title: Case T-482/12: Order of the General Court of 9 January 2015 — Internationaler Hilfsfonds v Commission (Action for annulment — Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — Compliance with a judgment of the General Court — Application initiating proceedings — Disregard of formal requirements — Article 44(1)(c) of the Rules of Procedure — Inadmissibility)

text:
               2.3.2015

               EN

               Official Journal of the European Union

               C 73/34

      Order of the General Court of 9 January 2015 — Internationaler Hilfsfonds v Commission
      (Case T-482/12) (1)

      (Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Implied refusal of access - Compliance with a judgment of the General Court - Application initiating proceedings - Disregard of formal requirements - Article 44(1)(c) of the Rules of Procedure - Inadmissibility)
      (2015/C 073/44)
      Language of the case: German

         Parties

         Applicant: Internationaler Hilfsfonds eV (Rosbach, Germany) (represented by: H.-H. Heyland, lawyer)

         Defendant: European Commission (represented by: P. Costa de Oliveira and T. Scharf, acting as Agents, assisted initially by R. Van der Hout and A. Krämer, and subsequently by R. Van der Hout, lawyers)

         Re:

      Application for annulment of the implied decision of the Commission refusing to grant the applicant full access to the documents in the file relating to the contract LIEN 97-2011 and, in the alternative, application for partial annulment of the Commission’s decision of 28 August 2012 in response to the applicant’s letter of 27 July 2012 requesting that the Commission comply with the judgment of 22 May 2012 in Internationaler Hilfsfonds v Commission, T-300/10, EU:T:2012:247.

         Operative part of the order

                  1.

                  The action is dismissed.

                  2.

                  Internationaler Hilfsfonds eV shall bear its own costs and pay those incurred by the European Commission.

         (1)  OJ C 26, 26.1.2013.


title: Case C-290/08 P: Appeal brought on 1 July 2008 by Carlos Correia de Matos against the order of the Court of First Instance (Fifth Chamber) delivered on 9 April 2008 in Case T-38/08 Corriea de Matos v Commission

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/2

         Appeal brought on 1 July 2008 by Carlos Correia de Matos against the order of the Court of First Instance (Fifth Chamber) delivered on 9 April 2008 in Case T-38/08 Corriea de Matos v Commission
   (Case C-290/08 P)
   2009/C 129/02
   Language of the case: Portuguese

      Parties

      Appellant: Carlos Correia de Matos (represented by: C.I. Correia de Matos, advogada)

      Other party to the proceedings: Commission of the European Communities
   By order of 10 February 2009, the Court of Justice (Eighth Chamber) dismissed the appeal.


title: Case C-582/11 P: Order of the Court (Eighth Chamber) of 10 July 2012 — Rügen Fisch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Schwaaner Fischwaren GmbH (Appeal — Regulation (EC) No 40/94 — Article 7(1) and (2) — Community trade mark — Word mark SCOMBER MIX — Absolute ground for invalidity — Descriptive character)

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/6

         Order of the Court (Eighth Chamber) of 10 July 2012 — Rügen Fisch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Schwaaner Fischwaren GmbH
   (Case C-582/11 P) (1)

   (Appeal - Regulation (EC) No 40/94 - Article 7(1) and (2) - Community trade mark - Word mark SCOMBER MIX - Absolute ground for invalidity - Descriptive character)
   2012/C 303/11
   Language of the case: German

      Parties

      Appellant: Rügen Fisch AG (represented by: O. Spuhler and M. Geitz, Rechtsanwälte)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent), Schwaaner Fischwaren GmbH (represented by: A. Jaeger-Lenz and T. Bösling, Rechtsanwälte)

      Re:

   Appeal brought against the judgment of the General Court (Third Chamber) of 21 September 2011 in Case T-201/09 Rügen Fisch v OHIM, by which the General Court dismissed the appellant’s action against the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 (Case R 230/2007-4), relating to invalidity proceedings between Rügen Fisch AG and Schwaaner Fischwaren GmbH — Breach of Articles 7(1)(c) and 51(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) — Descriptive character of the word sign SCOMBER MIX

      Operative part of the order

               1.

               The appeal is dismissed;

               2.

               Rügen Fisch AG is ordered to pay the costs.

      (1)  OJ C 25, 28.1.2012.


title: Judgment of the Court (Sixth Chamber) 10 January 2002 in Case C-101/99 (Reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen's Bench Division (Crown Office): The Queen v Intervention Board for Agricultural Produce, ex parte: British Sugar plc (Agriculture — Common organisation of the markets — Sugar — Attribution as "C sugar" of a quantity of sugar produced during a given marketing year — Charge payable in respect of sugar disposed of on the internal market — Levied in the case of export with an export licence — Export refunds)

text:
6.4.2002                EN                      Official Journal of the European Communities                                              C 84/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       validity of Commission Regulation (EEC) No 2630/81 of 10
                                                                              September 1981 on special detailed rules for the application
                                                                             of the system of import and export licences in the sugar sector
                         (Sixth Chamber)                                     (OJ 1981 L 258, p. 16), on the interpretation and validity of
                                                                             Commission Regulation (EEC) No 2670/81 of 14 September
                                                                             1981 laying down detailed implementing rules in respect of
                         10 January 2002                                     sugar production in excess of the quota (OJ 1981 L 262, p. 14),
                                                                             as amended by Commission Regulation (EEC) No 3559/91 of
in Case C-101/99 (Reference for a preliminary ruling from                    6 December 1991 (OJ 1991 L 336, p. 26), and on the
the High Court of Justice (England & Wales), Queen’s                         interpretation of Commission Regulation (EEC) No 3665/87
Bench Division (Crown Office): The Queen v Intervention                      of 27 November 1987 laying down common detailed rules for
Board for Agricultural Produce, ex parte: British Sugar                      the application of the system of export refunds on agricultural
                                plc (1)                                      products (OJ 1987 L 351, p. 1),the Court (Sixth Chamber),
                                                                             composed of: F. Macken, President of the Chamber, N. Colneric
                                                                             (Rapporteur), C. Gulmann, J.-P. Puissochet and J.N. Cunha
(Agriculture — Common organisation of the markets —                          Rodrigues, Judges, Advocate General: J. Mischo, Registrar:
Sugar — Attribution as ‘C sugar’ of a quantity of sugar                      H. von Holstein, Deputy Registrar, has given a judgment on
produced during a given marketing year — Charge payable                      10 January 2002, in which it has ruled:
in respect of sugar disposed of on the internal market —
Levied in the case of export with an export licence — Export
                              refunds)
                          (2002/C 84/01)
                   (Language of the case: English)                           1.    Article 24(1)(c) of Council Regulation (EEC) No 1785/81 of
                                                                                30 June 1981 on the common organisation of the markets in
                                                                                the sugar sector, as amended by Council Regulation (EEC)
(Provisional translation; the definitive translation will be published
                                                                                No 305/91 of 4 February 1991, requires an undertaking to
                   in the European Court Reports)
                                                                                have in fact produced a volume of sugar equal to the sum of its
                                                                                A and B quotas before it may attribute sugar as C sugar.
In Case C-101/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) by the High Court of
Justice of England and Wales, Queen’s Bench Division, for a
preliminary ruling in the proceedings pending before that court
between The Queen and Intervention Board for Agricultural                    2.    As a matter of principle the competent national authority is not
Produce, ex parte: British Sugar plc, on the interpretation of                     authorised to demand that an undertaking pay a charge
Council Regulation (EEC) No 1785/81 of 30 June 1981 on the                         pursuant to Article 3(1) of Commission Regulation (EEC)
common organisation of the markets in the sugar sector (OJ                         No 2670/81 of 14 September 1981 laying down detailed
1981 L 177, p. 4), as amended by Council Regulation (EEC)                          implementing rules in respect of sugar production in excess of
No 305/91 of 4 February 1991 (OJ 1991 L 37, p. 1), on the                          the quota, as amended by Commission Regulation (EEC)
 ---pagebreak--- C 84/2                   EN                       Official Journal of the European Communities                                           6.4.2002
      No 3559/91 of 6 December 1991, where it has not informed               amendments to the indicative allocation of Community initiat-
      the undertaking of that requirement within the period prescribed       ives, communicated to the Italian Republic by letter of
      by Article 3(2) of that regulation. Exceeding the time-limit           19 January 1999 from the Secretary-General of the Com-
      may be permissible where the competent national authority,             mission, and of all measures underlying or linked to that
      without negligence on its part, did not know the details of the        decision, the Court (Sixth Chamber), composed of: N. Colneric,
      undertaking’s sugar production and where that lack of knowl-           President of the Second Chamber, acting for the President of
      edge may reasonably be attributed to the undertaking, because          the Sixth Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur),
      it has not acted in good faith and has not complied with all the       R. Schintgen and V. Skouris, Judges, Advocate General:
      relevant provisions.                                                   J. Mischo, Registrar: H.A. Rühl, Principal Administrator, has
                                                                             given a judgment on 30 January 2002, in which it:
3.    The competent national authority may, without infringing
      Articles 3 and 4 of Commission Regulation (EEC)
      No 3665/87 of 27 November 1987 laying down common                      1.    Annuls the Commission’s decision of 16 December 1998
      detailed rules for the application of the system of export refunds           approving amendments to the indicative allocation of Com-
      on agricultural products or the general principles of Community              munity initiatives, communicated to the Italian Republic by
      law, refuse to accept retrospectively an export declaration                  letter of 19 January 1999 from the Secretary-General of the
      presented for the purpose of obtaining export refunds and of                 Commission;
      extending the period allowed for supplying proof of export
      where, because the undertaking has applied for and obtained            2.    Orders the Commission of the European Communities to pay
      from that authority a C sugar export licence for sugar which it              the costs;
      was impossible to regard as C sugar, the undertaking has
      neither applied for nor obtained the export refunds to which it        3.    Orders Ireland and United Kingdom of Great Britain and
      would have been entitled if the sugar had been exported as A or              Northern Ireland to bear their own costs.
      B sugar.
                                                                             (1) OJ C 188 of 3.7.1999.
(1) OJ C 160 of 5.6.1999.
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Sixth Chamber)                                                            (Sixth Chamber)
                           30 January 2002
                                                                                24 January 2002
in Case C-107/99: Italian Republic v Commission of the
                    European Communities (1)                                 in Case C-118/99: French Republic v Commission of the
                                                                                European Communities (1)
(Structural funds — Financing of Community initiatives —
               Alteration of indicative allocations)                         (Clearance of accounts — EAGGF — 1995 financial year
                                                                                — Arable crops)
                            (2002/C 84/02)
                                                                                (2002/C 84/03)
                     (Language of the case: Italian)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-107/99, Italian Republic (Agent: U. Leanza, assisted
by I. M. Braguglia), v Commission of the European Communi-
ties (Agents: E. de March, K. Simonsson and H. Speyart)                      In Case C-118/99, French Republic (agents: J.-F. Dobelle,
supported by Ireland (Agent: J. Payne, assisted by D. McGuin-                K. Rispal-Bellanger and C. Vasak), Republic of Finland
ness, SC, and E. Kent, solicitor) and by United Kingdom of                   (agent:T. Pynnä) v Commission of the European Communities
Great Britain and Northern Ireland (Agent: J. E. Collins, assisted           (agent: P. Oliver): Application for partial annulment of Com-
by D. Wyatt, QC,): Application for the annulment of the                      mission Decision 1999/187/EC of 3 February 1999 on the
Commission’s decision of 16 December 1998 approving                          clearance of the accounts presented by the Member States in


