title: Order of the Court (First Chamber) of 12 July 2001 in Case C-256/99 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Crown Office)): The Queen v Secretary of State for the Home Department (Article 104(3) of the Rules of Procedure — Question identical to a question on which the Court has already ruled)

text:
13.10.2001                EN                     Official Journal of the European Communities                                             C 289/5
      Decision 2001/246/EC of 27 March 2001 laying down the                      outside emergencies in the area of the Autonomous Community
      conditions for the control and eradication of foot-and-mouth               of Galicia does not come within the scope of the exception
      disease in the Netherlands in application of Article 13 of                 or exclusions laid down in Article 2 of Council Directive
      Directive 85/511/EEC, as amended by Commission Decision                    89/391/EEC of 12 June 1989 on the introduction of measures
      2001/279/EC of 5 April 2001.                                               to encourage improvements in the safety and health of workers
                                                                                at work. However, such an activity may come under the
(1) OJ C 173 of 16.6.2001.
                                                                                derogations provided for in Article 17 of Directive 93/104, in
                                                                                so far as the conditions set out in that provision are fulfilled.
                                                                            3)   Time spent on call, when their physical presence is required, by
                                                                                the medical and nursing staff providing services for Servicio
                                                                                Galego de Saúde in the on-call service, in primary care teams
                      ORDER OF THE COURT                                         and in other services which treat outside emergencies in the area
                                                                                of the Autonomous Community of Galicia must be regarded in
                           (Sixth Chamber)                                       its entirety as working time, and where appropriate as overtime,
                                                                                within the meaning of Directive 93/104.
                             of 3 July 2001
in Case C-241/99 (reference for a preliminary ruling from
the Tribunal Superior de Justicia de Galicia): Confedera-                   (1) OJ C 246 of 28.8.1999.
ción Intersindical Galega (CIG) v Servicio Galego de Saúde
                               (Sergas) (1)
(Article 104(3) of the Rules of Procedure — Social policy —
Protection of the health and safety of workers — Directives
89/391/EEC and 93/104/EC — Scope — Primary care
services personnel — Average period of work — Inclusion of
                              time on call)
                                                                                ORDER OF THE COURT
                            (2001/C 289/08)
                    (Language of the case: Spanish)                                                  (First Chamber)
(Provisional translation; the definitive translation will be published                                of 12 July 2001
                     in the European Court Reports)
In Case C-241/99: reference to the Court under Article 234                  in Case C-256/99 (reference for a preliminary ruling from
EC from the Tribunal Superior de Justicia de Galicia (Spain),               the High Court of Justice of England and Wales, Queen’s
for a preliminary ruling in the proceedings pending before that             Bench Division (Crown Office)): The Queen v Secretary
court between Confederación Intersindical Galega (CIG) and                              of State for the Home Department (1)
Servicio Galego de Safide (Sergas) — on the interpretation of
Council Directive 89/391/EEC of 12 June 1989 on the                         (Article 104(3) of the Rules of Procedure — Question
introduction of measures to encourage improvements in the                   identical to a question on which the Court has already ruled)
safety and health of workers at work (OJ 1989 L 183, p. 1)
and Council Directive 93/104/EC of 23 November 1993
concerning certain aspects of the organization of working time                                        (2001/C 289/09)
(OJ 1993 L 307, p. 18) — the Court (Sixth Chamber),
composed of: C. Gulmann, President of the Chamber, V. Skour-
is, R. Schintgen, N. Colneric and J.N. Cunha Rodrigues                                          (Language of the case: English)
(Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass,
Registrar, has given an order on 3 July 2001, the operative
part is as follows:                                                         In Case C-256/99: reference to the Court under Article 234
                                                                            EC from the High Court of Justice of England and Wales,
1)    An activity such as that of the medical and nursing staff             Queen’s Bench Division (Crown Office) for a preliminary
      providing services for Servicio Galego de Saúde in the on-call       ruling in the proceedings pending before that court between
      service, in primary care teams and in other services which treat      The Queen and Secretary of State for the Home Department,
      outside emergencies in the area of the Autonomous Community           ex parte Cheung Chiu Hung, intervener: Justice — on the
      of Galicia fall within the scope of Council Directive 93/104/EC       interpretation of Articles 8 and 8a of the EC Treaty (now, after
      of 23 November 1993 concerning certain aspects of the                 amendment, Articles 17 EC and 18 EC), of the Declaration by
      organization of working time.                                         the Government of the United Kingdom of Great Britain and
                                                                            Northern Ireland on the definition of the term ‘nationals’,
2)    An activity such as that of the medical and nursing staff             annexed to the Final Act of the Treaty concerning the
      providing services for Servicio Galego de Saúde in the on-call       Accession of the Kingdom of Denmark, Ireland and the United
