title: Case T-138/07: Judgment of the General Court of 13 July 2011 — Schindler Holding and Others v Commission (Competition — Agreements, decisions and concerted practices — Market for the installation and maintenance of elevators and escalators — Decision finding an infringement of Article 81 EC — Bid-rigging — Market sharing — Price fixing)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/44

         Judgment of the General Court of 13 July 2011 — Schindler Holding and Others v Commission
   (Case T-138/07) (1)

   (Competition - Agreements, decisions and concerted practices - Market for the installation and maintenance of elevators and escalators - Decision finding an infringement of Article 81 EC - Bid-rigging - Market sharing - Price fixing)
   2011/C 269/96
   Language of the case: German

      Parties

      Applicants: Schindler Holding Ltd (Hergiswil, Switzerland); Schindler Management AG (Ebikon, Switzerland); Schindler SA (Brussels, Belgium); Schindler Deutschland Holding GmbH (Berlin, Germany); Schindler Sàrl (Luxembourg, Luxembourg); and Schindler Liften BV (The Hague, Netherlands) (represented by: R. Bechtold, W. Bosch, U. Soltész and S. Hirsbrunner, lawyers)

      Defendant: European Commission (represented by: K. Mojzesowicz and R. Sauer, Agents)

      Intervener in support of the defendant: Council of the European Union (represented by: M. Simm and G. Kimberley, Agents)

      Re:

   Application for annulment of Commission Decision C(2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 [EC] (Case COMP/E-1/38.823 — Elevators and Escalators) or, in the alternative, reduction of the amounts of the fines imposed on the applicants.

      Operative part of the judgment

   The Court:

               1.

               Declares that it is unnecessary to rule on the action in so far as it has been brought by Schindler Management AG;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Schindler Holding Ltd, Schindler SA, Schindler Deutschland Holding GmbH, Schindler Sàrl and Schindler Liften BV to pay the costs;

               4.

               Orders Schindler Management to bear its own costs;

               5.

               Orders the Council of the European Union to bear its own costs.

      (1)  OJ C 155, 7.7.2007.


title: Case T-216/13: Action brought on 9 April 2013 — Telefónica v Commission

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/54

         Action brought on 9 April 2013 — Telefónica v Commission
   (Case T-216/13)
   2013/C 156/100
   Language of the case: Spanish

      Parties

      Applicant: Telefónica, SA (Madrid, Spain) (represented by: J. Folguera Crespo, P. Vidal Martínez and E. Peinado Iríbar, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Articles 1 and 2 of the decision of the Commission of 23 January 2013 in so far as they concern the applicant, or, in the alternative

               —

               declare Article 2 of the contested decision partially null and void and reduce the amount of the fine imposed, and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The contested decision in the present proceedings is the same as that in Case T-208/13 Portugal Telecom v Commission.
   In support of the action, the applicant relies on five main pleas in law.

               1.

               First plea in law, alleging infringement of Article 101 TFEU

                           —

                           It is claimed in this regard that the contested decision incorrectly applies the case-law relating to restrictions by object and infringes the principles of the presumption of innocence, burden of proof and ‘in dubio pro reo’ as regards the content of clause nine of the purchase agreement. It is claimed, in particular on this point, that the clause was linked to the transaction and cannot be construed or applied outside of that context and of a difficult negotiation process characterised by on-going interference by the Portuguese Government.

               2.

               Second plea in law, alleging infringement of Article 101 TFEU

                           —

                           It is claimed in this regard that the Commission committed a manifest error of assessment of the facts and infringed the principle of overall assessment of the evidence as regards the context within which the clause was agreed, the conduct of the parties concerned and the purpose of the clause.

               3.

               Third plea in law, alleging infringement of the rules concerning the burden of proof and sound administration, of the rights of the defence and of the presumption of innocence as regards the evidence of the intervention by the Portuguese Government in the negotiations and in the conception and maintenance of the clause at issue.

               4.

               Fourth plea in law, alleging infringement of Article 101 TFEU

                           —

                           It is claimed in this regard that the Commission failed to provide adequate reasons for finding that, and incorrectly assessed whether, the clause was capable of restricting competition; a necessary condition to there being an infringement, at least by object, of Article 101 TFEU.

               5.

               Fifth plea in law, alleging infringement of Article 101 TFEU

                           —

                           It is claimed in this regard that the clause at issue is not a restriction by effect contrary to Article 101 TFEU, either.

                     In the alternative, the applicant also claims that the Commission infringed the principle of proportionality and the duty to state reasons, and committed a manifest error by rejecting mitigating circumstances and by inadequately assessing those circumstances.


title: ORDER OF THE COURT OF FIRST INSTANCE of 13 January 1995 in Case T-525/93: Patrick Nash and Others v. Council of the European Union and Commission of the European Communities (Partial removal from the register)

text:
8 . 4 . 95              EN                  Official Journal of the European Communities                                  No C 87/11
Brasseur, against the Council of the European Union                    1 . the names of Patrick Nash and of the other milk
(Agents: A. Brautigam and M. Bishop) and the Commission                      producers named in the Annex to this order shall be
of the European Communities (Agents: D. Boofi, C.                            removed from the list of applicants in Case T-525/93,
Docksey and H. J. Rabe ) — application for compensation,                     except that of Patrick Griffin;
under Article 178 and the second paragraph of Article 215
of the EC Treaty, for the damage which the applicants
consider they have suffered as a result of the application of          2 . each party is to bear its own costs.
Council Regulation (EEC ) No 857/84 of 31 March 1984
adopting general rules for the application of the levy referred        i 1 ) OJ No C 328 , 4 . 12 . 1993 .
to in Article 5c of Regulation (EEC ) No 804/68 in the milk            (2 ) OJ No L 90, 1 . 4 . 1984, p. 13 .
and milk products sector (2 ) — the President of the Court of
First Instance made an order on 13 January 1995 , the
operative part of which is as follows:
1 . the names of Humphrey Hennessy and of the other milk
      producers named in the Annex to this order shall be
      removed from the list of applicants in Case T-524/93,                  ORDER OF THE COURT OF FIRST INSTANCE
      except that of Terry Wall;
                                                                                of 13 January 1995
                                                                       in Case T-538/93 : Patrick Houlihan and Others v. Council
2. each party is to bear its own costs.                                of the European Union and Commission of the European
                                                                                Communities (M
(!) OJ No C 319, 26 . 11 . 1993 .                                                     (Partial removal from the register)
(2 ) OJ No L 90, 1 . 4 . 1984, p . 13 .                                                             ( 95/C 87/25 )
                                                                                (Language of the case: English)
                                                                       In Case T-538/93 : Patrick Houlihan, residing in Dungarvan
                                                                        (Ireland), and the other milk producers whose names appear
      ORDER OF THE COURT OF FIRST INSTANCE                             in the Annex to the order, represented by James O'Reilly SC,
                                                                       of the Bar of Ireland, and Philippa Watson,
                        of 13 January 1995
                                                                       Barrister-at-Law, instructed by Oliver Ryan-Purcell,
in Case T-525/93 : Patrick Nash and Others v. Council of               Solicitor, with an address for service in Luxembourg at Fyfe
the European Union and Commission of the European                      Business Centre, 29 Rue Jean-Pierre Brasseur, against the
                          Communities i 1 )                            Council of the European Union (Agents: A. Brautigam and
                (Partial removal from the register)                    M. Bishop ) and the Commission of the European
                            ( 95/C 87/24                               Communities (Agents: D. Boofi, C. Docksey and H. J. Rabe )
                                                                       — application for compensation, under Article 178 and the
                                                                       second paragraph of Article 215 of the EC Treaty, for the
                  (Language of the case: English)                      damage which the applicants consider they have suffered as
                                                                       a result of the application of Council Regulation ( EEC )
                                                                       No 857/84 of 31 March 1984 adopting general rules for the
In Case T-525/93 : Patrick Nash residing in Newcastle West             application of the levy referred to in Article 5c of Regulation
 ( Ireland ), and the other milk producers whose names appear           (EEC ) No 804/68 in the milk and milk products sector ( 2 ) —
in the Annex to the order, represented by James O'Reilly SC,           the President of the Court of First Instance made an order on
of the Bar of Ireland, and Philippa Watson,                             13 January 1995 , the operative part of which is as
Barrister-at-Law, instructed by Oliver Ryan-Purcell,                    follows:
 Solicitor, with an address for service in Luxembourg at Fyfe
Business Centre, 29 Rue Jean-Pierre Brasseur, against the
 Council of the European Union (Agent: A. Brautigam) and                1 . the names of Patrick Houlihan and of the other milk
the Commission of the European Communities (Agents: D.                       producers named in the Annex to this order shall be
 BooS, C. Docksey and H. J. Rabe ) — application for                          removed from the list of applicants in Case T-538/93,
compensation, under Article 178 and the second paragraph                      except that of John Harris;
 of Article 215 of the EC Treaty, for the damage which the
 applicants consider they have suffered as a result of the
 application of Council Regulation (EEC ) No 857/84 of                  2. each party is to bear its own costs.
 31 March 1984 adopting general rules for the application of
 the levy referred to in Article 5c of Regulation ( EEC )               (!) OJ No C 319, 26 . 11 . 1993 .
 No 804/68 in the milk and milk products sector ( 2) — the              (2) OJ No L 90, 1 . 4. 1984, p. 13 .
President of the Court of First Instance made an order on
 13 January 1995, the operative part of which is as
follows:


