title: Case T-124/02: Action brought on 17 April 2002 by Sunrider Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
29.6.2002              EN                    Official Journal of the European Communities                                       C 156/35
Pleas in law and main arguments                                         The applicant claims that the Court should:
Person applying to regis-     D.J. Debuschewits                         —     partially annul Decision R 368/2000-2 of the Second
ter the Community trade                                                       Board of Appeal of 17 January 2002 to the extent that
mark:                                                                         the applicant was ordered to bear its own costs in the
                                                                              opposition and appeal proceedings and that reimburse-
Community trade mark          CHUFAFIT — application for                      ment of the appeal fee was not ordered;
concerned:                    registration No 1021229 —
                              application in respect of goods in
                              Classes 29 and 31.                        —     order the Office to pay the costs.
Proprietor of the trade       The applicant company.
mark or distinctive sign
relied on in the oppo-
sition proceedings:
                                                                        Pleas in law and main arguments
Trade mark or distinc-        Spanish Trade Mark CHUFI, regis-
tive sign relied on in the    tered in respect of goods in
opposition proceedings:       Class 29, and Spanish graphic-            The applicant filed an application for registration of the word
                              denominative mark CHUFI, with             mark ‘VITATASTE’ in respect of goods in Classes 5 and 29 at
                              specific distinction, registered in       the Office for Harmonisation in the Internal Market (appli-
                              respect of goods in Class 31.             cation no 156463). Vitakraft-Werke Wührmann & Sohn
                                                                        opposed that application. The opposition was based on the
Decision of the Oppo-         Appeal against the Opposition             German marks ‘VITAKRAFT’ and ‘VITA’ in respect of goods in
sition Division:                                                        Class 5.
Decision of the Board of      Appeal against the decision of the
Appeal:                       Opposition Division dismissed.
                                                                        As a result of a private settlement with the opposing party, the
Grounds of appeal:            Unlawful        application       of      applicant limited the category of goods by removing some of
                              Article 8(1)(b) of Regulation             the goods claimed in Class 5. The opposing party later
                              (EC) 40/94 on the Community               withdrew its opposition but sought a decision on costs.
                              Trade Mark.
                                                                        The Opposition Division decided that the applicant should
                                                                        bear the costs of the opposition procedure. The Board of
                                                                        Appeal set this decision aside and ordered each of the parties
                                                                        to pay its own costs in respect of the opposition and appeal
                                                                        proceedings.
Action brought on 17 April 2002 by Sunrider Corpor-
ation against the Office for Harmonisation in the Internal
              Market (Trade Marks and Designs)
                                                                        The applicant is appealing against the decision of the Board of
                                                                        Appeal and claims that Article 81(4) of Council Regulation
                         (Case T-124/02)                                (EC) No 40/94 (1), not Article 81(3), is applicable in the present
                                                                        case. Furthermore, the defendant failed to consider that the
                                                                        requirements of Rule 51 of the implementing regulation (2)
                         (2002/C 156/65)                                were satisfied so that the Board of Appeal should have ordered
                                                                        reimbursement of the appeal fee. Finally, the Board of Appeal
(Language of the case to be determined pursuant to Article 131(2)       failed to comply with its obligation to state reasons.
of the Rules of Procedure — language in which the application was
                        submitted: German)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1)
An action against the Office for Harmonisation in the Internal          (2) Commission Regulation (EC) No 2868/95 of 13 December
Market (Trade Marks and Designs) was brought before the                     1995 implementing Council Regulation (EC) No 40/94 on the
Court of First Instance of the European Communities on                      Community trade mark (OJ 1995 L 303, p. 1)
17 April 2002 by Sunrider Corporation, Torrance (USA),
represented by A. Kockläuner, lawyer. Vitakraft-Werke Wühr-
mann & Sohn, Bremen (Germany), was an additional party to
the proceedings before the Board of Appeal.


title: Case F-20/15: Order of the Civil Service Tribunal (Third Chamber) of 16 July 2015 — FG v European Commission (Civil Service — Officials — Reform of the Staff Regulations — Regulation No 1023/2013 — Types of posts — Transitional rules on grading in the types of posts — Article 30(2) of Annex XIII to the Staff Regulations — Suitability for promotion to the grade above — Promotion year 2014 — Administrator without ‘particular responsibilities’ — Promotion possibilities capped at grade AD 12 — Name of that administrator not included in the list of promotable officials in grade AD 12 — Possibility of requesting to benefit under Article 30(3) of Annex XIII to the Staff Regulations — Deadline of 31 December 2015 — Admissibility of the action — Concept of measure adversely affecting a person — Amendment of the digital personal file of the official — Administrative information — Published on the institution’s intranet — Failure to satisfy the requirements of the pre-litigation procedure — Article 81 of the Rules of Procedure)

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/53

         Order of the Civil Service Tribunal (Third Chamber) of 16 July 2015 — FG v European Commission
   (Case F-20/15) (1)

   ((Civil Service - Officials - Reform of the Staff Regulations - Regulation No 1023/2013 - Types of posts - Transitional rules on grading in the types of posts - Article 30(2) of Annex XIII to the Staff Regulations - Suitability for promotion to the grade above - Promotion year 2014 - Administrator without ‘particular responsibilities’ - Promotion possibilities capped at grade AD 12 - Name of that administrator not included in the list of promotable officials in grade AD 12 - Possibility of requesting to benefit under Article 30(3) of Annex XIII to the Staff Regulations - Deadline of 31 December 2015 - Admissibility of the action - Concept of measure adversely affecting a person - Amendment of the digital personal file of the official - Administrative information - Published on the institution’s intranet - Failure to satisfy the requirements of the pre-litigation procedure - Article 81 of the Rules of Procedure))
   (2015/C 279/67)
   Language of the case: French

      Parties

      Applicant: FG (represented by: M. Velardo, lawyer)

      Defendant: European Commission (represented by: T.S. Bohr and E. Ehrbar, acting as Agents, and B. Wägenbaur, lawyer)

      Re:

   Application for annulment of the decision not to include the applicant on the list of officials proposed for promotion to grade AD 13 in promotion year 2014.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Each party shall bear its own costs.

      (1)  OJ C 127, 20.4.2015, p. 41.


title: Case C-139/09: Order of the President of the Court of 11 January 2010 — European Commission v Kingdom of Belgium

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/44

         Order of the President of the Court of 11 January 2010 — European Commission v Kingdom of Belgium
   (Case C-139/09) (1)

   2010/C 63/75

      Language of the case: French

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

      (1)  OJ C 141, 20.6.2009.


title: Judgment of the Court (Fifth Chamber) of 16 January 2003 in Case C-462/01 (Reference for a preliminary ruling from the Halmstads tingsrätt): Ulf Hammarsten (Common organisation of the markets in the flax and hemp sector — Articles 28 EC and 30 EC — National legislation prohibiting all cultivation and possession of hemp without prior authorisation)

