title: Case C-373/03: Reference for a preliminary ruling by the Verwaltungsgericht Freiburg by order of that Court of 12 March 2003 in the administrative law case of Ceyhun Aydinli versus Land Baden-Württemberg, represented by the Regierungspräsidium Freiburg

text:
24.1.2004             EN                         Official Journal of the European Union                                            C 21/9
Reference for a preliminary ruling by the Verwaltungsge-                 6.    Should ceasing to live as a family with a person generally
richt Freiburg by order of that Court of 12 March 2003 in                      be deemed to occur for this purpose where the Turkish
the administrative law case of Ceyhun Aydinli versus                           worker’s adult child moves out of the Turkish worker’s
Land Baden-Württemberg, represented by the Regie-                              home on a permanent basis and neither the child nor the
                   rungspräsidium Freiburg                                     Turkish worker continues to require particular closeness
                                                                               or care?
                        (Case C-373/03)                                  7.    Should ceasing to belong to the labour force, in the
                                                                               context of the legal status of a member of the family of a
                                                                               Turkish worker under the second indent of the first
                         (2004/C 21/15)                                        sentence of Article 7, be determined by reference to
                                                                               criteria the same as those applicable to the forfeiture of
                                                                               rights under the third indent of Article 6(1)?
Reference has been made to the Court of Justice of the                   8.    Does the child of a Turkish worker who has completed a
European Communities by order of the Verwaltungsgericht                        course of vocational training in the host country forfeit
Freiburg (Administrative Court, Freiburg) of 12 March 2003,                    his right under the second sentence of Article 7 of
received at the Court Registry on 5 September 2003, for a                      Decision No 1/80 to respond to any offer of employment
preliminary ruling in the administrative law case of Ceyhun                    in that Member State if he has already entered the labour
Aydinli versus Land Baden-Württemberg, represented by the                      force there by taking up permanent employment?
Regierungspräsidium Freiburg on the following questions:
                                                                         9.    Is that right under the second sentence of Article 7 of
1.   Can the fact that a Turkish worker is not duly registered                 Decision No 1/80 forfeited if a person with that right has
     as belonging to the labour force due to enforcement of a                  ceased to be duly registered as belonging to the labour
     fixed-term prison sentence cause him to have ceased to                    force of that Member State in a way that would lead to
     belong to that labour force, thereby leading to the                       the loss of a Turkish worker’s legal status under the third
     forfeiture of rights that he has acquired under the third                 indent of Article 6(1)?
     indent of Article 6(1) of Decision No 1/80 of the
     Association Council of 19 September 1980 on the
     development of the Association (hereinafter ‘Decision
     No 1/80’) as a result of his many years of employment in
     the Member State?
2.   Where applicable, how is the duration of an absence from
     the labour force due to enforcement of a prison sentence,           Reference for a preliminary ruling by the Commissione
     which leads to forfeiture of rights, to be determined?              Tributaria Provinciale di Massa e Carrara — Sezione III —
                                                                         by order of that Court of 21 July 2003 in the case of
                                                                         GE.M.E.G. S.r.l. against 1) Comune di Carrara and 2) Cerit
3.   When determining that duration can account also be                                                S.p.A.
     taken of the period during which the Turkish worker was
     absent as a result of detention pending trial under a court
     order immediately preceding enforcement of the prison                                       (Case C-426/03)
     sentence?
                                                                                (2004/C 21/16)
4.   When determining that duration can account also be
     taken of the fact that, at the time that the expulsion order
     is made, the claimant is expected to remain absent from
     the labour force for some time because, if expulsion is             Reference has been made to the Court of Justice of the
     not ordered, he can in all probability — in deferring               European Communities by order of the Commissione Tribu-
     enforcement of the prison sentence — commence long-                 taria Provinciale di Massa e Carrara — Sezione III — (Provincial
     term drug therapy aimed at his social and occupational              Tax Court of Massa Carrara, Third Chamber) of 21 July 2003,
     rehabilitation for which there are sufficient prospects of          received at the Court Registry on 7 October 2003, for a
     success?                                                            preliminary ruling in the case of GE.M.E.G. S.r.l. against
                                                                         1) Comune di Carrara and 2) Cerit S.p.A. on the following
5.   In order for a member of the family of a Turkish worker             questions:
     to forfeit his legal status under the second indent of the
     first sentence of Article 7 of Decision No 1/80 is it               (A) Does a tax, levied by a municipal authority in one
     necessary for that member of the family to have ceased                    Member State on goods exported to another Member
     living as a family with the Turkish worker from whom                      State on account of their leaving a municipality in the
     he originally derived his right of residence and also for                 first Member State, constitute a charge having equivalent
     that member of the family to have definitively ceased to                  effect to customs duties on exports, even though that
     be duly registered as belonging to the labour force of the                fiscal charge also applies to goods leaving that munici-
     Member State in which they are both living?                               pality for another part of that Member State?


title: Case T-64/00: Action brought on 16 March 2000 by Continental and Overseas Investments NV against the Commission of the European Communities