title: Case T-40/03: Action brought on 10 February 2003 by Julián Murúa Entrena against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
26.4.2003              EN                          Official Journal of the European Union                                          C 101/39
Mark or sign cited in          The German word/figurative                  Pleas in law and main arguments
opposition:                    mark ‘AXON’ (No 1108589) for
                               goods and services in classes 10,           Applicant for Com-           Applicant
                               12, 35 and 36                               munity trade mark:
Decision of the Oppo-          Rejection of the opposition                 Community trade mark         Figurative mark ‘Julián Murúa
sition Division:                                                           sought:                      Entrena’        —       Application
                                                                                No 62.588 for products in
Decision of the Board of       Annulment of the decision of the                                         Class 33 (wines).
Appeal:                        Opposition Division and referral
                               of the case back to the Opposition          Proprietor of mark or        Bodegas Murúa S.A.
                               Division                                    sign cited in the oppo-
                                                                           sition proceedings:
Pleas in law:                  —     There is no similarity
                                     between the marks opposed,            Mark or sign cited in        Spanish trade mark ‘MURUA’
                                     within the meaning of                 opposition:                  and international registration
                                     Article 8(1)(b) of Regulation                                      No 482.779 having effect in Ger-
                                     (EC) No 40/94 (1).                                                 many, France, Austria, Switzer-
                                                                                land and Benelux for products in
                               —     There is no likelihood of                                          Class 33.
                                     confusion.
                                                                           Decision of the Oppo-        Opposition accepted.
                                                                           sition Division:
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
     Community trade mark (OJ 1994 L 11, p. 1).                            Decision of the Board of     Appeal dismissed.
                                                                           Appeal:
                                                                           Pleas in law:                Incorrect        application      of
                                                                                Article 8(1)(b) of Regulation (EC)
                                                                                No 40/94 (likelihood of con-
                                                                                fusion).
Action brought on 10 February 2003 by Julián Murúa
Entrena against the Office for Harmonisation in the
     Internal Market (Trade Marks and Designs) (OHIM)
                          (Case T-40/03)                                   Action brought on 10 February 2003 by La Maison de
                                                                           l’Europe Avignon-Méditerranée against Commission of
                                                                                the European Communities
                         (2003/C 101/71)
                                                                                (Case T-43/03)
                   (Language of the case: Spanish)
                                                                                (2003/C 101/72)
An action against the Office for Harmonisation in the Internal                               (Language of the case: French)
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
10 February 2003 by Julián Murúa Entrena, residing in El
Ciego, Álava (Spain), represented by Ignacio Temiño Ceniceros,             An action against the Commission of the European Communi-
lawyer.                                                                    ties was brought before the Court of First Instance of the
                                                                           European Communities on 10 February 2003 by La Maison
                                                                           de l’Europe Avignon-Méditerranée, established in Avignon
                                                                           (France), represented by François Martineau, lawyer.
The applicant claims that the Court should:
—      annul the contested decision refusing the Community                 The applicant claims that the Court should:
       trade-mark application No 62.588 in Class 33;
                                                                           —     order the defendant to pay EUR 100 000 to make good
—      order the parties to bear their own costs and half of the                 the damage suffered by La Maison de l’Europe Avignon-
       common costs.                                                             Méditerranée as a result of the disclosure of deceitful,


title: Case C-460/99: Action brought on 2 December 1999 by the Commission of the European Communities against the French Republic

text:
4.3.2000              EN                    Official Journal of the European Communities                                        C 63/11
Action brought on 2 December 1999 by the Commission                    1. Does a legal person constitute a ‘contracting authority’
of the European Communities against the French Republic                     within the meaning of Article 1(b) of Directive
                                                                            93/37/EEC (1) even if it was not established for the specific
                         (Case C-460/99)                                    purpose of meeting needs in the general interest, not
                                                                            having an industrial or commercial character, but it now
                          (2000/C 63/20)                                    meets such needs?
An action against the French Republic was brought before the
Court of Justice on 2 December 1999 by the Commission of               2. If Entsorgungsbetriebe Simmering GesmbH is not a con-
the European Communities, represented by Maria Condou                       tracting authority, does the planned construction of the
Durande, of its Legal Service, acting as Agent, with an address             second biological treatment phase of the principal sewage
for service in Luxembourg at the office of Carlos Gómez de la              plant, Vienna, constitute the execution, by whatever means,
Cruz, also of its Legal Service, Wagner Centre, Kirchberg.                  of a work corresponding to the requirements specified by
                                                                            the contracting authority, and thus a ‘public works con-
The Commission of the European Communities claims that                      tract’ within the meaning of Article 1(a), in conjunction
the Court of Justice should:                                                with Article 1(c), of Directive 93/37/EEC?
— Declare that, by failing to adopt the laws, regulations
    and administrative provisions necessary to comply with             3. If Question 1 or Question 2 is answered in the affirmative,
    Council Directive 95/53/EC (1) of 25 October 1995 fixing                does Directive 89/665/EEC (2) preclude a national pro-
    the principles governing the organisation of official inspec-           vision which fixes a time-limit for the review of an
    tions in the field of animal nutrition, the French Republic             individual decision of the contracting authority so that on
    has failed to fulfil its obligations under that directive and           expiry of that time-limit the decision can no longer be
    the Treaty;                                                             challenged in the course of the ongoing contract award
                                                                            procedure? Is it necessary, on pain of forfeiture [of rights],
— Order the French Republic to pay the costs.                               for every defect to be pleaded by the persons concerned?
Contentions and principal arguments adduced in support                 4. If Question 1 or Question 2 is answered in the affirmative,
                                                                            is it sufficient for the body inviting tenders to determine
The binding nature of Articles 249 and 10 EC means that                     that the applications will be evaluated according to a
Member States to which a directive is addressed are required                method lodged with a notary, or is it necessary for the
to amend their legislation within the time-limits laid down                 evaluation criteria already to have been communicated in
therein. The period prescribed in Article 24 of Directive                   the call for candidates or the tender documents?
95/531/EC expired on 30 April 1998 and France has not
adopted the requisite measures or even given details of any
existing provisions which might meet the requirements of
certain provisions of the directive.                                   (1) OJ L 199 of 9.8.1993, p. 54.
                                                                       (2) OJ L 395 of 30.12.1989, p. 33.
(1) OJ 1995 L 265, p. 17.
Reference for a preliminary ruling from the Vergabekon-
trollsenat, Vienna, by order of that court of 12 November
1999 in the case of Universale-Bau AG and the consortium               Action brought on 10 December 1999 by the Commission
of tenderers consisting of 1. Hinteregger & Söhne Bau-                     of the European Communities v Republic of Austria
ges.m.b.H. and 2. ÖSTÜ-STETTIN Hoch- und Tiefbau
     GmbH v Entsorgungsbetriebe Simmering GmbH
                                                                                (Case C-473/99)
                         (Case C-470/99)
                          (2000/C 63/21)                                                          (2000/C 63/22)
Reference has been made to the Court of Justice of the
European Communities by order of the Vergabekontrollsenat              An action against the Republic of Austria was brought
(Procurement Review Chamber), Vienna, of 12 November                   before the Court of Justice of the European Communities on
1999, which was received at the Court Registry on 7 December           10 December 1999 by the Commission of the European
1999, for a preliminary ruling in the case of Universale-Bau AG        Communities, represented by Wolfgang Bogensberger, a mem-
and the consortium of tenderers consisting of 1. Hinteregger &         ber of its Legal Service, with an address for service in
Söhne Bauges.m.b.H. and 2. ÖSTÜ-STETTIN Hoch- und                    Luxembourg at the office of Carlos Gómez de la Cruz, also a
Tiefbau GmbH v Entsorgungsbetriebe Simmering GmbH, on                  member of its Legal Service, Wagner Centre C 254, Kirchberg,
the following questions:                                               Luxembourg.


