title: Case T-301/16: Action brought on 13 June 2016 — Jindal Saw et Jindal Saw Italia v Commission

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/25

         Action brought on 13 June 2016 — Jindal Saw et Jindal Saw Italia v Commission
   (Case T-301/16)
   (2016/C 314/35)
   Language of the case: English

      Parties

      Applicants: Jindal Saw Ltd (New Delhi, India) and Jindal Saw Italia SpA (Trieste, Italy) (represented by: R. Antonini and E. Monard, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul Commission Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India, in so far as it relates to the Applicants; and

               —

               order the Commission to bear the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that by means of the determination of the export prices, the Commission infringed Articles 2(8), 2(9), 3(2), 3(3), 3(6) and 9(4) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community.

               2.

               Second plea in law, alleging that by means of its price effects, injury and causation determinations, the Commission infringed Articles 3(2), 3(3), 3(5), 3(6), 3(7), 3(8), 4(1), 5(4) and 9(4) of Council Regulation (EC) No 1225/2009.

               3.

               Third plea in law, alleging that the failure to disclose essential facts and considerations and to grant sufficient time to submit comments infringed Articles 20(4) and 20(5) of Council Regulation No 1225/2009.


title: Case T-301/02: Judgment of the Court of First Instance of 11 June 2009 — AEM v Commission (State aid — Scheme of aid granted by the Italian authorities to certain public utilities in the form of tax exemptions and loans at preferential rates — Decision declaring the aid incompatible with the common market — Actions for annulment — Individual concern — Admissibility — Existing aid or new aid — Article 87(3)(c) EC)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/39

         Judgment of the Court of First Instance of 11 June 2009 — AEM v Commission
   (Case T-301/02) (1)

   (State aid - Scheme of aid granted by the Italian authorities to certain public utilities in the form of tax exemptions and loans at preferential rates - Decision declaring the aid incompatible with the common market - Actions for annulment - Individual concern - Admissibility - Existing aid or new aid - Article 87(3)(c) EC)
   2009/C 180/70
   Language of the case: Italian

      Parties

      Applicant: AEM SpA (Milan, Italy) (represented by: A. Giardina, C. Croff, A. Santa Maria and G. Pizzonia, lawyers)

      Defendant: Commission of the European Communities (represented by: V. Di Bucci, Agent)

      Intervener in support of the applicant: ASM Brescia SpA (Brescia, Italy) (represented by: G. Caia, V. Salvadori, N. Pisani and F. Capelli, lawyers)

      Re:

   Application for annulment of Articles 2 and 3 of Commission Decision 2003/193/EC of 5 June 2002 on State aid granted by Italy in the form of tax exemptions and subsidised loans to public utilities with a majority public capital holding (OJ 2003 L 77, p. 21).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders AEM SpA to pay its costs and those of the Commission;

               3.

               Orders ASM Brescia SpA to bear its own costs.

      (1)  OJ C 289, 23.11.2002.


title: Case C-385/11: Reference for a preliminary ruling from the Juzgado de lo Social de Barcelona (Spain) lodged on 19 July 2011 — Isabel Elbal Moreno v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)

text:
               1.10.2011

               EN

               Official Journal of the European Union

               C 290/3

         Reference for a preliminary ruling from the Juzgado de lo Social de Barcelona (Spain) lodged on 19 July 2011 — Isabel Elbal Moreno v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)
   (Case C-385/11)
   2011/C 290/05
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social de Barcelona

      Parties to the main proceedings

      Applicant: Isabel Elbal Moreno

      Defendants: Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)

      Questions referred

               1.

               Does a contributory retirement pension such as the one provided for under the Spanish Social Security system on the basis of the contributions made by and on behalf of the worker during his working life fall within the concept of ‘employment conditions’ to which the prohibition of discrimination in Clause 4 of [the Framework Agreement annexed to] Directive 97/81 (1) refers?

               2.

               If the first question were to be answered in the affirmative and a contributory retirement pension such as that governed by the Spanish Social Security system were to be regarded as falling within the concept of ‘employment conditions’ referred to in Clause 4 of [the Framework Agreement annexed to] Directive 97/81, is the prohibition of discrimination laid down in that clause to be interpreted as preventing or precluding national legislation which — as a consequence of the double application of the ‘pro rata temporis principle’ — requires a proportionally greater contribution period from a part-time worker than from a full-time worker for the former to qualify, if appropriate, for a contributory retirement pension in an amount reduced in proportion to the part-time nature of his work?

               3.

               As a supplementary question to the previous ones, may rules such as the Spanish rules (contained in the 7th Additional Provision of the General Law on Social Security) governing the method of contribution, access and quantification with regard to the contributory retirement pension for part-time workers be considered to be among the ‘aspects and conditions of remuneration’ to which the prohibition of discrimination in Article 4 of Directive 2006/54 (2), and Article 157 TFEU (formerly Article 141 EC), refer?

               4.

               As an alternative question to the previous ones, in the event that the Spanish contributory retirement pension were not regarded either as a ‘condition of employment’ or as ‘pay’: Is the prohibition of discrimination on ground of sex, either directly or indirectly, laid down in Article 4 of Directive 79/7 (3) to be interpreted as preventing or precluding national legislation which — as a consequence of the double application of the ‘pro rata temporis principle’ — requires a proportionally greater contribution period from part-time workers (the vast majority of whom are women) than from full-time workers for the former to qualify, if appropriate, for a contributory retirement pension in an amount reduced in proportion to the part-time nature of their work?

      (1)  Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC — Annex: Framework agreement on part-time work (OJ 1998 L 14, p. 9).

      (2)  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).

      (3)  Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).


title: Case T-553/10: Action brought on 29 November 2010 — Biodes v OHIM — Manasul Internacional (FARMASUL)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/53

         Action brought on 29 November 2010 — Biodes v OHIM — Manasul Internacional (FARMASUL)
   (Case T-553/10)
   ()
   2011/C 30/94
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Biodes S.L. (Madrid, Spain) (represented by: E. Manresa Medina, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Manasul Internacional S.L. (Ponferrada, Spain)

      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 3 September 2010 in Case R 1034/2009-1, and

               —

               order the defendant and any interveners to pay all the costs of the proceedings.

      Pleas in law and main arguments

   Applicant for a Community trade mark: The applicant

      Community trade mark concerned: Figurative mark ‘FARMASUL’ for goods in Classes 5, 30 and 31.

      Proprietor of the mark or sign cited in the opposition proceedings: Manasul Internacional S.L.

      Mark or sign cited in opposition: National figurative marks ‘MANASUL’ and ‘MANASUL ORO’ for goods in Classes 5, 30 and 31.

      Decision of the Opposition Division: Opposition rejected and mark applied for granted.

      Decision of the Board of Appeal: Appeal upheld and mark applied for refused.

      Pleas in law: Infringement of Article 8(1)(b) and (5) of Regulation (EC) No 207/2009 (1) since there is no similarity between the marks at issue, that the opponent has forgotten to examine the second licence agreement which amended the first licence agreement, and that the opposing mark’s alleged reputation is nonexistent.