title: Case T-575/15: Judgment of the General Court of 28 September 2016 — Kozmetika Afrodita v EUIPO — Núñez Martín and Machado Montesinos (AFRODITA COSMETICS) (EU trade mark — Opposition proceedings — Application for EU figurative mark AFRODITA COSMETICS — Earlier national word mark EXOTIC AFRODITA MYSTIC MUSK OIL and earlier national figurative mark AFRODITA MYSTIC MUSK OIL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/43

         Judgment of the General Court of 28 September 2016 — Kozmetika Afrodita v EUIPO — Núñez Martín and Machado Montesinos (AFRODITA COSMETICS)
   (Case T-575/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark AFRODITA COSMETICS - Earlier national word mark EXOTIC AFRODITA MYSTIC MUSK OIL and earlier national figurative mark AFRODITA MYSTIC MUSK OIL - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 419/57)
   Language of the case: Slovenian

      Parties

      Applicant: Kozmetika Afrodita d.o.o. (Rogaška Slatina, Slovenia) (represented by: B. Grešak, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: M. Rajh, acting as Agent)

      Other parties to the proceedings before the Board of Appeal of EUIPO: Pedro Núñez Martín (Madrid, Spain) and Carmen Guillermina Machado Montesinos (Madrid)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 July 2015 (case R 2578/2014-4) relating to opposition proceedings between, on the one hand, Mr Núñez Martín and Ms Machado Montesinos and, on the other, Kozmetika Afrodita.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Kozmetika Afrodita d.o.o. to pay the costs.

      (1)  OJ C 406, 7.12.2015.


title: Case T-526/10: Judgment of the General Court of 25 April 2013 — Inuit Tapiriit Kanatamiand Others v Commission (Trade in seal products — Regulation (EC) No 1007/2009 — Detailed rules for implementation — Regulation (EU) No 737/2010 — Prohibition on placing such products on the market — Exception in favour of Inuit communities — Plea of illegality — Legal basis — Subsidiarity — Proportionality — Misuse of powers)

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/14

         Judgment of the General Court of 25 April 2013 — Inuit Tapiriit Kanatamiand Others v Commission
   (Case T-526/10) (1)

   (Trade in seal products - Regulation (EC) No 1007/2009 - Detailed rules for implementation - Regulation (EU) No 737/2010 - Prohibition on placing such products on the market - Exception in favour of Inuit communities - Plea of illegality - Legal basis - Subsidiarity - Proportionality - Misuse of powers)
   2013/C 164/25
   Language of the case: English

      Parties

      Applicants: Inuit Tapiriit Kanatami (Ottawa, Canada); Nattivak Hunters and Trappers Association (Qikiqtarjuaq, Canada); Pangnirtung Hunters’ and Trappers’ Association (Pangnirtung, Canada); Jaypootie Moesesie (Qikiqtarjuaq); Allen Kooneeliusie (Qikiqtarjuaq); Toomasie Newkingnak (Qikiqtarjuaq); David Kuptana (Ulukhaktok, Canada); Karliin Aariak (Iqaluit, Canada); Canadian Seal Marketing Group (Quebec, Canada); Ta Ma Su Seal Products, Inc. (Cap-aux-Meules, Canada); Fur Institute of Canada (Ottawa); NuTan Furs, Inc. (Catalina, Canada); GC Rieber Skinn AS (Bergen, Norway); Inuit Circumpolar Council Greenland (ICC-Greenland) (Nuuk, Groenland, Denmark); Johannes Egede (Nuuk); Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK) (Nuuk); William E. Scott & Son (Edinburgh, United Kingdom), Association des chasseurs de phoques des Îles-de-la-Madeleine (Cap-aux-Meules); Hatem Yavuz Deri Sanayi iç Ve Diș Ticaret Ltd Șirketi (Istanbul, Turkey); Northeast Coast Sealers’ Co-Operative Society, Ltd (Fleur de Lys, Canada) (represented by J. Bouckaert and H. Viaene, lawyers)

      Defendant: European Commission (represented by: E. White, P. Oliver and K. Mifsud Bonnici, acting as Agents)

      Interveners in support of the defendant before the General Court: European Parliament (represented: initially by I. Anagnostopoulou and L. Visaggio, and subsequently by L. Visaggio and D. Gauci, acting as Agents); and by the Council of the European Union (represented by: M. Moore and K. Michoel, acting as Agents)

      Re:

   Application for the annulment of Commission Regulation (EU) No 737/2010 of 10 August 2010, laying the detailed rules of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on the sale of seal products (OJ L 216, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders Inuit Tapiriit Kanatami, Nattivak Hunters and Trappers Association, Pangnirtung Hunters’ and Trappers’ Association, Mr Jaypootie Moesesie, Mr Allen Kooneeliusie, Mr Toomasie Newkingnak, Mr David Kuptana, Ms Karliin Aariak, the Canadian Seal Marketing Group, Ta Ma Su Seal Products, Inc., Fur Institute of Canada, NuTan Furs, Inc., GC Rieber Skinn AS, Inuit Circumpolar Council Greenland (ICC-Greenland), Mr Johannes Egede, Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK), William E. Scott & Son, Association des chasseurs de phoques des Îles-de-la-Madeleine, Hatem Yavuz Deri Sanayi iç Ve Diș Ticaret Ltd Șirketi and Northeast Coast Sealers’ Co-Operative Society, Ltd to bear their own costs and to pay those incurred by the European Commission.