      service, in primary care teams and in other services which treat      Kingdom of Great Britain and Northern Ireland to the European
 ---pagebreak--- C 289/6                 EN                      Official Journal of the European Communities                                        13.10.2001
Communities (OJ 1972 L 73, p. 196), of the new Declaration                 Abruzzo SpA, established in Bologna, Zuccherificio del Molise
by the Government of the United Kingdom of Great Britain                   SpA, established in Termoli, Italy, Società Fondiaria Industriale
and Northern Ireland on the definition of the term ‘nationals’             Romagnola SpA (SFIR), established in Cesena, Italy, represent-
(OJ 1983 C 23, p. 1), and of Declaration No 2 on nationality               ed by B. O’Connor, Solicitor, and I. Vigliotti, avvocato, —
of a Member State, annexed to the Final Act of the Treaty on               appeal against the order of the Court of First Instance of the
European Union (OJ 1992 C 191, p. 98) — the Court                          European Communities (First Chamber) of 8 July 1999 in Case
(First Chamber), composed of: M. Wathelet, President of the                T-158/95 Eridania and Others v Council [1999] ECR II-2219,
Chamber, P. Jann and L. Sevón (Rapporteur), Judges; P. Léger,             seeking to have that order set aside, the other parties to the
Advocate General; R. Grass, Registrar, has made an order on                proceedings being, Council of the European Union (Agents:
12 July 2001, the operative part of which is as follows:                   I. Diez Parra and J.P. Hix), Commission of the European
                                                                           Communities (Agent: F.P. Ruggeri Laderchi) and Ponteco
In order to determine whether a person is a national of the United         Zuccheri SpA, established in Pontelagoscuro, Italy — the Court
Kingdom of Great Britain and Northern Ireland for the purposes of          (Second Chamber), composed of V. Skouris, President of the
Community law, it is necessary to refer to the 1982 Declaration by         Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges;
the Government of the United Kingdom of Great Britain and                  J. Mischo, Advocate General; R. Grass, Registrar, has given a
Northern Ireland on the definition of the term ‘nationals’ which           judgment on 28 June 2001, in which it:
replaced the 1972 Declaration by the Government of the United
Kingdom of Great Britain and Northern Ireland on the definition of         1.    Dismisses the appeal;
the term ‘nationals’, annexed to the Final Act of the Treaty concerning
the Accession of the Kingdom of Denmark, Ireland and the United            2.    Orders Eridania SpA, Industria Saccarifera Italiana Agroindis-
Kingdom of Great Britain and Northern Ireland to the European                    triale SpA (ISI), Sadam Zuccerifici, a division of SECI
Communities.                                                                     — Societh Esercizi Commerciali Industriali SpA, Sadam
                                                                                Castigliognese SpA, Sadam Abruzzo SpA, Zuccherificio del
                                                                                Molise SpA and Società Fondiaria Industriale Romagnola SpA
(1) OJ C 246 of 28.8.1999.                                                       (SFIR) jointly to pay the costs;
                                                                           3.    Orders the Commission to bear its own costs.
                                                                           (1) OJ C 352, 4.12.1999.
           ORDER OF THE COURT OF JUSTICE
                        (Second Chamber)
                          of 28 June 2001                                              ORDER OF THE COURT OF JUSTICE
in Case C-351/99 P: Eridania SpA and Others v Council of                                           (Second Chamber)
              the European Union and Others (1)
                                                                                of 28 June 2001
(Appeal — Common organisation of the market in the sugar
sector — System of storage fees — Authorisation for the
                                                                           in Case C-352/99 P: Eridania SpA and Others v Council of
grant of national aid — Abolition — 1995/96 marketing
                                                                                the European Union and Others (1)
year — Appeals by sugar producers — Acts of direct and
individual concern to them — Provision fixing the amount
of reimbursement for compensation for storage costs —                      (Appeal — Common organisation of the market in the sugar
                           Inadmissibility)                                sector — Pricing system — Regionalisation — Classification
                                                                           of Italy — 1995/96 marketing year — Appeals by sugar
                                                                           producers — Acts of direct and individual concern to them
                          (2001/C 289/10)
                                                                           — Provision fixing the derived intervention price of white
                                                                                sugar for all the zones of Italy — Inadmissibility)
                    (Language of the case: Italian)
                                                                                (2001/C 289/11)
(Provisional translation; the definitive translation will be published
                    in the European Court Report)
                                                                                (Language of the case: Italian)
In Case C-351/99 P: Eridania SpA, formerly Eridania Zuccheri-
fici Nazionali SpA, established in Genoa, Italy, Industria                 (Provisional translation; the definitive translation will be published
Saccarifera Italiana Agroindistriale SpA (ISI), established in                                 in the European Court Report)
Padua, Italy, Sadam Zuccerifici, a division of SECI — Società
Esercizi Commerciali Industriali SpA, established in Bologna,              In Case C-351/99 P: Eridania SpA, formerly Eridania Zuccheri-
Italy, Sadam Castigliognese SpA, established in Bologna, Sadam             fici Nazionali SpA, established in Genoa, Italy, Industria


