title: Case T-189/10: Judgment of the General Court of 15 July 2015 — GEA Group v Commission (Competition — Agreements, decisions and concerted practices — European markets in heat stabilisers — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Infringement committed by subsidiaries — Fines — Joint and several liability of the subsidiaries and the parent company — Exceeding the 10 % ceiling for one of the subsidiaries — Decision readopted — Reduction of the fine for that subsidiary — Attribution to the other subsidiary and the parent company of the obligation to pay the reduced fine — Rights of the defence — Right to be heard — Right of access to the file)

text:
               14.9.2015

               EN

               Official Journal of the European Union

               C 302/31

         Judgment of the General Court of 15 July 2015 — GEA Group v Commission
   (Case T-189/10) (1)

   ((Competition - Agreements, decisions and concerted practices - European markets in heat stabilisers - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Infringement committed by subsidiaries - Fines - Joint and several liability of the subsidiaries and the parent company - Exceeding the 10 % ceiling for one of the subsidiaries - Decision readopted - Reduction of the fine for that subsidiary - Attribution to the other subsidiary and the parent company of the obligation to pay the reduced fine - Rights of the defence - Right to be heard - Right of access to the file))
   (2015/C 302/40)
   Language of the case: German

      Parties

      Applicant: GEA Group AG (Düsseldorf, Germany) (represented by: A. Kallmayer, I. du Mont and G. Schiffers, lawyers)

      Defendant: European Commission (represented by: R. Sauer and F. Ronkes Agerbeek, acting as Agents, and W. Berg, lawyer)

      Re:

   Application for annulment of Commission Decision C(2010) 727 of 8 February 2010, amending Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38.589 — Heat Stabilisers) or, in the alternative, a reduction of the amount of the fines imposed on the applicant.

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision C(2010) 727 of 8 February 2010, amending Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38.589 — Heat Stabilisers), in so far as it concerns GEA Group AG;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 179, 3.7.2010.


title: Case C-11/15: Judgment of the Court (First Chamber) of 22 June 2016 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Odvolací finanční ředitelství v Český rozhlas (Reference for a preliminary ruling — Sixth Directive 77/388/EC — Value added tax — Article 2(1) — Supply of services effected for consideration — Definition — Public broadcasting — Financing from a compulsory statutory fee)

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/3

         Judgment of the Court (First Chamber) of 22 June 2016 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Odvolací finanční ředitelství v Český rozhlas
   (Case C-11/15) (1)

   ((Reference for a preliminary ruling - Sixth Directive 77/388/EC - Value added tax - Article 2(1) - Supply of services effected for consideration - Definition - Public broadcasting - Financing from a compulsory statutory fee))
   (2016/C 314/04)
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Applicant: Odvolací finanční ředitelství

      Defendant: Český rozhlas

      Operative part of the judgment

   Article 2(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that public broadcasting activities, such as those at issue in the main proceedings, funded by a compulsory statutory charge paid by owners or possessors of a radio receiver and carried out by a radio broadcasting company created by law, do not constitute a supply of services ‘effected for consideration’ within the meaning of that provision and therefore fall outside the scope of that directive.

      (1)  OJ C 138, 27.4.2015.


title: Case T-113/04: Order of the Court of First Instance of 12 December 2007 — Atlantic Container Line and Others v Commission (Enforcement of a judgment of the Court of First Instance — Repayment of the costs of bank guarantees provided in order to defer payment of a fine imposed by the Commission and subsequently annulled by the Court of First Instance — Action for annulment and damages — Non-contractual liability of the Community — No direct causal link between the allegedly unlawful conduct of the institution and the damage claimed)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/38

         Order of the Court of First Instance of 12 December 2007 — Atlantic Container Line and Others v Commission
   (Case T-113/04) (1)

   (Enforcement of a judgment of the Court of First Instance - Repayment of the costs of bank guarantees provided in order to defer payment of a fine imposed by the Commission and subsequently annulled by the Court of First Instance - Action for annulment and damages - Non-contractual liability of the Community - No direct causal link between the allegedly unlawful conduct of the institution and the damage claimed)
   (2008/C 64/62)
   Language of the case: English
   Parties

      Applicants: Atlantic Container Line AB (Göteborg, Sweden); Transportación Marítima Mexicana SA de CV (Mexico, Mexico); Hanjin Shipping Co. Ltd (Seoul, South Korea); Hyundai Merchant Marine Co. Ltd (Seoul); Mediterranean Shipping Co. SA (Geneva, Switzerland); Neptune Orient Lines Ltd (Singapore, Singapore); Orient Overseas Container Line (UK) Ltd (Suffolk, United Kingdom); P & O Nedlloyd Container Line Ltd (London, United Kingdom); Sea-Land Service, Inc. (Jacksonville, Florida, United States) (represented initially by J. Pheasant, M. Levitt and K. Nicholson, and subsequently by M. Levitt and K. Nicholson, solicitors)

      Defendant: Commission of the European Communities (represented by P. Oliver, acting as Agent)
   Re:
   Application, first, for annulment of the Commission letter of 6 January 2004 refusing to repay the costs of the bank guarantees which the applicants entered into following the imposition of fines by Commission Decision 1999/243/EC of 16 September 1998 relating to a proceeding pursuant to Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) (Case No IV/35.134 — Trans Atlantic Conference Agreement) (OJ 1999 L 95, p. 1), annulled by judgment of the Court of First Instance of 30 September 2003 in Joined Cases T-191/98 and T-212/98 to T-214/98 Atlantic Container Line and Others v Commission [2003] ECR II-3275, and, second, for damages seeking repayment of the costs of the bank guarantees.
   Operative part of the order

               1.

               The action is dismissed.

               2.

               The applicants are ordered to pay the costs.

      (1)  OJ C 118, 30.4.2004.


title: Judgment of the Court (Sixth Chamber) of 26 September 2002 in Case C-351/98: Kingdom of Spain v Commission of the European Communities (State aid — Effect on competition and trade between Member States — De minimis rule — Sectoral guidelines and guidelines on aid for environmental protection — Horizontal aid with sectoral effects)

text:
23.11.2002              EN                       Official Journal of the European Communities                                             C 289/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       2.    Orders the Commission of the European Communities to pay
                                                                                the costs.
                         (Sixth Chamber)
                                                                             (1 ) OJ C 340 of 7.11.1998.
                      of 26 September 2002
in Case C-351/98: Kingdom of Spain v Commission of the
                   European Communities ( 1)
                                                                                JUDGMENT OF THE COURT
(State aid — Effect on competition and trade between                                                   (Fifth Chamber)
Member States — De minimis rule — Sectoral guidelines
and guidelines on aid for environmental protection —                                                 of 3 October 2002
               Horizontal aid with sectoral effects)
                                                                             in Case C-136/00 (Reference for a preliminary ruling from
                          (2002/C 289/01)                                         the Kuopin hallinto-oikeus): Rolf Dieter Danner ( 1)
                                                                             (Voluntary pension insurance — Policy taken out with a
                   (Language of the case: Spanish)                           company in another Member State — Non-deductibility of
                                                                             contributions — Compatibility with Articles 6 and 59 of the
                                                                             EC Treaty (now, after amendment, Articles 12 EC and 49
(Provisional translation; the definitive translation will be published       EC), 60, 73b and 73d of the EC Treaty (now Articles 50 EC,
                   in the European Court Reports)                            56 EC and 58 EC), and 92 of the EC Treaty (now, after
                                                                                amendment, Article 87 EC)
                                                                                (2002/C 289/02)
In Case C-351/98, Kingdom of Spain (Agent: R. Silva Lapuerta)
v Commission of the European Communities (Agents: J. Guerra                                     (Language of the case: Finnish)
Fernández and D. Triantafyllou): Application for partial annul-
ment of Commission Decision 98/693/EC of 1 July 1998                         (Provisional translation; the definitive translation will be published
concerning the Spanish Plan Renove Industrial system of aid                                     in the European Court Reports)
for the purchase of commercial vehicles (August 1994 —
December 1996) (OJ 1998 L 329, p. 23), the Court (Sixth
Chamber), composed of: F. Macken, President of the Chamber,
C. Gulmann, J.-P. Puissochet (Rapporteur), V. Skouris and                    In Case C-136/00: Reference to the Court under Article 234
J.N. Cunha Rodrigues, Judges; S. Alber, Advocate General;                    EC by the Kuopion Hallinto-Oikeus (Finland) for a preliminary
L. Hewlett, Principal Administrator, for the Registrar, has given            ruling in the proceedings brought by Rolf Dieter Danner, on
a judgment on 26 September 2002, in which it:                                the interpretation of Articles 6 and 59 of the EC Treaty (now,
                                                                             after amendment, Articles 12 EC and 49 EC), 60, 73b and 73d
                                                                             of the EC Treaty (now Articles 50 EC, 56 EC and 58 EC)
1.    Annuls Articles 3 and 4 of Commission Decision 98/693/EC               and 92 of the EC Treaty (now, after amendment, Article 87
      of 1 July 1998 concerning the Spanish Plan Renove Industrial           EC), the Court (Fifth Chamber), composed of: P. Jann, President
      system of aid for the purchase of commercial vehicles (August          of the Chamber, S. von Bahr, D.A.O. Edward, A. La Pergola
      1994 — December 1996);                                                 and M. Wathelet (Rapporteur), Judges; F.G. Jacobs, Advocate


title: Case T-340/17: Action brought on 30 May 2017 — Japan Airlines v Commission

