title: Judgment of the Court of 26 January 1999 in Case C-18/95 (request for a preliminary ruling by the Gerechtshof te 's-Hertogenbosch): F. C. Terhoeve v. Inspecteur van de Belastingdienst Particulieren/Ondernemingen Buitenland (Freedom of movement for workers - Combined assessment covering income tax and social security contributions - Non-applicability to workers who transfer their residence from one Member State to another of a social contributions ceiling applicable to workers who have not exercised their right to freedom of movement - Possible offsetting by income tax advantages - Possible incompatibility with Community law - Consequences)

text:
10.4.1999             EN                  Official Journal of the European Communities                                    C 100/3
2. Orders the Kingdom of Belgium to pay the costs.                       15 October 1968 on freedom of movement for
                                                                         workers within the Community may be relied on by a
                                                                         worker against the Member State of which he is a
(1) OJ C 228, 26.7.1997.                                                 national where he has resided and been employed in
                                                                         another Member State.
                                                                     2. Article 48 of the Treaty precludes a Member State
                                                                         from levying, on a worker who has transferred his
                                                                         residence in the course of a year from one Member
               JUDGMENT OF THE COURT                                     State to another in order to take up employment there,
                                                                         greater social security contributions than those which
                     of 26 January 1999                                  would be payable, in similar circumstances, by a
                                                                         worker who has continued to reside throughout the
in Case C-18/95 (request for a preliminary ruling by the
                                                                         year in the Member State in question, where the first
Gerechtshof te 's-Hertogenbosch): F. C. Terhoeve v.
                                                                         worker is not also entitled to additional social
Inspecteur      van    de    Belastingdienst     Particulieren/
                                                                         benefits.
                Ondernemingen Buitenland (1)
(Freedom of movement for workers Ð Combined
assessment covering income tax and social security
contributions Ð Non-applicability to workers who                     3. A heavier contributions burden on a worker who
transfer their residence from one Member State to another                transfers his residence from one Member State to
of a social contributions ceiling applicable to workers who              another in order to take up employment there, which
have not exercised their right to freedom of movement Ð                  is in principle incompatible with Article 48 of the
Possible offsetting by income tax advantages Ð Possible                  Treaty, may not be justified either by the fact that it
   incompatibility with Community law Ð Consequences)                    stems from legislation whose objective is to simplify
                                                                         and coordinate the levying of income tax and social
                       (1999/C 100/04)                                   security contributions, or by difficulties of a technical
                                                                         nature preventing other methods of collection, or else
                                                                         by the fact that, in certain circumstances, other
                (Language of the case: Dutch)                            advantages relating to income tax may offset, or
                                                                         indeed outweigh, the disadvantage as to social
                                                                         contributions.
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                     4. When assessing whether the burden of social security
                                                                         contributions borne by a worker who has transferred
                                                                         his residence from one Member State to another in
In Case C-18/95, reference to the Court under Article 177                order to take up employment there is heavier than that
of the EC Treaty by the Gerechtshof te 's-Hertogenbosch                  borne by a worker who has continued to reside in the
(Regional      Court     of    Appeal,       's-Hertogenbosch)           same Member State, all income relevant under
Netherlands, for a preliminary ruling in the proceedings                 national law for determining the amount of
pending before that court between: F. C. Terhoeve and                    contributions, including, as the case may be, income
Inspecteur      van    de    Belastingdienst      Particulieren/         arising from real property, must be taken into account.
Ondernemingen Buitenland (Tax Inspector for Foreign
Individuals and Undertakings) Ð on the interpretation of
Articles 7 and 48 of the EEC Treaty and Article 7(2) of
Regulation (EEC) No 1612/68 of the Council of                        5. If the contested national legislation is incompatible
15 October 1968 on freedom of movement for workers                       with Article 48 of the Treaty, a worker who transfers
within the Community (OJ, English Special Edition 1968                   his residence from one Member State to another in
(II), p. 475) Ð the Court, composed of: P. J. G. Kapteyn,                order to take up employment there is entitled to have
President of the Fourth and Sixth Chambers, acting for the               his social security contributions set at the same level as
President, G. Hirsch and P. Jann, President of Chambers,                 that of the contributions which would be payable by a
G. F. Mancini (Rapporteur), J. C. Moitinho de Almeida,                   worker who has continued to reside in the same
C. Gulmann, J. L. Murray, L. Sevón, M. Wathelet, R.                      Member State.
Schintgen and K. M. Ioannou, Judges; Advocate-General:
D. Ruiz-Jarabo Colomer; D. Louterman-Hubeau, Principal
Administrator, for the Registrar, has given a judgment on
26 January 1999, in which it has ruled:                              (1) OJ C 74, 25.3.1995.
1. Article 48 of the EEC Treaty and Article 7 of
     Regulation (EEC) No 1612/68 of the Council of


title: Case C-326/09: Action brought on 12 August 2009 — Commission of the European Communities v Republic of Poland

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/10

         Action brought on 12 August 2009 — Commission of the European Communities v Republic of Poland
   (Case C-326/09)
   2009/C 312/16
   Language of the case: Polish

      Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek and M. Kaduczak, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

               —

               declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, (1) and in any event by not informing the Commission of the adoption of those provisions, the Republic of Poland has failed to fulfil its obligations under that directive;

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   The time-limit for transposition of Directive 2004/113 expired on 21 December 2007.

      (1)  OJ 2004 L 373, p. 37.


title: Case F-76/15: Judgment of the Civil Service Tribunal (First Chamber) of 28 April 2016 — FY v Council (Civil service — Social security — Joint Sickness Insurance Scheme — Reimbursement of medical expenses — Reimbursement rate — Recognition of a serious illness — Criteria — Article 72 of the Staff Regulations and the General Implementing Provisions for the reimbursement of medical expenses)

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/37

         Judgment of the Civil Service Tribunal (First Chamber) of 28 April 2016 — FY v Council
   (Case F-76/15) (1)

   ((Civil service - Social security - Joint Sickness Insurance Scheme - Reimbursement of medical expenses - Reimbursement rate - Recognition of a serious illness - Criteria - Article 72 of the Staff Regulations and the General Implementing Provisions for the reimbursement of medical expenses))
   (2016/C 222/47)
   Language of the case: French

      Parties

      Applicant: FY (represented by: J.-N. Louis and N. de Montigny, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer and M. Veiga, acting as Agents)

      Re:

   Application for annulment of the decision of the Brussels Settlements Office rejecting the application for extension of the recognition of the illness suffered by the applicant’s son as a serious illness and for the medical expenses connected therewith to be reimbursed at 100 %.

      Operative part of the judgment

   The Tribunal:

               1)

               Annuls the decision of 8 April 2014 of the Brussels (Belgium) Settlements Office for the Joint Sickness Insurance Scheme rejecting the application for extension of the recognition, as a serious illness, of the illness suffered by FY’s son;

               2)

               Orders the Council of the European Union to bear its own costs and is ordered to pay the costs incurred by FY.

      (1)  OJ C 245, 27/7/2015, p. 51.


title: Case F-145/06: Action brought on 22 December 2006 — Pascual García v Commission

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/42

         Action brought on 22 December 2006 — Pascual García v Commission
   (Case F-145/06)
   (2007/C 56/79)
   Language of the case: French
   Parties

      Applicant: César Pascual García (Madrid, Spain) (represented by: B. Cortese and C. Cortese, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the decision of 7 April 2006 of the Director General of the Joint Research Centre (JRC) of the Commission of the European Communities, notified to the applicant on 17 April 2006, in so far as it did not take his application into consideration for the post relating to notice of vacancy COM/2005/2969 — B/3/B*11 — JRC.I.04 — IHCP — Ispra, and added a comment in the reserve list of competition EPSO/B/23/04 (1), informing the Commission's departments that the applicant does not meet the conditions of eligibility for that competition;

               —

               If necessary, annul the decision of the Commission's Appointing Authority of 22 September 2006, notified to the applicant on 13 November 2006, rejecting his claim No R/400/06;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, a successful candidate in general competition EPSO/B/23/04, was not recruited by the JRC because the Director General of the JRC considered that he did not meet the required conditions of eligibility for that competition.
   In his action, the applicant argues that the contested decision: (i) is vitiated by an abuse of procedure in that it unduly modified the assessment of his qualifications and experience done by the selection board, without that board having committed a manifest error of assessment; (ii) infringes the legal framework imposed by the notice of competition; (iii) is vitiated by a manifest error of assessment and a serious failure to state reasons due to its illogical nature; (iv) infringes the principle of the protection of legitimate expectations.
   In the alternative, according to the applicant, the contested decision infringes the principle of equal treatment. Since the provisions of the notice of competition infringe that principle, it must be declared unlawful for the purposes of Article 241 EC.