text:
22.2.2003                EN                           Official Journal of the European Union                                                   C 44/9
1.    Declares that, by allowing discriminatory, advantageous rates           1.    In the case of transport by more than one driver, Article 8(2) of
      for admission to museums, monuments, galleries, archaeological                Council Regulation (EEC) No 3820/85 on the harmonisation
      digs, parks and gardens classified as public monuments, granted               of certain social legislation relating to road transport applies as
      by local or decentralised State authorities only in favour of                 a lex specialis that prevails over paragraph 1 of that article.
      Italian nationals and persons resident within the territory of                Consequently, those provisions are not to be applied cumulat-
      those authorities running the cultural sites in question, who are             ively.
      aged over 60 or 65 years, and by excluding from such
      advantages tourists who are nationals of other Member                   2.    The same interpretation applies to Article 8(1) and (2) of the
      States and non-residents who fulfil the same objective age                    European Agreement concerning the Work of Crews of Vehicles
      requirements, the Italian Republic has failed to fulfil its                   engaged in International Road Transport (AETR).
      obligations under Articles 12 EC and 49 EC;
                                                                              3.    It is for the national court to determine, having regard to the
2.    Orders the Italian Republic to pay the costs.                                 facts of the main proceedings, whether it is appropriate to apply
                                                                                the provisions of Regulation No 3820/85 or those of that
                                                                                agreement.
( 1) OJ C 348 of 8.12.2001.
                                                                              4.    Examination of Article 8(1) and (2) of Regulation No 3820/
                                                                                85 in the light of the principle of legal certainty has failed to
                                                                                disclose any matters of such a kind as to affect its validity.
                                                                              (1 ) OJ C 31 of 2.2.2002.
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)
                         of 16 January 2003
                                                                                JUDGMENT OF THE COURT
in Case C-439/01 (Reference for a preliminary ruling from
the Unabhängiger Verwaltungssenat im Land Niederöster-
reich): Libor Cipra Vlastimil Kvasnicka v Bezirk-                                                        (Fifth Chamber)
                shauptmannschaft Mistelbach (1)
                                                                                of 16 January 2003
(Road transport — Social legislation — Regulation (EEC)
No 3820/85 — Breaks and rest periods — Crew consisting                        in Case C-462/01 (Reference for a preliminary ruling from
of more than one driver — Jurisdiction of the Court                                    the Halmstads tingsrätt): Ulf Hammarsten ( 1)
to interpret the AETR Agreement — Principle of legal
                               certainty)
                                                                              (Common organisation of the markets in the flax and hemp
                                                                              sector — Articles 28 EC and 30 EC — National legislation
                            (2003/C 44/16)                                    prohibiting all cultivation and possession of hemp without
                                                                                prior authorisation)
                   (Language of the case: German)
                                                                                (2003/C 44/17)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                                (Language of the case: Swedish)
                                                                              (Provisional translation; the definitive translation will be published
In Case C-439/01: Reference to the Court under Article 234                                        in the European Court Reports)
EC by the Unabhängiger Verwaltungssenat im Land Niederös-
terreich (Austria) for a preliminary ruling in the proceedings
pending before that court between Libor Cipra Vlastimil
Kvasnicka and Bezirkshauptmannschaft Mistelbach, on the                       In Case C-462/01: Reference to the Court under Article 234
interpretation and validity of Article 8(1) and (2) of Council                EC by the Halmstads tingsrätt (Sweden) for a preliminary ruling
Regulation (EEC) No 3820/85 of 20 December 1985 on the                        in criminal proceedings before it against Ulf Hammarsten on
harmonisation of certain social legislation relating to road                  the interpretation of Articles 28 EC and 30 EC and of
transport (OJ 1985 L 370, p. 1), the Court (Fifth Chamber),                   the Community legislation applicable to the cultivation and
composed of: M. Wathelet, President of the Chamber,                           marketing of hemp, the Court (Fifth Chamber), composed of:
D.A.O. Edward, A. La Pergola, S. von Bahr and A. Rosas                        M. Wathelet, President of the Chamber, D.A.O. Edward, A. La
(Rapporteur), Judges; S. Alber, Advocate General; R. Grass,                   Pergola (Rapporteur), P. Jann and A. Rosas, Judges; C. Stix-
Registrar, has given a judgment on 16 January 2003, in which                  Hackl, Advocate General; R. Grass, Registrar, has given a
it has ruled:                                                                 judgment on 16 January 2003, in which it has ruled:
 ---pagebreak--- C 44/10                   EN                            Official Journal of the European Union                                         22.2.2003
Regulation (EEC) No 1308/70 of the Council of 29 June 1970 on                   2.    Orders the Kingdom of Spain to pay the costs.
the common organisation of the market in flax and hemp, as amended
by Council Regulation (EC) No 2826/2000 of 19 December 2000
on information and promotion actions for agricultural products on               (1 ) OJ C 68 of 16.3.2002.
the internal market and Regulation (EEC) No 619/71 of the Council
of 22 March 1971 laying down general rules for granting aid for
flax and hemp, as amended by Council Regulation (EC) No 1420/
98 of 26 June 1998, must be interpreted so precluding national
legislation which has the effect of prohibiting the cultivation and
possession of industrial hemp covered by those regulations.
( 1) OJ C 84 of 6.4.2002.
                                                                                JUDGMENT OF THE COURT
                                                                                (First Chamber)
                                                                                of 16 January 2003
                   JUDGMENT OF THE COURT
                              (First Chamber)                                   in Case C-63/02: Commission of the European Communi-
                                                                                ties v United Kingdom of Great Britain and Northern
                                                                                Ireland ( 1)
                          of 16 January 2003
in Case C-29/02: Commission of the European Communi-                            Failure of a Member State to fulfil its obligations — Failure
                     ties v Kingdom of Spain ( 1)                                               to implement Directive 98/83/EC)
(Failure of a Member State to fulfil its obligations — Failure                                            (2003/C 44/19)
                 to transpose Directive 98/83/EC)
                              (2003/C 44/18)                                                        (Language of the case: English)
                     (Language of the case: Spanish)
(Provisional translation; the definitive translation will be published          In Case C-63/02, Commission of the European Communities
                     in the European Court Reports)                             (Agent: M. Shotter) v United Kingdom of Great Britain and
                                                                                Northern Ireland (Agents: P. Ormond, assisted by M. Demetri-
                                                                                ou, barrister): Application for a declaration that, by failing to
                                                                                adopt for Northern Ireland and Wales all the laws, regulations
                                                                                and administrative provisions necessary to comply with
In Case C-29/02, Commission of the European Communities
                                                                                Council Directive 98/83/EC of 3 November 1998 on the
(Agent: G. Valero Jordana) v Kingdom of Spain (Agent:
                                                                                quality of water intended for human consumption (OJ 1998
L. Fraguas Gadea): Application for a declaration that, by failing
to adopt or, in any event, to communicate to the Commission                     L 330, p. 32) or, in any event, by failing to notify such
                                                                                provisions to the Commission, the United Kingdom of Great
the laws, regulations and administrative provisions necessary
                                                                                Britain and Northern Ireland has failed to fulfil its obligations
to comply with Council Directive 98/83/EC of 3 November
1998 on the quality of water intended for human consumption                     under Article 17(1) and (2) of that directive, the Court
                                                                                (First Chamber), composed of: M. Wathelet, President of the
(OJ 1998 L 330, p. 32), the Kingdom of Spain has failed to
fulfil its obligations under that directive, the Court (First                   Chamber, P. Jann and A. Rosas (Rapporteur), Judges; S. Alber,
                                                                                Advocate General; R. Grass, Registrar, has given a judgment
Chamber), composed of: M. Wathelet, President of the Chamb-
                                                                                on 16 January 2003, in which it:
er, P. Jann and A. Rosas (Rapporteur), Judges; S. Alber,
Advocate General; R. Grass, Registrar, has given a judgment
on 16 January 2003, in which it:
                                                                                1.    Declares that, by failing to adopt for Northern Ireland and
                                                                                Wales all the laws, regulations and administrative provisions
1.     Declares that, by failing to adopt the laws, regulations and                   necessary to comply with Council Directive 98/83/EC of
       administrative provisions necessary to comply with Council                     3 November 1998 on the quality of water intended for human
       Directive 98/83/EC of 3 November 1998 on the quality of                        consumption, the United Kingdom of Great Britain and
       water intended for human consumption, the Kingdom of Spain                     Northern Ireland has failed to fulfil its obligations under
       has failed to fulfil its obligations under that directive;                     Article 17(1) of that directive;


title: Case T-254/17: Action brought on 28 April 2017 — Intermarché Casino Achats v Commission

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/29

         Action brought on 28 April 2017 — Intermarché Casino Achats v Commission
   (Case T-254/17)
   (2017/C 231/37)
   Language of the case: French

      Parties

      Applicant: Intermarché Casino Achats (Paris, France) (represented by: Y. Utzschneider and J. Jourdan, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Declare, on the basis of Article 277 TFEU, Article 20 of Regulation No 1/2003 inapplicable to the present case;

               —

               Annul, on the basis of Articles 263 TFEU and 277 TFEU, European Commission Decision C(2017) 1056 of 9 February 2017;

               —

               Order the European Commission to pay all the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the decision of the European Commission of 9 February 2017 ordering the applicant to submit to an inspection under Article 20(1) and (4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1; ‘the contested decision’). According to the applicant, the contested decision is unlawful in that it is based on provisions which run counter to the Charter of Fundamental Freedoms of the European Union (‘the Charter’) and the European Convention on Human Rights (‘the ECHR’). In that regard, it argues that:

                           —

                           Article 20 of Regulation No 1/2003 infringes the right to an effective remedy guaranteed under Article 47 of the Charter and Article 6 of the ECHR in that it does not provide for any effective means of redress against the Commission’s inspection operations;

                           —

                           Article 20 of Regulation No 1/2003 also infringes the principle of equality of arms guaranteed under Article 47 of the Charter and Article 6 of the ECHR in that it does not provide for access to the documents underlying the Commission’s inspection decision or their communication.