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


title: JUDGMENT OF THE COURT (Sixth Chamber) of 17 December 1998 in Case C-250/97 (reference for a preliminary ruling from the Civilret, Hillerød): Dansk Metalarbejderforbund, acting on behalf of John Lauge and Others v. Lønmodtagernes Garantifond (Directive 75/129/EEC - Collective redundancies - Termination of the establishment's operations as the result of a judicial decision)

text:
20.2.1999             EN                    Official Journal of the European Communities                                   C 48/7
G. Hirsch, G. F. Mancini, H. Ragnemalm and R.                          Metalarbejderforbund, acting on behalf of John Lauge and
Schintgen        (Rapporteur),      Judges;     N.      Fennelly,      Others, and Lùnmodtagernes Garantifond Ð on the
Advocate-General; H. A. Rühl, Principal Administrator,                 interpretation of the second subparagraph of Article 3(1)
for the Registrar, has given a judgment on, in which it                and Article 4(4) of Council Directive 75/129/EEC of
held:                                                                  17 February 1975 on the approximation of the laws of the
                                                                       Member States relating to collective redundancies (OJ
                                                                       L 48, 22.2.1975, p. 29), as amended by Directive
Article 49(1)(b)(ii) of Council Regulation (EEC)                       92/56/EEC, (OJ L 245, 26.8.1992, p. 3) Ð the Court
No 1408/71 of 14 June 1971 on the application of social                (Sixth Chamber), composed of: G. Hirsch, President of the
security schemes to employed persons, to self-employed                 Second Chamber, acting as President of the Sixth
persons and to members of their families moving within                 Chamber, G. F. Mancini, J. L. Murray, H. Ragnemalm
the Community, in the version amended and updated by                   (Rapporteur) and K. M. Ioannou, Judges; G. Cosmas,
Regulation (EEC) No 2001/83, and Article 49(1)(b)(ii) of               Advocate-General; H. von Holstein, Deputy Registrar, for
Regulation (EEC) No 1408/71, in the version resulting                  the Registrar, has given a judgment on 17 December 1998,
from Regulation (EEC) No 2001/83, as amended by                        in which it has ruled:
Regulation (EEC) No 1248/92, and Regulation (EC)
No 3096/95, must be interpreted as requiring the
competent institution, where the person concerned fulfils              The second subparagraph of Article 3(1) of Article 4(4) of
the conditions laid down by one legislation for payment of             Council Directive 75/129/EEC of 17 February 1975 on
an old-age pension, albeit a limited one, without recourse             the approximation of the laws of the Member States
being necessary to periods of insurance or residence                   relating to collective redundancies, as amended by
completed under another legislation whose conditions are               Directive 92/56/EEC, must be interpreted to the effect
not fulfilled, nevertheless to take into account, in                   that the derogations provided for therein do not apply to
accordance with Article 46 of the same regulation, periods             collective redundancies occurring on the same day as that
completed under the latter legislation where, as a result,             on which the employer files a winding-up petition and
an old-age benefit of a higher amount may be awarded up                terminates the undertaking's activities, and the competent
until such time as the conditions laid down under the                  court subsequently, and without any deferment other than
latter legislation are also fulfilled.                                 that resulting from the date which it sets for the hearing,
                                                                       issues a winding-up order pursuant to the winding-up
(1) OJ C 252, 16.8.1997.                                               petition, that order taking effect for a number of purposes
                                                                       from the date on which the petition was filed.
                                                                       (1) OJ C 252, 16.8.1997.
                JUDGMENT OF THE COURT
                        (Sixth Chamber)
                     of 17 December 1998
                                                                                JUDGMENT OF THE COURT
in Case C-250/97 (reference for a preliminary ruling from
the Civilret, Hillerùd): Dansk Metalarbejderforbund,                                          (Fifth Chamber)
acting on behalf of John Lauge and Others v.                                               of 17 December 1998
                Lùnmodtagernes Garantifond (1)
                                                                       in Case C-306/97 (request for a preliminary ruling from
(Directive 75/129/EEC Ð Collective redundancies Ð                      the High Court): Connemara Machine Turf Co. Ltd v.
Termination of the establishment's operations as the result                                 Coillte Teoranta (1)
                     of a judicial decision)
                                                                       (Public supply contracts Ð Definition of contracting
                         (1999/C 48/13)
                                                                                authority)
                                                                                (1999/C 48/14)
                 (Language of the case: Danish)
                                                                                (Language of the case: English)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                       In Case C-306/97: Reference to the Court under
                                                                       Article 177 of the EC Treaty by the High Court (Ireland)
In Case C-250/97: reference to the Court under Article 177             for a preliminary ruling in the proceedings pending before
of the EC Treaty from the Civilret (Civil Court),                      that court between Connemara Machine Turf Co. Ltd and
Hillerùd (Denmark), for a preliminary ruling in the                    Coillte Teoranta Ð on the interpretation of Article 1 of
proceedings pending before that court between Dansk                    Council Directive 77/62/EEC of 21 December 1976


title: Case T-345/16: Action brought on 27 June 2016 — Blackmore v EUIPO — Paice (DEEP PURPLE)

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/29

         Action brought on 27 June 2016 — Blackmore v EUIPO — Paice (DEEP PURPLE)
   (Case T-345/16)
   (2016/C 314/40)
   Language in which the application was lodged: English

      Parties

      Applicant: Richard Hugh Blackmore (New York, New York, United States) (represented by: A. Edwards-Stuart, Barrister)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Ian Paice (London, United Kingdom)

      Details of the proceedings before EUIPO

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘DEEP PURPLE’ — Application for registration No 11 772 721

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 21 March 2016 in Case R 880/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               overturn the contested decision and allow the appeal;

               —

               order EUIPO to pay the applicant’s costs of and occasioned by this appeal.

      Pleas in law

               —

               The Board of Appeal erred in admitting the evidence filed on 5 November 2014;

               —

               The Board of Appeal erred in finding that there was sufficient evidence of goodwill on the basis of the evidence filed in time;

               —

               The Board of Appeal erred in holding that the evidence was sufficient to establish that the Opponent is entitled to a share in any goodwill.


title: Case T-4/02: Action brought on 16 January 2002 by Arca Delio eredi and Others against Commission of the European Communities

text:
C 56/20               EN                      Official Journal of the European Communities                                      2.3.2002
Action brought on 16 January 2002 by Arca Delio                          Sardinian agricultural undertakings which had made invest-
eredi and Others against Commission of the European                      ments involving financial commitments which they were not
                         Communities                                     able to honour for various reasons, such as prolonged periods
                                                                         of drought, crises in the markets, lack of organisation in the
                         (Case T-4/02)                                   marketing stage of the products and high interest rates.
                        (2002/C 56/36)                                   In support of their arguments, the applicants allege infringe-
                                                                         ment and misapplication of Articles 87 and 88 of the Treaty,
                  (Language of the case: Italian)                        the ‘specific Commission practice for aid to farms in difficulty’,
                                                                         the ‘Community guidelines on State aid for rescuing and
                                                                         restructuring firms in difficulty’, Commission decision on ‘de
An action against the Commission of the European Communi-                minimis’ aid No 96/C/68/06, Council Regulation (EC)
ties was brought before the Court of First Instance of the               No 994/98 of 7 May 1998 on the application of Articles 92
European Communities on 16 January 2002 by the abovemen-                 and 93 of the Treaty establishing the European Community to
tioned applicants, represented by Costantino Murgia and                  certain categories of horizontal State aid, (1) and Commission
Andrea Delitala, lawyers.                                                Regulation (EC) No 69/2001 of 12 January 2001 on the
                                                                         application of Articles 87 and 88 of the EC Treaty to de minimis
                                                                         aid; (2) the applicants also allege misuse of powers.
The applicants claim that the Court should:
—     uphold the present application; annul the contested                The applicants point out, in particular, the extremely serious
      decision; and make an appropriate order as to costs.               situation of the recipient undertakings, the situation in which
                                                                         Sardinia finds itself from the point of view of its economic
                                                                         development, the little likelihood that the aid scheme in issue
                                                                         will have an impact on trade or compromise or distort the
Pleas in law and main arguments
                                                                         rules on competition, and the fact that the assistance granted
                                                                         amounts to less than EUR 100 000 for each recipient, a
The applicants in the present case are challenging the decision          threshold deemed admissible and which is not harmful to
of the Commission relating to aid in the form of consolidation           competition under the de minimis applicable in State aid
loans, granted by the Sardinia Region to certain farmers and             matters. Furthermore, so far as concerns the practice for aid to
agricultural undertakings established there. In the contested            farms in difficulty, the applicants state that the aid was
decision, the defendant finds that Italy has failed to fulfil its        intended to cover earlier contractual obligations relating to
obligation to give prior notification of the aid measures at the         investments, does not exceed the levels or the rates laid down
draft stage, implemented those same measures before the                  by the Commission for the agricultural products processing
Commission has given its opinion and granted aid incompat-               and marketing sector, bearing in mind that Sardinia is an
ible with the common market within the meaning of Article 92             Objective 1 area, and that the aid in issue was also intended to
(now Article 87) of the Treaty and which does not, moreover,             offset fluctuations in currency values and was granted to the
meet the exemption conditions provided for by Article 87(2)              applicants as owners of farms which are sufficiently likely to
and (3).                                                                 regain economic viability.
The aid which constitutes the subject matter of the present              (1) OJ L 142, 1998, p. 1.
case was granted in response to the crisis being faced by                (2) OJ L 10, 2001, p. 30.