      (1)  Notice of open competition EPSO/B/23/04 to constitute a reserve pool of laboratory technicians (B 5/B 4) in technical and research fields (OJ C 81A of 31 March 2004, p. 17).


title: Case T-124/07: Action brought on 17 April 2007 — Siemens Transmission & Distribution and Nuova Magrini Galileo v Commission

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/32

         Action brought on 17 April 2007 — Siemens Transmission & Distribution and Nuova Magrini Galileo v Commission
   (Case T-124/07)
   (2007/C 140/54)
   Language of the case: German
   Parties

      Applicants: Siemens Transmission & Distribution SA (Grenoble, France) and Nuova Magrini Galileo SpA (Bergamo, Italy) (represented by H. Wollmann and F. Urlesberger, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Article 1 of the contested decision in so far as it finds that the applicants infringed Article 81 EC and/or Article 53 of the EEA Agreement during the period from 15 April 1988 to 13 December 2000, 1 April 2002 to 9 October 2002, and 21 January 2004 to 11 May 2004;

               —

               annul Article 2 of the contested decision in so far as the applicants are affected;

               —

               in the alternative, reduce the fines reduce the fines imposed on the applicants in Article 2(l) of the decision to an amount not exceeding EUR 2 750 000 for the first and EUR 1 100 000 for the second applicant;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicants contest Commission Decision C(2006) 6762 final of 24 January 2007 in Case COMP/F/38.899 — Gas-isolated switchgear. In the contested decision fines were imposed on the applicants and other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants took part in a set of agreements and concerted practices concerning the gas-isolated switchgear sector.
   The applicants base their application primarily on breach of Article 81(1) EC, Article 23(2) and (3) of Regulation (EC) No 1/2003 (1) and Article 25 of that regulation. In this connection they complain that the fines imposed on them exceed 10 % of their turnover in the last trading year before the decision. Furthermore, the Commission did not take account of the individual circumstances of the applicants when setting the fine. In addition, the applicants assert that the determination of the undertakings together with which they are to be jointly liable and the amounts of the fines imposed on the individual joint debtors are incomprehensible and incorrect. The Commission also exaggerated the duration of the alleged infringement and did not recognise that the limitation period had expired for the predominant part of it. Finally, it is submitted in connection with the first plea in law that the Commission found without cogent proof that until 13 December 2000 the alleged infringement had as its purpose or effect a restriction of competition within the Community.
   Second, the applicants submit that the Commission breached essential procedural requirements. In this connection they complain of a breach of the right to be heard.

      (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, 4.1.2003, p. 1).


title: Case T-249/99: Order of the Court of First Instance of 5 September 2006 — Jongste v Commission

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/30

         Order of the Court of First Instance of 5 September 2006 — Jongste v Commission
   (Case T-249/99) (1)

   (2006/C 261/59)

      Language of the case: Dutch

   The President of the Second Chamber Extended Composition has ordered that the case be removed from the register.

      (1)  OJ C 6, 8.1.2000.


title: Case T-207/11: Action brought on 8 April 2011 — EyeSense v OHIM — Osypka Medical (ISENSE)

text:
               2.7.2011

               EN

               Official Journal of the European Union

               C 194/15

         Action brought on 8 April 2011 — EyeSense v OHIM — Osypka Medical (ISENSE)
   (Case T-207/11)
   2011/C 194/23
   Language in which the application was lodged: German

      Parties

      Applicant: EyeSense AG (Basel, Switzerland) (represented by: N. Aicher, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Osypka Medical GmbH (Berlin, Germany)

      Form of order sought

               —

               Annul the order of the Fourth Board of Appeal of OHIM of 4 February 2011 in Appeal R 1098/2010-4;

               —

               Order the defendant to pay the costs, including the costs of the appeal proceedings before OHIM.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Osypka Medical.

      Community trade mark concerned: Word mark ‘ISENSE’ for goods and services in Classes 9, 10 and 42 — Registration No 7 165 327.

      Proprietor of the mark or sign cited in the opposition proceedings: Applicant.

      Mark or sign cited in opposition: National word mark ‘EyeSense’ for goods and services in Classes 10 and 42.

      Decision of the Opposition Division: Rejection of the opposition.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Breach of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) as there is a likelihood of confusion between the opposing marks.

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


title: Case T-66/02: Action brought on 25 February 2002 by 1. Idiotiko Institouto Epangelmatikis Katartisis, South Avyerinopoulou — Anagnorismenes Technikes Idiotikes Epangelmatikes Skholes; 2. Panellinias Enosis Idiotikon Institouton Epangelmatikis Katartisis; and 3. Idiotikis Teknikis Epangelmatikis Ekpaideusis kai Katartisis, against the Commission of the European Communities

text:
4.5.2002               EN                      Official Journal of the European Communities                                        C 109/67
Action brought on 4 March 2002 by Michelle Boisset-                       However, by referring to a notice determining rights to an
            Chetaud against European Parliament                           invalidity pension issued by the head of division in Directorate
                                                                          General V — Personnel, the appointing authority took as the
                                                                          sole criterion that of residence.
                          (Case T-65/02)
                        (2002/C 109/125)
                    (Language of the case: French)
                                                                          Action brought on 25 February 2002 by 1. Idiotiko
                                                                          Institouto Epangelmatikis Katartisis, South Avyerinopou-
An action against the European Parliament was brought before              lou — Anagnorismenes Technikes Idiotikes Epangelma-
the Court of First Instance of the European Communities on                tikes Skholes; 2. Panellinias Enosis Idiotikon Institouton
4 March 2002 by Michelle Boisset-Chetaud, residing in Nice                Epangelmatikis Katartisis; and 3. Idiotikis Teknikis Epan-
(France), represented by Laurent Mosar, lawyer, with an address           gelmatikis Ekpaideusis kai Katartisis, against the Com-
for service in Luxembourg.                                                            mission of the European Communities
                                                                                (Case T-66/02)
The applicant claims that the Court should:
                                                                                (2002/C 109/126)
—     Annul the decision following from the letter of 27 June
      2001 by which the European Parliament suspended the
      application of the weighting for France from 1 June 2001                                (Language of the case: Greek)
      until the production of documents showing unambigu-
      ously that Michelle Boisset-Chetaud’s centre of interests is
      in Nice;
                                                                          An action against the Commission of the European Communi-
—     Annul the decision of the Secretary General of the                  ties was brought before the Court of Justice of the European
      European Parliament in a letter of 6 December 2001, in              Communities on 25 February 2002 by 1. Idiotiko Institouto
      response to the applicant’s complaint, that following that          Epangelmatikis Katartisis (Private institute for occupational
      decision the documents produced by Michelle Boisset-                training), South Avyerinopoulou — Anagnorismenes Technik-
      Chetaud did not allow the head of the Social Affairs                es Idiotikes Epangelmatikes Skholes (Accredited private techni-
      Division to consider that she had established her centre            cal training schools); 2. Panellinias Enosis Idiotikon Institouton
      of interests, and hence the place where she is deemed to            Epangelmatikis Katartisis (Panhellenic Association of private
      incur expenditure, in Nice.                                         institutions for occupational training); 3. Idiotikis Teknikis
                                                                          Epangelmatikis Ekpaideusis kai Katartisis (Panhellenic Associ-
                                                                          ation of private technical education and training).
Pleas in law and main arguments                                           The applicants claim that the Court should:
                                                                          —     uphold the application for a declaration of the failure by
The applicant in this case contests the refusal of the appointing               the Commission of the European Communities to bring
authority to consider that her centre of interests is in Nice and               to an end the unlawful distinction between private and
that the weighting for France should therefore be applied to                    public bodies engaged in occupational training as regards
her retirement pension.                                                         the exclusive funding of the latter under the 3rd commun-
                                                                                ity support network and, in particular, under the oper-
                                                                                ational programme concerning education and initial
In support of her application, she submits that there has been                  occupational training (II).
a breach of Article 82 of the Staff Regulations. The applicant
asserts that the concept of residence mentioned there has been
the subject of judicial interpretation intended to establish that
a person sets up a permanent and habitual centre at the place
                                                                          Pleas in law and main arguments
where he resides. In assessing the criteria for residence, the
defendant must rely on objective elements such as a certificate
of residence. In this respect, the applicant submitted not only           —     Infringement of Article 87 EC: the proposed exclusive
a certificate of residence but also numerous other documents,                   funding of public occupational-training bodies consti-
such as the notarial act concerning the purchase of a flat, a                   tutes State (and Community) aid which does not concern
notice of change of address, and various bills.                                 general measures nor is justified by the actual require-
 ---pagebreak--- C 109/68             EN                       Official Journal of the European Communities                                      4.5.2002
     ments of public education. Such one-sided funding                   The applicant claims that the Court should:
     distorts competition and affects trade between the Mem-
     ber States.                                                         —     annul the Commission’s first refusal of access to docu-
                                                                               ments communicated to the applicant by letter of
—    Infringement of the principle of equality under Article 12                19       December        2001,        prot.      D/55293
     EC: exclusive funding of public bodies dispensing occu-                   COMP/G1/PI/cpbD(01)1704 and the second refusal of
     pational and technical education introduces unlawful                      access pursuant upon the absence of any reply to the
     discrimination against the private bodies dispensing occu-                applicant’s confirmatory application sent to the Secretary-
     pational training, inasmuch as that discrimination is not                 General of the Commission by letter of 14 January 2002;
     necessitated by any overriding public interest.                     —     order the Commission of the European Communities to
                                                                               pay the costs of these proceedings.
—    Infringement of the principle of subsidiarity.
                                                                         Pleas in law and main arguments
                                                                         In this action, the applicant challenges the defendant’s refusal
                                                                         to grant access to certain documents relating to the State aid
                                                                         regime which was the subject of the Commission’s decision of
Action brought on 18 March 2002 by Mara Messina                          2 August 2000 concerning measures to promote investment
  against the Commission of the European Communities                     in less-favoured regions of Italy referred to in Law
                                                                         No 488/1992 (State Aid no N 715/99).
                        (Case T-76/02)                                   —     In support of that claim, the applicant argues infringe-
                                                                               ment of Article 4(2) of Regulation (EC) No 1049/2001 of
                      (2002/C 109/127)                                         the European Parliament and of the Council of 30 May
                                                                               2001 regarding public access to European Parliament,
                                                                               Council and Commission documents in that:
                  (Language of the case: Italian)
                                                                         —     no reply was given within the prescribed time-limit to the
                                                                               confirmatory application concerning the application for
                                                                               access;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               —     disclosure of the documents requested would in no way
European Communities on 18 March 2002 by Mara Messina,                         harm the public interest in protecting inspections and
represented by Michele Arcangelo Calabrese.                                    investigations or court proceedings.


