger which raised identical issues in the same industry
                                                                          and was approved by the Commission less than 20 months
                                                                          before the Commission adopted the contested decision.
It is pointed out in this regard that on 5 February 2001,
General Electric Company, a diversified industrial company
incorporated in the State of New York (USA), notified to the
Commission a proposed concentration pursuant to Article 4
of the Merger Regulation by which GE had agreed to acquire
the entire share capital of Honeywell.                                    Action brought on 12 September 2001 by the General
                                                                          Electric Company against the Commission of the Euro-
                                                                                pean Communities
In the contested decision, the Commission declared the notified                                   (Case T-210/01)
concentration to be incompatible with the common market
and with the EEA Agreement. According to that decision, the                                       (2001/C 331/40)
proposed merger would lead to the creation or strengthening
of a dominant position on several markets, as a result of
which effective competition in the common market would be                                    (Language of the case: English)
significantly impeded.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
In support of its claims, the applicant submits that:                     European Communities on 12 September 2001 by the General
                                                                          Electric Company, a company incorporated under the laws of
                                                                          the State of New York, represented by Nicholas Green QC,
                                                                          Cherie Booth QC, Jessica Simor, Kelyn Bacon, Simon Baxter
—     The decision does not reflect the facts and relies for its
                                                                          and Marleen Van Kerckhove of Clifford Chance, Brussels, and
      conclusions on manifest and serious factual errors. In
                                                                          Louis Vogel and Joseph Vogel of Vogel & Vogel, Paris.
      particular, there is no factual basis for the assertions in
      that decision that bundling is a common practice in
      the aerospace industry, that Honeywell has engaged in               The applicant claims that the Court should:
      extensive bundling in the past or that the proposed
      merger with GE would have enabled the merged entity to              —     annul Commission Decision C(2001)1746 dated 3 July
      foreclose or marginalise rivals by engaging in bundling.                  2001 in Case COMP/M.2220 — General Electric/Hone-
                                                                                ywell,
—     The decision is based on manifest errors in its assessment          —     order the Commission to pay the costs.
      of the facts as regards, inter alia, its conclusions that the
      merger in question would provide the incentive and the
      means to engage in bundling in respect of BFE (Bayer
                                                                          Pleas in law and main arguments
      Furnished Equipment) products as well as SFE Supplier
      Furnished Equipment) and SFE-option products, that
      customers in the aerospace industry will accept bundling,           The applicant in this case is a diversified industrial corporation
      and that bundling will marginalise Honeywell’s rivals and           incorporated in the State of New York (USA). On 5 February
      force them out of the market.                                       2001, the applicant notified to the Commission, pursuant to
                                                                          Article 4 of the Merger Regulation, a proposed concentration
                                                                          by which the applicant has agreed to acquire the entire
—     The decision is insufficiently reasoned in that it provides         share capital of Honeywell, an advanced technology and
      no evidence in support of its conclusions concerning the            manufacturing company incorporated in the State of Delaware
      existence and effects of bundling, is not based on any              (USA).
 ---pagebreak--- 24.11.2001             EN                     Official Journal of the European Communities                                      C 331/25
The applicant is challenging the Commission’s decision declar-           European Communities on 14 September 2001 by Arnaldo
ing the notified concentration to be incompatible with the               Lucaccioni, resident in St-Leonard-on-Sea (United Kingdom),
common market and the EEA Agreement.                                     represented by Juan Ramon Iturriagagoitia, lawyer.
In support of its claim, the applicant submits that the decision
did not correctly apply the test laid down in Article 2                  The applicant claims that the Court should:
of Regulation (EEC) No 4064/89 for declaring a merger
incompatible with the common market. According to the
applicant the decision failed to address, the question of the            Primarily:
creation or strengthening of a dominant position and the
concept of a significant barrier to competition.
                                                                         —     annul the Commission’s decision of 16 November 2000,
The decision did not, according to the applicant, provide
sufficient evidence of the alleged practices of mixed bundling           —     award a total of EUR 125 000 as compensation for
of aircraft engines with avionics and non-avionics products.                   damage suffered,
Nor was the decision supported by an economic model
showing the negative effect of that practice on competition.
The decision did not provide evidence either of the incompati-           —     order the defendant to pay the costs.
bility with the common market of the alleged vertical inte-
gration through the applicants leasing companies for commer-
cial and corporate jets and through Honeywell’s supply of                Alternatively:
engine starters to engine manufacturers. Nor was the alleged
horizontal overlap between the two companies on the markets              —     acknowledge that Article 14 of the Provisions for the
for large regional jet engines, corporate jet engines and small                Interpretation of the Rules on Insurance Against the Risk
marine gas turbines supported by sufficient evidence.                          of Accident and of Occupational Disease is unlawful.
The applicant further points out that the commitments
proposed by the applicant to enter into were rejected by the
Commission without proper analysis.
                                                                         Pleas in law and main arguments
The applicant also states that the Commission now paints an
entirely different picture of the market from that contained in
a decision 18 months earlier concerning the same market and              The applicant in the present action, who was granted perma-
one of the same parties to the merger.                                   nent invalidity at a rate of 130 % by decision of 15 April 1994,
                                                                         objects to the Appointing Authority’s refusal to recognise an
                                                                         aggravation of his occupational illness liable to give rise to
The applicant submits, in addition, that its rights of defence
                                                                         permanent invalidity pursuant to Article 14 of the Provisions
were not respected, in that the Commission did not give access
                                                                         for the Interpretation of the Rules on Insurance Against the
to all relevant documents, or gave access to other documents
                                                                         Risk of Accident and of Occupational Disease (the Provisions).
without allowing a sufficient period of time in which to review
them. The applicant also claims that its right to be heard was
not respected at the start of the investigation.
                                                                         In support of his claims the applicant puts forward the
                                                                         following pleas:
                                                                         —     Invalidity of Article 14 of the Provisions, which stipulates
                                                                               that accumulated allowances may not exceed 100 %, in
Action brought on 14 September 2001 by Arnaldo                                 so far as the Staff Regulations Committee does not have
Lucaccioni against the Commission of the European                              sufficient powers unconditionally recognised in the Staff
                          Communities                                          Regulations or the Rules,
                        (Case T-212/01)
                                                                         —     Breach of the principles of sound administration, duty to
                                                                               have regard for the interests of officials, protection of
                        (2001/C 331/41)                                        legitimate expectations and non-discrimination,
                   (Language of the case: French)
                                                                         —     Misuse of powers in this case.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the


title: Case T-257/06: Action brought on 15 September 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (word mark BUD )

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/39

         Action brought on 15 September 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (word mark ‘BUD’)
   (Case T-257/06)
   (2006/C 281/70)
   Language in which the application was lodged: French
   Parties

      Applicant: Budějovický Budvar, národní podnik (České Budějovice, Czech Republic) (represented by: F. Fajgenbaum, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Anheuser-Busch, Incorporated
   Form of order sought

               —

               annul the contested decision R 802/2004-2 of 28 June 2006 of the Second Board of Appeal of OHIM;

               —

               reject application No 1 737 121 for registration of the word mark ‘BUD’ to designate services in Classes 35, 38, 41 and 42;

               —

               send the decision of the Court of First Instance to OHIM;

               —

               order Anheuser-Busch to pay all the costs and expenses.