title: Case T-15/13: Action brought on 7 January 2013 — Group Nivelles v OHIM — Easy Sanitairy Solutions (Representation of a shower drainage pipe)

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/28

         Action brought on 7 January 2013 — Group Nivelles v OHIM — Easy Sanitairy Solutions (Representation of a shower drainage pipe)
   (Case T-15/13)
   2013/C 108/72
   Language in which the application was lodged: Dutch

      Parties

      Applicant: Group Nivelles (Gingelom, Belgium) (represented by: H. Jonkhout, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Easy Sanitairy Solutions BV (Losser, Netherlands)

      Form of order sought

               —

               Annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 October 2012 in Case 2004/2010-3 and, correcting the grounds as necessary, uphold the decision of the Cancellation Division of OHIM of 23 September 2010 in Case ICD 000007024, notification of the latter decision having been received on 1 October 2010.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: Design representing a shower drainage pipe — Community design No 107834-0025

      Proprietor of the Community trade mark: Easy Sanitairy Solutions BV

      Applicant for the declaration of invalidity of the Community trade mark: Group Nivelles

      Grounds for the application for a declaration of invalidity: Articles 4 to 9 of Regulation No 6/2002

      Decision of the Cancellation Division: Design declared invalid.

      Decision of the Board of Appeal: Annulment of the decision of the Cancellation Division

      Pleas in law: The Board of Appeal’s decision is based on incorrect grounds and, in factual terms, on a false point of comparison.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 13 March 1997 in Case C-103/96 (reference for a preliminary ruling from the Tribunal d'Instance, Lille): Directeur Général des Douanes et Droits Indirects v. Eridania Beghin-Say SA (Customs duties - Inward processing arrangements - Equivalent compensation system - Cane sugar and beet sugar)

text:
No C 142/2               EN                  Official Journal of the European Communities                                     10 . 5 . 97
a preliminary ruling in the proceedings pending before                  provisions for the implementation of Regulation ( EEC )
that court between Tommaso Morellato and Unità Sanita                  No 1999/85 on inward processing relief arrangements ( OJ
ria    Locale    (USL )     No    11 ,  Pordenone    —   on   the       No L 351 , 12 . 12 . 1986 , p. 1 ) — the Court ( Fifth
interpretation of Articles 30 and 36 of the EC Treaty —                 Chamber ), composed of: J. C. Moitinho de Almeida,
the Court ( First Chamber ), composed of: L. Sevón,                     President of the Chamber, C. Gulmann ( Rapporteur ),
President of the Chamber, D. A. O. Edward ( Rapporteur )                D. A. O. Edward, J. -P. Puissochet and M. Wathelet,
and P. Jann, Judges; D. Ruiz-Jarabo Colomer, Advocate                  Judges; D. Ruiz-Jarabo Colomer, Advocate-General; L.
General ; R. Grass, Registrar, has given a judgment on                  Hewlett, Administrator, for the Registrar, has given a
 13 March 1997, in which it has ruled:                                  judgment on 13 March 1997, in which it has ruled :
 1 . The application to products lawfully manufactured                  Consideration of Council Regulation (EEC) No 3677/86
     and marketed in other Member States of national                    of 24 November 1986 laying down provisions for the
     legislation prohibiting the marketing of bread with a              implementation of Regulation (EEC) No 1999/85 on
     moisture content exceeding 34% or an ash content                   inward processing relief arrangements has not, in the light
     lower than 1,40% or containing bran constitutes a                  of the order for reference, disclosed any factor of such a
     measure having an effect equivalent to a quantitative              kind as to affect its validity.
     restriction within the meaning of Article 30 of the EC
     Treaty and is not justified under Article 36 of the                (') OJ No C 158 , 1 . 6 . 1996 .
     Treaty by the need to protect public health.
2 . The national court is under a duty to give full effect to
     Article 30 of the Treaty by disapplying on its own
     initiative provisions of national law conflicting with it.
                                                                                JUDGMENT OF THE COURT
(') OJ No C 16 , 20 . 1 . 1996 .                                                                  (Fifth Chamber)
                                                                                of 13 March 1997
                                                                        in   Case   C-197/96: Commission of the European
                                                                                Communities v. French Republic (')
                                                                        (Failure of a Member State to fulfil its obligations —
                                                                        Equal treatment for men and women — Prohibition of
                JUDGMENT OF THE COURT                                                                 nightwork)
                          ( Fifth Chamber)
                                                                                ( 97/C 142/04 )
                         of 13 March 1997
in Case C-103/96 (reference for a preliminary ruling from                               (Language of the case: French)
the Tribunal d'Instance, Lille ): Directeur Général des
  Douanes et Droits Indirects v. Eridania Beghin-Say SA (')
(Customs duties — Inward processing arrangements —                        (Provisional translation; the definitive translation will be
Equivalent compensation system — Cane sugar and beet                             published in the European Court Reports)
                                 sugar)
                            ( 97/C 142/03 )
                                                                        In Case C-197/96 : Commission of the European
                                                                        Communities ( Agent: Marie Wolfcarius ) v. French
                                                                        Republic ( Agents : Catherine de Salins and Claude
                 (Language of the case: French)                         Chavance ) — application for a declaration that by
                                                                        maintaining in force Article L 213-1 of the Code du
                                                                        Travail prohibiting nightwork by women in industry
                                                                        whereas no such prohibition exists in relation to men, the
  (Provisional translation; the definitive translation will be          French Republic has failed to fulfil its obligations under
          published in the European Court Reports)                      Article   5  (1)   of Council       Directive 76/207/EEC of
                                                                        9 February 1976 on the implementation of the principle of
                                                                        equal treatment for men and women as regards access to
In Case C-103/96 : reference to the Court under Article 177             employment, vocational training and promotion, and
of the EC Treaty from the Tribunal d'Instance ( District                working conditions ( OJ No L 39 , 14 . 2 . 1976 , p. 40 ) —
Court), Lille, for a preliminary ruling in the proceedings              the Court ( Fifth Chamber ), composed of: J. C. Moitinho
pending before that court between Directeur General des                 de Almeida, President of the Chamber, L. Sevón, D. A. O.
Douanes et Droits Indirects and Eridania Beghin-Say SA                  Edward ( Rapporteur), J. -P. Puissochet and P. Jann, Judges;
— on the validity of Article 9 of Council Regulation                    G. Tesauro, Advocate-General; R. Grass, Registrar, has
( EEC ) No 3677/86 of 24 November 1986 laying down                      given a judgment on 13 March 1997, in which it:


title: Case T-378/12: Judgment of the General Court of 5 November 2013 — Capitalizaciones Mercantiles v OHIM — Leineweber (X) (Community trade mark — Opposition proceedings — Application for Community figurative mark X — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Distinctive character of the earlier mark — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/27

         Judgment of the General Court of 5 November 2013 — Capitalizaciones Mercantiles v OHIM — Leineweber (X)
   (Case T-378/12) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark X - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Distinctive character of the earlier mark - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 367/49
   Language of the case: Spanish

      Parties

      Applicant: Capitalizaciones Mercantiles Ltda (Bogota, Colombia) (represented by: J. Devaureix and L. Montoya Terán, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Leineweber GmbH & Co. KG (Herford, Germany) (represented by: S. Jackermeier and D. Wiedemann, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 15 May 2012 (Case R 1524/2011-1) concerning opposition proceedings between Leineweber GmbH & Co. KG and Capitalizaciones Mercantiles Ltda.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Capitalizaciones Mercantiles Ltda to pay the costs.