               2.

               Second plea in law, alleging a failure to state reasons vitiating the contested decision since it is insufficiently reasoned contrary to the requirements of Article 20(4) of Regulation No 1/2003. The applicant is of the opinion that the contested decision fails entirely to explain how the applicant may be involved in any offence and nor does it state precisely the period during which offences against competition law are suspected to have occurred. That infringement of the obligation to state reasons is all the more injurious since the contested decision does not include the documents on which it is based.

               3.

               Third plea in law, alleging that the contested decision is unlawful since it was adopted by the Commission without the Commission having sufficiently serious indications giving rise to suspicion that an offence against competition law had been committed and so to justify an inspection in the applicant’s premises.

               4.

               Fourth plea in law, alleging that the contested decision is unlawful in that it does not comply with the fundamental right of the inviolability of the dwelling provided for in Article 7 of the Charter and Article 8 of the ECHR as a result of the disproportionate nature of the inspection which it orders and the lack of sufficient guarantee against abuses.


title: Action brought on 20 April 1998 by Theodore Giannakopoulos against the Commission of the European Communities (Case T-67/98)

text:
4.7.98                EN                Official Journal of the European Communities                                  C 209/41
wheat delivered by the applicant at the prices agreed in               grounds or by an insufficient statement of grounds. At
February 1993.                                                         no time during the pre-litigation procedure was the
                                                                       applicant informed, either directly or indirectly
(1) Case C-357/93 (subsequently Case T-494/93), OJ C 231,              through her doctor, of the precise medical reasons on
    27.8.1993, p. 10.                                                  which the administrative decision taken with respect
                                                                       to her was based, despite her request for such
                                                                       information, nor, as a consequence, was she in a
                                                                       position to put her point of view on the findings and
                                                                       conclusions of the medical officer and, if necessary, to
                                                                       dispute their substance.
Action brought on 20 April 1998 by Giuliana Gaspari                Ð Infringement of Article 8 of the European Convention
               against the European Parliament                         on Human Rights, in that the applicant never
                        (Case T-66/98)                                 authorised the medical officer of the office responsible
                                                                       for settling claims in Luxembourg to seek the opinion
                         (98/C 209/86)
                                                                       of the doctors expressly mentioned in the explicit
                                                                       decision rejecting her request and, in particular, to
                (Language of the case: French)                         pass on to them any information whatsoever regarding
                                                                       her state of health.
An action against the European Parliament was brought
before the Court of First Instance of the European
Communities on 20 April 1998 by Giuliana Gaspari
residing in Sandweiler (Luxembourg), represented by Jean
NoeÈl Louis, Ariane Tornel and FrancËoise Parmentier, of
the Brussels Bar, with an address for service in                   Action brought on 20 April 1998 by Theodore
Luxembourg at the offices of Fiduciaire Myson SARL, 30,            Giannakopoulos against the Commission of the European
Rue de Cessange.                                                                            Communities
                                                                                (Case T-67/98)
The applicant claims that the Court should:                                                (98/C 209/87)
                                                                                (Language of the case: French)
Ð annul the decision of 26 August 1997 by the office
     responsible for settling claims not to grant to the
     applicant the prior authorisation necessary for               An action against the Commission of the European
     reimbursement of the expenses of the treatment at a           Communities was brought before the Court of First
     spa prescribed by her doctor,                                 Instance of the European Communities on 20 April 1998
                                                                   by Theodore Giannakopoulos, residing in Brussels,
                                                                   represented by Jean NoeÈl Louis, VeÂronique Leclercq,
Ð order the defendant to pay the costs.                            Ariane Tornel and FrancËoise Parmentier, of the Brussels
                                                                   Bar, with an address for service in Luxembourg at the
                                                                   offices of Fiduciaire Myson SARL, 30 Rue de Cessange.
Pleas in law and main arguments adduced in support:
                                                                   The applicant claims that the Court should:
Between 1990 and 1995 the applicant underwent six
courses of treatment at a spa because of her health
problems. On 8 March 1996 she submitted a request for              Ð annul the decision of the Commission not to take
prior authorisation for a further course of treatment at a             account of medical certificates justifying the absence
spa. Although that treatment had been deemed to be                     of the applicant on the grounds of sickness from
necessary and indispensible, her request was refused                   17 July to 30 September 1997,
without any grounds being given. On 5 June 1997 the
applicant submitted a further request for prior
                                                                   Ð annul the decision of 12 May 1997, and, as far as
authorisation on the basis of a medical certificate of 3 June
                                                                       necessary, that of 18 April of that year, granting the
1997 from her rheumatologist. By the contested decision
                                                                       applicant leave on personal grounds from 1 August to
the office responsible for settling claims refused to grant
                                                                       30 September 1997,
the prior authorisation necessary for the reimbursement of
the expenses arising from this.
                                                                   Ð order the Commission to pay      the applicant the salary
                                                                       unlawfully withheld since 1     August 1997 together
She puts forward the following pleas in support of her                 with interest on the amount    in arrears calculated at
claims:                                                                8 % per annum from the         date due until actual
                                                                       payment,
Ð Violation of her right to a fair hearing in that the
     contested decision is vitiated by failure to state any        Ð order the defendant to pay the costs.
 ---pagebreak--- C 209/42             EN                 Official Journal of the European Communities                                       4.7.98
Pleas in law and main arguments adduced in support:                service in Luxembourg at the offices of Fiduciaire Myson
                                                                   SARL, 30 Rue de Cessange.
By decision of 12 May 1997 the appointing authority
granted the applicant, at his request, unpaid leave on             The applicant claims that the Court should:
personal grounds (hereinafter unpaid leave') from
1 August to 31 October. By agreement with his immediate
                                                                   Ð rule that the applicant's request that the question of
superior, he took his annual holiday from 1 June to 31 July
                                                                       the possible application of Article 31(2) of the Staff
1997. On 14 July he was the victim of an accident which
                                                                       Regulations be considered with a view to reviewing his
left him unable to work from 14 July to 30 September
                                                                       classification in grade with effect from 5 October
1997. By note of 24 July 1997 the applicant requested
                                                                       1995 is admissible and well-founded,
cancellation of his unpaid leave in view of the fact that he
was on sick leave. The act adversely affecting him is the
decision of the Director-General of Budgets rejecting the
                                                                   Ð annul the Commission's decision implicitly rejecting
request of the applicant, who was on sick leave from
                                                                       the applicant's request that the possible application of
14 July to 30 September 1997, to cancel his unpaid leave.
                                                                       Article 31(2) of the Staff Regulations be considered,
The applicant pleads infringement of Article 25 of the             Ð if necessary, annul the decision explicitly rejecting the
Staff Regulations. No grounds whatsoever were given for                applicant's complaint, which the Commission adopted
the decision refusing cancellation of his unpaid leave. The            on 17 December 1997,
applicant was not given any information either directly or
indirectly which would enable him to understand the
reasons for the contested decision. The decision was not           Ð order the defendant to pay all the costs.
communicated to the applicant in writing and without
delay.
                                                                   Pleas in law and main arguments adduced in support:
The second plea alleges infringement on breach of
                                                                   On 13 January 1997 the applicant, an official in Grade B 5,
Article 59(1) of the Staff Regulations. The applicant
                                                                   made a request under Article 90(1) of the Staff
submits that the contested decision is illegal in that his
                                                                   Regulations that his classification in grade be reviewed in
absence from 1 August to 30 September 1997 was
                                                                   the light both of the decision of the Commission of
justified by medical certificates in accordance with
                                                                   7 February 1996 authorising the appointing authority to
Article 59(1) of the Staff Regulations. Moreover the
                                                                   appoint a probationary official to the higher grade in a
decision was adopted without the Commission having
                                                                   career bracket and of his exceptional qualifications.
availed itself of its right to require the applicant to
undergo a medical examination pursuant to the second
subparagraph of Article 59(1) of the Staff Regulations.
                                                                   The applicant challenges the standard reply from the
                                                                   Commission of 8 January 1998 rejecting the complaint
                                                                   and maintaining that the applicant's request and
The final plea alleges breach of the duty to have regard           complaint were late and that the principles of non-
for the welfare of officials and of the principle of               retroactivity and legal certainty ruled out the
legitimate expectations and a manifest error of assessment.        reconsideration of decisions which had become final.
                                                                   The applicant argues that, by refusing to consider the
                                                                   possible application of Article 31(2) of the Staff
                                                                   Regulations, which would be to the applicant's benefit,
                                                                   the Commission infringed Article 31(2) of the Staff
Action brought on 23 April 1998 by Stefan Jung against             Regulations and of the Commission Decision of 7 February
       the Commission of the European Communities                  1996 amending the criteria applicable to appointment in
                                                                   grade and classification in step adopted on 1 September
                       (Case T-68/98)                              1983 as well as the principle of equal treatment and
                                                                   Article 5(3) of the Staff Regulations and, finally, its duty
                        (98/C 209/88)
                                                                   to have regard for the welfare of officials. Moreover, the
                                                                   Commission did not comply with the second paragraph of
                                                                   Article 25 of the Staff Regulations, which requires any
               (Language of the case: French)                      decision adversely affecting an official to state the grounds
                                                                   on which it is based. Finally, the applicant submits that
                                                                   the Commission has committed a manifest abuse of power
An action against the Commission of the European                   and a manifest error of assessment in not reviewing his
Communities was brought before the Court of First                  classification in grade.
Instance of the European Communities on 23 April 1998
by Stefan Jung, residing in Luxembourg, represented by
Nicolas LhoeÈst, of the Brussels Bar, with an address for