               3.

               Orders the European Parliament and the Council of the European Union to bear their own costs.

      (1)  OJ C 13, 15.1.2011.


               22.11.2008

               EN

               Official Journal of the European Union

               C 301/4

         Taking of the oath by a new Member of the Court of First Instance
   (2008/C 301/07)
   Following his appointment as Judge at the Court of First Instance of the European Communities for the period from 1 September 2008 to 31 August 2013 by decision of the Representatives of the Governments of the Member States of the European Communities of 22 July 2008 (1), Mr O'Higgins took the oath before the Court of Justice on 15 September 2008.

      (1)  OJ L 219 of 14.8.2008, p. 63.


title: Case C-260/13: Judgment of the Court (Fifth Chamber) of 23 April 2015 (request for a preliminary ruling from the Verwaltungsgericht Sigmaringen — Germany) — Sevda Aykul v Land Baden-Württemberg (Reference for a preliminary ruling — Directive 2006/126/EC — Mutual recognition of driving licences — Refusal of a Member State to recognise, in the case of a person having driven under the influence of narcotic substances, the validity of a driving licence issued by another Member State)

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/2

         Judgment of the Court (Fifth Chamber) of 23 April 2015 (request for a preliminary ruling from the Verwaltungsgericht Sigmaringen — Germany) — Sevda Aykul v Land Baden-Württemberg
   (Case C-260/13) (1)

   ((Reference for a preliminary ruling - Directive 2006/126/EC - Mutual recognition of driving licences - Refusal of a Member State to recognise, in the case of a person having driven under the influence of narcotic substances, the validity of a driving licence issued by another Member State))
   (2015/C 205/02)
   Language of the case: German

      Referring court

   Verwaltungsgericht Sigmaringen

      Parties to the main proceedings

      Applicant: Sevda Aykul

      Defendant: Land Baden-Württemberg

      Operative part of the judgment

               1.

               Article 2(1) and the second subparagraph of Article 11(4) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences must be interpreted as meaning that a Member State in whose territory the holder of a driving licence issued by another Member State is staying temporarily is not precluded from refusing to recognise the validity of that driving licence on account of unlawful conduct on the part of its holder in the territory of the first Member State after that driving licence has been issued that results, under the national law of the first Member State, in unfitness to drive motor vehicles.

               2.

               A Member State which refuses to recognise the validity of a driving licence in a situation such as that at issue in the main proceedings is competent to lay down the conditions with which the holder of a driving licence must comply in order to recover the right to drive in that Member State’s territory. It is for the referring court to examine whether, in applying its own rules, the Member State in question is not in fact refusing indefinitely to recognise a driving licence issued by another Member State. In that context, it is for the referring court to ascertain whether the conditions laid down by the legislation of the first Member State, in accordance with the principle of proportionality, do not exceed the limits of what is appropriate and necessary in order to attain the objective of Directive 2006/126, which is to improve road safety.

      (1)  OJ C 189, 29.6.2013.


title: Case C-255/09: Action brought on 9 July 2009 — Commission of the European Communities v Portuguese Republic

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/29

         Action brought on 9 July 2009 — Commission of the European Communities v Portuguese Republic
   (Case C-255/09)
   2009/C 205/51
   Language of the case: Portuguese

      Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa and M. França, Agents)

      Defendant: Portuguese Republic

      Form of order sought

               —

               Declare that the Portuguese Republic has failed to fulfil its obligations under Article 49 EC, by not providing for the reimbursement of non-hospital medical expenses incurred in another Member State, other than in the circumstances laid down in Regulation (EEC) No 1408/71, (1) either in Decree-Law No 177/92 of 13 August, which lays down the conditions for reimbursement of medical expenses incurred abroad, or in any other provision of national law; or to the extent that that Decree-Law allows for the reimbursement of non-hospital medical expenses incurred in another Member State, by making such reimbursement subject to prior authorisation.

               —

               Order the Portuguese Republic to pay the costs.

      Pleas in law and main arguments

   The Commission considers that the Portuguese Republic has failed to fulfil its obligations under Article 49 EC, as interpreted by the case-law of the Court of Justice.
   The effect of that case-law is that Article 49 EC applies to the situation of a patient who receives, in a Member State other than his Member State of residence, medical services which are provided for consideration.
   In Portugal, Decree-Law No 177/92, which lays down the conditions for reimbursement of medical expenses incurred abroad, does not specifically provide for the reimbursement of non-hospital medical expenses incurred in another Member State, other than in the circumstances laid down in Regulation No 1408/71, or, in accordance with the interpretation put forward by the Portuguese authorities, it makes the reimbursement of those non-hospital medical expenses subject to prior authorisation, on restrictive conditions.

      (1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416).


title: Case C-12/12: Judgment of the Court (Fifth Chamber) of 18 April 2013 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Colloseum Holding AG v Levi Strauss & Co. (Trade marks — Regulation (EC) No 40/94 — Article 15(1) — Definition of ‘genuine use’ — Trade mark used only as one element of a composite mark or in conjunction with another mark)

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/6

         Judgment of the Court (Fifth Chamber) of 18 April 2013 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Colloseum Holding AG v Levi Strauss & Co.
   (Case C-12/12) (1)

   (Trade marks - Regulation (EC) No 40/94 - Article 15(1) - Definition of ‘genuine use’ - Trade mark used only as one element of a composite mark or in conjunction with another mark)
   2013/C 164/10
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellant: Colloseum Holding AG

      Respondent: Levi Strauss & Co.

      Re:

   Request for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 15(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) — Concept of ‘use of a trade mark’ — Recognition of the existence of use of a trade mark forming part of a composite mark where the composite mark is used — Recognition of the existence of use of a trade mark where it is used only together with another mark, the two marks being registered both individually and together as a composite mark

      Operative part of the judgment

   The condition of genuine use of a trade mark, within the meaning of Article 15(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, may be satisfied where a registered trade mark, which has become distinctive as a result of the use of another composite mark of which it constitutes one of the elements, is used only through that other composite mark, or where it is used only in conjunction with another mark, and the combination of those two marks is, furthermore, itself registered as a trade mark.

      (1)  OJ C 89, 24.3.2012.


title: Case C-70/12 P: Appeal brought on 10 February 2012 by Quinn Barlo Ltd, Quinn Plastics NV, Quinn Plastics GmbH against the judgment of the General Court (Third Chamber) delivered on 30 November 2011 in Case T-208/06: Quinn Barlo Ltd, Quinn Plastics NV, Quinn Plastics GmbH v European Commission

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/8

         Appeal brought on 10 February 2012 by Quinn Barlo Ltd, Quinn Plastics NV, Quinn Plastics GmbH against the judgment of the General Court (Third Chamber) delivered on 30 November 2011 in Case T-208/06: Quinn Barlo Ltd, Quinn Plastics NV, Quinn Plastics GmbH v European Commission
   (Case C-70/12 P)
   2012/C 165/14
   Language of the case: English

      Parties

      Appellants: Quinn Barlo Ltd, Quinn Plastics NV, Quinn Plastics GmbH (represented by: F. Wijckmans, advocaat, M. Visser, avocate)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants respectfully request the Court of Justice:

               —

               In main order: to set aside the Judgment of the General Court to the extent that it holds that the Appellants have infringed Article 101 TFEU and, on account hereof, has failed to annul Article 1 of the Decision in respect of the Appellants.

               —

               In subsidiary order: to set aside the Judgment of the General Court to the extent that, in the exercise of its unlimited jurisdiction, it decreased the starting amount of the fine by only 10 % and failed to annul the Decision where it included in the calculation of the fine an increase on account of the duration of the infringement.

