title: Case C-136/09: Order of the Court (Seventh Chamber) of 18 March 2010 (reference for a preliminary ruling from the Arios Pagos — Greece) — Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Acropolis Hotel and Tourism AE (Article 104(3) of the Rules of Procedure — Copyright and related rights in the information society — Directive 2001/29/EC — Article 3 — Concept of ‘communication to the public’ — Works communicated by means of television sets installed in hotel rooms)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/14

         Order of the Court (Seventh Chamber) of 18 March 2010 (reference for a preliminary ruling from the Arios Pagos — Greece) — Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Acropolis Hotel and Tourism AE
   (Case C-136/09) (1)

   (Article 104(3) of the Rules of Procedure - Copyright and related rights in the information society - Directive 2001/29/EC - Article 3 - Concept of ‘communication to the public’ - Works communicated by means of television sets installed in hotel rooms)
   2010/C 179/23
   Language of the case: Greek

      Referring court

   Arios Pagos

      Parties to the main proceedings

      Applicant: Organismos Sillogikis Diakhirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon

      Defendant: Divani Acropolis Hotel and Tourism AE

      Intervener in support of the defendant: Hellenic Chamber of Hotels

      Re:

   Reference for a preliminary ruling — Arios Pagos — Interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Concept of ‘communication to the public’ — Works transmitted by means of television sets installed in hotel rooms and connected to the central antenna of the hotel with no other action by the hotel to ensure reception of a signal by hotel customers

      Operative part of the order

   The hotelier, by installing televisions in his hotel rooms and by connecting them to the central antenna of the hotel, thereby, and without more, carries out an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

      (1)  OJ C 141, of 20.06.2009.


title: Joined Cases T-225/07 and T-364/07: Judgment of the Court of First Instance of 29 September 2009 — Thomson Sales Europe v Commission (Customs union — Imports of colour television receivers manufactured in Thailand — Refund of import duties — Manifest negligence — Post-clearance recovery of import duties — Action for annulment — Act having adverse effects — Inadmissibility)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/58

         Judgment of the Court of First Instance of 29 September 2009 — Thomson Sales Europe v Commission
   (Joined Cases T-225/07 and T-364/07) (1)

   (Customs union - Imports of colour television receivers manufactured in Thailand - Refund of import duties - Manifest negligence - Post-clearance recovery of import duties - Action for annulment - Act having adverse effects - Inadmissibility)
   2009/C 267/101
   Language of the case: French

      Parties

      Applicant: Thomson Sales Europe (Boulogne-Billancourt, France) (represented by: F. Goguel and F. Foucault, lawyers)

      Defendant: Commission of the European Communities (represented in Case T-225/07by: X. Lewis, H. van Vliet and S. Schønberg and, in Case T-364/07, by: X. Lewis and M. Patakia, acting as Agents)

      Re:

   In Case T-225/07, annulment of Commission Decision REM 03/05 of 7 May 2007 stating to the French authorities that the refund of import duties is not justified on the importation of colour television receivers manufactured in Thailand covered by their application of 14 September 2005 and, in Case T-364/07, annulment of the letter of the Commission of 20 July 2007 not confirming acquisition of the entitlement to post-clearance recovery of import duties on those items.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Thomson Sales Europe to bear its own costs and to pay those incurred by the Commission of the European Communities.

      (1)  OJ C 211, 8.9.2007.


title: Case C-170/09: Action brought on 13 May 2009 — Commission of the European Communities v French Republic

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/30

         Action brought on 13 May 2009 — Commission of the European Communities v French Republic
   (Case C-170/09)
   2009/C 153/57
   Language of the case: French

      Parties

      Applicants: Commission of the European Communities (represented by: V. Peere and P. Dejmek, acting as Agents)

      Defendants: French Republic

      Form of order sought

               —

               Declare that, by failing to adopt all the laws, regulation and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (1) and, in any event, by failing to notify them to the Commission, the French Republic has failed to fulfil its obligations under that directive;

               —

               order the French Republic to pay the costs.

      Pleas in law and main arguments

   The period for transposition of Directive 2005/60/EC expired on 15 December 2007. At the date on which the present action was brought, the defendant still had not adopted all the transposing measures necessary or, in any event, had not notified them to the Commission.

      (1)  OJ L 309, p. 15.


title: Case T-341/10: Action brought on 20 August 2010 — F91 Diddeléng and Others v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/32

         Action brought on 20 August 2010 — F91 Diddeléng and Others v Commission
   (Case T-341/10)
   ()
   2010/C 301/55
   Language of the case: French

      Parties

      Applicants: F91 Diddeléng (Dudelange, Luxembourg), Julien Bonnetaud (Yutz, France), Thomas Gruszczynski (Amnéville, France), Rainer Hauck (Maxdorf, Allemagne), Stéphane Martine (Esch-sur-Alzette, Luxembourg), Grégory Molnar (Moyeuvre-Grande, France) and Yann Thibout (Algrange, France) (represented by: L. Misson, C. Delrée and G. Ernes, lawyers)

      Defendants: European Commission

      Form of order sought

               —

               Annul the contested decision of the European Commission, adopted on 3 June 2010;

               —

               Annul the rules which are contrary to Articles 45 and 101 TFEU;

               —

               Impose any appropriate sanction.

      Pleas in law and main arguments

   The applicants (Dudelange football club and the non-Luxembourg players employed by that club) seek annulment of the Commission decision of 3 June 2010, communicated by letter of 21 June 2010, in which the Commission informed the applicants that it intended to take no action in regard to their complaint against the Fédération Luxembourgeoise de Football (FLF), based on Articles 45 and 101 TFEU, concerning the FLF rules preventing the applicants from taking part in certain football matches if the number of foreign players appearing on the match sheet is greater than a number laid down in the FLF rules;
   In support of their action, the applicants put forward two pleas in law alleging:

               —

               an infringement of Article 45 TFEU, inasmuch as the obligation currently laid down in the FLF rules to place, on the official match sheet, seven players who had obtained their first licence in Luxembourg and the prohibition on placing, on the same match sheet, more than four players transferred during the sporting year constitutes direct discrimination preventing a national of a Member State from exercising an economic activity in Luxembourg territory. The applicants also claim that, in so far as the FLF rules constitute, not direct discrimination, but indirect discrimination, the objectives invoked by the FLF, namely, that its purpose is to promote the game of football as an amateur sport, are unfounded and cannot therefore be regarded as legitimate objectives. The restrictions are therefore disproportionate compared to the objective invoked.

               —

               an infringement of Article 101 TFEU, inasmuch as the FLF must be regarded as an association of undertakings infringing competition law, and more particularly, Article 101 TFEU, in so far as the restrictions on the number of foreign players have economic consequences for professional sportsmen and adversely affect competition between Luxembourg football clubs.


title: Case T-220/09: Judgment of the General Court of 15 July 2011 — Ergo Versicherungsgruppe v OHIM — Société de développement et de recherche industrielle (ERGO) (Community trade mark — Opposition proceedings — Application for Community word mark ERGO — Earlier Community word mark URGO — Relative ground 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:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/47

         Judgment of the General Court of 15 July 2011 — Ergo Versicherungsgruppe v OHIM — Société de développement et de recherche industrielle (ERGO)
   (Case T-220/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark ERGO - Earlier Community word mark URGO - Relative ground 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))
   2011/C 269/103
   Language of the case: German

      Parties

      Applicant: Ergo Versicherungsgruppe AG (Düsseldorf, Germany) (represented by: V. von Bomhard, A.W. Renck, T. Dolde and J. Pause, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Société de développement et de recherche industrielle (Chenôve, France) (represented by: K. Dröge, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 (Case R 515/2008-4) relating to opposition proceedings between Société de développement et de recherche industrielle and Ergo Versicherungsgruppe AG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Versicherungsgruppe AG to pay the costs.