title: Case C-180/14: Judgment of the Court (Ninth Chamber) of 23 December 2015 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2003/88/EC — Organisation of working time — Daily rest — Weekly rest — Maximum weekly working time)

text:
               22.2.2016

               EN

               Official Journal of the European Union

               C 68/6

         Judgment of the Court (Ninth Chamber) of 23 December 2015 — European Commission v Hellenic Republic
   (Case C-180/14) (1)

   ((Failure of a Member State to fulfil obligations - Directive 2003/88/EC - Organisation of working time - Daily rest - Weekly rest - Maximum weekly working time))
   (2016/C 068/07)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: M. Patakia and M. van Beek, acting as Agents)

      Defendant: Hellenic Republic (represented by: A. Samoni-Rantou, N. Dafniou and S. Vodina, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to implement an average weekly working time of not more than 48 hours and by failing to ensure a minimum daily rest period or an equivalent period of compensatory rest which directly follows the working time which that period is supposed to compensate for, the Hellenic Republic has failed to fulfil its obligations under Articles 3 and 6 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 184, 16.6.2014.


title: Action brought on 23 February 1995 by Heracles General Cement Company against the Commission of the European Communities (Case T-57/95)

text:
No C 119/20              EN                 Official Journal of the European Communities                                    13 . 5 . 95
        4. breach of the principle of equitable treatment of the                practices and monopolies, in which it is understood
             undertakings with respect to the ecu exchange rate                 but cannot be proven by the applicant, that the
             to be applied for the fines .                                      following paragraph appears (which does not
                                                                                appear in the adopted Decision ):
                                                                                'Account should be taken of the Greek producers '
                                                                                argument that they were constrained by
Action brought on 23 February 1995 by Heracles General                          circumstances to sign the contracts with certain
Cement Company against the Commission of the European                           European producers on the sale of cement and
                             Communities                                        clinker. Consequently, the Commission considers
                           (Case T-57/95 )                                      that it should not impose fines on Titan and
                                                                                Heracles in respect of the agreements and concerted
                            ( 95/C 119/42 )                                     practices relating to the purchases of Greek cement
                                                                                and clinker referred to to in point 56 .'
                  (Language of tbe case: English)
                                                                           and
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 23 February by                 — order that the Commission pay the applicant's costs.
Heracles General Cement Company, represented by
Mr Kostas Loukopoulos, Mr Sebastian Farr and Mr Ciaran
Walker with an address for service in Luxembourg at the                Pleas in law and main arguments adduced in support:
chambers of Me Jos Stoffel, 8 , Rue Willy Goergen, L-1636
Luxembourg.                                                            1 . The Commission's Decisions was adopted in breach of a
                                                                           number of essential procedural requirements, in
The applicant claims that the Court should :                               particular, the right to a fair hearing.
— review under Article 173 of the EC Treaty the legality of
    the Commission Decision of 30 November 1994 ( J ) and              2 . The applicant was denied an adequate opportunity to
    declare it void or annul it under Article 174 of the EC                make its views on the objections raised against it known
    Treaty, on the grounds of infringement of the EC Treaty                to the Commission. Neither the applicant's response to
    and the rules of law relating to its application and of                the Statement of Objections nor those minutes of the
    infringement of essential procedural requirements,                     oral hearing which relate to interventions made by the
                                                                           applicant was translated from the Greek original within
— cancel under Article 172 of the EC Treaty the fine                       the Commission. Accordingly, the issues raised by the
    imposed on the applicant, or to significantly reduce                   applicant in these documents were not properly taken
    it:                                                                    into account.
      ( i ) in the event that the Court decides that the
                                                                       3 . The Commission's Decision was adopted in breach of
            application under Article 173 is well-founded, the
                                                                           Article 190 of the EC Treaty.The European Commission
            fine should be cancelled;
                                                                           has failed to provide adequate reasoning to support its
    (ii) if, on the other hand, the Court were to uphold the               central conclusions, in particular, that:
            Decision, in whole or in part, the applicant submits
            that the fine should nevertheless be substantially             — the various arrangements to which the applicant was
            reduced,                                                           a party amounted to a 'single and continuous
                                                                               agreement',
— order, under Articles 65 and 66 of the Rules of
    Procedure of the Court, the Commission to produce all
    internal notes, memoranda and draft documents                          — the applicant 'participated indirectly' in the
    prepared by Members of the Commission or Officials or                      Cembureau agreement,
    the Commission, minutes of the Commission's meetings
    and opinions of the Advisory Committee on restrictive                  — the purpose of the contracts in which the applicant
    practices and monopolies, meetings relating to:                            was specifically involved (Holderbank, Lafarge,
                                                                               CBR, as mentioned above ) was to prevent direct
      (i ) the dissemination of the applicant's defence, as set                sales by the applicant on the European market.
            out in its response to the Statement of Objections
            and minutes of the oral hearing, within the
            Commission and the Advisory Committee on                   4. The Commission's Decision was adopted in breach of
            restrictive practices and monopolies, in languages             the fundamental Community principle of non
            other than the original Greek version;                         discrimination, in that the Commission has failed to
                                                                           assess the applicant's circumstances individually,
    ( ii ) the calculation of the amount of the applicant's fine,          despite the fact that the applicant's circumstances were
            in particular the Commission's draft Decisions                 radically different to those of the other addressees of the
            presented to the Advisory Committee on restrictive             Decision.
 ---pagebreak--- 13 . 5 . 95          LM                    Official Journal of the European Communities                              No C 119/21
5 . In assessing the role of the applicant, the Commission            Pleas in law and main arguments adduced in support:
     failed to properly appreciate the fact that the applicant
     was a victim of a continued abuse of a collective                The applicant relies upon the following grounds:
     dominant position by the members of the European
     Task Force, a grouping of the major European                       I. Breach of essential procedural requirements:
     producers, whose aim was to prevent exports from
     Greece to the rest of the Community.                                  1 . Infringement of Article 19 of Regulation No 17,
                                                                               Articles 2, 3 and 4 of Regulation No 99/63 and
6. The Commission has not sufficiently shown in law that                       Article 3 of Regulation No 1 on the following
     the applicant participated in a 'single and continuous'                   grounds:
     agreement relating to the principle of non-transhipment
     to home markets .                                                         (a ) Sending a Statement of Objections lacking
                                                                                clarity, vitiated by lack of coherency and
                                                                                unclear as to the period to which the
7. The Commission has incorrectly interpreted the
                                                                                objections relate;
     activities of the Export Policy Committee and the role of
     the applicant within it.                                                  ( b ) Incomplete notification of the Statement of
                                                                                Objections and refusal to give access to the
8 . The fine imposed on the applicant is based on an                                 whole of the file;
     erroneous assessment of the facts and clear breach of the
     rule of law. In any event it is excessive.                                (c) Inadequate access to the file;
(!) OJ No L 343 , 30 . 12 . 1994, p. 1 .                                       ( d ) Notification of documents not written in
                                                                                Spanish;
                                                                               (e) Failure to be allowed to participate in the
                                                                                hearing;
                                                                               ( f) Substantial amendment of the objections
                                                                                without sending a new Statement of
Action brought on 23 February 1995 by Corporacion                                    Objections and without granting the parties
Uniland SA against the Commission of the European                                    the opportunity to state their opinion in that
                            Communities
                                                                                regard.
                          (Case T-58/95 )
                           ( 95/C 119/43 )                                 2. Infringement of Article 1 0 of Regulation No 1 7: thé
                                                                               Commission did not inform the Advisory
                                                                               Committee of the amount of the fines to be
                 (Language of the case: Spanisb)                               imposed by the Decision.
An action against the Commission of the European                       II. Improper application of Article 85 of the EC
Communities was brought before the Court of First                          Treaty:
Instance on 23 February 1995 by Corporacion Uniland SA
represented by Luis de Carlos Bertrân and Edurne Navarro                   1 , as regards the so-called 'Cembureau Agreement',
Varona, of the Barcelona Bar, with an address for service                      the Commission has failed to prove either the
in Luxembourg at the Chambers of Bonn & Schmitt,                               existence, or the unitary and continuous nature, or
62 Avenue Guillaume,                                                           the duration of the alleged agreement;
                                                                           2, as regards the 'European Task Force', the
The applicant claims that the Court should:                                     Commission has failed to prove that the ETF
                                                                               constituted an agreement contrary to Article 85 of
— annul in whole Commission Decision 94/815/EC of                              the EC Treaty, or that the applicant participated in
     30 November 1994 relating to a proceeding under                           the agreement setting up the ETF, or the duration of
     Article 85 of the EC Treaty ( Cases IV/33.126 and                         the alleged agreement;
     33.322 — Cement),
                                                                           3 , as regards Interciment, the Commission has failed
                                                                                to prove either that the applicant was party to the
— in the alternative, annul Articles 1 , 4 ( 1 ), 4 ( 2 ) and 4 ( 3 )
                                                                                agreement relating to the constitution of
     (a ) and 9 of the aforementioned Decision in so far as they                Interciment or the duration of such agreement;
     affect the applicant,
                                                                           4, as regards the defence measures for the Italian
— as a subsidiary plea, reduce the amount of the fine                           market, the Commission has failed to prove the
     imposed on the applicant, set out in Article 9 of the                      existence of concerted practices intended to avoid
     Decision,                                                                  Calestruzzi being a customer for Greek producers
                                                                                or the participation of the applicant in the
— order the Commission to pay the costs .                                       aforementioned alleged practices.