title: Case C-49/11: Judgment of the Court (Third Chamber) of 5 July 2012 (reference for a preliminary ruling from the Oberlandesgericht Wien — Austria) — Content Services Ltd v Bundesarbeitskammer (Reference for a preliminary ruling — Directive 97/7/EC — Consumer protection — Distance contracts — Consumer information — Information given or received — Durable medium — Meaning — Hyperlink on the website of the supplier — Right of withdrawal)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/8

         Judgment of the Court (Third Chamber) of 5 July 2012 (reference for a preliminary ruling from the Oberlandesgericht Wien — Austria) — Content Services Ltd v Bundesarbeitskammer
   (Case C-49/11) (1)

   (Reference for a preliminary ruling - Directive 97/7/EC - Consumer protection - Distance contracts - Consumer information - Information given or received - Durable medium - Meaning - Hyperlink on the website of the supplier - Right of withdrawal)
   2012/C 287/12
   Language of the case: German

      Referring court

   Oberlandesgericht Wien

      Parties to the main proceedings

      Applicant: Content Services Ltd

      Defendant: Bundesarbeitskammer

      Re:

   Reference for a preliminary ruling — Oberlandesgericht Wien — Interpretation of Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19) — Information concerning the contract made available to the consumer via a hyperlink to the supplier's website — Right of the consumer to receive that information in a durable medium — Interpretation of the notion of ‘durable medium’

      Operative part of the judgment

   Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts must be interpreted as meaning that a business practice consisting of making the information referred to in that provision accessible to the consumer only via a hyperlink on a website of the undertaking concerned does not meet the requirements of that provision, since that information is neither ‘given’ by that undertaking nor ‘received’ by the consumer, within the meaning of that provision, and a website such as that at issue in the main proceedings cannot be regarded as a ‘durable medium’ within the meaning of Article 5(1).

      (1)  OJ C 145, 14.5.2011.


title: Action brought on 23 December 1997 by Regione Puglia against the Commission of the European Communities (Case T-609/97)

text:
7.3.98                EN                 Official Journal of the European Communities                                         C 72/21
Ð in any event, order the Commission of the European                1997 marketing year (1). Under Article 1, for the 1996/
     Communities to pay the costs.                                  1997 olive oil marketing year the estimated production
                                                                    shall be 1 859 400 tonnes, and the unit amount of the
                                                                    production aid that may be paid in advance shall be ECU
Pleas in law and main arguments adduced in support:                 90,32 per 100 kilograms'. The applicant is of the view in
                                                                    this regard that that provision was adopted on the basis of
                                                                    the olive oil production forecast provided by the Member
The pleas in law and main arguments are similar to those            States to the Management Committee for Oils and Fats.
relied upon in Case T-288/97 Regione Friuli-Venezia
Giulia v. Commission (1).
                                                                    The applicant's main complaint concerns the aid
                                                                    coefficient which, given the enormous production forecast
( ) OJ C 7, 10.1.1998, p. 25.
 1
                                                                    by Spain, led to an exceptional overstepping of the
                                                                    guaranteed maximum quantity (GMQ) included in the
                                                                    price, which within the system of the common
                                                                    organisation of the market in olive oil was such as to
                                                                    reduce by approximately 30 % the amount of the unit
                                                                    production aid for the 1996/1997 marketing year (which
                                                                    was moreover reduced by nearly 10 % in the preceding
Action brought on 23 December 1997 by Regione Puglia                year), thus having a devastating and decisive impact on
   against the Commission of the European Communities               the Italian agricultural economy, in particular on that of
                       (Case T-609/97)                              Regione Puglia which, in the applicant's view, is in
                                                                    absolute terms the foremost olive-oil producing region in
                          (98/C 72/48)                              the context of Community countries, together with
                                                                    Andalusia.
                (Language of the case: Italian)
                                                                    The arguments of Regione Puglia centre essentially on the
                                                                    fact that the Commission fixed the amount of the unit aid
An action against the Commission of the European                    on the basis of a statement of production by Spain and is
Communities was brought before the Court of First                   not based on information drawn from the mandatory
Instance of the European Communities on 23 December                 register of olive cultivation provided for by Council
1997 by Regione Puglia, represented by Francesco Rosi               Regulation (EEC) No 154/75 of 21 January 1975 (2).
and Antonio Campagnola, of the Rome Bar, with an                    Moreover, the said State does not have a monitoring body
address for service in Luxembourg at the Chambers of                at national level, as required by Community law. Thus
Penning & AssocieÂs, 31 Grand-Rue.                                  information on Spanish olive production lacks the
                                                                    objective verification demanded by the Community.
The applicant claims that the Court should:
                                                                    The applicant also states in this regard that the
                                                                    Commission failed to carry out an investigation and to
Ð annul Commission            Regulation  No    1979/97    of       verify the information forwarded. The applicant is of the
     10 October 1997,                                               view in this regard that the contested regulation creates a
                                                                    serious disparity between the way in which are treated
                                                                    those producer countries which, by adhering to the
Ð in the alternative, annul Regulation No 1979/97 in so             obligations imposed by Community regulations, have their
     far as it accepts as correct the statement on Spain's          aid reduced, and other countries such as Spain which
     production and in any event declare unlawful the               manage to have an exceptional level of production
     production value declared by Spain itself and thus             accepted without it being submitted to the investigation
     redetermine the amount of the unit aid on the basis of         procedures provided for by the legislation in force. So far
     the production declared by the States by reference to          as Regione Puglia is concerned, to declare such a situation
     the usual information in accordance with the                   lawful, endorsing the defendant's conduct, would amount
     Community legislation in force,                                to legitimizing a situation of absolute uncertainty to the
                                                                    extent of completely negating the role of the GMQ and
                                                                    even undermining the common organization itself of the
Ð order the Commission to pay the costs.                            market.
                                                                    (1) OJ L 278, 11.10.1997, p. 12.
Pleas in law and main arguments adduced in support:                 (2) Regulation (EEC) No 154/75 of the Council of 21 January
                                                                        1975 on the establishment of a register of olive cultivation in
                                                                        the Member States producing olive oil (OJ L 19, 24.1.1975,
By the present action Regione Puglia contests Regulation                p. 1).
No 1979/97 of 10 October 1997 fixing the estimated
production of olive oil and the amount of the unit
production aid that may be paid in advance for the 1996/


title: Case T-384/15: Action brought on 13 July 2015 — EDF Luminus v Parliament

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/24

         Action brought on 13 July 2015 — EDF Luminus v Parliament
   (Case T-384/15)
   (2015/C 337/24)
   Language of the case: French

