title: Action brought on 25 September 1995 by BASF Lacke + Farben AG against the Commission of the European Communities (Case T-175/95)

text:
No C 315/ 18          EN                  Official Journal of the European Communities                                  25 . 11 . 95
Action brought on 19 September 1995 by Valentino Chesi,              1995 by Erich Biedermann, Walter W. Hedderich and
Margot Jost and Ralph Loebisch against the Council of the            Alfred Wienrich, residing in Germany, represented by
                       European Union                                Georges Vandersanden and Laure Levi, of the Brussels Bar,
                       ( Case T-l 72/95 )                            with an address for service in Luxembourg at the offices of
                                                                     Fiduciaire Myson Sari , 1 Rue Glesener.
                         ( 95/C 315/35 )
                                                                     The applicants claim that the Court should :
               (Language of the case: French)
                                                                     — annul the applicants ' pension statements for December
An action against the Council of the European Union was                  1994, drawn up pursuant to Council Regulation ( EC )
brought before the Court of First Instance of the European               No 3161 /94 of 19 December 1994, inasmuch as that
Communities on 19 September 1995 by Valentino Chesi,                     regulation lays down a weighting for Germany at the
Margot Jost and Ralph Loebisch, residing in Germany,                     rate fixed for its capital , Berlin, only with effect from
represented by Georges Vandersanden and Laure Levi , of                  1 July 1994 and not from 3 October 1990, and , in so far
the Brussels Bar, with an address for service in Luxembourg              as may be necessary, annul the decision of the Court of
at the offices of Fiduciaire Myson Sari, 1 , Rue Glesener.               Auditors of 18 July 1995 rejecting the applicants '
                                                                         complaint,
The applicants claim that the Court should :                         — reinstate the applicants ' pension rights in full, weighted
                                                                         at the rate fixed for Berlin, with effect from 3 October
— annul the applicants' pension statements for December                  1990 ,
    1994, drawn up pursuant to Council Regulation ( EC )
    No 3161 /94 of 19 December 1994 , inasmuch as that               — order the defendant to pay default interest on the
    Regulation lays down a weighting for Germany at the                  pension arrears for the period from 3 October 1990 to
    rate fixed for its capital, Berlin , only with effect from           30 June 1994 , calculated in relation to the same period ,
    1 July 1994 and not from 3 October 1990 , and, in so far             at the annual rate of 10% ,
    as may be necessary, annul the decision of the Council of
    19 June 1995 rejecting the applicants' complaint,                — order the defendant to pay all of the costs .
— reinstate the applicants' pension rights in full , weighted        Pleas in law and main arguments adduced in support:
    at the rate fixed for Berlin, with effect from 3 October
    1990 ,                                                           The pleas and main arguments are the same as those in Case
                                                                     T-171 /95 .
— order the defendant to pay default interest on the
    pension arrears for the period from 3 October 1990 to
    30 June 1994 , calculated in relation to the same period,
    at the annual rate of 10% ,
— order the defendant to pay all of the costs .
                                                                     Action brought on 25 September 1995 by BASF Lacke +
                                                                     Farben AG against the Commission of the European
Pleas in law and main arguments adduced in support:                                            Communities
                                                                                ( Case T-175 /95
The pleas and main arguments are the same as those in Case
T-171 /95 .
                                                                                ( 95 /C 315/37 )
                                                                                (Language of the case: German)
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 25 September
Action brought on 19 September 1995 by Erich                         1995 by BASF Lacke + Farben AG, represented by
Biedermann, Walter W. Hedderich and Alfred Wienrich                  Ferdinand Hermanns, Rechtsanwalt, Meerbusch ( Federal
against the Court of Auditors of the European                        Republic of Germany ), with an address for service in
                          Communities                                Luxembourg at the Chambers of Loesch & Wolters , 1 1 Rue
                       ( Case T-173/95 )                             Goethe .
                         ( 95/C 315/36 )
                                                                     The applicant claims that the Court should :
               (Language of the case: French)                        — annul the defendant's decision of 12 July 1995 , notified
                                                                         on 21 July 1995 , concerning a proceeding under
An action against the Court of Auditors of the European                  Article 85 of the EC Treaty ( Case IV/33.802 — BASF
Communities was brought before the Court of First                        Lacke + Farben AG and SA Accinauto ) in so far as it
Instance of the European Communities on 19 September                     concerns the applicant,
 ---pagebreak--- 25 . 11 . 95           EN                    Official Journal of the European Communities                                  No C 315/ 19
— in the alternative, cancel or mitigate the fine imposed on                Treaty, such infringement was negligible in its effects .
    the applicant by Article 2 of the said Decision,                        The part of the market which was affected by the Treaty
                                                                            and by the single case of non-delivery was so minuscule
— order the defendant to pay all of the costs of the                        that there can be no question of market conditions
    proceedings incurred by the applicant,                                  having been effected .
— order the defendant, in the event that the applicant is               5 . The defendant's assumption regarding the duration of
    successful, to reimburse to the applicant the costs of the              the agreement is untenable . Since there was in any event
    bank guarantee provided by the applicant as security for                only one single case of refusal to supply, a distinction
    the payment of the fine .                                               should have been drawn in assessing the duration .
Pleas in law and main arguments adduced in support:                     6 . The defendant has abused its discretionary powers . It
                                                                            has failed to have reasonable regard to :
I. The applicant complains of infringement of essential
procedural requirements .                                                   — the gravity of the infringement,
1 . The defendant refused to allow the applicant's                          — the duration of the alleged infringement,
     representative the complete access to the file to which he
     was entitled on grounds of equality of arms .                          — the economic situation of the applicant, or
     Consequently, the applicant was disadvantaged in                       — the absence of intent .
     putting forward its defence .
2 . The applicant was not provided with a translation into
     German , the language of the proceeding applicable in its
     case , of the minutes of the hearing on 23 September
     1993 . This constitutes an infringement of Article 3 of
     Regulation No 1 of the Council of 15 April 1958 . It also
     resulted at the same time in a restriction of the                  Action brought on 25 September 1995 by Accinauto SA
     applicant's ability to defend itself.                                against the Commission of the European Communities
                                                                                ( Case T-176/95 )
II . The agreement concluded on 8 October 1 982 between                                            ( 95/C 315/38 )
the applicant and Accinauto does not infringe Article 85 ( 1 )
of the EC Treaty .
                                                                                (Language of the case: German)
1 . The defendant could not have reached the contrary
     conclusion were it not for the totally inadequate
     clarification of the circumstances . The conduct of the            An action against the Commission of the European
                                                                        Communities was brought before the Court of First
     parties was caused by the supply problems existing                 Instance of the European Communities on 25 September
     during the period in question and the need to ensure
                                                                        1995 by Accinauto SA, Brussels , represented by Helmut
     uniformity in the provision of supplies to all of the
                                                                        Glassen, Rechtsanwalt, Leimen ( Federal Republic of
     markets served by the applicant.                                   Germany ), with an address for service in Luxembourg at the
                                                                        Chambers of Loesch & Wolters, 1 1 Rue Goethe .
2 . There is nothing in the wording of the Treaty, or the way
     in which it is applied, which conflicts with that
     interpretation . In the light of the evolution of the Treaty,      The applicant claims that the Court should :
     and the way in which it is applied, the term 'pass on '
     used in the agreement can only have meant that the                 — annul the defendant's decision of 12 July 1995 , notified
     applicant was to be kept informed about the flow of                    on 24 July 1995 , concerning a proceeding under
     goods . That was a legally unobjectionable practice . The              Article 85 of the EC Treaty ( Case IV/33.802 — BASF
     provision of such information was particularly                         Lacke + Farben AG and SA Accinauto ) in so far as it
     indispensable in times of shortage, in order to ensure, as             concerns the applicant,
     far as possible, uniformity of supply to the different
     markets     and    to    avoid    a   situation    in  which
                                                                        — in the alternative, cancel or mitigate the fine imposed on
     coach-building works switched to other competitors .
                                                                            the applicant by Article 2 of the said decision,
3 . If the evidence submitted is interpreted in the light of
     that background, it becomes clear that its overall                 — order the defendant to pay all of the costs of the
     context supports the applicant's case : the conduct of the             proceedings incurred by the applicant,
     parties involved is due purely and solely to the shortage
     situation and the problems arising from it. It cannot be           — order the defendant, in the event that the applicant is
     attributed to any collusion .                                          successful , not only to reimburse to the applicant the
                                                                            amount of the fine but also to pay it interest at the same
4 . Even if the agreement in question could be regarded as                  rate ( 9,5 % ) as that fixed by the defendant in Article 2 ( 2 )
     constituting an infringement of Article 85 ( 1 ) of the EC             of the contested decision .