      (1)  OJ C 180, 1.8.2009.


title: Case T-416/17: Action brought on 03 July 2017 — Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO — Papouis Dairies (fino)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/53

         Action brought on 03 July 2017 — Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO — Papouis Dairies (fino)
   (Case T-416/17)
   (2017/C 277/77)
   Language in which the application was lodged: English

      Parties

      Applicant: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi (Nicosia, Cyprus) (represented by: S. Malynicz, QC, and V. Marsland, Solicitor)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Papouis Dairies LTD (Nicosia, Cyprus)

      Details of the proceedings before EUIPO

      Applicant of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: EU figurative mark in colour containing the word element ‘fino’ — Application for registration No 11 180 791

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 20 April 2017 in Case R 2759/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO and other party to bear their own costs and pay those of the applicant.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case T-393/02: Action brought on 27 December 2002 by Henkel KGaA against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 55/34                  EN                           Official Journal of the European Union                                         8.3.2003
Finally, the applicant alleges breach of the fundamental                      Pleas in law and main arguments
principles of legal certainty, sound administration and good
faith. The applicant makes the point that it has, on numerous
occasions, approached the Commission without ever obtaining                   Trade mark for which         A three-dimensional mark in the
any indication which would have enabled it to provide results                 Community registration       form of a bottle standing on its
likely to be acceptable in the eyes of the Commission and the                 sought:                      head in the colours transparent
Council.                                                                                and white — Application
                                                                                No 1162395
( 1) Council Regulation (EC) No 1756/2002 of 23 September 2002                Goods or services:           Goods of Classes 3 and 20 (includ-
     amending Directive 70/524/EEC concerning additives in feeding-                                        ing soaps, washing and bleaching
     stuffs as regards withdrawal of the authorisation of an additive                                      preparations, cleaning and pol-
     and amending Commission Regulation (EC) No 2430/1999 (Text                                            ishing preparations and artificial
     with EEA relevance) (OJ 2002 L 265, p. 1).                                                            containers for liquid, gel-like and
( 2) Council Directive 70/524/EEC of 23 November 1970 concerning
                                                                                pasty preparations)
     additives in feeding-stuffs (OJ, English Special Edition 1970 (III),
     p. 840).
( 3) Commission Regulation (EC) No 2430/1999 of 16 November                   Decision       challenged    Refusal of registration by the
     1999 linking the authorisation of certain additives belonging to         before the Board of          examiner
     the group of coccidiostats and other medicinal substances in             Appeal:
     feedingstuffs to persons responsible for putting them into circu-
     lation (Text with EEA relevance) OJ 1999 L 296, p. 3.
                                                                              Decision of the Board of     Dismissal of the complaint
                                                                              Appeal:
                                                                              Pleas in law:                —     The mark is distinguished by
                                                                                a number of special features
                                                                                and has distinctive force.
                                                                                —     The Board of Appeal disre-
                                                                                garded the characteristic
Action brought on 27 December 2002 by Henkel KGaA                                                                geometry of the mark.
against the Office for Harmonisation in the Internal
                Market (Trade Marks and Designs)                                                           —     The mark has acquired pro-
                                                                                tection in several Member
                                                                                States.
                           (Case T-393/02)
                            (2003/C 55/86)
                     (Language of the case: German)
                                                                              Action brought on 27 December 2002 by Arnaldo Lucac-
                                                                               cioni against Commission of the European Communities
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                                                (Case T-394/02)
27 December 2002 by Henkel KGaA, Düsseldorf (Germany),
represented by C. Osterrieth, Rechtsanwalt, with an address
                                                                                (2003/C 55/87)
for service in Luxembourg.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
—       set aside the decision of the Fourth Board of Appeal of
        the Office for Harmonisation in the Internal Market of
                                                                              An action against the Commission of the European Communi-
        3 October 2002 in Case R 313/2001-4, concerning
                                                                              ties was brought before the Court of First Instance of the
        Community trade mark registration application
                                                                              European Communities on 27 December 2002 by Arnaldo
        No 1162395;
                                                                              Lucaccioni, residing in St-Leonards-on-Sea (United Kingdom),
                                                                              represented by Juan Ramón Iturriagagoitia and Karine Delvol-
—       order the Office to pay the costs.                                    vé, lawyers.


title: Case C-153/17: Reference for a preliminary ruling from the Supreme Court of the United Kingdom made on 27 March 2017 — Commissioners for Her Majesty’s Revenue and Customs v Volkswagen Financial Services (UK) Ltd

text:
               6.6.2017

               EN

               Official Journal of the European Union

               C 178/10

         Reference for a preliminary ruling from the Supreme Court of the United Kingdom made on 27 March 2017 — Commissioners for Her Majesty’s Revenue and Customs v Volkswagen Financial Services (UK) Ltd
   (Case C-153/17)
   (2017/C 178/11)
   Language of the case: English

      Referring court

   Supreme Court of the United Kingdom

      Parties to the main proceedings

      Applicant: Commissioners for Her Majesty’s Revenue and Customs

      Defendant: Volkswagen Financial Services (UK) Ltd

      Questions referred

               1.

               Where general overhead costs attributed to hire purchase transactions (which consist of exempt supplies of finance and taxable supplies of cars), have been incorporated only into the price of the taxable person’s exempt supplies of finance, does the taxable person have a right to deduct any of the input tax on those costs?

               2.

               What is the proper interpretation of paragraph 31 of Case C-93/98, Midland Bank, and specifically the statement that overhead costs ‘are part of the taxable person’s general costs and are, as such, components of the price of an undertaking’s products’?
               In particular:

                           a)

                           Should this passage be interpreted to mean that a Member State must always attribute some input tax to every supply in any special method adopted under Article 173(2)(c) of the Directive (1)?

                           b)

                           Is this the case even if the factual circumstances are that the overhead costs are not incorporated in the price of taxable supplies made by the undertaking?

               3.

               Does the fact that the overhead costs have been actually used, at least to some extent, in making taxable supplies of cars,

                           a)

                           entail that some proportion of the input tax on those costs must be deductible?

                           b)

                           Is this the case even if the factual circumstances are that overhead costs are not incorporated in the price of the taxable supplies of cars?

               4.

               Can it be legitimate in principle to ignore the taxable supplies of cars (or their value) for the purposes of arriving at a special method under Article 173(2)(c) of the Directive?