text:
C 149/38               EN                       Official Journal of the European Communities                                      27.5.2000
The applicants submit that, in the consultation procedure, the             — Order the Commission to pay the costs.
Commission failed to take any account of the comments
on the abovementioned publications made by the sectors
concerned.                                                                 Pleas in law and main arguments
First plea in law: lack of competence/ ultra vires/ breach by the          The present proceedings are directed against the final decision
Commission of essential procedural requirements:                           contained in the letter of 22 December 1999, reference
                                                                           D17587, in which the Commission rejected complaint
                                                                           No IV/37332 Compagnia Portuale Pietro Chiesa v Italian
With regard to vertical agreements, Articles 2, 3, 4 and 5 of              Republic, Autorità Portuale del Porto di Genova and Compag-
the contested regulation introduce ‘a posteriori control’. This            nia Unica Lavoratori Merci Varie (C.U.L.M.V.), relating to an
control has consequences solely for the future. In addition,               infringement of Article 86 of the EC Treaty in conjunction
abuses attributable to economic dependence are not taken into              with Article 82 thereof, deriving from an alleged abuse by
consideration.                                                             C.U.L.M.V. of its dominant position, resulting from its de facto
                                                                           monopoly in the Port of Genoa as regards the conduct of port
The abolition of the automatic nullity of agreements prohibited            operations and the supply of port labour.
under Article 81 EC constitutes an infringement of the Treaty.
The new rules create conditions under which the entire free                In support of its claim, the applicant alleges, first, a failure to
market can, with impunity, be restricted to approved dealers               undertake investigative measures, in so far as the defendant
and supplies to non-approved dealers can be excluded.                      did not commence proceedings under Council Regulation
                                                                           No 17/62 either against C.U.L.M.V. or against the Genoa Port
                                                                           Authority. The applicant alleges in that regard that the
Second plea in law: the consultations which preceded the                   contested practices derive:
adoption of the regulation were not conducted in a manner
consistent with the spirit of the Treaty:                                  — From the conduct of C.U.L.M.V. which, carrying on
                                                                               business simultaneously as a terminal operator and an
The new rules have been presented by the Commission as                         undertaking supplying labour, hampers access to those
constituting no more than a modernisation of procedures,                       markets by competitors. The Port Authority is aware of
whereas the spirit, if not the letter, of the Treaty has been                  this situation.
ignored. The scope of the modernisation programme has,
moreover, been considered only from the point of view of                   — From administrative measures and/or failure to act by the
facilitating the tasks of the European Commission.                             Port Authority, which the applicant criticises as being
                                                                               contrary to the Community competition rules.
                                                                           The applicant also alleges breach of the principle audi alterem
                                                                           partem and submits that the statement of the reasons for the
                                                                           contested decision is contradictory.
Action brought on 17 March 2000 by Compagnia Portuale
Pietro Chiesa v Commission of the European Communi-
                                ties
                                                                           Action brought on 16 March 2000 by Continental and
                          (Case T-59/00)                                   Overseas Investments NV against the Commission of the
                                                                                European Communities
                         (2000/C 149/72)
                                                                                (Case T-64/00)
                    (Language of the case: Italian)                                                 (2000/C 149/73)
An action against the Commission of the European Communi-                                      (Language of the case: Dutch)
ties was brought before the Court of First Instance on 17 March
2000 by Compagnia Portuale Pietro Chiesa, represented by
Giuseppe Michele Giacomini and Barbara Della Barile, of the                An action against the Commission of the European Communi-
Genoa Bar.                                                                 ties was brought before the Court of First Instance of the
                                                                           European Communities on 16 March 2000 by Continental
                                                                           and Overseas Investments NV (formerly ‘Jubertrade NV’),
The applicant claims that the Court of First Instance should:              established in Antwerp, represented by Y. Van Gerven and J.
                                                                           Bernaerts, of the Brussels Bar, with an address for service in
— Annul the letter of 22 December 1999, reference D17587,                  Luxembourg at the Chambers of M. Loesch, of the Luxembourg
     of the European Commission, Competition DG;                           Bar, 11 Rue Goethe.
 ---pagebreak--- 27.5.2000               EN                    Official Journal of the European Communities                                       C 149/39
The applicant claims that the Court should:                              In that connection it raises the following pleas:
                                                                         — Infringement of the rights of the defence, of Articles 872
                                                                              and 906 of Regulation No 2454/93, the principles of
Principally:                                                                  procedural equality and of sound administration. The
                                                                              Commission omitted, when it was minded to depart from
                                                                              the view taken by the customs authority, to have the
— order the Commission to produce all documents on                            applicant heard by the national authority. It did not arrange
    which it based the contested decision, together with all                  for the applicant to receive the documents and decisions
    documents, including administrative items, which have a                   on which its complaints concerning waiver of post-
    bearing on this matter, comprising for example the                        clearance recovery and/or remittance are based. By not
    documents which prompted the Commission in 1993 to                        making available documents which could have been of use
    organise a mission to Turkey to conduct an investigation                  to the applicant’s arguments the Commission infringed the
    into the issue of ATR certificates for television sets, the               principle of procedural equality.
    results of that mission and the reports drawn up concern-
    ing it, any correspondence between the Commission and                — Infringement of Article 5(2) of Regulation No 1697/79.
    the Member States as well as between the Commission and                   The Commission was wrong to adjudge that the criteria
    the Turkish authorities on this subject etc, for examination              for the application of that article were not met.
    by the Court and production to the applicant so as to
    enable it to investigate whether it can use those documents          — Infringement of the first paragraph of Article 13 of
    in further support of this application and the pleas and                  Regulation No 1430/79. The Commission was wrong to
    arguments raised therein;                                                 take the view that the situation in the present case did not
                                                                              constitute ‘special circumstances’ within the meaning of
                                                                              that article.
— annul the decision of the Commission of the European
    Communities of 14 December 1999 rejecting the request                — Infringement of the principle that decisions must be
    by the Kingdom of Belgium to refrain in favour of the                     supported by a statement of the reasons on which they are
    applicant from the post-clearance recovery of import                      based (Article 253 EC).
    duties or to remit them on imports of television sets from
    Turkey in the period from 8 October 1991 to 28 May                   — In the alternative, infringement of the principle of pro-
    1993 inclusive (Decision C(1999) 4419 fin);                               portionality and of Articles 2 and 3 of the Additional
                                                                              Protocol to the EC-Turkey Association Agreement.
— order the Commission to pay the costs;
In the alternative, if the decision is not annulled:
— none the less order the Commission to pay the costs (its               Action brought on 23 March 2000 by NKK Corporation
    own and the applicant’s);                                              against the Commission of the European Communities
                                                                                (Case T-67/00)
In the further alternative:
                                                                                (2000/C 149/74)
— order the Commission to pay its own costs.
                                                                                (Language of the case: English)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Pleas in law and main arguments                                          European Communities on 23 March 2000 by NKK Corpor-
                                                                         ation (Tokyo), represented by Martin Smith and Conor Magui-
                                                                         re, Solicitors, Simmons & Simmons, Brussels.
The applicant’s action under the fourth paragraph of Article
230 of the EC Treaty is for annulment of the Commission’s                The applicant claims that the Court should:
decision of 14 December 1999 rejecting the request by the
Kingdom of Belgium to refrain in favour of the applicant from            — pursuant to Article 230 EC, review the legality of the
the post-clearance recovery of import duties or to remit them                 contested decision and, in so far as it relates to the
on imports of television sets from Turkey in the period from                  applicant, annul it pursuant to Article 231 EC, in the
8 October 1991 to 28 May 1993 inclusive.                                      alternative;


title: ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber) of 8 July 1998 in Case T-200/95 X. v. Commission of the European Communities (Officials - Time limit for submitting a complaint - Manifest inadmissibility)

text:
C 299/36              EN                 Official Journal of the European Communities                                    26.9.98
CortesaÄo SeicËa Neves) Ð application for the annulment of          Action brought on 10 July 1998 by Svend Bech Kristensen
the Commission decision of 21 December 1994 granting                         against the Council of the European Union
funding under Council Regulation (EC) No 1164/94 of                                        (Case T-103/98)
16 May 1995 establishing a Cohesion Fund (2) for Project
No 94/10/65/005 concerning the construction of a new                                         (98/C 299/65)
road bridge across the Tagus in the Lisbon region of
Portugal Ð the Court of First Instance (Fifth Chamber),
composed of: J. Azizi, President, R. García-Valdecasas and                          (Language of the case: French)
M. Jaeger, Judges; Registrar: H. Jung, made an order on
15 July 1998 in which it:
                                                                    An action against the Council of the European Union was
                                                                    brought before the Court of First Instance of the European
1. dismisses the application as manifestly inadmissible;            Communities on 10 July 1998 by Svend Bech Kristensen,
                                                                    resident in Waterloo, Belgium, represented by Jean-NoeÈl
2. orders the applicants to bear their own costs and,               Louis, VeÂronique Leclercq, Ariane Tornel and FrancËoise
    jointly and severally to pay those incurred by the              Parmentier, of the Brussels Bar, with an address for service
    Commission;                                                     in Luxembourg at the offices of Fiduciaire Myson SARL,
                                                                    30, rue de Cessange.
3. orders the Portuguese Republic to bear its own costs.
                                                                    The applicant claims that the Court should:
(1) OJ C 286, 28.10.1995.
(2) OJ L 130, 25.5.1994, p. 1.
                                                                    Ð annul the Council decision of 6 October 1997 refusing
                                                                        the request for refund of that part of the pension
                                                                        rights transferred to the Community pension scheme
                                                                        which was not taken into consideration in the
                                                                        calculation of the pensionable service to be taken into
                                                                        account pursuant to Article 11(2) of Annex VIII to the
     ORDER OF THE COURT OF FIRST INSTANCE                               Staff Regulations,
                      (Fourth Chamber)
                        of 8 July 1998                              Ð order the Council to pay the costs.
in Case T-200/95 X. v. Commission of the European
                       Communities (1)
                                                                    Pleas in law and main arguments adduced in support:
(Officials Ð Time limit for submitting a complaint Ð
                   Manifest inadmissibility)
                                                                    The applicant, a Council official of Danish nationality,
                        (98/C 299/64)                               challenges the decision of the Director-General for
                                                                    Administration and Protocol of 6 October 1997 rejecting
                (Language of the case: Greek)                       his request for a refund of that part of the sum paid to the
                                                                    institution by the Danish pension schemes, on the transfer
In Case T-200/95: X., a former official of the Commission           of his pension rights acquired in Denmark, which could
of the European Communities, residing in Brussels,                  not be taken into account in the calculation of the number
represented by Georges A. Sakellaropoulos, of the Athens            of years of pensionable service to be credited under the
Bar, with an address for service in Luxembourg at the               Community pension scheme.
Chambers of Aloyse May, 31, Grand'Rue, against the
Commission of the European Communities (Agents: Maria
                                                                    In support of his claims he contends:
Condou and Ana Maria Alves Vieira) Ð application for
annulment of a decision refusing the applicant admission
to the Commission's buildings following the adoption of a           Ð that Article 11(1) and (2) of Annex VIII to the Staff
decision removing him from his post and also for                        Regulations has been infringed. Under that provision
compensation for the loss suffered in that connection Ð                 an official is entitled on establishment to have paid to
the Court (Fourth Chamber), composed of: P. Lindh,                      the Communities either the actuarial equivalent or the
President of the Chamber, and K. Lenaerts and J. D.                     flat-rate redemption value of retirement pension rights
Cooke, Judges; H. Jung, Registrar, has made an order on                 acquired before his entry into service. In the
8 July in which it:                                                     applicant's view, that is a mandatory duty not
                                                                        allowing the exercise of any discretion as to the
1. dismisses the application as manifestly inadmissible;                appropriateness of taking into account the whole or
                                                                        part of the amount of the pension rights transferred by
                                                                        the official,
2. orders the parties to bear their own costs.
(1) OJ C 351, 30.12.1995.                                           Ð that the third indent of Article 10(3) of the general
                                                                        provisions implementing Article 11 of Annex VIII to
                                                                        the Staff Regulations is unlawful inasmuch as it lays