title: Case F-29/13: Action brought on 28 March 2013 — ZZ v European Medicines Agency

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/57

         Action brought on 28 March 2013 — ZZ v European Medicines Agency
   (Case F-29/13)
   2013/C 207/95
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Orlandi, J.-N. Louis, D. Abreu Caldas, lawyers)

      Defendant: European Medicines Agency

      Subject-matter and description of the proceedings

   Annulment of the decision not to renew the applicant’s temporary staff contract and a claim for damages.

      Form of order sought

               —

               Annul the decision of 30 August 2012 not to renew the applicant’s contract, to end his employment relationship on 30 April 2013 and to require him to take leave;

               —

               Annul the decision of 26 February 2013 rejecting his request for a renewal of his contract;

               —

               Order the defendant to pay the costs and to pay the applicant EUR 25 000 as compensation for his non-pecuniary harm.


title: Case T-418/03: Action brought on 22 December 2003 by La Mer Technology, Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
21.2.2004               EN                          Official Journal of the European Union                                              C 47/33
The applicants claim that the Court of First Instance should:               the permitted anchovy catches in ICES zone VIII initially
                                                                            assigned to them, contravenes both the principle of relative
                                                                            stability and the Act of Accession (Article 161(1)(f)). Thus, the
—     Declare that the Community has incurred non-contrac-                  Council also acted in breach of the principle of legal certainty,
      tual liability by making a deduction from the percentage              infringing upon the legitimate expectations of the economic
      of the Total Allowable Catch of anchovies to which Spain              agents involved.
      and the fleet authorised to fish for anchovies in ICES
      zone VIII are entitled in the years 1996 to 2001, by
      transferring Portugal’s quota in ICES zone IX for it to be            The applicants also allege that the Council has misused its
      fished by France in ICES zone VIII;                                   powers.
—     Compel the Community, represented by the Council, to
      compensate the applicants for the real and certain harm
      suffered as a result of the acts of the Council, comprising
      both consequential damage and loss of profits, in the
      terms set out in the present application and its annexes;
                                                                            Action brought on 22 December 2003 by La Mer Tech-
                                                                            nology, Inc. against the Office for Harmonisation in the
—     Order the Community, represented by the Council, to                       Internal Market (Trade Marks and Designs) (OHIM)
      pay all the costs incurred by the applicants in the context
      of the present proceedings.
                                                                                (Case T-418/03)
                                                                                (2004/C 47/65)
Pleas in law and main arguments                                             (Language of the case to be determined pursuant to article 131(2) of
                                                                            the Rules of Procedure — language in which the case was submitted:
                                                                                English)
The purpose of the present action is to seek compensation for
the damage suffered by the applicants as a result of the removal
between 1996 and 2001 of part of the Total Allowable Catch                  An action against the Office for Harmonisation in the Internal
(TAC) of anchovies to which Spain is entitled in ICES                       Market (Trade Marks and Designs) (OHIM) was brought before
(International Council for the Exploration of the Sea) zone VIII,           the Court of First Instance of the European Communities on
following the authorisation granted by the Council of the                   22 December 2003 by La Mer Technology, Inc., New York,
European Union for the transfer of Portugal’s quota in ICES                 USA, represented by Dr V. v. Bomhard, Dr A. Renck and Dr
zone IX for it to be fished by France in zone ICES VIII.                    A. Pohlmann, lawyers. Laboratoires Goëmar was also a party
                                                                            to the proceedings before the Board of Appeal.
In support of their claims, the applicants submit that the                  The applicant claims that the Court should:
alleged illegality fulfils all the requirements laid down by the
case-law to give rise to non-contractual liability on the part of           1.    annul the Decision of the second Board of Appeal of the
the Community.                                                                    office for Harmonisation in the Internal market (Trade
                                                                                Marks and Designs) of 23 October 2003 in case R 814/
                                                                                2000-2;
As regards the condition concerning a sufficiently serious                  2.    order that the costs of the proceedings be borne by the
breach of a superior rule of law, they refer to contravention of
                                                                                defendant.
the principles of relative stability, legal certainty and protection
of legitimate expectations.
                                                                            Pleas in law and main arguments
They state, in particular, that the principle of relative stability
serves to guarantee compliance with the quota allocated to                  Applicant for the Com-          La Mer Technology, Inc.
Spain in the Act of Accession, according to which Spain is                  munity trade mark:
entitled to 90 percent and France to 10 percent of anchovy
catches in ICES zone VIII. Accordingly, the quota swaps                     The Community trade             The word mark ‘La Mer’ for goods
provided for in Article 8 (4) (ii) of Regulation No 3760/92 and             mark sought:                    in class 3 (in addition to other
Article 9 (1) thereof must be carried out without changing the                                              things, soaps for the care of
overall balance of percentages laid down in the Act of                                                      human skin and the human body;
Accession. Consequently, the contested authorisation of swaps,                                              perfumery, essential oils, cos-
the result of which is to deprive Spain and the Spanish fleet of                                            metics, hair lotions)
 ---pagebreak--- C 47/34               EN                          Official Journal of the European Union                                          21.2.2004
Proprietor of mark or         Laboratoires Goëmar                         —     refuse to allow registration of the Community trade mark
sign cited in the oppo-                                                         No 1.160.050 ‘BOOMERANG TV’ in Class 41, and
sition proceedings:
Mark or sign cited in         The national and international              —     order the other party or parties opposing this action to
opposition:                   word marks ‘Laboratoires de la                    pay the costs.
                              mer’ for goods in classes 3, 5,
                              29 and 31 (in addition to other
                              things, cosmetics of a marine
                              products base)
Decision of the Oppo-         The opposition was upheld and
sition Division:              the application for registration            Pleas in law and main arguments
                              rejected in its entirety
Decision of the Board of      Dismissal of the appeal brought
Appeal:                       by La Mer Technology                        Applicant for Com-             José Matías Abril Sánchez and
                                                                          munity trade mark:             Pedro Ricote Saugar
Pleas in law:                 Violation of Article 43(2) and (3)
                              of Council regulation 40/94 (1)
                              and violation of Article 8(1) (b) of        Community trade mark           Figurative mark ‘BOOMERANG
                              Council Regulation 40/94.                   sought:                        TV’, with a semi-ellipse superim-
                                                                                posed         —         Application
                                                                                No 1.160.050 in respect of ser-
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the                                          vices included in Classes 38
    Community trade mark (OJ 11, p. 1).                                                                  and 41, although during the
                                                                                opposition proceedings the party
                                                                                applying for registration reduced
                                                                                the ambit of protection for the
                                                                                mark, excluding Class 38.
                                                                          Proprietor of mark or          Applicant.
Action brought on 17 December 2003 by El Corte Inglés                     sign cited in the oppo-
against the Office for Harmonisation in the Internal                      sition proceedings:
         Market (Trade Marks and Designs) (OHIM)
                                                                          Mark or sign cited in          Spanish figurative marks Nos
                         (Case T-420/03)                                  opposition.                    2035514, 2163613, 2163616,
                                                                                2035507, 2035508, 2035505,
                                                                                2035509, 2035510, 2035511,
                          (2004/C 47/66)                                                                 2035512 and 2035513 (the word
                                                                                ‘BOOMERANG’ framed in a dia-
                  (Language of the case: Spanish)                                                        mond), 1236024, 1236025 and
                                                                                1282250, Irish mark No 153228,
                                                                                Greek mark No 109387 and
                                                                                Community          trade      mark
                                                                                No 448514 (the word ‘BOOMER-
An action against the Office for Harmonisation in the Internal                                           ANG’ under a square containing
Market (Trade Marks and Designs) was brought before the                                                  the letter B next to a boomerang),
Court of First Instance of the European Communities on                                                   Spanish word mark ‘BOOMER-
17 December 2003 by El Corte Inglés S.A., established in                                                 ANG’ No 456466, Spanish figu-
Madrid, represented by Juan Luis Rivas Zurdo and Emilio                                                  rative marks ‘BOOMERANG La
López Leiva, lawyers.                                                                                base del deporte’ (No 2227731,
                                                                                2227732 and 2227734) and
                                                                                English       figurative      mark
The applicant claims that the Court should:                                                              No 1494568 (small square
                                                                                enclosing the letter B next to a
—     annul the OHIM (Second Board of Appeal)’s decision of                                              boomerang), in respect of prod-
      1 October 2003 given in Case R088/2003-2, inasmuch                                                 ucts in Classes 18, 25, 38 and 41.
      as, by dismissing the appeal brought by the present
      applicant, it gives grounds for a future grant of Com-
      munity trade mark No 1.160.050 BOOMERANG TV in                      Decision of the Oppo-          Opposition rejected.
      Class 41;                                                           sition Division:


title: Case C-421/13: Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 24 July 2013 — Apple, Inc. v Deutsches Patent- und Markenamt

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/8

         Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 24 July 2013 — Apple, Inc. v Deutsches Patent- und Markenamt
   (Case C-421/13)
   2013/C 313/15
   Language of the case: German

      Referring court

   Bundespatentgericht

      Parties to the main proceedings

      Applicant: Apple, Inc.

      Defendant: Deutsches Patent- und Markenamt

      Questions referred

               1.

               Is Article 2 of the Directive (1) to be interpreted as meaning that the possibility of protection for the ‘packaging of goods’ also extends to the layout in which a service is incorporated?

               2.

               Are Articles 2 and 3(1) of the Directive to be interpreted as meaning that a sign representing the layout in which the service is incorporated is capable of being registered as a trade mark?

               3.

               Is Article 2 of the Directive to be interpreted as meaning that the requirement of graphic representability is satisfied by a drawn representation alone or with such additions as a description of the layout or indications of absolute dimensions in metres or of relative dimensions with indications as to proportions?

               4.

               Is Article 2 of the Directive to be interpreted as meaning that the scale of the protection afforded by a trade mark for retail services also extends to the goods produced by the retailer itself?

      (1)  Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25).


title: Case C-223/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 17 May 2005 in H.de Rooy sr, and H.de Rooy, jr v Minister van Landbouw, Natuur en Voedselkwaliteit

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/13

         Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 17 May 2005 in H.de Rooy sr, and H.de Rooy, jr v Minister van Landbouw, Natuur en Voedselkwaliteit
   (Case C-223/05)
   (2005/C 193/22)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands) of 17 May 2005, received at the Court Registry on 20 May 2005, for a preliminary ruling in the proceedings between H.de Rooy sr, and H.de Rooy, jr and Minister van Landbouw, Natuur en Voedselkwaliteit (Minister for Agriculture, Nature and Food Quality) on the following questions:

               1.

               Does Community law require the courts of their own motion to conduct an examination, that is to say an examination of grounds which are outside the terms of the dispute but are based on Directive 85/511/EEC? (1)

               2.

               If the answer to Question 1 is affirmative, does the obligation on Member States under the first indent of Article 11(1) of Directive 85/511/EEC, read in conjunction with the second indent of Article 13(1) thereof, to ensure that laboratory testing to detect the presence of FMD is carried out by a laboratory listed in Annex B to Directive 85/511/EEC have direct effect?

               3.

                           (a)

                           Must Article 11(1) of Directive 85/511/EEC be interpreted as meaning that legal consequences must be attached to the fact that the presence of FMD is found by a laboratory which is not listed in Annex B to Directive 85/511/EEC?

                           (b)

                           If the answer to Question 3(a) is in the affirmative:
                           Is the purpose of Article 11(1) of Directive 85/511/EEC to protect the interests of individuals, such as the appellants in the main proceedings? If not, can individuals, such as the appellants in the main proceedings, plead possible failure to fulfil the obligations which this provision places on the authorities of the Member States?

                           (c)

                           If the answer to Question 3(b) means that individuals can rely on Article 11(1) of Directive 85/511/EEC:
                           What legal consequences must be attached to a finding of the presence of FMD by a laboratory which is not listed in Annex B to Directive 85/511/EEC?

               4.

               Must Annex B to Directive 85/511/EEC be interpreted, having regard to Articles 11 and 13 thereof, as meaning that the mention in Annex B to Directive 85/511/EEC of ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.?

               5.

               If it follows from the above answers that the presence of FMD can be found by a laboratory which is not listed in Annex B to Directive 85/511/EEC or that Annex B to Directive 85/511/EEC must be interpreted as meaning that the mention of the ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.:
               Must Directive 85/511/EEC be interpreted as providing that the national administrative authority authorised to adopt decisions is bound by the outcome of an examination by a laboratory which is listed in Annex B to Directive 85/551/EEC or — if the answer to Question 2a means that the administrative authority may base its FMD control measures also on results obtained by a laboratory which is not listed in Annex B to Directive 85/511/EEC — by the results of the latter laboratory, or does the determination of final authority in that regard fall within the procedural autonomy of the Member State and must the court before which the main proceedings are pending examine whether the rules in that respect apply irrespective of whether the laboratory examination is carried out by virtue of a Community or national legal obligation and of whether or not the application of the provisions of national procedural law renders the implementation of the Community rules extremely difficult or practically impossible?

               6.

               If the answer to Question 4 means that the issue of whether national authorities are bound by the laboratory result is governed by Directive 85/511/EEC:
               Are the national authorities bound unconditionally by the result of an FMD examination carried out by a laboratory? If not, what margin of discretion does Directive 85/511/EEC leave these national authorities?

      (1)  Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease (OJ 1985 L 315, p. 11).


title: Case C-120/11: Order of the President of the Court of 13 July 2011 (reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy)) — Criminal proceedings against Yeboah Kwadwo

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/18

         Order of the President of the Court of 13 July 2011 (reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere (Italy)) — Criminal proceedings against Yeboah Kwadwo
   (Case C-120/11) (1)

   2011/C 298/33
   Language of the case: Italian
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 145, 14.5.2011.


title: Judgment of the Court (Sixth Chamber) 11 March 2004 In Case C-496/01: Commission of the European Communities v French Republic

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/5

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   11 March 2004
   In Case C-496/01: Commission of the European Communities v French Republic (1)

   (Failure of a Member State to fulfil its obligations - France - Freedom to provide services - Right of establishment - Rules governing bio-medical analysis laboratories - Conditions for the grant of an administrative operating authorisation - Place of business in France)
   (2004/C 94/08)
   Language of the case: French
   In Case C-496/01: Commission of the European Communities (Agent: M. Patakia), with an address for service in Luxembourg, against French Republic (Agents: G. de Bergues and C. Bergeot-Nunes):

               —

               Application for a declaration that,

               —

               by requiring that bio-medical analysis laboratories established in other Member States have their place of business in France in order to obtain the requisite operating authorisation;

         by precluding any reimbursement of the costs of bio-medical analyses carried out by a bio-medical analysis laboratory established in another Member State,

               the French Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC, the Court (Sixth Chamber), composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and N. Colneric (Rapporteur), Judges; J. Mischo, Advocate General; R. Grass, Registrar, has given a judgment on 11 March 2004, in which it:

               1.