      (1)  OJ C 366, 24.11.2012.


title: Case C-403/14: Request for a preliminary ruling from the Administrativen sad — Varna (Bulgaria) lodged on 25 August 2014 — ‘Vekos trade’ AD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’, Varna, pri Tsentralno Upravlenie na Natsionalnata agentsia za prihodite

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/24

      Request for a preliminary ruling from the Administrativen sad — Varna (Bulgaria) lodged on 25 August 2014 — ‘Vekos trade’ AD v Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’, Varna, pri Tsentralno Upravlenie na Natsionalnata agentsia za prihodite
      (Case C-403/14)
      (2014/C 395/30)
      Language of the case: Bulgarian

         Referring court

      Administrativen sad — Varna

         Parties to the main proceedings

         Applicant:‘Vekos trade’ AD

         Defendant: Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’, Varna, pri Tsentralno Upravlenie na Natsionalnata agentsia za prihodite

         Questions referred

                  1.

                  Are the principles of fiscal neutrality, proportionality and protection of legitimate expectations violated by administrative practice and case-law according to which it is for the vendor — the consignor under the transport contract — to determine the authenticity of the acquirer’s signature and to establish whether it comes from a person representing the company (the acquirer), one of its employees in a corresponding position or an authorised person?

                  2.

                  In a case such as the present does Article 138(1) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax have direct effect, and can the national court directly apply the provision?

         (1)  OJ 2006 L 347, p. 1.


title: Case C-34/00: Action brought on 8 February 2000 by the Commission of the European Communities against Kingdom of Belgium

text:
C 79/20               EN                   Official Journal of the European Communities                                    18.3.2000
The applicant claims that the Court should:                               from motor vehicles (1), the Kingdom of Belgium has failed
                                                                          to fulfil its obligations under that directive;
— Declare that, by failing to adopt and bring into force
    within the prescribed period the laws, regulations and            — Order the Kingdom of Belgium to pay the costs.
    administrative provisions necessary to comply with Com-
    mission Directive 98/90/EC of 30 November 1998 adapt-
    ing to technical progress Council Directive 70/387/EEC            Pleas in law and main arguments
    relating to the doors of motor vehicles and their trailers (1),
    the Kingdom of Belgium has failed to fulfil its obligations
    under that directive;                                             Under Article 189 of the EC Treaty (now Article 249 EC) of
                                                                      the EC Treaty, according to which a directive is to be binding,
                                                                      as to the result to be achieved, upon each Member State to
— Order the Kingdom of Belgium to pay the costs.                      which it is addressed, Member States are required to observe
                                                                      the time-limits laid down in directives for their transposition.
                                                                      That time-limit expired on 31 December 1998 without the
Pleas in law and main arguments                                       Kingdom of Belgium having brought into force the necessary
                                                                      provisions in order to comply with the directive referred to in
                                                                      the Commission’s application.
Under Article 189 of the EC Treaty (now Article 249 EC) of
the EC Treaty, according to which a directive is to be binding,
as to the result to be achieved, upon each Member State to            (1) OJ 1998 L 286, p. 34.
which it is addressed, Member States are required to observe
the time-limits laid down in directives for their transposition.
That time-limit expired on 31 December 1998 without the
Kingdom of Belgium having brought into force the necessary
provisions in order to comply with the directive referred to in
the Commission’s application.
(1) OJ 1998 L 337, p. 29.                                                    Removal from the register of Case C-204/99 (1)
                                                                                (2000/C 79/40)
                                                                      By order of 18 November 1999 the President of the Court of
                                                                      Justice of the European Communities has ordered the removal
                                                                      from the register of Case-204/99: Commission of the European
                                                                      Communities v Grand-Duchy of Luxembourg.
Action brought on 8 February 2000 by the Commission of
the European Communities against Kingdom of Belgium                   (1) OJ C 226 of 7.8.1999.
                         (Case C-34/00)
                         (2000/C 79/39)
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities                      Removal from the register of Case C-317/98 (1)
on 8 February 2000 by the Commission of the European
Communities, represented by Michel Nolin, of its Legal Service,                                  (2000/C 79/41)
acting as Agent, with an address for service in Luxembourg at
the office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.                                                            By order of 25 November 1999 the President of the Court of
                                                                      Justice of the European Communities has ordered the removal
                                                                      from the register of Case C-317/98 (reference for a preliminary
The applicant claims that the Court should:                           ruling from Pretore di Udine, sezione distaccata di Cividale del
                                                                      Friuli): Procuratore della Repubblica v Claudio Chiarotti and
— Declare that, by failing to adopt and bring into force              Antonino Chillemi.
    within the prescribed period the laws, regulations and
    administrative provisions necessary to comply with Com-
    mission Directive 98/77/EC of 2 October 1998 adapting             (1) OJ C 327 of 24.10.1998.
    to technical progress Council Directive 70/220/EEC on the
    approximation of the laws of the Member States relating
    to measures to be taken against air pollution by emissions


title: Case C-509/99: Action brought on 27 December 1999 by Portuguese Republic against Commission of the European Communities