title: Case C-58/17: Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 3 February 2017 — INEOS Köln GmbH v Bundesrepublik Deutschland

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/23

         Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 3 February 2017 — INEOS Köln GmbH v Bundesrepublik Deutschland
   (Case C-58/17)
   (2017/C 144/29)
   Language of the case: German

      Referring court

   Verwaltungsgericht Berlin

      Parties to the main proceedings

      Applicant: INEOS Köln GmbH

      Defendant: Bundesrepublik Deutschland

      Question referred

   Must Commission Decision 2011/278/EU (1) of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council be interpreted as meaning that the definition of ‘process emissions sub-installation’ in Article 3(h) of Decision 2011/278/EU covers only incompletely oxidised carbon in a gaseous state, or does it also include incompletely oxidised carbon in a liquid state?

      (1)  OJ 2011 L 130, p. 1.


title: Case T-190/06: Judgment of the General Court of 14 July 2011 — Total and Elf Aquitaine v Commission (Competition — Agreements, decisions and concerted practices — Hydrogen peroxide and sodium perborate — Decision finding an infringement of Article 81 EC — Imputability of the infringement — Rights of the defence — Presumption of innocence — Obligation to state the reasons on which the decision is based — Equal treatment — Principle that penalties must fit the offence — Principle of nullum crimen, nulla poena sine lege — Principle of sound administration — Legal certainty — Misuse of powers — Fines)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/40

         Judgment of the General Court of 14 July 2011 — Total and Elf Aquitaine v Commission
   (Case T-190/06) (1)

   (Competition - Agreements, decisions and concerted practices - Hydrogen peroxide and sodium perborate - Decision finding an infringement of Article 81 EC - Imputability of the infringement - Rights of the defence - Presumption of innocence - Obligation to state the reasons on which the decision is based - Equal treatment - Principle that penalties must fit the offence - Principle of nullum crimen, nulla poena sine lege - Principle of sound administration - Legal certainty - Misuse of powers - Fines)
   2011/C 269/88
   Language of the case: French

      Parties

      Applicants: Total SA (Courbevoie, France) and Elf Aquitaine SA (Courbevoie, France) (represented by: É. Morgan de Rivery, A. Noël-Baron and E. Lagathu, lawyers)

      Defendant: European Commission (represented initially by F. Arbault and O. Beynet, and subsequently by V. Bottka, P.J. Van Nuffel and B. Gencarelli, Agents)

      Re:

   Action for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) and, in the alternative, for amendment of Article 2(i) of that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Total SA and Elf Aquitaine SA to pay the costs.

      (1)  OJ C 212, 2.9.2006.


title: Case T-294/14 R: Order of the President of the General Court of 4 September 2014 — Klemme v Commission (Application for interim measures — State aid — National support for the generation of renewable electricity — Commission decision to open the State aid formal investigation procedure — Application for suspension of operation of a measure — Prima facie case)

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/25

         Order of the President of the General Court of 4 September 2014 — Klemme v Commission
   (Case T-294/14 R)
   ((Application for interim measures - State aid - National support for the generation of renewable electricity - Commission decision to open the State aid formal investigation procedure - Application for suspension of operation of a measure - Prima facie case))
   (2014/C 431/43)
   Language of the case: German

      Parties

      Applicant: Klemme AG (Lutherstadt Eisleben, Germany) (represented by: T. Volz and B. Wißmann, lawyers)

      Defendant: European Commission (represented by: T. Maxian Rusche and R. Sauer, Agents)

      Re:

   Application to suspend the legal effects of the decision by which the Commission opened the State aid formal investigation procedure concerning the German law on renewable energy.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Judgment of the Court of First Instance of 12 December 2002 in Case T-378/00: Carmelo Morello v Commission of the European Communities (Officials — Procedure for filling vacant posts — Statement of reasons — Comparative examination of applicants and equal treatment of officials — Actions for annulment — Actions for damages)