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/60

         Action brought on 30 May 2017 — Japan Airlines v Commission
   (Case T-340/17)
   (2017/C 239/73)
   Language of the case: English

      Parties

      Applicant: Japan Airlines Co. Ltd (Tokyo, Japon) (represented by: J.-F. Bellis and K. Van Hove, lawyers, and R. Burton, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 — Airfreight) in its entirety as far as the applicant is concerned;

               —

               in the alternative, in the exercise of its unlimited jurisdiction, reduce the fine imposed on the applicant; and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission violates the principle of ne bis in idem and Article 266 TFEU in finding the applicant liable for aspects of the infringement for which the Commission cleared the applicant of liability in the 2010 Decision and, in any event, violates the applicable limitation period by imposing a fine on the applicant in relation to those aspects and has demonstrated no legitimate interest in making a formal finding of infringement in relation to those aspects.

               2.

               Second plea in law, alleging that the Commission violates the principle of non-discrimination through the re-adoption of the contested decision in that the applicant finds itself in a less advantageous position than other addressees of the 2010 Decision against which the latter has become final and binding.

               3.

               Third plea in law, alleging that the Commission violates Article 101 TFEU and Article 53 EEA and the scope of its jurisdiction as well as the applicant’s rights of defence in finding the applicant liable for an infringement on intra-EEA routes and EU-Switzerland routes during a period when the Commission had no power to enforce Article 101 TFEU and Article 53 EEA in relation to airlines operating only on EEA-third country routes and the applicant’s conduct on EEA-third country routes was accordingly legal.

               4.

               Fourth plea in law, alleging that the Commission violates Article 101 TFEU and Article 53 EEA in finding that the applicant participated in one single and continuous infringement that included routes which the applicant did not serve and for which the applicant lacked the necessary legal rights to serve.

               5.

               Fifth plea in law, alleging that the Commission violates Article 101 TFEU and Article 53 EEA in asserting jurisdiction over inbound airfreight services on EEA-third country routes as such services are sold to customers located outside the EEA.

               6.

               Sixth plea in law, alleging that the Commission violates the applicant’s rights of defence and the principles of non-discrimination and proportionality in applying different standards of proof to different carriers.

               7.

               Seventh plea in law, alleging that the Commission violates the 2006 Fining Guidelines (1) and the principle of proportionality by including the relevant value of sales used as the basis for calculating the fine revenues derived from elements of price for airfreight services unrelated to the infringement set out in the contested decision.

               8.

               Eighth plea in law, alleging that the Commission violates the 2006 Fining Guidelines and the principle of legitimate expectations by including in the relevant value of sales used as the basis for calculating the fine revenues derived from airfreight services on inbound routes between EEA States and third countries.

               9.

               Ninth plea, alleging that the Commission violates the principle of proportionality in limiting the reduction in the fine granted to the applicant on account of the regulatory framework to 15 %.

               10.

               Tenth plea in law, alleging that the Commission violates the principles of non-discrimination and proportionality in as well as the applicant’s rights of defence failing to grant the applicant 10 % reduction in the fin on account of limited involvement in the infringement where such a reduction was granted to other addressees of the contested decision and 2010 decision that are in a position objectively similar to that of the applicant.

               11.

               Eleventh plea in law, alleging that the Court should rely on its unlimited jurisdiction and significantly reduce the fine.

      (1)  Guidelines on the method of setting fines imposed pursuant to Article 32(2)(a) of Regulation No 1/2003 (OJ C 210, p. 2).


               30.12.2006

               EN

               Official Journal of the European Union

               C 331/51

         (2006/C 331/113)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 326, 30.12.2006

   Past publications

      OJ C 310, 16.12.2006

      OJ C 294, 2.12.2006

      OJ C 281, 18.11.2006

      OJ C 261, 28.10.2006

      OJ C 249, 14.10.2006

      OJ C 237, 30.9.2006

   These texts are available on:

               EUR-Lex: http://eur-lex.europa.eu


title: Case T-259/06: Judgment of the Court of First Instance of 16 December 2008 — Torres v OHIM — Navisa Industrial Vinícola Española (MANSO DE VELASCO) (Community trade mark — Opposition proceedings — Application for the Community word mark MANSO DE VELASCO — Earlier national word mark VELASCO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/28

         Judgment of the Court of First Instance of 16 December 2008 — Torres v OHIM — Navisa Industrial Vinícola Española (MANSO DE VELASCO)
   (Case T-259/06) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark MANSO DE VELASCO - Earlier national word mark VELASCO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2009/C 32/51)
   Language of the case: Spanish
   Parties

      Applicant: Miguel Torres, SA (Vilafranca del Penedés, Spain) (represented by: E. Armijo Chávarri and A. Castán Pérez-Gómez, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Navisa Industrial Vinícola Española, SA (Montilla, Spain)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 29 June 2006 (Case R 865/2005-1) relating to opposition proceedings between Navisa Industrial Vinícola Española, SA and Miguel Torres, SA.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Miguel Torres SA to pay the costs.

      (1)  OJ C 29, 2.12.2006.


title: Case T-295/11: Judgment of the General Court of 12 September 2012 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy) (Community trade mark — Opposition proceedings — International registration designating the European Community — Application for the Community figurative mark duschy — Earlier Community figurative mark DUSCHO Harmony — Relative ground for refusal — Absence of likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Obligation to state the reasons on which the decision is based — Articles 75 and 76 of Regulation No 207/2009)

text:
               20.10.2012

               EN

               Official Journal of the European Union

               C 319/8

         Judgment of the General Court of 12 September 2012 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy)
   (Case T-295/11) (1)

   (Community trade mark - Opposition proceedings - International registration designating the European Community - Application for the Community figurative mark duschy - Earlier Community figurative mark DUSCHO Harmony - Relative ground for refusal - Absence of likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Obligation to state the reasons on which the decision is based - Articles 75 and 76 of Regulation No 207/2009)
   2012/C 319/14
   Language of the case: English

      Parties

      Applicant: Duscholux Ibérica, SA (Barcelona, Spain) (represented by: J. Carbonnel Callicó, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Duschprodukter i Skandinavien AB (Hisings Backa, Sweden) (represented initially by M. Jonson, and subsequently by A. Kyhlhammar, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 21 March 2011 (Case R 662/2010-1), relating to opposition proceedings between Duscholux Ibérica, SA and Duschprodukter i Skandinavien AB

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Duscholux Ibérica, SA to pay the costs, including those incurred by Duschprodukter i Skandinavien AB in the course of the proceedings before the Board of Appeal.

      (1)  OJ C 238, 13.8.2011.


title: Action brought on 5 January 1998 by Autotrasporti di Viola Claudio & C. SNC against the Commission of the European Communities (Case T-6/98)