               —

               In subsidiary order: to set aside the Judgment of the General Court to the extent that it fails to annul the Decision where it limited the reduction of the basic amount on account of differential treatment to 25 % and that, within the framework of its unlimited jurisdiction, the Court of Justice fixes a higher percentage which duly reflects the lack of liability of the Appellants for the cartel as it extends to PMMA moulding compounds and PMMA sanitary ware, thereby ensuring that such higher reduction is consistent with the general principle of proportionality.

               —

               To order the Commission to pay the costs of the proceedings in accordance with Article 69(2) of the Rules of Procedure.

      Pleas in law and main arguments

   Quinn Barlo Ltd., Quinn Plastics NV and Quinn Plastics GmbH seek the setting aside, to the extent specified in their Application, of the judgment of the General Court of 30 November 2011 in Case T-208/06, Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH v European Commission. The judgment of the General Court relates to an alleged cartel consisting of a complex of anti-competitive agreements and concerted practices in the methacrylates industry (Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 — Methacrylates)). The judgment finds that Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH infringed Article 81 EC and Article 53 of the EEA Agreement (EEA) by participating in a complex of concerted agreements and practices in respect of polymethyl-methacrylate solid sheet and holds the companies liable for their participation in the cartel from April 1998 until the end of October 1998 and from 24 February 2000 until 21 August 2000.
   In support of their Application, Quinn Barlo Ltd., Quinn Plastics NV and Quinn Plastics GmbH put forward three pleas in law.
   The first plea in law holds, in main order, that the General Court has incorrectly applied European Union law in finding an infringement of Article 101 TFEU and/or erred in law as to the application of Article 2 of Regulation No 1/2003 (1). Both the Commission and the General Court have adopted the legal position that an infringement of Article 101 TFEU was proven to the requisite legal standard by means of a legal test consisting of (i) evidence of the presence of the Appellants at the four meetings and (ii) the absence of evidence of the Appellants publicly distancing themselves from the content of these meetings. In so doing, both the Commission and the General Court have disregarded objective and undisputed considerations demonstrating that the said legal test was inappropriate and in any event insufficient to arrive at a legal finding that the Appellants had infringed Article 101 TFEU. As a result, by their reliance on this test, the Commission and the General Court have not respected Article 2 of Regulation No 1/2003 and have failed to establish an infringement of Article 101 TFEU to the requisite legal standard.
   The second plea in law is divided into two parts. The first part of the second plea holds, in subsidiary order, that the General Court has erred in law by failing to comply with the general principle of the presumption of innocence when correcting the Commission's assessment of the duration of the alleged infringement. On account of the general presumption of innocence, the General Court was not in a position to extend the duration of the first period of alleged participation beyond the date of the second meeting. The second part of the second plea holds, in subsidiary order, that the decision of the General Court to exercise its unlimited jurisdiction by increasing the starting amount with 10 % constitutes an error in law as such decision fails to comply with the general principles of legitimate expectations and equal treatment. In the context of both parts of the second plea in law, the General Court has infringed Article 23(3) of Regulation No 1/2003.
   The third plea in law holds, in subsidiary order, that the General Court has erred in law by upholding the reduction of 25 % to the basic amount and not granting a further reduction. In so doing, the General Court has infringed Article 23(3) of Regulation No 1/2003) and the general principle of proportionality.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty
   OJ L 1, p. 1


title: Case F-41/12: Action brought on 21 March 2012 — ZZ v Parliament

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/38

         Action brought on 21 March 2012 — ZZ v Parliament
   (Case F-41/12)
   2012/C 138/90
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: R. Adam and P. Ketter, lawyers)

      Defendant: European Parliament

      Subject-matter and description of the proceedings

   Application for (i) annulment of the European Parliament’s decision terminating the applicant’s contract as a member of the temporary staff appointed for an indefinite period and (ii) for compensation.

      Form of order sought

               —

               Annul the decision of the Parliament of 20 June 2011 terminating the applicant’s contract as a member of the temporary staff appointed for an indefinite period;

               —

               so far as is necessary, annul the express decision of the European Parliament rejecting the complaint;

               —

               reinstate the applicant at the European Parliament;

               —

               in the alternative and if, contrary to all probability, the Tribunal should conclude that that no reinstatement was possible, such reinstatement being in the interests of neither the applicant nor the European Parliament, order the European Parliament to pay 36 months’ salary by way of compensation for material damage, or alternatively any other amount to be assessed ex aequo et bono, in addition to EUR 15 000 by way of compensation for non-material damage;

               —

               in any event, order the Parliament to pay EUR 15 000 by way of compensation for non-material damage;

               —

               reserve to the applicant all other rights, remedies, pleas and actions, in particular with regard to (i) claiming additional damages for the harm suffered by reason of the Parliament’s wrongful conduct, (ii) producing additional evidence and (iii) calling the relevant witnesses;

               —

               order the Parliament to pay all the costs of the proceedings, including the lawyers’ fees incurred by the applicant.


title: Case T-353/08: Order of the General Court of 17 April 2013 — vwd Vereinigte Wirtschaftsdienste v Commission

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/24

         Order of the General Court of 17 April 2013 — vwd Vereinigte Wirtschaftsdienste v Commission
   (Case T-353/08) (1)

   2013/C 164/41
   Language of the case: German
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 301, 22.11.2008.


title: Case C-188/99 P: Appeal brought on 21 May 1999 by Karola Gluiber against the order made on 16 March 1999 by the First Chamber of the Court of First Instance of the European Communities in Case T-147/98 Karola Gluiber versus Council of the European Union and Commission of the European Communities

text:
C 226/16              EN                    Official Journal of the European Communities                                      7.8.1999
Appeal brought on 21 May 1999 by Karola Gluiber against                Pleas in law and main arguments
the order made on 16 March 1999 by the First Chamber
of the Court of First Instance of the European Communi-
ties in Case T-147/98 Karola Gluiber versus Council of                 The appellant is contesting an order by which the Court of First
the European Union and Commission of the European                      Instance, without prior notice to the respondents, dismissed as
                         Communities                                   manifestly inadmissible her applications for
                       (Case C-188/99 P)                               — a declaration that certain individual measures taken by
                                                                           German authorities and German courts are null and void;
                        (1999/C 226/25)                                — alternatively, an order requiring the respondent to retract
                                                                           and terminate those measures in accordance with the rules
An appeal against the order made on 16 March 1999 by the                   laid down by the EC Treaty.
First Chamber of the Court of First Instance of the European
Communities in Case T-147/98 Karola Gluiber versus Council
of the European Union and Commission of the European                   She complains that the principle of the right to a fair hearing
Communities was brought before the Court of Justice of the             has been violated,
European Communities on 21 May 1999 by Karola Gluiber,
represented by Dieter Rogalla, Rechtsanwalt, with an address           She infers that her claim is admissible from the fact that the
for service in Luxembourg at the Chambers of Marguit                   Commission is under an obligation to monitor the application
Capus-Leelare, 117 Avenue Gaston Diderich, L-1420 Luxem-               of Directive 76/207/EEC in all Member States and to object to
bourg.                                                                 specific defects until such time as they are eliminated.
The appellant claims that the Court should:
                                                                       (1) Not yet published in the Official Journal.
1. set aside the order made by the Court of First Instance of          (2) OJ L 39 of 14.2.1976, p. 40.
    the European Communities on 16 March 1999 in Case
    T-147/98 (1);
2. declare null and void the individual measures which
    unlawfully discriminate against the appellant on the
    ground of her sex;
3. order the respondent to retract and terminate, in accord-
    ance with the rules laid down by the Treaty on European            Action brought on 21 May 1999 by the Commission of
    Union, the discriminatory measures taken against the               the European Communities against the Kingdom of Spain
    appellant by the Federal Republic of Germany, as a Member
    State of the Community, and by its federal organs (the
    Länder);                                                                                (Case C-189/99)
4. order the respondent to pay to the appellant the total sum
    of DM 4 877 (four thousand eight hundred and seventy                                        (1999/C 226/26)
    seven German marks) plus interest in respect of periods to
    be fixed, being the expense incurred by the appellant in           An action against the Kingdom of Spain was brought before
    the proceedings brought by her to no avail before the              the Court of Justice of the European Communities on 21 May
    German courts;                                                     1999 by the Commission of the European Communities,
                                                                       represented by Götz zur Hausen, Legal Adviser and Gregorio
5. order the respondent to pay the costs of the present                Valero Jordana, a member of its Legal Service, with an address
    proceedings;                                                       for service in Luxembourg at the office of Carlos Gómez de la
                                                                       Cruz of its Legal Service, Wagner Centre.
6. alternatively, stay the proceedings pursuant to Article
    82a(1)(b) of the Rules of Procedure of the Court of Justice
    in order to enable a preliminary ruling to be obtained from        The applicant claims that the Court should:
    the European Court of Human Rights concerning the
    finding that the incomplete transposition into German law          1. declare that the Kingdom of Spain has failed to fulfil its
    of Council Directive 76/207/EEC (2) infringes, as regards              obligations under the third indent of Article 3(2), Article 4
    the appellant:                                                         and Article 5 of Council Directive 90/313/EEC (1) of 7 June
                                                                           1990 on the freedom of access to information on the
    (a) Article 6 of the European Convention on Human                      environment by adopting legislation which fails to comply
        Rights (‘ECHR’)                                                    with those provisions of that directive;
    (b) Article 11 of the ECHR;                                        2. declare that the Kingdom of Spain has failed to fulfil its
                                                                           obligations under Article 5 of the directive cited by
    (c) Article 14 of the ECHR; and                                        permitting high fees laid down by legislation bearing no
                                                                           relation to that transposing the directive to be charged for
    (d) Article 50 of the ECHR.                                            the supply of information; and