title: Case T-499/13: Judgment of the General Court of 5 February 2015  — nMetric LLC v OHIM (SMARTER SCHEDULING) (Community trade mark — International registration designating the European Community — Word mark SMARTER SCHEDULING — Absolute ground for refusal — Lack of distinctiveness — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               23.3.2015

               EN

               Official Journal of the European Union

               C 96/17

         Judgment of the General Court of 5 February 2015 — nMetric LLC v OHIM (SMARTER SCHEDULING)
   (Case T-499/13) (1)

   ((Community trade mark - International registration designating the European Community - Word mark SMARTER SCHEDULING - Absolute ground for refusal - Lack of distinctiveness - Article 7(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 096/21)
   Language of the case: English

      Parties

      Applicant: nMetric LLC (Costa Mesa, California, United States) (represented by: T. Fuchs and A. Münch, lawyers)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 17 June 2013 (Case R 887/2012-2), concerning the international registration, designating the European Community, of the word mark SMARTER SCHEDULING.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders nMetric LLC to pay the costs.

      (1)  OJ C 344, 5.2.13.


title: Case C-87/01 P: Appeal brought on 21 February 2001 by the Commission of the European Communities against the judgment delivered on 14 December 2000 by the Fourth Chamber of the Court of First Instance of the European Communitics in Case T-105/99 between the Council of European Municipalities and Regions (CEMR) and the Commission of the European Communities

text:
C 150/10                  EN                   Official Journal of the European Communities                                        19.5.2001
Pleas and main arguments                                                  —    Infringement of Article 88 EC
                                                                               In criticising the Commission for not considering whether
                                                                               La Poste was in receipt of aid from the French State, the
—     Infringement of Article 87 EC                                            Court of First Instance encourages the Commission to act
                                                                               in breach of the procedure set out in Article 88(2) and in
                                                                               disregard of the French Government’s right to a fair
                                                                               hearing.
      Contrary to the position maintained by the Court of First
      Instance, the existence of aid for the purposes of                       The Court of First Instance also rebukes the Commission
      Article 87 presupposes not only that an advantage be                     for failing to determine whether or not La Poste charged
      conferred on an undertaking but also that that advantage                 its subsidiary not only its total costs but also the difference
      be financed directly or indirectly through State resources.              between those and the costs which would have been
                                                                               borne by La Poste if it had been a private operator with
                                                                               no reserved market. In so doing, the Court of First
                                                                               Instance confuses procedures, out of a desire to ensure
      In holding that the Commission was under a duty to                       that the entry on to a competitive market of a subsidiary
      consider whether La Poste’s reserved rights in the ordinary              of a public undertaking is made in ‘normal’ conditions.
      mail sector enabled it to save so much on costs that its
      charges for its services did not have to be based on
      ‘normal market conditions’, the Court of First Instance is
      requiring the Commission to search for the causes of
      postulated aid, whereas the Court has consistently held
      that aid is not identified by its causes or the reasons for
      State intervention, but by its effects.
                                                                          Appeal brought on 21 February 2001 by the Commission
      Taking the criterion of the behaviour of a private investor         of the European Communities against the judgment deliv-
      or operator, the Court of First Instance applies it, not to         ered on 14 December 2000 by the Fourth Chamber of the
      the market in which the subsidiary conducts its business            Court of First Instance of the European Communitics
      and in which the services provided by the parent company            in Case T-105/99 between the Council of European
      were used, but to the quite separate market in which the            Municipalities and Regions (CEMR) and the Commission
      parent company itself operates. Then it distorts once                                of the European Communities
      again the rule set out in Article 87 EC by disregarding the
      ‘real life’ situation of public operators and contemplating
      instead the situation of private operators as it ideally                                     (Case C-87/01 P)
      should be, that is to say, it constructs a picture of an ideal
      market on which an ideal form of competition is at play.
      That approach, indirectly but inexorably, calls in question                                  (2001/C 150/19)
      the policies and measures adopted in recent years in
      connection with the opening up of sectors previously not
      exposed to competition. Ultimately, it would mean that,             An appeal against the judgment delivered on 14 December
      even through the creation of subsidiaries and with                  2000 by the Fourth Chamber of the Court of First Instance of
      due respect for the principle of transparency, public               the European Communities in Case T-105/99 between the
      undertakings would no longer be able to compete on                  Council of European Municipalities and Regions (CEMR) and
      those new markets. Also, to accept as a premiss that, in            the Commission of the European Communities was brought
      the case of the public service managed by La Poste, La              before the Court of Justice of the European Communities on
      Poste’s reserved rights constitute ‘State aid’ which enables        21 February 2001 by the Commission of the European
      it to cut operating costs and which can be passed on to             Communities, represented by P. Oliver and H.M.H. Speyart,
      its subsidiary in the form of undercharging for services,           acting as Agents, with an address for service in Luxembourg.
      implies a premature finding that La Poste receives State
      aid for discharging its public service responsibilities and
      that this must be removed so that the benefit cannot be             The appellant claims that the Court should:
      passed on to its subsidiary. That is tantamount to calling
      in question, contrary to Article 16 EC, the subsidising of
                                                                          —    set aside the judgment delivered by the Court of First
      public services; although, in any event, Article 87 EC
                                                                               Instance on 14 December 2000 in Case T-105/99 and
      should not be applied to such funding, by virtue of
                                                                               draw all the legal consequences of the setting aside of
      Article 86(2) EC. Lastly, the approach adopted by the
                                                                               that judgment;
      Court of First Instance appears at odds with the provisions
      of Article 86(1) and 82 EC which endorse a costs-based
      approach in relation to the fixing of rates for access to           —    order the applicant at first instance to pay the costs of the
      the network.                                                             present appeal.
 ---pagebreak--- 19.5.2001              EN                      Official Journal of the European Communities                                       C 150/11
Pleas in law and main arguments                                           Appeal brought on 26 February 2001 by the French
                                                                          Republic against the judgment delivered on 14 December
—     Breach of the principle of Community law relating to the            2000 by the Fourth Chamber (Extended Composition) of
      concept of set-off between claims: the distinction drawn            the Court of First Instance of the European Communities
      by the Court of First Instance between ‘actual payment’             in Case T-613/97 between Union Française de l’Express
      and payment by means of set-off does not exist in law,              (UFEX), DHL International, Federal Express International
      since those two methods of payment have the same legal              (France), CRIE and the Commission of the European
      and accounting consequences.                                        Communities, supported by the French Republic, Chrono-
                                                                                post SA and La Poste
—     Breach of the principle of the effectiveness of Community
      law: the Court of First Instance was wrong in concentrat-
      ing on the proper carrying out of the activities relating to
      the payments made by means of set-off without dwelling                                       (Case C-93/01 P)
      on the need to protect the Communities’ financial
      interests. The Court of First Instance did not explain,
      moreover, why set-off is more damaging, in respect of                                        (2001/C 150/21)
      the carrying out of the activities at issue, than enforced
      recovery. By stating that the non-payment of the sums
      intended for the activities at issue jeopardised the carrying       An appeal against the judgment delivered on 14 December
      out of those activities, the Court of First Instance distorted      2000 by the Fourth Chamber (Extended Composition) of the
      the facts or failed, at least, to state the reasons for its         Court of First Instance of the European Communities in Case
      observations whereas, indeed, it stated that the CEMR               T-613/97 between Union Française de l’Express (UFEX), DHL
      was not insolvent.                                                  International, Federal Express International (France), CRIE and
                                                                          the Commission of the European Communities, supported by
—     Breach of the principles of sound financial management              the French Republic, Chronopost SA and La Poste, was brought
      and the sound administration of justice: the Court of First         before the Court of Justice of the European Communities on
      Instance failed to take account of the main purpose of              26 February 2001 by the French Republic, represented by
      set-off, which is economy of procedure and the saving of            G. de Bergues and F. Million, acting as Agents, with an address
      costs, not only in the context of mutual financial                  for service in Luxembourg.
      obligations, but also in the context of the sound adminis-
      tration of justice.
                                                                          The appellant claims that the Court should:
                                                                          —     set aside the judgment of the Court of First Instance;
Reference for a preliminary ruling by the Monomeles
Dioikitiko Protodikeio Irakliou (Second Chamber) by                       —     order the UFEX to pay the costs incurred in the proceed-
judgment of that court of 31 October 2000 in the case of                        ings before the Court of Justice and make a fresh ruling
             G. Stilianakis against the Greek State                             in relation to the costs incurred in the proceedings before
                                                                                the Court of First Instance.
                           (Case C-92/01)
                          (2001/C 150/20)
                                                                          Pleas and main arguments
Reference has been made to the Court of Justice of the
European Communities by judgment of the Monomeles Dioiki-
tiko Protodikeio Irakliou (Administrative Court of First                  —     Misinterpretation of ‘normal market conditions’: The
Instance, Heraklion), Second Chamber, of 31 October 2000,                       Court of First Instance erred in holding that when the
received at the Court Registry on 22 February 2001, for a                       Commission carried out an analysis of the economic
preliminary ruling in the case of G. Stilianakis against the                    factors on the basis of which it was considered possible
Greek State on the following question:                                          to assess whether remuneration was ‘normal’, it should
                                                                                have taken into account the implications for La Poste’s
Are Articles 8a and 59 of the EC Treaty and Article 3(1) of                     costs — hence on the remuneration requested from its
Council Regulation No 2408/92 (1) to be interpreted as                          subsidiary — of its structural situation (its reserved
prohibiting a Member State from imposing a differentiated                       sector).
fiscal charge on domestic and intra-Community flights with
the direct result that an amount of tax is charged on intra-
Community flights double that on flights within the Member                      The approach espoused by the Court of First Instance has
State?                                                                          no basis in reality, since a private operator with no
                                                                                reserved activities would never wish to equip itself with a
                                                                                network like the La Poste network, which was developed
(1) OJ L 240 of 24.8.1992, p. 8.                                                solely to meet the needs of the reserved sector. Moreover,
                                                                                no private operator desires access to the La Poste network,
                                                                                despite the allegedly cheaper rates offered.