      Parties

      Applicant: EDF Luminus (Brussels, Belgium) (represented by: D. Verhoeven and O. Vanden Berghe, lawyers)

      Defendant: European Parliament

      Form of order sought

               —

               Declare the action admissible and well founded;

               —

               Consequently, order the European Parliament:

               —

               to pay EDF Luminus the sum of EUR 4 39  672 ,95;

               —

               to pay EDF Luminus the contractual interest on that sum from the date on which the invoices were payable;

               —

               to pay the costs and disbursements.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law, alleging infringement of the applicable legal and contractual conditions and the principle of equal treatment and non-discrimination, since the Parliament refuses to reimburse the applicant for the contributions relating to the electricity which it paid to the Région de Bruxelles — Capitale. The applicant submits that the disputed contributions must fall to be paid by the Parliament since they were brought about by the supply of electricity to the Parliament.


title: Case C-287/13 P: Appeal brought on 27 May 2013 by Bilbaína de Alquitranes, SA, Cindu Chemicals BV, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Rütgers Germany GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o. against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 7 March 2013 in Case T-93/10: Bilbaina de Alquitranes and others v European Chemicals agency (ECHA)

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/15

         Appeal brought on 27 May 2013 by Bilbaína de Alquitranes, SA, Cindu Chemicals BV, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Rütgers Germany GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o. against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 7 March 2013 in Case T-93/10: Bilbaina de Alquitranes and others v European Chemicals agency (ECHA)
   (Case C-287/13 P)
   2013/C 252/23
   Language of the case: English

      Parties

      Appellants: Bilbaína de Alquitranes, SA, Cindu Chemicals BV, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Rütgers Germany GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o. (represented by: K. Van Maldegem, avocat)

      Other party to the proceedings: European Chemicals Agency (ECHA)

      Form of order sought

   The appellants claim that the Court should:

               —

               set aside the judgment of the General Court in Case T-93/10; and

               —

               annul Decision ED/68/2009 of the European Chemicals Agency (the ‘Contested Decision’) identifying pitch, coal, tar, high temp, CAS Number 65996-93-2 (‘CTPHT’) as a substance to be included on the Candidate List in accordance with Article 59 of Regulation (EC) No 1907/2006 (‘REACH’) (1); or

               —

               alternatively, refer the case back to the General Court to rule on the appellants’ application for annulment; and

               —

               order the respondent to pay all the costs of these proceedings (including the costs before the General Court).

      Pleas in law and main arguments

   The appellants submit that, in dismissing their application for partial annulment in respect of the contested decision, the General Court breached Community law. In particular, the appellants contend that the General Court committed a number of errors in its interpretation of the legal framework as applicable to the appellants’ situation. That resulted in the General Court making a number of errors in law; in particular:

               —

               in finding that the case related to complex scientific and technical facts and that the identification of CTPHT s having PBT and vPvB properties on the basis of its constituents present in a concentration of at least 0.1% was not vitiated by a manifest error;

               —

               that the constituents of CTPHT do not have to be individually identified as having PBT or vPvB properties in a separate ECHA decision based on a thorough assessment for that purpose; and

               —

               that there was no breach of the principle of equal treatment

         For these reasons the appellants claim that the judgment of the General Court in Case T-93/10 should be set aside and the contested decision should be annulled.

      (1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, OJ L 396, p. 1


title: Case F-10/15: Action brought on 23 January 2015  — ZZ and Others v Commission

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/48

         Action brought on 23 January 2015 — ZZ and Others v Commission
   (Case F-10/15)
   (2015/C 089/59)
   Language of the case: French

      Parties

      Applicants: ZZ and Others (represented by: J.-N. Louis, R. Metz, N. de Montigny, D. Verbeke and T. Van Lysebeth, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of decisions establishing the rights of the applicants with regard to reimbursement of their annual travel expenses pursuant to Article 8 of Annex VII to the Staff Regulations, as amended by Regulation No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Annul the applicants’ pay slips for June 2014 in so far as they apply, for the first time, the version of Article 8 of Annex VII to the Staff Regulations in force since 1 January 2014 for the purposes of determining the reimbursement of their travel expenses;

               —

               Annul, if necessary, the standard decisions of 15 October 2014 rejecting their claim;

               —

               order the defendant to pay the costs.


