title: Action brought on 28 September 1995 by Santo Picciolo against the Committee of the Regions (Case T-178/95)

text:
25 . 11 . 95           EN                 Official Journal of the European Communities                                No C 315 /21
Similarly, Article 65 ( 2 ) of the Staff Regulations provides        possible for potential candidates from other Community
that, in the event of a substantial change in the cost of living,    institutions to learn of the notice in question until after the
measures must be taken within two months to adjust the               time limit for the submission of applications had expired or,
weightings . Furthermore, the Community legislature has              at best, until a few hours before its expiry .
provided that the annual adjustment of remuneration must
be decided before the end of each year and must take effect          The applicant pleads :
from 1 July in that year . The legislature has thus permitted        — misuse of powers, together with breach of the principle
the Council to adjust the remuneration of officials only once            of equality of treatment and non-discrimination
in each year, if appropriate with retroactive effect . On the            between officials,
other hand , it has prescribed a particularly short time limit
for the adoption by the Council of the measures necessary in         — infringement of Article 25 of the Staff Regulations ,
order to eliminate any variation between the purchasing                  inasmuch as, although the decision rejecting the
power of officials . According to the applicants, that degree            application of the applicant was taken on 5 December
of leeway is understandable, inasmuch as that adjustment                  1 994 , it was only communicated to him by the defendant
cannot, in accordance with Article 85 of the Staff                       institution by letter dated 10 February 1995 , which
Regulations, result in a reduction of remuneration .                     contained no statement of reasons whatever, which was
                                                                         stamped 13 February 1995 and which was not brought
Thus, by adopting the contested Regulation with retroactive              to the knowledge of the applicant until 16 February
effect, the Council has disregarded the principles of the                 1995 , and
protection of legitimate expectations, of equality of
treatment, of non-discrimination between officials and of            — infringement of Article 45 of the Staff Regulations , in
established rights .                                                     that the appointing authority did not examine the
                                                                         comparative merits of the candidates, as it was required
                                                                         to do under that provision .
Action brought on 28 September 1995 by Santo Picciolo
            against the Committee of the Regions                     Action brought on 28 September 1995 by Giuseppe Calo
                        ( Case T-178/95 )                                          against the Committee of the Regions
                          ( 95/C 315/40 )                                                     ( Case T- 179/95 )
                                                                                ( 95/C 315/41 )
                (Language of the case: French)
                                                                                (Language of the case: French)
An action against the Committee of the Regions was
brought before the Court of First Instance of the European           An action against the Committee of the Regions was
Communities on 28 September 1995 by Santo Picciolo ,                 brought before the Court of First Instance of the European
residing at Itzig ( Luxembourg), represented by Jean-Noel            Communities on 28 September 1995 by Giuseppe Calo,
Louis, Thierry Demaseure and Ariane Tornel, of the                   residing in Luxembourg, represented by Jean-Noel Louis ,
Brussels Bar, with an address for service in Luxembourg at           Thierry Demaseure and Ariane Tornel , of the Brussels Bar,
the offices of Fiduciaire Myson Sari, 1 Rue Glesener .               with an address for service in Luxembourg at the offices of
                                                                     Fiduciaire Myson Sari , 1 Rue Glesener.
The applicant claims that the Court should:
                                                                     The applicant claims that the Court should :
— annul the decisions rejecting the application of the
                                                                     — annul the decisions rejecting the application of the
     applicant for post Cdr/1/94 as Head ( A2 ) of the                    applicant for post Cdr/1 /94 as Head ( A2 ) of the
     Directorate for the Registry, Administration and the
                                                                          Directorate for the Registry, Administration and the
     Budget of the Committee of the Regions and appointing                Budget of the Committee of the Regions and appointing
     another person to that post,                                         another person to that post,
— order the defendant to pay the costs .                              — order the defendant to pay the costs .
 Pleas in law and main arguments adduced in support:                  Pleas in law and main arguments adduced in support:
 The applicant, an official of the European Parliament,               The applicant, an official of the European Parliament,
 contests the manner in which the procedure for appointing a          contests the manner in which the procedure for appointing a
 Head of Administration and the Registry of the Committee             Head of Administration and the Registry of the Committee
 of the Regions has been conducted .                                  of the Regions has been conducted .
 He states that the notice of vacancy in respect of that              The pleas in law and main arguments are the same as those
 appointment was drawn up by the service headed by the                in Case T-178 /95 Santo Picciolo v. Committee of the
 successful candidate , who was, moreover, chosen in                  Regions .
 advance . Because the time limit for the submission of
 applications was deliberately foreshortened, it was not


title: Joined Cases T-84/14 and T-97/14: Judgment of the General Court of 18 February 2016 — Harrys Pubar and Harry’s New York Bar v OHIM — Harry’s New York Bar and Harrys Pubar (HARRY’S NEW YORK BAR) (Community trade mark — Opposition proceedings — Application for the Community word mark HARRY’S NEW YORK BAR — Earlier national figurative mark PUB CASINO Harrys RESTAURANG — Partial refusal of registration — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               29.3.2016

               EN

               Official Journal of the European Union

               C 111/19

         Judgment of the General Court of 18 February 2016 — Harrys Pubar and Harry’s New York Bar v OHIM — Harry’s New York Bar and Harrys Pubar (HARRY’S NEW YORK BAR)
   (Joined Cases T-84/14 and T-97/14) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community word mark HARRY’S NEW YORK BAR - Earlier national figurative mark PUB CASINO Harrys RESTAURANG - Partial refusal of registration - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 111/23)
   Language of the case: English

      Parties

      Applicants: Harrys Pubar AB (Gothenburg, Sweden) (represented by: L.-E. Ström, lawyer) (Case T-84/14); and Harry’s New York Bar SA (Paris, France) (represented by: S. Arnaud, lawyer) (Case T-97/14)

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

      Other parties to the proceedings before the Board of Appeal of OHIM: Harry’s New York Bar SA (Case T-84/14); and Harrys Pubar AB (intervener before the General Court in Case T-97/14)

      Re:

   Two actions brought against the decision of the First Board of Appeal of OHIM of 14 November 2013 (joined Cases R 1038/2012-1 and R 1045/2012-1), relating to opposition proceedings between Harrys Pubar AB and Harry’s New York Bar SA.

      Operative part of the judgment

   The Court:

               1.

               Annuls, in Case T-84/14 points 1 of the operative part of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 November 2013 (joined Cases R 1038/2012-1 and R 1045/2012-1), relating to opposition proceedings between Harrys Pubar AB and Harry’s New York Bar SA;

               2.

               Dismisses, in Case T-97/14, the action brought by Harry’s New York Bar;

               3.

               Orders Harry’s New York Bar to bear its own costs, to pay two thirds of the costs incurred by Harrys Pubar in the proceedings before the General Court and to pay the costs incurred by Harrys Pubar in the course of the proceedings before the Board of Appeal of OHIM. OHIM is ordered to bear its own costs and to pay one third of the costs incurred by Harrys Pubar in the proceedings before the General Court.