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


title: Case C-182/14 P: Appeal brought on 11 April 2014 by Mega Brands International, Luxembourg, Zweigniederlassung Zug against the judgment of the General Court (Second Chamber) delivered on 4 February 2014 in Cases T-604/11 and T-292/12: Mega Brands International, Luxembourg, Zweigniederlassung Zug v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/3

         Appeal brought on 11 April 2014 by Mega Brands International, Luxembourg, Zweigniederlassung Zug against the judgment of the General Court (Second Chamber) delivered on 4 February 2014 in Cases T-604/11 and T-292/12: Mega Brands International, Luxembourg, Zweigniederlassung Zug v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-182/14 P)
   2014/C 223/03
   Language of the case: English

      Parties

      Appellant: Mega Brands International, Luxembourg, Zweigniederlassung Zug (represented by: A. Nordemann, M.C. Maier, Rechtsanwälte)

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

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the contested judgment of the General Court of 4 February 2014 as far as it concerns Case T-292/12,

               —

               if necessary, remit the case back to the General Court,

               —

               order the Defendant to bear the costs of the proceedings.

      Pleas in law and main arguments

   The appellant bases its appeal on a single plea, alleging infringement of article 8(1)(b) of Council Regulation (EC) No 207/2009 (1), of 26 February 2009, on the Community trade mark.
   Specifically the appellant submits that the General Court erred in law:

               1)

               in not taking into consideration, or even mentioning, in the framework of a global assessment, that the earlier trade mark, MAGNET 4, consists of the number ‘4’;

               2)

               in considering, at paragraphs 22 and 25 of its judgment, the element MAGNET as the dominant element of the earlier trademark, MAGNET 4;

               3)

               in applying, at paragraph 25, different standards to the assessment of the phonetic and visual similarities of the signs MAGNET 4 and MAGNEXT;

               4)

               by not taking into account, at paragraph 35, in the framework of a global appreciation of the likelihood of confusion, the interdependence of the relevant factors, in particular the low level of distinctiveness of the earlier mark, MAGNET 4, the lack of conceptual similarity of the signs MAGNET 4 and MAGNEXT, and the weak degree of phonetic and visual similarities of the signs;

               5)

               in not providing substantive grounds, in paragraph 35, with regard to the existence of a likelihood of confusion between the signs MAGNET 4 and MAGNEXT

      (1)  OJ L 78, p. 1


title: Case C-337/07: Judgment of the Court (Third Chamber) of 18 December 2008 (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart — Germany) — Ibrahim Altun v Stadt Böblingen (EEC-Turkey Association Agreement — Article 7, first paragraph of Decision No 1/80 of the Association Council — Right of residence of a child of a Turkish worker — Worker duly registered as belonging to the labour force — Involuntary unemployment — Applicability of that agreement to Turkish refugees — Conditions governing the loss of acquired rights)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/15

         Judgment of the Court (Third Chamber) of 18 December 2008 (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart — Germany) — Ibrahim Altun v Stadt Böblingen
   (Case C-337/07) (1)

   (EEC-Turkey Association Agreement - Article 7, first paragraph of Decision No 1/80 of the Association Council - Right of residence of a child of a Turkish worker - Worker duly registered as belonging to the labour force - Involuntary unemployment - Applicability of that agreement to Turkish refugees - Conditions governing the loss of acquired rights)
   (2009/C 44/24)
   Language of the case: German
   Referring court
   Verwaltungsgericht Stuttgart
   Parties to the main proceedings

      Applicant: Ibrahim Altun

      Defendant: Stadt Böblingen
   Re:
   Reference for a preliminary ruling — Verwaltungsgericht Stuttgart — Interpretation of the first indent of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council — Right to stay of a Turkish national who has entered national territory as a minor for the purpose of family reunion — Criminal conviction — Effect on the right to stay — Applicability to Turkish refugees — Asylum granted to the father on the basis of false statements — Withdrawal of grant of asylum as a condition for refusal of the derived right to stay — Derived right conditional on lawful registration as belonging to the labour force of a Member State for a period of three years during which the father lives together in a household with the minor
   Operative part of the judgment

               1.

               The first indent of the first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association set up by the Agreement establishing an Association between the European Economic Community and Turkey is to be interpreted as meaning that the child of a Turkish worker may enjoy rights arising by virtue of that provision where, during the three-year period when the child was co-habiting with that worker, the latter was working for two and a half years before being unemployed for the following six months.

               2.

               The fact that a Turkish worker has obtained the right of residence in a Member State and, accordingly, the right of access to the labour market of that State as a political refugee does not prevent a member of his family from enjoying the rights arising under the first paragraph of Article 7 of Decision No 1/80.

               3.

               The first paragraph of Article 7 of Decision No 1/80 is to be interpreted as meaning that when a Turkish worker has obtained the status of political refugee on the basis of false statements, the rights that a member of his family derives from that provision cannot be called into to question if the latter, on the date on which the residence permit issued to that worker is withdrawn, fulfils the conditions laid down therein.

      (1)  OJ C 269, 10.11.2007.


title: Case T-547/10: Action brought on 29 November 2010 — Omya v OHIM — Alpha Calcit (CALCIMATT)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/51

         Action brought on 29 November 2010 — Omya v OHIM — Alpha Calcit (CALCIMATT)
   (Case T-547/10)
   ()
   2011/C 30/91
   Language in which the application was lodged: German

      Parties

      Applicant: Omya AG (Oftringen, Switzerland) (represented by: F. Kuschmirek, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Alpha Calcit Füllstoffgesellschaft mbH (Cologne, Germany)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 September 2010 in Case R 1370/2009-1, and order the defendant to register Community trade mark application No 5 200 654‘CALCIMATT’ for all the goods in respect of which application was sought;

               —

               order the defendant to pay the costs;

               —

               in the alternative, stay the proceedings until a final decision has been taken on whether OHIM is to remove the opposing mark EU 003513488 ‘CALCILAN’ from the register.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Omya AG.

      Community trade mark concerned: Word mark ‘CALCIMATT’ for goods in Classes 1 and 2.

      Proprietor of the mark or sign cited in the opposition proceedings: Alpha Calcit Füllstoffgesellschaft mbH.

      Mark or sign cited in opposition: Internationally registered word marks ‘CALCIPLAST’, ‘CALCILIT’ and ‘CALCICELL’ for goods in Classes 1 and 19, Community word marks ‘Calcilit’ and ‘CALCILAN’ for goods in Classes 1 and 19, and national word works ‘CALCICELL’ and ‘CALCIPLAST’ for goods in Class 1.

      Decision of the Opposition Division: Opposition rejected.

      Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and refusal to register.

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between opposing marks as regards the goods in respect of which application was sought.