text:
C 72/24               EN                 Official Journal of the European Communities                                     7.3.98
The applicant claims that the Court should:                         Pleas in law and main arguments adduced in support:
Ð annul Commission Decision C(97) 2735 final of                     The pleas in law and main arguments are similar to those
     30 July 1997,                                                  relied upon in Case T-288/97 Regione Friuli-Venezia
                                                                    Giulia v. Commission (1).
Ð in the alternative, annul Article 5 of that Decision              (1) OJ C 7, 10.1.1998, p. 25.
     inasmuch as it requires the Member State to recover
     the aid (granted as from 1 July 1990), together with
     the interest accrued as from the date on which the aid
     was paid,
Ð in any event, order the Commission of the European
                                                                    Action brought on 5 January 1998 by Siderca SAIC
     Communities to pay the costs.
                                                                       against the Commission of the European Communities
                                                                                (Case T-8/98)
Pleas in law and main arguments adduced in support:
                                                                                (98/C 72/55)
The pleas in law and main arguments are similar to those                           (Language of the case: English)
relied upon in Case T-288/97 Regione Friuli-Venezia
Giulia v. Commission (1).
                                                                    An action against the Commission of the European
(1) OJ C 7, 10.1.1998, p. 25.                                       Communities was brought before the Court of First
                                                                    Instance of the European Communities on 5 January 1998
                                                                    by Siderca SAIC, represented by Ian S. Forrester QC and
                                                                    Lord Lester of Herne Hill, with an address for service in
                                                                    Luxembourg at the Chambers of Aloyse May, 31,
                                                                    Grand'Rue.
Action brought on 5 January 1998 by Autotrasporti di
                                                                    The applicant claims that the Court should:
Viola Claudio & C. SNC against the Commission of the
                    European Communities
                         (Case T-6/98)                              Ð annul in whole or in part the Commission's Decision
                                                                         of 6 October 1997 addressed to Siderca SAIC,
                          (98/C 72/54)
                                                                    Ð take such other or further action as justice may
                (Language of the case: Italian)                          require, and
An action against the Commission of the European                    Ð order the Commission to pay the costs.
Communities was brought before the Court of First
Instance of the European Communities on 5 January 1998
by Autotrasporti di Viola Claudio & C. SNC, represented             Pleas in law and main arguments adduced in support:
by Claudio Mussato, of the Udine Bar, with an address for
service at 4 Via Dante, Udine.
                                                                    The shares in the applicant's company, a major Argentine
                                                                    manufacturer of oil company tubular goods and
The applicant claims that the Court should:                         mechanical pipe and tube, are ultimately held by the
                                                                    holding company San Faustin NV. The applicant acquired
                                                                    in 1993, through a wholly-owned subsidiary, a 27 % (later
Ð annul Commission Decision C(97) 2735 final of                     increased to 30 %) interest in Tubos de Acero de Mexico
     30 July 1997,                                                  SA (TAMSA), Mexico's only producers of oil company
                                                                    tubular goods.
Ð in the alternative, annul Article 5 of that Decision
     inasmuch as it requires the Member State to recover            Dalmine (1) is a former subsidiary of the Italian State steel
     the aid (granted as from 1 July 1990), together with           company Ilva, and manufactures a wide range of pipe and
     the interest accrued as from the date on which the aid         tube products. The applicant holds, via a wholly owned
     was paid,                                                      subsidiary, 47 % of the shares in Dalmine, in which it
                                                                    acquired an interest in 1996. The defendant is
                                                                    investigating allegations of a cartel among EU steel pipe
Ð in any event, order the Commission of the European                and tube producers going back to the early 1980s and the
     Communities to pay the costs.                                  possibility that, in addition to the core of European


title: Case T-6/10: Judgment of the General Court of 22 May 2012 — Sviluppo Globale v Commission (Public service contracts — Call for tenders — Support for the customs and tax authorities in Kosovo — Rejection of a tenderer’s bid — Act not amenable to review — Confirmatory act — Inadmissibility — Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the call for tenders — Partial refusal of access — Exception concerning the protection of the commercial interests of a third party — Inadequate statement of reasons)

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/18

         Judgment of the General Court of 22 May 2012 — Sviluppo Globale v Commission
   (Case T-6/10) (1)

   (Public service contracts - Call for tenders - Support for the customs and tax authorities in Kosovo - Rejection of a tenderer’s bid - Act not amenable to review - Confirmatory act - Inadmissibility - Access to documents - Regulation (EC) No 1049/2001 - Documents relating to the call for tenders - Partial refusal of access - Exception concerning the protection of the commercial interests of a third party - Inadequate statement of reasons)
   2012/C 194/28
   Language of the case: Italian

      Parties

      Applicant: Sviluppo Globale GEIE (Rome, Italy) (represented by: F. Sciaudone, R. Sciaudone and A. Neri, lawyers)

      Defendant: European Commission (represented by: P. Costa de Oliveira and F. Erlbacher, acting as Agents, and P. Manzini, lawyer)

      Re:

   Application, first, for annulment of the Commission’s decision of 10 November 2009 rejecting the tender submitted by the consortium of which the applicant is a member in call for tenders EuropAid/127843/D/SER/KOS for the provision of support services to the customs and tax authorities in Kosovo (OJ 2009/S 4-003683) and, second, for annulment of the Commission’s decision of 26 November 2009 refusing the consortium access to certain documents relating to the call for tenders.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action as inadmissible in so far as it is directed against the Commission’s decision of 10 November 2009 rejecting the tender submitted by the consortium of which the applicant is a member in call for tenders EuropAid/127843/D/SER/KOS for the provision of support services to the customs and tax authorities in Kosovo.

               2.

               Annuls the Commission’s decision of 26 November 2009 concerning access to certain documents relating to that call for tenders, in so far as it refuses to grant access, in the disclosed version of the evaluation report, to the scores awarded by the evaluation committee as set out on pages 3 to 5 of that report.

               3.

               Dismisses the action as to the remainder.

               4.

               Dismissed the applicant’s application for the instigation of measures of inquiry.

               5.

               Orders Sviluppo Globale GEIE to bear its own costs relating to the main proceedings and to pay three quarters of the costs incurred by the Commission in those proceedings. Orders the Commission to bear one quarter of its costs relating to the main proceedings.

               6.

               Orders Sviluppo Globale to bear all the costs relating to the application for interim relief in Case T-6/10 R.

      (1)  OJ C 51, 27.2.2010.


title: Case T-262/10: Judgment of the General Court of 25 October 2011 — Microban International and Microban (Europe) v Commission (Public health — List of additives which may be used in the manufacture of plastic materials and articles intended to come into contact with foodstuffs — Withdrawal by the original applicant of the application for inclusion of an additive on the list — Commission decision not to include 2,4,4’-trichloro-2’-hydroxydiphenyl ether in the list — Actions for annulment — Admissibility — Regulatory act — Whether directly concerned — No implementing measures — Legal basis)

text:
               3.12.2011

               EN

               Official Journal of the European Union

               C 355/19

         Judgment of the General Court of 25 October 2011 — Microban International and Microban (Europe) v Commission
   (Case T-262/10) (1)

   (Public health - List of additives which may be used in the manufacture of plastic materials and articles intended to come into contact with foodstuffs - Withdrawal by the original applicant of the application for inclusion of an additive on the list - Commission decision not to include 2,4,4’-trichloro-2’-hydroxydiphenyl ether in the list - Actions for annulment - Admissibility - Regulatory act - Whether directly concerned - No implementing measures - Legal basis)
   2011/C 355/33
   Language of the case: English

      Parties

      Applicants: Microban International (Huntersville, North Carolina, United States) and Microban (Europe) Ltd (Cannock, United Kingdom) (represented by: M. Sánchez Rydelski, lawyer)

      Defendant: European Commission (represented by: L. Pignataro and T. Scharf, Agents)

      Re:

   ACTION for annulment of Commission Decision 2010/169/EU of 19 March 2010 concerning the non-inclusion of 2,4,4’-trichloro-2’-hydroxydiphenyl ether in the Union list of additives which may be used in the manufacture of plastic materials and articles intended to come into contact with foodstuffs under Directive 2002/72/EC (OJ 2010 L 75, p. 25).

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision 2010/169/EU of 19 March 2010 concerning the non-inclusion of 2,4,4’-trichloro-2’-hydroxydiphenyl ether in the Union list of additives which may be used in the manufacture of plastic materials and articles intended to come into contact with foodstuffs under Directive 2002/72/EC.

               2.

               Orders the European Commission to pay its own costs and those incurred by Microban International Ltd and Microban (Europe) Ltd.

      (1)  OJ C 221, 14.8.2010.


title: Case C-454/05P: Appeal brought on  22 December 2005  by the Republic of Austria against the judgment delivered on  5 October 2005  by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-035/04

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/20

         Appeal brought on 22 December 2005 by the Republic of Austria against the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-035/04
   (Case C-454/05P)
   (2006/C 60/40)
   Language of the case: German
   An appeal against the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-235/04 was brought before the Court of Justice of the European Communities on 22 December 2005 by the Republic of Austria, represented by Dr. Harald Dossi, acting as Agent, with an address for service in Luxembourg.
   The appellant claims that the Court should:

               1.

               set aside the judgment delivered on 5 October 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Joined Cases T-366/03 and T-235/04, Land Oberösterreich and Republic of Austria v Commission of the European Communities, (1) concerning annulment of Commission Decision 2003/653/EC of 2 September 2003 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty, (2)

               2.

               order Court of First Instance of the European Communities to pay the costs,

               3.

               annul the Commission's Decision, or in the alternative, refer the case back to the Court of First Instance for judgment.