         Pleas in law and main arguments

      Applicant for the Community trade mark: Anheuser-Busch, Incorporated

      Community trade mark concerned: Word mark ‘BUD’ for services in Classes 35, 38, 41 and 42 — Application No 1 737 121

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

      Mark or sign cited in opposition: Protected designation of origin ‘BUD’ to designate beer

      Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 62(1) of Regulation No 40/94 (1) and Article 20 of implementing Regulation No 2868/95 (2) in that the Board of Appeal is not competent to rule on the validity of the designation of origin invoked by the applicant in the context of its opposition. It further submits that the sign ‘BUD’ constitutes a designation of origin, protected in both France and Austria. The applicant also invokes misapplication of Article 8(4) of Regulation No 40/94 in that, in its view, the designation of origin ‘BUD’ is indeed a sign used in the course of trade.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).


title: Order of the Court (Sixth Chamber) of 28 September 2004 in Case C-115/03 (request for a preliminary ruling from the Tribunale Civile di Genova [Genoa District Court]): Eco Eridiana S.r.l. v Presidenza del Consiglio di Ministri and Ministero dell'Ambiente (Article 104(3) of the Rules of Procedure — Management of waste — Hazardous waste — Directive 91/689/EEC — Article 4 — Meaning of ‘producer of waste’ — Whether or not natural persons are included)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/3

      ORDER OF THE COURT

   (Sixth Chamber)
   of 28 September 2004
   in Case C-115/03 (request for a preliminary ruling from the Tribunale Civile di Genova [Genoa District Court]): Eco Eridiana S.r.l. v Presidenza del Consiglio di Ministri and Ministero dell'Ambiente
   (Article 104(3) of the Rules of Procedure - Management of waste - Hazardous waste - Directive 91/689/EEC - Article 4 - Meaning of ‘producer of waste’ - Whether or not natural persons are included)
   (2004/C 314/05)
   Language of the case: Italian
   In Case C-115/03: request for a preliminary ruling under Article 234 EC from the Tribunale Civile di Genova (Italy), made by decision of 10 March 2003, received at the Court on 17 Mar 2003, in proceedings between Eco Eridiana S.r.l. and Presidenza del Consiglio di Ministri and Ministero dell'Ambiente, the Court (Sixth Chamber), composed of J.-P. Puissochet, President of the Chamber, S. von Bahr (Rapporteur), and A. Borg Barthet, Judges; Advocate General: M. Poiares Maduro; Registrar: R. Grass, made an order on 28 September 2004, the operative part of which is as follows:
   The obligation to keep a record of hazardous waste pursuant to Article 4 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste applies to all producers of such waste, including dental surgeons' practices, and not only to producers of hazardous waste which carry on their business in the form of an undertaking or institution.


title: Case C-158/11: Judgment of the Court (Second Chamber) of 14 June 2012 (reference for a preliminary ruling from the Cour de cassation — France) — Auto 24 SARL v Jaguar Land Rover France SAS (Competition — Article 101 TFEU — Motor vehicle sector — Regulation (EC) No 1400/2002 — Block exemption — Selective distribution system — Concept of ‘specified criteria’ concerning a quantitative selective distribution system — Refusal to grant authorisation as a distributor of new motor vehicles — Lack of precise, objective, proportionate and non-discriminatory quantitative selection criteria)

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/5

         Judgment of the Court (Second Chamber) of 14 June 2012 (reference for a preliminary ruling from the Cour de cassation — France) — Auto 24 SARL v Jaguar Land Rover France SAS
   (Case C-158/11) (1)

   (Competition - Article 101 TFEU - Motor vehicle sector - Regulation (EC) No 1400/2002 - Block exemption - Selective distribution system - Concept of ‘specified criteria’ concerning a quantitative selective distribution system - Refusal to grant authorisation as a distributor of new motor vehicles - Lack of precise, objective, proportionate and non-discriminatory quantitative selection criteria)
   2012/C 227/07
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicant: Auto 24 SARL

      Defendant: Jaguar Land Rover France SAS

      Re:

   Reference for a preliminary ruling — Cour de Cassation (Court of Cassation) — Interpretation of Article 1(1)(f) of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to vertical agreements and concerted practices in the motor vehicle sector (OJ 2002 L 203, p. 30) — Selective distribution system — Refusal to authorise as a distributor of new Land Rover vehicles — Concept of ‘specified criteria’ in the context of a quantitative selective distribution system — Lack of precise, objective, proportionate and non-discriminatory quantitative selection criteria

      Operative part of the judgment

   The term ‘specified criteria’, referred to in Article 1(1)(f) of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector, means, with respect to a quantitative selective distribution system within the meaning of that regulation, criteria the precise content of which may be verified. In order to benefit from the exemption provided for by that regulation, it is not necessary for such a system to be based on criteria that are objectively justified and applied in a uniform and non-differentiated manner in respect of all applicants for authorisation.

      (1)  OJ C 179, 18.6.2011.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 15 October 1998 in Case C-326/97: Commission of the European Communities v. Kingdom of Belgium (Failure of a Member State to fulfil its obligations - Directive 95/27/EC - Failure to transpose within the prescribed period)