      (1)  OJ C 135, 5.5.2014.


title: Case C-354/04 P: Judgment of the Court (Grand Chamber) of 27 February 2007 — Gestoras Pro Amnistía, Juan Mari Olano Olano, Julen Zelarain Errasti v Council of the European Union, Kingdom of Spain, United Kingdom of Great Britain and Northern Ireland (Appeal — European Union — Police and judicial cooperation in criminal matters — Common Positions 2001/931/CFSP, 2002/340/CFSP and 2002/462/CFSP — Measures concerning persons, groups and entities involved in terrorist acts — Action for damages — Jurisdiction of the Court of Justice)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/4

         Judgment of the Court (Grand Chamber) of 27 February 2007 — Gestoras Pro Amnistía, Juan Mari Olano Olano, Julen Zelarain Errasti v Council of the European Union, Kingdom of Spain, United Kingdom of Great Britain and Northern Ireland
   (Case C-354/04 P) (1)

   (Appeal - European Union - Police and judicial cooperation in criminal matters - Common Positions 2001/931/CFSP, 2002/340/CFSP and 2002/462/CFSP - Measures concerning persons, groups and entities involved in terrorist acts - Action for damages - Jurisdiction of the Court of Justice)
   (2007/C 95/05)
   Language of the case: French
   Parties

      Appellants: Gestoras Pro Amnistía, Juan Mari Olano Olano, Julen Zelarain Errasti, (represented by: D. Rouget, avocat)

      Other parties to the proceedings: Council of the European Union (represented by: E. Finnegan and M. Bauer, Agents), Kingdom of Spain, United Kingdom of Great Britain and Northern Ireland.
   Re:
   Appeal brought against the order of the Second Chamber of the Court of First Instance of 7 June 2004 in Case T-332/02 Gestoras Pro Amnistía and Others v Council of the European Union [2004], not published in the ECR, dismissing the applicants' action seeking damages in respect of the loss allegedly suffered by the applicants as a result of the inclusion of Gestoras Pro Amnistía in the list drawn up under the legislation on the fight against terrorism.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Gestoras Pro-Amnistía, Mr. Olano Olano and Mr. Zelarain Errasti to pay the costs.

               3.

               Orders the Kingdom of Spain to bear its own costs.

      (1)  OJ C 251, 9.10.2004.


title: Case C-65/15: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Vito Santoro (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/11

         Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Vito Santoro
   (Case C-65/15) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))
   (2016/C 270/14)
   Language of the case: Italian

      Referring court

   Tribunale di Bari

      Criminal proceedings against

   Vito Santoro

      Operative part of the order

               1.

               Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

               2.

               Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

      (1)  OJ C 138, 27.4.2015.


title: Case T-137/02: Action brought on 29 April 2002 by Pollmeier Malchow GmbH & Co. KG against the Commission of the European Communities

text:
13.7.2002              EN                    Official Journal of the European Communities                                         C 169/39
on Irish Sugar plc. The applicant would point out in this               —     in the alternative, partially annul Decision C (2001) 4447
regard that, as a result of the judgment of the Court of First                final of the Commission of the European Communities
instance of 7 October 1999 in Case T-228/97 Irish Sugar -v-                   of 15 January 2002 to the extent that the claim for
Commission (1), the fine imposed on Irish Sugar by Com-                       repayment established by the Commission in Article 1
mission Decision 97/624/EC of 14 May 1997, relating to a                      exceeds EUR 2 808 319,95;
proceeding pursuant to Article 86 of the EC Treaty, was
reduced by 916 674 Euros. The defendant refused to pay                  —     order the defendant to pay all the costs.
interest on this amount.
According to the Commission, the implied Decision not to                Pleas in law and main arguments
pay interest, i.e. the payment of the principal sum without
interest on 4 January 2000, has become definitive, the
applicant not having contested it within the two month time             In Article 1 of the contested decision, the Commission found
limit, as provided by Article 230 of the EC Treaty.                     that the aid amounting to EUR 3 650 860 granted by Germany
                                                                        to Pollmeier GmbH, Malchow, was incompatible with the
                                                                        common market. The applicant is challenging that decision
The applicant submits in this regard that this reasoning is             and claims that the declaration of partial incompatibility with
materially wrong. Firstly, the initial request was not for actual       the common market of the aid granted to it infringes
payment but for confirmation that interest would be paid; for           Community law. All the grounds on which the decision is
advice as to the amount thereof and for assistance in this              founded are based on errors of law or on a manifestly incorrect
matter. Secondly, there is no rule in EC Law according to               assessment of the facts.
which silence must be taken to mean a refusal, unless provision
is specifically made for this. Thirdly, not only is payment of
the refund of 916 674 Euros not a refusal of the initial request        The applicant claims that it satisfied the SME criteria defined
for confirmation regarding interest, it is also, within the             in the Commission’s Recommendation of 3 April 1996
meaning of Article 230 EC, not an actionable act. It follows            concerning the definition of small and medium-sized enter-
that the Commission’s contention that the applicant should              prises (1) at the time when the aid was granted. Moreover, the
have challenged it at the time is legally erroneous.                    applicant did not circumvent those criteria.
                                                                        Furthermore, the applicant submits that a review of the
(1) [1999] ECR II-2969.
                                                                        economic integration in individual cases which is not based
                                                                        on the SME criteria is illegal because it is precisely those criteria
                                                                        which must be used to determine whether or not there is
                                                                        economic integration. In any event, there is no economic
                                                                        integration.
                                                                        Alternatively, the applicant submits that the claim for repay-
Action brought on 29 April 2002 by Pollmeier Malchow                    ment is too high and that its calculation is unclear.
GmbH & Co. KG against the Commission of the European
                          Communities
                                                                        (1) OJ 1996 L 107, p. 4.
                         (Case T-137/02)
                        (2002/C 169/69)
                  (Language of the case: German)
                                                                        Action brought on 26 April 2002 by Nanjing Metalink
                                                                        International Co. Ltd. against the Council of the European
                                                                                Union
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                       (Case T-138/02)
European Communities on 29 April 2002 by Pollmeier
Malchow GmbH & Co., Malchow (Germany), represented by
S. Völcker and J. Heithecker, lawyers.                                                           (2002/C 169/70)
                                                                                (Language of the case: English)
The applicant claims that the Court should:
—     annul in its entirety Decision C (2001) 4447 final of the
      Commission of the European Communities of 15 January              An action against the Council of the European Union was
      2002;                                                             brought before the Court of First Instance of the European


title: Case F-5/16: Action brought on 24 January 2016 — ZZ v Commission

text:
               25.4.2016

               EN

               Official Journal of the European Union

               C 145/37

         Action brought on 24 January 2016 — ZZ v Commission
   (Case F-5/16)
   (2016/C 145/45)
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: O. Mader, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the Commission’s decision not to reclassify the applicant’s contract as that of a temporary agent or, in the alternative, compensation for the material damage suffered.

      Form of order sought

               —

               Annul the decision of the Commission of 9 April 2015 on the reclassification of the applicant’s contract and — where required — the decision of 13 October 2015 (R/513/15) rejecting the complaint of the applicant;

               —

               In the alternative, order the Commission to compensate the applicant for the damage he suffered by the refusal of his reclassification request;

               —

               Order the defendant to pay the costs.


title: Case C-451/10 P: Appeal brought on 15 September 2010 by Télévision française 1 SA (TF1) against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Joined Cases T-568/08 and T-573/08 M6 and TF1 v Commission

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/15

         Appeal brought on 15 September 2010 by Télévision française 1 SA (TF1) against the judgment of the General Court (Fifth Chamber) delivered on 1 July 2010 in Joined Cases T-568/08 and T-573/08 M6 and TF1 v Commission
   (Case C-451/10 P)
   ()
   2010/C 328/27
   Language of the case: French

      Parties

      Appellant: Télévision française 1 SA (TF1) (represented by: J.-P Hordies, lawyer)

      Other parties to the proceedings: Métropole télévision (M6), Canal +, European Commission, French Republic, France Télévisions

      Form of order sought

               —

               declare the present appeal admissible and well-founded;

               —

               set aside the judgment delivered by the General Court of the European Union on 1 July 2010 in Joined Cases T-568/08 and T-573/08, M6 and TF1 v Commission;

               —

               order the Commission to pay all the costs.