text:
C 302/14                EN                     Official Journal of the European Communities                                    21.10.2000
J.C. Moitinho de Almeida, D.A.O. Edward, L. Sevón (Rappor-               Action brought on 27 December 1999 by Portuguese
teur) and R. Schintgen, Presidents of Chambers, and                       Republic against Commission of the European Communi-
P.J.G. Kapteyn, C. Gulmann, A. La Pergola, J.-P. Puissochet,                                              ties
G. Hirsch, P. Jann, H. Ragnemalm, M. Wathelet, V. Skouris
and F. Macken, Judges; J. Mischo, Advocate General; R. Grass,                                       (Case C-509/99)
Registrar, has made an order on 21 June 2000, the operative
part of which is as follows:                                                                        (2000/C 302/26)
1.    The action is dismissed.                                            An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of Justice of the European
2.    The French Republic is to pay the costs.                            Communities on 27 December 1999 by the Portuguese Repub-
                                                                          lic, represented by Luı́s Fernandes, Director of the Legal
(1) OJ C 63 of 4.3.2000.                                                  Services of the Directorate General for Community Affairs at
                                                                          the Ministry of Foreign Affairs, and Maria Luı́sa Duarte,
                                                                          Professor at the Law Faculty of the University of Lisbon, acting
                                                                          as Agents, and by Miguel Galvão Teles and Mário Marques
                                                                          Mendes, of the Lisbon Bar, with an address for service in
                                                                          Luxembourg at the Portuguese Embassy, 24 Rue Guillaume
                                                                          Schneider.
Action brought on 13 October 1999 by Portuguese                           The applicant claims that the Court should:
Republic against Commission of the European Communi-
                                ties                                      1.    find the present application admissible and
                          (Case C-391/99)                                       (a)   declare non-existent Commission Decision of
                                                                                20 October 1999 (C (1999) 3370 final) relating to
                          (2000/C 302/25)                                             a procedure pursuant to Article 21 of Council
                                                                                Regulation (EEC) No 4064/89 (1) of 21 December
                                                                                1989 on the control of concentrations between
An action against the Commission of the European Communi-                             undertakings (Case IV/M 1616 — A. Champali-
ties was brought before the Court of Justice of the European                          maud/BSCH)
Communities on 13 October 1999 by the Portuguese Repu-
blic, represented by Luı́s Fernandes, Director of the Legal                     (b) in the alternative, declare the abovementioned
Services of the Directorate General for Community Affairs at                          Decision void.
the Ministry of Foreign Affairs, and Maria Luı́sa Duarte,
Professor at the Law Faculty of the University of Lisbon, acting          2.    Order the Commission to pay the costs.
as Agents, with an address for service in Luxembourg at the
Portuguese Embassy, 24 Rue Guillaume Schneider.                           By Order of 14 September 2000, the President of the Court of Justice
                                                                          of the European Communities ordered the removal of the case from
The applicant claims that the Court should:                               the Register of the Court.
1.    find the present application admissible and                         (1) OJ 1989 L 395, p. 1.
      (a)   declare non-existent Commission Decision of
            20 July 1999 (C (1999) 2406 final) relating to
            a procedure pursuant to Article 21 of Council
            Regulation (EEC) No 4064/89 (1) of 21 December
            1989 on the control of concentrations between
            undertakings (Proc. IV/M 1616 — A. Champali-                  Reference for a preliminary ruling by the Bundesverwal-
            maud/BSCH)                                                    tungsgericht by order of 27 April 2000 in the case of
                                                                          Stratmann GmbH & Co. KG v Landrätin of Wesel Local
      (b) in the alternative, declare the abovementioned                                               Authority
            Decision void.
                                                                                (Case C-284/00)
2.    Order the Commission to pay the costs.
                                                                                (2000/C 302/27)
By Order of 13 September 2000, the President of the Court of Justice
of the European Communities ordered the removal of the case from          Reference has been made to the Court of Justice of the
the Register of the Court.                                                European Communities by order of 27 April 2000 by the
                                                                          Bundesverwaltungsgericht (Federal Administrative Court),
(1) OJ 1989 L 395, p. 1.                                                  which was received at the Court Registry on 19 July 2000, for
                                                                          a preliminary ruling in the case of Stratmann GmbH & Co. KG
                                                                          v Landrätin (Administrative Head) of Wesel Local Authority
                                                                          on the following question:


title: Case C-371/07: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 6 August 2007 — Danfoss A/S and AstraZeneca A/S v Skatteministeriet

text:
               20.10.2007

               EN

               Official Journal of the European Union

               C 247/16

         Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 6 August 2007 — Danfoss A/S and AstraZeneca A/S v Skatteministeriet
   (Case C-371/07)
   (2007/C 247/20)
   Language of the case: Danish
   Referring court
   Vestre Landsret
   Parties to the main proceedings

      Applicants: Danfoss A/S and AstraZeneca A/S

      Defendant: Skatteministeriet
   Questions referred

               1.

               Is the second subparagraph of Article 17(6) of the Sixth VAT Directive (1) to be interpreted in such a way that it is a condition for the refusal by a Member State of a right to deduct value added tax on supplies used for the provision of meals to business contacts and staff in a company's canteen in connection with meetings that there was, prior to the entry into force of the directive, authority under national legislation for the deduction refusal in question and that this authority was applied in practice by the tax authorities in such a way that the right to deduct value added tax on these supplies was refused?

               2.

               Does it have any significance in answering Question 1 that company-operated canteens were not subject to VAT under the national VAT rules in force in the Member State in question before the implementation of the Sixth VAT Directive in 1978, that the national deduction exclusion rules were not changed by the implementation of the Sixth VAT Directive, and that it was exclusively as a result of the fact that company-operated canteens became subject to VAT on the implementation of the Sixth VAT Directive that the deduction exclusion rule could become relevant to that type of business?

               3.

               Is an exclusion from the right to deduct ‘retained’ within the meaning of the second subparagraph of Article 17(6) of the Sixth VAT Directive if, from the implementation of the Sixth VAT Directive in 1978 until 1999, as a result of an administrative practice such as that described in the main proceedings there was a right to deduct VAT on the expenditure in question?

               4.

               Are subparagraphs (a) and (b) of Article 6(2) of the Sixth VAT Directive to be interpreted in such a way that the provision covers the supply of meals by the company free of charge to business contacts in its own canteen in connection with meetings at the company?

               5.

               Are subparagraphs (a) and (b) of Article 6(2) of the Sixth VAT Directive to be interpreted in such a way that the provision covers the supply of meals by the company free of charge to its staff in its own canteen in connection with meetings at the company?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case T-271/10: Action brought on 16 June 2010 — H v Council and Others

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/55

         Action brought on 16 June 2010 — H v Council and Others
   (Case T-271/10)
   ()
   2010/C 221/88
   Language of the case: English

      Parties

      Applicant: H (Catania, Italy) (represented by: C. Mereu and M. Velardo, lawyers)

      Defendants: Council of the European Union, European Commission and European Union Police Mission in Bosnia and Herzegovina (“EUPM”)

      Form of order sought

               —

               Annul the Contested Decision of 7 April 2010 and, if needed, the Decision of 30 April 2010;

               —

               Order the defendants to pay the damages suffered by the applicant, assessed at 30 000,00 Euro; and

               —

               Order the defendants to pay the costs of the proceedings, as well as an interest of 8 %.

      Pleas in law and main arguments

   By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of the Decision rendered by the European Union Police Mission (EUPM) in Bosnia and Herzegovina of 7 April 2010 and, if necessary, of the subsequent confirmation Decision of 30 April 2010, where it was decided to reassign the applicant from the main headquarters of the Mission in Sarajevo to the Regional Office in Banja Luka, as well as the downgrading of the applicant. Furthermore, the applicant seeks, pursuant to Article 340 TFEU, the award of damages in the amount of 30 000,00 Euro.
   The applicant submits that the General Court has jurisdiction to rule in this case following the Order of the Civil Service Tribunal of 9 October 2006 in case F-53/06 Gualtieri v Commission.
   In support of its submissions, the applicant puts forward the following pleas in law:

               Firstly, the applicant claims misuse of powers, as there was no objective reason justifying the redeployment.

               Secondly, the applicant claims that the Contested Decision is flawed for lack of motivation, as the European Union Police Mission in Bosnia and Herzegovina did not substantiate the operational reasons underlying the redeployment.

               Thirdly, there has been a manifest error of appraisal, as there was no need to urgently redeploy a prosecutor to the Regional Office in Banja Luka.

               In addition, there has been an infringement of Council Decision No 2009/906/CFSP of 8 December 2009 (1) as the Head of Mission was not entitled to reassign the staff but only to provide the management of the staff on a daily basis.

               Finally, the applicant seeks the award of damages due to moral harassment.