title: Case C-482/04 P: Appeal brought on 22 November 2004 by SNF S.A.S. against the order made on 6 September 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-213/02 between SNF S.A. and the Commission of the European Communities

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/15

         Appeal brought on 22 November 2004 by SNF S.A.S. against the order made on 6 September 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-213/02 between SNF S.A. and the Commission of the European Communities
   (Case C-482/04 P)
   (2005/C 19/29)
   Language of procedure: English
   An appeal against the order made on 6 September 2004 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-213/02 (1) between SNF S.A. and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 22 November 2004 by SNF S.A.S, established in Andrézieux, France, represented by Messrs K. Van Meldegem and C. Mereu, lawyers.
   The Appellant claims that the Court should:

               —

               declare the present appeal admissible and well-founded;

               —

               set aside the order of the Court of First Instance of 6 September 2004 in case T-213/02;

               —

               declare the Apellant's requests in case T-213/02 admissible;

               —

               rule on the merits or, in the alternative, refer the case to the Court of First Instance to rule on the merits; and

               —

               order the European Commission to bear all costs and expenses of both proceedings.

         Pleas in law and main arguments
   The Appellant submits that the contested order of the Court of First Instance should be set aside on the following grounds:

               a)

               The Court of First Instance misinterpreted Article 114(1) of the Rules of Procedure and infringed the principle of legal effectiveness and the duty to state reasons;

               b)

               The Court of First Instance erred in law in the legal assessment of the facts;

               c)

               The order of the Court of First Instance infringes the right to complete and effective judicial protection, and the right to a fair hearing.

      (1)  OJ C 233, 28.9.2002, p. 28.


title: Case C-482/99: Action brought on 20 December 1999 by the French Republic against the Commission of the European Communities