text:
C 378/4                 EN                 Official Journal of the European Communities                                      5.12.98
1. Declares that, by failing to adopt within the prescribed                excavator-loaders, the Italian Republic has failed to
     period the laws, regulations and administrative                       fulfil its obligations under that directive;
     provisions necessary to comply with Council Directive
     93/40/EEC of 14 June 1993 amending Directives 81/                2. Orders the Italian Republic to pay the costs.
     851/EEC and 81/852/EEC on the approximation of
     the laws of the Member States relating to veterinary
                                                                      (1) OJ C 331, 1.11.1997.
     medicinal products, the French Republic has failed to
     fulfil its obligations under that directive;
2. Orders the French Republic to pay the costs.
(1) OJ C 318, 18.10.1997.                                                              JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                                                                                of 15 October 1998
                                                                             in Case C-326/97: Commission of the European
                                                                                Communities v. Kingdom of Belgium (1)
                 JUDGMENT OF THE COURT                                (Failure of a Member State to fulfil its obligations Ð
                         (Sixth Chamber)
                                                                      Directive 95/27/EC Ð Failure to transpose within the
                                                                                prescribed period)
                       of 15 October 1998
                                                                                (98/C 378/08)
       in Case C-324/97: Commission of the European
                Communities v. Italian Republic (1)                                     (Language of the case: French)
(Failure of a Member State to fulfil its obligations Ð
Directive 95/27/EC Ð Failure to transpose within the                    (Provisional translation; the definitive translation will be
                        prescribed period)                                       published in the European Court Reports)
                          (98/C 378/07)
                                                                      In Case C-326/97: Commission of the European
                                                                      Communities (Agent: Paolo Stancanelli) v. Kingdom of
                  (Language of the case: Italian)
                                                                      Belgium (Agent: Anni Snoecx) Ð Application for a
                                                                      declaration that, by failing to adopt the laws, regulations
                                                                      and administrative provisions necessary to comply with
  (Provisional translation; the definitive translation will be        European Parliament and Council Directive 95/27/EC of
           published in the European Court Reports)                   29 June 1995 amending Council Directive 86/662/EEC on
                                                                      the limitation of noise emitted by hydraulic excavators,
In Case C-324/97: Commission of the European                          rope-operated excavators, dozers, loaders and excavator-
Communities (Agent: Paolo Stancanelli) v. Italian Republic            loaders (OJ L 168, 18.7.1995, p. 14), or, in any event, by
(Agent: Umberto Leanza, assisted by Pier Giorgio Ferri) Ð             not communicating them to the Commission, the
Application for a declaration that, by failing to adopt the           Kingdom of Belgium has failed to fulfil its obligations
laws, regulations and administrative provisions necessary             under that directive, Ð the Court (Sixth Chamber),
to comply with European Parliament and Council                        composed of: P. J. G. Kapteyn, President of the Chamber,
Directive 95/27/EC of 29 June 1995 amending Council                   G. Hirsch, G. F. Mancini, H. Ragnemalm and R.
Directive 86/662/EEC on the limitation of noise emitted               Schintgen (Rapporteur), Judges; N. Fennelly, Advocate-
by hydraulic excavators, rope-operated excavators, dozers,            General; R. Grass, Registrar, has given a judgment on
loaders and excavator-loaders (OJ L 168, 18.7.1995,                   15 October 1998, in which it:
p. 14), or, in any event, by not communicating them to the
Commission, the Italian Republic has failed to fulfil its             1. Declares that, by failing to adopt within the prescribed
obligations under that directive, Ð the Court (Sixth                       period the laws, regulations and administrative
Chamber), composed of: P. J. G. Kapteyn, President of the                  provisions necessary to comply with European
Chamber, G. Hirsch, G. F. Mancini, H. Ragnemalm and                        Parliament and Council Directive 95/27/EC of 29 June
R. Schintgen (Rapporteur), Judges; N. Fennelly, Advocate-                  1995 amending Council Directive 86/662/EEC on the
General; R. Grass, Registrar, has given a judgment on                      limitation of noise emitted by hydraulic excavators,
15 October 1998, in which it:                                              rope-operated excavators, dozers, loaders and
                                                                           excavator-loaders, the Kingdom of Belgium has failed
                                                                           to fulfil its obligations under that directive;
1. Declares that, by failing to adopt within the prescribed
     period the laws, regulations and administrative
     provisions necessary to comply with European                     2. Orders the Kingdom of Belgium to pay the costs.
     Parliament and Council Directive 95/27/EC of 29 June
     1995 amending Council Directive 86/662/EEC on the                (1) OJ C 331, 1.11.1997.
     limitation of noise emitted by hydraulic excavators,
     rope-operated excavators, dozers, loaders and


title: Judgment of the Court (Third Chamber) of 12 June 2003 in Case C-446/01: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 75/442/EEC — Environment — Waste management)