title: Case C-61/11 PPU: Judgment of the Court (First Chamber) of 28 April 2011 (reference for a preliminary ruling from the Corte d’appello di Trento — Italy) — Criminal proceedings against Hassen El Dridi alias Karim Soufi (Area of freedom, security and justice — Directive 2008/115/EC — Return of illegally staying third-country nationals — Articles 15 and 16 — National legislation providing for a prison sentence for illegally staying third-country nationals in the event of refusal to obey an order to leave the territory of a Member State — Compatibility)

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/8

         Judgment of the Court (First Chamber) of 28 April 2011 (reference for a preliminary ruling from the Corte d’appello di Trento — Italy) — Criminal proceedings against Hassen El Dridi alias Karim Soufi
   (Case C-61/11 PPU) (1)

   (Area of freedom, security and justice - Directive 2008/115/EC - Return of illegally staying third-country nationals - Articles 15 and 16 - National legislation providing for a prison sentence for illegally staying third-country nationals in the event of refusal to obey an order to leave the territory of a Member State - Compatibility)
   2011/C 186/14
   Language of the case: Italian

      Referring court

   Corte d’appello di Trento

      Party in the main proceedings

   Hassen El Dridi alias Karim Soufi

      Re:

   Reference for a preliminary ruling — Corte di Apello di Trento — Interpretation of Articles 15 and 16 of Directive 2008/115/EC of the European Parliament and of the Council 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) — Return of illegally staying third-country nationals — Conditions of detention for the purpose of removal — Direct applicability — National legislation providing for a sentence of up to four years’ imprisonment for a third-country national who, after a removal order has been issued, continues to stay illegally in national territory

      Operative part of the judgment

   Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular Articles 15 and 16 thereof, must be interpreted as precluding a Member State’s legislation, such as that at issue in the main proceedings, which provides for a sentence of imprisonment to be imposed on an illegally staying third-country national on the sole ground that he remains, without valid grounds, on the territory of that State, contrary to an order to leave that territory within a given period.

      (1)  OJ C 113, 9.4.2011.


title: Case T-335/14: Judgment of the General Court of 28 January 2016 — Davó Lledó v OHIM — Administradora y Franquicias América and Inversiones Ged (DoggiS) (Community trade mark — Invalidity proceedings — Community figurative mark DoggiS — Prior national figurative marks DoggiS — Prior national word marks DOGGIS and DOGGIBOX — Prior national figurative marks representing a person in the shape of a hot-dog — Additional evidence adduced for the first time before the Board of Appeal — Article 76 of Regulation (EC) No 207/2009 — Bad faith — Article 52(1)(b) of Regulation No 207/2009 — Evidence adduced for the first time before the General Court)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/36

         Judgment of the General Court of 28 January 2016 — Davó Lledó v OHIM — Administradora y Franquicias América and Inversiones Ged (DoggiS)
   (Case T-335/14) (1)

   ((Community trade mark - Invalidity proceedings - Community figurative mark DoggiS - Prior national figurative marks DoggiS - Prior national word marks DOGGIS and DOGGIBOX - Prior national figurative marks representing a person in the shape of a hot-dog - Additional evidence adduced for the first time before the Board of Appeal - Article 76 of Regulation (EC) No 207/2009 - Bad faith - Article 52(1)(b) of Regulation No 207/2009 - Evidence adduced for the first time before the General Court))
   (2016/C 098/47)
   Language of the case: Spanish

      Parties

      Applicant: José-Manuel Davó Lledó (Cartagena, Spain) (represented by: J.-V. Gil Martí, lawyer)

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

      Other parties to the proceedings before the Board of Appeal of OHIM: Administradora y Franquicias América, SA (Santiago, Chile) and Inversiones Ged Ltda (Santiago)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 13 March 2014 (Case R 1824/2013-1) concerning invalidity proceedings between, on the one hand, Administradora y Franquicias América, SA and Inversiones Ged Ltda and, on the other, Mr José-Manuel Davó Lledó

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr José-Manuel Davó Lledó to pay the costs.

      (1)  OJ C 253, 4.8.2014.


title: Case C-1/16: Order of the President of the Court of 15 February 2017 (request for a preliminary ruling from the Audiencia Provincial de A Coruña — Spain) — Abanca Corporación Bancaria SA v María Isabel Vázquez Rosende

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/13

         Order of the President of the Court of 15 February 2017 (request for a preliminary ruling from the Audiencia Provincial de A Coruña — Spain) — Abanca Corporación Bancaria SA v María Isabel Vázquez Rosende
   (Case C-1/16) (1)

   (2017/C 129/17)
   Language of the case: Spanish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 98, 14.3.2016.