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


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 17 July 1998 in Case T-111/96: ITT Promedia NV v. Commission of the European Communities (Competition - Actions for annulment - Rejection of a complaint - Article 86 of the EC Treaty - Abuse of a dominant position - Actions before national courts - Right of access to the courts - Claim for performance of an agreement - Manifest error of assessment - Obligation to carry out an examination - Error of characterisation - Inadequate statement of reasons)

text:
26.9.98              EN                 Official Journal of the European Communities                                 C 299/31
  JUDGMENT OF THE COURT OF FIRST INSTANCE                            JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Fifth Chamber)
                       of 17 July 1998
                                                                                of 16 July 1998
in Case T-111/96: ITT Promedia NV v. Commission of
                the European Communities (1)                             in Case T-144/96: Y. v. European Parliament (1)
                                                                   (Officials Ð Criminal conviction Ð Disciplinary
(Competition Ð Actions for annulment Ð Rejection of a              proceedings Ð removal from post Ð Statement of reasons
complaint Ð Article 86 of the EC Treaty Ð Abuse of a                    Ð Duty to have regard for the welfare of officials)
dominant position Ð Actions before national courts Ð
Right of access to the courts Ð Claim for performance of                                   (98/C 299/50)
an agreement Ð Manifest error of assessment Ð
Obligation to carry out an examination Ð Error of                                 (Language of the case: French)
    characterisation Ð Inadequate statement of reasons)
                                                                   In Case T-144/96: Y., a former official of the European
                         (98/C 299/49)                             Parliament, residing in Brussels, represented by GeÂrard
                                                                   Collin, of the Brussels Bar, with an address for service in
                                                                   Luxembourg at Fiduciaire Myson SARL, 30, rue de
                                                                   Cessange, against the European Parliament (Agents: Hans
               (Language of the case: English)                     Krück and Hugo Vandenberghe) Ð application for the
                                                                   annulment of the disciplinary decision of the Parliament of
                                                                   19 January 1996 removing the applicant from his post Ð
                                                                   the Court of First Instance (Fifth Chamber), composed of
                                                                   J. Azizi, President, R. García-Valdecasas and M. Jaeger,
In Case T-111/96: ITT Promedia NV, established at
                                                                   Judges; H. Jung, Registrar, gave a judgment on 16 July
Antwerp (Belgium), represented by Ivo Van Bael, Peter
                                                                   1998, in which it:
L'Ecluse and Kris Van Hove, of the Brussels Bar, with an
address for service in Luxembourg at the Chambers of
Loesch & Wolter, 11, rue Goethe, against the Commission            1. dismisses the application;
of the European Communities (Agents: Wouter Wils and
Rosemary Caudwell), supported by Belgacom SA,                      2. orders the parties to bear their own costs.
established in Brussels, represented by Jules Stuyck and
subsequently by Hermann De Bauw and Paul Maeyaert,
                                                                   (1) OJ C 354, 23.11.1996.
of the Brussels Bar, with an address for service in
Luxembourg at the Chambers of Arendt & Medernach,
8Ð10 rue Mathias Hardt Ð application for annulment of
a Commission decision definitively rejecting the heads of
the applicant's complaint which allege that Belgacom SA
had initiated vexatious litigation against it before the
Belgian courts and had requested the transfer by it to               JUDGMENT OF THE COURT OF FIRST INSTANCE
Belgacom SA of its industrial and commercial know-how                                     of 16 July 1998
in accordance with contractual commitments between the
two parties, those acts allegedly constituting infringements       in Case T-156/96 Claus Jensen v. Commission of the
of Article 86 of the EC Treaty Ð the Court of First                                  European Communities (1)
Instance (Fourth Chamber, extended composition),                   (Officials Ð Pay Ð Installation allowance Ð Recovery of
composed of: P. Lindh, President, R. García-Valdecasas, K.                               undue payments)
Lenaerts, J. D. Cooke and M. Jaeger, Judges; A. Mair,
Administrator, for the Registrar, has given a judgment on                                  (98/C 299/51)
17 July 1998, in which it:
                                                                                (Language of the case: French)
                                                                   In Case T-156/96 Claus Jensen, a former temporary
1. dismisses the application;                                      servant of the Commission of the European Communities,
                                                                   residing at Waterloo (Belgium), represented by Marc-
                                                                   Albert Lucas, of the LieÁge Bar, with an address for service
                                                                   in Luxembourg at the Chambers of Evelyne Korn, 21, rue
                                                                   de Nassau, against the Commission of the European
2. orders the applicant to bear its own costs and to pay           Communities (Agents: Julian Currall and Christine
     those incurred by the Commission and Belgacom.                Berardis-Kayser and Florence Clotuche) Ð application for
                                                                   annulment of the Commission's decision of 13 November
                                                                   1995 to recover the amount paid to the applicant by way
(1) OJ C 269, 14.9.1996.                                           of installation allowance, following termination of his
                                                                   contract as a temporary servant and, in the alternative, a
                                                                   claim for damages Ð the Court (Second Chamber),
                                                                   composed of A. Kalogeropoulos, President, and C. W.
                                                                   Bellamy and J. Pirrung, Judges; H. Jung, Registrar, gave a


title: Case T-210/13: Action brought on 12 April 2013 — Versalis v Commission

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/52

         Action brought on 12 April 2013 — Versalis v Commission
   (Case T-210/13)
   2013/C 156/98
   Language of the case: Italian

      Parties

      Applicant: Versalis SpA (San Donato Milanese, Italy) (represented by: M. Siragusa, F. Moretti and L. Nascimbene, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested measures and order the Commission to pay the costs.

      Pleas in law and main arguments

   The present dispute concerns a request for the annulment of the European Commission’s decision of 26 February 2013 [C(2013) 1200 final], together with the statement of objections [C(2013) 1199 final] by which the Commission had formally initiated the procedure in AT.40032 — BR/ESBR — Recidivism, with the intention of amending Decision C(2006) 5700 final of 29 November 2006, adopted in Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber, partially annulled and varied by the General Court of the European Union by judgments of 13 July 2011 in Case T-39/07 Eni v Commission and Case T-59/07 Polimeri Europa v Commission.
   By its sole plea, the applicant alleges that the Commission lacked competence to reopen the proceedings against it with a view to the adoption of a new infringement decision. In particular, the applicant maintains that the Commission’s power to impose penalties on the applicant in connection with the matters covered by the procedure in Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber was exhausted following the adoption of the decision of 29 November 2006 (C(2006) 5700 final), partially annulled and varied by the General Court of the European Union by judgments of 13 July 2011 in Case T-39/07 Eni v Commission and Case T-59/07 Polimeri Europa v Commission, currently under appeal before the Court of Justice. By reopening the procedure, the Commission intends to revise the substance of the grounds of the decision of 29 November 2006, that is to say, to undertake a new appraisal of the evidence against the applicant, which had already been established and on which the General Court had already expressed its views in the exercise of its full jurisdiction to review legality. Accordingly, the reopening of the infringement procedure, in terms of purpose and effects, is manifestly contrary to the principles of ne bis in idem, of legal certainty, of the protection of legitimate expectations and of effective judicial protection.


title: Case C-217/10 P: Appeal brought on 5 May 2010 by Bent Hansen against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-6/09: Bent Hansen v European Commission

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/8

         Appeal brought on 5 May 2010 by Bent Hansen against the order of the General Court (Fourth Chamber) delivered on 24 March 2010 in Case T-6/09: Bent Hansen v European Commission
   (Case C-217/10 P)
   2010/C 195/13
   Language of the case: English

      Parties

      Appellant: Bent Hansen (represented by: I. Anderson, Advocate)

      Other party to the proceedings: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul in its entirety the General Court's decision and order of March 24th 2010 dismissing Appellant's Application as manifestly inadmissible with costs.

               —

               Retain jurisdiction over Appellant's Appeal and order the Commission to pay Appellant;

                           (a)

                           the sum of EUR 800 000 or such other sum as the Court may consider just and equitable for past, present and future pain and suffering and diminution of enjoyment of life, from serious injury to his health as a result of the Commission's capricious and unlawful refusal to enforce implementation of Directive 96/29’s (1) provisions for precautionary medical monitoring for radiation illnesses in the case of the Thule special intervention teams.

                           (b)

                           Payment to Appellant or his medical treating facilities or his care givers, of the future costs of medical treatments and medications to alleviate and or treat his impaired health, referred to in Para. a) above, which are not available to him through the socialized medical system of his member state.