title: Judgment of the Court (Sixth Chamber) of 24 September 2002 in Case C-471/99 (Reference for a preliminary ruling from the Sozialgericht Nürnberg): Alfredo Martínez Domínguez, Joaquín Benítez Urbano, Agapito Mateos Cruz, Carmen Calvo Fernández v Bundesanstalt für Arbeit, Kindergeldkasse (Regulation (EEC) No 1408/71 — Articles 77 and 78 — Pensioners under the legislation of several Member States — Pensioners under a social-security convention between Member States concluded prior to accession to the European Communities — Benefits for dependent children and for orphans of pensioners — Entitlement to family benefits for which the competent institution of a Member State other than that of residence is responsible — Conditions of entitlement)

text:
9.11.2002               EN                        Official Journal of the European Communities                                              C 274/3
a preliminary ruling in the proceedings pending before that                                    JUDGMENT OF THE COURT
court between Baumbast, R and Secretary of State for the
Home Department, on the interpretation of Article 18 EC and                                            (Sixth Chamber)
Article 12 of Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for workers
within the Community (OJ, English Special Edition 1968 (II),                                       of 24 September 2002
p. 475), the Court, composed of: G.C. Rodríguez Iglesias,
President, P. Jann, F. Macken (Rapporteur), N. Colneric and                  in Case C-471/99 (Reference for a preliminary ruling from
S. von Bahr (Presidents of Chambers), C. Gulmann,                            the Sozialgericht Nürnberg): Alfredo Martínez Domín-
D.A.O. Edward, A. La Pergola, J.-P. Puissochet, M. Wathelet,                 guez, Joaquín Benítez Urbano, Agapito Mateos Cruz,
V. Skouris, J.N. Cunha Rodrigues and C.W.A. Timmermans,                      Carmen Calvo Fernández v Bundesanstalt für Arbeit,
Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Adminis-                                         Kindergeldkasse ( 1)
trator, for the Registrar, has given a judgment on 17 September
2002, in which it has ruled:
                                                                             (Regulation (EEC) No 1408/71 — Articles 77 and 78 —
                                                                             Pensioners under the legislation of several Member States
                                                                             — Pensioners under a social-security convention between
1.    Children of a citizen of the European Union who have installed         Member States concluded prior to accession to the European
      themselves in a Member State during the exercise by their              Communities — Benefits for dependent children and for
      parent of rights of residence as a migrant worker in that              orphans of pensioners — Entitlement to family benefits for
      Member State are entitled to reside there in order to attend           which the competent institution of a Member State other
      general educational courses there, pursuant to Article 12 of           than that of residence is responsible — Conditions of
      Regulation (EEC) No 1612/68 of the Council of 15 October                                            entitlement)
      1968 on freedom of movement for workers within the
      Community. The fact that the parents of the children concerned                                    (2002/C 274/04)
      have meanwhile divorced, the fact that only one parent is a
      citizen of the Union and that parent has ceased to be a migrant
                                                                                (Language of the case: German)
      worker in the host Member State and the fact that the children
      are not themselves citizens of the Union are irrelevant in this
      regard.                                                                (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
2.    Where children have the right to reside in a host Member State
      in order to attend general educational courses pursuant to
                                                                             In Case C-471/99: Reference to the Court under Article 177
      Article 12 of Regulation (EEC) No 1612/68, that provision
                                                                             of the EC Treaty (now Article 234 EC) by the Sozialgericht
      must be interpreted as entitling the parent who is the primary
                                                                             Nürnberg (Germany) for a preliminary ruling in the proceed-
      carer of those children, irrespective of his nationality, to reside
                                                                             ings pending before that court between Alfredo Martínez
      with them in order to facilitate the exercise of that right
                                                                             Domínguez, Joaquín Benítez Urbano, Agapito Mateos Cruz,
      notwithstanding the fact that the parents have meanwhile
                                                                             Carmen Calvo Fernández and Bundesanstalt für Arbeit, Kinder-
      divorced or that the parent who has the status of citizen of the
                                                                             geldkasse, on the interpretation of Articles 77(2)(b), 78(2)(b)
      European Union has ceased to be a migrant worker in the host
                                                                             and 79(1) of Council Regulation (EEC) No 1408/71 of
      Member State.
                                                                             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
3.    A citizen of the European Union who no longer enjoys a right           and updated by Council Regulation (EEC) No 2001/83 of
      of residence as a migrant worker in the host Member State can,         2 June 1983 (OJ 1983 L 230, p. 6), the Court (Sixth
      as a citizen of the Union, enjoy there a right of residence by         Chamber), composed of: F. Macken, President of the Chamber,
      direct application of Article 18(1) EC. The exercise of that right     C. Gulmann (Rapporteur), R. Schintgen, V. Skouris and
      is subject to the limitations and conditions referred to in that       J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate General;
      provision, but the competent authorities and, where necessary,         L. Hewlett, Administrator, for the Registrar, has given a
      the national courts must ensure that those limitations and             judgment on 24 September 2002, in which it has ruled:
      conditions are applied in compliance with the general principles
      of Community law and, in particular, the principle of pro-
                                                                             Articles 77(2)(b) and 78(2)(b) of Council Regulation (EEC) No
      portionality.
                                                                             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 (EEC) No 2001/83 of 2 June
( 1) OJ C 6 of 8.1.2002.                                                     1983, and read in conjunction with Article 79(1) thereof, must be
                                                                             interpreted as meaning that the competent institution of a Member
                                                                             State other than that of the residence of a person in receipt of an old-
                                                                             age or invalidity pension, or of the residence of orphans of a deceased
                                                                             worker, is not required to grant the persons concerned benefits for
                                                                             dependent children or for orphans where the conditions laid down by
 ---pagebreak--- C 274/4                  EN                      Official Journal of the European Communities                                           9.11.2002
the legislation of the Member State of residence for the award of such      composed of: N. Colneric, President of the Second Chamber,
benefits are not or are no longer satisfied and where the entitlement       acting for the President of the Sixth Chamber, C. Gulmann,
of the pensioner or of the orphans claiming under the deceased worker       J.-P. Puissochet, R. Schintgen (Rapporteur) and V. Skouris,
is not acquired, in the other Member State, solely under the legislation    Judges; C. Stix-Hackl, Advocate General; L. Hewlett, Adminis-
of that State. None the less, in such a situation, the competent            trator, Registrar, has given a judgment on 17 September 2002,
institution of the Member State other than that of residence may be         in which it has ruled:
required to award the benefit at issue under a social-security
convention entered into by the two Member States concerned and
                                                                            1.    Article 2(1) of the Sixth Council Directive 77/388/EEC of
incorporated in their national law prior to the entry into force of the
                                                                                17 May 1977 on the harmonisation of the laws of the Member
Regulation, where the persons concerned have an established right to
                                                                                States relating to turnover taxes — Common system of value
continued application of that convention after the entry into force of
                                                                                added tax: uniform basis of assessment must be interpreted as
the Regulation.
                                                                                meaning that a supply of services which is effected for
                                                                                consideration but is not based on enforceable obligations,
                                                                                because it has been agreed that the provider is bound in honour
( 1) OJ C 122 of 29.4.2000.                                                       only to provide the services, constitutes a transaction subject to
                                                                                value added tax.
                                                                            2.    Article 11A(1)(a) of the Sixth Directive 77/388 must be
                                                                                interpreted as meaning that the full amount of the entry fees
                                                                                received by the organiser of a competition constitutes the taxable
                                                                                amount for that competition where the organiser has that
                                                                                amount freely at his disposal.
                                                                            (1 ) OJ C 47 of 19.2.2000.
                  JUDGMENT OF THE COURT
                           (Sixth Chamber)
                       of 17 September 2002                                                   JUDGMENT OF THE COURT
                                                                                of 17 September 2002
in Case C-498/99 (Reference for a preliminary ruling from
the VAT and Duties Tribunal, Manchester): Town &
County Factors Ltd v Commissioners of Customs and                           in Case C-513/99 (Reference for a preliminary ruling from
                               Excise ( 1)                                  the Korkein hallinto-oikeus): Concordia Bus Finland Oy
                                                                                Ab v Helsingin kaupunki, HKL-Bussiliikenne (1)
(Sixth VAT Directive — Scope — Competition whose                            (Public service contracts in the transport sector — Directives
 organiser binds himself in honour only — Taxable amount)                   92/50/EEC and 93/38/EEC — Contracting municipality
                                                                            which organises bus transport services and an economically
                                                                            independent entity of which participates in the tender
                           (2002/C 274/05)                                  procedure as a tenderer — Taking into account of criteria
                                                                            relating to the protection of the environment to determine
                                                                            the economically most advantageous tender — Whether
                     (Language of the case: English)                        permissible when the municipal entity which is tendering
                                                                                meets those criteria more easily)
                                                                                (2002/C 274/06)
In Case C-498/99: Reference to the Court under Article 234
                                                                                (Language of the case: Finnish)
EC by the VAT and Duties Tribunal, Manchester (United
Kingdom), for a preliminary ruling in the proceedings pending
before that tribunal between Town & County Factors Ltd and                  (Provisional translation; the definitive translation will be published
Commissioners of Customs and Excise, on the interpretation                                      in the European Court Reports)
of Articles 2(1), 6(1) and 11A(1) of Sixth Council Directive
77/388/EEC of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-                  In Case C-513/99: Reference to the Court under Article 234
ment (OJ 1977 L 145, p. 1), the Court (Sixth Chamber),                      EC by the Korkein hallinto-oikeus (Finland) for a preliminary