      Pleas in law and main arguments

   The appellant relies on two pleas in support of its appeal.
   Télévision française 1 SA (TF1) criticises the General Court for having disregarded, confirming the Commission’s position in that respect, the existence of serious difficulties in assessing the compatibility with the common market of aid received by France Télévisions, difficulties which should have led to the initiation of a formal investigation procedure provided for in Article 108(2) TFEU. Therefore, by its first plea, the appellant relies on infringement of rules relating to the burden of proof and the taking of evidence in that the General Court requested the applicants to adduce evidence that serious doubts existed as to the actual use to which the endowment notified was put, rather than accepting the evidence that the aid had not been allocated.
   By its second plea, the appellant submits that the General Court erred in law in applying Article 106(2) TFEU holding, first, that the falls in advertising revenue, even caused by management errors, could be offset by State aid and, second, by stating that the application of Article 106(2) did not require an assessment of the efficient functioning of public service.


title: Case C-475/16: Request for a preliminary ruling from the Protodikeio Rethymnis (Greece) lodged on 17 August 2016 — Criminal proceedings against K.

text:
               21.11.2016

               EN

               Official Journal of the European Union

               C 428/8

         Request for a preliminary ruling from the Protodikeio Rethymnis (Greece) lodged on 17 August 2016 — Criminal proceedings against K.
   (Case C-475/16)
   (2016/C 428/10)
   Language of the case: Greek

      Referring court

   Protodikeio Rethymnis (Monomeles Plimmeleiodikeio, Rethymnis)

      Party to the main proceedings

   K.

      Questions referred

               1.

               Pursuant to Articles 19 TEU and 263, 266 and 267 TFEU and the principle of sincere cooperation (Article 4(3) TEU) under which Member States and their competent authorities are obliged to take all general and specific measures to remedy an infringement of EU law, as well as to comply with the judgments of the Court of Justice of the European Union, in particular concerning the validity of erga omnes acts of EU institutions, are Member States required to repeal or amend accordingly a legislative measure incorporating a directive which has been annulled by the Court of Justice of the European Union on the grounds that it is contrary to the provisions of the Treaties and the Charter, in order to ensure the implementation of the judgment of the Court of Justice, and thus to address and prevent any future infringement of the Treaties and the Charter?

               2.

               With reference to the previous question, can Article 266 TFEU (formerly Article 233 EC) be interpreted in such a way that the concept of ‘institution or body’ also includes (on a broad or analogous interpretation) the Member State which has incorporated a directive into its national law that was annulled because it is contrary to the Treaties and the Charter or, in such a case, is it possible that Article 260(1) TFEU be applied by analogy?

               3.

               If the answer to the above is essentially affirmative, i.e. if there is an obligation on Member States to take all general and specific measures to remedy the infringement of EU primary law by repealing or amending accordingly the legislative measure incorporating a directive which has been annulled by the Court of Justice of the European Union, because it is contrary to the Charter or the Treaties, does this obligation extend to national courts, i.e. are they obliged not to apply the legislative measure incorporating the annulled directive, in this case, Directive 2006/24/EC (1) (at least in part) that is contrary to the Charter or the Treaties, and therefore not to take into account evidence obtained under the latter (the directive and a national measure of transposition)?

               4.

               Does the national legislation transposing Directive 2006/24/EC, which was annulled by the Court of Justice of the European Union in its judgment in Digital Rights Ireland and Others
                   (2) (C-293/12 and C-594/12, EU:C:2014:238), as being contrary to the Charter, fall within the scope of EU law, as required by Article 51(1) of the Charter of Fundamental Rights, from the mere fact that the national legislation transposes Directive 2006/24/EC, irrespective of the subsequent annulment of this directive by the Court of Justice of the European Union?

               5.

               Since Directive 2006/24/EC, which has been annulled by the Court of Justice of the European Union, was introduced in order to implement a harmonised framework at the European level under Article 15(1) of Directive 2002/58/EC on data retention by service providers for the purposes of the prevention, investigation, detection and prosecution of criminal offences, so that no obstacles are put in the way of the internal market for electronic communications, is the national legislation transposing Directive 2006/24/EC within the framework of Article 15(1) of Directive 2002/58/EC, in order to fall within the scope of EU law, as required by Article 51(1) of the Charter?

               6.

               Given that, were an EU Member State national to be convicted of a criminal offence, as in this case, that would inevitably entail restrictions on the exercise of the rights of free movement granted under EU law, although justified in principle, does this sufficiently justify the relevant criminal proceedings in their entirety being regarded as falling within the scope of EU law, as required by Article 51(1) of the Charter?
               If the answer to the above is essentially that the Charter of Fundamental Rights is applicable, under Article 51(1), then:

               7.

               Is it compatible with Articles 7, 8 and 52(1) of the Charter that data retained under Directive 2006/24/EC and/or Article 15(1) of Directive 2002/58/EC is accessed and used by the police in the course of criminal investigations in cases of urgency — in particular, in cases of crimes where offenders are apprehended in the act — without prior approval by a judicial body [or independent administrative body] on the basis of specific substantive and procedural requirements?

               8.

               Under Articles 7, 8 and 52(1) of the Charter, in the course of criminal investigations by the police or other not purely judicial authorities, which seek to obtain access to and make use of data retained under Directive 2006/24/EC and/or Article 15(1) of Directive 2002/58/EC, particularly when investigations are not intended to prevent, detect and prosecute precisely defined crimes categorised by the national legislature as serious, does the consent of the person to whom the data relates remove the requirement for prior authorisation of access to and use of such data by a court [or independent administrative body] on the basis of specific substantive and procedural requirements, given also that the requested data inevitably include data of a third party (e.g. person calling/being called)?

               9.

               Is a prosecutor’s permission, only with respect to the access to and use of data retained under Directive 2006/24/EC and/or Article 15(1) of Directive 2002/58/EC during criminal investigations, compatible with Articles 7, 8 and 52(1) of the Charter, when given without prior approval by a court [or independent administrative body], which is granted on the basis of specific substantive and procedural conditions, particularly when investigations are not intended to prevent, detect, and prosecute precisely defined crimes categorised by the national legislature as serious?

               10.

               Having regard to the judgment of the Court of Justice in Digital Rights Ireland and Others, paragraphs 60 and 61, and the term ‘serious crime’ contained in Article 1(1) of Directive 2006/24/EC, is that term an autonomous concept of EU law and, if so, what is its essential content on the basis of which a specific crime must be considered serious enough to justify the access to and use of data retained under Directive 2006/24/EC?

               11.

               Having regard to the judgment of the Court in Digital Rights Ireland and Others, paragraphs 60 and 61, and irrespective of whether the term ‘serious crime’ in Article 1(1) of Directive 2006/24/EC is autonomous or not, do Articles 7, 8 and 52(1) of the Charter outline general criteria based on which a specific crime must be considered serious enough to justify the access to and use of data retained under Directive 2006/24/EC and/or Article 15(1) of Directive 2002/58/EC, and if so, what are these criteria?

               12.

               If the answer to the previous question is essentially affirmative, then should such a review of proportionality consist ultimately of an assessment of the characteristics of the investigated offence, (a) by the Court of Justice of the European Union, alone or (b) by the national court, under the general criteria laid down by the Court of Justice of the European Union?

               13.

               Having regard to the judgment of the Court in Digital Rights Ireland and Others, paragraphs 58-68 and the operative part, is access to and use of retained data which takes place in the course of criminal proceedings under a general data retention scheme established pursuant to Directive 2006/24/EC and/or Article 15(1) of Directive 2002/58/EC, which meets the requirements of paragraphs 60, 61, 62, 67 and 68 of the above judgment, but not the requirements of paragraphs 58, 59, 63 and 64 of the same, compatible with Articles 7, 8 and 52(1) of the Charter?
               [Namely, when the retention status, first, requires prior approval by the court based on specific substantive and procedural conditions and, in particular, for the prevention, detection and prosecution of precisely defined crimes contained in the list drawn up by the national legislature and categorised by the latter as serious, and ensures the effective protection of retained data from the risk of abuse and against any unauthorised access and use (see paragraphs 60, 61, 62, 67 and 68 of the above judgment) and, secondly, allows data retention (a) without distinction to all persons who make use of electronic communications services, without previous evidence showing that the person (defendant or suspect) whose retained data are requested might have been involved, even indirectly, in a serious crime before the incident upon the occurrence of which the data were requested from the communications services providers, (b) without the requested data being relevant prior to the occurrence of the investigated event (i) to a specific time period and/or a geographical area and/or a group of specific persons who might be involved, in one way or another, in a serious crime, or (ii) to persons who might, for other reasons, contribute to, by retaining their data, the prevention, detection or prosecution of serious offences, (c) based on a time period (12 months in this case) specified without any distinction between the categories of data specified in Article 5 of that Directive, based on their probable usefulness for the intended purpose or in accordance with the persons concerned; see paragraphs 58, 59, 63 and 64 of the above judgment]

               14.