                           —

                           Declares that, by imposing on bio-medical analysis laboratories established in other Member States, a requirement that they have a place of business in France in order to obtain the necessary operating authorisation and by precluding any reimbursement of the costs of bio-medical analyses carried out by a bio-medical analysis laboratory established in another Member State, the French Republic has failed to fulfil its obligations under Article 49 EC;

               2.

               Dismisses the remainder of the application;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 44 of 16.02.2002.


title: Case C-451/02: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 29 October 2002 in the case of Hauptzollamt Bremen against Joh. C. Henschen GmbH & Co. KG

text:
8.3.2003               EN                         Official Journal of the European Union                                               C 55/7
(Trade Marks and Designs) was brought before the Court of                 Reference for a preliminary ruling by the Bundesfinanz-
Justice of the European Communities on 11 December 2002                   hof by order of that Court of 29 October 2002 in the case
by KWS Saat AG, represented by Dr Christian Rohnke,                       of Hauptzollamt Bremen against Joh. C. Henschen GmbH
Jungfernstieg 51, D-20354 Hamburg, with an address for                                                 & Co. KG
service in Luxembourg.
                                                                                (Case C-451/02)
The appellant claims that the Court should:                                                        (2003/C 55/14)
1.    set aside the judgment of the Court of First Instance of
      9 October 2002 in Case T-173/00 ( 1) in so far as it                Reference has been made to the Court of Justice of the
      dismisses the action;                                               European Communities by order of the Bundesfinanzhof
                                                                          (Federal Finance Court) of 29 October 2002, received at the
2.    annul the decision of the Board of Appeal of 19 April               Court Registry on 12 December 2002, for a preliminary ruling
      2000 in Case R 282/1999-2), in so far as that has not               in the case of Hauptzollamt Bremen against Joh. C. Henschen
      already occurred as a result of the judgment of the Court           GmbH & Co. KG on the following questions:
      of First Instance in Case T-173/00;
                                                                          1.    Is a customs debt on importation incurred under
                                                                                Article 203(1) of Regulation (EEC) No 2913/92 (1) where
3.    order the defendant to pay the costs.                                     goods in temporary storage are removed from their place
                                                                                of storage without the authorisation of the customs
                                                                                authority where the goods were presented and are then
                                                                                presented again to another customs office without first
                                                                                having been placed under the Community transit pro-
Grounds of appeal and main arguments                                            cedure required for their movement?
                                                                          2.    If Question 1 should be answered in the negative: In the
—     The Court of First Instance wrongly rejected the appli-                   circumstances described in Question 1 is there a non-
      cant’s claims. The Court failed to recognise that                         fulfilment of an obligation that could result in the
      Article 74(1) of Regulation No 40/94 was infringed if                     incurrence of a customs debt on importation under
      only because up until the time of its appeal decision the                 Article 204(1)(a) of Regulation (EEC) No 2913/92?
      Office did not in fact carry out any examination of its
      own. The reference for the first time in the appeal decision        3.    If Question 2 should be answered in the affirmative:
      to the web page of a single producer also infringes the                   Should Article 859, point 6, of Regulation (EEC)
      right to a fair hearing. Finally, the Court was compelled,                No 2454/93 (2) be interpreted as meaning that it applies
      in order to support the decision of the Board of Appeal, to               even if goods in temporary storage are moved to a
      construct its own replacement reasoning which, however,                   free warehouse in breach of the formalities relating to
      lacks detail and is formulaic.                                            temporary storage?
—     The Court of First Instance wrongly rejected the factual            4.    If Question 3 should be answered in the negative:
      claims concerning the distinctive character of the colour
      mark ‘orange’ (corresponding to colour code HKS7).                        (a)   Should Article 859, point 5, of Regulation (EEC)
      When assessing the distinctive character of colour marks,                       No 2454/93 be interpreted as referring only to an
      criteria different from those for other types of marks                          unauthorised movement of goods that could have
      cannot be applied. It is immaterial whether other colours                       been authorised by the customs office, or does it
      are used for identifying certain characteristics of the                         mean any movement of goods at all?
      goods at issue. Rather, it must be examined whether the
      specific colour applied for is understood by the public as                (b) Should Article 859, point 5, of Regulation (EEC)
      a reference to a characteristic. If different manufacturers                     No 2454/93 be interpreted as meaning that the
      use different colours as references to a characteristic, the                    condition laid down in that provision, that the
      public will see in those colours at least at the same time a                    goods in temporary storage can be presented to the
      reference to the producer. The colour ‘orange’ is not                           customs authorities at their request, is fulfilled only
      understood by the relevant public as a reference to a                           if the goods are presented again to the customs
      characteristic of the goods at issue. Nor is a decorative or                    office where they were originally presented, or is the
      functional use possible. Therefore the mark has distinctive                     condition fulfilled even if the goods are presented
      character.                                                                      again to any customs office at all — even if it is in
                                                                                another Member State?
( 1) OJ C 323, 21.12.2002.                                                (1 ) OJ L 302, p. 1.
                                                                          (2 ) OJ L 253, p. 1.


title: Case C-317/10 P: Appeal brought on 2 July 2010 by Union Investment Privatfonds GmbH against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Joined Cases T-303/06 and T-337/06 UniCredito Italiano SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Union Investment Privatfonds GmbH

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/25

         Appeal brought on 2 July 2010 by Union Investment Privatfonds GmbH against the judgment of the General Court (Third Chamber) delivered on 27 April 2010 in Joined Cases T-303/06 and T-337/06 UniCredito Italiano SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) — Union Investment Privatfonds GmbH
   (Case C-317/10 P)
   ()
   2010/C 246/43
   Language of the case: Italian

      Parties

      Appellant: Union Investment Privatfonds GmbH (represented by: J. Zindel, Rechtsanwalt)

      Other parties to the proceedings: UniCredito Italiano SpA and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Form of order sought

               —

               Set aside the judgment of 27 April 2010 in Joined Cases T-303/06 and T-337/06 in its entirety;

               —

               Dismiss the applications of UniCredito Italiano SpA;

               —

               Annul the decision of the Board of Appeal of OHIM of 5 September 2006 in Case R 196/2005-2 and uphold the opposition proceedings brought by the appellant against registration of the Community trade mark 2 236 164‘UNIWEB’ with regard to the service ‘real-estate affairs’;

               —

               Annul the decision of the Board of Appeal of OHIM of 25 September 2006 in Case R 502/2005-2 and uphold the opposition proceedings brought by the appellant against registration of the Community trade mark 2 330 066‘UniCredit Wealth Management’ with regard to the service ‘real-estate affairs’.

      Pleas in law and main arguments

   The appellant submits that the final half-sentence of Article 8(1)(b) of Regulation (EC) No 40/94 (1) has been incorrectly applied. In addition, it submits that the contested decision was taken on the basis of some of the facts only, which failed in part to reflect the actual position.
   Unlike OHIM which had correctly upheld the substance of the appellant’s claims, the General Court erred in failing to recognise that the marks at issue belong to a large family of marks. It is submitted that all the marks comprising that family each contain the same initial syllable, followed directly by another investment-sector concept. The marks of UniCredito Italiano SpA also displayed the same distinctive elements of that series. The General Court erred in starting from the premiss that the marks under comparison were structurally different on the basis that the initial syllable of UniCredito Italiano SpA’s marks is followed by an element in English, whereas the initial syllable of the appellant’s marks is followed by one in German. Nevertheless, the General Court failed to have due regard to the fact that because the marks form part of a series, all the marks in a family of marks must be taken into consideration when applying the final half-sentence of Article 8(1)(b) of Regulation (EC) No 40/94. In that regard, it must be emphasised that the appellant also uses English-language and international elements, so that the General Court’s opposing point of view is objectively mistaken.
   The appellant further submits that the General Court also erred in assuming that the marks used by it in respect of investment funds are always used in conjunction with the name of the issuing institution. That is, however, refuted by the evidence already submitted to OHIM by the appellant, from which it is clear, as has been outlined, that in press articles on funds, or during the provision of investment advice, the name of the issuing institution is not referred to.
   The appellant emphasises that the judgment under appeal is inadequately reasoned since it is not apparent how the General Court managed to determine the German public’s point of view, which is of crucial importance in analysing the likelihood of confusion.
   However, determining that point of view was necessary, given that by submitting various decisions of the Deutsches Patent- und Markenamt (DPMA) (German Patent and Trade Mark Office) and other German courts, the appellant proved that the DPMA and the German courts assume that there is confusion on the part of the German public where certain marks containing the same initial syllable as that in the appellant’s series of marks are registered or used by third parties in order to designate services in the financial sector.
   Lastly, it is submitted that, like OHIM beforehand, the General Court failed to realise that there is a likelihood of confusion due to the similarity of services also in the ‘real-estate affairs’ sector. In the case of the real-estate funds covered by the appellant’s marks, the appellant states that the increase in value expected by the investor is achieved by means of the management, leasing or sale of real estate. The appellant therefore submits that both OHIM and the General Court erred in assuming that managing a real-estate fund is limited to raising capital. In so far as OHIM attributed only property-brokerage activities to ‘real-estate affairs’, this fails to take due account of the fact that the concept of ‘real-estate affairs’ is much broader.