text:
C 184/14                EN                            Official Journal of the European Union                                                 2.8.2003
Design Concept SA and Flanders Expo SA, on the interpretation                 17 May 1977 on the harmonisation of the laws of the Member
of Article 9(2)(e) of Sixth Council Directive 77/388/EEC of                   States relating to turnover taxes — Common system of value
17 May 1977 on the harmonisation of the laws of the Member                    added tax: uniform basis of assessment (OJ 1977 L 145, p. 1),
States relating to turnover taxes — Common system of value                    the Court (Sixth Chamber), composed of: J.-P. Puissochet, Presi-
added tax: uniform basis of assessment (OJ 1977 L 145, p. 1),                 dent of the Chamber, C. Gulmann, F. Macken, N. Colneric and
the Court (Fifth Chamber), composed of: M. Wathelet, President                J.N. Cunha Rodrigues (Rapporteur), Judges; D. Ruiz-Jarabo
of the Chamber, C.W.A. Timmermans, D.A.O. Edward, A. La                       Colomer, Advocate General; L. Hewlett, Principal Administrator,
Pergola and S. von Bahr (Rapporteur), Judges; F.G. Jacobs,                    for the Registrar, has given a judgment on 26 June 2003, in
Advocate General; M.-F. Contet, Principal Administrator, for the              which it has ruled:
Registrar, has given a judgment on 5 June 2003, in which it has
ruled:
                                                                              A partnership which admits a partner in consideration of payment of a
                                                                              contribution in cash does not effect towards that person a supply of
Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May               services for consideration within the meaning of Article 2(1) of Sixth
1977 on the harmonisation of the laws of the Member States relating           Council Directive 77/388/EEC of 17 May 1977 on the harmonisa-
to turnover taxes — Common system of value added tax: uniform                 tion of the laws of the Member States relating to turnover taxes —
basis of assessment must be interpreted as applying to advertising            Common system of value added tax: uniform basis of assessment.
services supplied indirectly to the advertiser and invoiced to an inter-
mediate customer who in turn invoices them to the advertiser. The fact
that the advertiser does not produce goods or services in the price of        (1) OJ C 56 of 2.3.2002.
which the cost of the advertising services may be included is not
relevant for the purpose of determining the place where the services are
supplied to the intermediate customer.
(1) OJ C 84 of 6.04.2002.
                                                                                JUDGMENT OF THE COURT
                                                                                (Third Chamber)
                  JUDGMENT OF THE COURT                                                                  of 12 June 2003
                           (Sixth Chamber)                                    in Case C-446/01: Commission of the European Commu-
                                                                                nities v Kingdom of Spain (1)
                           of 26 June 2003
                                                                              (Failure of a Member State to fulfil obligations — Directive
                                                                                75/442/EEC — Environment — Waste management)
in Case C-442/01 (Reference for a preliminary ruling from
the Bundesfinanzhof): KapHag Renditefonds 35 Spree-
center Berlin-Hellersdorf 3. Tranche GbR v Finanzamt                                                      (2003/C 184/27)
                           Charlottenburg (1)
                                                                                (Language of the case: Spanish)
(Sixth VAT Directive — Scope — Supply of services for
consideration — Admission of a member to a partnership
    in consideration of payment of a contribution in cash)                    (Provisional translation; the definitive translation will be published in
                                                                                the European Court Reports)
                            (2003/C 184/26)
                    (Language of the case: German)                            In Case C-446/01, Commission of the European Communities
                                                                              (Agent: G. Valero Jordana) v Kingdom of Spain (Agent:
                                                                              L. Fraguas Gadea): Application for a declaration that, by failing
(Provisional translation; the definitive translation will be published in     to adopt the measures necessary to ensure, as regards certain
                      the European Court Reports)                             waste-disposal sites, the implementation of Articles 4, 9 and,
                                                                              where relevant, 13 of Council Directive 75/442/EEC of 15 July
                                                                              1975 on waste (OJ 1975 L 194, p. 39), as amended by Council
                                                                              Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32),
In Case C-442/01: Reference to the Court under                                the Kingdom of Spain has failed to fulfil its obligations under
Article 234 EC by the Bundesfinanzhof (Germany) for a                         that directive, the Court (Third Chamber), composed of:
preliminary ruling in the proceedings pending before that                     J.-P. Puissochet, President of the Chamber, C. Gulmann and
court between KapHag Renditefonds 35 Spreecenter Berlin-                      J.N. Cunha Rodrigues (Rapporteur), Judges; L.A. Geelhoed,
Hellersdorf 3. Tranche GbR and Finanzamt Charlottenburg, on                   Advocate General, R. Grass, Registrar, has given a judgment
the interpretation of Sixth Council Directive 77/388/EEC of                   on 12 June 2003, in which it:
 ---pagebreak--- 2.8.2003                  EN                            Official Journal of the European Union                                                   C 184/15
1.    Declares that, by failing to adopt the measures necessary to              of the payment of sums not due, made to a person in receipt of more
      ensure, as regards the waste-disposal sites at Torreblanca, San           than one pension by virtue of his belonging to social security schemes
      Lorenzo de Tormes, Santalla del Bierzo, Sa Roca and Campello              in various Member States, in the form of a pension supplement where
      (Spain), the implementation of Articles 4 and 9 of Council                the maximum authorised income is exceeded. The two year time-limit
      Directive 75/442/EEC of 15 July 1975 on waste, as amended                 referred to in Articles 94, 95, 95a and 95b of Regulation No 1408/
      by Council Directive 91/156/EEC of 18 March 1991, and, as                 71 cannot be applied by analogy to such a situation.
      regards the first two disposal sites, the implementation of
      Article 13 thereof, the Kingdom of Spain has failed to fulfil             National law must, however, observe the Community principle of
      its obligations under that directive;                                     equivalence, in accordance with which the detailed procedural rules
                                                                                governing the treatment of situations arising out of the exercise of a
2.    Orders the Kingdom of Spain to pay the costs.                             Community freedom must be no less favourable than those governing
                                                                                purely internal situations, and the principle of effectiveness, in
                                                                                accordance with which those procedural rules must not render
(1) OJ C 31 of 2.2.2002.
                                                                                virtually impossible or excessively difficult the exercise of rights arising
                                                                                out of the situation of Community origin.
                                                                                Those principles apply to all the procedural rules governing the
                                                                                treatment of situations arising out of the exercise of a Community
                                                                                freedom, whether those rules are administrative or judicial, such as
                    JUDGMENT OF THE COURT                                       the provisions of national law applicable to the limitation of actions
                                                                                and the recovery of sums paid though not due or those requiring the
                             (Fifth Chamber)                                    competent institutions to take account of the good faith of the
                                                                                persons concerned or to carry out proper checks of their situation
                                                                                with regard to pensions.
                            of 19 June 2003
in Case C-34/02 (Reference for a preliminary ruling from                        (1) OJ C 84 of 6.4.2002.
the Tribunale ordinario di Roma): Sante Pasquini v Isti-
      tuto Nazionale della Previdenza Sociale (INPS) (1)
(Social security — Old-age pensions — Recalculation —
Recovery of sums paid though not due — Limitation —
   Law applicable — Detailed procedural rules — Concept)
                                                                                JUDGMENT OF THE COURT
                             (2003/C 184/28)
                                                                                of 24 June 2003
                      (Language of the case: Italian)
                                                                                in Case C-72/02: Commission of the European Commu-
                                                                                nities v Portuguese Republic (1)
(Provisional translation; the definitive translation will be published in
                       the European Court Reports)
                                                                                (Failure of a Member State to fulfil its obligations —
                                                                                Directives 92/43/EEC and 79/409/EEC — Conservation of
                                                                                natural habitats and wild birds)
In Case C-34/02: Reference to the Court under Article 234 EC
by the Tribunale Ordinario di Roma (Italy) for a preliminary
                                                                                (2003/C 184/29)
ruling in the proceedings pending before that court between
Sante Pasquini and Istituto Nazionale della Previdenza Sociale
(INPS), on the interpretation of Regulation (EEC) No 1408/71                                       (Language of the case: Portuguese)
of the Council of 14 June 1971 on the application of social
security schemes to employed persons, to self-employed                          (Provisional translation; the definitive translation will be published in
persons and to members of their families moving within the                                             the European Court Reports)
Community, as amended and updated by Council Regulation
(EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) and
Regulation (EEC) No 574/72 laying down the procedure for                        In Case C-72/02, Commission of the European Communities
implementing Regulation (EEC) No 1408/71, the Court (Fifth                      (Agent: A. Caeiros) v Portuguese Republic (Agents:
Chamber), composed of: M. Wathelet, President of the                            L. Fernandes and M. Telles Romão and M. João Lois): Applica-
Chamber, C.W.A. Timmermans, D.A.O. Edward, P. Jann and                          tion for a declaration that,
A. Rosas (Rapporteur), Judges; S. Alber, Advocate General;
H. von Holstein, Deputy Registrar, has given a judgment on                      by failing to implement in national law:
19 June 2003, in which it has ruled:
                                                                                —      Article 3(3), Article 10, Article 11 and Article 12(4) of
Since Regulation (EEC) No 1408/71 of the Council of 14 June 1971                       Council Directive 92/43/EEC of 21 May 1992 on the
on the application of social security schemes to employed persons, to                  conservation of natural habitats and of wild fauna and
self-employed persons and to members of their families moving within                   flora (OJ 1992 L 206, p. 7), and
the Community, as amended and updated by Council Regulation (EC)
No 118/97 of 2 December 1996, does no more than ensure                          —      Article 7, Article 8 and Article 12 of Council Directive
coordination of provisions of national legislation in the field of social              79/409/EEC of 2 April 1979 on the conservation of wild
security, it is national law which is applicable to a situation arising out            birds (OJ 1979 L 103, p. 1), and


title: Case C-549/14: Request for a preliminary ruling from the Højesteret (Denmark) lodged on 2 December 2014  — Finn Frogne A/S v Rigspolitiet ved Center for Beredskabskommunikation

text:
               16.2.2015

               EN

               Official Journal of the European Union

               C 56/8

         Request for a preliminary ruling from the Højesteret (Denmark) lodged on 2 December 2014 — Finn Frogne A/S v Rigspolitiet ved Center for Beredskabskommunikation
   (Case C-549/14)
   (2015/C 056/10)
   Language of the case: Danish

      Referring court

   Højesteret

      Parties to the main proceedings

      Applicant: Finn Frogne A/S

      Defendant: Rigspolitiet ved Center for Beredskabskommunikation

      Question referred

   Is Article 2 of Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in conjunction with the judgments of the Court of Justice of the European Union in Pressetext Nachrichtenagentur v Austria, C-454/06, ECR, ECLI:EU:C:2008:351, and Wall v La ville de Francfort-sur-le-Main and Frankfurter Entsorgungs- und Service (FES), C-91/08, ECR, ECLI:EU:C:2010:182, to be interpreted as meaning that a settlement agreement which introduces limitations on and amendments to the services to be provided as originally agreed by the parties under a contract previously put out to tender and also mutual agreement to waive application of remedies for breach in order to avoid a subsequent litigation constitutes a contract which in itself requires a tendering procedure, in a situation where the original contract has become distressed?