text:
22.2.2003                EN                        Official Journal of the European Union                                             C 44/25
     JUDGMENT OF THE COURT OF FIRST INSTANCE                               residing in Brussels, represented by J. Sambon and P.-P. Van
                                                                           Gehuchten, Lawyers, with an address for service in Luxem-
                        of 5 December 2002                                 bourg, against Commission of the European Communities
                                                                           (Agents: C. Berardis-Kayser and D. Waelbroeck) — application
in Case T-249/00: Paul Edwin Hoyer v Commission of the                     for annulment of the Commission’s decision not to appoint
                    European Communities ( 1)                              the applicant to the post of Head of Unit 2 ‘Motor vehicles and
                                                                           other means of transport’ within Directorate F ‘Consumer
(Members of the temporary staff — Termination of contract                  goods and capital goods industries’ within the Directorate-
          — Calculation of notice — Leave not taken)                       General for Competition (COM/113/99) and of its decision to
                                                                           appoint a different applicant to the post and an application for
                                                                           damages — the Court of First Instance (Third Chamber),
                            (2003/C 44/45)
                                                                           composed of M. Jaeger, President, and K. Lenaerts and J. Azzizi,
                                                                           Judges; J. Palacio González, Principal Administrator, for the
                    (Language of the case: Dutch)                          Registrar, gave a judgment on 12 December 2002, in which it:
In Case T-249/00: Paul Edwin Hoyer, a former member of                     1.     Joined Cases T-338/00 and T-376/00;
the temporary staff of the Commission of the European
Communities, residing in Hoeilaart (Belgium), represented by               2.     Dismissed the action in Case T-376/00 as inadmissible;
G. van der Wal, lawyer, with an address for service in
Luxembourg, against the Commission of the European Com-                    3.     In case T-338/00 ordered the Commission to pay the applicant
munities (Agents: initially G. Valsesia and C. Van der Hauwaert,                  the sum of EUR 2 500;
and subsequently F. Clotuche-Duvieusart and H.M.H. Speyart)
— application for the annulment of the Commission’s                        4.     Dismissed the remainder of the action in Case T-338/00;
decisions of 14 June 2000 concerning the calculation of the
final date of notice when the applicant’s contract as a member
of the temporary staff was terminated (Decision No R/78/                   5.     Ordered each of the parties in Case T-376/00 to bear their
2000) and determining the number of days’ leave not taken                         own costs;
when he left (Decision No R/26/2000 — the Court of First
Instance (Fourth Chamber), composed of: M. Vilaras, President,             6.     Ordered the Commission to bear the costs in Case T-338/00.
V. Tiili and P. Mengozzi, Judges; J. Palacio González, Principal
Administrator, for the Registrar, gave a judgment on 5 Decem-
ber 2002, the operative part of which is as follows:                       (1 ) OJ C 372 of 23.12.2000 and C 61 of 24.2.2001.
1.     The application is dismissed.
2.     The parties will bear their own costs.
( 1) OJ C 355 of 9.12.2000.
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 12 December 2002
     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                           in Case T-378/00: Carmelo Morello v Commission of the
                        of 12 December 2002                                                    European Communities ( 1)
in Joined Cases T-338/00 and T-376/00: Carmelo Morello                     (Officials — Procedure for filling vacant posts — Statement
       v Commission of the European Communities ( 1)                       of reasons — Comparative examination of applicants and
                                                                           equal treatment of officials — Actions for annulment —
(Officials — Procedure for filling vacant posts — Statement                                       Actions for damages)
of reasons — Comparative examination of applicants and
equal treatment of officials — Actions for annulment —
                        Actions for damages)                                                         (2003/C 44/47)
                            (2003/C 44/46)                                                     (Language of the case: French)
                    (Language of the case: French)
                                                                           In Case T-378/00: Carmelo Morello, an official of the Com-
In Joined Cases T-338/00 and T-376/00: Carmelo Morello, an                 mission of the European Communities, residing in Brussels,
official of the Commission of the European Communities,                    represented by J. Sambon and P.-P. Van Gehuchten, Lawyers,
 ---pagebreak--- C 44/26                  EN                          Official Journal of the European Union                                        22.2.2003
with an address for service in Luxembourg, against Com-                      the other party before the Court being Richard John Harrison,
mission of the European Communities (Agents: C. Berardis-                    of Doncaster, South Yorkshire (United Kingdom), represented
Kayser and D. Waelbroeck) — application for annulment of                     by M. Edenborough, Barrister, and S. Pilling, Solicitor: Action
the Commission’s decision not to appoint the applicant to the                brought against the decision of the First Board of Appeal of
post of Head of Unit 3 ‘Distributive trade and other services’               the Office for Harmonisation in the Internal Market (Trade
within Directorate D ‘Services’ within the Directorate-General               Marks and Designs) of 4 December 2000 (Case R 116/2000-
for Competition (COM/001/00) and of its decision to appoint                  1), the Court of First Instance (Fourth Chamber), composed of:
a different applicant to the post and an application for damages             M. Vilaras, President, V. Tiili and P. Mengozzi, Judges; J. Plin-
— the Court of First Instance (Third Chamber), composed of                   gers, Administrator, for the Registrar, has given a judgment on
M. Jaeger, President, and K. Lenaerts and J. Azzizi, Judges;                 12 December 2002, in which it:
J. Palacio González, Principal Administrator, for the Registrar,
gave a judgment on 12 December 2002, in which it:
                                                                             1.     Dismisses the application;
1.     Annulled the Commission’s decisions of 4 March 2000                   2.     Orders the applicant to pay the costs.
       appointing Mrs Evans to the post of Head of Unit 3
       ‘Distributive trade and other services’ within Directorate D
       ‘Services’ within the Directorate-General for Competition and         (1 ) OJ C 150 of 19.5.2001.
       dismissing the applicant’s application for that post;
2.     Ordered the Commission to pay the applicant EUR 2 500;
3.     Dismissed the remainder of the action;
4.     Ordered the Commission to pay the costs.                                   JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 28 November 2002
( 1) OJ C 45 of 10.2.2001.
                                                                             in Case T-40/01: Scan Office Design SA v Commission of
                                                                                the European Communities (1)
                                                                             (Public procurement — Supply of office furniture — Actions
                                                                                for damages)
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                                            (2003/C 44/49)
                                                                                (Language of the case: French)
                        of 12 December 2002
in Case T-39/01: Kabushiki Kaisha Fernandes v Office for
Harmonisation in the Internal Market (Trade Marks and                        In Case T-40/01: Scan Office Design SA, a company established
                         Designs) (OHIM) ( 1)                                in Brussels, represented by B. Mertens and C. Steyaert, Lawyers,
                                                                             against Commission of the European Communities (Agents:
                                                                             L. Parpala and D. Martin) — application for compensation of
(Community trade mark — Opposition procedure — Earlier                       damages allegedly sustained by the applicant as a result of the
word mark HIWATT — Application for Community word                            Commission’s decision to award to a third party the contract
mark HIWATT — Proof of genuine use of earlier mark —                         which was the subject of its call for tenders No 96/31/IX.C1
Article 43(2) and (3) of Regulation (EC) No 40/94 and Rule                   for the supply of office furniture — the Court of First Instance
                 22 of Regulation (EC) No 2868/95)                           (Third Chamber), composed of M. Jaeger, President, and
                                                                             K. Lenaerts and J. Azizi, Judges; J. Palacio González, Adminis-
                                                                             trator, for the Registrar, gave a judgment on 28 December
                            (2003/C 44/48)                                   2002, in which it:
                     (Language of the case: English)                         1.     Dismissed the action;
                                                                             2.     Ordered the Commission to pay the costs.
In Case T-39/01, Kabushiki Kaisha Fernandes, established in
                                                                             (1 ) OJ C 150 of 19.5.2001.
Tokyo (Japan), represented by R. Hacon, N. Phillips and
I. Wood, lawyers, v Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) (Agent: S. Laitinen),


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/56

         Action brought on 10 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-56/04)
   (2004/C 94/147)
   Language of the case: French
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 10 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.
   Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

               —

               reject the application for the registration of BUDWEISER for Class 21 filed on 1 April 1996 on behalf of Anheuser-Busch;

               —

               order Anheuser-Busch to pay the costs.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               Anheuser-Busch, Incorporated

               Community trade mark sought:

               Word mark ‘BUDWEISER’ — Application No 24661 in respect of goods in Class 21 (household utensils etc)

               Proprietor of mark or sign cited in the opposition proceedings:

               Applicant

               Mark or sign cited in opposition:

               Appellations of origin ‘BUDWEISER BIER’, ‘BUDWEISER BIER – BUDVAR’, ‘BUDWEISER BUDVAR’

               Decision of the Opposition Division:

               Opposition rejected

               Decision of the Board of Appeal:

               Appeal dismissed

               Pleas in law:

               Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

      (1)   Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Order of the Court (Sixth Chamber) of 28 March 2003 in Case C-75/02 P: Territorio Histórico de Áava — Diputación Foral de Álava, Territorio Histórico de Bizkaia — Diputación Foral de Bizkaia, Territorio Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa y Juntas Generales de Gipuzkoa and Comunidad Autónoma del País Vasco — Gobierno Vasco v Commission of the European Communities (Appeal — State aid — Aid in the steel sector — Action for annulment — Article 33 CS — Action brought by an intra-State authority — Appeal manifestly unfounded)