         Pleas in law and main arguments
   The appellant contends that in adopting its contested judgment of 5 October 2005, the Court of First Instance made a procedural error which both prejudiced the interests of the Republic of Austria and violated Community law.
   According to the appellant, the content of the contested judgment is concerned only with the constituent element of the ‘specific problem’; the other elements required under Article 95(5) EC were not examined further after the Court formed the view that there was no problem specific to the applicant Member State. The Court did not, however, examine the question of the ‘specific problem’ with the level of rigour that would have been appropriate to its importance for the outcome of the proceedings. This failure to make a proper assessment of the arguments on this point amounts, first, to a breach of the principle of the right to a fair hearing, and secondly, to a breach of the duty to provide reasons, which in each case constitutes a procedural irregularity.
   The scientific risk assessment is above all of particular importance in the field of environmental protection, not least in the application of the precautionary principle, and requires, in the context of a procedure under Article 95(5) EC, a thorough examination of the scientific argumentation, particularly when there is even the slightest doubt as to whether the level of protection envisaged by a harmonisation measure is sufficient. However, neither the Commission nor, subsequently, the Court of First Instance analysed the content of the arguments advanced by the Republic of Austria or performed a thorough examination of the necessity of the notified measure for environmental protection. The decision of the Commission and the judgment of the Court are based on a study by the EFSA (European Food Safety Authority), which dealt only marginally — and in no way in specific relation to the Land Oberösterreich — with the key element of the Austrian submission, the question of the co-existence of genetically modified and non-modified cultures. At no point was there any examination, in the light of the precautionary principle, of the scientific evidence put forward.
   Finally the applicant submits that the earlier case-law of the Court of Justice is not inconsistent with the need to conduct proceedings in which all parties are heard in a procedure under Article 95 EC and to this extent the legal view of the Court of First Instance constitutes a breach of Community law. Since failure to conduct such proceedings violates the right to a fair hearing, the contested decision of the Commission should therefore already have been annulled on this ground.

      (1)  OJ 2005 C 296 of 26 November 2005.

      (2)  OJ 2003 L 230, p. 34.


title: Case C-166/06: Reference for a preliminary ruling from the Tribunale civile di Bolzano lodged on  28 March 2006  — Eurodomus SrL v Comune di Bolzano

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/7

         Reference for a preliminary ruling from the Tribunale civile di Bolzano lodged on 28 March 2006 — Eurodomus SrL v Comune di Bolzano
   (Case C-166/06)
   (2006/C 154/15)
   Language of the case: Italian
   Referring court
   Tribunale civile di Bolzano (Italy)
   Parties to the main proceedings

      Applicant: Eurodomus SrL

      Defendant: Comune di Bolzano
   Questions referred

               1.

               Does a regulatory authority which, in the exercise of its powers, may affect the substantive economic position of the applicant, infringe Community law by introducing legal measures which disapply a decision of an administrative court that is res judicata?

               2.

               Did the Provincia Autonoma di Bolzano infringe Community law by adopting Article 107 c. 25 LP No 13/1997, which, by amending town planning legislation, removed the consent for commercial purposes granted in respect of buildings constructed with building consent in accordance with previous town planning legislation under which consent for commercial purposes had been granted for those buildings?

               3.

               By adopting and implementing the Provincia Autonoma di Bolzano's obstructive measure ‘tout court’, did the Commissario del governo italiano also infringe Community law?


title: Case C-48/16: Judgment of the Court (Fourth Chamber) of 17 May 2017 (request for a preliminary ruling from the Okresný súd Dunajská Streda — Slovakia) — ERGO Poist’ovňa a.s. v Alžbeta Barlíková (Reference for a preliminary ruling — Self-employed commercial agents — Directive 86/653/EEC — Commercial agent’s commission — Article 11 — Partial non-execution of the contract between the third party and the principal — Consequences for the right to commission — Concept of ‘reason for which the principal is to blame’)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/11

         Judgment of the Court (Fourth Chamber) of 17 May 2017 (request for a preliminary ruling from the Okresný súd Dunajská Streda — Slovakia) — ERGO Poist’ovňa a.s. v Alžbeta Barlíková
   (Case C-48/16) (1)

   ((Reference for a preliminary ruling - Self-employed commercial agents - Directive 86/653/EEC - Commercial agent’s commission - Article 11 - Partial non-execution of the contract between the third party and the principal - Consequences for the right to commission - Concept of ‘reason for which the principal is to blame’))
   (2017/C 239/14)
   Language of the case: Slovak

      Referring court

   Okresný súd Dunajská Streda

      Parties to the main proceedings

      Applicant: ERGO Poist’ovňa a.s.

      Defendant: Alžbeta Barlíková

      Operative part of the judgment

               1.

               The first indent of Article 11(1) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as meaning that it covers not only cases of complete non-execution of the contract concluded between the principal and the third party, but also cases of partial non-execution of that contract, such as non-compliance with the volume of transactions or the duration envisaged by that contract.

               2.

               Article 11(2) and (3) of Directive 86/653 must be interpreted as meaning that the clause of a contract for commercial agency pursuant to which the agent is required to refund, on a pro-rata basis, a part of his commission in the event of partial non-execution of the contract concluded between the principal and the third party does not constitute a ‘derogation to the detriment of the commercial agent’, for the purposes of that Article 11(3), if the part of the commission subject to the refund obligation is proportionate to the extent to which that contract has not been executed and on condition that that non-execution is not due to a reason for which the principal is to blame.

               3.

               The second indent of Article 11(1) of Directive 86/653 must be interpreted as meaning that the concept of ‘a reason for which the principal is to blame’ does not relate only to the legal reasons which led directly to the termination of the contract concluded between the principal and the third party, but covers all the legal and factual circumstances for which the principal is to blame, which are the cause of the non-execution of that contract.

      (1)  OJ C 136, 18.4.2016.


title: Case T-256/12: Action brought on 13 June 2012 — Hautau v Commission

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/31

         Action brought on 13 June 2012 — Hautau v Commission
   (Case T-256/12)
   2012/C 227/53
   Language of the case: German

      Parties

      Applicant: Hautau GmbH (Helpsen, Germany) (represented by: C. Peter, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Annul Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 — Mountings for windows and window-doors — in so far as it concerns the applicant;

               —

               in the alternative, reduce, as appropriate, the fine imposed on the applicant;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First, the decision relating to the fine is erroneously based on the assumption of an infringement of Article 101 TFEU, which cannot be the case, however, since discussions took place in the full knowledge and at the request of the other party in the market.

               2.

               Second, the decision relating to the fine is erroneously based on the assumption that mountings other than ‘turn-and-tilt’ mountings were the subject of the discussions between the participating undertakings.

               3.

               Third, even if an infringement of Article 101 TFEU were to have occurred, the decision relating to the fine is in any event erroneously based on the assumption that special mountings were also affected by the anti-competitive conduct.

               4.

               Fourth, the assumption that the applicant participated in any anti-competitive collusion beyond the territory of the Federal Republic of Germany is also mistaken. The most that might be envisaged with regard to the applicant would be an infringement of Article 101(1) TFEU in respect of the Italian and Greek market for the year 2007.

               5.

               Fifth, the applicant also complains, in the alternative, further to the second to fourth pleas in law, that account was incorrectly taken, in the calculation of the fine, of turnover in respect of sliding mountings or special mountings, and of turnover not achieved in Germany. As a result of such turnover being included, the turnover established by the defendant for the purpose of establishing the basic amount was much too high. Consequently there was an infringement of Article 23(3) of Regulation No 1/2003.

               6.

               Sixth, the applicant also complains in the alternative of an error of assessment in the calculation of the fine, with regard to the gravity of the infringement and the level of the increase for deterrence (‘entry fee’). The percentage applied in the applicant’s case in respect of the gravity of the infringement or the increase for deterrence was excessively high. To that extent also, there has been an infringement of Article 23(3) of Regulation No 1/2003.

               7.

               Seventh, the applicant further complains in the alternative of an infringement of Article 23(3) of Regulation No 1/2003 on the basis of the account erroneously taken of the turnover which the applicant achieved together with other members of the cartel.

               8.

               Eighth, the decision is, moreover, vitiated by a grave defect in reasoning. It must therefore be annulled in its entirety on account of an infringement of Article 296 TFEU and consequential breach of the applicant’s rights of defence, irrespective of whether or not the applicant was involved in collusion contrary to Article 101 TFEU. It is not possible for the defect to be remedied during the ongoing proceedings.

               9.