               If the answer to the above question is essentially that access to and use of such data does not comply with Articles 7, 8 and 52(1) of the Charter, then should the national court disapply the national measure for the incorporation of Directive 2006/24/EC annulled by the Court of Justice of the European Union or the measure that is based on Article 15(1) of Directive 2002/58/EC, as being contrary to the Charter and, accordingly, take no account of the data retained and acquired on that basis?

               15.

               Having regard to Directive 2006/24/EC, and, in particular, its sixth recital that ‘legal […] differences between national provisions concerning the retention of data for the purpose of the prevention, investigation, detection and prosecution of criminal offences present obstacles to the internal market’ and the purpose of Article 1(1), which is to ‘harmonise Member States’ provisions’, the remaining recitals, especially [3, 4, 5, 11 and 21], and the judgment in Ireland v European Parliament and Council of the European Union, C-301/06, EU:C:2009:68, paragraphs 70 to 72, does maintaining the law transposing Directive 2006/24/EC into national law constitute an obstacle to the establishment and functioning of the internal market, even after its annulment by the Court of Justice of the European Union, where a later measure of EU law on the harmonisation of the relevant field has not yet entered into force?

               16.

               In particular, does maintaining the law that transposes Directive 2006/24/EC into national law, even after its annulment by the Court of Justice of the European Union or the national law referred to in Article 15(1) of Directive 2002/58/EC constitute an obstacle to the establishment and functioning of the internal market, for the reasons that, cumulatively or alternatively:

                           (a)

                           the relevant national law provides objective criteria and substantive conditions on the basis of which the competent national authorities can obtain access to and then use the retained traffic and location data, etc., for the purposes of the prevention, investigation, detection and prosecution of criminal offences, but which criteria and requirements refer to a specific list of criminal activities that is drawn up by the national legislature in its discretion and is not harmonised at the EU level,

                           (b)

                           the relevant national law on the protection and security of retained data defines technical terms and conditions, but those terms and conditions are not harmonised at the EU level?

               17.

               If the answer to at least one of the above questions is affirmative, should the national court, in accordance with EU law, disapply the national measure for the transposition of Directive 2006/24/EC, which has been annulled by the Court of Justice of the European Union, as being contrary to the establishment and functioning of the internal market and consequently take no account of the data retained and accessed on the basis of Directive 2006/24/EC or national law under Article 15(1) of Directive 2002/58/EC?

      (1)  Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54).

      (2)  EU:C:2014:238.


title: Case C-494/15: Judgment of the Court (Second Chamber) of 7 July 2016 (request for a preliminary ruling from the Nejvyšší soud České republiky — Czech Republic) — Tommy Hilfiger Licensing LLC and Others v Delta Center a.s. (Reference for a preliminary ruling — Approximation of laws — Directive 2004/48/EC — Enforcement of intellectual property rights — Notion of ‘intermediary whose services are being used by a third party to infringe an intellectual property right’ — Tenant of market halls subletting sales points — Possibility of an injunction against that tenant — Article 11)

text:
               12.9.2016

               EN

               Official Journal of the European Union

               C 335/26

         Judgment of the Court (Second Chamber) of 7 July 2016 (request for a preliminary ruling from the Nejvyšší soud České republiky — Czech Republic) — Tommy Hilfiger Licensing LLC and Others v Delta Center a.s.
   (Case C-494/15) (1)

   ((Reference for a preliminary ruling - Approximation of laws - Directive 2004/48/EC - Enforcement of intellectual property rights - Notion of ‘intermediary whose services are being used by a third party to infringe an intellectual property right’ - Tenant of market halls subletting sales points - Possibility of an injunction against that tenant - Article 11))
   (2016/C 335/35)
   Language of the case: Czech

      Referring court

   Nejvyšší soud České republiky

      Parties to the main proceedings

      Applicants: Tommy Hilfiger Licensing LLC, Urban Trends Trading BV, Rado Uhren AG, Facton Kft., Lacoste SA, Burberry Ltd

      Defendant: Delta Center a.s.

      Operative part of the judgment

               1.

               The third sentence of Article 11 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that the tenant of market halls who sublets the various sales points situated in those halls to market-traders, some of whom use their pitches in order to sell counterfeit branded products, falls within the concept of ‘an intermediary whose services are being used by a third party to infringe an intellectual property right’ within the meaning of that provision.

               2.

               The third sentence of Article 11 of Directive 2004/48 must be interpreted as meaning that the conditions for an injunction within the meaning of that provision against an intermediary who provides a service relating to the letting of sales points in market halls are identical to those for injunctions which may be addressed to intermediaries in an online marketplace, set out by the Court in the judgment of 12 July 2011 in L’Oréal and Others (C-324/09, EU:C:2011:474).

      (1)  OJ C 414, 14.12.2015.


title: Judgment of the Court of 20 March 2003 in Case C-291/00 (Reference for a preliminary ruling from the Tribunal de Grande Instance de Paris): LTJ Diffusion SA v Sadas Vertbaudet SA (Trade marks — Approximation of laws — Directive 89/104/EEC — Article 5(1)(a) — Notion of sign which is identical with the trade mark — Use of the distinctive element of the mark to the exclusion of other elements — Use of all the elements making up the trade mark but with the addition of other elements)

text:
10.5.2003                EN                          Official Journal of the European Union                                                   C 112/3
                 JUDGMENT OF THE COURT                                                          JUDGMENT OF THE COURT
                                                                                of 11 March 2003
                          of 20 March 2003
                                                                             in Case C-40/01 (Reference for a preliminary ruling from
in Case C-291/00 (Reference for a preliminary ruling from                    the Hoge Raad der Nederlanden): Ansul BV v Ajax
the Tribunal de Grande Instance de Paris): LTJ Diffusion                                             Brandbeveiliging BV ( 1)
                  SA v Sadas Vertbaudet SA (1)
                                                                             (Trade marks — Directive 89/104/EEC — Article 12(1) —
                                                                             Revocation of trade mark owner’s rights — Concept of
(Trade marks — Approximation of laws — Directive 89/                         genuine use of a trade mark — Maintenance of goods already
104/EEC — Article 5(1)(a) — Notion of sign which is                                sold and sales of replacement parts and accessories)
identical with the trade mark — Use of the distinctive
element of the mark to the exclusion of other elements —
Use of all the elements making up the trade mark but with                                                 (2003/C 112/05)
                  the addition of other elements)
                                                                                (Language of the case: Dutch)
                           (2003/C 112/04)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published       In Case C-40/01: Reference to the Court under Article 234 EC
                    in the European Court Reports)                           by the Hoge Raad der Nederlanden (Netherlands) for a
                                                                             preliminary ruling in the proceedings pending before that
                                                                             court between Ansul BV and Ajax Brandbeveiliging BV, on the
                                                                             interpretation of Article 12(1) of First Council Directive 89/
                                                                             104/EEC of 21 December 1988 to approximate the laws of
                                                                             the Member States relating to trade marks (OJ 1989 L 40,
In Case C-291/00: Reference to the Court under Article 234                   p. 1), the Court, composed of: G. C. Rodríguez Iglesias,
EC by the Tribunal de grande instance de Paris (France) for a                President, J.-P. Puissochet (Rapporteur), M. Wathelet and
preliminary ruling in the proceedings pending before that                    C. W. A. Timmermans, Presidents of Chamber, C. Gulmann,
court between LTJ Diffusion SA and Sadas Vertbaudet SA, on                   A. La Pergola, P. Jann, V. Skouris, F. Macken, N. Colneric and
the interpretation of Article 5(1)(a) of First Council Directive             S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate
89/104/EEC of 21 December 1988 to approximate the laws                       General; M.-F. Contet, Principal Administrator, for the Regis-
of the Member States relating to trade marks (OJ 1989 L 40,                  trar, has given a judgment on 11 March 2003, in which it has
p. 1), the Court, composed of: G. C. Rodríguez Iglesias,                     ruled:
President, M. Wathelet and R. Schintgen (Presidents of Cham-
bers), C. Gulmann, P. Jann, F. Macken (Rapporteur), N. Colner-
ic, S. von Bahr and J. N. Cunha Rodrigues, Judges; F. G. Jacobs,             1.     Article 12(1) of First Council Directive 89/104/EEC of
Advocate General; D. Louterman-Hubeau, Head of Division,                            21 December 1988 to approximate the laws of the Member
for the Registrar, has given a judgment on 20 March 2003, in                        States relating to trade marks must be interpreted as meaning
which it has ruled:                                                                 that there is ‘genuine use’ of a trade mark where the mark is
                                                                                used in accordance with its essential function, which is to
                                                                                guarantee the identity of the origin of the goods or services for
                                                                                which it is registered, in order to create or preserve an outlet for
Article 5(1)(a) of First Council Directive 89/104/EEC of 21 Decem-                  those goods or services; genuine use does not include token use
ber 1988 to approximate the laws of the Member States relating to                   for the sole purpose of preserving the rights conferred by the
trade marks must be interpreted as meaning that a sign is identical                 mark. When assessing whether use of the trade mark is genuine,
with the trade mark where it reproduces, without any modification or                regard must be had to all the facts and circumstances relevant
addition, all the elements constituting the trade mark or where,                    to establishing whether the commercial exploitation of the mark
viewed as a whole, it contains differences so insignificant that they               is real, particularly whether such use is viewed as warranted in
may go unnoticed by an average consumer.                                            the economic sector concerned to maintain or create a share in
                                                                                the market for the goods or services protected by the mark, the
                                                                                nature of the goods or services at issue, the characteristics of the
( 1) OJ C 273 of 23.9.2000.
                                                                                market and the scale and frequency of use of the mark. The fact
                                                                                that a mark that is not used for goods newly available on the
                                                                                market but for goods that were sold in the past does not mean
                                                                                that its use is not genuine, if the proprietor makes actual use of
                                                                                the same mark for component parts that are integral to the