                           (c)

                           Reasonable legal costs and disbursements incurred by Appellant in the General Court and in the present proceedings.

      Pleas in law and main arguments

               1.

               The General Court erred in dismissing Appellant's non- contractual liability case as inadmissible by distorting both the nature of his claims and his pleas in law. As a result of such distortion, the Court failed to consider unlawfulness in the context of the Commission's capricious and disingenuous pretexts for refusing to act — which inaction eviscerated the Uniform Health Safety Standards for the protections of workers and the public in cases of radiological accidents caused by the military use of nuclear energy.

               2.

               Failure to Apply Legal Principles Common to Member States The Court failed to assess the unlawfulness of the Commission's lack of care, diligence and sound administration with reference to legal principles common to member state systems for determining administrative accountability for damage caused to individuals, as required under Article 188 of the EAEC Treaty.

               3.

               Inappropriate Application of Commission's Unique Competition Law Exemption- Powers To Admissibility of Health Standards Complaint The Court further erred by considering the Commission's military exemption of the radiological accident at Thule from the Directive's health protections, in the light of the Commission's wide and unique discretion to formulate EU competition policy by discretionary exemptions of unlawful trade agreements. This ignored admissibility decisions of this Court in other EU areas where the Commission does not possess such a unique discretion and where allegations of the Commission's failure to act did not deem a claim manifestly inadmissible.
               The Court overlooked the fact that Commission does not have a unique and unfettered discretion to enforce the Uniform Health Safety Standards since the EAEC Treaty narrowly defines its exemption- power and specifically provides mechanisms for individuals to complain of its administrative failures to act in areas where protections have been conferred on them. This includes situations where the refusal to act has been addressed to another party.

               4.

               Failure to Consider Whether Commission's Refusal to Act Violated EAEC Treaty's Designated Object of Protecting the Health of Workers and the Public.
               The Court also erred by failing to enquire into whether the Commission's refusal to act violated the EAEC Treaty's objectives of establishing and ensuring the application of Uniform Health Safety Standards to protect workers and the public from the long term effects of ionizing radiation. In doing so it overlooked the Commission's peremptory duty under the EAEC Treaty to ensure that the provisions of the Treaty are properly applied, including its embodied precautionary principle.

      (1)  Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation
   OJ L 159, p. 1


title: Case T-201/09: Action brought on 22 May 2009 — Rügen Fisch v OHIM — Schwaaner Fischwaren (SCOMBER MIX)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/55

         Action brought on 22 May 2009 — Rügen Fisch v OHIM — Schwaaner Fischwaren (SCOMBER MIX)
   (Case T-201/09)
   2009/C 180/102
   Language in which the application was lodged: German

      Parties

      Applicant: Rügen Fisch AG (Sassnitz, Germany) (represented by: O. Spuhler and M. Geiz, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Schwaaner Fischwaren GmbH (Schwaandorf, Germany)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 in Case R 230/2007-4;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: The word mark ‘SCOMBER MIX’ for goods and services in classes 29 and 25 (Community trade mark No 3 227 031)

      Proprietor of the Community trade mark: the applicant

      Applicant for the declaration of invalidity: Schwaaner Fischwaren GmbH

      Decision of the Cancellation Division: dismissal of the application for a declaration of invalidity

      Decision of the Board of Appeal: annulment of the decision of the Cancellation Division and partial declaration of invalidity of the Community trade mark

      Pleas in law: Infringement of Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009 (1)) on the grounds that the Community trade mark ‘SCOMBER MIX’ is not purely descriptive.

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


               5.6.2010

               EN

               Official Journal of the European Union

               C 148/1

         2010/C 148/01
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 134, 22.5.2010

      Past publications

      OJ C 113, 1.5.2010

      OJ C 100, 17.4.2010

      OJ C 80, 27.3.2010

      OJ C 63, 13.3.2010

      OJ C 51, 27.2.2010

      OJ C 37, 13.2.2010

   These texts are available on:
   EUR-Lex: http://eur-lex.europa.eu


title: Reference for a preliminary ruling from the Arios Pagos by judgment of that court of 12 May 1998 in the case of Panagis Neophytos Pythagoras Pafitis and Others and Trapeza Kentrikis Ellados AE and Others (Case C-235/98)

text:
C 278/18              EN                 Official Journal of the European Communities                                          5.9.98
Reference for a preliminary ruling by the Industrial                     (vi) after being employed by company B the
Tribunal, Leeds, by decision of that court of 5 May 1998,                      employees carry out work for both companies A
in the case of G. C. Allen and others against                                  and B as needed by the local management who
          Amalgamated Construction Co. Limited                                 are responsible for both companies;
                        (Case C-234/98)
                         (98/C 278/30)                                   (vii) the work undertaken was continuous, there was
                                                                               no suspension of activities at any time or any
                                                                               change in the manner in which they were
                                                                               conducted.
Reference has been made to the Court of Justice of the
European Communities by a decision of the Industrial
Tribunal, Leeds, of 5 May 1998, which was received at               (1) Council Directive 77/187/EEC of 14 February 1977 on the
the Court Registry on 3 July 1998, for a preliminary                    approximation of the laws of the Member States relating to
ruling in the case of G. C. Allen and others against                    the safeguarding of employees' rights in the event of transfer
                                                                        of undertakings, businesses or parts of businesses (OJ L 61,
Amalgamated Construction Co. Limited, on the following
                                                                        5.3.1977, p. 26).
questions:
1. Is the Acquired Rights Directive (77/187/EEC) (1)
    capable of applying to two companies in the same
    corporate group which have common ownership,
    management, premises and work or are such
    companies a single undertaking for the purpose of the           Reference for a preliminary ruling from the Arios Pagos
    Directive? In particular, can there be a transfer of an         by judgment of that court of 12 May 1998 in the case of
    undertaking for the purposes of the Directive when              Panagis Neophytos Pythagoras Pafitis and Others and
    company A transfers a substantial part of its labour                       Trapeza Kentrikis Ellados AE and Others
    force to company B in the same corporate group.
                                                                                (Case C-235/98)
                                                                                (98/C 278/31)
2. If the answer to question 1 is in the affirmative what
    are the criteria for deciding whether there has been
    such a transfer? In particular, has there been a transfer
    of undertaking in the following circumstances:                  Reference has been made to the Court of Justice of the
                                                                    European Communities by an order of the Arios Pagos
                                                                    (Supreme Court of Cassation) of 12 May 1998, which was
    (i)   over a period of time the workers involved have           received at the Court Registry on 6 July 1998, for a
          been dismissed from company A, purportedly                preliminary ruling in the case of Panagis Neophytos
          for redundancy, and offered employment                    Pythagoras Pafitis and Others and Trapeza Kentrikis
          with associated company B carrying out a                  Ellados AE and Others, pending before it, on the
          geographical distinct undertaking or part of the          following question:
          undertaking of company A, namely the driving
          of mine tunnels;
                                                                    Does a dispute arising out of an increase in the share
    (ii)  no      transfer   of   premises,     management,         capital of a public limited liability banking company and
          infrastructure, materials or assets occurred              the allocation of the new shares, which were the subject
          between company A and B and the majority of               of decisions taken under temporary administration by a
          significant assets used by both companies in the          temporary administrator, imposed on that company by the
          work of driving main tunnels is supplied by a             supervisory authority (Governor of the Bank of Greece),
          third party, the mine operator;                           where that dispute subsists solely and exclusively as
                                                                    between the company and the new shareholders who
                                                                    acquired the new shares, on the one hand, and certain of
    (iii) company A remains the sole contractor with the
                                                                    its old shareholders, on the other, come within the vertical
          third-party client which engaged it to work on
                                                                    relationship of individuals and the State or State bodies so
          construction projects which were undertaken on
                                                                    as to require under the third paragraph of Article 189 of
          a rolling' basis;
                                                                    the EC Treaty the direct application, in order to deal with
                                                                    the dispute in question, of the provisions of the
    (iv) there was little or no contemporaneity between             abovementioned Second Council Directive 77/91/EEC (1),
          the movement of the workers from company A                even before the Member State which is an addressee of the
          to company B and the beginning and/or end of              Directive has transposed the Directive into national law?
          the contracts under which the work was
          performed;
                                                                    (1) OJ L 26, 30.1.1977, p. 1.
    (v)   company A and company B share the same
          management and premises;