      (1)  OJ 2004 L 134, p. 114.


title: Case C-372/13: Order of the Court (Third Chamber) of 30 January 2014 (request for a preliminary ruling from the Polimeles Protodikio Athinon) — Warner — Lambert Company LLC, Pfizer Ellas AE v SiegerPharma Anonimi Farmakeftiki Etairia (Article 99 of the Rules of Procedure of the Court — Questions referred for a preliminary ruling which are identical to questions on which the Court has already made a ruling — Agreement on Trade-Related Aspects of International Property Rights (TRIPs) — Article 27 — Patentable Subject Matter — Article 70 — Protection of Existing Subject Matter)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/18

         Order of the Court (Third Chamber) of 30 January 2014 (request for a preliminary ruling from the Polimeles Protodikio Athinon) — Warner — Lambert Company LLC, Pfizer Ellas AE v SiegerPharma Anonimi Farmakeftiki Etairia
   (Case C-372/13) (1)

   ((Article 99 of the Rules of Procedure of the Court - Questions referred for a preliminary ruling which are identical to questions on which the Court has already made a ruling - Agreement on Trade-Related Aspects of International Property Rights (TRIPs) - Article 27 - Patentable Subject Matter - Article 70 - Protection of Existing Subject Matter))
   2014/C 175/22
   Language of the case: Greek

      Referring court

   Polimeles Protodikio Athinon

      Parties to the main proceedings

      Applicants: Warner — Lambert Company LLC, Pfizer Ellas AE

      Defendant: SiegerPharma Anonimi Farmakeftiki Etairia

      Re:

   Request for a preliminary ruling — Polimeles Protodikio Athinon — Interpretation of Articles 27 and 70 of the Agreement on Trade-Related Aspects of International Property Rights (‘TRIPs’) annexed to the Agreement establishing the ‘World Trade Organisation’ (OJ 1994, L 336, p. 214) — Distinction drawn between fields falling within the scope of Community law and those falling within the competence of the Member States — Field of patents — Chemical and pharmaceutical products

      Operative part of the order

               1.

               Article 27 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), falls under the common trade policy.

               2.

               Article 27 of the Agreement on Trade-Related Aspects of Intellectual Property Rights must be interpreted as meaning that the invention of a pharmaceutical product such as the active chemical compound of a medicinal product is, in the absence of a derogation in accordance with Article 27(2) or (3), capable of being the subject-matter of a patent, under the conditions set out in Article 27(1).

               3.

               A patent obtained following an application claiming the invention both of the process of manufacture of a pharmaceutical product and of the pharmaceutical product as such, but granted solely in relation to the process of manufacture, must not, by reason of the rules set out in Articles 27 and 70 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, be regarded, as from the date of entry into force of that agreement, as covering the invention of that pharmaceutical product.

      (1)  OJ C 78 of 15.3.2014.


title: Case C-93/16: Request for a preliminary ruling from the Audiencia Provincial de Alicante, Sección octava (Spain) lodged on 15 February 2016 — The Irish Dairy Board Co-operative Limited v Tindale & Stanton Ltd España, S.L.

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/28

         Request for a preliminary ruling from the Audiencia Provincial de Alicante, Sección octava (Spain) lodged on 15 February 2016 — The Irish Dairy Board Co-operative Limited v Tindale & Stanton Ltd España, S.L.
   (Case C-93/16)
   (2016/C 156/37)
   Language of the case: Spanish

      Referring court

   Audiencia Provincial de Alicante, Sección octava

      Parties to the main proceedings

      Appellant: The Irish Dairy Board Co-operative Limited

      Respondent: Tindale & Stanton Ltd España, S.L.

      Questions referred

               1.

               In so far as Article 9(1)(b) of the Community Trade Mark Regulation (1) requires that, in order for the proprietor of a Community trade mark to prevent a third party not having his consent from using a sign in the course of trade in the cases set out in that provision, there should exist a likelihood of confusion, can this provision be interpreted as meaning that there is no likelihood of confusion where the earlier Community trade mark has, owing to the acquiescence of the proprietor, peacefully coexisted for some years with similar national trade marks in two Member States of the European Union, so that the absence of a likelihood of confusion in those two Member States is extended to other Member States, or to the European Union as a whole, regard being had to the unitary treatment that the Community trade mark requires?

               2.

               In the situation set out in the previous paragraph, can the geographical, demographic, economic or other circumstances of the States in which the coexistence has occurred be taken into consideration for the purpose of assessing the likelihood of confusion, so that the absence of a likelihood of confusion in those Member States can be extended to a third Member State, or to the European Union as a whole?

               3.

               With regard to the case referred to in subparagraph (c) of Article 9(1) of the Community Trade Mark Regulation, must this provision be interpreted as meaning that, where an earlier trade mark has coexisted with the contested sign for a certain number of years in two European Union Member States without the proprietor of the earlier trade mark opposing it, this acquiescence on the part of the proprietor towards the use of the later sign in these two States in particular can be extended to the remaining territory of the European Union for the purpose of determining whether there is due cause for a third party’s use of the later sign, on account of the unitary treatment that the Community trade mark requires?

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case C-127/11: Judgment of the Court (Fifth Chamber) of 7 March 2013 (request for a preliminary ruling from the arbeidshof te Antwerpen — Belgium) — Aldegonda van den Booren v Rijksdienst voor Pensioenen (Social security for migrant workers — Article 46a of Regulation (EEC) No 1408/71 — National rules against overlapping — Old-age pension — Increase in the amount paid by a Member State — Survivor’s pension — Reduction in the amount paid by another Member State)

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/2

         Judgment of the Court (Fifth Chamber) of 7 March 2013 (request for a preliminary ruling from the arbeidshof te Antwerpen — Belgium) — Aldegonda van den Booren v Rijksdienst voor Pensioenen
   (Case C-127/11) (1)

   (Social security for migrant workers - Article 46a of Regulation (EEC) No 1408/71 - National rules against overlapping - Old-age pension - Increase in the amount paid by a Member State - Survivor’s pension - Reduction in the amount paid by another Member State)
   2013/C 123/03
   Language of the case: Dutch

      Referring court

   Arbeidshof te Antwerpen

      Parties to the main proceedings

      Applicant: Aldegonda van den Booren

      Defendant: Rijksdienst voor Pensioenen

      Re:

   Request for a preliminary ruling — Arbeidshof te Antwerpen — Interpretation of Articles 10 EC, 39 EC and 42 EC (now Articles 4(3) TUE, 45 TFEU and 48 TFEU respectively) and Article 46a(3)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English special edition, 1971 (II), p. 416) — Benefits — National anti-overlapping rules — Reduction of the survivor’s pension paid by the first Member State because of an increase in the old-age pension paid by another Member State

      Operative part of the judgment

   Article 46a of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, must be interpreted as meaning that it does not preclude the application of legislative rules of a Member State containing a provision under which a survivor’s pension received in that Member State is reduced as a result of the increase in an old-age pension received under the legislation of another Member State, provided, in particular, that the conditions set out in Article 46a(3)(d) are observed.
   Article 45 TFEU must be interpreted as meaning that it likewise does not preclude the application of such national legislative rules in so far as they do not lead, in respect of the person concerned, to an unfavourable situation in comparison with that of a person whose situation has no cross-border element, and, if such a disadvantage is established, in so far as it is justified by objective considerations and is proportionate in relation to the objective legitimately pursued by national law, this being a matter for the referring court to ascertain.