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


title: Case T-370/03: Action brought on 5 November 2003 by Jacques Wunenburger against Commission of the European Communities

text:
24.1.2004                EN                         Official Journal of the European Union                                           C 21/37
The applicant brought an application before the Court of First              The applicant claims that the Court should:
Instance (3) seeking the annulment of Regulation No 2380/98
insofar as the Council failed to give retroactive effect to the             —     annul the appointing authority’s decision of 11 March
above amendment. By judgement dated 29 June 2000 (4) the                          2003 not to accept the applicant’s candidature for the
Court of First Instance annulled the contested provision.                         post of Director in the Directorate ‘Africa, Caribbean,
Thereafter the Council adopted Regulation (EC) No 133/2001                        Pacific’ (AIDCO.C), as a result of the appointing auth-
of 22 January 2001 (5) amending Regulation (EC) No 1567/97                        ority’s decision of 8 January 2003 to appoint another
and granting retroactive effect to the provision in question. All                 person to that post;
of the applicant’s payments of duties imposed by Regulation
No 1567/97 were refunded to it.                                             —     in any event, orders the defendant to pay the costs.
By its present action the applicant seeks to obtain compen-                 Pleas in law and main arguments
sation in the form of interest on the amounts of import duty
which it initially paid and which were later refunded to it, as
well as in the form of legal expenses it incurred in the course             The applicant in this case challenges the appointing authority’s
of administrative proceedings before the Commission and the                 rejection of his candidature for the post of Director in the
German customs authorities.                                                 Directorate ‘Africa, Caribbean, Pacific’ (AIDCO.C).
                                                                            In support of his claims, he alleges infringement of Article 7,
In support of its application the applicant submits that the                of the second paragraph of Article 25, and Articles 29(1)(a) and
Council acted illegally in refusing to abide by the consequences            45(1) of the Staff Regulations, irregularity in the administrative
of the review findings leading to Regulation 2380/98 and that               procedure prior to the contested decision, and disregard of
this illegal behaviour was of sufficient gravity as to give rise to         general legal principles, such as the protection of legitimate
liability under Article 288 EC.                                             expectations, equal treatment and career progression.
(1 ) OJ L 208, 2.8.1997, p. 31-43.                                          In that regard, the applicant submits, in particular, that his
(2 ) OJ L 296 , 5.11.1998, p. 1-5.                                          candidature was not considered fairly and that he was not, at
(3 ) Case no T-7/99, notified in OJ C 86, 27.3.1999, p. 23.                 the very least, short listed without any statement of reasons,
(4 ) Notified in OJ C 259, 9.9.2000, p. 17.                                 although the appointing authority had recognised his abilities
(5 ) OJ L 23, 25.1.2001, p. 9.                                              for A2 post of Director AIDCO. Furthermore, the appointing
                                                                            authority subsequently established criteria not set out in the
                                                                            vacancy notice.
                                                                            Finally, the appointing authority made a manifest error of
                                                                            assessment in the comparison of the candidates’ respective
                                                                            merits.
Action brought on 5 November 2003 by Jacques Wunen-
burger against Commission of the European Communities
                                                                            Action brought on 7 November 2003 by Vincenzo le Voci
                          (Case T-370/03)                                            against the Council of the European Union
                           (2004/C 21/78)                                                           (Case T-371/03)
                                                                                (2004/C 21/79)
                     (Language of the Case: French)
                                                                                (Language of the case: English)
An action against the Commission of the European Communi-                   An action against the Council of the European Union was
ties was brought before the Court of First Instance of the                  brought before the Court of First Instance of the European
European Communities on 5 November 2003 by Jacques                          Communities on 7 November 2003 by Vincenzo le Voci,
Wunenburger, residing in Zagreb (Croatia), represented by                   Brussels, (Belgium), represented by B. van de Wal and E. Oude
E. Boigelot, lawyer, with an address for service in Luxembourg.             Elferink, lawyers.


title: Action brought on 31 December 1998 by the Italian Republic against the Commission of the European Communities (Case C-482/98)