title: Case F-39/12: Judgment of the Civil Service Tribunal (3rd Chamber) of 23 October 2013 — BQ v Court of Auditors (Civil service — Official — Staff report — Psychological harassment — Damages — Admissibility — Time-limits)

text:
               30.11.2013

               EN

               Official Journal of the European Union

               C 352/23

         Judgment of the Civil Service Tribunal (3rd Chamber) of 23 October 2013 — BQ v Court of Auditors
   (Case F-39/12) (1)

   (Civil service - Official - Staff report - Psychological harassment - Damages - Admissibility - Time-limits)
   2013/C 352/44
   Language of the case: French

      Parties

      Applicant: BQ (Bereldange, Luxembourg) (represented by: D. Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Court of Auditors of the European Union (represented by: T. Kennedy, B. Schäfer and I. Ní Riagáin Düro, Agents)

      Re:

   Application to annul the rejection by the European Court of Auditors of the applicant’s application seeking the recognition of unlawful conduct which allegedly caused him material and non-material harm

      Operative part of the judgment

   The Tribunal:

               1.

               Orders the Court of Auditors of the European Union to pay BQ EUR 2 000;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the parties to bear their own costs.

      (1)  OJ C 138, 12.05.2012, p. 38.


title: Case T-75/00: Action brought on 31 March 2000 by Augusto Fichtner against the Commission of the European Communities

text:
13.5.2000             EN                      Official Journal of the European Communities                                       C 135/31
— order the Community to pay the costs;                                  The applicant claims that the Court should:
— adopt such further measures as might reasonably be found               — annul the decision of ‘the Steering Committee’, as con-
    necessary.                                                               tained in the memorandum of I. Boag of 28 January 2000,
                                                                             to assign the applicant to Brussels, to his DG of origin;
                                                                         — in the alternative, award to the applicant compensation
Pleas in law and main arguments                                              for the non-material damage suffered and provisionally
                                                                             quantify the damage, ex aequo et bono, at 1 euro;
The applicants in this case, who are battery manufacturers               — order the defendant to pay all the costs.
exporting to the USA, claim compensation for losses suffered
by them following the adoption by the USA of certain
commercial retaliation measures affecting their industry. On
                                                                         Pleas in law and main arguments
9 September 1997, the Appeals Body of the World Trade
Organisation ruled that various measures laid down under the
Community scheme for importing bananas were contrary to                  The applicant, assigned to the Commission Delegation in
GATT 1994 and the GATS, and called upon the Community                    Romania, contests the decision to reassign him to headquarters
to bring its measures into line with the obligations under those         in Brussels, as part of the rotation exercise for 2000. He claims
trade agreements. Following that ruling, the USA subjected               that the decision in question is flawed in numerous ways, in
imports of stationary batteries to a duty equivalent to 100 %            that it:
of their value, with effect from 3 March 1999.
                                                                         — is not based on a statement of reasons;
In support of their claims, the applicants argue:                        — was taken in breach of the procedure applicable to
                                                                             decisions on rotation; and
— that the retaliatory measures in question were the direct
    consequence of the Community maintaining in force a                  — infringed his rights to be informed and to be heard
    system of rules which the WTO had already ruled unlawful;                beforehand.
— that in this case there has been a serious breach of a
    number of higher legal rules protecting individuals, such
    as the principle of ‘pacta sunt servanda’, the protection of
    legitimate expectations, legal certainty, the right to prop-
    erty, and the right to pursue an economic activity, and also
    of the principle of sound administration.
                                                                         Action brought on 31 March 2000 by Augusto Fichtner
                                                                           against the Commission of the European Communities
                                                                                (Case T-75/00)
                                                                                (2000/C 135/55)
Action brought on 28 March 2000 by Steffen Skovmand                                         (Language of the case: Italian)
  against the Commission of the European Communities
                                                                         An action against the Commission of the European Communi-
                         (Case T-72/00)                                  ties was brought before the Court of First Instance of the
                                                                         European Communities on 31 March 2000 by Augusto Ficht-
                                                                         ner, represented by Vincenzo Salvatore, of the Pavia Bar.
                        (2000/C 135/54)
                                                                         The applicant claims that the Court should:
                   (Language of the case: French)                        — annul as manifestly unfounded in fact and in law the
                                                                             Commission’s decision of 30 September 1999, removing
                                                                             him from his post without loss of pension rights;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               — order the Commission to pay compensation of not less
European Communities on 28 March 2000 by Steffen                             than EUR 50000 for material and non-material damage,
Skovmand, residing in Bucharest, represented by Georges                      the exact amount to be determined by the Court of First
Vandersanden, of the Brussels Bar.                                           Instance;
 ---pagebreak--- C 135/32              EN                    Official Journal of the European Communities                                 13.5.2000
— order the Commission to re-examine the position of the               — Misuse of powers;
    applicant;
                                                                       — Insufficient and contradictory reasoning in the contested
                                                                           decision.
— order the Commission to pay the costs.
Pleas in law and main arguments
                                                                              Removal from the register of Case T-116/99 (1)
The contested decision was taken on the supposition that the
applicant had carried on a large number of external activities                                (2000/C 135/56)
without prior authorisation. The Commission maintains that
those activities had become the applicant’s main occupation,
to the detriment of his work as a Community official.                                    (Language of the case: Finnish)
                                                                       By order of 18 February 2000 the President of the Court of
In support of his claims, the applicant argues:                        First Instance of the European Communities has ordered the
                                                                       removal from the register of Case T-116/99: Ilmailulaitos v
— Infringement and misapplication of Articles 86 and 87 of             Commission of the European Communities.
    the Staff Regulations of Officials, and also of the principle
    of proportionality;                                                (1) OJ C 226 of 7.8.1999.