      (1)  OJ C 152, 21.5.2011.


title: Case F-108/10: Action brought on 26 October 2010 — Filice and Others v Court of Justice

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/65

         Action brought on 26 October 2010 — Filice and Others v Court of Justice
   (Case F-108/10)
   ()
   2011/C 30/128
   Language of the case: French

      Parties

      Applicants: Stefania Filice (Luxembourg, Luxembourg) and Others (represented by: B. Cortese, C. Cortese and F. Spitaleri, lawyers)

      Defendant: Court of Justice of the European Union

      Subject-matter and description of the proceedings

   Annulment of the defendant’s decisions, set out in the applicants’ salary slips, to limit the adjustment of their salaries, from July 2009, to an increase of 1,85% within the framework of the annual adjustment of the remuneration and pensions of officials and other servants pursuant to Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

      Form of order sought

               —

               Annul the decisions of the Court of Justice of the European Union set out in their pay slips issued since January 2010 and in their salary adjustment slips for 2009, in so far as they apply an adjustment rate of 1,85% instead of a rate of 3,7%;

               —

               Order the Court of Justice to refund the difference between the amounts of salary paid pursuant to Regulation No 1296/09 until the date on which the judgment is delivered in the present case and the amounts which should have been paid to them if the adjustment had been calculated correctly, plus interest at the rate set by the European Central Bank for principal refinancing operations applying during the periods concerned, plus three and a half points; that interest to be paid from the date on which the principal sums claimed fell due;

               —

               Order the Court of Justice to pay the costs.


title: Case C-338/01: Action brought on 7 September 2001 by the Commission of the European Communities against the Council of the European Union

text:
27.10.2001            EN                     Official Journal of the European Communities                                           C 303/13
Pleas in law and main arguments                                                1995, which, in its view, is not in compliance with the
                                                                               applicable legislation inasmuch as it became possible to
                                                                               make payments to recipients who in 1996 would have
Infringement of Article 24 of Regulation No 4253/88, in                        not been entitled to such additional payments. The
particular of the procedure laid down therein so far as concerns               Kingdom of Spain does not share that view. The need to
the request that the Member State concerned submit its                         supplement payments before 15 October 1996 prompted
comments within a specified period of time prior to the                        the Kingdom of Spain to make use of the derogation
adoption of by the Commission of a decision to reduce,                         provided for by Article 5 of Regulation No 1357/96, to
suspend or cancel assistance. When applying that provision,                    which end, appropriate objective criteria were laid down
the Court of First Instance not only failed to be faithful to its              in the aforementioned Ministerial Order. Thus, when
letter and spirit, which is based on the close cooperation                     granting the additional assistance provided for in Regu-
between Commission and Member State in the management                          lation No 1357/96, the Kingdom of Spain resorted to
and assessment of assistance granted, it also completely                       the derogation provided for in Article 5, so that the
ignored Community case-law which has considered para-                          requirements set down in Articles 1 and 2 did not apply.
mount the views of Member States in similar circumstances.                     In particular, that exonerated it from the obligation of
                                                                               carrying out the adjustments provided for in Article 1(3).
                                                                               That means that, contrary to the arguments of the
                                                                               Commission, there are no grounds for recovery of
                                                                               amounts paid to beneficiaries in 1996, given that Article 5
                                                                               provides that application of that article precludes that of
                                                                               Articles 1 to 4.
                                                                        —      Failure of the Commission to observe the time limits
Action brought on 6 September 2001 by Kingdom of                               regarding notification prescribed by the applicable Com-
Spain against Commission of the European Communities                           munity provisions: The expenditure which is the subject
                                                                               of the financial adjustment contested in the present action
                        (Case C-331/01)                                        was incurred by the Kingdom of Spain prior to the
                                                                               24 months provided for by Article 7(4) of Council
                                                                               Regulation 1258/99 (5) which preceded the communi-
                        (2001/C 303/21)                                        cation in writing by the Commission to the Member State
                                                                               concerned of the results of such inquiries.
An action against the Commission of the European Communi-
                                                                        (1) OJ 2001 L 200, p. 28.
ties was brought before the Court of Justice of the European
                                                                        (2) at issue is an adjustment amounting to ESP 185 046 088 referring
Communities on 6 September 2001 by the Kingdom of Spain,                    to additional payments to beef producers as a result of the bovine
represented by Mónica López-Monı́s Gallego, Abogado del                   spongiform encephalopathy (BSE) crisis.
Estado, acting as Agent, with an address for service in                 (3) Council Regulation (EC) No 1357/96 of 8 July 1996 providing
Luxembourg.                                                                 for additional payments to be made in 1996 with the premiums
                                                                            referred to in Regulation (EEC) No 805/68 on the common
                                                                            organization of the market in beef and veal and amending that
The applicant claims that the Court should:                                 Regulation. OJ L 175, 13.7.1996, p. 9.
                                                                        (4) BOE (Boletin del Estado) 228 of 20 September 1996 of the
                                                                            Ministerio de Agricultura, Pesca y Alimentación.
—     annul the decision of the Commission of 11 July 2001 (1)          (5) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
      excluding from Community financing certain expenditure                financing of the common agricultural policy (OJ 1999 L 160,
      incurred by the Member States under the Guarantee                     p. 103).
      Section of the European Agricultural Guidance and
      Guarantee Fund (EAGGF) so far as concerns the financial
      adjustments imposed on the Kingdom of Spain and
      challenged in the present application (2);
—     order the defendant institution to pay the costs.
                                                                        Action brought on 7 September 2001 by the Commission
                                                                        of the European Communities against the Council of the
                                                                                European Union
Pleas in law and main arguments
                                                                                (Case C-338/01)
—     Compliance with applicable Community legislation on                                          (2001/C 303/22)
      the granting of additional assistance: In the Commissions
      view, additional BSE payments in the Kingdom of Spain
      in 1996 under Council Regulation No 1357/96 (3), made             An action against the Council of the European Union was
      in accordance with the Ministerial Order of 19 September          brought before the Court of Justice of the European Communi-
      1996 (4), were based on the applications submitted in             ties on 7 September 2001 by the Commission of the European
 ---pagebreak--- C 303/14               EN                    Official Journal of the European Communities                                     27.10.2001
Communities, represented by Richard Lyal, acting as agent,              The applicant claims that the Court should:
with an address for service in Luxembourg.
                                                                        —     Declare that, by refusing access to the Spanish market to
The Applicant claims that the Court should:                                   products lawfully manufactured and commercialised in
                                                                              other Member States under the name of ‘limpiador con
(1) declare that Council Directive 2001/44/EC of 15 June                      lejı́a’ (cleaning product containing bleach) or similar, with
      2001 (1) amending Directive 76/308/EEC on mutual                        an active chlorine content of less than 35 grams per litre,
      assistance for the recovery of claims resulting from                    the Kingdom of Spain has failed to fulfil its obligations
      operations forming part of the system of financing the                  under Article 28 of the EC Treaty; and
      European Agricultural Guidance and Guarantee Fund,
      and of agricultural levies and customs duties and in
      respect of value added tax and certain excise duties is           —     Order the Kingdom of Spain to pay the costs.
      void;
(2) maintain the effects of the directive until the entry into
      force of a directive adopted on the correct legal basic;
(3) order the Council of the European Union to pay the costs.           Pleas in law and main arguments
Pleas in law and main arguments                                         The provisions of law in force in Spain, as interpreted and
                                                                        applied by the Spanish authorities, contain restrictions which
                                                                        apply without distinction to domestic products and imported
The Council adopted Directive 2001/44/EC on the basis of                products, with regard to the naming and labelling of the
Articles 93 and 94 EC, rather than on the basis of Article 99           product in question [‘limpiador con lejı́a’ (cleaning product
EC, as proposed by the Commission, deeming the measure to               containing bleach)]. Although the objective of consumer
concern fiscal provisions.                                              protection may justify national measures which hinder intra-
                                                                        Community trade, such measures must be necessary and
                                                                        proportionate to the achievement of that objective.
The Commission considers that the object of the legislation in
question is the completion of the internal market and that it
does not constitute a set of measures harmonising tax pro-
visions. The correct legal base is, therefore, Article 95 EC.           The Commission rejects the argument put forward by the
                                                                        Spanish authorities that it is essential for the protection of
                                                                        Spanish consumers because, in the view of those authorities,
The Commission accordingly submits that the directive has
                                                                        the word ‘bleach’ is indissociable from a product with the
been adopted on an incorrect legal basis and should be
                                                                        disinfecting power associated with that level of active chlorine.
annulled.
                                                                        First, it is not possible, and thus disproportionate, to require
                                                                        that an end product (bleach cleaners) composed of various
(1) OJ L 175, 28.6.2001, p. 17.                                         ingredients (including bleach) should present the same disinfec-
                                                                        tant characteristics as a single one of those ingredients (bleach).
                                                                        Secondly, the Commission considers that consumer protection
                                                                        may be achieved by means other than by allowing only certain
                                                                        marketing names, such as by the affixing of appropriate
                                                                        labelling. Moreover, the Commission would draw attention to
                                                                        Council Directive 88/379/EEC (1) of 7 June 1988 on the
                                                                        approximation of the laws, regulations and administrative
Action brought on 19 September 2001 by the Com-                         provisions of the Member States relating to the classification,
mission of the European Communities against the                         packaging and labelling of dangerous preparations and Com-
                        Kingdom of Spain                                mission Recommendation 89/542/EEC (2) of 13 September
                                                                        1989 for the labelling of detergents and cleaning products.
                         (Case C-358/01)                                The application of the aforementioned provisions allows the
                                                                        consumer to be informed about the composition of the
                         (2001/C 303/23)                                product which he is about to purchase.
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 Sep-             (1) OJ L 187, 16.7.1988, p. 14.
tember 2001 by the Commission of the European Communi-                  (2) OJ L 291, 10.10.1989, p. 55.
ties, represented by Gregorio Valero Jordana, of the Com-
missions Legal Service, acting as Agent, with an address for
service at the office of Luis Escobar Guerrero, also of the Legal
Service, Wagner Centre, Luxembourg.