title: Case T-291/04: Judgment of the General Court of 16 December 2011 — Enviro Tech Europe Ltd and Enviro Tech International v Commission (Environment and consumer protection — Classification, packaging and labelling of n-propyl bromide as a dangerous substance — Directive 2004/73/EC — Directive 67/548/EEC — Regulation (EC) No 1272/2008 — Action for annulment — Late request to adapt claims — Legal interest in bringing proceedings — Lack of individual concern — Inadmissibility — Non-contractual liability — Judgment of the Court of Justice concerning the validity of Directive 2004/73 — Same subject-matter)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/17

         Judgment of the General Court of 16 December 2011 — Enviro Tech Europe Ltd and Enviro Tech International v Commission
   (Case T-291/04) (1)

   (Environment and consumer protection - Classification, packaging and labelling of n-propyl bromide as a dangerous substance - Directive 2004/73/EC - Directive 67/548/EEC - Regulation (EC) No 1272/2008 - Action for annulment - Late request to adapt claims - Legal interest in bringing proceedings - Lack of individual concern - Inadmissibility - Non-contractual liability - Judgment of the Court of Justice concerning the validity of Directive 2004/73 - Same subject-matter)
   2012/C 32/30
   Language of the case: English

      Parties

      Applicants: Enviro Tech Europe Ltd (Kingston upon Thames, United Kingdom); and Enviro Tech International, Inc. (Melrose Park, Illinois, United States) (represented by: C. Mereu and K. Van Maldegem, lawyers)

      Defendant: European Commission (represented: initially by X. Lewis, and subsequently by P. Oliver and G. Wilms, Agents)

      Re:

   Application, first, for annulment of Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 2004 L 152, p. 1, amended by OJ L 216, p. 3), in so far as Directive 2004/73 classified n-propyl bromide as a substance having certain dangerous properties and, second, for damages.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Enviro Tech Europe Ltd and Enviro Tech International, Inc. to pay the costs, including those relating to the interlocutory proceedings.

      (1)  OJ C 273, 6.11.2004.


title: Case T-298/00: Action brought on 18 September 2000 by Michel Hendrickx against the European Centre for Development and Occupational Training (CEDEFOP)

text:
25.11.2000             EN                       Official Journal of the European Communities                                     C 335/47
Action brought on 15 September 2000 by Cooperativa                         The applicant claims that the Court should:
Ducale fra Gondolieri di Venezia s.c.a r.l. and Others
    against Commission of the European Communities                         —     annul the decision not to pay the applicant the allowance
                                                                                to which he is entitled following termination of his
                                                                                service as a member of the temporary staff with CEDEFOP
                         (Case T-252/00)
                                                                                in Thessaloniki;
                         (2000/C 335/89)                                   —     order the defendant to pay the costs.
                    (Language of the case: Italian)                        Pleas in law and main arguments
An action against the Commission of the European Communi-                  The applicant is an official in the Secretariat-General of the
ties was brought before the Court of First Instance of the                 Council. He was seconded by his institution to the European
European Communities on 15 September 2000 by Cooperati-                    Centre for Development and Occupational Training (CEDE-
va Ducale fra Gondolieri di Venezia s.c.a r.l. and Others,                 FOP) in Thessaloniki, where he served as a member of the
represented by Mario Giantin, of the Venice Bar.                           temporary staff. After subsequently terminating his service
                                                                           with CEDEFOP and being reinstated at the Council, he
                                                                           requested a (re)installation allowance, which was refused by
The applicants claim that the Court should:                                the contested decision.
—     annul Commission Decision 2000/394/EEC;                              By the present action the applicant seeks annulment of that
                                                                           decision on the ground that it infringes Article 25 of the Staff
—     order the Commission to pay the costs.                               Regulations, Article 24(2) of the Rules of Employment of
                                                                           Other Servants and Article 5(2) of Annex VII to the Staff
                                                                           Regulations.
Pleas in law and main arguments
The pleas in law and main arguments are those relied upon in
Cases T-234/00 Fondazione Opera S. Maria della Carità v
Commission and T-235/00 Codess Sociale and Others (1).
The applicants point out that they have standing, as two                   Action brought on 25 September 2000 by Anne Puers
cooperatives operating gondoliers, to claim that there is no                 against the Commission of the European Communities
anti-competitive effect arising from the alleged ‘aid measure’,
as well as the need for their business to survive, for the sake of                                 (Case T-307/00)
the environment, culture and tourism of the area concerned.
                                                                                (2000/C 335/91)
(1) not yet published.
                                                                                (Language of the case: French)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 25 September 2000 by Anne
                                                                           Puers, of Brussels, represented by J.-N. Louis and V. Peere, of
                                                                           the Brussels Bar.
Action brought on 18 September 2000 by Michel Hend-
rickx against the European Centre for Development and                      The applicant claims that the Court should:
              Occupational Training (CEDEFOP)
                                                                           —     annul the decision of the Commission notified on
                         (Case T-298/00)                                         25 November 1999 refusing to award an orphan’s pen-
                                                                                sion to the applicant’s child;
                         (2000/C 335/90)                                   —     order the defendant to pay the costs.
                    (Language of the case: French)                         Pleas in law and main arguments
An action against CEDEFOP was brought before the Court of                  The applicant, an official of the Commission, applied under
First Instance of the European Communities on 18 September                 Article 80 of the Staff Regulations for an orphan’s pension for
2000 by Michel Hendrickx, residing in Brussels, represented                her daughter following the death of the child’s father, with
by J.-N. Louis and V. Peere, of the Brussels Bar.                          whom the applicant cohabited.