title: Case T-434/17: Action brought on 12 July 2017 — younique v EUIPO — Jafer Enterprises R&D (younique products)

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/14

         Action brought on 12 July 2017 — younique v EUIPO — Jafer Enterprises R&D (younique products)
   (Case T-434/17)
   (2017/C 318/20)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: younique LLC (Utah, United States) (represented by: M. Edenborough, QC)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Jafer Enterprises R&D, SLU (Granollers, Spain)

      Details of the proceedings before EUIPO

      Party applying for the trade mark in question: Applicant

      Trade mark in question: European Union figurative mark containing the word elements ‘younique products’ — Application for registration No 1 191 504

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of EUIPO of 25 April 2017 in Case R 1564/2016-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the defendant to pay to the applicant the costs relating to and occasioned by the present application as well as the costs incurred by the applicant before the Board of Appeal; or, in the event that the other party in the contested decision appears as an intervener, order that the defendant and the other party in the contested decision be held jointly and severally liable to pay to the applicant the costs relating to and occasioned by the present application as well as the costs incurred by the applicant before the Board of Appeal.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009, in that the Board of Appeal erred as to the level of attention of the relevant consumer and the similarity of the relevant marks.


title: Case T-561/12: Judgment of the General Court of 25 October 2013 — Beninca v Commission (Access to documents — Regulation (EC) No 1049/2001 — Document drawn up by the Commission in the context of the merger between Deutsche Börse and NYSE Euronext — Refusal to grant access — Exception relating to the protection of the decision-making process)

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/11

         Judgment of the General Court of 25 October 2013 — Beninca v Commission
   (Case T-561/12) (1)

   (Access to documents - Regulation (EC) No 1049/2001 - Document drawn up by the Commission in the context of the merger between Deutsche Börse and NYSE Euronext - Refusal to grant access - Exception relating to the protection of the decision-making process)
   2013/C 359/18
   Language of the case: English

      Parties

      Applicant: Jürgen Beninca (Frankfurt-am-Main, Germany) (represented by: C. Zschocke, lawyer)

      Defendant: European Commission (represented by: J. Baquero Cruz and F. Clotuche-Duvieusart, Agents)

      Re:

   Application for annulment of the Commission’s decision of 9 October 2012 refusing access to a memorandum from the head of the unit responsible for competition matters at the Directorate-General for Enterprise and Industry

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders Mr. Jürgen Beninca to pay the costs.

      (1)  OJ C 46, 16.2.2013.


title: Order of the Court of First Instance of 9 November 2004 in Case T-252/03: Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV) v Commission of the Euoropean Communities (Competition — Decision finding an infringement of Article 81 EC — Market in beef and veal — Action for annulment — Unlimited jurisdiction — Time-limit for bringing application — Introduction out of time — Inadmissibility)

text:
               5.2.2005

               EN

               Official Journal of the European Union

               C 31/21

      ORDER OF THE COURT OF FIRST INSTANCE

   of 9 November 2004
   in Case T-252/03: Fédération nationale de l'industrie et des commerces en gros des viandes (FNICGV) v Commission of the Euoropean Communities (1)

   (Competition - Decision finding an infringement of Article 81 EC - Market in beef and veal - Action for annulment - Unlimited jurisdiction - Time-limit for bringing application - Introduction out of time - Inadmissibility)
   (2005/C 31/43)
   Language of the case: French
   In Case T-252/03: Fédération nationale de l'industrie et des cinnerces en gros des viands (FNICGV), established in Paris (France), represented by P. Abegg and E. Prigent, lawyers, with an address for service in Luxembourg, supported by French Republic (Agents: R. Abraham, G. de Bergues and F. Million, with an address for service in Luxembourg), against Commission of the European Communities (Agents: P. Oliver and F. Lelièvre, with an address for service in Luxembourg) – action for annulment of the fine imposed on the applicant by Article 3 of Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 – French beef) (OJ 2003 L 209, p. 12) and, in the alternative, for a reduction of the amount of that fine – the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has made an order on 9 November 2004, the operative part of which is as follows:

               1.

               The action is dismissed as inadmissible.

               2.

               The applicant and the Commission shall bear their own costs relating to the main action.

               3.

               The applicant shall bear its own costs and pay those of the Commission relating to the proceedings for interim measures.

               4.

               The French Republic shall bear its own costs.

      (1)  OJ C 213 of 6.9.2003.