title: Case T-166/01: Judgment of the Court of First Instance of 19 September 2006 — Lucchini SpA v Commission of the European Communities (ECSC — State aid — Environmental aid — Aid by Italy in favour of the Lucchini steel company — Refusal to authorise the proposed aid — Applicable legal framework — Eligibility of the notified investments as aid for environmental protection — Conditions governing the compatibility of aid with the common market — Statement of reasons)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/28

         Judgment of the Court of First Instance of 19 September 2006 — Lucchini SpA v Commission of the European Communities
   (Case T-166/01) (1)

   (ECSC - State aid - Environmental aid - Aid by Italy in favour of the Lucchini steel company - Refusal to authorise the proposed aid - Applicable legal framework - Eligibility of the notified investments as aid for environmental protection - Conditions governing the compatibility of aid with the common market - Statement of reasons)
   (2006/C 281/46)
   Language of the case: Italian
   Parties

      Applicant: Lucchini SpA Brescia (Italy), represented by G. Vezzoli and G. Belotti, lawyers)

      Defendant: Commission of the European Communities (represented by V. Kreuschitz and V. Di Bucci, acting as Agents)
   Re:
   Annulment of Article 1 of Commission Decision 2001/466/ECSC of 21 December 2000, in so far as it declares the State aid which Italy was planning to implement for the steel company Lucchini SpA amounting to ITL 13,5 thousand million (EUR 6,98 million) to be incompatible with the common market (OJ 2001 L 163, p. 24)
   Operative part of the judgment
   The Court:

               1.

               Annuls Article 1 of Commission Decision 2001/466/ECSC of 21 December 2000 on the State aid which Italy is planning to implement in favour of the steel companies Lucchini SpA and Siderpotenza SpA in so far as it includes, in the amount of the State aid granted to Lucchini SpA and declared incompatible with the common market, the sums of ITL 2,7 thousand million (EUR 1,396 million) and ITL 1,38 thousand million (EUR 713 550) which correspond to the environmental investments notified by the Italian authorities for the coking plant and the water and sewerage networks respectively;

               2.

               Dismisses the remainder of the action;

               3.

               Orders each party to bear half the costs.

      (1)  OJ C 289, 13.10.2001.


title: Case C-246/12 P: Judgment of the Court (Second Chamber) of 28 February 2013 — Ellinika Nafpigia AE v European Commission (Appeal — State aid — Shipbuilding — Decision declaring aid measures incompatible with the common market — Protection of the essential interests of national security — Competition conditions in the internal market)

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/21

         Judgment of the Court (Second Chamber) of 28 February 2013 — Ellinika Nafpigia AE v European Commission
   (Case C-246/12 P) (1)

   (Appeal - State aid - Shipbuilding - Decision declaring aid measures incompatible with the common market - Protection of the essential interests of national security - Competition conditions in the internal market)
   2013/C 114/31
   Language of the case: Greek

      Parties

      Appellant: Ellinika Nafpigia AE (represented by: I. Drosos and V. Karagiannis, dikigori)

      Other party to the proceedings: European Commission (represented by: C. Urraca Caviedes and M. Konstantinidis, Agents)

      Re:

   Appeal against the judgment of the General Court (Seventh Chamber) of 15 March 2012 in Case T-391/08 Ellinika Nafpigia v Commission dismissing an action for the partial annulment of Commission Decision C(2008) 3118 final of 2 July 2008 declaring incompatible with the common market aid granted by the Greek authorities in favour of Ellinika Nafpigia (Hellenic Shipyards ‘HSY’), in the context of amendments to the initial investment plan relating to the restructuring of that shipyard (State aid C 16/2004 (ex NN 29/2004, CP 71/2002 and CP 133/2005))

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Ellinika Nafpigia AE to pay the costs.

      (1)  OJ C 200, 7.7.2012.


title: Case C-424/12: Reference for a preliminary ruling from the Curtea de Apel Oradea (Romania) lodged on 18 September 2012 — SC Fatorie SRL v Direcția Generală a Finanțelor Publice Bihor

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/15

         Reference for a preliminary ruling from the Curtea de Apel Oradea (Romania) lodged on 18 September 2012 — SC Fatorie SRL v Direcția Generală a Finanțelor Publice Bihor
   (Case C-424/12)
   2012/C 379/25
   Language of the case: Romanian

      Referring court

   Curtea de Apel Oradea

      Parties to the main proceedings

      Applicant: SC Fatorie SRL

      Defendant: Direcția Generală a Finanțelor Publice Bihor

      Questions referred

               1.

               Do the provisions of Directive 2006/112/EC (1) allow the penalty of loss of the right to deduct to be applied to a taxable person, when:

                           (i)

                           the invoice produced by the taxable person for the purpose of exercising his right to deduct was incorrectly drawn up by a third party, failing to apply the simplification measures;

                           (ii)

                           the taxable person has paid the VAT indicated in the invoice?

               2.

               Does the European law principle of legal certainty militate against the administrative practice of the Romanian tax authorities that have:

                           (i)

                           first, by irrevocable administrative decision, acknowledged the right to deduct VAT;

                           (ii)

                           then reversed that decision, and made the taxable person liable to pay into the State budget the VAT for which the right to deduct was originally exercised, and to pay interest and default interest?

               3.

               Does the principle of the fiscal neutrality of VAT permit a taxable person to be deprived of the right to deduct VAT, in circumstances in which:

                           (i)

                           the taxable person has paid the VAT incorrectly indicated in the invoice by a third party;

                           (ii)

                           the tax authorities have taken no active steps to request the third party to put right the incorrectly worded invoice;

                           (iii)

                           at present, as a result of the third party’s insolvency, it is impossible for the invoice to be corrected?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Action brought on 1 September 1995 by the Kingdom of Spain against the Commission of the European Communities (Case C-292/95)

text:
11 . 11 . 95          EN                   Official Journal of the European Communities                                         No C 299/9
  Action brought on 1 September 1995 by the Kingdom                       them with retroactive effect, allowing it to fix
     of Spain against the Commission of the European                      unilaterally the period of validity of the obligation
                          Communities                                     incumbent on the Member States .
                       ( Case C-2 92/95 )
                         ( 95/C 299/ 14 )                             — Retroactivity of measures : the Commission itself
                                                                          acknowledges that there are no retroactive effects in
                                                                          respect of the application of appropriate measures
An action against the Commission of the European                          which have not been accepted by a Member State and
Communities was brought before the Court of Justice of the                which give rise to the procedure provided for in
                                                                          Article 93 ( 2 ).
European Communities on 1 September 1995 by the
Kingdom of Spain , represented by Alberto Navarro
Gonzalez, Director-General for Community Legal and                        In the view of the Spanish Government, there is an
Institutional Coordination , and by Miguel Bravo-Ferrer                   obligation to cooperate regularly and periodically with
Delgado, Abogado del Estado , of the State Legal                          which      unilateral      measures   as  onerous       as those
Department dealing with matters before the Court of                       conferring retroactive effect to the directives , which is
Justice , acting as Agents , with an address for service in               tantamount to their innovatory introduction, are not in
Luxembourg at the Spanish Embassy , 4-6 Boulevard                         keeping.
E. Servais .
                                                                      — Exceptional circumstances justifying retroactive effect
The applicant claims that the Court should :                              In the view of the Spanish Government, there can be no
                                                                          justification whatsoever for conferring retroactive effect
1 . annul the decision of the Commission of 6 July 1995                   to measures, provided for in Article 93 ( 1 ) of the Treaty,
     retroactively extending the decision of 23 December                  which have been taken unilaterally and with the
     1992 as from 1 January 1995 ;                                        intention of departing from the procedure and the
                                                                          system of regular, periodic cooperation provided for by
                                                                          that provision of the Treaty, in particular when it is
2 . order the Commission to pay the costs .                               contrary to the principle of the non-retroactivity of
                                                                          measures laid down in the case-law, specifically in
                                                                          respect of the legal basis relied upon by the Commission
Pleas in law and main arguments adduced in support:                        ( Article 93 ( 1 )), even where it is imposed by way of a
                                                                          decision adopted pursuant to the procedure laid down in
                                                                           Article 93 ( 2 ).
— Impossible to extend that which has expired : there may
     be an extension in respect of a legal instrument subject to
     a timelimit only before the expiry thereof.                      (') Application : OJ No C 139 , 18 . 5 . 1993 , p . 1 1 ;
                                                                          Judgment : O J No C 229 , 2 . 9 . 199.5 .
— Such retroactive extension in fact constitutes a means of
     reintroducing the directives without complying with the
     requirement of consulting the Member States : the fact
     that the original directives were removed from the legal
     order means that fresh introduction thereof would be
     innovatory . However, those ' new' directives should be
     understood as being ' appropriate measures' proposed             Appeal brought on 8 September 1995 by Odigitria AAE
     by the Commission within the meaning of Article 93 (1 )          against the judgment delivered on 6 July 1995 by the First
     of the Treaty . According to the judgment in Case                Chamber of the Court of First Instance of the European
     C- 135/93 ('), that Article imposes the 'obligation of           Communities in Case T-5 72/93 between Odigitria AAE and
     regular, periodic cooperation ' between the Commission           the Council of the European Union and the Commission of
     and the Member States .                                                              the European Communties
                                                                                ( Case C-293/95 P)
     The Commission claims, in the sixth paragraph of its                                          ( 95/C 299/ 15 )
     decision of 6 July 1995 , that it complied with the
     abovementioned requirement by means of the                       An appeal against the judgment delivered on 6 July 1995 by
     multilateral meeting of 4 July 1995 . At that meeting the        the First Chamber of the Court of First Instance of the
     delegations had available to them the document which             European Communities in Case T-572/93 between
     was to be discussed only shortly before the meeting or           Odigitria AAE and the Council of the European Union and
     were unaware of the existence of the document which
                                                                      the Commission of the European Communities was brought
     was the basis of the meeting ( the abovementioned                before the Court of Justice of the European Communities on
     judgment ).                                                       8 September 19 95 by Odigitria AAE, represented by
                                                                      E. Marias , G. Stefanaki and A. Chatzitzani , of the Athens
     In the 'context of collaboration', the Commission may             Bar, with an address for service in Luxembourg at the
      not arrogate to itself the power to act unilaterally in          Chambers of E. Thill-Kamitaki , 15 Avenue du Bois,
      order to introduce certain measures or to reintroduce            L-1251 .