title: Judgment of the Court of 25 April 2012 in Case E-13/11 — Granville Establishment v Volker Anhalt, Melanie Anhalt and Jasmin Barbaro, née Anhalt (Jurisdiction agreements — Freedom to provide and receive services — Discrimination on grounds of nationality — Justification — Remedies for non-conformity with EEA law)

text:
               29.11.2012

               EN

               Official Journal of the European Union

               C 369/12

         JUDGMENT OF THE COURT
   of 25 April 2012
   in Case E-13/11
   Granville Establishment v Volker Anhalt, Melanie Anhalt and Jasmin Barbaro, née Anhalt
   (Jurisdiction agreements — Freedom to provide and receive services — Discrimination on grounds of nationality — Justification — Remedies for non-conformity with EEA law)
   2012/C 369/10
   In Case E-13/11 Granville Establishment v Volker Anhalt, Melanie Anhalt and Jasmin Barbaro, née Anhalt — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Fürstliches Landgericht (Princely Court of Justice), Liechtenstein, concerning the interpretation of Articles 4 and 36 of the EEA Agreement with regard to the Liechtenstein Jurisdiction Act, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 25 April 2012, the operative part of which is as follows:

               —

               Article 36 EEA precludes a provision of domestic law, such as Section 53a(1) of the Jurisdiction Act, which accords only nationals the right not to be sued abroad on the basis of a jurisdiction agreement unless that jurisdiction agreement has been publicly recorded.

               —

               It is for the national court, as far as possible, to interpret and apply the relevant provisions of national law in such a way that it is possible duly to remedy the consequences of the breach of EEA law. In that context, it is for the national court to determine whether the provisions of the Jurisdiction Act or any other national provisions can be applied for the purposes of an interpretation in conformity with EEA law.


title: Case T-192/03: Action brought on 3 June 2003 by Atlantean Limited against the Commission of the European Communities