title: Case C-90/00: Action brought on 8 March 2000 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
24.6.2000              EN                  Official Journal of the European Communities                                      C 176/5
Action brought on 7 March 2000 by the Commission of                   The applicant claims that the Court should:
the European Communities against the Kingdom of the
                          Netherlands                                 — declare that, by failing within the prescribed period to
                                                                          adopt the laws, regulations and administrative measures
                         (Case C-82/00)                                   necessary in order to implement the provisions of Directive
                                                                          97/24/EC (1) of the European Parliament and of the Council
                                                                          of 17 June 1997 on certain components and characteristics
                        (2000/C 176/07)
                                                                          of two or three-wheel motor vehicles, the Kingdom of the
                                                                          Netherlands has failed to comply with its obligations under
An action against the Kingdom of the Netherlands was                      the Treaty;
brought before the Court of Justice on 7 March 2000 by the
Commission of the European Communities, represented by                — order the Kingdom of the Netherlands to pay the costs.
C. Van Der Hauwaert, of its Legal Service, acting as Agent,
with an address for service in Luxembourg at the office of
C. Gómez de la Cruz, of its Legal Service, Wagner Centre,
Kirchberg.                                                            Pleas in law and main arguments
The applicant claims that the Court should:                           Under Article 8(1) of Directive 97/24/EC, the Kingdom of the
                                                                      Netherlands was required by no later than 18 December 1998
— declare that, by failing within the prescribed period to            to bring into force the laws, regulations and administrative
    adopt the laws, regulations and administrative measures           measures necessary in order to comply with that directive.
    necessary in order to implement the provisions of Com-
    mission Directive 98/14/EC (1) of 6 February 1998 adapt-
    ing to technical progress Council Directive 70/156/EEC on         (1) OJ 1997 L 226, p. 1.
    the approximation of the laws of the Member States
    relating to the type-approval of motor vehicles and their
    trailers, the Kingdom of the Netherlands has failed to
    comply with its obligations under the Treaty;
— order the Kingdom of the Netherlands to pay the costs.
Pleas in law and main arguments                                       Action brought on 8 March 2000 by the Commission of
                                                                      the European Communities against the Kingdom of the
Under Article 2(1) of Directive 70/156/EEC, the Kingdom of                                       Netherlands
the Netherlands was required by no later than 30 September
1998 to bring into force the laws, regulations and administrat-                                 (Case C-90/00)
ive measures necessary in order to comply with the directive.
                                                                                (2000/C 176/09)
(1) OJ 1998 L 91, p. 1.
                                                                      An action against the Kingdom of the Netherlands was
                                                                      brought before the Court of Justice on 8 March 2000 by the
                                                                      Commission of the European Communities, represented by
                                                                      H.M.H. Speyart, of its Legal Service, acting as Agent, with an
                                                                      address for service in Luxembourg at the office of C. Gómez
                                                                      de la Cruz, Wagner Centre, Kirchberg.
Action brought on 7 March 2000 by the Commission of
the European Communities against the Kingdom of the
                          Netherlands                                 The applicant claims that the Court should:
                                                                      — declare that, by failing to adopt the laws, regulations
                         (Case C-83/00)
                                                                          and administrative provisions necessary to comply with
                                                                          Directive 97/56/EC (1) of the European Parliament and of
                        (2000/C 176/08)                                   the Council of 20 October 1997 amending for the 16th
                                                                          time Directive 76/769/EEC on the approximation of the
An action against the Kingdom of the Netherlands was                      laws, regulations and administrative provisions of the
brought before the Court of Justice on 7 March 2000 by the                Member States relating to restrictions on the marketing
Commission of the European Communities, represented by                    and use of certain dangerous substances and preparations,
C. Van Der Hauwaert, of its Legal Service, acting as Agent,               the Kingdom of the Netherlands has failed to comply with
with an address for service in Luxembourg at the office of                its obligations under the Treaty;
C. Gómez de la Cruz, of its Legal Service, Wagner Centre,
Kirchberg.                                                            — order the Kingdom of the Netherlands to pay the costs.
 ---pagebreak--- C 176/6                 EN                  Official Journal of the European Communities                                         24.6.2000
Pleas in law and main arguments                                        Action brought on 13 March 2000 by the Commission of
                                                                        the European Communities against the French Republic
The mandatory nature of the provisions of the third paragraph
of Article 249 and the first paragraph of Article 10 EC is such
                                                                                (Case C-97/00)
as to oblige Member States to which directives are addressed
to adopt the measures necessary in order to transpose those
directives into their national legal order within the time-limit                                 (2000/C 176/11)
prescribed therein. The time-limit fixed in the present case
expired on 4 December 1998 but the Kingdom of the Nether-
lands has not adopted the necessary measures.                          An action against the French Republic was brought before the
                                                                       Court of Justice on 13 March 2000 by the Commission of the
                                                                       European Communities, represented by Michel Nolin, of its
(1) OJ 1997 L 333, p. 1.
                                                                       Legal Service, acting as Agent, with an address for service in
                                                                       Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
                                                                       Centre, Kirchberg.
                                                                       The applicant claims that the Court should:
Action brought on 8 March 2000 by the Commission of                    — declare that, by failing to communicate the laws, regu-
the European Communities against the Kingdom of the                         lations and administrative measures necessary in order to
                             Netherlands                                    comply fully with the provisions of European Parliament
                                                                            and Council Directive 97/52/EC of 13 October 1997 (1)
                           (Case C-91/00)                                   amending Directives 92/50/EEC (2), 93/36/EEC (3) and
                                                                            93/37/EEC (4), alternatively, by failing to take the necessary
                                                                            measures to comply therewith, the French Republic has
                          (2000/C 176/10)                                   failed to comply with its obligations under that directive;
An action against the Kingdom of the Netherlands was                   — order the French Republic to pay the costs.
brought before the Court of Justice on 8 March 2000 by the
Commission of the European Communities, represented by
H.M.H. Speyart, of its Legal Service, acting as Agent, with an
address for service in Luxembourg at the office of C. Gómez
                                                                       Pleas in law and main arguments
de la Cruz, Wagner Centre, Kirchberg.
The applicant claims that the Court should:                            The pleas in law and main arguments are similar to those
                                                                       advanced in Case C-90/00 (5); the period prescribed by Article
— declare that, by failing to adopt the laws, regulations and          4(1) of the directive expired on 13 October 1998, yet the only
     administrative provisions necessary in order to comply            provisions of Directive 97/52/EC which have been transposed
     with Commission Directive 98/77/EC (1) of 2 October               into the French legal order are those contained in Articles
     1998 adapting to technical progress Council Directive             1(1)(a), 2(1)(a) and 3(1)(a), relating to the thresholds above
     70/220/EEC on the approximation of the laws of the                which notices of contracts must be published in the Official
     Member States relating to measures to be taken against air        Journal of the European Communities.
     pollution by emissions from motor vehicles, the Kingdom
     of the Netherlands has failed to comply with its obligations
     under that directive;
                                                                       (1) concerning the coordination of procedures for the award of public
— order the Kingdom of the Netherlands to pay the costs.                   service contracts, public supply contracts and public works
                                                                           contracts respectively (OJ L 328 of 28.11.1997, p. 1).
                                                                       (2) Council Directive of 18 June 1992 relating to the coordination of
Pleas in law and main arguments                                            procedures for the award of public service contracts (OJ L 209 of
                                                                           24.7.1992, p. 1).
                                                                       (3) Council Directive of 14 June 1993 coordinating procedures for
The pleas in law and main arguments are analogous to those                 the award of public supply contracts (OJ L 199 of 9.8.1993, p. 1).
in Case C-90/00 (2); the time-limit for transposition expired on       (4) Council Directive of 14 June 1993 concerning the coordination
31 December 1998.                                                          of procedures for the award of public works contracts (OJ L 199
                                                                           of 9.8.1993, p. 54).
                                                                        5
                                                                       ( ) See page 5 of this Official Journal.
(1) OJ 1998 L 286, p. 34.
(2) See page 5 of this Official Journal.


title: Case T-602/11: Action brought on 22 November 2011 — Pêra-Grave v OHIM — Fundação De Almeida (QTA S. JOSÉ DE PERAMANCA)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/30

         Action brought on 22 November 2011 — Pêra-Grave v OHIM — Fundação De Almeida (QTA S. JOSÉ DE PERAMANCA)
   (Case T-602/11)
   2012/C 32/63
   Language in which the application was lodged: English

      Parties

      Applicant: Pêra-Grave Sociedade Agrícola, Unipessoal, Lda (Évora, Portugal) (represented by: J. de Oliveira Vaz Miranda Sousa, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Fundação Eugénio De Almeida (Évora, Portugal)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 September 2011 in case R 1797/2010-2 with the consequence that the opposition directed against the trade mark applied for will be rejected in its entirety and therefore the registration of the trade mark applied for will be allowed in its entirety; and

               —

               Order the defendant to bear its own costs and the costs incurred by the applicant in connection of the present proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘QTA S. JOSÉ DE PERAMANCA’, for goods in class 33 — Community trade mark application No 7291669

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Portuguese trade mark registration No 283684 of the figurative mark ‘VINHO PÊRAMANCA TINTO’, for goods in class 33; Portuguese trade mark registration No 308864 of the figurative mark ‘VINHO PÊRAMANCA BRANCO’, for goods in class 33; Portuguese trade mark application No 405797 of the figurative mark ‘PÊRAMANCA’, for goods in class 33

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Upheld the opposition and the appeal, annulled the contested decision and rejected the CTM application for all the contested goods

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal: (i) erred in law in diminishing the overall weight of the numerous visual, aural and conceptual dissimilarities between the signs and in increasing and therefore overestimating the overall impact of the only common element they contain, the verbal elements ‘PERA’ and ‘MANCA’; and (ii) misapplied the principles and the approach established by the General Court in case T-332/05 ‘TERRANUS/TERRA’ to the case sub judice and wrongly considered that the degree of overall similarity between the confronted signs was sufficient to lead to a likelihood of confusion.


title: Case T-452/08: Action brought on 6 October 2008 — DHL Aviation et DHL Hub Leipzig/Commission

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/34

         Action brought on 6 October 2008 — DHL Aviation et DHL Hub Leipzig/Commission
   (Case T-452/08)
   (2009/C 6/70)
   Language of the case: English
   Parties

      Applicant(s): DHL Aviation NV (Zaventem, Belgium) and DHL Hub Leipzig GmbH (Schkeuditz, Germany) (represented by: A. Burnside, Solicitor and B. van de Walle de Ghelcke, lawyer)

      Defendant(s): Commission of the European Communnities
   Form of order sought

               —

               Annul the decision in so far as it identifies the applicants as beneficiaries of State aid that is considered to be incompatible with the common market, and in so far as the decision orders Germany to recover the alleged State aid, and

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicants seek partial annulment of the Commission's Decision of 23 July 2008 in Case C 48/06 (ex N 227/06) — Germany, in so far as it identifies the applicants as beneficiaries of the State aid that is considered to be incompatible with the common market and in so far as the decision orders Germany to recover the alleged State aid.
   On 5 April 2006 Germany notified measures undertaken by the publicly-owned Leipzig Airport and Land Sachsen concerning the construction and operation of the new southern runway at Leipzig Airport, relating; in particular, to the establishment of the European hub of the DHL group for its express parcel operations at the said airport. The notified measures were, specifically, the ‘Framework agreement’ (1) concluded between the airport and DHL Hub Leipzig as well as a ‘Comfort letter’ issued by Land Sachsen in favour of the Leipzig Airport and DHL Hub Leipzig to pay a set amount of damages in the event that DHL Hub Leipzig would no longer operate as foreseen at the airport. The applicants claim that, as a consequence of the contested decision, they are deprived of the contractual obligations undertaken by Leipzig Airport and Mitteldeutsche Flughafen (‘MFAG’) under the Framework Agreement as well as of the guarantee provided by the Comfort Letter and also subject to recovery of the alleged State aid.
   The applicants raise the following pleas:

               In they first and second pleas, the applicants submit that the Commission committed manifest errors in the application of Article 87(1) EC. By characterising the ‘Nightflight clause’ and the ‘90 % Clause’ as State aid, the Commission failed to correctly apply the said provision according to the applicant. The applicants submit that the Commission manifestly erred in the application of the private investor test by holding that the point of reference for it was November 2004 and not the actual date of the conclusion of the Framework agreement. Further, the applicants claim that the Commission manifestly erred by holding that, regardless of the point of reference for the investment decision, the so-called unlimited guarantees provided in the Framework agreement constituted State aid in any event, since risks that DHL assumed under these provisions were financed by a capital injection which constituted State aid itself.