title: Reference for a preliminary ruling by the VAT and Duties Tribunal, Manchester, by direction of that court of 2 April 1997, in the case of Norbury Developments Ltd against the Commissioners of Customs and Excise (Case C-136/97)

text:
No C 166/ 10             EN                  Official Journal of the European Communities                                        31 . 5 . 97
Bologna, 2 . Ministero della Sanità, 3 . Minstero dell'Uni                   upon as against a national authority by the person
versità e della Ricerca Scientifica , 4 . Ministero del Tesoro,               dealing in such rights as a ground justifying treatment
on the following questions:                                                   of those transactions as taxable transactions ?
                                                                              If, again, that question is answered in the negative, an
'Must the provision of Directive 82/76/EEC (') providing                      answer to the following question is sought:
that the training of trainee medical specialists is to be
" subject to appropriate remuneration " be interpreted, in
so far as no specific provisions have been adopted by the               3 . Can the person dealing in those rights still claim a
Italian Republic in the prescribed terms, as having direct                    right to deduct on the basis of Article 17 ( 2 ) or
effect in favour of trainee medical specialists as against the                another provision of the Directive, that is to say, does
administrative authorities of the Italian Republic, and does                  the provision have direct effect even though the
it confer on trainee medical specialists the right to                         transaction does not give rise to any output tax ?
appropriate payment linked with all the training
undertaken in the departments entrusted with training by                (') ' 11 . The following types of transaction shall be exempt from
the State , with a corresponding obligation on those                               tax: ( l)The grant or assignment of rights covered by
administrative authorities, including the University of                            Article 1 , 4 or 5 of Law 1960 : 729 on Copyright in
Bologna , to pay such remuneration ?'                                              Literary and Artistic Works, but not ...'.
(') OJ No L 43 , 15 . 2 . 1982 , p . 21
                                                                        Reference for a preliminary ruling from the
                                                                        Oberlandesgericht Wien by order of that court of
                                                                        24 March 1997 in the case of Verein zur Forderung des
Reference for a preliminary ruling from the                             freien Wettbewerbs im Medienwesen v. MVF Magazin
Skatterattsnamnden by order of that body of 20 February                               Verlag am Fleetrand Gesellschaft mbH
  1997 in the case of Victoria Film A/S v. Riksskatteverket                                       ( Case C-135/97)
                          ( Case C-134/97                                                           ( 97/C 166/19 )
                            ( 97/C 166/ 18 )
                                                                        Reference has been made to the Court of Justice of
                                                                        the European Communities by an order of the Oberlandes
Reference has been made to the Court of Justice of the                  gericht Wien ( Higher Regional Court, Vienna ) of 24 March
European Communities by an order of the                                 1997, which was received at the Court Registry on 7 April
Skatterattsnamnden ( Revenue Board ) of 20 February                     1997, for a preliminary ruling in the case of Verein zur
1997, which was received at the Court Registry on 7 April               Forderung des freien Wettbewerbs im Medienwesen v.
1997, for a preliminary ruling in the case of Victoria Film             MVF Magazin-Verlag am Fleetrand Gesellschaft mbH on
A/S v. Riksskatteverket on the following questions:                     the following question :
                                                                        'Is Article 30 of the EC Treaty to be interpreted as
1 . Does Article 28 ( 3 ) ( b ) of the Sixth VAT Directive in           precluding application of legislation of Member State A
     conjunction with point 2 of Annex F to the Directive,              prohibiting an undertaking established in Member State B
     and having regard to the terms of Annex XV, IX                     from selling in Member State A a periodically published
     Taxation, point 2 aa, of the Treaty of Accession                   magazine produced in Member State B if it contains prize
     between the Member States of the European Union                    puzzles or competitions which are lawfully organized in
     and Sweden concerning Sweden's accession to the                    Member State B ?'
     European Union, mean that Sweden may have
     provisions in its national legislation having the tenor
     of Article 11 ( 1 ) of Title 3 of the Value Added Tax
     Law as worded until 31 December 1996 (')?
                                                                        Reference for a preliminary ruling by the VAT and Duties
     If the answer to that question is in the negative, an
                                                                        Tribunal, Manchester, by direction of that court of 2 April
     answer to the following question is sought.
                                                                        1997, in the case of Norbury Developments Ltd against
                                                                                the Commissioners of Customs and Excise
2 . Does the fact that Article 28 ( 3 ) ( b ) does not allow                                      ( Case C-136/97 )
     national legislation to provide for an exemption from                                          ( 97/C 166/20 )
     tax liability for the transactions referred to in
     Question 1 mean that this provision, Article 6 ( 1 ) or
     any other provision of the Sixth Directive has so-called           Reference has been made to the Court of Justice of the
     direct effect in this regard and can therefore be relied           European Communities by direction of the VAT and
 ---pagebreak--- 31 . 5 . 97              EN                  Official Journal of the European Communities                                    No C 166/ 11
Duties Tribunal , Manchester, of 2 April 1997, which was                        81/851/EEC (2 ) on the approximation of provisions
received at the Court Registry on 14 April 1997, for a                          laid down by law, regulation or administrative action
preliminary ruling in the Case of Norbury Developments                          relating to veterinary medicinal products and laying
Ltd against the Commissioners of Customs and Excise, on                         down additional provisions on homeopathic veterinary
the following question :                                                        medicinal products, the French Republic has failed to
                                                                                fulfil its obligations under that Directive,
In relation to a supply of land which has not been built on
but on which at the time of supply the erection of                       — order the French Republic to pay the costs .
buildings has been legally authorized by a permission
granted in accordance with the law of the Member State
and which the tribunal has held to be building land                      Pleas in law and main arguments adduced in support:
is the United Kingdom entitled to exempt the supply
under Article 28 ( 3 ) ( b ) of the Sixth Directive (*)?                 The mandatory nature of the provisions of the third
Notwithstanding that:                                                    paragraph of Article 189 of the EC Treaty is such as to
                                                                         oblige Member States to whom directives are addressed to
( a ) the taxation of supplies of land, including supplies of            adopt the measures necessary to comply with such
       land which is indisputably building land has altered              directives within the time-limit prescribed therein . The
       since the United Kingdom adopted the Sixth Directive              time-limit in question expired on 31 December 1993 but
       on 17 May 1977, in particular since the enactment of              France has not adopted the necessary measures .
       the Finance Act 1989 , which introduced the election
       to waive VAT exemption in respect of certain such                 ( ] ) OJ No L 297, 1992 , p . 12 .
       supplies; and                                                     ( 2 ) OJ No L 317, 1981 , p . 1 .
( b ) the taxation of supplies of land which is indisputably
       building land has altered since the United Kingdom
       adopted the Sixth Directive on 17 May 1977, in
       particular since the enactment of the Finance Act 1989
       which required certain such supplies which were                   Action brought on 16 April 1997 by the Commission of
       previously exempt to be standard-rated as civil                   the European Communities against the Kingdom of
       engineering works and noting that the supply would                                                 Belgium
       have been exempt had the supply taken place before                                           ( Case C-145 /97 )
       17 May 1977 under item 1 of group 1 of Schedule 5
       to the Finance Act 1972 .
                                                                                ( 97/C 166/22 )
(') Directive 77/388/EEC of the Council of 17 May 1977 on the            An action against the Kingdom of Belgium was brought
      harmonization of the laws of the Member States relating to         before the Court of Justice of the European Communities
     turnover taxes — Common system of value added tax :
      uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977, p. 1 ).
                                                                         on 16 April 1997 by the Commission of the European
                                                                         Communities, represented by Richard B. Wainwright,
                                                                         Principal Legal Adviser, and Jean-Francis Pasquier, a
                                                                         national civil servant on secondment to the Legal Service,
                                                                         acting as Agents, with an address for service in
                                                                         Luxembourg at the office of Carlos Gomez de la Cruz,
Action brought on 16 April 1997 by the Commission of                     Wagner Centre, Kirchberg.
   the European Communities against the French Republic
                           ( Case C-144/97 )                             The Commission of the European Communities claims
                                                                         that the Court should :
                             ( 97/C 166/21 )
                                                                         — declare that, by adopting the Decree of 9 November
An action against the French Republic was brought before                        1993 concerning standards of quality and safety
the Court of Justice of the European Communities on                             in      furnished       accommodation     without    first
 16 April 1997 by the Commission of the European                                communicating it to the Commission in draft form,
Communities, represented by Richard B. Wainwright,                              the Kingdom of Belgium has failed to fulfil its
Principal Legal Adviser, and Jean-Francis Pasquier, a                           obligations under Article 8 of Council Directive 83/
national civil servant on secondment to the Legal Service,                       189/EEC of 28 March 1983 laying down a procedure
acting as Agents, with an address for service in                                for the provision of information in the field of
Luxembourg at the office of Carlos Gomez de la Cruz,                            technical standards and regulations ('),
Wagner Centre, Kirchberg.
                                                                         — order the Kingdom of Belgium to pay the costs .
The Commission of the European Communities claims
that the Court should :
                                                                          Pleas in law and main arguments adduced in support:
— declare that, by failing to adopt the laws, regulations
       and administrative measures necessary in order to                  In the Commission's view, the decree in issue contains —
       comply with Council Directive 92/74/EEC of                         for example, in Article 12 ( relating to electrical
       22 September 1992 ( ] ) widening the scope of Directive            equipment), Article 13 ( relating to gas installations ) and