text:
C 213/4                   EN                         Official Journal of the European Union                                              6.9.2003
measures are not less favourable than those governing similar                                    ORDER OF THE COURT
domestic actions and do not make it practically impossible or
excessively difficult to exercise the rights conferred by Community
law.
                                                                                (Sixth Chamber)
( 1) OJ C 3 of 5.1.2002.
                                                                                of 28 March 2003
                                                                             in Case C-75/02 P: Territorio Histórico de Áava —
                                                                             Diputación Foral de Álava, Territorio Histórico de Bizkaia
                                                                             — Diputación Foral de Bizkaia, Territorio Histórico de
                                                                             Gipuzkoa — Diputación Foral de Gipuzkoa y Juntas
                                                                             Generales de Gipuzkoa and Comunidad Autónoma del
                      ORDER OF THE COURT                                     País Vasco — Gobierno Vasco v Commission of the
                                                                                European Communities (1)
                            (Fifth Chamber)
                                                                             (Appeal — State aid — Aid in the steel sector — Action for
                           of 27 March 2003                                  annulment — Article 33 CS — Action brought by an intra-
                                                                                State authority — Appeal manifestly unfounded)
in Case C-1/02 SA: Antippas v Commission of the Euro-
                        pean Communities (1)
                                                                                (2003/C 213/07)
(Application for authorisation to serve a garnishee order on
        the Commission of the European Communities)                                             (Language of the case: Spanish)
                            (2003/C 213/06)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                      (Language of the case: French)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)
                                                                             In Case C-75/02 P: Territorio Histórico de Áava — Diputación
                                                                             Foral de Álava, Territorio Histórico de Bizkaia — Diputación
                                                                             Foral de Bizkaia, Territorio Histórico de Gipuzkoa — Diputa-
In Case C-1/02 SA, Antippas, company incorporated under                      ción Foral de Gipuzkoa y Juntas Generales de Gipuzkoa and
Congolese law, established in Kinshasa (Democratic Republic                  Comunidad Autónoma del País Vasco — Gobierno Vasco v
of the Congo), (avocat: M. Spandre) v Commission of the                      Commission of the European Communities (avocat: R. Falcón
European Communities (Agents: M. De Pauw and B. Mar-                         y Tella) APPEAL against the order of the Court of First Instance
tenczuk) — application for authorisation to serve a garnishee                of the European Communities (Third Chamber, Extended
order on the Commission of the European Communities — the                    Composition) delivered on 11 January 2002 in Case T-77/01
Court (Fifth Chamber), composed of: M. Wathelet, President of                Diputación Floral de Álava and Others v Commission [2002]
the Chamber, C.W.A. Timmermans, P. Jann S. von Bahr                          ECR II-81, by which the Court held inadmissible the action
(Rapporteur) and A. Rosas, Judges; L.A. Geelhoed, Advocate                   brought by the appellants against Commission Decision 2001/
General; R. Grass, Registrar, has given a judgment on 27 March               168/ECSC of 31 October 2000 on Spain’ corporation tax laws
2003, the operative part of which is as follows:                             (OJ 2001 L 60, p. 57), seeking to have that order set aside the
                                                                             other party to the proceedings being Commission of the
                                                                             European Communities (Agents: G. Rozet and J.L. Buendía
1.    The application is dismissed.                                          Sierra) — the Court (Sixth Chamber), composed of: J.-P.
                                                                             Puissochet (Rapporteur), President of the Chamber, G. Gul-
                                                                             mann, F. Macken and N. Coleric, and J.N. Cunha Rodrigues,
2.    Antippas is ordered to pay the costs.
                                                                             Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has
                                                                             given a judgment on 28 March 2003, the operative part of
                                                                             which is as follows:
( 1) OJ C 247 of 12.10.2002.
                                                                             1.    The appeal is dismissed.
 ---pagebreak--- 6.9.2003                 EN                          Official Journal of the European Union                                                 C 213/5
2.    The Territorio Histórico de Álava — Diputación Foral de                A tax such as the tax on companies’ net assets does not constitute a
      Álava, the Territorio Histórico de Bizkaia — Diputación Foral          tax having an economic effect equivalent to capital duty and,
      de Bizkaia, the Territorio Histórico de Gipuzkoa — Diputación          accordingly, is not incompatible with Council Directive 69/335/EEC
      Foral de Gipuzkoa y Juntas Generales de Gipuzkoa and the               concerning indirect taxes on the raising of capital (OJ, English Special
      Comunidad autónoma del País Vasco — Gobierno Vasco are                 Edition 1969, as amended by Directive 85/303/EEC of 10 June
      ordered to pay the costs.                                              1985.
( 1) OJ C 109 of 4.5.2002.                                                   (1 ) OJ 2002 C 261.
                     ORDER OF THE COURT
                                                                             Reference for a preliminary ruling by the Landgericht
                                                                             Stuttgart by order of that Court of 7 April 2003 in
                           (First Chamber)                                   the case concerning notarial costs with the following
                                                                             participants: (1) Notar Mathias Längst, (2) SABU Schuh
                                                                             & Marketing GmbH, (3) President of the Landgericht
                          of 27 March 2003                                   Stuttgart and (4) District Auditor of the Landgericht
                                                                                Stuttgart
in Case C-306/02 (reference for a preliminary ruling from
the Commissione Tributaria di Primo Grado di Trento,                                                   (Case C-165/03)
Sezione No 6): Petrolvilla & Bortolotti Spa and Others v
     Agenzia delle Entrate per la Provincia di Trento (1)
                                                                                (2003/C 213/09)
(Article 104(3) of the Rules of Procedure — Directive 69/
      335/EEC — Indirect taxes on the raising of capital)
                           (2003/C 213/08)                                   Reference has been made to the Court of Justice of the
                                                                             European Communities by order of the Landgericht Stuttgart
                                                                             (Regional Court, Stuttgart) of 7 April 2003, received at the
                     (Language of the case: Italian)                         Court Registry on 10 April 2003, for a preliminary ruling
                                                                             in the case concerning notarial costs with the following
                                                                             participants: (1) Notar Mathias Längst, (2) SABU Schuh &
                                                                             Marketing GmbH, (3) President of the Landgericht Stuttgart
(Provisional translation; the definitive translation will be published
                                                                             and (4) District Auditor of the Landgericht Stuttgart on the
                    in the European Court Reports)
                                                                             following questions:
                                                                             1)    In a legal system such as that of the Württemberg region
                                                                                of Baden-Württemberg, where there are both notaries
In Case C-306/02: reference to the Court under Article 234 EC                      who are self-employed and notaries who are employed as
from the Commissione Tributaria di Primo Grado di Trento                           civil servants and the notary himself is always the person
(Italy) for a preliminary ruling in the proceedings pending                        to whom the fees are due, but where, if the services
before that court between Petrolvilla & Bortolotti Spa and                         concerned are carried out by a notary employed as a civil
Others and Agenzia delle Entrate per la Provincia di Trento                        servant, he must remit a — fixed — portion of the fees
— on the interpretation of Council Directive 69/335/EEC                            to the State, which is his employer and which uses those
concerning indirect taxes on the raising of capital (OJ, English                   proceeds to fund its activities, are the fees of the notary
Special Edition 1969 (II), p. 25), as amended by Directive 85/                     employed as a civil servant for the notarisation of a legal
303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — the Court                         transaction covered by Directive 69/335, as amended, to
(First Chamber), composed of: M. Wathelet, President of the                        be regarded as tax for the purposes of that directive, in
Chamber, P. Jann (Rapporteur) and A. Rosas, Judges; P. Léger,                      contrast to the situation that gave rise to the order in
Advocate General; R. Grass, Registrar, has made an order on                        Case C-264/00 Gründerzentrum-Betriebs-GmbH (not yet
27 March 2003, in which it has ruled:                                              published in the European Court reports)?


title: Case T-427/07: Judgment of the General Court of 19 March 2010 — Mirto Corporación Empresarial v OHIM — Maglificio Barbara (Mirtillino) (Community trade mark — Opposition proceedings — Application for Community figurative mark Mirtillino — Earlier Community word mark MIRTO — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/30

         Judgment of the General Court of 19 March 2010 — Mirto Corporación Empresarial v OHIM — Maglificio Barbara (Mirtillino)
   (Case T-427/07) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark Mirtillino - Earlier Community word mark MIRTO - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2010/C 134/50
   Language of the case: Spanish

      Parties

      Applicant: Mirto Corporación Empresarial, SL (Madrid, Spain) (represented by: E. Armijo Chávarri, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Maglificio Barbara Srl (Busto Arsizio, Italy)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 29 August 2007 (Case R 875/2006-2), relating to opposition proceedings between Creaciones Mirto SA and Maglificio Barbara Srl.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mirto Corporación Empresarial, SL to pay the costs.

      (1)  OJ C 22, 26.1.2008.


title: Case C-401/06: Action brought on 26 September 2006 — Commission of the European Communities v Bundesrepublik Deutschland

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/31

         Action brought on 26 September 2006 — Commission of the European Communities v Bundesrepublik Deutschland
   (Case C-401/06)
   (2006/C 294/55)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: D. Triantafyllou, acting as Agent)

      Defendant: Bundesrepublik Deutschland
   Form of order sought

               —

               declare that, by failing to determine the place where the service is supplied in respect of the activity of an executor in accordance with Article 9(2)(e) of the Sixth VAT Directive when the service is performed for customers established outside the Community or for taxable persons established in the Community but not in the same country as the supplier, the Bundesrepublik Deutschland has failed to fulfil its obligations under Article 9(2)(e) of Sixth Council Directive 77/388/EEC of 17 May 1977 on turnover taxes (1);

               —

               order the Bundesrepublik Deutschland to pay the costs.