               Ninth, the Commission erroneously proceeds on the assumption that the applicant participated in the (allegedly) anti-competitive collusion from 16 November 1999 to 3 July 2007. The complaint of a single and continuous infringement from 16 November 1999 to 3 July 2007 cannot, however, be sustained owing to an independent price increase for 2001 and the absence of agreement in respect of 2002. Thus, at most, the decision could include the period from 2003. However, in so far as it is asserted that the applicant engaged in anti-competitive conduct beyond the German market, the most that might be attributed to the applicant would be an infringement of Article 101 TFEU in 2007. The applicant therefore takes the view that there is no basis for any assumption, with regard to the applicant, of an infringement lasting seven years and seven months.


title: Joined Cases F-137/12, F-138/12, F-139/12 and F-141/12: Order of the Civil Service Tribunal (Third Chamber) of 13 December 2013 — Van Oost, Ibarra de Diego, Theodoridis and Hotz v Commission (Civil service — Officials — Promotion — Certification procedure 2010-2011 — Exclusion from the list of certified officials — Amicable settlement on the initiative of the Tribunal — Time-limit for lodging a complaint — Complaint out of time — Concept of excusable error — Diligence required of a normally well-informed official — Information obtained by telephone — Proof — Inadmissibility)

text:
               1.2.2014

               EN

               Official Journal of the European Union

               C 31/21

         Order of the Civil Service Tribunal (Third Chamber) of 13 December 2013 — Van Oost, Ibarra de Diego, Theodoridis and Hotz v Commission
   (Joined Cases F-137/12, F-138/12, F-139/12 and F-141/12) (1)

   (Civil service - Officials - Promotion - Certification procedure 2010-2011 - Exclusion from the list of certified officials - Amicable settlement on the initiative of the Tribunal - Time-limit for lodging a complaint - Complaint out of time - Concept of excusable error - Diligence required of a normally well-informed official - Information obtained by telephone - Proof - Inadmissibility)
   2014/C 31/36
   Language of the cases: French

      Parties

      Applicants: Fabrice Van Oost (Ville Pommerœul, Belgium), Maria Belén Ibarra de Diego (Alicante, Spain), Nicolaos Theodoridis (Soignies, Belgium) and Margarita Hotz (Brussels, Belgium), (represented by: S. Pappas, lawyer)

      Defendant: European Commission (represented by: G. Berscheid and C. Berardis-Kayser, acting as Agents)

      Re:

   Applications for annulment of the decisions of EPSO not to include the applicants in the list of persons who have passed the tests at the end of the training programme which is part of the certification procedure, and claims for damages.

      Operative part of the order

               1.

               Cases F-137/12, F-138/12 and F-139/12 are removed from the Register of the Tribunal.

               2.

               The parties in Cases F-137/12, F-138/12 and F-139/12 shall bear their own costs in accordance with their agreement.

               3.

               The action in Case F-141/12 is dismissed as inadmissible.

               4.

               Ms Hotz shall bear her own costs and pay those incurred by the European Commission in Case F-141/12.

      (1)  OJ C 26, 26.1.2013, pp. 75 and 76.


title: Action brought on 27 February 1996 by Elsa De Persio against Commission of the European Communities (Case T-23/96)

text:
4 . 5 . 96            EN                  Official Journal of the European Communities                                No C 133/25
reasoning for its decision, thereby infringing Article 7 ( 3 ) of    He maintains, first, that, in view of his having been turned
Council Decision 93/73 1 /EC and Article 190 of the EC               down in favour of a candidate who did not meet the
Treaty.                                                              minimum requirements as to specific knowledge and
                                                                     experience, in disregard of Article 7 of the Staff Regulations,
                                                                     the appointment in issue was not in the interest of
                                                                     the service . Consequently, that appointment appears
                                                                     necessarily to be vitiated by misuse of powers.
                                                                     Moreover, there has been a breach of the principle of the
Action brought on 21 February 1996 by Antonio Giannini               protection of legitimate expectations, in that, contrary to
  against the Commission of the European Communities                 the Commission's current practice in such matters, the
                        ( Case T-21 /96 )                            description of the post to be filled contained a serious
                          ( 96/C 133/57)                             anomaly, since, by contrast with the descriptions normally
                                                                     given in respect of almost all posts advertised by the
                                                                     Commission, it made no reference to the tasks to be carried
                (Language of the case: French)                       out, nor to the qualifications needed for those tasks in terms
                                                                     of knowledge and experience. Is follows that, in the present
An action against the Commission of the European                     case, the Commission's conduct is compatible neither with
Communities was brought before the Court of First                    the aim of the vacancy notice, which is to provide interested
Instance of the European Communities on 21 February                  parties with detailed information concerning the
1996 by Antonio Giannini, residing in Brussels, represented          qualifications required in order to apply for the post in
by Marc Dallemagne and Carlo Locchi, of the Brussels Bar,            question, nor with the principle that officials must be able to
with an address for service in Luxembourg at the Chambers            rely on a practice regularly followed by the administrative
of Jeannot Biver, 7 Côte d'Eich.                                     authority.
                                                                     Lastly, the applicant pleads the commission in the present
The applicant claims that the Court should :                         case of a manifest error of appreciation, based on disregard
                                                                     of Articles 4, 29 ( 1 ) and 45 of the Staff Regulations and of
— annul the Commission's decision rejecting the                      the vacancy notice itself. In concrete terms, it is apparent
     applicant's application for post COM/151/94 , which             from an examination of the merits of the ultimately
     was notified to the applicant on 28 April 1995 ,                successful candidate that his application did not meet the
                                                                     minimum qualifications required by the vacancy notice . The
— annul the defendant's decision appointing another                  person in question has no experience in the negotiation or
     candidate to the grade A3 post of Head of Unit DG I.D.l         management of international agreements relating to textiles.
     'Negotiation and management of textile agreements;              Nor does he possess the knowledge needed in order to
     clothing and other industries' pursuant to vacancy              accomplish the tasks entrusted to that unit. It follows that
     notice COM/151 /94, which was brought to the                    the appointing authority exceeded the parameters of the
     applicant's knowledge on 3 May 1995 ,                           said vacancy notice .
— annul the decision rejecting the complaint submitted by
     the applicant on 25 July 1995 , which was brought to his
     knowledge on 3 May 1995 ,
— order the defendant to pay the applicant ECU 5 000 by              Action brought on 27 February 1996 by Eisa De Persio
     way of compensation for the non-material damage                     against Commission of the European Communities
     suffered by him, subject to increase or decrease during                                  ( Case T-23/96 )
     the course of the proceedings,
                                                                                ( 96/C 133/58 )
— order the defendant to pay the applicant ECU 15 000 by
     way of compensation for the economic damage suffered                           (Language of the case: Italian)
     by him, subject to increase or decrease during the course
     of the proceedings,                                             An action against the Commission of the European
                                                                     Communities was brought before the Court of First
— order the defendant to pay all of the costs .                      Instance on 27 February 1996 by Eisa De Persio, an official
                                                                     of the Commission of the European Communities,
Pleas in law and main arguments                                      represented by Giovanni Petroni and Franco Giampietro, of
                                                                     the Rome Bar, with an address for service in Luxembourg at
                                                                     the chambers of Gilles Bounéou, 15 Avenue du Bois .
The applicant, a grade A4 Commission official, contests the
rejection of his application for the grade A3 post of Head of
Unit DG I.D.l 'Negotiation and management of textile                 The applicant claims that the Court should:
agreements; clothing and other industries', particularly in
the light of the vacancy notice on the basis of which the post       — declare unlawful the ousting of the applicant from her
in question was filled .                                                 duties and the pressure and intimidation intended to
 ---pagebreak--- No C 133/26         EN                  Official Journal of the European Communities                                           4 . 5 . 96
  deprive her of her A post at the Office for Official             Pleas in law and main arguments
  Publications of the European Communities ( OP ),
                                                                   The applicant, a Commission official originally recruited in
— declare unlawful and annul Decision No 010466 of                 Category LA and then placed at the disposal of the Office for
  22 December 1995 signed by the Director General for              Official Publications of the European Communities to take
  Personnel and Administration transferring the applicant          charge of the Italian version of Celex, at which time she had
  from    the   OP   to  the   translation     service    of the   to perform duties appropriate to Category A, objects to the
  Commission of the European Communities with effect               decision of the Director of the OP whereby she was
  from 16 January 1996 ,                                           retransferred to the Translation Directorate .
— declare unlawful, in the total absence of any statement of       She states in that connection that, as from the date when she
  reasons, the administration's implied rejection of her           started work in the OP, the applicant has in fact carried out
  complaint No 689/95 ,                                            the duties involved in being responsible for the methodology
                                                                   of entering information into Celex and, at least at the early
                                                                   stage , she was a member of the Celex Interinstitutional
                                                                   Group . However the administration never fixed the starting
— declare unlawful and annul the express decision                  date for calculating her seniority in Grade A 5 , making her
  rejecting her complaint No R 689/96 , notified belatedly         acceptance of a transfer to Luxembourg a precondition for
  to the applicant on 18 January 1996 by delivery of               regularization of her administrative position .
  memorandum No 010299 of 21 December 1995 , signed
  by the Director General for Personnel ,
                                                                   The applicant alleges, first, a breach of the principle of
                                                                   the protection of legitimate expectations and of the
— declare that the Commission decision of 4 February               administration's duty to have regard to the interests of
  1994, published in the Special Issue of 'Administrative          officials in so far as the administration's inertia allowed the
  Notices' on 1 1 February 1994 in French and on 15 April          OP de facto to oust her from her duties even though it would
  1994 in the other languages, does not constitute                 have been in the interests of the service to allow her to
  adoption of the implementing provisions provided for,            continue to discharge those functions .
  where necessary, by Article 11 ( 4 ) of Regulation ( EEC,
  Euratom, ECSC No 3947/92 and in any event declare
  that they cannot be relied on as against the applicant,          The applicant also refers to what she calls the manifest
                                                                   illogicality and insufficient and misconceived statement of
                                                                   reasons for Decision No 010466/95 of the Director General
— declare that the applicant belongs to Category A, in             for Personnel . Moreover, the applicant submits that the
  Grade A 5 , with effect from 1 January 1993 , the date of        decision in question , even if it had been adopted by the
  entry into force of Regulation ( EEC, Euratom, ECSC )            competent appointing authority, is in any event tainted by
  No 3947/92 ,                                                     misuse of powers, being intended to legitimize the de facto
                                                                   ousting of the applicant from her duties and from the A post
                                                                   contained in the OP organization chart.
— definitively return the applicant to the discharge of her
  duties at the OP, as such duties are described in her staff
  report assessments for the period 1 October 1992 to              Furthermore, according to the applicant, the criterion
  30 June 1993 ,                                                   according to which the derogation provided for in Article 1 1
                                                                   of Regulation ( EEC, Euratom, ECSC ) No 3947/92 is
                                                                   applicable only to posts re-advertised as vacant after
— examine the legality of Article 45 ( 2 ), ( 3 ) and ( 4 ) of the publication of the general implementing provisions of
  Staff Regulations of officials of the European                   4 February 1994 cannot be regarded as a basis for a transfer.
  Communities in the light of the general principles of law        Those provisions do not cover the case of a transfer from the
  recognized by Article F. 2 of the Treaty on European             Celex and Eurobases departments . They were issued a year
  Union ,                                                          later in relation to entirely different circumstances, in order
                                                                   to meet various staff needs in relation to individual posts
                                                                   and not for the staff requirements of two entire
                                                                   departments .
— order the defendant to pay damages for the non-material
  damage suffered by the applicant as a result of the
  administration's unlawful conduct,
                                                                   Lastly, the applicant claims that Article 45 ( 2 ), ( 3 ) and ( 4 ) of
                                                                   the Staff Regulations are unlawful having regard to the
                                                                   general principles of law.
— order the defendant to pay the costs of the proceedings in
  their entirety and the costs incurred by the applicant, in
  particular in respect of travel, accommodation and fees
  of lawyers and costs of providing an address for service,
  pursuant to the rules of Procedure .