               On the basis of its second plea, the applicants claim that the Commission failed to correctly apply Article 87(1) EC, by holding that the Comfort letter constitutes State aid without considering the usual business practice between holding companies and subsidiaries.

               In its third plea, the applicants submit that the Commission infringed Article 253 EC by not considering all relevant factors when characterising the Nightflight Clause, the 90 % Clause and the Comfort Letter as State aid.

               In its fourth plea, the applicants submit that the Commission made a manifest error of assessment in ordering the recovery of the alleged State aid.

               In its fifth plea, the applicants submit that the Commission infringed Article 235 EC by holding that Articles 8 and 9 of the Framework Agreement contain the alleged State aid and by deciding that these provisions are not compatible with the common market and must therefore be terminated.

      (1)  According to the communication published in the OJ 2007 C 48, p. 7, this agreement imposes on the airport the obligation to construct the new southern runway and further obligations in terms of capacity and operation. In case of non-fulfilment (e.g. if night flights are banned by the regulatory authorities), DHL can claim compensation of its losses and damages.


title: Case C-585/11: Reference for a preliminary ruling from the Verwaltungsgericht Karlsruhe (Germany) lodged on 24 November 2011 — Philipp Seeberger v Studentenwerk Heidelberg

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/15

         Reference for a preliminary ruling from the Verwaltungsgericht Karlsruhe (Germany) lodged on 24 November 2011 — Philipp Seeberger v Studentenwerk Heidelberg
   (Case C-585/11)
   2012/C 49/24
   Language of the case: German

      Referring court

   Verwaltungsgericht Karlsruhe

      Parties to the main proceedings

      Claimant: Philipp Seeberger

      Defendant: Studentenwerk Heidelberg

      Question referred

   Does European Union law preclude national legislation which denies an education or training grant for studies in another Member State solely on the ground that the student, who has exercised the right to freedom of movement, has not, at the commencement of the studies, had his permanent residence in his Member State of origin for at least three years? (1)

      (1)  Interpretation of Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) — Citizenship of the Union and free movement.


               19.2.2005

               EN

               Official Journal of the European Union

               C 45/20

         Removal from the register of Case C-163/04 (1)

   (2005/C 45/43)

      (Language of the case: German)

   By order of 25 October 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-163/04 (reference for a preliminary ruling from the Bundesfinanzhof): Franz Werner v Finanzamt Cloppenburg.

      (1)  OJ C 118 of 30.4.04.


title: Case T-395/13: Judgment of the General Court of 18 September 2015 — Miettinen v Council (Access to documents — Regulation (EC) No 1049/2001 — Opinion of the Council’s legal service concerning proposals for a Directive and a Regulation of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation — Partial refusal of access — Exception relating to protection of legal advice — Exception relating to protection of the decision-making process)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/32

         Judgment of the General Court of 18 September 2015 — Miettinen v Council
   (Case T-395/13) (1)

   ((Access to documents - Regulation (EC) No 1049/2001 - Opinion of the Council’s legal service concerning proposals for a Directive and a Regulation of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation - Partial refusal of access - Exception relating to protection of legal advice - Exception relating to protection of the decision-making process))
   (2015/C 363/40)
   Language of the case: English

      Parties

      Applicant: Samuli Miettinen (Espoo, Finland) (represented by: O. Brouwer and E. Raedts, lawyers)

      Defendant: Council of the European Union (represented initially by: K. Pellinghelli, P. Plaza García and K. Toomus, and subsequently by: P. Plaza García, A. Jensen and M. Bauer, acting as Agents)

      Interveners in support of the applicant: Kingdom of Sweden (represented initially by: A. Falk, C. Meyer-Seitz, U. Persson, E. Karlsson, L. Swedenborg and C. Hagerman, and subsequently: by A. Falk, C. Meyer-Seitz, U. Persson, N. Otte Widgren, K. Sparrman, E. Karlsson, L. Swedenborg and F. Sjövall, acting as Agents); and Republic of Estonia (represented by: N. Grünberg, acting as Agent)

      Re:

   Application for annulment of the Council decision of 13 May 2013 refusing full access to document No 12979/12 of 27 July 2012 containing an opinion of the Council’s Legal Service relating to the proposals for a Directive of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation and a Regulation on insider dealing and market manipulation and other instruments regarding the harmonisation of administrative sanctions in the framework of financial services.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Council of the European Union of 13 May 2013 denying full access to document No 12979/12 of 27 July 2012 containing an opinion of the Council's legal service relating to the proposals for a Directive of the European Parliament and of the Council on criminal sanctions for insider dealing and market manipulation and a Regulation on insider dealing and market manipulation and other instruments regarding the harmonisation of administrative sanctions in the framework of financial services, and the letter of the Council of 23 July 2013;

               2.

               Orders the Council to bear its own costs and those incurred by Mr Samuli Miettinen;

               3.

               Orders the Kingdom of Sweden and the Republic of Estonia to bear their own costs.

      (1)  OJ C 274, 21.9.2013.


title: Case C-109/03: Reference for a preliminary ruling by the College van Beroep voor het bedrĳfsleven by judgment of that Court of 8 January 2003 in the case of KPN Telecom B.V. against Onafhankelĳke Post en Telecommunicatie Autoriteit; Interested parties: Denda Multimedia B.V. and Denda Directory Services B.V.

text:
C 146/18                EN                         Official Journal of the European Union                                        21.6.2003
      —     in the alternative: refer the case back to the Court of        Reference for a preliminary ruling by the College van
            First Instance for judgment;                                   Beroep voor het bedrijfsleven by judgment of that Court
                                                                           of 8 January 2003 in the case of KPN Telecom B.V. against
                                                                           Onafhankelijke Post en Telecommunicatie Autoriteit;
—     in any event: order OHIM to pay the costs.                           Interested parties: Denda Multimedia B.V. and Denda
                                                                                Directory Services B.V.
                                                                                (Case C-109/03)
Pleas in law and main arguments
                                                                                (2003/C 146/30)
—     Plea alleging breach of the presumption that documents
      may be relied on or inconsistency in the grounds of the
      judgment:
      Contrary to what the Court of First Instance states, the             Reference has been made to the Court of Justice of the
      sign reproduced does not present any of the 24 rectangles            European Communities by order of the College van Beroep
      or any of the six parallelograms of which a rectangular              voor het bedrijfsleven (Administrative Court for Trade and
      parallelepiped consists.                                             Industry) of 8 January 2003, received at the Court Registry on
                                                                           10 March 2003, for a preliminary ruling in the case of KPN
                                                                           Telecom B.V. against Onafhankelijke Post en Telecommunica-
                                                                           tie Autoriteit; Interested parties: Denda Multimedia B.V. and
—     Plea alleging misconstruction of the concept of distinctive
      character:                                                           Denda Directory Services B.V. on the following questions:
      When it is necessary to determine whether a sign is                  1.    Is ‘relevant information’ in Article 6(3) of Directive 98/
      capable of fulfilling its function as an individual mark                   10/EC ( 1) to be interpreted as meaning only the numbers
      for specific goods or services, when the merits of an                      together with the name, address, town/city and postcode
      application for registration as an individual mark for                     of the person to whom the number has been issued and
      those goods and services are being examined, it is                         any entry as to whether the number is used (exclusively)
      necessary to reason in terms of the presumed perception                    as a fax line published by the organisations concerned or
      of the use which might be made of the sign and not in                      does ‘relevant information’ also cover other data at the
      terms of the actual perception of any actual use already                   disposal of the organisations such as an additional
      made of the sign. The Court of First Instance maintains                    entry relating to a profession, another name, another
      that the distinctive character of the sign must be assessed                municipality or mobile telephone numbers?
      in relation ‘to the perception of the relevant public’. In
      that regard, the relevant public consists of all persons
      likely to find themselves in the presence of the sign and            2.    Is ‘meet (...) reasonable requests (...) on terms which
      cannot therefore be reduced to the much more restricted                    are fair, cost oriented and non-discriminatory’ in the
      circle of consumers likely to acquire the goods or services                provision referred in Question 1 to be interpreted as
      which the sign is supposed to designate.                                   meaning that:
      Furthermore, the Court of First Instance indirectly but                    a)    numbers together with the name, address, town/city
      definitely misconstrued the concept of distinctive charac-                       and postcode of the person to whom the number
      ter when it failed to rule on whether or not the sign was                        has been issued must be made available for a
      incapable of distinguishing one bar of soap from another                         remuneration of only the marginal costs involved in
      as coming from a specific undertaking, but rather whether                        actually making them available, and
      the imperfect picture of that sign had such capacity.
      Last, the Court of First Instance misunderstood the                        b)    data other than those referred to in paragraph (a)
      concept of distinctive character by completely disre-                            must be made available for a remuneration intended
      garding the multifunctionality of signs. It is not because                       to cover the costs of what the provider of these data
      it might be presumed that, in the presence of the sign in                        shows he has incurred in obtaining or providing
      issue, the public will perceive above all or primarily a sign                    these data?
      that fulfils a technical or ornamental function that the
      performance of its function as an individual trade mark
      would be precluded or even reduced.
                                                                           (1 ) OJ L 101 [1998], p. 24.