         Pleas in law and main arguments
   Under the third indent of Article 9(2)(e) of the Sixth VAT Directive the place of supply of certain services which are performed for customers established outside the Community or for taxable persons established in the Community but not in the same country as the supplier is the place where the customer has established his business or has a fixed establishment to which the service is supplied or, in the absence of such a place, the place where he has his permanent address or usually resides. Those services are the services of consultants, engineers, consultancy bureaux, lawyers, accountants and other similar services. That provision of the directive is a rule of conflict which determines the place of taxation of the services and the jurisdiction of the Member States.
   Under the provisions of German law and the administrative practice of the tax authorities based thereon, the place where the services of an executor are supplied is the place from which the operator provides its services. The place of supply in respect of those services is therefore not determined under Article 9(2)(e) of the directive when they are performed for customers established outside the Community or for taxable persons established in the Community but not in the same country as the supplier.
   That legislation and administrative practice does not comply with the provisions of Article 9 of the Sixth VAT Directive. Services which are performed in the capacity of executor for customers established outside the Community or for taxable persons established in the Community but not in the same country as the supplier are services of which the place of supply must be determined in accordance with Article 9(2)(e) of the Sixth VAT Directive.
   The Commission takes the view, contrary to the arguments of the German Government, that the activities of an executor are also among those activities which a lawyer performs principally and habitually. The activity as such rather than the professional title should be taken as a basis for the evaluation: it is the nature of the service which is relevant.
   The term ‘other similar services’ does not refer to a feature common to the activities named in the third indent of Article 9(2)(e) of the Sixth VAT Directive. It is sufficient that the service to be evaluated is similar to any of the activities expressly listed in that provision. That is the case when both activities serve the same purpose. According to the determination of the European Court of Justice, the principal and habitual activities of a lawyer include those of representing and defending the interests of a client. In so far as the Court of Justice refers to ‘representing or defending the interests of a person’, that requirement is also present in the activities of an executor: he represents and defends the interests of the testator. His activities correspond to those of an independently appointed representative and advisor. The fact that executorship is not an activity reserved to the legal profession does not preclude the two activities from serving the same purpose.

      (1)  OJ L 145 of 13.6.1977, p. 1.


title: Case T-409/10: Action brought on 13 September 2010 — Bottega Veneta International v OHIM (Shape of a handbag)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/56

         Action brought on 13 September 2010 — Bottega Veneta International v OHIM (Shape of a handbag)
   (Case T-409/10)
   ()
   2010/C 301/89
   Language in which the application was lodged: Italian

      Parties

      Applicant: Bottega Veneta International Sarl (Luxembourg, Luxembourg) (represented by P. Roncaglia, G. Lazzeretti, M. Boletto and E. Gavuzzi, lawyers)

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

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 16 June 2010 in Case R 1247/2009-1;

               —

               Order the Office for Harmonisation in the Internal Market to pay the costs of the present proceedings and the proceedings before the Board of Appeal.

      Pleas in law and main arguments

      Community trade mark concerned: Trade mark consisting of a distinctive three-dimensional sign known as the ‘veneta’ bag (application for registration No 6632608) for goods in Class 18 (‘bags and handbags’).

      Decision of the Examiner: Refused the application for registration.

      Decision of the Board of Appeal: Dismissed the appeal.

      Pleas in law: Infringement of Rule 9(3)(a) of Regulation No 2868/95 and Article 7(1)(b) and (3) of Regulation No 207/2009.


title: Case C-313/10: Order of the President of the Second Chamber of the Court of 25 October 2011 (reference for a preliminary ruling from the Landesarbeitsgericht Köln — Germany) — Land Nordrhein-Westfalen v Sylvia Jansen

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/25

         Order of the President of the Second Chamber of the Court of 25 October 2011 (reference for a preliminary ruling from the Landesarbeitsgericht Köln — Germany) — Land Nordrhein-Westfalen v Sylvia Jansen
   (Case C-313/10) (1)

   2012/C 73/44
   Language of the case: German
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 274, 9.10.2010.


title: Case T-370/09: Judgment of the General Court of 29 June 2012 — GDF Suez v Commission (Competition — Agreements, decisions and concerted practices — German and French markets for natural gas — Decision finding an infringement of Article 81 EC — Market sharing — Duration of the infringement — Fines)

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/16

         Judgment of the General Court of 29 June 2012 — GDF Suez v Commission
   (Case T-370/09) (1)

   (Competition - Agreements, decisions and concerted practices - German and French markets for natural gas - Decision finding an infringement of Article 81 EC - Market sharing - Duration of the infringement - Fines)
   2012/C 243/29
   Language of the case: French

      Parties

      Applicant: GDF Suez (Paris, France) (represented by: J. P. Gunther and C. Breuvart, lawyers)

      Defendant: European Commission (represented by: V. Di Bucci, A. Bouquet and R. Sauer, Agents)

      Re:

   Application for partial annulment of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF), and, in the alternative, for annulment or reduction of the fine imposed on the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 1 of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 — E.ON/GDF), first, inasmuch as it found that the duration of the infringement was from 1 January 1980 until at least 24 April 1998 as regards the infringement committed in Germany and, secondly, inasmuch as it found that an infringement was committed in France from 13 August 2004 to 30 September 2005;

               2.

               Sets the amount of the fine imposed on GDF Suez SA in Article 2(b) of Decision C(2009) 5355 final at EUR 320 million;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders each party to bear its own costs.

      (1)  OJ C 282, 21.11.2009.


title: Judgment of the Court (Fifth Chamber) of 29 April 2004 in Joined Cases C-482/01 and C-493/01 (Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Georgios Orfanopoulos and Others v Land Baden-Württemberg and between Raffaele Oliveri and Land Baden-Württemberg (Freedom of movement of persons — Public policy — Directive 64/221/EEC — Decision to expel on ground of criminal offences — Taking into account of the length of residence and personal circumstances — Fundamental rights — Protection of family life — Taking into account circumstances occurring between the final decision of the administrative authorities and the review, by an administrative court, of the lawfulness of that decision — The person concerned's right to submit considerations of expediency before an authority called upon to give an opinion)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/17

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 29 April 2004
   in Joined Cases C-482/01 and C-493/01 (Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Georgios Orfanopoulos and Others v Land Baden-Württemberg and between Raffaele Oliveri and Land Baden-Württemberg (1)

   (Freedom of movement of persons - Public policy - Directive 64/221/EEC - Decision to expel on ground of criminal offences - Taking into account of the length of residence and personal circumstances - Fundamental rights - Protection of family life - Taking into account circumstances occurring between the final decision of the administrative authorities and the review, by an administrative court, of the lawfulness of that decision - The person concerned's right to submit considerations of expediency before an authority called upon to give an opinion)
   (2004/C 118/30)
   Language of the case: German
   In Joined Cases C-482/01 and C-493/01: REFERENCE to the Court under Article 234 EC from the Verwaltungsgericht Stuttgart (Germany), for a preliminary ruling in the proceedings pending before that court between Georgios Orfanopoulos, Natascha Orfanopoulos, Melina Orfanopoulos, Sofia Orfanopoulos and Land Baden-Württemberg, and between Raffaele Oliveri and Land Baden-Württemberg - on the interpretation of Articles 39(3) EC and 9(1) of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition, 1963-1964, p. 117) (C-482/01), and of Article 39 EC and Article 3 of that directive (C-493/01) - the Court (Fifth Chamber), composed of: A. Rosas (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it has ruled:

               1)

               It is for the national court to determine the provisions of Community law, other than Article 18(1) EC, on which a national of a Member State such as Mr Oliveri may, if appropriate, rely in the circumstances of the proceedings which gave rise to Case C-493/01. In that regard, it must, in particular, establish whether the person concerned comes within the scope of Article 39 EC, either as a worker, or as a person otherwise entitled, under the provisions of the secondary legislation adopted to give effect to that article, to freedom of movement, or whether he may rely on other provisions of Community law, such as Council Directive 90/364/EEC of 28 June 1990 on the right of residence, or Article 49 EC, which applies particularly to recipients of services.