title: Order of the Court of First Instance of 15 November 2000 in Case T-157/00: Nicole Robert v European Parliament (Officials — Prior administrative complaint — Time-limits — Action brought prior to rejection of the complaint — Inadmissibility)

text:
C 95/14                 EN                     Official Journal of the European Communities                                      24.3.2001
1.    The operation of the decision of the Commission of 9 March          Action brought on 20 December 2000 by Franz-Martin
      2000 relating to the withdrawal of marketing authorisations         Wasmeier against the Commission of the European Com-
      for medicinal products for human use which contain amfepra-                                      munities
      mone [C(2000) 453] is suspended in relation to the applicant.
                                                                                (Case T-381/00)
2.    Costs are reserved.
                                                                                (2001/C 95/28)
                                                                                (Language of the case: German)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
      ORDER OF THE COURT OF FIRST INSTANCE                                European Communities on 20 December 2000 by Franz-
                                                                          Martin Wasmeier, of Munich (Germany), represented by
                                                                          Gerhard Maier, of Messrs Kalaitzis, Türck & Maier, Bernau am
                      of 15 November 2000                                 Chiemsee (Germany).
in Case T-157/00: Nicole Robert v European Parliament (1)                 The applicant claims that the Court should:
                                                                          —     annul the Commission’s decision of 7.9.2000 concerning
(Officials — Prior administrative complaint — Time-limits
                                                                                the applicant’s complaint and the Commission’s decision
— Action brought prior to rejection of the complaint —
                                                                                of 24.9.1999 concerning his classification in grade A 7;
                          Inadmissibility)
                                                                          —     order the Commission to adopt a fresh decision concern-
                           (2001/C 95/27)                                       ing the applicant’s classification in grade, accompanied
                                                                                by a comprehensive statement of reasons;
                    (Language of the case: French)                        —     order the Commission to pay the costs.
In Case T-157/00: Nicole Robert, an official of the European
Parliament, residing at Strassen (Luxembourg), represented by             Pleas in law and main arguments
A. Lorang, of the Luxembourg Bar, with an address for service
in Luxembourg at the latter’s Chambers, 2 Rue des Dahlias,
v European Parliament (Agents: Y. Pantalis and D. Moore) —                Having sat an open competition, the applicant was appointed
application for annulment of the Parliament’s decision not to             an official of the Commission and classified in grade A 7, step
promote the applicant to grade B 1 in the context of the 1999             1. The applicant lodged a complaint against that decision,
promotions procedure, and of the decisions promoting other                seeking classification in grade A 6.
officials in the course of the procedure for that year — the
Court of First Instance (Fifth Chamber), composed of: P. Lindh,
President, and R. Garcı́a-Valdecasas and J.D. Cooke, Judges;              The action is directed against the Commission’s decision
H. Jung, Registrar, made an order on 15 November 2000, the                rejecting that complaint. The applicant asserts inter alia that:
operative part of which is as follows:
                                                                          —     the Commission’s decision is vitiated by errors in the
1.    The application is dismissed as inadmissible.                             investigation of the facts and errors of judgment;
2.    The parties are to bear their own costs.                            —     the Commission wrongly failed to carry out a comprehen-
                                                                                sive assessment of the applicant’s qualifications; and
                                                                          —     the principles of the protection of legitimate expectations
(1) OJ C 247 of 26.8.2000.                                                      and of equal treatment have been violated.