title: Case C-185/11: Judgment of the Court (Eighth Chamber) of 26 January 2012 — European Commission v Republic of Slovenia (Failure of a Member State to fulfil obligations — Direct insurance other than life assurance — Directives 73/239/EEC and 92/49/EEC — Incorrect and incomplete transposition)

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/6

         Judgment of the Court (Eighth Chamber) of 26 January 2012 — European Commission v Republic of Slovenia
   (Case C-185/11) (1)

   (Failure of a Member State to fulfil obligations - Direct insurance other than life assurance - Directives 73/239/EEC and 92/49/EEC - Incorrect and incomplete transposition)
   2012/C 73/09
   Language of the case: Slovenian

      Parties

      Applicant: European Commission (represented by: K.-Ph. Wojcik, M. Žebre and N. Yerrell, acting as Agents)

      Defendant: Republic of Slovenia (represented by: A. Vran, agent)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 56 and 63 of the Treaty on the functioning of the European Union — Infringement of Article 8(3) of First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3) and of Articles 29 and 39 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive; OJ 1992 L 228, p. 1)

      Operative part of the judgment

   The Court:

               1.

               Declares that by incorrectly and incompletely transposing into national law First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, as amended by Directive 2005/68/EC of the European Parliament and the Council of 16 November 2005 and Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive), as amended by Directive 2005/68, the Republic of Slovenia has failed to fulfil its obligations under Article 8(3) of Directive 73/239 and Articles 29 and 39 of Directive 92/49;

               2.

               Dismisses the action for the remainder;

               3.

               Orders the European Commission and the Republic of Slovenia each to bear their own costs.

      (1)  OJ C 269, 10.9.2011.


title: Case C-112/13: Judgment of the Court (Fifth Chamber) of 11 September 2014 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — A v B and Others (Article 267 TFEU — National constitution — Interlocutory procedure for the mandatory review of constitutionality — Assessment as to whether a national law is consistent both with EU law and with national constitutional law — Jurisdiction and the enforcement of judgments in civil and commercial matters — Where the defendant has no known domicile or place of residence in the territory of a Member State — Prorogation of jurisdiction where the defendant enters an appearance — Court-appointed representative in absentia for the defendant)

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/10

         Judgment of the Court (Fifth Chamber) of 11 September 2014 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — A v B and Others
   (Case C-112/13) (1)

   ((Article 267 TFEU - National constitution - Interlocutory procedure for the mandatory review of constitutionality - Assessment as to whether a national law is consistent both with EU law and with national constitutional law - Jurisdiction and the enforcement of judgments in civil and commercial matters - Where the defendant has no known domicile or place of residence in the territory of a Member State - Prorogation of jurisdiction where the defendant enters an appearance - Court-appointed representative in absentia for the defendant))
   2014/C 409/14
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: A

      Defendants: B, C, D, E, F, G, H

      Operative part of the judgment

               1)

               EU law and, in particular, Article 267 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which ordinary courts hearing an appeal or adjudicating at final instance are under a duty, if they consider a national statute to be contrary to Article 47 of the Charter, to apply, in the course of the proceedings, to the constitutional court for that statute to be generally struck down, and may not simply refrain from applying that statute in the case before them, to the extent that the priority nature of that procedure prevents — both before the submission of a question on constitutionality to the national court responsible for reviewing the constitutionality of laws and, as the case may be, after the decision of that court on that question — all the other national courts or tribunals from exercising their right or fulfilling their obligation to refer questions to the Court of Justice for a preliminary ruling. On the other hand, EU law and, in particular, Article 267 TFEU must be interpreted as not precluding such national legislation to the extent that those ordinary courts remain free:

                           —

                           to make a reference to the Court at whatever stage of the proceedings they consider appropriate, and even at the end of the interlocutory procedure for the review of constitutionality, in respect of any question which they consider necessary,

                           —

                           to adopt any measure necessary to ensure interim judicial protection of rights conferred under the EU legal order, and

                           —

                           to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to EU law.
                           It is for the referring court to ascertain whether the national legislation at issue before it can be construed in such a way as to meet those requirements of EU law.

               2)

               Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, if a national court appoints, in accordance with national legislation, a representative in absentia for a defendant upon whom the documents instituting proceedings have not been served because his place of domicile is not known, the appearance entered by that representative does not amount to an appearance being entered by that defendant for the purposes of Article 24 of that regulation.

      (1)  OJ C 226, 3.8.2013.


title: Case C-221/08: Action brought on 22 May 2008 — Commission of the European Communities v Ireland

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/23

         Action brought on 22 May 2008 — Commission of the European Communities v Ireland
   (Case C-221/08)
   (2008/C 209/34)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal, W. Mölls, Agents)

      Defendant: Ireland
   The applicant claims that the Court should:

               —

               declare that by imposing minimum and maximum retail prices for cigarettes, Ireland has failed to comply with its obligations under Article 9(1) of Council Directive 95/59/EC (1) of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco;

               —

               declare that by failing to provide the necessary information on the applicable Irish legislation in order to enable the Commission to fulfil its duty to monitor compliance with Directive 95/59, Ireland has failed to comply with its obligations under Article 10 EC;

               —

               order Ireland to pay the costs.

         Pleas in law and main arguments
   By virtue of the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) (No 2) Regulations 1986 and the arrangements made in implementation of those regulations with tobacco manufacturers and importers, Ireland imposes a minimum price for cigarettes corresponding to a level no more than 3 % below the weighted average price for cigarettes in the category in question. Moreover, in so far as manufacturers and importers may not set prices more than 3 % above that weighted average price, Ireland also imposes a maximum price for cigarettes. Such a system is contrary to Article 9(1) of directive 95/59, under which tobacco manufacturers are ‘free to determine the maximum retail selling price for each of their products’.
   Pursuant to Article 10 EC, the Member States have a duty to facilitate the Commission's tasks, in particular by complying with requests for information made in the course of infringement proceedings. The Commission submits that by failing to provide any information on the applicable Irish legislation, despite the Commission's repeated requests, Ireland has failed to comply with its obligations under Article 10 EC.

      (1)  OJ L 291, p. 40.