      (1)  Council Decision 2009/906/CFSP of 8 December 2009 on the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH) (OJ 2009 L 322, p. 22).


title: Case T-564/11: Order of the General Court of 5 September 2012 — Farage v Parliament and Buzek (Law governing the institutions — Decision of the President of the Parliament imposing on a Member of the Parliament the penalty of forfeiture of entitlement to the daily subsistence allowance for a period of 10 days — Decision of the Committee on Legal Affairs of the Parliament declaring inadmissible the Member’s request for defence of his Parliamentary immunity — Manifest lack of jurisdiction of the General Court — Manifest inadmissibility)

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/25

      Order of the General Court of 5 September 2012 — Farage v Parliament and Buzek
      (Case T-564/11) (1)

      (Law governing the institutions - Decision of the President of the Parliament imposing on a Member of the Parliament the penalty of forfeiture of entitlement to the daily subsistence allowance for a period of 10 days - Decision of the Committee on Legal Affairs of the Parliament declaring inadmissible the Member’s request for defence of his Parliamentary immunity - Manifest lack of jurisdiction of the General Court - Manifest inadmissibility)
      (2012/C 331/47)
      Language of the case: English

         Parties

         Applicant: Nigel Paul Farage (Brussels (Belgium)) (represented by: P. Bennett, solicitor)

         Defendants: European Parliament (represented by: N. Lorenz and D. Moore, acting as Agents) and Jerzy Buzek (Brussels (Belgium))

         Re:

      ACTION for annulment, first, of the decision of the President of the Parliament of 2 March 2010 imposing on the applicant the penalty of forfeiture of entitlement to the daily subsistence allowance for a period of 10 days, secondly, of the decision of the Bureau of the Parliament of 24 March 2010 confirming the above decision of the President of the Parliament, thirdly, of the decision of the Committee on Legal Affairs of the Parliament declaring inadmissible the applicant’s request for defence of immunity and, fourthly, of an unspecified decision of the Parliament.

         Operative part of the order

                  1.

                  The action is dismissed.

                  2.

                  Nigel Paul Farage is to bear his own costs and to pay those of the European Parliament.

         (1)  OJ C 25, 28.1.2012.


title: Reference for a preliminary ruling by the Office of the Industrial Tribunals and the Fair Employment Tribunal, by reference of that court of 9 July 1996, in the Case of Mrs Mary Teresa Maggorian and Mrs Irene Patricia Cunningham against the Eastern Health and Social Services Board and the Department of Health and Social Services (Case C-246/96)

text:
No C 269/ 16           EN                    Official Journal of the European Communities                                         14 . 9 . 96
     ( a ) Commission Directive 93/63/EEC ( ) of 5 July 1993            Pleas in law and main arguments adduced in support:
           setting out the implementing measures concerning
           the supervision and monitoring of suppliers and              Article 189 of the EC Treaty, in providing that a directive is
           establishments pursuant to Council Directive                 binding, as to the result to be achieved, upon the Member
           91 /682/EEC ( 2 ) on the marketing of ornamental             State to which it is addressed, places Member States under
           plant propagating material and ornamental plants             an obligation to comply with the time limits set by directives
           and/or failing to communicate them to the                    for their implementation. In the present case, when the time
           Commission ;                                                 limit expired on 1 January 1993 , the Italian Republic had
                                                                        not taken the steps necessary to comply with Directive
     ( b ) Commission Directive 93/78/EEC of 21 September               92/42/EEC .
           1993 setting out additional implementing
           provisions for lists of varieties of ornamental plant
                                                                        (') OJ No L 167, 22 . 6 . 1992 , p . 17.
           propagating material and ornamental plants, as
           kept by suppliers under Council Directive
           91 /682/EEC ( 3 ) and/or failing to communicate them
           to the Commission,
     the Kingdom of Belgium has failed to fulfil its
     obligations under Article 6 of Directive 93/63/EEC and
     Article 3 of Directive 93/68 /EEC and also under the EC            Reference for a preliminary ruling by the Office of the
     Treaty,                                                            Industrial Tribunals and the Fair Employment Tribunal, by
                                                                        reference of that court of 9 July 1996, in the Case of
— order the Kingdom of Belgium to pay the costs .                       Mrs Mary Teresa Maggorian and Mrs Irene Patricia
                                                                        Cunningham against the Eastern Health and Social Services
                                                                         Board and the Department of Health and Social Services
Pleas in law and main arguments adduced in support:
                                                                                ( Case C-246/96 )
The pleas in law and main arguments are similar to those put                                       ( 96/C 269/34 )
forward in Case C-236/96 (4 ); the time limit set by the
Directive expired on 30 June 1994 .
                                                                        Reference has been made to the Court of Justice of the
(')  OJ No L 250 , 7 . 10 . 1993 , p. 31 .
                                                                        European Communities by order of the Office of the
(2)  OJ No L 276 , 31 . 10 . 1991 , p. 21 .                             Industrial Tribunals and the Fair Employment Tribunal of
(?)  OJ No L 256 , 14 . 10 . 1993 , p. 19 .                             9 July 1996 , which was received at the Court Registry on
(4 ) See page 11 of this Official Journal .                             17 July 1996 , for a preliminary ruling in the case of
                                                                        Mrs Mary Teresa Maggorian and Mrs Irene Patricia
                                                                        Cunningham against the Eastern Health and Social Services
                                                                        Board and the Department of Health and Social Services, on
                                                                        the following questions :
Action brought on 12 July 1996 by the Commission of the                 In circumstances where :
     European Communities against the Italian Republic
                           Case C-245 /96 )                             ( a ) a worker has been employed by a health board which is
                            ( 96/C 269/33 )                                   part of the State, in employment concerned with the
                                                                              care of the mentally ill to which an occupational
An action against the Italian Republic was brought before                     pension scheme applies;
the Court of Justice of the European Communities on
12 July 1996 by the Commission of the European                          ( b ) the worker has at all material times either been a
Communities, represented by Antonio Aresu of its Legal                        member or been eligible to be a member of the pension
Service, acting as Agent, with an address for service in                      scheme;
Luxembourg at the office of C. Gomez de la Cruz, Wagner
Centre, rue Alcide de Gasperi .                                         ( c ) the pension scheme contains a term according to which
                                                                              those who work full time and devote all or substantially
The applicant claims that the Court should :                                  all their working hours to the care of the mentally ill
                                                                              ( who are described as ' Mental Health Officers ') are
— declare that, by not communicating the laws, regulations                    entitled to additional benefits not available to those
     and administrative provisions necessary to comply with                   doing the same work part time, as follows : 'where a
      Council Directive 92/42/EEC of 21 May 1992 on                           person has reached or passed the age of 50 and has
     efficiency requirements for new hot-water boilers fired                  worked as a Mental Health Officer for 20 years ( here
     with liquid or gaseous fuels ('), or by not adopting the                 referred to as the 'qualifying service') and continues to
     necessary implementing measures, the Italian Republic                    work as a Mental Health Officer, then :
     has failed to fulfil its obligations under that Directive ,
                                                                                ( i ) their subsequent service is reckoned for pension
— order the Italian Republic to pay the costs of the                                  purposes at twice its length ( here referred to as the
     proceedings .                                                                    'double-time service'); and
 ---pagebreak--- 14. 9 . 96                I EN 1                 Official Journal of the European Communities                                 No C 269/ 17
      ( ii ) they have the right to a pension at the age of 55              1 . Are Articles 4 8 and 5 1 of the EC Treaty to be interpreted
              instead of the normal age of 60;                                   as meaning that the provisions of point 4 ( a ) or ( c ),
                                                                                depending on the relevant time, of Part J of Annex VI to
( d ) the worker is deprived of the status of Mental Health                      Regulation ( EEC ) No 1408/71 are incompatible with
      Officer and the additional benefits attached thereto                       those Articles in so far as no account is taken of certain
      solely on the ground that her employment was part                          periods of work when calculating a pro rata benefit
      time ;                                                                     under the Wet op de Arbeidsongeschiktheids
                                                                                verzekering, for migrant workers ?
(e ) the national tribunal has held that the provisions
      described at ( c ) and ( d ) constitute discrimination on             2 . Is point 4 ( a ) or (c ), depending on the relevant time, of
      grounds of sex against women working part time in the                      Part J of Annex VI to Regulation ( EEC ) No 1408/71 , as
      care of the mentally ill ;                                                 they stood on 20 July 1991 and 17 June 1992
                                                                                respectively, to be interpreted as meaning that periods of
( f) the pension which the worker receives and the                               paid employment and periods treated as such completed
      additional benefits which they claim, are only payable                     in the Netherlands before 1 July 1967 include :
      to them as and from their respective retirements in 1 992
      and 1994 , after their claims have been brought before                     ( a ) periods during which the person concerned was
      the national tribunal ; and                                                      performing his compulsory military service under
                                                                                the Netherlands legislation;
(g) the calculation of the additional benefits from their
      respective retirement dates in 1992 and 1994 would
      involve counting their years of service prior to 1992 :                    ( b ) periods during which the person concerned was an
                                                                                enlisted member of the Netherlands armed forces
                                                                                and in that capacity came under a special statutory
       1 . From what date should the service on the workers                            insurance scheme against incapacity for work for
             be counted for the purpose of calculating the                             civil servants and persons treated as such ?
             additional benefits to which they are entitled
                                                                            3 . Is the answer to question 2 different if the periods during
                 ( i ) 8 April 1976                                              which the person concerned was performing his
                                                                                compulsory military service under the Netherlands
               ( ii ) 17 May 1990                                                legislation were completed within or outside the
                                                                                territory of the European Union ( at that time the
             ( iii ) some other and if so, what date ?                            European Community )?
       2 . Where the relevant national legislation restricts
             back-dating entitlement in the event of a successful
             claim to a period of two years prior to the date on
             which the claim was made , does this amount to the
             denial of an effective remedy under Community law
             and is the industrial tribunal obliged to disregard
             such provision in domestic law if it feels it necessary        Reference for a preliminary ruling by the Industrial
             to do so ?                                                     Tribunals , Southampton, by order of that court of 19 July
                                                                             1996 , in the case of Lisa Jacqueline Grant against
                                                                                South-West Trains Ltd
                                                                                ( Case C-249/96
                                                                                ( 96/C 269/36 )
 Reference for a preliminary ruling from the                                 Reference has been made to the Court of Justice of the
 Arrondissementsrechtbank, Amsterdam, by judgment of                         European Communities by order of the Industrial Tribunals
 that court of 16 July 1996 in the case of 1 . R. O.J. Grahame               of 1 9 July 1 996, which was received at the Court Registry on
  and 2 . L. M. Hollanders v. Bestuur van de Nieuwe Algemene                 22 July 1996 , for a preliminary ruling in the case of Lisa
                              Bedrijfsvereniging                            Jacqueline Grant against South-West Trains Ltd, on the
                               ( Case C-248/96 )                             following questions :
                                 ( 96/C 269/35 )
                                                                             1 . It is ( subject to 6 below ) contrary to the principle of
  Reference has been made to the Court of Justice of                              equal pay for men and women established by Article 119
  the European Communities by order of the                                        of the Treaty establishing the European Community and
  Arrondissementsrechtbank ( District Court ), Amsterdam, of                      by Article 1 of Council Directive 75/1 17/EEC (') for an
  16 July 1996 , which was received at the Court Registry on                      employee to be refused travel concessions for an
  22 July 1 996 , for a preliminary ruling in the case of 1 . R. O.               unmarried cohabiting same-sex partner where such
 J. Grahame and 2 . L. M. Hollanders v. Bestuur van de                            concessions are available for spouses or unmarried
  Nieuwe Algemene Bedrijfsvereniging on the following                             opposite sex cohabiting partners of such an
  questions :                                                                     employee ?