title: Joined Cases T-456/05 and T-457/05: Judgment of the General Court of 28 April 2010 — Gütermann and Zwicky v Commission (Competition — Agreements, decisions and concerted practices — European market in industrial thread — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Fines — Gravity of the infringement — Actual impact on the market — Duration of the infringement — Mitigating circumstances — Cooperation during the administrative procedure — Proportionality — Guidelines on the method of setting fines)

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/25

         Judgment of the General Court of 28 April 2010 — Gütermann and Zwicky v Commission
   (Joined Cases T-456/05 and T-457/05) (1)

   (Competition - Agreements, decisions and concerted practices - European market in industrial thread - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Fines - Gravity of the infringement - Actual impact on the market - Duration of the infringement - Mitigating circumstances - Cooperation during the administrative procedure - Proportionality - Guidelines on the method of setting fines)
   2010/C 148/44
   Language of the case: German

      Parties

      Applicants: Gütermann AG (Gutach-Breisgau, Germany) (Case T-456/05); and Zwicky & Co. AG (Wallisellen, Switzerland) (Case T-457/05) (represented by: J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers)

      Defendant: European Commission (represented by: F. Castillo de la Torre, M. Schneider and K. Mojzesowicz, and subsequently by F. Castillo de la Torre and K. Mojzesowicz, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 — PO/Thread), as amended by Commission Decision C(2005) 3765 of 13 October 2005 and, in the alternative, for reduction of the fine imposed on the applicants by that decision

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Gütermann AG et Zwicky & Co. AG to pay the costs.

      (1)  OJ C 60, 11.3.2006.


title: Case T-143/09 P: Judgment of the General Court of 16 December 2010 — Commission v Petrilli (Appeal — Staff cases — Auxiliary contract staff — Fixed-term contract — Rules on the maximum duration for employing non-permanent staff in the Commission services — Decision to refuse renewal of the contract)

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/12

         Judgment of the General Court of 16 December 2010 — Commission v Petrilli
   (Case T-143/09 P) (1)

   (Appeal - Staff cases - Auxiliary contract staff - Fixed-term contract - Rules on the maximum duration for employing non-permanent staff in the Commission services - Decision to refuse renewal of the contract)
   2011/C 38/19
   Language of the case: French

      Parties

      Appellant: European Commission (represented by: D. Martin and B. Eggers, Agents)

      Other party to the proceedings: Nicole Petrilli (Woluwé-Saint-Étienne, Belgium) (represented: initially by J.-L. Lodomez and J. Lodomez, and subsequently by D. Dejehet and A. Depondt, lawyers)

      Re:

   Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 January 2009 in Case F-98/07 Petrilli v Commission ECR-SC I-A-1-0000 and II-A-1-0000), seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Commission to bear its own costs and to pay those incurred by Mrs Nicole Petrilli in these proceedings.

      (1)  OJ C 153 of 4.7.2009.


title: Case T-117/13 P: Appeal brought on 25 February 2013 by Giorgio Lebedef against the order of the Civil Service Tribunal of 12 December 2012 in Case F-109/11, Lebedef v Commission

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/20

         Appeal brought on 25 February 2013 by Giorgio Lebedef against the order of the Civil Service Tribunal of 12 December 2012 in Case F-109/11, Lebedef v Commission
   (Case T-117/13 P)
   2013/C 147/36
   Language of the case: French

      Parties

      Appellant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by F. Frabetti, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               set aside the order of the CST of 12 December 2012 in Case F-109/11 Lebedef v Commission seeking the annulment of the appellant’s appraisal report for the period 1.1.2009 — 31.12.2009 and, more specifically, the part of the report drafted by EUROSTAT for the same period;

               —

               uphold the appellant’s form of order sought at first instance;

               —

               alternatively, refer the case back to the Civil Service Tribunal;

               —

               make an order as to costs and order the European Commission to pay the costs.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on six pleas in law, of which the first, second, third and six are essentially the same as or similar to those relied on in Case T-116/13 P Lebedef v Commission.
   The fourth plea in law alleges an error of law in that, according to the appellant, the CST concluded that the report covering his activities in a professional or trade union organisation (OSP report) which should appear only as a document attached to the report concerning the appellant’s duties at the Statistical Office of the European Union (Eurostat) (paragraphs 68 to 70 of the order under appeal).
   The fifth plea in law alleges an error of law in that the appellant claims that the CST held that the appellant wished to challenge his appraisal reports prior to 2009 and the Commission decision not to promote him (paragraphs 74 and 75 of the order under appeal).


title: Case C-339/04: Judgment of the Court (Third Chamber) of 18 July 2006 (reference for a preliminary ruling from the Consiglio di Stato — Italy) — Nuova società di telecomunicazioni SpA v Ministero delle Comunicazioni, ENI SpA, (Telecommunication services — Directive 97/13/EC — Fees and charges applicable to individual licences)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/5

         Judgment of the Court (Third Chamber) of 18 July 2006 (reference for a preliminary ruling from the Consiglio di Stato — Italy) — Nuova società di telecomunicazioni SpA v Ministero delle Comunicazioni, ENI SpA,
   (Case C-339/04) (1)

   (Telecommunication services - Directive 97/13/EC - Fees and charges applicable to individual licences)
   (2006/C 224/08)
   Language of the case: Italian
   Referring court
   Consiglio di Stato
   Parties to the main proceedings

      Applicant: Nuova società di telecomunicazioni SpA

      Defendants: Ministero delle Comunicazioni, ENI SpA,
   Re:
   Reference for a preliminary ruling — Consiglio Di Stato (Italy) — Interpretation of Articles 6 and 11 of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15) — Compatibility with Community law of a national provision requiring companies providing a public service and having created telecommunications networks to create a separate company for the exercise of any activity in the field of telecommunications
   Operative part of the judgment
   Article 11 of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services precludes a national provision, such as that at issue in the main proceedings, which requires the holder of an individual licence for the provision of a public telecommunications network, for which it has paid a fee as provided for in that article, to pay an additional fee in respect of the private use of that network calculated in accordance with criteria which do not correspond to those laid down in that article.

      (1)  OJ C 251, 9.10.2004.


title: Case T-105/06: Judgment of the Court of First Instance of 17 October 2007 — InterVideo v OHIM (WinDVD Creator) (Community trade mark — Application for Community figurative mark WinDVD Creator — Absolute grounds for refusal — Articles 4 and 7(1)(b) and (c) of Regulation (EC) No 40/94)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/41

         Judgment of the Court of First Instance of 17 October 2007 — InterVideo v OHIM (WinDVD Creator)
   (Case T-105/06) (1)

   (Community trade mark - Application for Community figurative mark WinDVD Creator - Absolute grounds for refusal - Articles 4 and 7(1)(b) and (c) of Regulation (EC) No 40/94)
   (2007/C 297/83)
   Language of the case: English
   Parties

      Applicant: InterVideo Inc. (Fremont, California, United States) (represented by: K. Manhaeve, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Mondéjar, Agent)
   Re:
   Action against the decision of the Second Board of Appeal of OHIM of 31 January 2006 (Case R 987/2005-2), relating to registration of the figurative sign WinDVD Creator as a Community trade mark
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action.