title: Case C-341/02: Action brought on 25 September 2002 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 305/10               EN                    Official Journal of the European Communities                                     7.12.2002
      Netherlands Government further points out that, to date,          Action brought on 25 September 2002 by the Com-
      the Commission has been unwilling to grant access to the          mission of the European Communities against the Federal
      German documents which it clearly had in its possession                                Republic of Germany
      and on which, inter alia, it based its assessment of the
      alleged shortcomings within the German destruction
      plants.                                                                                (Case C-341/02)
                                                                                (2002/C 305/16)
( 1) OJ 1997 L 62.
                                                                        An action against the Federal Republic of Germany was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 25 September 2002 by the Commission of the
                                                                        European Communities, represented by J. Sack and H. Kreppel,
Action brought on 23 September 2002 by the Com-                         with an address for service in Luxembourg.
mission of the European Communities against the Portu-
                           guese Republic
                                                                        The Commission of the European Communities claims that
                          (Case C-339/02)                               the Court should:
                          (2002/C 305/15)                               (1) declare that, by not recognising as integral parts of the
                                                                              minimum wage all allowances and supplements — apart
                                                                              from the construction supplement — paid by employers
                                                                              in other Member States to their employees in the
An action against the Portuguese Republic was brought                         construction sector who are posted to Germany, and
before the Court of Justice of the European Communities on                    consequently by leaving out of account the wage elements
23 September 2002 by the Commission of the European                           actually paid by such employers to their employees thus
Communities, represented by António Caeiros, acting as                        posted, the Federal Republic of Germany has infringed
Agent, with an address for service in Luxembourg.                             Article 49 EC and Directive 96/71/EC ( 1) of the European
                                                                              Parliament and of the Council of 16 December 1996
                                                                              concerning the posting of workers in the framework of
The applicant claims that the Court should:                                   the provision of services;
—     Declare that, by failing to adopt and bring into force            (2) order the Federal Republic of Germany to pay the costs.
      within the prescribed period the laws, regulations and
      administrative provisions necessary to comply with
      Directive 1999/103/EC of the European Parliament and
      of the Council of 24 January 2000 amending Council
                                                                        Pleas in law and main arguments
      Directive 80/181/EEC on the approximation of the laws
      of the Member States relating to units of measurement ( 1),
      the Portuguese Republic has failed to fulfil its obligations      The minimum wage fixed by national legislation in a Member
      under Article 2(1) of the abovementioned Directive 1999/          State pursuant to Article 3 of Directive 96/71/EC is to be
      103/EC; and                                                       assimilated to the earnings received from his employer by an
                                                                        employee posted abroad. In that connection, regard must be
—     In the alternative, declare that, by failing to inform            had to the fact that, in view of the frequent differences in
      the Commission immediately of such measures, the                  remuneration structures, a Member State may not impose its
      Portuguese Republic has failed to fulfil its obligations          own remuneration structure on employment relationships
      under Article 2(1) of the abovementioned Directive 1999/          with employees posted from other Member States. Conse-
      103/EC; and                                                       quently, for the purposes of comparison, all of the remuner-
                                                                        ation paid by his employer to an employee posted abroad in
—     Order the Portuguese Republic to pay the costs.                   respect of the full duration of the posting is to be included.
                                                                        The elements to be left out of account are those expressly
                                                                        excepted by the directive, namely contributions to supplemen-
Pleas in law and main arguments                                         tary occupational retirement pension schemes and expenditure
                                                                        actually incurred during the posting, such as expenditure on
                                                                        travel, board and lodging. Since the directive does not cover
The time-limit for implementation expired on 9 February                 either social insurance contributions or tax deductions, it is
2001.                                                                   the gross amounts, not the net ones, which are to be compared.
                                                                        Although the German Government, in its observations dated
                                                                        30 May 2001, goes so far as to concede, in part, that the
( 1) OJ 2000 L 34, p. 17.                                               general practice of leaving all allowances and supplements out
                                                                        of account is not in accordance with Community law, the
                                                                        Commission has established that Annex 4 to the ‘Merkblatt
 ---pagebreak--- 7.12.2002                EN                   Official Journal of the European Communities                                         C 305/11
zum Arbeitnehmer-Entsendegesetz’ (notes on the Law concern-              The applicant claims that the Court should:
ing the posting of employees abroad), in the still unchanged
version thereof, is provided to employers and forms the basis
of administrative controls by the competent authorities.                 1.    Declare that, by failing to adopt the laws, regulations
                                                                               and administrative provisions necessary to implement
                                                                               Commission Directive 2000/42/EC of 22 June 2000 (1)
Responding in detail to arguments put forward by the German                    amending the Annexes to Council Directives 86/362/
Government, the Commission maintains in particular that:                       EEC, 86/363/EEC and 90/642/EEC on the fixing of
                                                                               maximum levels for pesticide residues in and on fruit and
—     the power conferred on Member States, in accordance                      vegetables and certain products of plant origin, including
      with the second paragraph of Article 3(1) of Directive                   fruit and vegetables respectively, or in failing to notify the
      96/71/EC, to define the concept of ‘minimum pay’                         Commission of their adoption, or in failing to notify the
      does not also include competence to determine the                        Commission of their adoption, the Republic of Austria
      methodology to be followed in carrying out the compara-                  has failed to fulfil its obligations under that directive;
      tive examination;
                                                                         2.    Order the Republic of Austria to pay the costs.
—     although determination of the criterion of ‘accrual’ may
      be relevant for the purposes of defining the concept of
      ‘minimum pay’, the problem of wage elements the accrual
      of which is deferred (e.g. the 13th month’s salary,
      Christmas bonuses) cannot — as provided for in the
      ‘Merkblatt’ — be resolved by simply leaving such matters           Pleas in law and principle arguments
      out of account;
—     control problems arising in connection with such wage              The obligation of the Member States to implement the
      elements are to be resolved bilaterally between the                directives (Article 249(3) EC) includes an obligation to comply
      Member States concerned, and may not lead to a                     with the time-limits laid down in the directives. In the present
      restriction of freedom to provide services;                        case that time-limit expired on 28.02.2001, by which time the
                                                                         Republic of Austria had not adopted the necessary measures.
—     a Member State which has not included supplementary
      holiday pay as part of the minimum pay defined by
      it may not compensate for that ‘lacuna’ by treating
      contributions actually paid to an institution in the               (1 ) OJ 2000 L 158, p. 51.
      Member State where the employer is established which is
      comparable to a German holiday fund as an allowance
      which must be left out of account.
( 1) OJ 1997 L 18, p. 1.
                                                                         Action brought on 2 October 2002 by the Commission
                                                                         of the European Communities against the Republic of
                                                                                Austria
Action brought on 2 October 2002 by the Commission
of the European Communities against the Republic of
                              Austria                                                              (Case C-354/02)
                          (Case C-353/02)
                                                                                (2002/C 305/18)
                          (2002/C 305/17)
An action against the Republic of Austria was brought                    An action against the Republic of Austria was brought
before the Court of Justice of the European Communities                  before the Court of Justice of the European Communities
on 2 October 2002 by the Commission of the European                      on 2 October 2002 by the Commission of the European
Communities, represented by Gerald Braun, of its legal service,          Communities, presented by Gerald Braun, of its legal service,
acting as Agent, with an address for service in Luxembourg at            acting as agent, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, of the legal service, Wagner        the office of Luis Escobar Guerrero, of the legal service, Wagner
Centre C 254, Luxembourg-Kirchberg.                                      Centre C 254, Luxembourg-Kirchberg.


title: Case T-419/12: Action brought on 25 September 2012 — LVM v Commission

text:
               1.12.2012

               EN

               Official Journal of the European Union

               C 373/7

         Action brought on 25 September 2012 — LVM v Commission
   (Case T-419/12)
   2012/C 373/12
   Language of the case: German

      Parties

      Applicant: LVM Landwirtschaftlicher Versicherungsverein Münster a. G. (Münster, Germany) (represented by: A. Birnstiel, H. Heinrich and J.-O. Schrotz, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission’s decision of 17 July 2012 by which a request by the applicant pursuant to Regulation (EC) No 1049/2001 (1) for access to certain documents in a cartel proceeding (COMP/39.125 — Carglass) was refused;

               —

               order the defendant to bear its own costs and to pay the costs of the applicant.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging failure to assess the documents individually identified in the application

                           —

                           In the context of the first plea, the applicant submits that the decision is not based on a specific and individual assessment of each document. In the applicant’s view, the contested decision is based on the legally erroneous premiss that there is a general presumption that the circumstances of an exception apply in the present case.

               2.

               Second plea in law, alleging breach of the obligation to state reasons

                           —

                           The applicant submits that, in its decision, the Commission justified the comprehensive rejection of the applicant’s request on the basis of general considerations only, and thus inadequately. The applicant regards this as a breach of the obligation to state reasons and thus as a breach of essential procedural requirements.

               3.