title: Case T-142/14: Action brought on 28 February 2014 — SolarWorld and Others v Council

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/42

         Action brought on 28 February 2014 — SolarWorld and Others v Council
   (Case T-142/14)
   2014/C 142/55
   Language of the case: English

      Parties

      Applicants: SolarWorld AG (Bonn, Germany); Brandoni solare SpA (Castelfidardo, Italy); and Solaria Energia y Medio Ambiente, SA (Madrid, Spain) (represented by: L. Ruessmann, lawyer, and J. Beck, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

   The applicants claim that the Court should:

               —

               Declare the application admissible and well-founded;

               —

               Annul Article 2 of Council Implementing Regulation (EU) No 1239/2013 (1);

               —

               Join this case with Case T-507/13; and

               —

               Order the defendant to pay the applicants’ costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that Article 2 of the contested regulation reflects a manifest error of assessment, and violates Article 13 of the Basic AS Regulation (2) to the extent it exempts from the measures Chinese producers from which the Commission accepted a joint undertaking in violation of the applicants’ right to a fair legal process and the principle of good administration, the applicants’ rights of defence, and Articles 13(4) and 29(2) Basic AS Regulation.

               2.

               Second plea in law, alleging that Article 2 of the contested regulation reflects a manifest error of assessment, and violates Article 13 of the Basic AS Regulation, to the extent it exempts from the measures Chinese producers from which the Commission accepted an unlawful joint undertaking.

               3.

               Third plea in law, alleging that Article 3 of the contested regulation violates Article 101(1) TFEU to the extent it grants certain Chinese producers an exemption from the measures in question on the basis of an undertaking offer, accepted and confirmed by Implementing Decision 2013/707/EU (3) and by Commission Decision 2013/423/EU (4), which is a horizontal price fixing arrangement.

      (1)  Council Implementing Regulation (EU) No 1239/2013 of 2 December 2013 imposing a definitive countervailing duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China (OJ 2013 L 325, p. 66)

      (2)  Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93)

      (3)  Commission Implementing Decision 2013/707/EU of 4 December 2013 confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214)

      (4)  Commission Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26)


title: Case C-493/08: Action brought on 14 November 2008 — Commission of the European Communities v Hellenic Republic

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/16

         Action brought on 14 November 2008 — Commission of the European Communities v Hellenic Republic
   (Case C-493/08)
   (2009/C 6/26)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: Iro Dimitriou and P. Dejmek, acting as Agents)

      Defendant: Hellenic Republic
   Form of order sought

               —

               Declare that by not bringing into force the laws, regulations and administrative provisions necessary to comply with Directive 2005/56/EC (1) of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies the Hellenic Republic has failed to fulfil its obligations under the first paragraph of Article 19 of that directive;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   The period for the transposition of that directive into national law expired on 15 December 2007.

      (1)  OJ L 310, 25.11.2005, p. 1.


title: Case T-427/13: Order of the General Court of 10 June 2014  — Gruppo Norton v OHIM — Marín Nicolás (Gruppo Norton S.r.l.) (Community trade mark — Opposition Proceedings — Application for Community figurative mark Gruppo Norton S.r.l. — Earlier national figurative mark NORTON HISPAŃO — Rule 49(1) of Commission Regulation (EC) No 2868/95 and Article 60 of Regulation (EC) No 207/2009 — Inadmissibility of the appeal before the Board of Appeal — Action manifestly lacking any foundation in law)

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/30

         Order of the General Court of 10 June 2014 — Gruppo Norton v OHIM — Marín Nicolás (Gruppo Norton S.r.l.)
   (Case T-427/13) (1)

   ((Community trade mark - Opposition Proceedings - Application for Community figurative mark Gruppo Norton S.r.l. - Earlier national figurative mark NORTON HISPAŃO - Rule 49(1) of Commission Regulation (EC) No 2868/95 and Article 60 of Regulation (EC) No 207/2009 - Inadmissibility of the appeal before the Board of Appeal - Action manifestly lacking any foundation in law))
   2014/C 253/43
   Language of the case: Spanish

      Parties

      Applicant: Gruppo Norton Srl (Carini, Italy) (represented by: M. García Lirola, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Victoriano Marín Nicolás (Alcantarilla, Spain) (represented by: M. Ruiz Vázquez, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 31 May 2013 (Case R 341/2013-4), concerning opposition proceedings between Mr Victoriano Marín Nicolás and Gruppo Norton Srl.

      Operative part of the order

               1)

               The action is dismissed.

               2)

               Gruppo Norton Srl is ordered to pay the costs.

      (1)  OJ C 313, 26.10.2013.


title: Case T-364/05: Action brought on  26 September 2005  — Saint-Gobain Pam SA v OHIM

text:
               10.12.2005

               EN

               Official Journal of the European Union

               C 315/14

         Action brought on 26 September 2005 — Saint-Gobain Pam SA v OHIM
   (Case T-364/05)
   (2005/C 315/27)
   Language in which the application was lodged: French
   Parties
   Applicant: Saint-Gobain Pam SA (Nancy, France) (represented by: J. Blanchard, lawyer)
   Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Other party to the proceedings before the Board of Appeal of OHIM: Propamsa SA
   Form of order sought
   The applicant claims that the Court should:

               —

               annul the decision given on 15 April 2005 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: Saint-Gobain Pam SA

      Community trade mark concerned: word mark ‘PAM PLUVIAL’ for goods in Class 6 (‘pipes and tubes of metal or based on metal, pipes and tubes of cast iron, fittings of metal for the aforesaid goods’) and Class 17 (‘fittings, not of metal, for rigid pipes and tubes, not of metal’).

      Proprietor of the mark or sign cited in the opposition proceedings: Propamsa SA

      Mark or sign cited in opposition: Spanish trade mark registration No 737 992 of the semi-figurative mark ‘PAM PAM’, for goods in Class 19 (‘construction materials’), Spanish trade mark registration No 120 075 of the word mark ‘PAM’ for goods in Class 19 (‘cements’) and International trade mark registration No 463 089 ‘PAM’ for goods in Class 1 (‘adhesive substances destined for industry’) and Class 19 (‘materials for construction (non-metallic), wrought or unwrought’).

      Decision of the Opposition Division: upheld the opposition and rejected the application for registration.

      Decision of the Board of Appeal: dismissed the appeal.

      Pleas in law:
   Infringement of the principle of continuity in terms of their functions between the various departments of the Office for Harmonisation in the Internal Market in that a decision that a party appearing before the authorities ruling at first instance which has failed to provide evidence as to matters of fact or law within the prescribed time-limits cannot, pursuant to Article 74(2) of Council Regulation No 40/94 on the Community trade mark, rely on such evidence before the Board of Appeal is contrary to that principle.
   Infringement of Article 8(1)(b) of that Regulation.