title: Case T-106/12: Judgment of the General Court of 3 July 2013 — Cytochroma Development v OHIM — Teva Pharmaceutical Industries (ALPHAREN) (Community trade mark — Opposition proceedings — Application for the Community word mark ALPHAREN — Earlier national word marks ALPHA D3 — Relative ground for refusal — Compliance by OHIM with a judgment annulling a decision of its Boards of Appeal — Article 65(6) of Regulation (EC) No 207/2009 — Composition of the Boards of Appeal — Article 1(d) of Regulation (EC) No 216/96)

text:
               10.8.2013

               EN

               Official Journal of the European Union

               C 233/7

         Judgment of the General Court of 3 July 2013 — Cytochroma Development v OHIM — Teva Pharmaceutical Industries (ALPHAREN)
   (Case T-106/12) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark ALPHAREN - Earlier national word marks ALPHA D3 - Relative ground for refusal - Compliance by OHIM with a judgment annulling a decision of its Boards of Appeal - Article 65(6) of Regulation (EC) No 207/2009 - Composition of the Boards of Appeal - Article 1(d) of Regulation (EC) No 216/96)
   2013/C 233/11
   Language of the case: English

      Parties

      Applicant: Cytochroma Development, Inc. (Saint Michael, Barbados) (represented by: S. Malynicz, Barrister, and A. Smith, Solicitor)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Teva Pharmaceutical Industries Ltd (Jerusalem, Israel)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 2 December 2011 (Case R 1235/2011-1), relating to opposition proceedings between Teva Pharmaceutical Industries Ltd and Cytochroma Development, Inc.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 2 December 2011 (Case R 1235/2011-1);

               2.

               Orders OHIM to pay the costs.

      (1)  OJ C 138, 12.5.2012.


title: Case T-41/16: Action brought on 28 January 2016 — Cyprus Turkish Chamber of Industry and Others v Commission

text:
               4.4.2016

               EN

               Official Journal of the European Union

               C 118/34

         Action brought on 28 January 2016 — Cyprus Turkish Chamber of Industry and Others v Commission
   (Case T-41/16)
   (2016/C 118/39)
   Language of the case: English

      Parties

      Applicants: Cyprus Turkish Chamber of Industry (Nicosia, Cyprus), Animal Breeders Association (Nicosia), Milk and Oil Products Production and Marketing Cooperative Ltd. (Nicosia), Süt Urünleri İmalatçulari Birliği Milk Processors Association (Nicosia) and Fatma Garanti (Güzelyurt, Cyprus) (represented by: B. O’Connor, Solicitor, S. Gubel and E. Bertolotto, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul Commission Decision Ares(2015)5171539 of 18 November 2015 and Commission Decision Ares(2016)220922 of 15 January 2016 in relation to the opposition procedures concerning the application for registration of ‘ΧΑΛΛΟΥΜΙ’ (HALLOUMI)/‘HELLIM’ (ΠΟΠ) (CY-PDO-0005-01243);

               —

               declare the illegality of Articles 49, 50, 51 and 52 of Regulation (EU) No 1151/2012, and the inapplicability of those provisions in the case at hand, insofar as they do not provide for a system ensuring the respect of the fundamental rights of the Applicants;

               —

               order the Commission to pay the costs of the action.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the contested Commission decisions are illegal insofar as they exclude the applicants from the procedure for the registration of Halloumi/Hellim as a protected designation of origin in the European Union.

               2.

               Second plea in law, alleging that the contested Commission decisions are illegal insofar as they breach the principle of equal treatment and non-discrimination.

               3.

               Third plea in law, alleging that Articles 49, 50, 51 and 52 of Regulation (EU) No 1151/2012 (1) are illegal and should be declared inapplicable insofar they do not provide for a system ensuring the respect of the fundamental rights of the applicants.

      (1)  Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ L 343, p. 1)


title: Case T-473/15: Judgment of the General Court of 16 March 2017 — Capella v EUIPO — Abus (APUS) (EU trade mark — Opposition proceedings — Application for the EU word mark APUS — Earlier national word mark ABUS — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Likelihood of confusion — Successive restrictions of the trade mark application before the Board of Appeal — Article 43(1) of Regulation No 207/2009 — Competence of the Board of Appeal — Article 64(1) of Regulation No 207/2009 — Right to be heard — Article 75, second sentence, of Regulation No 207/2009 — Rule 13(3) of Regulation (EC) No 2868/95)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/37

         Judgment of the General Court of 16 March 2017 — Capella v EUIPO — Abus (APUS)
   (Case T-473/15) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU word mark APUS - Earlier national word mark ABUS - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009 - Likelihood of confusion - Successive restrictions of the trade mark application before the Board of Appeal - Article 43(1) of Regulation No 207/2009 - Competence of the Board of Appeal - Article 64(1) of Regulation No 207/2009 - Right to be heard - Article 75, second sentence, of Regulation No 207/2009 - Rule 13(3) of Regulation (EC) No 2868/95))
   (2017/C 144/49)
   Language of the case: German

      Parties

      Applicant: Capella EOOD (Sofia, Bulgaria) (represented by: F. Henkel, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: S. Hanne, Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Abus August Bremicker Söhne KG (Wetter, Germany) (represented by: G. Hallwachs, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 2 June 2015 (Case R 117/2014-4), relating to opposition proceedings between Abus August Bremicker Söhne and Capella.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 June 2015 (Case R 117/2014-4);

               2.

               Orders EUIPO, in addition to bearing its own costs, to pay those incurred by Capella EOOD;

               3.

               Declares that Abus August Bremicker Söhne KG is to bear its own costs.