               2.

               Orders InterVideo Inc. to pay the costs.

      (1)  OJ C 121, 20.5.2006.


title: Case C-206/05: Judgment of the Court (Fourth Chamber) of 26 October 2006 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Directive 90/427/EEC — Intra-Community trade in equidae — Requirement for a breeding stallion to be subject to an assessment of its genetic value in Sweden)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/12

         Judgment of the Court (Fourth Chamber) of 26 October 2006 — Commission of the European Communities v Kingdom of Sweden
   (Case C-206/05) (1)

   (Failure of a Member State to fulfil obligations - Directive 90/427/EEC - Intra-Community trade in equidae - Requirement for a breeding stallion to be subject to an assessment of its genetic value in Sweden)
   (2006/C 326/25)
   Language of the case: Swedish
   Parties

      Applicant: Commission of the European Communities (represented by: F. Erlbacher and K. Simonsson, Agents)

      Defendant: Kingdom of Sweden (represented by: K. Norman, Agent)
   Re:
   Failure to fulfil obligations — Infringement of Article 28 EC and Article 3 of Council Directive 90/427/EEC of 26 June 1990 on the zootechnical and genealogical conditions governing intra-Community trade in equidae (OJ 1990 L 224, p. 55) — Requirement for breeding stallions to be assessed as to their genetic value in Sweden
   Operative part of the judgment
   The Court:

               1)

               Declares that, by having laid down in its national legislation a requirement that stallions are to be subject to an assessment of their genetic value in Sweden in order to be used for off-farm mating, the Kingdom of Sweden has failed to fulfil its obligations under Article 3 of Council Directive 90/427/EEC of 26 June 1990 on the zootechnical and genealogical conditions governing intra-Community trade in equidae;

               2)

               Orders the Kingdom of Sweden to pay the costs.

      (1)  OJ C 229, 17. 9. 2005.


               20.4.2017

               EN

               Official Journal of the European Union

               C 123/8

         Request for an Advisory Opinion from the EFTA Court by Borgarting lagmannsrett dated 27 September 2016 in the case of Yara International ASA v the Norwegian Government, represented by the Ministry of Finance
   (Case E-15/16)
   (2017/C 123/09)
   A request has been made to the EFTA Court by a letter dated 27 September 2016 from Borgarting lagmannsrett (Borgarting Court of Appeal), which was received at the Court Registry on 4 October 2016, for an Advisory Opinion in the case of Yara International ASA v the Norwegian Government, represented by the Ministry of Finance on the following question:
   Is it compatible with Articles 31 and 34 EEA that national rules on intra-group contributions, such as the rules in the Norwegian Taxation Act, under which the contribution reduces the transferor’s taxable income and is included in the recipient’s taxable income regardless of whether the recipient makes a loss or a profit for tax purposes, lay down the condition that both the transferor and the recipient are liable to taxation in the EEA State in question, or must the EEA rules be interpreted to mean that, on certain conditions, an exception must be granted from the requirement for tax liability in the realm?


title: Case T-188/07: Action brought on 28 May 2007 — Fastweb v Commission

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/35

         Action brought on 28 May 2007 — Fastweb v Commission
   (Case T-188/07)
   (2007/C 170/68)
   Language of the case: Italian
   Parties

      Applicant: Fastweb SpA (represented by: M. Merloa, of its Legal Service, T. Ubalidi, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the Commission's decision (C(2006) 6634 final) of 24 January 2007 relating to State aid C52/2005 (ex NN 88/2005, ex CP 101/2004) in so far as it classifies as unlawful State aid which is incompatible with the common market measures which Italy implemented by providing subsidies for the purchase of digital decoders to terrestrial broadcasters offering pay-TV services and cable pay-TV operators (Article 1 of the decision);

               —

               annul the Commission's decision (C(2006) 6634 final) of 24 January 2007 in so far as it orders Italy to recover the aid declared incompatible from the beneficiaries and in particular from the applicant (Articles 2 and 3 of the decision);

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The contested decision in the present case is the same as that in Case T-96/07 Telecom Italia Media v Commission
       (1).
   The following grounds of annulment are submitted in support of the action:

               —

               infringement of Article 87(1) of the EC Treaty, inadequate reasoning and failure to conduct a proper investigation concerning the classification of the measures as State aid. The applicant submits in particular that the measures in question do not constitute State aid in that they do not entail a transfer of State resources to the alleged beneficiaries and do not confer on them a selective advantage to the detriment of competitors.

               —

               Infringement of Article 87(1) of the EC Treaty, contradictory and inadequate reasoning with regard to the identification and existence of an economic advantage in favour of the alleged beneficiaries of the aid. The applicant states that the Commission's assessment of the identification of the form of aid, that is, the economic advantage which the alleged beneficiaries would have enjoyed, is inadequate and that the statement of reasons is manifestly contradictory. The decision is also vitiated in that if fails to demonstrate in what manner the subsidies granted to consumers to purchase decoders necessarily, automatically and indisputably conferred an economic advantage on the alleged beneficiaries of the measures.

               —

               A failure to state adequate reasons with regard to the quantification of the aid to be recovered from the beneficiaries and unlawfulness of the order for recovery on the basis that it infringes the rules of the Treaty on State aid and Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999. The applicant submits that the Commission's quantification of the advantage which would have been conferred on the alleged beneficiaries of the proposed measures is based on inadequate reasoning and goes beyond the powers conferred on the Commission by the EC Treaty and by the procedural regulation for State aid.

               —

               Unlawfulness of the order for recovery in that it is absolutely and objectively impossible from the outset to implement it, a failure to state adequate reasons and infringement of Article 14(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 and of the principle of proportionality.

      (1)  OJ L 117, 29.5.2007, p. 32.


title: Case C-298/06: Order of the President of the Court of 4 October 2006 — Commission of the European Communities v Hellenic Republic

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/53

         Order of the President of the Court of 4 October 2006 — Commission of the European Communities v Hellenic Republic
   (Case C-298/06) (1)

   (2006/C 326/114)

      Language of the case: Greek

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

      (1)  OJ C 237, 30.09.2006.


title: Case C-623/16 P: Appeal brought on 25 November 2016 by the European Commission against the judgment of the General Court (Eighth Chamber) of 15 September 2016 in Case T-220/13, Scuola Elementare Maria Montessori v Commission

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/17

         Appeal brought on 25 November 2016 by the European Commission against the judgment of the General Court (Eighth Chamber) of 15 September 2016 in Case T-220/13, Scuola Elementare Maria Montessori v Commission
   (Case C-623/16 P)
   (2017/C 038/22)
   Language of the case: Italian

      Parties

      Appellant: European Commission (represented by: P. Stancanelli, D. Grespan, F. Tomat, acting as agents)

      Other parties to the proceedings: Scuola Elementare Maria Montessori Srl, Italian Republic

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment under appeal to the extent that it declares the proceedings at first instance admissible for the purpose of the final limb of the fourth paragraph of Article 263 TFEU;

               —

               declare the action at first instance inadmissible for the purpose of the second and last limb of the fourth paragraph of Article 263 TFEU and consequently dismiss it in its entirety;

               —

               order Scuola Elementare Maria Montessori to pay the costs incurred by the Commission in the proceedings before the General Court and in the present proceedings.

      Pleas in law and main arguments

   By a single plea in law, divided into three parts, the Commission claims that the last limb of the fourth paragraph of Article 263 TFEU was misinterpreted and misapplied, in that the General Court ruled that the applicant’s action at first instance was admissible on the basis of that provision. In particular, the General Court erred in law by finding that the contested act amounted to a regulatory act which was of direct concern to the applicant at first instance and did not entail implementing measures in respect of the applicant itself.