               Third plea in law, alleging errors of law in the interpretation and application of the first and third indents of Article 4(2) of Regulation No 1049/2001

                           —

                           By the third plea the applicant submits that the Commission erred in law in its interpretation and application of the standard exceptions provided for in the first and third indents of Article 4(2) of Regulation No 1049/2001. In the applicant’s view, the Commission disregards the relationship between rule and exception and proceeds on the basis of far too broad an understanding of the ‘protection of investigations’ and of the concept of ‘commercial interests’.

               4.

               Fourth plea in law, alleging failure to take account of the private law enforcement of cartel law as a public interest within the meaning of Article 4(2) of Regulation No 1049/2001

                           —

                           By the fourth plea, the applicant submits that the Commission wrongly denied that there was an overriding public interest in the disclosure of the documents requested. According to the applicant, the Commission should, particularly when weighing up the various interests, have taken account of the fact that the private law enforcement of cartel law also constitutes a public interest within the meaning of Article 4(2) of Regulation No 1049/2001.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


title: Case T-446/14: Action brought on 16 June 2014 — Taihan Electric Wire v Commission

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/46

         Action brought on 16 June 2014 — Taihan Electric Wire v Commission
   (Case T-446/14)
   2014/C 282/60
   Language of the case: English

      Parties

      Applicant: Taihan Electric Wire Co. Ltd (Anyang-Si, Republic of Korea) (represented by: R. Antonini and E. Monard, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Commission Decision C(2014) 2139 of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 EEA in case AT.39610 — Power Cables (the ‘Decision’) insofar as it is addressed to the applicant;

               —

               In the alternative, reduce the fine imposed on the Applicant, and;

               —

               Order the Commission to bear the costs of these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission could not assert jurisdiction over the applicant’s conduct failed to demonstrate that the applicant participated in an infringement that it can sanction under Article 101 of the TFEU, since the object of its alleged anti-competitive behavior did not concern the EEA market and its alleged involvement in the anti-competitive behavior could not have and did not have any effect on trade in the EEA market.

               2.

               Second plea in law, alleging that the Commission erroneously relied on evidence obtained at the inspections held at certain companies, in view of the illegality of the inspection decisions.

               3.

               Third plea in law, alleging that the Commission erroneously determined the duration of the alleged infringement with respect to the applicant, thereby violating inter alia the principles of in dubio pro reo and non-discrimination and failing to produce the relevant evidence.

               4.

               Fourth plea in law, alleging that the different approach taken by the Commission with respect to the applicant and other companies for which similar evidence was available in the file violates the principles of non-discrimination and proportionality vis-à-vis the applicant.

               5.

               Fifth plea in law, alleging that the Commission’s determination of the fine to be imposed on the applicant violated the principle of non-discrimination, the principle of proportionality as laid down inter alia in Article 5 TEU, as well as Article 49 of the Charter of fundamental rights of the European Union, Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, the Guidelines (including point 18 and point 37 thereof) and the principle of legitimate expectations.


title: Case C-171/08: Action brought on 25 April 1998 — Commission of the European Communities v Portuguese Republic

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/24

         Action brought on 25 April 1998 — Commission of the European Communities v Portuguese Republic
   (Case C-171/08)
   (2008/C 171/36)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by E. Montaguti, P. Guerra e Andrade and M. Telles Romão, acting as Agents)

      Defendant: Portuguese Republic
   Form of order sought

               —

               A declaration that, by maintaining special rights for the State and other public bodies in Portugal Telecom S.A., attributed in connection with the State's golden shares (preferential shares) in Portugal Telecom S.A, the Portuguese Republic has failed to fulfil its obligations under Articles 56 and 43 EC;

               —

               an order that the Portuguese Republic should pay the costs.

         Pleas in law and main arguments
   The Portuguese State holds 500 golden shares in Portugal Telecom S.A. (PT). Those shares give the State the right of veto in respect of resolutions for the election of the officers of the General Assembly, the election of the Chairman of the Audit Committee and of the Official Auditor, the application of profit and loss accounts, alteration of the memorandum and articles of association, increase in capital, restriction and removal of preferential rights, issue of bonds and other real property, the fixing of the general aims and fundamental principles of the company's policies, defining of the general policy principles for participation in other companies, authorisation of change of the company seat and authorisation of the purchase of shares representing more than 10 % of share capital by shareholders carrying on, directly or indirectly, an activity in competition with that of the companies controlled by PT, and the right of veto in respect of a third of the total number of directors, including, necessarily, the Chairman of the Board of Directors.
   The Commission is of the view that such rights of veto constitute restrictions of movements of capital and of freedom of establishment. Such measures amount to an impediment to direct investment in PT, an impediment to portfolio investment and an impediment to the exercise of freedom of establishment.
   Those special rights of the State constitute State measures, for the golden shares are not a consequence of a normal application of company law.
   The golden shares have nothing to do with lawful objectives of public interest or, especially, with those pleaded by the Portuguese State, viz., public order and safety, maintaining of cable and copper networks and maintaining of wholesale and retail activity within PT, public service concessions, the pattern for regulating the market in telecommunications and any disturbance of the capital market.
   In any case, the Portuguese State has not observed the principle of proportionality, for the measures at issue are not apt to ensure that the objectives pursued are attained and they go beyond what is necessary in order to attain those objectives.


title: Case C-559/07: Judgment of the Court (Third Chamber) of 26 March 2009 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Social policy — Article 141 EC — Equal pay for male and female workers — National civil and military pension regime — Different treatment with regard to retirement age and minimum required service — Justification — Absence)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/9

         Judgment of the Court (Third Chamber) of 26 March 2009 — Commission of the European Communities v Hellenic Republic
   (Case C-559/07) (1)

   (Failure of a Member State to fulfil obligations - Social policy - Article 141 EC - Equal pay for male and female workers - National civil and military pension regime - Different treatment with regard to retirement age and minimum required service - Justification - Absence)
   2009/C 113/16
   Language of the case: Greek

      Parties

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

      Defendant: Hellenic Republic (represented by: F. Spathopoulos, K. Bokovits, A. Samoni-Rantou, E.-M. Mamouna and S. Vodina, Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 141 EC — Infringement of the principle of equal pay for male and female workers — National civil and military retirement pensions regime prescribing a retirement age that can vary according to sex

      Operative part of the judgment

   The Court:

               1.

               Declares that, by maintaining in force provisions which provide for differences between male and female workers with regard to retirement age and minimum required service under the Greek Civil and Military Pensions Code instituted by Presidential Decree No 166/2000 of 3 July 2000, in the version applicable to the present case, the Hellenic Republic has failed to fulfil its obligations under Article 141 EC;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 37, 9.2.2008.


title: Case F-20/08: Action brought on 19 February 2008 — Aparicio and Others v Commission

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/52

         Action brought on 19 February 2008 — Aparicio and Others v Commission
   (Case F-20/08)
   (2008/C 92/107)
   Language of the case: French
   Parties

      Applicants: Jorge Aparicio and Others (Antiguo Cuscatlan, Salvador) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Commission of the European Communities
   The subject-matter and description of the proceedings
   Annulment of the decisions of the European Personnel Selection Office not to include the applicants' names in the list of successful candidates and in the CAST 27/Relex database
   Form of order sought
   The applicant claims that the Tribunal should:

               —

               annul the decisions of the European Personnel Selection Office not to include the applicants' names in the list of successful candidates and in the CAST 27/Relex database;

               —

               order the Commission of the European Communities to pay the costs.