title: Case C-210/08 P: Appeal brought on 21 May 2008 by Sebirán, SL against the judgment delivered on 12 March 2008 in Case T-332/04 Sebirán, SL v OHIM and El Coto de Rioja, SA

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/15

         Appeal brought on 21 May 2008 by Sebirán, SL against the judgment delivered on 12 March 2008 in Case T-332/04 Sebirán, SL v OHIM and El Coto de Rioja, SA
   (Case C-210/08 P)
   (2008/C 183/29)
   Language of the case: Spanish
   Parties

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

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and El Coto de Rioja, SA
   Form of order sought

               —

               Annulment of the judgment of the Court of First Instance (Fourth Chamber) of 12 March 2008 in Case T-332/04 on the ground that the trade marks EL COTO/COTO DE IMAZ, on the one hand, and COTO D'ARCIS, on the other, are clearly compatible;

               —

               Order for payment of costs.

         Pleas in law and main arguments
   Challenge to the assessment of the Court of First Instance: Sebirán considers that the Community trade mark COTO D'ARCIS does not infringe the prohibition of Article 8(1)(b) of Regulation No 40/94 (1) since upon opposition of the proprietor of an earlier mark, in this case the Community marks EL COTO and COTO DE IMAZ, the refusal to register the most recent is not appropriate because it is sufficiently dissimilar, for the purposes of that prohibition, to the earlier marks, notwithstanding that the goods or services covered by both marks are identical or similar, considering the whole and not the separate components, when in addition there is no possibility of a likelihood of confusion on the part of the public of the whole territory of the European Union. The likelihood of confusion does not include the risk of association with the earlier mark.

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


title: Case F-40/11: Order of the Civil Service Tribunal (Single judge) of 3 May 2013 — Marcuccio v Commission (Civil service — Social security — Former official retired on grounds of invalidity — Accident — Absence of cover — Action devoid of purpose — No need to adjudicate)

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/47

         Order of the Civil Service Tribunal (Single judge) of 3 May 2013 — Marcuccio v Commission
   (Case F-40/11) (1)

   (Civil service - Social security - Former official retired on grounds of invalidity - Accident - Absence of cover - Action devoid of purpose - No need to adjudicate)
   2013/C 252/83
   Language of the case: Italian

      Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Defendant: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. Dal Ferro, lawyer)

      Re:

   Action for annulment of the decision setting out the benefits to which the applicant is entitled on account of his permanent partial invalidity.

      Operative part of the order

               1.

               There is no need to adjudicate on action F-40/11 Marcuccio v Commission.

               2.

               Mr Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission.

      (1)  OJ C 186, 25.6.11, p. 34.


title: Case C-57/09: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 10 February 2009 — Bundesrepublik Deutschland v B, Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/3

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 10 February 2009 — Bundesrepublik Deutschland v B, Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht
   (Case C-57/09)
   2009/C 129/04
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicant: Bundesrepublik Deutschland

      Defendant: B

      Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

      Questions referred

               1.

               Does it constitute a serious non-political crime or an act contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 if the appellant was a member of an organisation which is included in the list of persons, groups and entities (1) annexed to the Council Common Position on the application of specific measures to combat terrorism and employs terrorist methods, and the appellant has actively supported that organisation’s armed struggle?

               2.

               If Question 1 is to be answered in the affirmative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that the appellant continue to constitute a danger?

               3.

               If Question 2 is to be answered in the negative: does exclusion from recognition as a refugee under Article 12(2)(b) and (c) of Directive 2004/83/EC require that a proportionality test be undertaken in relation to the individual case?

               4.

               If Question 3 is to be answered in the affirmative:

                           a)

                           Is it to be taken into account in considering proportionality that the appellant enjoys protection against deportation under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 or under national rules?

                           b)

                           Is exclusion disproportionate only in exceptional cases having particular characteristics?

               5.

               Is it compatible with the directive, for the purposes of Article 3 of Directive 2004/83/EC, if the appellant has a right to asylum under national constitutional law even if one of the exclusion criteria laid down in Article 12(2) of the directive is satisfied?

      (1)  OJ L 304, p. 12.


title: Case C-404/12 P: Appeal brought on 3 September 2012 by the Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-338/08 Stichting Natuur en Milieu, Pesticide Action Network Europe v Commission

text:
               12.1.2013

               EN

               Official Journal of the European Union

               C 9/27

         Appeal brought on 3 September 2012 by the Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-338/08 Stichting Natuur en Milieu, Pesticide Action Network Europe v Commission
   (Case C-404/12 P)
   2013/C 9/45
   Language of the case: Dutch

      Parties

   Appellant: Council of the European Union (represented by: M. Moore and K. Michoel, Agents)
   Other parties to the proceedings:

               Stichting Natuur en Milieu,

               Pesticide Action Network Europe,

               European Commission,

               Republic of Poland

      Form of order sought

   The Council claims that the Court should:

               —

               set aside the judgment of 14 June 2012 in Case T-338/08;

               —

               dismiss the action of the applicants at first instance in its entirety;

               —

               order the applicants at first instance jointly and severally to pay the Council’s costs in the present case.

      Pleas in law and main arguments

   The Council takes the view that the judgment of the General Court in the abovementioned case is based on errors of law. Although the Council does not contest the General Court’s finding that that the Commission did not act as legislature in the present case, the Council is none the less of the view that the General Court did not correctly interpret and apply the ‘Nakajima’ (1) and ‘Fediol’ (2) case-law. Consequently, the Council is of the view that the General Court erred in finding that it could review the legality of Regulation (EC) No 1367/2006 (3) in the light of the Aarhus Convention (4) on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.
   Furthermore, the Council is of the view that the choice made by the legislature in Regulation No 1367/2006 is any event fully consistent with the Aarhus Convention. In this respect, the General Court’s interpretation of Article 9(3) of the Aarhus Convention is incorrect, in so far as the General Court disregards the discretion afforded to the contracting parties.
   The Council therefore requests the Court of Justice to set aside the judgment of the General Court in Case T-338/08, and to give final judgment in the matter by dismissing the applicants’ action in its entirety.

      (1)  Case C-69/89 Nakajima v Council [1991] ECR I-2169.

      (2)  Case 70/87 Fediol v Commission [1989] ECR 1825.

      (3)  Regulation of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

      (4)  Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).