      (1)  OJ C 328, 5.10.2015.


title: Case F-24/15: Action brought on 11 February 2015 — ZZ v Council

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/43

         Action brought on 11 February 2015 — ZZ v Council
   (Case F-24/15)
   (2015/C 127/61)
   Language of the case: French

      Parties

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

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the decision rejecting the applicant’s request for reclassification of his contract as a member of the contract staff in function group I into a contract as a member of the temporary staff or, alternatively, into a contract as a member of the contract staff in function group III, and the claim for compensation for the non-material and material damage allegedly suffered.

      Form of order sought

               —

               Annul the decision of the authority empowered to conclude contracts of 11 April 2014, refusing the applicant’s request for reclassification of his contract as a member of the contract staff in function group I into a contract as a member of the temporary staff or, alternatively, into a contract as a member of the contract staff in function group III and the implied decision confirming the rejection of the complaint brought under Article 91(2) of the Staff Regulations;

               —

               order the defendant to pay damages, with default and compensatory interest at 6,75 % for the material and non-material damage suffered;

               —

               in any event, order the defendant to pay the costs of the proceedings.


title: Case C-436/07 P: Appeal brought on 14 September 2007 by the Commission of the European Communities against the judgment delivered on 12 July 2007 in Case T-312/05 Commission of the European Communities v Efrosini Alexiadou

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/39

         Appeal brought on 14 September 2007 by the Commission of the European Communities against the judgment delivered on 12 July 2007 in Case T-312/05 Commission of the European Communities v Efrosini Alexiadou

   (Case C-436/07 P)
   (2007/C 269/67)
   Language of the case: Greek
   Parties

      Appellant: Commission of the European Communities (represented by: D. Triandafillou)

      Other party to the proceedings: Evfrosini Alexiadou
   Form of order sought
   The appellant asks the Court to:

               —

               set aside the judgment of the Court of First Instance of 12 July 2007 in Case T-312/05 Commission of the European Communities v Alexiadou which was notified to the Commission on 18 July 2007;

               —

               uphold the Commission's claims in its action;

               —

               order the respondent to pay the costs of the appeal and of the proceedings before the Court of First Instance.

         Pleas in law and main arguments
   The Court of First Instance misinterpreted the general conditions of the contract (law of the parties) and in particular the provision concerning financial audit which refers to audit in a loose way as a mere possibility. Another provision which was relied upon of its own motion by the Court of First Instance does not even refer to audit, although it concerns defective performance of a contract. The requirement to carry out an audit thus proves to be independent of the contractual provision relied upon.
   In any event, financial audit could not be required if there was nothing to audit, since nobody is bound to do the impossible and contractual provisions must be construed in such a way as to ensure practical effectiveness.
   The principle of sound budgetary management requires that the Commission should not carry out audits without reason. The Court of First Instance excluded at the outset application of the principles of good faith and commercial usage which could have offered guidance in its interpretation.
   Since it gave judgment by default, the Court of First Instance cannot blame the Commission for not explaining some of its arguments (in particular the preceding argument above), without infringing the principle of judicial protection.


title: Judgment of the Court (Fifth Chamber) of 23 November 2000 in Case C-135/99 (reference for a preliminary ruling from the Bundessozialgericht): Ursula Elsen v Bundesversicherungsanstalt für Angestellte (Social security for migrant workers — Regulation (EEC) No 1408/71 — Articles 3 and 10 and Annex VI, Section C, point 19 — Old-age insurance — Validation of periods of child-rearing completed in another Member State)

text:
C 79/2                   EN                     Official Journal of the European Communities                                          10.3.2001
address for service in Luxembourg at the Chambers of Elvinger,             pending before that court between Ursula Elsen and Bundesver-
Hoss et Prussen, 15 Côte d’Eich — appeal against the judgment              sicherungsanstalt für Angestellte — on the interpretation of
of the Court of First Instance of the European Communities                 Article 51 of the EC Treaty (now, after amendment, Article 42
(First Chamber, Extended Composition) of 24 October 1997                   EC) and Council Regulation (EEC) No 1408/71 of 14 June
in Case T-243/94 British Steel v Commission [1997] ECR II-                 1971 on the application of social security schemes to
1887, seeking to have that judgment set aside in so far as                 employed persons, to self-employed persons and to members
it dismissed its application against Commission Decision                   of their families moving within the Community, as amended
94/258/ECSC of 12 April 1994 concerning aid to be granted                  and updated by Council Regulation (EEC) No 2001/83 of
by Spain to the public integrated steel company Corporación               2 June 1983 (OJ 1983 L 230, p. 6), as amended at the material
de la Siderurgia Integral (CSI) and Commission Decision                    time, in particular by Council Regulation (EEC) No 2195/91
94/259/ECSC of 12 April 1994 concerning aid to be granted                  of 25 June 1991 (OJ 1991 L 206, p. 2) — the Court (Fifth
by Italy to the public steel sector (Ilva group) (OJ 1994 L 112,           Chamber), composed of: A. La Pergola, President of the
pp. 58 and 64 respectively), the other parties to the proceedings          Chamber, M. Wathelet (Rapporteur) and D.A.O. Edward,
being: Commission of the European Communities (Agents:                     Judges; A. Saggio, Advocate General; R. Grass, Registrar, has
N. Khan and P.F. Nemitz), Det Danske Stålvalseværk A/S,                    given a judgment on 23 November 2000, in which it has
established in Frederiksværk, Denmark, represented by                      ruled:
J.A. Lawrence and A. Renshaw, Solicitors, with an address for
service in Luxembourg at the Chambers of E. Arendt, 8-                     Articles 8a, 48 and 51 of the EC Treaty (now, after amendment,
10 Rue Mathias Hardt, Italian Republic (Agents: Professor                  Articles 18 EC, 39 EC and 42 EC) require that, for the purpose of
U. Leanza, assisted by P.G. Ferriv), Kingdom of Spain (Agent:              the grant of an old-age pension, the competent institution of a
N. Dı́az Abad), Council of the European Union (Agents:                     Member State take into account, as though they had been completed
J. Carbery and A.P. Feeney), Svenskt Stål AB (SSAB), established           in national territory, periods devoted to child-rearing completed in
in Stockholm, Sweden, and Ilva Laminati Piani SpA, established             another Member State by a person who, at the time when the child
in Rome, Italy — the Court (Sixth Chamber), composed                       was born, was a frontier worker employed in the territory of the first
of: C. Gulmann, President of the Chamber, J.-P. Puissochet                 Member State and residing in the territory of the second Member
(Rapporteur), and M. Macken, Judges; N. Fennelly, Advocate                 State.
General; R. Grass, the Registrar, has given a judgment on
23 November 2000, in which it:
                                                                           (1) OJ C 188 of 3.7.1999.
1.    Dismisses the appeal;
2.    Orders British Steel plc, now Corus UK Ltd, to pay the costs;
3.    Orders the Italian Republic, the Kingdom of Spain, the Council
      of the European Union and Det Danske Stålvalseværk A/S to
      bear their own costs.
                                                                                JUDGMENT OF THE COURT
(1) OJ C 72 of 7.3.1998.
                                                                                (Third Chamber)
                                                                                of 23 November 2000
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)                                 in Case C-319/99: Commission of the European Communi-
                                                                                ties v French Republic (1)
                       of 23 November 2000
in Case C-135/99 (reference for a preliminary ruling from                  (Failure by a Member State to fulfil its obligations — Failure
the Bundessozialgericht): Ursula Elsen v Bundesver-                                        to transpose Directive 95/47/EC)
              sicherungsanstalt für Angestellte (1)
                                                                                (2001/C 79/04)
(Social security for migrant workers — Regulation (EEC)
No 1408/71 — Articles 3 and 10 and Annex VI, Section C,
point 19 — Old-age insurance — Validation of periods of                                        (Language of the case: French)
      child-rearing completed in another Member State)
                            (2001/C 79/03)                                 (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                   (Language of the case: German)
                                                                           In Case C-319/99: Commission of the European Communities
(Provisional translation; the definitive translation will be published     (Agent: M. Nolin) v French Republic (Agents: K. Rispal-
                    in the European Court Reports)                         Bellanger and A. Maitrepierre) — application for a declaration
                                                                           that, by not communicating within the prescribed period the
In Case C-135/99: reference to the Court under Article 177 of              laws, regulations and administrative provisions necessary to
the EC Treaty (now Article 234 EC) from the Bundessozialge-                comply with Directive 95/47/EC of the European Parliament
richt (Germany), for a preliminary ruling in the proceedings               and of the Council of 24 October 1995 on the use of standards


title: Case C-430/10: Judgment of the Court (Fourth Chamber) of 17 November 2011 (reference for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Hristo Gaydarov v Direktor na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti (Freedom of movement of a Union citizen — Directive 2004/38/EC — Prohibition on leaving national territory due to a criminal conviction in another country — Drug trafficking — Whether measure can be justified on grounds of public policy)

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/16

      Judgment of the Court (Fourth Chamber) of 17 November 2011 (reference for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Hristo Gaydarov v Direktor na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti
      (Case C-430/10) (1)

      (Freedom of movement of a Union citizen - Directive 2004/38/EC - Prohibition on leaving national territory due to a criminal conviction in another country - Drug trafficking - Whether measure can be justified on grounds of public policy)
      (2012/C 25/25)
      Language of the case: Bulgarian

         Referring court

      Administrativen sad Sofia-grad

         Parties to the main proceedings

         Applicant: Hristo Gaydarov

         Defendant: Direktor na Glavna direktsia ‘Ohranitelna politsia’ pri Ministerstvo na vatreshnite raboti

         Re:

      Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Article 27(1) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77), Recitals 5 and 20 in the preamble to Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1), and Article 71(1)and(2) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders e (OJ 2000 L 239, p. 19) — Restriction on the freedom of movement of a Union citizen — Prohibition on leaving national territory because of a crime relating to drug trafficking committed in a third State — Whether measure justifiable by reasons of public policy for the purposes of general and individual prevention.