title: Case T-437/09: Action brought on 19 October 2009 — Oyster Cosmetics v OHIM — Kadabell (OYSTER COSMETICS)

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/32

         Action brought on 19 October 2009 — Oyster Cosmetics v OHIM — Kadabell (OYSTER COSMETICS)
   (Case T-437/09)
   2010/C 11/60
   Language in which the application was lodged: English

      Parties

      Applicant: Oyster Cosmetics SpA (Castiglione delle Stiviere, Italy) (represented by: A. Perani and P. Pozzi, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Kadabell GmbH & Co. KG (Lenzkirch, Germany)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 August 2009 in case R 1367/2008-1;

               —

               Order the adverse parties to bear the costs of the present proceedings.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The figurative mark “OYSTER COSMETICS”, for goods in class 3

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited: Community trade mark registration of the figurative mark “KADUS OYSTRA AUTO STOP PROTECTION” for goods in class 3

      Decision of the Opposition Division: Allowed the opposition partially

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned.


title: Judgment of the Court (Sixth Chamber) of 5 December 2002 in Case C-379/00 (Reference for a preliminary ruling from the VAT and Duties Tribunal, London): Overland Footwear Ltd v Commissioners of Customs and Excise (Customs Code — Customs value of imported goods — Price of goods and buying commission — Reimbursement of duty payable on full amount)

text:
25.1.2003                 EN                       Official Journal of the European Communities                                             C 19/3
                  JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                       of 12 December 2002                                                              (Sixth Chamber)
in Case C-273/00 (Reference for a preliminary ruling from                                            of 5 December 2002
the Bundespatentgericht): Ralf Sieckmann v Deutsches
                    Patent- und Markenamt (1)
                                                                              in Case C-379/00 (Reference for a preliminary ruling
                                                                              from the VAT and Duties Tribunal, London): Overland
(Trade marks — Approximation of laws — Directive 89/                           Footwear Ltd v Commissioners of Customs and Excise (1)
104/EEC — Article 2 — Signs of which a trade mark may
consist — Signs capable of being represented graphically —
                            Olfactory signs)                                  (Customs Code — Customs value of imported goods — Price
                                                                              of goods and buying commission — Reimbursement of duty
                                                                                payable on full amount)
                            (2003/C 19/04)
                                                                                (2003/C 19/05)
                    (Language of the case: German)
                                                                                (Language of the case: English)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                              In Case C-379/00: Reference to the Court under Article 234
                                                                              EC by the VAT and Duties Tribunal, London (United Kingdom),
In Case C-273/00: Reference to the Court under Article 234                    for a preliminary ruling in the proceedings pending before that
EC by the Bundespatentgericht (Germany) for a preliminary                     court between Overland Footwear Ltd and Commissioners of
ruling in the proceedings pending before that court between                   Customs and Excise, on the interpretation of Articles 29, 32,
Ralf Sieckmann and Deutsches Patent- und Markenamt, on the                    33, 78 and 236 of Council Regulation (EEC) No 2913/92 of
interpretation of Article 2 of First Council Directive 89/104/                12 October 1992 establishing the Community Customs Code
EEC of 21 December 1988 to approximate the laws of the                        (OJ 1992 L 302, p. 1), the Court (Sixth Chamber), composed
Member States relating to trade marks (OJ 1989 L 40, p. 1),                   of: J.-P. Puissochet, President of the Chamber, R. Schintgen,
the Court, composed of: G.C. Rodríguez Iglesias, President,                   C. Gulmann (Rapporteur), F. Macken and J.N. Cunha Rodri-
M. Wathelet, R. Schintgen, C.W.A. Timmermans (Presidents of                   gues, Judges; J. Mischo, Advocate General; L. Hewlett, Principal
Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola,                          Administrator, for the Registrar, has given a judgment on
V. Skouris, F. Macken (Rapporteur), N. Colneric and J.N. Cunha                5 December 2002, in which it has ruled:
Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
D. Louterman-Hubeau, Head of Division, for the Registrar, has
given a judgment on 12 December 2002, in which it has ruled:                  1.    Articles 29, 32 and 33 of Council Regulation (EEC) No 2913/
                                                                                92 of 12 October 1992 establishing the Community Customs
                                                                                Code must be construed as meaning that a buying commission
(1) Article 2 of Council Directive 89/104/EEC of 21 December                        which is included in the customs value declared and is not
      1988 to approximate the laws of the Member States relating                    shown separately from the selling price of the goods in the
      to trade marks must be interpreted as meaning that a trade                    import declaration must be considered to be part of the
      mark may consist of a sign which is not in itself capable of                  transaction value within the meaning of Article 29 of that
      being perceived visually, provided that it can be represented                 regulation and is, therefore, dutiable.
      graphically, particularly by means of images, lines or characters,
      and that the representation is clear, precise, self-contained,
                                                                              2.    In a situation where the customs authorities have agreed to
      easily accessible, intelligible, durable and objective.
                                                                                undertake revision of an import declaration and have adopted a
                                                                                decision ‘regularising the situation’ within the meaning of
(2) In respect of an olfactory sign, the requirements of graphic                    Article 78(3) of Regulation No 2913/92 taking account of
      representability are not satisfied by a chemical formula, by a                the fact that the declaration was incomplete as a result of an
      description in written words, by the deposit of an odour sample               inadvertent error by the declarant, those authorities may not go
      or by a combination of those elements.                                        back on that decision.
( 1) OJ C 259 of 9.9.2000.                                                    (1 ) OJ C 355 of 9.12.2000.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/50