text:
C 184/48              EN                          Official Journal of the European Union                                             2.8.2003
Action brought on 26 May 2003 by Alexandre Tilgenkamp                     Instance to annul the previous          appointment of the same
   against the Commission of the European Communities                     candidate to the same post. (1)         It therefore appears from
                                                                          objective, relevant and consistent      evidence that the contested
                         (Case T-191/03)                                  measures were taken in order to         achieve an end other than
                                                                          that of complying in good faith         with the judgment in Case
                                                                          T-158/01.
                        (2003/C 184/103)
                   (Language of the Case: French)                         (1) Judgment of 9 July 2002 in Case T-158/01 Tilgenkamp v Commis-
                                                                              sion, not yet published in the European Court Reports.
An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 26 May 2003 by Alexandre Tilgen-
kamp, resident in Overijse (Belgium), represented by Éric
Boigelot.
                                                                          Action brought on 3 June 2003 by Atlantean Limited
The applicant claims that the Court should:                                  against the Commission of the European Communities
—     annul the decision of the appointing authority of 24 July                                      (Case T-192/03)
      2002 to publish vacancy notice COM/125/02 for the post
      of Deputy Director-General of the Directorate-General for                                     (2003/C 184/104)
      Agriculture;
—     annul the decision of the appointing authority of                                       (Language of the case: English)
      19 November 2002 to appoint another candidate to that
      vacant post;
                                                                          An action against the Commission of the European Commu-
—     annul the decision of the appointing authority of
                                                                          nities was brought before the Court of First Instance of the
      27 November 2002 not to select the applicant for that
                                                                          European Communities on 3 June 2003 by Atlantean Limited,
      post;
                                                                          Donegal, Ireland, represented by Mr A. Hussey, Solicitor,
—     order the defendant to pay to the applicant, provisionally,         Mr G. Hogen, Senior Counsel, and Mr E. Regan, Barrister,
      the sum of EUR 1 from an amount to be determined for                with an address for service in Luxembourg.
      non-material harm, and a sum, assessed on an equitable
      basis, in damages for non-material harm and prejudice to            The applicant claims that the Court should:
      the applicant's career equal to half of the amount of the
      material damage which will be finally determined;                   —      annul Commission Decision of 4 April 2003 (2003/245/
                                                                                EC) insofar as it provides for the rejection of the request
—     order the defendant to pay the costs in any event.                         by Ireland , in respect of the vessel the MFV Atlantean, to
                                                                                increase capacity MAGP (IV) objectives for reasons of
                                                                                safety, navigation at sea, hygiene, product quality and
                                                                                working conditions that concern vessels of more than
Pleas in law and main arguments                                                  12 m in length overall, as set out in Annex 2 of the said
                                                                                Decision.
The applicant in this case challenges both the rejection of his
application for the post of Deputy Director-General of the                —      order the Commission to pay the applicant's costs of
Directorate-General for Agriculture (vacancy notice COM/125/                     these proceedings
02) and the appointment of another candidate to that post.
In support of his claims, the applicant pleads that Article 7,
the second paragraph of Article 25, the third paragraph of                Pleas in law and main arguments
Article 27, Article 29(1)(a) and Article 45(1) of the Staff
Regulations, and the code of conduct adopted on 18 September              The applicant replaced its fishing vessel with a new vessel, the
1999 on appointments to Grades A 1 and A 2 were infringed,                MFV Atlantean. This vessel was ordered in 1997 and delivered
that the appointment procedure was flawed, that there was a               in 1999. It incorporated safety improvements which gave rise
misuse of powers, and that general principles of law, such as             to an increase in the capacity of gross tonnage. The applicant
the principle of legality (failure to observe the terms of the            relied in this respect on Article 4(2) of Council Decision 97/
vacancy notice) and the principle of the protection of legit-             413/EEC (1) of 26 June 1997 concerning the objectives and
imate expectations, were disregarded.                                     detailed rules for restructuring the Community fisheries sector
                                                                          for the period from 1 January 1997 to 31 December 2001
He contends in particular that the appointment of the candi-              with a view to achieving a balance on a sustainable basis
date ultimately chosen, who had been already been appointed               between resources and their exploitation. This article provides
once before, was predetermined and that everything contrib-               that increases in capacity resulting exclusively from safety
uted towards his being appointed again, including publication             improvements shall justify, on a case by case basis, an increase
of a vacancy notice particularly lacking its essential elements,          by the same amount of the objectives for fleet segments where
that is to say precisely those which had led the Court of First           they do not increase the fishing effort of the vessels concerned.
 ---pagebreak--- 2.8.2003               EN                          Official Journal of the European Union                                        C 184/49
The application for increase in capacity of the applicant was              —     order the Commission to pay him EUR 1 as token
submitted by Ireland to the European Commission, who rejected                    damages for the harm suffered;
it in the contested decision.
                                                                           —     order the Commission to pay the costs.
In support of its present application, the applicant submits that
the Commission erred in law and in fact. According to the
applicant, the increase in capacity complies with the provisions
of Article 4(2) of Council Decision 97/413/EEC and is there-
fore eligible for approval.                                                Pleas in law and main arguments
The applicant furthermore submits that the Commission                      In support of his action, the applicant pleads breach of the
violated the principle of legal certainty, the applicant's legit-          obligation to state reasons in that the appeal assessor, when
imate expectations and the principle of non-retroactivity.                 drawing up the applicant's report for 1999 to 2001, did not
According to the applicant, the Commission applied criteria                indicate the reasons why he did not take account of the views
which were not in existence at the time the replacement vessel             of the persons consulted or of the difficult working conditions.
was ordered or at the time the application for increase in                 Nor did he explain precisely why the general assessment made
capacity was submitted to the Commission.                                  by him was less favourable than that appearing in the staff
                                                                           report drawn up before the appeal to the Joint Committee on
                                                                           Staff Reports.
In addition, the applicant claims that the Commission had
regard to the nature of the applications for increase prior to
                                                                           The applicant also pleads the non-material damage suffered by
adopting the said criteria and applied criteria that discriminated
                                                                           reason of the belated drawing up of his staff report.
against the applicant. The applicant claims that the exception
for vessels lost at sea and allowing an increase in tonnage in
respect of these new vessels constitutes an unjustified discrimi-
nation.
The applicant also submits that the Commission violated the
principle of proportionality, failed to give adequate or sufficient
reasons and denied the applicant's right to be heard.
                                                                           Action brought on 30 May 2003 by Il Ponte Finanziaria
                                                                           S.p.A. against the Office for Harmonisation in the Internal
(1) OJ L 175, p. 27.                                                                 Market (Trade Marks and Designs) (OHIM)
                                                                                (Case T-194/03)
                                                                                (2003/C 184/106)
                                                                                (Language of the case: Italian)
Action brought on 20 May 2003 by Giuseppe Piro against
       the Commission of the European Communities
                                                                           An action against the Office for Harmonisation in the Internal
                          (Case T-193/03)                                  Market (Trade Marks and Designs) (OHIM) was brought before
                                                                           the Court of First Instance of the European Communities on
                                                                           30 May 2003 by Il Ponte Finanziaria S.p.A., represented by
                         (2003/C 184/105)                                  P.L. Roncaglia, A.T. Malaspina and M. Boletto, lawyers.
                    (Language of the Case: French)                         The other party to the proceedings before the Board of Appeal
                                                                           was Marine Enterprise Projects Società Unipersonale di Alberto
                                                                           Fiorenzi S.r.l.
An action against the Commission of the European Commu-                    The applicant claims that the Court should:
nities was brought before the Court of First Instance of the
European Communities on 20 May 2003 by Giuseppe Piro,
resident in Wezembeek Oppem (Belgium), represented by                      —     annul the decision of the Fourth Board of Appeal of the
Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Étienne                    Office for Harmonisation in the Internal Market (Trade
Marchal, lawyers, with an address for service in Luxembourg.                     Marks and Designs) of 17 March 2003 in Case R 1015/
                                                                                2001-4
The applicant claims that the Court should:                                —     order the OHIM to dismiss the application for a Commu-
                                                                                nity trade mark No 940007 BAINBRIDGE (figurative);
—     annul the decision establishing the definitive staff report
      for 1997 to 1999;                                                    —     order the OHIM to pay the costs.