15.8.98               EN                Official Journal of the European Communities                                 C 258/39
In the applicant's view, the notice of competition breaches        breached its obligations by failing to provide her with the
the principle of equal treatment, inasmuch as it excludes          working environment and support necessary in order to
from participation in the selection procedure officials            enable her satisfactorily to complete the tasks assigned to
possessing experience equivalent to that offered by                her.
officials who, at the time of publication of the notice of
competition, were employed in posts similar to the posts           The report prepared in relation to the applicant at the
to be filled.                                                      expiry of her probationary period is vitiated by a manifest
Lastly, the applicant argues that the contested decision is        error of assessment, inasmuch as it concerns duties
vitiated by a complete absence of any relevant statement           completely different from those for which she was
of reasons enabling him to consider whether it was                 recruited.
justified and permitting the Community judicature to
exercise it powers of review.                                      According to the applicant, the defendant has breached
                                                                   the rights of the defence and has committed an abuse of
                                                                   process, since it is only the Centre itself which is
                                                                   competent to adopt a decision dismissing a person and the
                                                                   decision adopted by the Director alone is therefore illegal.
                                                                   Finally, the defendant has not respected the notice periods
Action brought on 30 June 1998 by Tania Trigari-                   laid down by the Conditions of Employment of Other
Venturin against the Translation Centre for Bodies of              Servants and by the signed contract of employment
                     the European Union                            binding the parties.
                        (Case T-98/98)
                         (98/C 258/70)                             As regards the compensation claimed, the defendant's
                                                                   conduct has placed the applicant in a position of
                (Language of the case: French)
                                                                   uncertainty and has caused her to suffer concrete material
An action against the Translation Centre for Bodies of             damage, since she has been deprived of part of the
the European Union was brought before the Court of                 unemployment benefits to which she is entitled.
First Instance of the European Communities on 30 June
1998 by Tania Trigari-Venturin, residing at Sandweiler
(Luxembourg), represented by Jean-NoeÈl Louis, VeÂronique
Leclercq, Ariane Tornel and FrancËoise Parmentier, of the
Brussels Bar, with an address for service in Luxembourg at
the offices of Fiduciaire Myson SARL, 30 Rue de                           Removal from the register of Case T-229/95 (1)
Cessange.
                                                                                (98/C 258/71)
The applicant claims that the Court should:
                                                                                (Language of the case: Italian)
Ð annul the decision of the Translation Centre for Bodies
     of the European Union of 9 October 1997 dismissing
     the applicant with effect from 31 October 1997;               By order of 16 June 1998, the President of the Fourth
                                                                   Chamber (Extended) of the Court of First Instance of the
Ð order the defendant to pay to the applicant the token            European Communities has ordered the removal from the
     sum of one euro by way of compensation for the non-           register of Case T-229/95: Telecom Italia Mobile SpA v
     material damage suffered by her, together with                Commission of the European Communities.
     compensation for the material damage suffered by her
     in the estimated sum of BFR 500 000, subject to               (1) OJ C 46 of 17.2.1996.
     increase or decrease during the course of the
     proceedings;
Ð order the defendant to pay default interest on all sums
     due pursuant to the judgment to be given, calculated
     at the rate of 8 % per annum from the date on which
     the social benefits to which the applicant is entitled               Removal from the register of Case T-128/97 (1)
     became due until the date of payment;                                                 (98/C 258/72)
Ð order the defendant to pay the costs.
                                                                                (Language of the case: French)
Pleas in law and main arguments adduced in support:
                                                                   By order of 17 June 1998 the President of the Second
The applicant considers that, by adopting its decision to
                                                                   Chamber of the Court of First Instance of the European
dismiss her, the defendant infringed Articles 9 and 10 of
                                                                   Communities has ordered the removal from the register of
the Conditions of Employment of Other Servants and
                                                                   Case T-128/97: Lars Bösche v European Parliament.
breached the principle that a person's grade should be
consistent with the duties to be performed by that person,
in that it assigned to the applicant tasks of a higher level       (1) OJ C 212 of 12.7.1997.
than those for which she had been recruited, and failed to
draw up a rider to her contract. The defendant further


title: Case T-21/01: Action brought on 26 January 2001 by Georgios S. Zavvos against Commission of the European Communities

text:
C 79/26                 EN                     Official Journal of the European Communities                                     10.3.2001
       —    24 000 000 euro for loss of the chance of being               The applicant claims that the Court should:
            awarded the contract in issue;
                                                                          —     annul the decision of the appointing authority of 11 Janu-
       —    63 000 euro for the expenses and ancillary costs                    ary 2001 imposing on the applicant the disciplinary
            agreed to in the context of participation in the                    measure of downgrading from A 5 to A 6, on the same
            restricted invitation to tender;                                    step, as provided for in Article 86(2)(e) of the Staff
                                                                                Regulations;
       —    2 000 000 euro for the non-material damage suf-
            fered by the applicant;                                       —     order the Commission to compensate him for material
                                                                                and non-material damage, provisionally assessed, with all
—      order the defendant to pay all the costs.                                manner of reservations, at EUR 1 350 000;
                                                                          —     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                          Pleas in law and main arguments
The applicant in the present case, the subject-matter of which
is the same as in Case T-205/00 Renco v Council (1), seeks full
compensation for the damage suffered by it as a result of the             The applicant contests the disciplinary measure imposed on
irregularities established in the award of a public contract for          him following alleged irregularities committed in the course of
general installation and maintenance works to be carried out              his duties as Head of the Delegation of the European Com-
in the buildings of the Council following the issue of invitation         mission in Bratislava (Slovak Republic).
to tender No 99/S 146-107865/FR of 30 July 1999.
                                                                          In support of his claims, he puts forward the following pleas
It is alleged that the Council has incurred liability on account          in law:
of, in particular, its failure to comply with the requirements
imposed by Directive 93/37/EEC (2), which applies to the                  —     Breach of the rights of the defence and of the disciplinary
contract in issue. The applicant also complains that the Council                procedure.
disappointed the legitimate expectations of the tenderers
concerning the selection criteria actually applied in the                 —     Lack of a statement of reasons and erroneous statement
decision-making process.                                                        of reasons.
(1) OJ C 285 of 7.10.2000, p. 19.                                         —     Manifest error of assessment of the facts giving rise to a
(2) Council Directive 93/37/EEC of 14 June 1993 concerning the                  misassessment of law.
    coordination of procedures for the award of public works
    contracts.                                                            —     Breach of the principle of proportionality.
Action brought on 26 January 2001 by Georgios S. Zavvos                   Action brought on 26 January 2001 by Petros Efthymiou
     against Commission of the European Communities                           against Commission of the European Communities
                          (Case T-21/01)                                                          (Case T-22/01)
                          (2001/C 79/46)                                                          (2001/C 79/47)
                    (Language of the case: French)                                          (Language of the case: French)
An action against the Commission of the European Communi-                 An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                ties was brought before the Court of First Instance of the
European Communities on 26 January 2001 by Georgios                       European Communities on 26 January 2001 by Petros Efthy-
S. Zavvos, residing in Linkebeek (Belgium), represented by                miou, residing in Luxembourg, represented by Jean-Noël Louis
Georges Vandersanden and Laure Levi, Avocats, with an                     and Véronique Peere, avocats, with an address for service in
address for service in Luxembourg.                                        Luxembourg.


title: Case C-529/15: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 7 October 2015 — Gert Folk

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/27

         Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 7 October 2015 — Gert Folk
   (Case C-529/15)
   (2015/C 406/27)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Gert Folk

      Defendant: Unabhängiger Verwaltungssenat für die Steiermark

      Questions referred

               1.

               Does Directive 2004/35/EC (1) of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, as amended by Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 and by Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 (OJ 2009 L 140, p. 114), (‘the Environmental Liability Directive’) apply also to damage which, although it arises after the date specified in Article 19(1) of the Environmental Liability Directive, none the less results from the operation of a facility (a hydroelectric power station) authorised and brought into operation prior to that date and is covered by an authorisation granted under the law governing matters relating to water?

               2.

               Does the Environmental Liability Directive, in particular Articles 12 and 13 thereof, stand in the way of a national provision which precludes persons holding fishing rights from initiating a review procedure within the meaning of Article 13 of the Environmental Liability Directive in relation to environmental damage as defined in Article 2(1)(b) of the Directive?

               3.

               Does the Environmental Liability Directive, in particular Article 2(1)(b) thereof, preclude a national provision which excludes damage that has a significant adverse effect on the ecological, chemical or quantitative status or ecological potential of the water in question from the notion of ‘environmental damage’, in the case where that damage is covered by an authorisation granted under a national legislative provision?

               4.

               If Question 3 is answered in the affirmative:

         In cases where, in the granting of an authorisation under provisions of national law, no assessment has been made of the criteria laid down by Article 4(7) of Directive 2000/60/EC (or of the national measures implementing it), is, for the purpose of determining whether environmental damage within the meaning of Article 2(1)(b) of the Environmental Liability Directive has arisen, Article 4(7) of Directive 2000/60/EC to be applied directly, and is it necessary to determine whether the criteria laid down by that provision are satisfied?