         Action brought on 3 February 2004 by Eugene Emile Marie Kimman against Commission of the European Communities
   (Case T-44/04)
   (2004/C 94/136)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 February 2004 by Eugene Emile Marie Kimman, residing in Overijse (Belgium), represented by Nicolas Lhoëst, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Annul the decision of the appointing authority dated 20 December 2002 confirming the applicant's initial classification in Grade B5;

               —

               In so far as necessary, annul the decision of the appointing authority of 1 October 2003 rejecting the applicant's complaint;

               —

               Order the defendant to pay all the costs of the proceedings.

         Pleas in law and main arguments
   The contested decision confirmed the applicant's classification in Grade B5 on the date of his recruitment and, accordingly, rejected a request for reclassification introduced by the applicant following an amendment of the rules on the criteria applicable to appointment in grade and classification in step on recruitment, adopted by the Commission following the judgment of the Court of First Instance in Case T-17/95 (1).
   In support of his action, the applicant claims that the Commission should have applied its decision of 6 June 1973 for the purposes of his recruitment and not the decision of 1983, which had not yet been adopted at the time.
   He also relies on failure to state reasons for the contested decision, a manifest error of assessment and alleged discrimination between the applicant, whose application for reclassification was rejected, and other officials who, with the same length of professional experience as the applicant, were able to benefit from reclassification.

      (1)  Judgment of the Court of First Instance of the European Communities of 5 October 1995, published in OJ C 315, 25-11-95, p. 14.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 17 June 1998 in Case T-174/95: Svenska Journalistförbundet v Council of the European Union (Access to information - Council Decision 93/731/EC - Refusal of an application for access to Council documents - Action for annulment - Admissibility - Title VI of the Treaty on European Union - Scope of the exception concerning the protection of public security - Confidentiality of the Council's proceedings - Statement of reasons - Publication of the defence on the Internet - Abuse of procedure)

text:
25.7.98               EN                 Official Journal of the European Communities                                  C 234/25
  JUDGMENT OF THE COURT OF FIRST INSTANCE                             JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 17 June 1998                                                      of 26 May 1998
in Case T-174/95: Svenska Journalistförbundet v Council                    in Case T-205/96: Roland Bieber v European
                  of the European Union (1)                                                  Parliament (1)
(Access to information Ð Council Decision 93/731/EC Ð               (Officials Ð Belated reinstatement Ð Liability Ð
Refusal of an application for access to Council documents                                       Damage)
Ð Action for annulment Ð Admissibility Ð Title VI of                                         (98/C 234/49)
the Treaty on European Union Ð Scope of the exception
concerning the protection of public security Ð
Confidentiality of the Council's proceedings Ð Statement                            (Language of the case: French)
of reasons Ð Publication of the defence on the Internet Ð
                     Abuse of procedure)                            In Case T-205/96: Roland Bieber, an official of the
                                                                    European Parliament, residing in Brussels, represented by
                        (98/C 234/48)
                                                                    Georges Vandersanden, of the Brussels Bar, with an
                                                                    address for service in Luxembourg at the offices of
                                                                    Fiduciaire Myson SaÁrl, 30 Rue de Cessange, v European
               (Language of the case: English)
                                                                    Parliament (Agent: Evelyn Waldherr) Ð application, first,
                                                                    for annulment of the decision of 18 October 1995
                                                                    implicitly    rejecting     the  applicant's   request  for
In Case T-174/95: Svenska Journalistförbundet, established
                                                                    reinstatement following the conclusion of his period of
in Stockholm, represented by Onno W. Brouwer, of the
                                                                    leave on personal grounds and compensation for the
Amsterdam Bar, and FreÂdeÂric P. Louis, of the Brussels Bar,
                                                                    damage allegedly resulting from his non-reinstatement
assisted by Deirdre Curtin, Professor at the University of
                                                                    and, second, for compensation for the damage allegedly
Utrecht, with an address for service in Luxembourg at the
                                                                    caused by the delay in his reinstatement Ð the Court of
Chambers of Loesch and Wolter, 11 Rue Goethe,
                                                                    First Instance (Fifth Chamber), composed of: J. Azizi,
supported by Kingdom of Sweden (Agent: Lotty
                                                                    President, R. García-Valdecasas and M. Jaeger, Judges; J.
Nordling), Kingdom of Denmark (Agents: Peter Biering
                                                                    Palacio GonzaÂlez, Administrator, for the Registrar, has
and Laurids Mikñlsen), and Kingdom of the Netherlands
                                                                    given a judgment on 26 May 1998, in which it:
(Agents: Marc Fierstra and Johannes Steven van den
Oosterkamp) against Council of the European Union
(Agents: Giorgio Maganza and Diego Canga Fano),                     1. Annuls the decision implicitly rejecting the request for
supported by French Republic (Agents: Catherine de Salins               reinstatement and compensation lodged by the
and Denys Wibaux), and United Kingdom of Great Britain                  applicant on 18 October 1995;
and Northern Ireland (Agent: John Collins) Ð application
for the annulment of the Council's decision of 6 July 1995
                                                                    2. Orders the Parliament to compensate the applicant for
refusing the applicant access to certain documents
                                                                        the material damage suffered by him as a result of his
concerning the European Police Office (Europol),
                                                                        not having been reinstated with effect from 1 January
requested under Council Decision 93/731/EC of
                                                                        1995 in Grade A 3, step 6, as a legal adviser in the
20 December 1993 on public access to Council documents
                                                                        Parliament, that post having been advertised in
(OJ L 340 of 31.12.1993, p. 43) Ð the Court of First
                                                                        Vacancy Notice No 7580 of 5 December 1994;
Instance (Fourth Chamber, Extended Composition),
composed of: K. Lenaerts, President, P. Lindh, J. Azizi,
J. D. Cooke and M. Jaeger, Judges; H. Jung, Registrar, has          3. Declares that the sum payable to the applicant by way
given a judgment on 17 June 1998, in which it:                          of compensation for his loss of income from
                                                                        employment is equivalent to the difference between,
                                                                        on the one hand, the net remuneration which he
1. Annuls the Council's decision of 6 July 1995 refusing                would have received between 1 January 1995 and
    the applicant access to certain documents relating to               8 March 1996 and, on the other hand, the total net
    the European Police Office (Europol);                               income received by him in the performance of other
                                                                        activities;
2. Orders the Council to pay two-thirds               of  the       4. Orders that there be added to that sum an amount
    applicant's costs as well as its own costs;                         corresponding to the loss resulting from the absence of
                                                                        automatic advancement in step;
3. Orders the Kingdom of Denmark, the French
    Republic, the Kingdom of the Netherlands, the                   5. Orders that interest on the total sums specified in
    Kingdom of Sweden and the United Kingdom of Great                   points 3 and 4 above be paid at the annual rate of
    Britain and Northern Ireland to bear their own costs.               4.5 % in respect of the period from 12 December 1996
                                                                        to the date when payment is received the applicant;
(1) OJ C 299 of 11.11.1995.
                                                                    6. Orders the Parliament to re-establish the applicant's
                                                                        pension rights in such a way as to make up for the
                                                                        difference between the pension rights to which he