text:
13.3.1999                 EN                     Official Journal of the European Communities                                    C 71/15
the European Communities on 28 December 1998 by the                              Exchequer and to the social security fund by four
Kingdom of Spain, represented by R. Silva de Lapuerta,                           undertakings, two of which are insolvent and the
Abogado del Estado, acting as Agent, with an address for                         other two of which are not trading, constitutes public
service in Luxembourg at the Spanish Embassy, 4-6                                aid which is incompatible with the common market.
Boulevard Emmanuel Servais.
                                                                            4. O b l i g a t i o n t o r e c o v e r t h e a i d
The applicant claims that the Court should:
                                                                                As regards that repayment obligation, apart from the
(1) annul the Commission's decision of 14 October 1998
                                                                                fact that the amount to be repaid is not quantified,
    concerning aid granted by Spain to the undertakings in
                                                                                interest cannot accrue in relation to undertakings
    the MAGEFESA group and their successor
                                                                                which are the subject of insolvency proceedings.
    undertakings;
(2) order the defendant institution to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                            Action brought on 31 December 1998 by the Italian
1. I n f r i n g e m e n t o f A r t i c l e 9 2 ( 1 ) o f t h e E C        Republic against the Commission of the European
    Tr e a t y                                                                                Communities
                                                                                (Case C-482/98)
    The Kingdom of Spain considers that the partial                                                    (1999/C 71/26)
    non-payment by the companies INDOSA, CUNOSA,
    MIGSA and GURSA of certain sums due to the social
    security fund and to the Hacienda PuÂblica (Exchequer)                  An action against the Commission of the European
    does not constitute aid incompatible with the common                    Communities was brought before the Court of Justice of
    market, since that non-payment results from the                         the European Communities on 31 December 1998 by the
    application of a general rule of law governing any                      Italian Republic, represented by Professor Umberto
    undertaking which is the subject of insolvency                          Leanza, acting as Agent, assisted by Oscar Fiumara,
    proceedings or which has incurred debts due to the                      Avvocato dello Stato, with an address for service in
    social security authorities or to the Hacienda PuÂblica,                Luxembourg at the Italian Embassy, 5 Rue
    and the undertakings alleged to have been granted the                   Marie-Adelaïde.
    aid have not been treated in a different way.
    Furthermore, this is not a case in which any advantage                  The applicant claims that the Court should:
    has been provided, either directly or indirectly, by
    means of State funds, inasmuch as neither the                           Ð Annul the Commission's decision, referring the matter
    Tesorería General de la Seguridad Social (Social                             back to the Commission for review (1);
    Security General Fund) nor the Agencia Estatal de la
    Administración Tributaría (State Fiscal Administration
    Agency) nor the Diputación Foral de Vizcaya                             Ð Order the Commission to pay the costs.
    (Government of the Province of Biscay) has at any
    time remitted any debts owed to them by those
    undertakings; on the contrary, they have taken all legal                Pleas in law and main arguments adduced in support:
    steps within their powers in order to recover the debts
    due to them.
                                                                            The Commission's decision is erroneous and vitiated on
                                                                            the following grounds:
2. B r e a c h o f t h e p r i n c i p l e o f l e g a l c e r t a i n t y
                                                                            Ð It affirms, in general contrast with point 7.4 of Annex I
    The contested decision is not clear or precise and does                      to Council Directive 80/232/EEC (2) concerning certain
    not enable the Kingdom of Spain to ascertain the                             cosmetic products, that cosmetic products may be
    obligations which that decision imposes on it or,                            produced from impure alcohol; moreover, it does not
    consequently, to exercise its rights of defence and to                       appear from the decision that the Community
    adopt the measures which it considers appropriate; it                        scientific bodies have addressed the question, even
    therefore breaches the principle of legal certainty.                         though it was constantly urged by the Italian
                                                                                administrative authorities throughout the procedure
3. A b s e n c e o f a s t a t e m e n t o f r e a s o n s                       that they be consulted;
    The Commission has failed to state in the contested                     Ð In contrast to Article 1(1) of Council Directive
    decision the reasons why the non-payment of certain                          76/768/EEC (3), as amended by Council Directive
    unspecified sums to the State and Provincial Public                          93/35/EEC (4), it endorses the argument that cosmetic
 ---pagebreak--- C 71/16                EN                  Official Journal of the European Communities                                  13.3.1999
     products may be used for purposes other than                     Genova (Genoa District Court) of 18 December 1998,
     application to the human body and, consequently, may             which was received at the Court Registry on 4 January
     be prepared specifically for such uses; Article 6(2)             1999, for a preliminary ruling in the case of Kofisa Italia
     requires Member States to take all measures necessary            Srl against Ministero delle Finanze and against Servizio
     to ensure that the labelling and presentation of                 della Riscossione dei Tributi Ð San Paolo Riscossione
     cosmetic products do not suggest that those products             Genova SpA on the following questions:
     possess characteristics Ð and, therefore, applications
     Ð which they do not. Thus, contrary to what is stated
     in the contested decision, if a product is intended for          (a) May the appeal referred to in Article 243(2) of
     the cleansing of objects or places, it cannot be called a             Council Regulation (EEC) No 2913/92 (1) be brought
     cosmetic; it falls instead into some other category of                directly before the judicial authority without referring
     goods, subject to other tax arrangements;                             the matter first to the customs authority?
Ð Since it manifestly does not distinguish between                    (b) Is the power to suspend the contested decision
     evasion, avoidance and abuse Ð defined in                             provided for in Article 244 of Regulation (EEC)
     Article 27(1) and (5) of Council Directive                            No 2913/92 conferred exclusively on the customs
     92/83/EEC (5), but equates all those concepts with                    authority or also on the judicial authority before
     evasion, it does not regard as abuse the attempt to                   which an appeal has been brought?
     benefit, without justification, from more favourable
     tax rules (an instance of which has already occurred in
                                                                      (1) OJ L 302, 19.2.1992, p. 1.
     Italy);
Ð In discarding any limits as to alcoholic content and
     therefore permitting the preparation of products which
     are substantially similar in terms of composition and
     potential applications from alcohol which has been
                                                                      Reference for a preliminary ruling by the Hessisches
     completely denatured' Ð to be subject to rules which
                                                                      Finanzgericht by order of that court of 7 May 1998 in the
     are less stringent than those laid down for such
                                                                         case of Döhler GmbH against Hauptzollamt Darmstadt
     alcohol Ð the decision authorises tax discrimination
     between products which lend themselves equally to                                         (Case C-2/99)
     evasion, and such discrimination has repercussions on
     market conditions and consequently on the                                                (1999/C 71/28)
     competitiveness of like products.
                                                                      Reference has been made to the Court of Justice of the
(1) Commission Decision 98/617/EC of 21 October 1998 (OJ
    L 295, 4.11.1998, p. 43) denying authority to Italy to refuse     European Communities by order of the              Hessisches
    the grant of exemption to certain products exempt from excise     Finanzgericht (Finance Court, Hessen) (Seventh Senate) of
    duty under Council Directive 92/83/EEC on the harmonisation       7 May 1998, received at the Court Registry on 5 January
    of the structures of excise duties on alcohol and alcoholic       1999, for a preliminary ruling in the case of Döhler
    beverages.                                                        GmbH v Hauptzollamt Darmstadt on the following
(2) OJ L 51, 25.2.1980, p. 1.                                         questions:
(3) OJ L 262, 27.9.1976, p. 169.
(4) OJ L 151, 23.6.1993, p. 32.
(5) OJ L 316, 31.10.1992, p. 21.
                                                                      1. Is the second sentence of Article 7(5) of Commission
                                                                           Regulation (EEC) No 2169/86 of 10 July 1986 laying
                                                                           down detailed rules for the control and payment of the
                                                                           production refunds in the cereals and rice sectors (1), in
                                                                           the version as amended by Regulation (EEC)
                                                                           No 165/89, to be interpreted as meaning that the
                                                                           expression the party concerned' also includes the
Reference for a preliminary ruling by the Tribunale di                     purchaser of a product CN 3505 10 50, who has for
Genova by order of that court of 18 December 1998 in                       his part undertaken to the manufacturer and/or
the case of Kofisa Italia Srl against Ministero delle Finanze              supplier of that product to use it exclusively for the
and against Servizio della Riscossione dei Tributi Ð San                   manufacture of products other than those listed in
                 Paolo Riscossione Genova SpA                              Annex I?
                          (Case C-1/99)
                         (1999/C 71/27)                               2. If the answer to Question 1 is in the affirmative:
                                                                           (a) Does the required payment by the purchaser of
Reference has been made to the Court of Justice of the                         105 % of the highest production refund applicable
European Communities by order of the Tribunale di                              to the product in question during the previous


title: Case T-128/07: Judgment of the Court of First Instance of 12 March 2008 — Suez v OHIM (Community trade mark — Application for Community word mark Delivering the essentials of life — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/25

         Judgment of the Court of First Instance of 12 March 2008 — Suez v OHIM
   (Case T-128/07) (1)

   (Community trade mark - Application for Community word mark Delivering the essentials of life - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)
   (2008/C 107/42)
   Language of the case: French
   Parties

      Applicant: Suez (Paris, France) (represented by: P. Combeau and D. Régnier, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, agent)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 2 February 2007 (Case R 811/2006-1) concerning an application for registration of the mark Delivering the essentials of life as a Community trade mark.
   Operative part of the judgment
   The Court:

               1.

               dismisses the action;

               2.

               orders Suez to pay the costs.

      (1)  OJ C 140, 23.6.2007.


title: Case C-300/08 P: Appeal brought on 7 July 2008 by Leche Celta SL against the judgment delivered on 23 April 2008 in Case T-35/07 Leche Celta SL v OHMI

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/36

         Appeal brought on 7 July 2008 by Leche Celta SL against the judgment delivered on 23 April 2008 in Case T-35/07 Leche Celta SL v OHMI
   (Case C-300/08 P)
   (2008/C 223/57)
   Language of the case: French
   Parties

      Appellant: Leche Celta SL (represented by: J Calderón Chavero and T. Villate Consonni, lawyers)

      Other party/parties to the proceedings: Office for Harmonisation in the Internal Market (Trade marks and Designs), Celia SA
   Form of order sought

               —

               Annul the judgment of the Third Chamber of the Court of First Instance of 23 April 2008 in Case T-35/07 on the grounds that the marks CELIA/CELTA are clearly incompatible;

               —

               Order payment of costs.