text:
C 63/14                EN                     Official Journal of the European Communities                                       4.3.2000
2. The Court of First Instance erred in law in failing to find              the legal categorisation of the facts). In any event, the
     that the Commission should have notified the Appellants                Commission fails entirely to explain why it concluded that
     of its Decision when they formally requested notification              the mere finding that an undertaking is public in nature
     on 24 August 1998;                                                     suffices to establish that resources made available within
                                                                            the meaning of Article 87 of the Treaty must be public in
3. The Appellants’ rights of defence were infringed during                  origin (breach of the obligation to state reasons). Finally,
     the proceedings before the Court of First Instance, consti-            the Commission did not even examine whether or not the
     tuting a breach of procedure;                                          measures which it challenged were attributable to the State
                                                                            (error of law).
4. The Court of First Instance’s decision manifestly distorted
     the clear sense of the evidence, and amounted to an
     incorrect legal assessment of the facts.
                                                                         — (In the alternative): manifest error of assessment in
                                                                            determining whether SBT and Altus had acted prudently
(1) OJ C 358 of 21.11.1998, p. 19.                                          in providing funds to Stardust: it was not until the close of
(2) OJ C 174 of 19.6.1999, p. 6.                                            the accounts on 30 June 1995, when it was confirmed that
                                                                            there had been a considerable loss (FRF 362 million)
                                                                            attributable to the discovery and inclusion of the conse-
                                                                            quences of the fraudulent activities of the former directors,
                                                                            that the financial commitment made by SBT/Altus turned
                                                                            out to be of the disproportionate nature criticised by
                                                                            the Commission. Prior to that date, however, Stardust’s
                                                                            accounts reflected a situation which was acceptable for a
Action brought on 20 December 1999 by the French                            company just starting up. The Commission errs in refusing
Republic against the Commission of the European Com-                        to take account of the various cases of fraud in order to
                             munities                                       determine whether or not SBT acted prudently, on the
                                                                            ground in particular that, pending the decisions of the
                                                                            national courts seised of those cases, it cannot comment
                         (Case C-482/99)                                    on them.
                          (2000/C 63/27)
                                                                         — Internal contradictions in the grounds of the contested
An action against the Commission of the European Communi-                   decision, particularly with regard to the identification of
ties was brought before the Court of Justice of the European                the provider of the aid, since the Commission at times
Communities on 20 December 1999 by the French Republic,                     focuses its attention on Crédit Lyonnais and the CDR
represented by Kareen Rispal-Bellanger and Frédérik Million,                jointly, at times on Crédit Lyonnais alone, and at times on
acting as Agents, with an address for service in Luxembourg at              the CDR alone. The Commission’s entire reasoning appears
the French Embassy, 8B Boulevard Joseph II.                                 to be based on the supposition that the aid is attributable
                                                                            in its entirety to Crédit Lyonnais, including recapitalisations
The French Republic claims that the Court should:                           subsequent to debt restructuring which were only deferred
                                                                            to the charge of the CDR, whereas the actual operative
— Annul in its entirety the decision of 8 September 1999                    part of the decision, in contrast, focuses on the aid from
     adopted by the Commission of the European Communities                  the CDR to Stardust and orders it to be recovered.
     on the basis of Articles 87 EC and 88 EC concerning aid
     for the Stardust Marine undertaking;
                                                                         — Infringement of the principle of legal certainty: the contest-
— Order the Commission to pay the costs.                                    ed decision clearly overlooks important aspects of the
                                                                            Commission’s previous decisions on aid granted to Crédit
                                                                            Lyonnais. First, the Commission’s approach in the contest-
Pleas in law and main arguments                                             ed decision has the effect of excluding the possibility
                                                                            for the CDR to dispose of assets (if appropriate, after
— Breach of Article 87(1) EC: the contested decision miscon-                recapitalisation), even if this option is, as in the case of
     strues the concept of public resources inasmuch as the                 Stardust, the most rational from the economic point of
     Commission takes the view therein that the ostensibly                  view and thus corresponds to the task conferred on it.
     public nature of the resources made available by subsidia-             Second, the Commission refuses to accord any significance
     ries and subsubsidiaries of Crédit Lyonnais (Altus Finance             whatever to the care with which the CDR acted.
     and SBT) is a matter of fact not open to challenge. The
     public nature of the resources of an undertaking cannot be
     inferred merely from the fact that the undertaking belongs
     to the public sector (error of law). In this case, SBT and          — Breach of the French Government’s rights of defence:
     Altus (subsidiaries of Crédit Lyonnais) did not, at the time           within the context of the written administrative procedure,
     of the interventions for which they are criticised, have any           the Commission at no time indicated its intention to apply
     budgetary allocations or any other State resources (error in           the notion of continuity of State action, that is to say, to
 ---pagebreak--- 4.3.2000                 EN                   Official Journal of the European Communities                                       C 63/15
     attribute all of the measures in support of Stardust to the         Pleas in law and main arguments
     allegedly careless conduct of SBT and Altus prior to debt
     restructuring. This notion appears only in the contested            — Infringement of the freedom to provide
     decision and is none the less the key concept therein.                  services.
                                                                             (a) Bar to participation in a construction consortium: the
                                                                                provision in Paragraph 1(1), second sentence, of the
                                                                                Gesetz zur Regelung der gewerbsmässigen Arbeit-
                                                                                nehmerüberlassung (Law governing commercial
                                                                                deployment of employees) (‘the AÜG’), under which
                                                                                the secondment of employees to carry out work
Action brought on 21 December 1999 by the Commission                              does not, under specified circumstances, constitute a
of the European Communities against the Federal Repub-                            deployment of employees for which authorisation
                           lic of Germany                                         is required, is of considerable importance to the
                                                                                construction industry. However, since the exception is
                                                                                predicated on the condition that German collective
                          (Case C-493/99)                                         agreements within the same (German) economic sector
                                                                                apply to all members of a consortium, construction
                                                                                companies from other Member States can participate
                           (2000/C 63/28)                                         in a consortium only if they maintain a subsidiary
                                                                                in Germany with construction workers working in
An action against the Federal Republic of Germany was                             Germany and are thus able to be party to collective
brought before the Court of Justice of the European Communi-                      agreements. They cannot deploy employees from their
ties on 21 December 1999 by the Commission of the European                        place of establishment or their subsidiaries in other
Communities, represented by Jörn Sack, Legal Adviser, acting                      Member States to a consortium established in Ger-
as Agent, with an address for service in Luxembourg at the                        many, which normally takes the form of a private-law
office of Carlos Gómez de la Cruz, of the Commission’s Legal                     company, without the consortium thereby forfeiting
Service, Wagner Centre C 254, Kirchberg.                                          the possibility of invoking the abovementioned dero-
                                                                                gating provision, with the result that such employees
                                                                                would be unlawfully deployed. For that reason, under-
The applicant claims that the Court should:                                       takings from other Member States covered by non-Ger-
                                                                                man collective agreements within the same economic
(1) declare that the Federal Republic of Germany has failed to                    sector are not at all accepted in such consortia set up
     fulfil its obligations under Articles 43 EC and 49 EC, by                    or to be set up in Germany. To that extent they cannot
     providing through legislation that construction companies                    exercise the freedom to provide services guaranteed by
     established in other Member States may:                                      the EC Treaty.
     (a) provide transfrontier services on the German market                 (b) Exclusion from the deployment of employees among
          as part of a consortium (Arbeitsgemeinschaft) only if                   construction companies: the deployment of employees
          they have a registered office or at least a subsidiary in               for work normally carried out by workers has in
          Germany employing their own staff and have con-                         principle been unlawful within the construction indus-
          cluded a company-wide collective agreement for those                    try since 1 January 1998 under Paragraph 1b, first
          staff;                                                                  sentence, of the AÜG. The second sentence of that
                                                                                provision, however, permits this between firms in the
     (b) deploy workers on a transfrontier basis to other                         construction industry if they are covered by the same
          construction companies only if they have a registered                   framework and social-welfare collective agreements or
          office or at least a subsidiary in Germany employing                    are generally bound by such agreements. Undertakings
          their own staff and are, as members of a German                         (in the vast majority foreign undertakings) which do
          employers’ association, covered by a framework and                      not satisfy those conditions are thereby also precluded
          social-welfare collective agreement;                                    from providing so-called mutual assistance (Kollegen-
                                                                                hilfe) to German companies, or even to companies in
     (c) not establish a subsidiary in Germany which is recog-                    Germany belonging to their own commercial group.
          nised as a construction company if its staff is respon-
          sible exclusively for duties concerning administration,            Grounds of public safety and health can in the present case
          marketing, planning, supervision and/or wages and                  be discounted from the outset as a basis for justification
          salaries; in order to be so recognised, such a subsidiary          (Article 55 EC in conjunction with Article 46 EC). Even if
          must, within the labour area of Germany, employ                    one wished to consider the social order in general as
          workers who provide construction services accounting               constituting part of public policy of a Member State within
          for more than 50 % of the company’s total working                  the meaning of Article 46, the German measures cannot
          time;                                                              be justified on that basis either, since they are general in
                                                                             nature and do not in any wise focus on the question
(2) order the Federal Republic of Germany to pay the costs of                whether the wages and social provisions guaranteed to the
     the proceedings.                                                        employees may in fact point to ‘pay-related dumping’.


title: Case T-56/11: Judgment of the General Court of 16 December 2015 — SAS Cargo Group and Others v Commission (Competition — Agreements, decisions and concerted practices — European airfreight market — Agreements and concerted practices in respect of several elements of the pricing of airfreight services (imposition of fuel and security surcharges, refusal to pay commission on surcharges) — Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and Switzerland on Air Transport — Obligation to state reasons)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/38

         Judgment of the General Court of 16 December 2015 — SAS Cargo Group and Others v Commission
   (Case T-56/11) (1)

   ((Competition - Agreements, decisions and concerted practices - European airfreight market - Agreements and concerted practices in respect of several elements of the pricing of airfreight services (imposition of fuel and security surcharges, refusal to pay commission on surcharges) - Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and Switzerland on Air Transport - Obligation to state reasons))
   (2016/C 048/42)
   Language of the case: English

      Parties

      Applicants: SAS Cargo Group A/S (Kastrup, Denmark); Scandinavian Airlines System Denmark-Norway-Sweden (Stockholm, Sweden); and SAS AB (Stockholm) (represented initially by M. Kofmann, B. Creve, lawyers, I. Forrester QC, J. Killick and G. Forwood, Barristers, and subsequently by M. Kofmann, B. Creve, J. Killick and G. Forwood)

      Defendant: European Commission (represented initially by N. von Lingen, V. Bottka and S. Noë, and subsequently by V. Bottka and A. Dawes, acting as Agents, and by B. Doherty, Barrister)

      Intervener in support of the defendant: Council of the European Union (represented by: F. Florindo Gijón and M. Simm, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 — Airfreight).

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 — Airfreight), in so far as it concerns SAS Cargo Group A/S, Scandinavian Airlines System Denmark-Norway-Sweden and SAS AB;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the European Commission to bear its own costs and to pay those of SAS Cargo Group, Scandinavian Airlines System Denmark-Norway-Sweden and SAS;

               4.

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

      (1)  OJ C 89, 19.3.2011.


title: Case C-412/13 P: Appeal brought on 19 July 2013 by Franz Wilhelm Langguth Erben GmbH & Co. KG against the judgment delivered on 20 February 2013 in Case T-378/11 Franz Wilhelm Langguth Erben GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               12.10.2013

               EN

               Official Journal of the European Union

               C 298/3

         Appeal brought on 19 July 2013 by Franz Wilhelm Langguth Erben GmbH & Co. KG against the judgment delivered on 20 February 2013 in Case T-378/11 Franz Wilhelm Langguth Erben GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-412/13 P)
   2013/C 298/04
   Language of the case: German

      Parties

      Appellant: Franz Wilhelm Langguth Erben GmbH & Co. KG (represented by: R. Kunze and G Würtenberger, Rechtsanwälte)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM)

      Forms of order sought

   The Appellant claims that the Court should:

               —

               set aside the judgment of the General Court of 20 February, dismissing an action against the decision of the Fourth Board of Appeal of OHIM of 10 May 2011 (Case R-1598/2010-4) relating to a claim of seniority of earlier marks;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

   The appeal is brought against the judgment of the General Court dismissing the Appellant’s claim for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 10 May 2011 relating to a claim of seniority of earlier marks in an application for registration of the figurative sign MEDINET as a Community trade mark.
   The General Court infringed Article 34 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark by holding that that provision was to be interpreted narrowly and did not allow the seniority of part of an earlier national mark to be claimed. It further infringed its duty to state reasons under Article 75 of Regulation No 207/2009, in that it came to its decision on the basis of incomplete factual and legal considerations. Finally, the decision of the General Court without an oral procedure constituted a breach of Article 77 of Regulation No 207/2009.


title: Case C-537/09: Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 21 December 2009 — Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor v Secretary of State for Work and Pensions

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/29

         Reference for a preliminary ruling from Upper Tribunal (United Kingdom) made on 21 December 2009 — Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor v Secretary of State for Work and Pensions
   (Case C-537/09)
   2010/C 63/48
   Language of the case: English

      Referring court

   Upper Tribunal

      Parties to the main proceedings

      Applicants: Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor

      Defendant: Secretary of State for Work and Pensions

      Questions referred

               1.