      (1)  OJ 2004 L 143, p. 56, in the version amended by Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC — Statement by the European Parliament, the Council and the Commission (OJ 2006 L 102, p. 15) and by Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006 (OJ 2009 L 140, p. 114).


title: Case C-268/06: Reference for a preliminary ruling from Labour Court (Ireland) made on 19 June 2006 — Impact v Minister for Agriculture and Food, Minister for Arts, Sport and Tourism, Minister for Communications, Marine and Natural Resources, Minister for Foreign Affairs, Minister for Justice, Equality and Law Reform, Minister for Transport

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/16

         Reference for a preliminary ruling from Labour Court (Ireland) made on 19 June 2006 — Impact v Minister for Agriculture and Food, Minister for Arts, Sport and Tourism, Minister for Communications, Marine and Natural Resources, Minister for Foreign Affairs, Minister for Justice, Equality and Law Reform, Minister for Transport
   (Case C-268/06)
   (2006/C 212/28)
   Language of the case: English
   Referring court
   Labour Court (Ireland)
   Parties to the main proceedings

      Applicant: Impact

      Defendant: Minister for Agriculture and Food, Minister for Arts, Sport and Tourism, Minister for Communications, Marine and Natural Resources, Minister for Foreign Affairs, Minister for Justice, Equality and Law Reform, Minister for Transport
   Questions referred

      Question 1

   In deciding a case at first instance under a provision of domestic law or in determining an appeal against such a decision, are the Rights Commissioners and the Labour Court required by any principle of Community law (in particular the principle of equivalence and effectiveness) to apply a directly effective provision of Council Directive 1999/70/EC of 28th June 1999 concerning the framework agreement of fixed-term work concluded by ETUC, UNICE and CEEP (1) in circumstances where:

               —

               The Rights Commissioner and the Labour Court have not been given express jurisdiction to do so under the domestic law of the Member State including the provisions of domestic law transposing the Directive,

               —

               Individuals can pursue alternative claims arising out of a failure by their employer to apply the Directive to their individual circumstances before the High Court and

               —

               Individuals can pursue alternative claims before an ordinary Court of competent jurisdiction against the Member State seeking damages for loss suffered by them arising from the Member States failure to transpose the Directive on time?

      Question 2.
   If the answer to
         Question 1
       is in the Affirmative,

               (a)

               Is Clause 4(1) of the Framework Agreement on Fixed-Term Work concluded by ETUC, UNIC and CEEP annexed to Directive 1999/70/EC unconditional and sufficiently precise in its terms as to be capable of being relied upon by individuals before their national courts?.

               (b)

               Is Clauses 5(1) of the Framework Agreement on Fixed-Term Work concluded by ETUC, UNIC and CEEP annexed to Directive 1999/70/EC unconditional and sufficiently precise in its terms as to be capable of being relied upon by individuals before their national courts?

      Question 3

   Having regard to the Court's answers to
         Question 1
       and
         Question 2(b)

      does clause 5(1) of the Framework Agreement on Fixed-Term Work concluded by ETUC, UNIC and CEEP annexed to Directive 1999/70/EC preclude a Member State, acting in its capacity as an employer, from renewing a fixed term contract of employment for up to 8 years in the period after the said Directive should have been transposed and before the transposing legislation was enacted in domestic law where:

               —

               on all previous occasions the contract had been renewed for shorter periods, and the employer requires the services of the employee for the extended period,

               —

               the renewal for the extended period has the effect of circumventing the application to an individual of the full benefit of Clause 5 of the Framework Agreement when transposed into domestic law, and

               —

               there are no objective reasons unrelated to the employee's status as a fixed-term worker for such a renewal.

      Question 4

   If the answer to
         Question 1
       or
         Question 2
       is in the negative, is the Rights Commissioner and the Labour Court required by any provision of Community law (and in particular the obligation to interpret domestic law in light of the wording and purpose of a Directive so as to produce the result pursued by the Directive) to interpret provisions of domestic law enacted for the purpose of transposing Council Directive 1999/70/EC of 28th June 1999 concerning the framework agreement of fixed-term work concluded by ETUC, UNICE and CEEP as having retrospective effect to the date on which the said Directive should have been transposed where:

               —

               The wording of the provision of domestic law does not expressly preclude such an interpretation, but,

               —

               A rule of domestic law governing the construction of statutes precludes such retrospective application unless there is a clear and unambiguous indication to the contrary?

      Question 5

   If the answer to
         Question 1 or Question 4
       is in the affirmative, do the ‘employment conditions’ to which clause 4 of the Framework Agreement annexed to Directive 1990/70/EC refers include conditions of an employment contract relating to remuneration and pensions?

      (1)  OJ L 175, p. 43


title: Case C-691/13: Judgment of the Court (Third Chamber) of 26 February 2015 (request for a preliminary ruling from the Conseil d'État — France) — Les Laboratoires Servier SA v Ministre des Affaires sociales et de la Santé, Ministre de l’Économie et des Finances (Reference for a preliminary ruling — Medicinal products for human use — Directive 89/105/EEC — Article 6(2) — Establishment of a list of medicinal products reimbursed by the health insurance funds — Amendment of the conditions of reimbursement of a medicinal product when renewing its inclusion in such a list — Obligation to state reasons)

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/17

         Judgment of the Court (Third Chamber) of 26 February 2015 (request for a preliminary ruling from the Conseil d'État — France) — Les Laboratoires Servier SA v Ministre des Affaires sociales et de la Santé, Ministre de l’Économie et des Finances
   (Case C-691/13) (1)

   ((Reference for a preliminary ruling - Medicinal products for human use - Directive 89/105/EEC - Article 6(2) - Establishment of a list of medicinal products reimbursed by the health insurance funds - Amendment of the conditions of reimbursement of a medicinal product when renewing its inclusion in such a list - Obligation to state reasons))
   (2015/C 138/22)
   Language of the case: French

      Referring court

   Conseil d'État

      Parties to the main proceedings

      Applicant: Les Laboratoires Servier SA

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

      Operative part of the judgment

   Article 6(2) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems must be interpreted as meaning that the obligation to state reasons set out in that provision is applicable to a decision which reinstates a product in the list of medicinal products covered by the health insurance system, but which limits the reimbursement of that product to a specific category of patients.

      (1)  OJ C 85, 22.3.2014.


title: Case C-395/13: Action brought on 12 July 2013 — European Commission v Kingdom of Belgium

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/10

         Action brought on 12 July 2013 — European Commission v Kingdom of Belgium
   (Case C-395/13)
   2013/C 274/18
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: O. Beynet and E. Manhaeve, acting as Agents)

      Defendant: Kingdom of Belgium

      Form of order sought

               —

               declare that, by failing to make provision for the collection and treatment of urban waste water in 57 agglomerations with a population equivalent of more than 2 000 and less than 10 000, the Kingdom of Belgium has failed to fulfil its obligations under Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment; (1)

               —

               order the Kingdom of Belgium to pay the costs.

      Pleas in law and main arguments

   By its application, the Commission claims that the Kingdom of Belgium has failed to implement correctly, in 57 agglomerations, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment.
   Article 3(1) and Article 4(1) of Directive 91/271/EEC required agglomerations with a population equivalent (p.e.) between 2 000 and 10 000 to be provided with collecting systems at the latest by 31 December 2005.
   As regards urban waste water treatment obligations, Article 4(1) of the directive requires the Member States to ensure that waste water entering collecting systems is subject to secondary treatment or an equivalent treatment before being discharged.
   Lastly, the control procedures laid down in Annex I D to the directive make it possible to ascertain whether discharges from urban waste water treatment plants comply with the requirements of the directive pertaining to the discharge of waste water.