         Pleas in law and main arguments
   By its appeal the appellant challenges in essence the assessment made by the Court of First Instance on the similarity of the marks at issue. According to the appellant, the similarity of the two marks is such that the relevant public will not be able to detect any difference between them, the more so when the goods covered by them are identical. The Court therefore committed several errors of assessment by judging the degree of verbal and conceptual similarity between the marks at issue to be low.


title: Case T-320/99: Action brought on 15 November 1999 by W.F. Milder against the Commission of the European Communities

text:
4.3.2000              EN                     Official Journal of the European Communities                                      C 63/23
The applicants claim that the Court should:                             Pleas in law and main arguments
(a) annul the Commission’s decision [C(1999) 2539 final] (1)            The pleas in law and main arguments are the same as in Cases
    of 20 July 1999 concerning State aid granted by the                 T-273/99 to T-278/99. The applicant additionally claims that
    Netherlands to 633 service stations in the region bordering         the decision was prepared without due care, inasmuch as it is
    Germany;                                                            based on clearly incorrect facts, including inter alia the
                                                                        assumption that the applicant sells and supplies motor fuels
(b) order the Commission to pay the costs.                              and that it consequently forms part of the category of persons
                                                                        actually in receipt of aid.
Pleas in law and main arguments                                         (1) OJ L 280 of 30.10.1999, p. 87.
The pleas in law and main arguments are the same as in Cases
T-273/99 to T-278/99. The applicants additionally claim that
the decision was prepared without due care, inasmuch as it is
based on clearly incorrect facts, including inter alia the premiss
that each service station is a party to an exclusive purchasing
agreement.
                                                                        Action brought on 15 November 1999 by W.F. Milder
(1) OJ L 280 of 30.10.1999, p. 87.                                        against the Commission of the European Communities
                                                                                (Case T-320/99)
                                                                                (2000/C 63/46)
                                                                                (Language of the case: Dutch )
Action brought on 8 November 1999 by Avia Nederland                     An action against the Commission of the European Communi-
Coöperatie U.A. against the Commission of the European                  ties was brought before the Court of First Instance of the
                          Communities                                   European Communities on 15 November 1999 by W.F. Milder,
                                                                        of Gendt (Netherlands), represented by M.J.C. Deriks, of the
                                                                        Rotterdam Bar.
                        (Case T-318/99)
                                                                        The applicant claims that the Court should:
                         (2000/C 63/45)
                                                                        (a) annul the Commission’s decision [C(1999) 2539 final] (1)
                                                                            of 20 July 1999 concerning State aid granted by the
                   (Language of the case: Dutch)                            Netherlands to 633 service stations in the region bordering
                                                                            Germany;
An action against the Commission of the European Communi-               (b) order the Commission to pay the costs.
ties was brought before the Court of First Instance of the
European Communities on 8 November 1999 by Avia Neder-
land Coöperatie U.A., of Soest (Netherlands), represented by
M.J.C. Deriks, of the Rotterdam Bar.                                    Pleas in law and main arguments
The applicant claims that the Court should:                             The pleas in law and main arguments are the same as in Cases
                                                                        T-273/99 to T-278/99.
(a) annul the Commission’s decision [C(1999) 2539 final] (1)
    of 20 July 1999 concerning State aid granted by the
    Netherlands to 633 service stations in the region bordering         (1) OJ L 280 of 30.10.1999, p. 87.
    Germany;
(b) order the Commission to pay the costs.


title: Case T-269/05: Action brought on 8 July 2005 by Raffaele Dalmasso against the Commission of the European Communities

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/30

         Action brought on 8 July 2005 by Raffaele Dalmasso against the Commission of the European Communities
   (Case T-269/05)
   (2005/C 229/65)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 July 2005 by Raffaele Dalmasso, resident in Schaerbeek (Belgium), represented Lucas Vogel, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision adopted by the Authority Responsible for Concluding Contracts of Employment on 21 March 2005 by which it dismissed the applicant's application of 7 December 2004, reclassified as a claim, against the decision fixing the grade and remuneration determined for the applicant in his capacity as contract staff under the terms of the contract which entered into effect on 16 September 2004;

               —

               in so far as necessary, annul also the original decision, by which the grade and remuneration were fixed for the applicant in his capacity as a contract staff under the terms of the contract which entered into effect on 16 September 2004;

               —

               order the defendant to pay EUR 25 000 by way of damages, subject to an increase or decrease or further specifications;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are identical to those put forward in Case T-253/05 Fernandez Tunon v Commission.


title: Joined Cases C-235/10 to C-239/10: Judgment of the Court (Third Chamber) of 3 March 2011 (references for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg)) — David Claes v Landsbanki Luxembourg SA, in liquidation (References for a preliminary ruling — Social policy — Directive 98/59/EC — Collective redundancies — Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person — No consultation of employees’ representatives — Equivalence of employer and liquidator)

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/8

         Judgment of the Court (Third Chamber) of 3 March 2011 (references for a preliminary ruling from the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg)) — David Claes v Landsbanki Luxembourg SA, in liquidation
   (Joined Cases C-235/10 to C-239/10) (1)

   (References for a preliminary ruling - Social policy - Directive 98/59/EC - Collective redundancies - Immediate termination of employment contracts following a judicial decision ordering the dissolution and winding up of a legal person - No consultation of employees’ representatives - Equivalence of employer and liquidator)
   2011/C 130/14
   Language of the case: French

      Referring court

   Cour de cassation du Grand-Duché de Luxembourg

      Parties to the main proceedings

      Applicants: David Claes (C-235/10), Sophie Jeanjean (C-236/10), Miguel Rémy (C-237/10), Volker Schneider (C-238/10), Xuan-Mai Tran (C-239/10)

      Defendant: Landsbanki Luxembourg SA, in liquidation

      Re:

   Reference for a preliminary ruling — Cour de cassation (Luxembourg) — Interpretation of Articles 1, 2 and 3 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies (OJ 1998 L 225, p. 16) — Provisions of national law providing for the immediate termination of employment contracts following a judicial declaration of insolvency as a result of termination of activities — No consultation of employees’ representatives before such redundancies — Assimilation of liquidator in insolvency and the employer

      Operative part of the judgment

               1.

               Articles 1 to 3 of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as applying to a termination of the activities of an employing establishment as a result of a judicial decision ordering its dissolution and winding up on grounds of insolvency, even though, in the event of such a termination, national legislation provides for the termination of employment contracts with immediate effect.

               2.

               Until the legal personality of an establishment whose dissolution and winding up have been ordered has ceased to exist, the obligations under Articles 2 and 3 of Directive 98/59 must be fulfilled. The employer’s obligations pursuant to those provisions must be carried out by the management of the establishment in question, where it is still in place, even with limited powers of management over that establishment, or by its liquidator, where that establishment’s management has been taken over in its entirety by the liquidator.

      (1)  OJ C 209, 31.7.2010.


title: Action brought on 26 June 1996 by the Commission of the European Communities against the French Republic (Case C-223/96)