                           (a)

                           In relation to periods to which the form of Council Regulation (EEC) No 1408/71 (1) of 14 June 1971 in force immediately before 5 May 2005 applies, is the mobility component of disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 capable of being categorised separately from disability living allowance as a whole as either a social security benefit within Article 4(1) of the Regulation or a special non-contributory benefit within Article 4(2a) or otherwise?

                           (b)

                           If the answer to (a) is yes, what is the proper category?

                           (c)

                           If the answer to (a) is no, what is the proper category for disability living allowance?

                           (d)

                           If the answer to (b) or (c) is categorisation as a social security benefit, is the benefit in question an sickness benefit within Article 4(l)(a) or an invalidity benefit within Article 4(l)(b)?

                           (e)

                           Are the answers to any of the above questions affected by the temporal limitation in point 2 of the Court's ruling in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05, [2007] ECR I-8695?

               2.

                           (a)

                           In relation to periods to which the form of Council Regulation (EEC) No 1408/71 of 14 June 1971 in force from 5 May 2005 by virtue of Council Regulation (EC) No 647/2005 (2) of 13 April 2005 applies, is the mobility component of disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 capable of being categorised separately from disability living allowance as a whole as either a social security benefit within Article 4(1) of the Regulation or a special non-contributory benefit within Article 4(2a) or otherwise?

                           (b)

                           If the answer to (a) is yes, what is the proper category?

                           (c)

                           If the answer to (a) is no, what is the proper category for disability living allowance?

                           (d)

                           If the answer to (b) or (c) is categorisation as a social security benefit, is the benefit in question an sickness benefit within Article 4(l)(a) or an invalidity benefit within Article 4(l)(b)?

               3.

               If the answers to the previous questions produce the outcome that mobility component is properly to be categorised as a special non-contributory benefit, is any other rule or principle of EC law relevant to the question of whether the United Kingdom is entitled to rely on any of the residence and presence conditions in regulation 2(l)(a) of the Social Security (Disability Living Allowance) Regulations 1991 in circumstances like those of the present cases?

      (1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community
   OJ L 149, p. 2

      (2)  Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71
   OJ L 117, p. 1


title: Case C-562/07: Judgment of the Court (First Chamber) of 6 October 2009 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Free movement of capital — Article 56 EC and Article 40 of the EEA Agreement — Direct taxation — Natural persons — Taxation of capital gains — Difference in treatment of residents and non residents)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/5

         Judgment of the Court (First Chamber) of 6 October 2009 — Commission of the European Communities v Kingdom of Spain
   (Case C-562/07) (1)

   (Failure of a Member State to fulfil obligations - Free movement of capital - Article 56 EC and Article 40 of the EEA Agreement - Direct taxation - Natural persons - Taxation of capital gains - Difference in treatment of residents and non residents)
   2009/C 282/08
   Language of the case: Spanish

      Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal and I. Martínez del Peral, acting as Agents)

      Defendant: Kingdom of Spain (represented by: M. Muñoz Pérez, acting as Agent)

      Re:

   Failure of a Member State to fulfil obligations — Breach of Articles 39 EC and 56 EC and of Articles 28 and 40 of the EEA Agreement — Difference in treatment, with regard to the taxation of income received in Spain, between residents and non-residents

      Operative part of the judgment

   The Court:

               1.

               Declares that, by treating differently, until 31 December 2006, capital gains realised in Spain according to whether they were made by residents or by non-residents, the Kingdom of Spain failed to fulfil its obligations under Article 56 EC and Article 40 of the Agreement on the European Economic Area of 2 May 1992.

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 64, 8.3.2008.


title: Case C-34/08: Judgment of the Court (First Chamber) of 14 May 2009 (reference for a preliminary ruling from the Tribunale ordinario di Padova (Italy)) — Azienda Agricola Disarò Antonio and Others v Cooperativa Milka 2000 Soc. coop. arl (Agriculture — Common organisation of the markets — Milk quotas — Levy — Validity of Regulation (EC) No 1788/2003 — Objectives of the common agricultural policy — Principles of non-discrimination and proportionality — Determination of the national reference quantity — Criteria — Relevance of the criterion of a Member State’s milk production deficit)

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/11

         Judgment of the Court (First Chamber) of 14 May 2009 (reference for a preliminary ruling from the Tribunale ordinario di Padova (Italy)) — Azienda Agricola Disarò Antonio and Others v Cooperativa Milka 2000 Soc. coop. arl
   (Case C-34/08) (1)

   (Agriculture - Common organisation of the markets - Milk quotas - Levy - Validity of Regulation (EC) No 1788/2003 - Objectives of the common agricultural policy - Principles of non-discrimination and proportionality - Determination of the national reference quantity - Criteria - Relevance of the criterion of a Member State’s milk production deficit)
   2009/C 153/21
   Language of the case: Italian

      Referring court

   Tribunale ordinario di Padova

      Parties to the main proceedings

      Applicant: Azienda Agricola Disarò Antonio and Others

      Defendant: Cooperativa Milka 2000 Soc. coop. arl

      Re:

   Reference for a preliminary ruling — Tribunale ordinario di Padova — Interpretation and validity of Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector (OJ 2003 L 270, p.123) — Regulation under which (i) no account is taken of the periodic updating for each country of the reference quantities exempt from the levy and (ii) the additional levy is applied in an identical manner to producers with surplus milk production and to those in deficit — Incompatibility with Articles 5, 32, 33 et 34 EC

      Operative part of the judgment

               1.

               The fact that Council Regulation (EC) No 1788/2003 of 29 September 2003 establishing a levy in the milk and milk products sector does not take into account, for the purposes of determining the national reference quantity, the fact that the Member State concerned has a milk production deficit is not capable of affecting the compatibility of that regulation with the objectives laid down, in particular, in Article 33(1)(a) and (b) EC.

               2.

               The analysis of Regulation No 1788/2003 in the light of the principle of non-discrimination has not disclosed any factor which might affect the validity of that regulation.

               3.

               The analysis of Regulation No 1788/2003 in the light of the principle of proportionality has not disclosed any factor which might affect the validity of that regulation.

      (1)  OJ C 92, 12.4.2008.


title: Joined Cases C-439/04 and C-440/04: Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Axel Kittel v Belgian State (Sixth VAT Directive — Deduction of input tax — Carousel fraud — Contract of sale incurably void under domestic law)

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/4

         Judgment of the Court (Third Chamber) of 6 July 2006 (reference for a preliminary ruling from the Cour de cassation — Belgium) — Axel Kittel v Belgian State
   (Joined Cases C-439/04 and C-440/04) (1)

   (Sixth VAT Directive - Deduction of input tax - ‘Carousel’ fraud - Contract of sale incurably void under domestic law)
   (2006/C 212/07)
   Language of the case: French
   Referring court
   Cour de cassation
   Parties to the main proceedings

      Applicants: Axel Kittel (C-439/04) Belgian State (C-440/04)

      Defendants: Belgian State (C-439/04) Recolta Recycling SPRL (C-440-04)
   Re:
   Reference for a preliminary ruling — Belgian Cour de Cassation — Interpretation 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 assessment (OJ 1977 L 145, p. 1) — Principle of fiscal neutrality — Supplies of goods under a contract of sale which is incurably void — Carousel fraud — Loss of the right to deduct for a purchaser in good faith
   Operative part of the judgment
   Where a recipient of a supply of goods is a taxable person who did not and could not know that the transaction concerned was connected with a fraud committed by the seller, Article 17 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 assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that it precludes a rule of national law under which the fact that the contract of sale is void — by reason of a civil law provision which renders that contract incurably void as contrary to public policy for unlawful basis of the contract attributable to the seller — causes that taxable person to lose the right to deduct the value added tax he has paid. It is irrelevant in this respect whether the fact that the contract is void is due to fraudulent evasion of value added tax or to other fraud.
   By contrast, where it is ascertained, having regard to objective factors, that the supply is to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of value added tax, it is for the national court to refuse that taxable person entitlement to the right to deduct.