               2)

               Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, precludes national legislation which requires national authorities to expel nationals of other Member States who have been finally sentenced to a term of youth custody of at least two years or to a custodial sentence for an intentional offence against the Law on narcotics, where the sentence has not been suspended.

               3)

               Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constituted to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court.

               4)

               Article 39 EC and Article 3 of Directive 64/221 preclude legislation and national practices whereby a national of another Member State who has been sentenced to a certain penalty for specific offences is ordered to be expelled, in spite of family considerations being taken into account, based on the presumption that that person must be expelled, without proper account being taken of his personal conduct or of the danger which he represents for public policy.

               5)

               Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another Member State who has been sentenced to a certain penalty for specific offences and who, on the one hand, constitutes a present threat to the requirements of public policy and, on the other hand, has resided for many years in the host Member State and can plead family circumstances against that expulsion, provided that the assessment made on a case by case basis by the national authorities of where the fair balance lies between the legitimate interests at issue is made in compliance with the general principles of Community law and, in particular, by taking proper account of respect for fundamental rights, such as the protection of family life.

               6)

               Article 9(1) of Directive 64/221 precludes a provision of a Member State which provides neither a complaints procedure nor an appeal, comprising also an examination of expediency, against a decision to expel a national of another Member State taken by an administrative authority, where no authority independent of that administration has been put in place. It is for the national court to establish whether courts such as the Verwaltungsgerichte are able to examine the expediency of expulsion orders.

      (1)  OJ C 56 of 2.3.2002


title: Case T-396/02: Action brought on 27 December 2002 by August Storck KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 55/36               EN                         Official Journal of the European Union                                           8.3.2003
After finding an error in the wording of multiple-choice                 Pleas in law:                  —     Infringement               of
question number 35 of test (b), the jury decided to cancel that                                               Article 7(1)(b) of Regulation
question.                                                                                (EC) No 40/94 (1);
                                                                                —     Infringement of Article 7(3)
In support of her claims, the applicant alleges a manifest error                                              of Regulation (EC) No 40/
of assessment in the marking of questions number 21 in test                                                   94.
(a) and number 9 in test (c). She also alleges misuse of powers
in the present case.
                                                                         (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                              Community trade mark (OJ 1993 L 11, p. 1).
Action brought on 27 December 2002 by August Storck
KG against the Office for Harmonisation in the Internal
              Market (Trade Marks and Designs)                           Action brought on 27 December 2002 by August Storck
                                                                         KG against the Office for Harmonisation in the Internal
                        (Case T-396/02)                                                Market (Trade Marks and Designs)
                         (2003/C 55/89)                                                            (Case T-402/02)
                  (Language of the case: German)                                                    (2003/C 55/90)
                                                                                (Language of the case: German)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
27 December 2002 by August Storck KG, Berlin, represented                An action against the Office for Harmonisation in the Internal
by H. Wrage-Molkenthin, T. Reher and A. Heise, Rechtsanwäl-              Market (Trade Marks and Designs) was brought before the
te, with an address for service in Luxembourg.                           Court of First Instance of the European Communities on
                                                                         27 December 2002 by August Storck KG, Berlin, represented
                                                                         by H. Wrage-Molkenthin, T. Reher and A. Heise, Rechtsanwäl-
The applicant claims that the Court should:                              te, with an address for service in Luxembourg.
—     set aside the decision of the Fourth Board of Appeal of
      the Office for Harmonisation in the Internal Market of             The applicant claims that the Court should:
      14 October 2002 in Case R 187/2001-4;
                                                                         —     set aside the decision of the Second Board of Appeal of
—     order the Office to pay the costs.                                       the Office for Harmonisation in the Internal Market of
                                                                               18 October 2002 in Case R 256/2001-2;
                                                                         —     order the Office to pay the costs.
Pleas in law and main arguments
Trade mark for which          A three-dimensional mark in the
Community registration        form of a caramel sweet of a               Pleas in law and main arguments
sought:                       light brown colour — Application
                              No 784314
                                                                         Trade mark for which           The pictorial mark consisting of
Goods or services:            Goods of Class 30 (confectionery)          Community registration         the illustration of a wrapped sweet
                                                                         sought:                        — Application No 784454
Decision       challenged     Refusal of registration by the
before the Board of           examiner                                   Goods or services:             Goods of Class 30 (sweets)
Appeal:
                                                                         Decision        challenged     Refusal of registration by the
Decision of the Board of      Dismissal of the complaint                 before the Board of            examiner
Appeal:                                                                  Appeal:


title: Case C-202/10: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 26 April 2010 — Vion Trading GmbH v Hauptzollamt Hamburg-Jonas

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/12

         Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 26 April 2010 — Vion Trading GmbH v Hauptzollamt Hamburg-Jonas
   (Case C-202/10)
   ()
   2010/C 209/19
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Vion Trading GmbH

      Defendant: Hauptzollamt Hamburg-Jonas

      Questions referred

               1.

               Is the application by analogy of the limitation rule in Paragraph 195 BGB, in the version in force until the end of 2001, to claims for the repayment of wrongly paid export refunds incompatible with the Community-law principle of legal certainty?

               2.

               Is the application of the 30-year limitation period in Paragraph 195 BGB in relation to the recovery of wrongly paid export refunds incompatible with the Community-law principle of proportionality?

               3.

               If the reply to the second question is in the affirmative, is the application of a longer national limitation period within the meaning of Article 3(3) of Regulation No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests, (1) which is determined on the basis of an emergency judicial power in particular cases, by way of judicial development of the law, compatible with the Community-law principle of legal certainty?

      (1)  OJ 1995 L 312, p. 1.


title: Case T-343/17: Action brought on 31 May 2017 — Cathay Pacific Airways v Commission

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/64

         Action brought on 31 May 2017 — Cathay Pacific Airways v Commission
   (Case T-343/17)
   (2017/C 239/76)
   Language of the case: English

      Parties

      Applicant: Cathay Pacific Airways Ltd (Hong Kong, China) (represented by: R. Kreisberger and N. Grubeck, Barristers, M. Rees, Solicitor and E. Estellon, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul each of the findings of infringement set out in Article 1(1) to 1(4) of Commission Decision C(2017) 1742 final of 17 March 2017 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 AT.39258 — Airfreight) insofar as they concern the applicant;

               —

               annul Article 3 of the contested decision insofar as it imposed a fine of EUR 57 120 000 on the applicant or alternatively reduce the amount of that fine, and

               —

               order the Commission to pay the applicant’s costs of making this application.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission erred in law and/or in fact and/or failed to meet the applicable standard of proof by including the applicant in Article 1(1) and 1(4) of the operative part of the contested decision and finding that the applicant participated in the alleged single and continuous infringement.

                           —

                           The applicant puts forward that there is no lawful basis for being included in the intra-European infringements.

                           —

                           The applicant further claims that there is no adequate factual basis for being included in the intra-European infringements.

                           —

                           The applicant further alleges that the Commission’s reliance on new reasons is in breach of its rights of defence.

                           —

                           The applicant finally puts forward that the Commission’s unlawful inclusion of the applicant within Article 1(1) to 1(4) is fatal to its attempt to establish that the applicant participated in the alleged single and continuous infringement.

               2.

               Second plea in law, alleging that by adopting a second decision against the applicant, which imputes new infringing conduct to it, the Commission has violated Article 25 of Regulation 1/2003 as well as the principles of legal certainty, justice and the good administration of justice.

               3.

               Third plea in law, alleging that the Commission failed to establish to the requisite standard of proof that the applicant is liable for participation in the alleged single and continuous infringement.

                           —

                           According to the applicant, the Commission failed to deal with the applicant specifically and to establish the individual components of the single and continuous infringement in relation to the applicant.

                           —

                           The applicant furthermore claims that the Commission failed to show an overall plan pursuing a common objective.

                           —

                           The applicant further alleges that the Commission failed to show that the applicant participated or had the requisite intention to participate in the single and continuous infringement.

                           —

                           The applicant finally puts forward that there is no finding that it had the requisite knowledge.