text:
No C 269/6                EN                   Official Journal of the European Communities                                      14 . 9 . 96
Action brought on 26 June 1996 by the Commission of the                         Council Directive 91 /156/EEC ( ) of 18 March 1991
 European Communities against the Kingdom of Belgium                            amending Directive 75/442/EEC ( 2 ) on waste, or by not
                           ( Case C-222/96 )                                    communicating those measures, the French Republic has
                                                                                failed to fulfil its obligations under that Directive,
                             ( 96/C 269/ 14 )
                                                                          — order the French Republic to pay the costs .
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
26 June 1996 by the Commission of the European                            Pleas in law and main arguments adduced in support:
Communities, represented by Gotz zur Hausen, acting as
Agent, assisted by J. -J. Evrard, Avocat, with an address for             The pleas in law and main arguments are analogous to those
service in Luxembourg at the office of Carlos Gomez de la                 in Case C-205/96 ( 3 ); the period prescribed in the Directive
Cruz, of the Commission 's Legal Service, Wagner Centre ,                 expired on 1 April 1993 .
Kirchberg.
                                                                          (') OJ No L 78 , 26 . 3 . 1991 , p . 32 .
The applicant claims that the Court should :                              ( 2 ) OJ No L 194 , 25 . 7 . 1975 , p . 39 .
                                                                          ( 3 ) OJ No C 247, 24 . 8 . 1996 , p . 7 .
— declare that, by not adopting the laws, regulations and
       administrative provisions necessary to comply with
       Council Directive 92/32/EEC (') of 30 April 1992
      amending for the seventh time Directive 67/548/EEC ( 2 )
      on the approximation of the laws, regulations and
      administrative provisions relating to the classification,
      packaging and labelling of dangerous substances, or by
      not communicating those measures , the Kingdom of                   Action brought on 27 June 1996 by SA Promotion Leopold
       Belgium has failed to fulfil its obligations under the                             against the European Parliament
      first-mentioned Directive,                                                                    ( Case C-224/96 )
                                                                                ( 96/C 269/ 16 )
— order the Kingdom of Belgium to pay the costs .
Pleas in law and main arguments adduced in support:                       An action against the European Parliament was brought
                                                                          before the Court of Justice of the European Communities on
The pleas in law and main arguments are analogous to those                27 June 1996 by SA Promotion Leopold, represented by
in Case C-205/96 ( 3 ); the period prescribed by the Directive            Lucien Simont and Paul Alain Foriers , acting as Agents, with
expired on 31 October 1993 .                                              an address for service in Luxembourg at the Chambers of J.
                                                                          Loesch, 11 rue Goethe .
(') OJ No L 154 , 5 . 6 . 1992 , p . 1 .
( 2 ) Official Journal , English Special Edition 1967, p. 234 .           The applicant claims that the Court should :
( 3 ) OJ No C 247, 24 . 8 . 1996 , p . 7 .
                                                                          — declare the application admissible and well founded
                                                                                and, consequently, rule that the final capital cost of
                                                                                Building D2 for the purposes of the building contract
                                                                                with an option to purchase dated 8 January 1 992 should
                                                                                include the sum of Bfr 23 355 000 by way of interest
Action brought on 26 June 1996 by the Commission of the                         during construction on the part of the initial advance of
      European Communities against the French Republic                          Bfr 1 000 000 000 on that building,
                             Case C-223 /96 )
                               96/C 269/ 15 )                             — as far as is necessary order the Parliament to pay charges
                                                                                calculated on the basis of the amended total and interest
                                                                                at the rate prescribed by law of 8 % from the date it
An action against the French Republic was brought before                        became due ,
the Court of Justice of the European Communities on
26 June 1996 by the Commission of the European
Communities , represented by Maria Kontou-Durande,                        — order the Parliament to pay the costs .
acting as Agent, assisted by J. -J. Evrard, Avocat, with an
address for service in Luxembourg at the Office of Carlos                 Pleas in law and main arguments adduced in support:
Gomez de la Cruz, of the Commission 's Legal Service,
Wagner Centre, Kirchberg .
                                                                          The pleas in law and main arguments are based on a contract
                                                                          concluded between the parties which in addition contains an
The applicant claims that the Court should :                              arbitration clause .
— declare that, by not adopting the laws, regulations and
       administrative provisions necessary to comply with


title: Case C-204/04: Action brought on 7 May 2004 by the Commission of the European Communities against the Federal Republic of Germany

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/7

         Action brought on 7 May 2004 by the Commission of the European Communities against the Federal Republic of Germany
   (Case C-204/04)
   (2004/C 201/14)
   An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 7 May 2004 by the Commission of the European Communities, represented by Nicola Yarrell, of the Commission's Legal Service, and Horstpeter Kreppel, a labour court judge appointed to the Commission's Legal Service under the exchange programme for national public servants, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               Declare that the Federal Republic of Germany has infringed the principle of equal treatment for men and women laid down under Articles 1, 2 and 5 of Council Directive 76/207/EEC (1), and Clause 4 of the Framework Agreement on part-time work concluded between UNICE, CEEP and the ETUC set out in the Annex to Council Directive 97/81/EC (2), in that it indirectly discriminates against women, who form the great majority of part-time employees working less than 18 hours a week in the German public sector, by excluding,

                           (a)

                           under Paragraph 14(2) of the Bundespersonalvertretungsgesetz (Federal Law on staff committees in the public sector) and the equivalent regulations applying in the Länder of

                                       —

                                       Bavaria

                                       —

                                       Berlin

                                       —

                                       Bremen

                                       —

                                       Hesse,

                                 part-time employees who normally work less than 18 hours a week, and

                           (b)

                           in the Länder of

                                       —

                                       Mecklenburg-Western Pomerania

                                       —

                                       Saxony

                                       —

                                       Schleswig-Holstein

                                       —

                                       Thuringia,

                                 part-time employees who work less than half of the normal weekly hours of work,

                           (c)

                           in the Länder of

                                       —

                                       Baden-Württemberg

                                       —

                                       Brandenburg

                                       —

                                       Rhineland-Palatinate

                                       —

                                       Saxony-Anhalt,

                                 part-time employees who work less than one-third of the normal weekly hours of work,

                           (d)

                           in North Rhine-Westphalia,
                           part-time employees who less than 2/5 of the normal weekly hours of work,

                           (e)

                           in Lower Saxony,
                           part-time employees who, for a period of up to two months in the course of a year, are employed for less than 15 hours a week,
                           from eligibility for election to staff committees.

               2.

               Order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments:
   The exclusion from eligibility for election to staff committees, for public sector workers employed by the Federal Republic and almost all Länder, of part-time employees who normally work less than 18 hours a week (the number of hours is somewhat less in certain Länder) constitutes indirect discrimination against women, as they form the great majority of part-time workers. This is accordingly in breach of Directive 76/207/EEC. The rules are also incompatible with Directive 97/81/EC, which provides that part-time workers may not be treated in a less favourable manner than full-time workers unless such different treatment is justified on objective grounds.
   However, there are no objective grounds for the exclusion from eligibility for election. The restricted presence of the relevant employees in the workplace could be compensated for by the creation of flexible working time arrangements and modern means of communication. The Betriebsverfassungsgesetz (Law on labour relations at the workplace), which governs elections to works councils in the private sector, does not restrict eligibility for election in the same way. Such works councils perform the same functions as staff committees in the public sector. Representation of the excluded groups is necessary because they have separate interests, which otherwise would not be taken into account.

      (1)  OJ 1976 L 39, p. 40.

      (2)  OJ 1998 L 14, p. 9.


title: Judgment of the Court of First Instance of 15 June 2005 in Case T-17/02 Fred Olson SA v Commission of the European Communities (State aid — Maritime transport — Existing aid — New aid — Service of general economic interest)

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/17

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 15 June 2005
   in Case T-17/02 Fred Olson SA v Commission of the European Communities (1)

   (State aid - Maritime transport - Existing aid - New aid - Service of general economic interest)
   (2005/C 205/29)
   Language of the case: Spanish
   In Case T-17/02: Fred Olson SA, established in Santa Cruz, Tenerife (Spain), represented by R. Marín Correa and F. Marín Riaño, lawyers, against Commission of the European Communities (Agent: J. Buendía Sierra, with an address for service in Luxembourg), supported by the Kingdom of Spain (Agent: N. Díaz Abad, lawyer, with an address for service in Luxembourg — application for annulment of the Commission Decision of 25 July 2001 relating to State aid file NN 48/2001 — Spain — Aid for the Trasmediterránea shipping company (OJ 2002 C 96, p. 4) — the Court of First Instance (Second Chamber, Extended Composition Chamber), composed of J. Pirrung, President, A.W.H. Meij, N. J. Forwood, I. Pelikánová and S. Papasavvas, Judges; J. Palacio González, Principal Administrator for the Registrar, gave a judgment on 15 June 2005, in which it:

               1.

               Dismisses the application.

               2.

               Orders the applicant to bear its own costs and to pay the costs incurred by the Commission.

               3.

               Orders the Kingdom of Spain to bear its own costs.

      (1)  OJ C 97 of 20.04.2002