      (1)  OJ C 6, 08.01.2005.


title: Case T 470/08: Order of the Court of First Instance of 5 May 2009 – Commission v Eurgit et Cirese

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/50

         Order of the Court of First Instance of 5 May 2009 – Commission v Eurgit et Cirese
   (Case T 470/08) (1)

   2009/C 153/96

      Language of the case: Italian

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

      (1)  OJ C 327, 20.12.2008.


title: Case C-239/00 P: Appeal brought on 13 June 2000 by the Council of the European Union against the judgment delivered on 6 April 2000 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-188/98 between Aldo Kuĳer and the Council of the European Union

text:
C 247/18              EN                   Official Journal of the European Communities                                      26.8.2000
Reference for a preliminary ruling by the High Court of                     joint missions or reports of missions undertaken by the
Justice (England & Wales), Queen’s Bench Division                           Member States sent to the Centre, and to the list of
(Crown Office), by order of that court of 25 May 2000, in                   contact persons in the Member States involved with
the case of The Queen against the Minister of Agriculture,                  asylum cases; orders the Council to pay the Applicant’s
     Fisheries and Food, ex parte: F. Machin & Sons Ltd                     costs and to bear its own costs.
                        (Case C-234/00)                               —     to decide to give final judgment in the matter, to dismiss
                                                                            the Application at First Instance as unfounded and to
                        (2000/C 247/23)                                     order the Applicant at First Instance to pay the costs of
                                                                            the proceedings before the Court of First Instance;
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales) Queen’s Bench Division (Crown               —     to decide on the costs of this Appeal as it sees fit.
office) of 25 May 2000, which was received at the Court
Registry on 13 June 2000, for a preliminary ruling in the case
of The Queen against the Minister of Agriculture, Fisheries and
Food, ex parte: F. Machin & Sons Ltd, on the following question:      Pleas in law and main arguments
‘Is a transporter allowed to rely on point 8 of Chapter VII of
the Annex to Council Directive 91/628/EEC on the protection           The Council appeals to the Court of Justice against the decision
of animals during transport (OJ 1991 L 340, p. 17), as                of the Court of First Instance on the grounds that it considers,
amended by Council Directive 95/29/EC (OJ 1995 L 148,                 as it has already asserted in its appeal (Case C-353/99 P)
p. 52), in planning a journey and when submitting a route             against the judgment of the Court of First Instance of 18 July
plan for that journey, or may point 8 only be relied on if an         1999 in Case T-14/98 (Heidi Hautala v. Council of the
unexpected delay has arisen during the course of the journey?’        European Union), that the former committed a fundamental
                                                                      error of law in interpreting, in this judgment, Article 4(1) of
                                                                      the decision on public access to Council documents as legally
                                                                      requiring the Council to consider whether access should be
                                                                      given to parts of a document to which access is requested.
                                                                      That judgment was confirmed and applied by the Court of
                                                                      First Instance in the present case. The Council therefore
                                                                      contests the Court’s findings as regards the Applicant’s plea of
Appeal brought on 13 June 2000 by the Council of                      breach of Decision 93/731/EC (1) in that the Council did not
the European Union against the judgment delivered on                  grant partial access to the document, on grounds that they are
6 April 2000 by the Fourth Chamber of the Court of First              based on legally erroneous assumptions.
Instance of the European Communities in case T-188/98
between Aldo Kuijer and the Council of the European
                             Union
                                                                      The arguments on which the Council relies are that the Court
                                                                      of First Instance, in its judgment of 19 July 1999 in Case
                       (Case C-239/00 P)                              T-14/98, and consequently in the present case,
                        (2000/C 247/24)
                                                                      (a)   incorrectly construed the legal effect of the decision on
                                                                            public access to Council documents,
An appeal against the judgment delivered on 6 April 2000 by
the Fourth Chamber of the Court of First Instance of the
European Communities in case T-188/98 between Aldo Kuijer             (b) misconstrued the objective of the decision on public
and the Council of the European Union, was brought before                   access to Council documents,
the Court of Justice of the European Communities on 13 June
2000 by the Council of the European Union, represented by
Mrs Jill Aussant and Mr Martin Bauer, respectively, Director          (c)   misapplied the principal of proportionality,
and Legal Adviser in the Council Legal Service, with an address
for service in Luxembourg care of Mr Alessandro Morbilli,
European Investment Bank, 100 Boulevard Konrad Adenauer,              which led it to an erroneous interpretation of Article 4(1) of
L-2925 Luxembourg.                                                    Decision 93/731/EC.
The Appellant claims that the Court should:
                                                                      (1) Council decision 93/731/EC of 20 December 1993 on public
—     set aside the judgment of the Court of First Instance of            access to Council documents, OJ L 340, 31.12.1993, p. 43-44.
      6 April 2000 by which it annuls the Council’s decision
      of 28 September 1998, as amended by the decision of
      18 May 1999, refusing the Applicant access to certain
      reports drawn up by the centre for Information, Dis-
      cussion and Exchange on Asylum, to certain reports of


title: Case C-198/11 P: Appeal brought on 28 April 2011 by Lan Airlines S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 February 2011 in Case T-194/09 Lan Airlines S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/16

         Appeal brought on 28 April 2011 by Lan Airlines S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 February 2011 in Case T-194/09 Lan Airlines S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.
   (Case C-198/11 P)
   2011/C 186/28
   Language of the case: Spanish

      Parties

      Appellant: Lan Airlines S.A. (represented by: E. Armijo Chávarri, abogado)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.

      Form of order sought

               —

               Set aside the judgment of the General Court of 8 February 2011 in its entirety.

               —

               Deliver a new judgment on the substance of the case (the opposition brought by LAN Airlines, S.A. against Air Nostrum’s Community trade mark application for the word mark LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM) or refer the case back to the General Court for judgment.

               —

               In any event, order OHIM to pay the costs.

      Pleas in law and main arguments

      Error in the General Court’s interpretation of Article 8(1)(b) of Regulation No 40/94
       (1)
      (now Regulation No 207/09)
       (2)

   The appeal alleges infringement by the judgment under appeal of the case-law that states that the global assessment of the likelihood of confusion must be based, in relation to the visual, aural or conceptual similarity of the signs at issue, on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components when those components by themselves dominate the image of the composite mark.
   The appellant submits that the General Court did not take into account the relevant elements of the case (essentially the particular features of the sector, the nature of the Community trade mark application and the criterion of the perception of the relevant consumer) when it evaluated the actual effect of the ‘LAM’ element, incorporated in the contested trade mark application, on the average Spanish consumer’s perception of the mark.
   The appellant submits that the correct assessment of the circumstances of the case should have led the General Court to recognise that the contested trade mark application would be perceived, first and foremost, in light of the ‘LAM’ acronym and to compare that trade mark application with the appellant’s marks by reference to that element.
   The premiss upon which the appeal is brought is that if the General Court had recognised that point, it would have appreciated that there was a likelihood of confusion between the LÍNEAS AÉREAS DEL MEDITERRÁNEO Community trade mark application and the appellant’s LAN trade marks.

      (1)  Council Regulation of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

      (2)  Council Regulation of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case T-407/05: Action brought on  16 November 2005  — Evian v OHIM

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/18

         Action brought on 16 November 2005 — Evian v OHIM
   (Case T-407/05)
   (2006/C 22/34)
   Language in which the application was lodged: German
   Parties

      Applicant: Société Anonyme des Eaux Minérales d'Evian (Evian, France) (represented by: C. Herzt-Eichenrode, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: A. Racke GmbH & Co. OHG (Bingen, Germany)
   Form of order sought
   The applicant claims that the Court should:

               —

               annul decision no 2754/2001 of the Opposition Division of OHIM of 23 November 2001;

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 July 2005 (Case R 82/2002-4);

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: A. Racke GmbH & Co. OHG

      Community trade mark concerned: The figurative mark ‘REVIAN's’ in gold, black and white for goods in Class 33 (Wine and sparkling wine) — Application No 945 758

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

      Mark or sign cited in opposition: The national and international word and figurative marks ‘EVIAN’ for goods in Classes 32 and 33 (beer, alcoholic beverages, water, lemonades…)

      Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the likelihood of confusion between the marks was rejected without assessment as to the distinctive character of the mark EVIAN and as there was an error in law in appraising the similarity of the goods.
   Moreover, the opposition was not unfounded as the translations required under Rule 17(2) of Commission Regulation No 2868/95 were submitted.