         Operative part of the judgment

      Article 21 TFEU and Article 27 of Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, do not preclude national legislation that permits the restriction of the right of a national of a Member State to travel to another Member State in particular on the ground that he has been convicted of a criminal offence of narcotic drug trafficking in another State, provided that (i) the personal conduct of that national constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, (ii) the restrictive measure envisaged is appropriate to ensure the achievement of the objective it pursues and does not go beyond what is necessary to attain it and (iii) that measure is subject to effective judicial review permitting a determination of its legality as regards matters of fact and law in the light of the requirements of European Union law.

         (1)  OJ C 301, 6.11.2010.


title: Case T-233/16 P: Appeal brought on 12 May 2016 by José Luis Ruiz Molina against the judgment of the Civil Service Tribunal of 2 March 2016 in Case F-60/15, Ruiz Molina v OHIM

text:
               4.7.2016

               EN

               Official Journal of the European Union

               C 243/45

         Appeal brought on 12 May 2016 by José Luis Ruiz Molina against the judgment of the Civil Service Tribunal of 2 March 2016 in Case F-60/15, Ruiz Molina v OHIM
   (Case T-233/16 P)
   (2016/C 243/50)
   Language of the case: French

      Parties

      Appellant: José Luis Ruiz Molina (San Juan de Alicante, Spain) (represented by: N. Lhoëst and S. Michiels, lawyers)

      Other party to the proceedings: European Union Intellectual Property Office

      Form of order sought by the appellant

   The appellant claims that the Court should

               —

               set aside the judgment of the European Union Civil Service Tribunal of 2 March 2016 in Case F-60/15;

               —

               order the respondent to the appeal to pay the costs of both sets of proceedings in their entirety.

      Grounds of appeal and main arguments

   In support of the appeal, the appellant relies on four grounds of appeal.

               1.

               First ground of appeal, alleging infringement of the first paragraph of Article 8 of the Conditions of Employment of Other Servants of the European Union.

               2.

               Second ground of appeal, alleging infringement of the principle of res judicata attaching to the judgment of 15 September 2011 in Bennett and Others v OHIM, F-102/09, EU:F:2011:138.

               3.

               Third ground of appeal, alleging infringement of Council Directive 1999/70/EC of 28 June 1999 concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) which implemented the framework agreement on fixed-term work concluded on 18 March 1999 between the general cross-industry organisations, and infringement of well established principles and standards of international social and labour law on stable employment.

               4.

               Fourth ground of appeal, alleging failure to state reasons for the judgment under appeal.


title: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 November 1996 in the case of Reiner Woltmann trading as Firma Trans-Ex-Import against Hauptzollamt Potsdam (Case C-86/97)

text:
26 . 4 . 97            EN                    Official Journal of the European Communities                                  No C 131 /7
Reference for a preliminary ruling by the Corte d'Appello               — Does a system under which VAT on a benefit in kind
di Torino — Sezione I Civile — by order of that court of                     granted to an employee of an undertaking is calculated
31 January 1997 in the case of Amministrazione delle                         on a VAT inclusive basis when Belgian VAT is paid by
Finanze dello Stato against Grafoplast Italiana SpA in its                   the employer and on a VAT exclusive basis when VAT
own right and as the successor to Grafoplast Italiana SRL                    of another Member State is paid offend against
                           and Trasp. SRL                                    Article 95 of the Treaty of Rome and the principle of
                           (Case C-84/97)                                    'fiscal neutrality' laid down by the sixth VAT
                                                                             Directive ?
                            ( 97/C 131 /15 )
Reference has been made to the Court of Justice of the                  (') OJ No L 145 , 13 . 6 . 1977, p . 1 .
European Communities by order of the Corte d'Appello di
Torino, Sezione I Civile ( First Civil Division of the Court
of Appeal, Turin ) of 31 January 1997, which was received
at the Court Registry on 25 February 1997, for a
preliminary ruling in the case of Amministrazione delle Fi
nanze dello Stato against Grafoplast Italiana SpA in its
own right and as the successor to Grafoplast Italiana SRL               Reference for a preliminary ruling by the Bundesfinanzhof
and Trasp. SRL on the following question:                               by order of that court of 26 November 1996 in the case of
                                                                        Reiner Woltmann trading as Firma Trans-Ex-Import
'Does there exist a principle of law which precludes a                                   against Hauptzollamt Potsdam
Member State which has failed to fulfil its obligations by                                          Case C-86/97 )
failing to adapt domestic law to Community law from
restricting the right of an individual to initiate proceedings                                       97/C 131 / 17
based directly on Community law and relating to the
period prior to such adaptation, and if so to determine in
the light of that principle the compatibility with                      Reference has been made to the Court of Justice of the
Community law of Article 13 ( 2 ) of Decree No 641 of                   European Communities by order of the Bundesfinanzhof
26 October 1972, which makes subject to a time limit of                 ( Federal Finance Court) of 26 November 1996, received at
three years an action for recovery of the sum unduly paid               the Court Registry on 27 February 1997, for a preliminary
in the period prior to the entry into force of the 1993                 ruling in the case of Reiner Woltmann trading as Firma
adaptation of domestic law to the Community Directive                   Trans-Ex-Import against Hauptzollamt Potsdam ( Principal
by Grafoplast to the Italian State pursuant to provisions               Customs Office Potsdam ) on the following questions :
which infringe Article 10 of Council Directive 69/335/
EEC (')?'
                                                                        1 . Is Article 905 ( 1 ) of Commission Regulation ( EEC )
(!) OJ No L 249 , 3 . 10 . 1969, p. 25 .                                     No 2454/93 of 2 July 1993 laying down provisions for
                                                                             the implementation of Council Regulation ( EEC )
                                                                             No 2913/92 establishing the Community Customs
                                                                             Code (') to be interpreted as meaning that the
                                                                             decision-making customs authority is not to accept
                                                                             that there is a 'special situation resulting from
Reference for a preliminary ruling by the Fifth Chamber
                                                                             circumstances in which no deception or obvious
of the Tribunal de Premiere Instance, Liege, by judgment
                                                                             negligence may be attributed to the person concerned'
of that court of 24 February 1997 in the case of Societe
                                                                             if on the theft of goods from a customs warehouse
Financiere d'Investissements SPRL ( SFI) against the
                                                                             ( non-Community            goods )    the conditions   in
                              Belgian State
                                                                             Article 900 ( 1 ) ( a ) of Regulation ( EEC ) No 2454/93
                           ( Case C-85/97 )                                  for remission of customs duty to the owner of the
                             ( 97/C 131 / 16                                 warehouse are not met ?
Reference has been made to the Court of Justice of the
European Communities by judgment of the Fifth Chamber                   2 . If question 1 is answered in the affirmative :
of the Tribunal de Premiere Instance ( Court of First
Instance ), Liege, of 24 February 1997, received at the
Court Registry on 27 February 1997, for a preliminary                        does the same apply in a case of hardship where theft
ruling in the case of Societe Financiere d'Investissements                   was not an insurable risk and the levying of customs
SPRL ( SFI ) against the Belgian State on the following                      duty would destroy the warehouse owners business, or
questions :
                                                                             may it be found on such facts that there is a 'special
                                                                              situation' within the meaning of Article 905 ( 1 ) of
— is the position taken by the VAT authorities, that the                      Regulation ( EEC ) No' 2454/93 which should be
     limitation period for the collection of tax runs from                    referred to the Commission for decision ?
     the 20th of the month following the quarter in which
     registration for VAT took place, as regards taxable                 (') OJ L 253 , 11 . 10 . 1993 , p . 1 .
     transactions carried out before that registration,
     compatible with Articles 4 and 10 of the sixth VAT
     Directive ( ] )?