      (1)  OJ 1991 L 135, p. 40.


title: Case T-66/14: Judgment of the General Court of 21 July 2016 — Bredenkamp and Others v Council and Commission (Common foreign and security policy — Restrictive measures imposed on certain persons and entities in view of the situation in Zimbabwe — Freezing of funds — Non-contractual liability)

text:
               5.9.2016

               EN

               Official Journal of the European Union

               C 326/21

         Judgment of the General Court of 21 July 2016 — Bredenkamp and Others v Council and Commission
   (Case T-66/14) (1)

   ((Common foreign and security policy - Restrictive measures imposed on certain persons and entities in view of the situation in Zimbabwe - Freezing of funds - Non-contractual liability))
   (2016/C 326/39)
   Language of the case: English

      Parties

      Applicants: John Arnold Bredenkamp (Harare, Zimbabwe), Echo Delta (Holdings) PCC Ltd (Castletown, Isle of Man), Scottlee Holdings (Private) Ltd (Harare), Fodya (Private) Ltd (Harare) (represented by: P. Moser QC, and G. Martin, Solicitor)

      Defendants: Council of the European Union (represented by: B. Driessen and E. Dumitriu-Segnana, acting as Agents) and European Commission (represented by: S. Bartelt, D. Gauci and T. Scharf, acting as Agents)

      Re:

   Application based on Article 268 TFEU for compensation for the loss allegedly suffered by the applicants following the adoption of Commission Regulation (EC) No 77/2009 of 26 January 2009 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2009 L 23, p. 5), Commission Regulation (EU) No 173/2010 of 25 February 2010 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2010 L 51, p. 13) and Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2011 L 49, p. 23).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders John Arnold Bredenkamp, Echo Delta (Holdings) PCC Ltd, Scottlee Holdings (Private) Ltd and Fodya (Private) Ltd to pay the costs of the Council of the European Union and the European Commission.

      (1)  OJ C 112, 14.4.2014.


title: Case C-53/10: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 2 February 2010 — Land Hessen v Franz Mücksch OHG, Intervener: Merck KG aA

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/17

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 2 February 2010 — Land Hessen v Franz Mücksch OHG, Intervener: Merck KG aA
   (Case C-53/10)
   2010/C 113/26
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicant: Land Hessen

      Defendant: Franz Mücksch OHG

      Intervener: Merck KG aA

      Questions referred

               1.

               Is Article 12(1) of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, (1) most recently amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008 (2) — the Seveso II Directive — to be interpreted as meaning that the Member States’ obligations contained therein, in particular the obligation to ensure that their land-use policies and the procedures for implementing those policies take account of the need, in the long term, to maintain appropriate distances between the establishments covered by the directive and buildings of public use, are addressed to planners who have to take decisions on land-use by weighing up the public and private interests affected, or are they also addressed to the planning permission authorities who have to take a non-discretionary decision on the authorisation of a project in an already built-up area?

               2.

               If Article 12(1) of the Seveso II Directive is also addressed to the planning permission authorities who have to take a non-discretionary decision on the authorisation of a project in an already built-up area:
               Do the abovementioned obligations include the prohibition on authorising the siting of a building of public use which fails to maintain — as required by the principles applicable to overall planning — an appropriate distance from an existing establishment, where there are already several comparable buildings of public use close to the establishment, where the operator does not — as a result of the new project — have to reckon with additional requirements concerning the limitation of the consequences of an accident, and where the requirements relating to healthy living and working conditions are satisfied?

               3.

               If the answer to this question is in the negative:
               Does a legislative provision under which it is mandatory to authorise the siting of a building of public use in the circumstances set out in the previous question sufficiently take into account the need to maintain distances?

      (1)  OJ 1997 L 10, p. 13.

      (2)  OJ 2008 L 311, p. 1.


title: Judgment of the Court (Fourth Chamber) of 20 January 2005 in Case C-101/04 (Reference for a preliminary ruling from the Arbeidsrechtbank Gent (Belgium)): Roger Noteboom v Rijksdienst voor Pensioenen (Social security for migrant workers — Regulation (EEC) No 1408/71 — Old-age benefits — ‘Holiday pay’ given to persons entitled to a retirement pension — Unemployed frontier worker receiving benefit of a pension scheme)

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/13

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 20 January 2005
   in Case C-101/04 (Reference for a preliminary ruling from the Arbeidsrechtbank Gent (Belgium)): Roger Noteboom v Rijksdienst voor Pensioenen (1)

   (Social security for migrant workers - Regulation (EEC) No 1408/71 - Old-age benefits - ‘Holiday pay’ given to persons entitled to a retirement pension - Unemployed frontier worker receiving benefit of a pension scheme)
   (2005/C 57/24)
   Language of the case: Dutch
   In Case C-101/04: Reference for a preliminary ruling under Article 234 EC from the Arbeidsrechtbank Gent (Belgium), made by decision of 17 February 2004, received at the Court on 26 February 2004, in the proceedings between Roger Noteboom and Rijksdienst voor Pensioenen – the Court (Fourth Chamber), composed of N. Colneric (Rapporteur), acting for the President of the Fourth Chamber, J.N. Cunha Rodrigues and E. Levits, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 20 January 2005, in which it ruled:

               1.

               A benefit such as the holiday pay referred to in Article 22 of Royal Decree No 50 of 24 October 1967 concerning retirement and survivor's pensions for employed persons, as amended by the Law of 30 March 1994, and in Article 56 of the Royal Decree of 21 December 1967 concerning general rules for the scheme of retirement and survivor's pensions for employed persons, as amended by the Royal Decree of 27 January 1998 and by the Royal Decree of 4 March 2002, constitutes an old-age benefit within the meaning of Article 4(1)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998.

               2.

               Article 45(6) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, must be interpreted as meaning that the competent institution of the Member State of residence is to take account, for the purposes of the grant of a benefit such as that in question in the main proceedings, of a period of full unemployment during which the formerly employed person received benefits under Article 71(1)(a)(ii) of that regulation, as if the legislation administered by that institution applied to that worker during his last employment.

      (1)  OJ C 94, 17.04.2004.


title: Case T-633/14: Order of the General Court of 9 September 2015 — Monster Energy v OHIM (Representation of a peace symbol) (Community trade mark — Period for bringing an action — Point from which time starts to run — Notification of the Board of Appeal’s decision by fax machine — Receipt of the fax — Lateness — No force majeure or unforeseeable circumstances — Manifest inadmissibility)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/34

         Order of the General Court of 9 September 2015 — Monster Energy v OHIM (Representation of a peace symbol)
   (Case T-633/14) (1)

   ((Community trade mark - Period for bringing an action - Point from which time starts to run - Notification of the Board of Appeal’s decision by fax machine - Receipt of the fax - Lateness - No force majeure or unforeseeable circumstances - Manifest inadmissibility))
   (2015/C 381/38)
   Language of the case: English

      Parties

      Applicant: Monster Energy Company (Corona, United States) (represented by: P. Brownlow, Solicitor)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 11 December 2013 (Case R 1285/2013-1) concerning an application for registration as a Community trade mark of a figurative sign representing a peace symbol.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Monster Energy Company shall pay the costs.

      (1)  OJ C 127, 20.4.2015.


title: Case T-508/08: Action brought on 24 November 2008 — Bang & Olufsen v OHIM (Representation of a loudspeaker)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/35

         Action brought on 24 November 2008 — Bang & Olufsen v OHIM (Representation of a loudspeaker)
   (Case T-508/08)
   (2009/C 19/65)
   Language of the case: English
   Parties

      Applicant(s): Bang & Olufsen A/S (Struer, Denmark) (represented by K. Wallberg, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul paragraph 2 the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 September 2008 in case R 497/2005-1; and

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The three-dimensional mark representing a loudspeaker for goods in classes 9 and 20 — application No 3 354 371

      Decision of the examiner: Rejection of the application

      Decision of the Board of Appeal: Partial annulment of the decision of the examiner

      Pleas in law: Infringement of Article 63(6) of Council Regulation No 40/94 as the Board of Appeal failed to take the necessary measures to comply with the judgment of the Court of Justice; Infringement of Article 7(1)(e)(iii) of Council Regulation No 40/94 as the Board of Appeal wrongly took the view that the Community trade mark concerned is a sign which consists exclusively of a shape which gives substantial value to the goods.


title: Case C-76/12: Order of the President of the Tenth Chamber of the Court of 7 May 2013 — European Commission v French Republic

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/56

         Order of the President of the Tenth Chamber of the Court of 7 May 2013 — European Commission v French Republic
   (Case C-76/12) (1)

   2013/C 225/109
   Language of the case: French
   The President of the Tenth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 133, 5.5.2012.