               30.12.2006

               EN

               Official Journal of the European Union

               C 326/3

         Appointment of the First Advocate General
   (2006/C 326/06)
   Under the third subparagraph of Article 10(1) of the Rules of Procedure, the Court of Justice appointed Ms Kokott as First Advocate General for a period of one year ending on 6 October 2007.


title: Case T-238/07 R: Order of the Judge (Interim measures) of 18 October 2007 — Ristic and Others v Commission (Interim measures — Application for stay of execution — Directive 96/23/EC — Lack of urgency — Balance of interests)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/40

         Order of the Judge (Interim measures) of 18 October 2007 — Ristic and Others v Commission
   (Case T-238/07 R) (1)

   (Interim measures - Application for stay of execution - Directive 96/23/EC - Lack of urgency - Balance of interests)
   (2007/C 315/76)
   Language of the case: German
   Parties

      Applicants: Ristic AG (Burgthann, Germany); Piratic Meeresfrüchte Import GmbH (Burgthann); Prime Catch Seafood GmbH (Burgthann); and Rainbow Export Processing SA (Puntarenas, Costa Rica) (represented by: H. Schmidt, lawyer)

      Defendant: Commission of the European Communities (represented by: F. Erlbacher and A. Szmytkowska, acting as Agents)
   Re:
   Application for stay of execution of Commission Decision 2007/362/EC of 16 May 2007 amending Decision 2004/432/EC on the approval of residue monitoring plans submitted by third countries in accordance with Council Directive 96/23/EC (OJ 2007 L 138, p. 18)
   Operative part of the order

               1.

               The application is dismissed.

               2.

               The costs are reserved.

      (1)  OJ C …


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 8 October 1996 in Joined Cases T-24/93, T-25/93, T-26/93 and T-28/93, Compagnie Maritime Belge Transports SA and Others v. Commission of the European Communities (Competition - International maritime transport - Liner conferences - Regulation (EEC) No 4056/86 - Effect on trade - Collective dominant position - Implementation of an agreement providing for an exclusive right - Fighting ships - Loyalty rebates - Fines - Assessment criteria)

text:
9 . 11 . 96           EN                  Official Journal of the European Communities                                No C 336/27
JUDGMENT OF THE COURT OF FIRST INSTANCE                              Communities ( Agent: Ana Maria Alves Vieira ) —
                   of 24 September 1996                              application for annulment of the Commission's decision of
                                                                     8 August 1994 not to accept the applicant's candidature for
in Case T-l 82/94 : Ricardo Marx Esser and Casto Del Amo
                                                                     the post of head of the Commission 's delegation to
             Martinez v. European Parliament ( 1 )                   Kazakhstan and, consequently, annulment of the decision to
(Officials   — Representation — Staff Committee —                    appoint another candidate to that post, and a claim for
Elections — List of staff members entitled to vote —                 damages — the Court of First Instance ( Fourth Chamber ),
Elimination, following the ballot, ofstaffmembers on leave           composed of K. Lenaerts , President, P. Lindh and J. D.
                    on personal grounds)                             Cooke, Judges; J. Palacio Gonzalez, Administrator, for the
                           96/C 336/57 )                             Registrar, gave a judgment on 2 October 1996 , the operative
                                                                     part of which is as follows :
               (Language of the case: French)
                                                                     1 . the Commission 's decision of 8 August 1994 not to
                                                                         accept the applicant 's candidature for the post ofhead of
In Case T-l 82/94 : Ricardo Marx Esser and Casto Del Amo                 the Commission 's delegation to Kazakhstan is annulled,
Martinez, officials of the European Parliament, respectively             together with its decision of 8 August 1994 to appoint
residing at Luxembourg, and at Sandweiler ( Luxembourg ),                Mr K to that post;
represented by Georges Vandersanden , of the Brussels Bar,
with an address for service in Luxembourg at the office of           2 . the remainder of the application is dismissed;
Fiduciaire Myson Sari , 1 Rue Glesener, v. European
Parliament ( Agents : Manfred Peter and Alex Bonn ) —                3 . the Commission is ordered to pay the costs , including
application for annulment of the elections to the Staff                  those relating to the procedure for interim relief.
Committee of the Secretariat of the European Parliament,
held on 21 to 27 May 1993 — the Court of First Instance
( Third Chamber ), composed of: C. P. Briët, President, and          (') OJ No C 370 , 24 . 12 . 1994 .
B. Vesterdorf and A. Potocki , Judges ; J. Palacio Gonzalez,
Administrator, for the Registrar, has given a judgment on
24 September 1996 , in which it:
1 . declares that there is no need to give a ruling on the
     applications for measures of inquiry submitted by the
     applicants;                                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 8 October 1996
2 . annuls the decision of the President of the European             in Joined Cases T-24/93 , T-25/93 , T-26/93 and T-28/93 ,
     Parliament of 3 February 1 994 rejecting the applicants '       Compagnie Maritime Beige Transports SA and Others v.
     complaint and refusing to annul the electoral                          Commission of the European Communities (')
     proceedings in issue;
                                                                     (Competition — International maritime transport — Liner
                                                                     conferences — Regulation (EEC) No 4056/86 — Effect on
3 . orders the Parliament to pay the costs.
                                                                     trade — Collective dominantposition — Implementation of
                                                                     an agreement providing for an exclusive right — Fighting
(') OJ No C 174, 25 . 6 . 1994 .                                     ships — Loyalty rebates — Fines — Assessment criteria)
                                                                                ( 96/C 336/59 )
                                                                          (Languages of the case: Dutch, English , German)
 JUDGMENT OF THE COURT OF FIRST INSTANCE                             In Joined Cases T-24/93 , Compagnie Maritime Beige
                       of 2 October 1996                             Transports SA and Compagnie Maritime Beige SA,
                                                                     established at Antwerp ( Belgium ), represented by Michel
in Case T-356/94 : Sergio Vecchi v. Commission of the                Waelbroeck and Denis Waelbroeck, of the Brussels Bar, and
                  European Communities (*)                           by Aurelio Pappalardo , of the Trapani Bar, with an address
 (Officials — Notice of vacancy — Manifest error — Misuse            for service in Luxembourg at the Chambers of Ernest
    of powers — Statement of reasons — Admissibility)                Arendt, 34 Rue Philippe II v. Commission of the European
                          ( 96/C 336/58 )                            Communities ( Agents, during the written procedure , Bernd
                                                                     Langeheine and Richard Lyal and , at the hearing, Richard
                                                                     Lyal, Paul Nemitz and Berend Jan Drijber ), supported by
                (Language of the case: French)                        Grimaldi , established at Palermo ( Italy ), and Cobelfret,
                                                                     established at Antwerp ( Belgium ), represented by Mark
 In Case T-356/94 : Sergio Vecchi, an official of the                 Clough, Barrister, with an address for service in
 Commission of the European Communities, residing at                  Luxembourg at the Chambers of Aloyse May, 31
 Overijse ( Belgium ), represented by Georges Vandersanden            Grand-Rue ; T-25/93 , Dafra-Lines A/S, established at
 and Laure Levi, both of the Brussels Bar, with an address for        Copenhagen , represented by Michel Waelbroeck and Denis
 service in Luxembourg at the offices of Fiduciaire Myson            Waelbroeck, of the Brussels Bar, and by Aurelio
 Sari, 1 Rue Glesener v. Commission of the European                   Pappalardo, of the Trapani Bar, with an address for service
 ---pagebreak--- No C 336/28             EN                 Official Journal of the European Communities                                   9 . 11 . 96
in Luxembourg at the Chambers of Ernest Arendt, 34 Rue                      ORDER OF THE COURT OF FIRST INSTANCE
Philippe II v. Commission of the European Communities                                        of 18 September 1996
(Agents, during the written procedure, Bernd Langeheine
and Richard Lyal and, at the hearing, Richard Lyal, Paul              in Case T-22/96 : J. Langdon Ltd v. Commission of the
Nemitz and Berend Jan Drijber ); T-26/93 , Deutsche                                        European Communities (')
Afrika-Linien GmbH & Co ., established at Hamburg                     (Action for annulment — Contested decision revoked in the
( Germany ), represented by Michael Strobel , Rechtsanwalt,                course of proceedings — No need to give a decision)
Hamburg, with an address for service in Luxembourg at the                                         ( 96/C 336/60 )
Chambers of Nicolas Decker, 16 Avenue Marie-Therese v.
Commission of the European Communities ( Agents, during
the written procedure , Bernd Langeheine and Richard Lyal                               (Language of the case: English)
and, at the hearing, Richard Lyal , Paul Nemitz and Berend
Jan Drijber ) and Case T-28/93 Nedlloyd Lijnen BV,                    In Case T-22/96 : J. Langdon Ltd, established in Dublin,
established at Rotterdam ( Netherlands ), represented,                represented by Patrick O'Brien , Solicitor, with an address
during the written procedure , by Tom R. Ottervanger, of the          for service in Luxembourg at the Chambers of Faltz &
Rotterdam Bar, and , at the hearing, by Jacques Steenbergen,          Associés, 6 Rue Heine, against Commission of the European
of the Brussels Bar, with an address for service in                   Communities ( Agents : Messrs Richard Wainwright and
Luxembourg at the Chambers of Carlos Zeyen, 4 Rue de                  Fernando Castillo de la Torre ) — application for the
l'Avenir v. Commission of the European Communities                    annulment of Commission Decision COM(95 ) 2726 of
(Agents, during the written procedure, Bernd Langeheine               3 November 1995 finding that it is justified to take action
and Richard Lyal and, at the hearing, Richard Lyal , Paul             for the post-clearance recovery of import duties and that the
Nemitz and Berend Jan Drijber ) — application for the                 remission of these duties is not justified — the Court of First
annulment        of   Commission     Decision   93 /82/EEC    of      Instance ( Second Chamber ), composed of: H. Kirschner,
23 December 1992 relating to a proceeding pursuant to                 President, C. W. Bellamy and A. Kalogeropoulos, Judges ; H.
Articles 85 ( IV/32.448 and IV/32.450 : Cewal, Cowac and              Jung, Registrar, made an order on 18 September 1996 , the
Ukwal ) and 86 ( IV/32.448 and IV/32.450 : Cewal ) of the             operative part of which is as follows :
EEC Treaty ( 2 ), the Court of First Instance of the European
Communities (Third Chamber, Extended Composition ),                    1 . there is no need to give a decision ;
composed of: C. P. Briët, President, P. Lindh, A. Potocki ,
R. M. Moura Ramos and J. D. Cooke, Judges, Registrar : J.             2 . the Commission shall bear its own costs and four fifths
Palacio Gonzalez, Administrator, gave a judgment on                         of the applicant's costs.
 8 October 1996 , the operative part of which is as
follows :                                                              (') OJ No C 158 , 1 . 6 . 1996 .
 1 . Cases T-24/93 , T-25/93 , T-26/93 and T-28/93 are
       joined for the purposes of the judgment;
 2 . the applications for the annulment of Commission
       Decision 93/82/EEC of 23 December 1 992 relating to a
       proceeding pursuant to Articles 85 (IV/32.448 and                                ORDER OF THE PRESIDENT
       IV/32.450: Cewal, Cowac and Ukwal) and 86                                  OF THE COURT OF FIRST INSTANCE
       (IV/32.448 and IV/32.450: Cewal) of the EEC Treaty                                    of 19 September 1996
       are dismissed;
                                                                       in Case T-138/96 R : Giovanni Ballone Burini v. Court of
 3 . the amount of the fines imposed by Article 6 of that                            Justice of the European Communities
       decision is fixed as follows:                                   (Officials — Competitions — Non-admission to a
                                                                       competition — Procedure for interim relief — Application
       — Compagnie Maritime Belge SA : ECU 8 640 000,
                                                                                for suspension of operation of a measure)
       — Dafra-Lines A/S: ECU 180 000,                                                             ( 96/C 336/61 )
       — Deutsche Afrika-Linien GmbH Sc Co.: ECU
           180 000,                                                                      (Language of the case: Italian)
       — Nedlloyd Lijnen BV: ECU 90 000;
                                                                       In Case T-138/96 R: Giovanni Ballone Burini, residing in
 4 . the applicants are ordered to pay all the defendant 's            Castelfidardo ( Italy ), represented during the written
       costs; in addition, the applicants in Case T-24/93              procedure by Giancarlo Piersimoni, of the Ancona Bar
        (Compagnie Beige SA and Compagnie Maritime Beige               ( Italy ), and during the oral procedure, by Carlo Revoldini,
        Transports SA) are ordered jointly and severally to pay        of the Luxembourg Bar, with an address for service in
       all the costs of the interveners.                               Luxembourg at the address of Marco Pantanetti , 17 Rue de
                                                                       Dudelange, Kayl , against Court of Justice of the European
 (') OJ No C 122 , 4 . 5 . 1993 and                                    Communities ( Agents : Messrs Timothy Millett and Federico
       OJ No C 124 of 6 . 5 . 1993 .                                   Falcone ) — application for suspension of operation of the
 ( 2 ) OJ No L 34 , 1993 , p . 20 .                                    decision of the Selection Board for General Competition
                                                                        CJ/A/ 1 1 rejecting the applicant's candidature — the
                                                                       President of the Court of First Instance made an order on