               4.

               Fourth plea in law, alleging that the Commission failed to give adequate reasons to support its finding that the applicant participated in the alleged single and continuous infringement.

               5.

               Fifth plea in law, alleging that the Commission erred in relying on the applicant’s activities in third-country regulated jurisdictions as evidence of participation in the alleged single and continuous infringement and failed to give reasons in that regard.

                           —

                           According to the applicant, the Commission failed to meet the applicable burden of proof in respect of the applicant’s conduct in Hong Kong and/or failed to give adequate reasons.

                           —

                           The applicant further claims that the Commission failed to establish that the applicant’s conduct in Hong Kong has an anti-competitive objective.

                           —

                           The applicant further alleges that it was compelled by Hong Kong law to submit collective applications.

                           —

                           The applicant finally claims an infringement of the principles of comity and non-interference.

               6.

               Sixth plea in law, alleging that the Commission had no jurisdiction to apply Article 101 TFEU to conduct relating to inbound flights, i.e. airfreight services from third countries to Europe.

               7.

               Seventh plea in law, alleging that the Commission erred in law in calculating the fine imposed on the applicant.


title: Case C-449/06: Judgment of the Court (Fourth Chamber) of 14 February 2008 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium)) — Sophiane Gysen v Groupe S-Caisse d'Assurances sociales pour indépendants (Officials — Remuneration — Staff Regulations — Family allowances — Calculation of the amount of national family allowances — Determination of the ranking of the children — Child giving rise to entitlement to family allowances under the Staff Regulations)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/5

         Judgment of the Court (Fourth Chamber) of 14 February 2008 (reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium)) — Sophiane Gysen v Groupe S-Caisse d'Assurances sociales pour indépendants
   (Case C-449/06) (1)

   (Officials - Remuneration - Staff Regulations - Family allowances - Calculation of the amount of national family allowances - Determination of the ranking of the children - Child giving rise to entitlement to family allowances under the Staff Regulations)
   (2008/C 79/08)
   Language of the case: French
   Referring court
   Tribunal du travail de Bruxelles (Belgium)
   Parties to the main proceedings

      Applicant: Sophiane Gysen

      Defendant: Groupe S-Caisse d'Assurances sociales pour indépendants
   Re:
   Reference for a preliminary ruling — Tribunal du travail de Bruxelles — Interpretation [of Article 67] of Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities (OJ 1968 L 56, p. 1) — Family allowances — Permissibility of a national family allowance system which excludes, from the calculation of the order of the beneficiary children, children in respect of whom there is entitlement to family allowances under the Staff Regulations — Legal classification of the Staff Regulations of Officials under national law
   Operative part of the judgment
   Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission, as amended by Council Regulation (EEC, Euratom, ECSC) No 2074/83 of 21 July 1983, has general application, is binding in its entirety and is directly applicable in all Member States. In view of the direct applicability of that regulation in the legal systems of the Member States, a child giving rise to entitlement to family allowances under the Staff Regulations of Officials of the European Communities must be treated in the same way as a child giving rise to entitlement to family allowances under national law or an international social security convention in force in the Member State concerned.

      (1)  OJ C 326, 30.12.2006.


title: Judgment of the Court (Fifth Chamber) of 22 February 2001 in Joined Cases C-52/99 and C-53/99 (reference for a preliminary ruling from the Cour du Travail de Liège (Belgium)): Office National des Pensions (ONP) v Gioconda Camarotto (C-52/99), Giuseppina Vignone (C-53/99) (Council Regulation (EEC) No 1408/71, as amended by Regulation (EEC) No 1248/92 — Social security Insurance relating to old age and death — Calculation of benefits — Changes to the rules governing calculation of benefits)

text:
16.6.2001                 EN                        Official Journal of the European Communities                                            C 173/11
services acquired by the transferor in order to effect the transfer have       1.    Article 95a of Regulation (EEC) No 1408/71 of the Council
a direct and immediate link with a clearly defined part of his economic              of 14 June 1971 on the application of social security schemes
activities, so that the costs of those services form part of the overheads           to employed persons, to self-employed persons and to members
of that part of the business, and all the transactions relating to that              of their families moving within the Community, as amended by
part of the business are subject to value added tax, he may deduct all               Council Regulation (EEC) No 1248/92 of 30 April 1992,
the value added tax charged on his costs of acquiring those services.                laying down transitional provisions for application of Regu-
                                                                                lation No 1248/92, applies to recipients of pensions who,
                                                                                before the date of entry into force of the amendments introduced
(1) OJ C 1 of 4.1.1999.                                                              by the latter regulation, had already brought proceedings before
                                                                                a national court seeking to obtain the right to the pension
                                                                                by contesting the application of the national rules against
                                                                                overlapping, even if a final decision in those proceedings had
                                                                                not yet been given at the time of the entry into force of the new
                                                                                provisions.
                                                                               2.    It is for the national court to determine, first, whether its
                                                                                national law requires an application for review to be made
                   JUDGMENT OF THE COURT                                             either to the competent social security institution within the
                                                                                period prescribed and in accordance with the relevant formal
                                                                                requirements, or to the court itself according to the applicable
                            (Fifth Chamber)                                          rules of procedure. Second, it is for that court to ensure that
                                                                                those requirements are not less favourable than those governing
                         of 22 February 2001                                         similar situations under domestic law and that they are not
                                                                                such as to render impossible in practice or excessively difficult
                                                                                the exercise of the rights conferred on claimants by Regulation
in Joined Cases C-52/99 and C-53/99 (reference for a                                 No 1408/71, as amended by Regulation No 1248/92.
preliminary ruling from the Cour du Travail de Liège
(Belgium)): Office National des Pensions (ONP) v Giocon-
da Camarotto (C-52/99), Giuseppina Vignone (C-53/99) (1)                       (1) OJ C 100 of 10.4.1999.
(Council Regulation (EEC) No 1408/71, as amended by
Regulation (EEC) No 1248/92 — Social security Insurance
relating to old age and death — Calculation of benefits —
    Changes to the rules governing calculation of benefits)
                            (2001/C 173/17)                                                      JUDGMENT OF THE COURT
                                                                                (Second Chamber)
                      (Language of the case: French)
                                                                                of 22 February 2001
(Provisional translation; the definitive translation will be published         in Case C-187/99 (reference for a preliminary ruling from
                     in the European Court Reports)                            the Supremo Tribunal Administrativo): Fazenda Pública v
                                                                                Fábrica de Queijo Eru Portuguesa Lda (1)
In Joined Cases C-52/99 and C-53/99: reference to the Court
under Article 177 of the EC Treaty (now Article 234 EC) from                   (Inward processing relief arrangements — Regulation (EEC)
the Cour du Travail de Liège (Higher Labour Court, Liège) for                  No 1999/85 — Rate of yield of the processing operation —
a preliminary ruling in the proceedings pending before that                    Authorisation issued by the competent customs authority —
court between Office National des Pensions (ONP) and Giocon-                   Power of that authority unilaterally to alter the rate of yield)
da Camarotto (C-52/99), Giuseppina Vignone (C-53/99) — on
the interpretation of Article 95a of Council Regulation (EEC)                                             (2001/C 173/18)
No 1408/71 of 14 June 1971 on the application of social
security schemes to employed persons, to self-employed
persons and to members of their families moving within the
                                                                                (Language of the case: Portuguese)
Community (OJ, English Special Edition 1971 (II), p. 416), as
amended by Council Regulation (EEC) No 1248/92 of 30 April
1992 (OJ 1992 L 136, p. 7) — the Court (Fifth Chamber),
composed of: A. La Pergola, President of the Chamber,                          (Provisional translation; the definitive translation will be published
D.A.O. Edward (Rapporteur) and P. Jann, Judges; S. Alber,                                          in the European Court Reports)
Advocate General; H. von Holstein, Deputy Registrar, for the
Registrar, has given a judgment on 22 February 2001, in                        In Case C-187/99: reference to the Court under Article 177 of
which it has ruled:                                                            the EC Treaty (now Article 234 EC) from the the Supremo