title: Case F-119/14: Judgment of the Civil Service Tribunal (1st Chamber) of 6 October 2015 — FE v Commission (Civil service — Recruitment — Open competition — Inclusion on the reserve list — Decision of the appointing authority not to recruit a successful candidate — Respective jurisdictions of the selection board and of the appointing authority — Eligibility criteria for the competition — Minimum period of professional experience required — Methods of calculation — Manifest error of assessment by the selection board — None — Loss of an opportunity to be recruited — Compensation)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/63

         Judgment of the Civil Service Tribunal (1st Chamber) of 6 October 2015 — FE v Commission
   (Case F-119/14) (1)

   ((Civil service - Recruitment - Open competition - Inclusion on the reserve list - Decision of the appointing authority not to recruit a successful candidate - Respective jurisdictions of the selection board and of the appointing authority - Eligibility criteria for the competition - Minimum period of professional experience required - Methods of calculation - Manifest error of assessment by the selection board - None - Loss of an opportunity to be recruited - Compensation))
   (2015/C 381/89)
   Language of the case: French

      Parties

      Applicant: FE (represented by: L. Levi and A. Blot, lawyers)

      Defendant: European Commission (represented by: J. Currall and G. Gattinara, Agents)

      Re:

   Application for annulment of the Commission’s decision ending the procedure initiated with a view to appointing the applicant — included on a reserve list for a competition — as an official, after informing him that the DG concerned had given its approval for his engagement, and finally finding that he had insufficient professional experience.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of 17 December 2013 by which the European Commission refused to recruit FE;

               2.

               Orders the European Commission to pay FE the sum of EUR 10  000;

               3.

               Dismisses the action as to the remainder;

               4.

               Declares that the European Commission is to bear its own costs and orders it to pay the costs incurred by FE.

      (1)  OJ C 7, 12.1.2015, p. 56.


title: Case T-486/08: Judgment of the General Court of 9 December 2009 — Earle Beauty v OHIM (SUPERSKIN) (Community trade mark — Application for the Community word mark SUPERSKIN — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/50

         Judgment of the General Court of 9 December 2009 — Earle Beauty v OHIM (SUPERSKIN)
   (Case T-486/08) (1)

   (Community trade mark - Application for the Community word mark SUPERSKIN - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))
   2010/C 24/88
   Language of the case: English

      Parties

      Applicant: Liz Earle Beauty Co. Ltd (Ryde, Isle of Wight, United Kingdom) (represented by: M. Cover, Solicitor)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 September 2008 (Case R 1656/2007-4), concerning registration of the word sign SUPERSKIN as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 15 September 2008 (Case R 1656/2007-4), in respect of perfumes, nail and hair care preparations, antiperspirants, deodorants, dentifrice, hair colouring preparations, hair spray, eyecare preparations, nail varnish, nail varnish remover and artificial nails, in Class 3, and hygienic care and cosmetic treatments for the hair, in Class 44;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Liz Earle Beauty Co. Ltd to bear its own costs and to pay half of OHIM’s costs, and OHIM to bear the other half of its costs.

      (1)  OJ C 6, 10.1.2009.