title: Case C-268/02: Action brought on 23 July 2002 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
14.9.2002               EN                   Official Journal of the European Communities                                       C 219/7
6.     What types of use can be considered, and in particular is        Pleas in law and main arguments
       it necessary to show that the mark has been used in the
       course of trade in the Member State concerned and in
       further particular would importation by a single customer        Article 249 EC, which provides that a directive is to be binding
       into that Member State be sufficient?                            as to the result to be achieved upon each Member State,
                                                                        implies the obligation upon each Member State to observe the
                                                                        time-limits for implementation laid down in directives. That
7.     Is it necessary to disregard use occurring after the filing      time-limit expired on 24 October 1998 without the Italian
       of the application for revocation even for the purpose of        Republic having issued the provisions necessary to comply
       testing whether use during the relevant period was               with Article 5 of the directive referred to in the Commission’s
       genuine?                                                         claims.
                                                                        (1 ) OJ 1998 L 24, p. 1.
( 1) To approximate the laws of the Member States relating to trade
     marks (OJ L 40, 11.2.1989, p. 1).
                                                                        Action brought on 23 July 2002 by the Commission of
                                                                        the European Communities against the Grand Duchy of
                                                                                Luxembourg
                                                                                (Case C-268/02)
Action brought on 19 July 2002 by the Commission of                                              (2002/C 219/12)
   the European Communities against the Italian Republic
                                                                        An action against the Grand Duchy of Luxembourg was
                          (Case C-267/02)                               brought before the Court of Justice of the European Communi-
                                                                        ties on 23 July 2002 by the Commission of the European
                                                                        Communities, represented by D. Martin, acting as Agent.
                          (2002/C 219/11)
                                                                        The applicant claims that the Court should:
                                                                        —     Declare that, by failing to adopt and bring into force
                                                                              within the prescribed period the laws, regulations and
                                                                              administrative provisions necessary to comply with
An action against the Italian Republic was brought before the                 Council Directive 98/24/EC of 7 April 1998 on the
Court of Justice of the European Communities on 19 July                       protection of the health and safety of workers from the
2002 by the Commission of the European Communities,                           risks related to chemical agents at work (fourteenth
represented by M. Shotter and C. Loggi, acting as Agents.                     individual Directive within the meaning of Article 16(1)
                                                                              of Directive 89/391/EEC) ( 1), the Grand Duchy of Luxem-
                                                                              bourg has failed to fulfil its obligations under that
                                                                              directive; and
The applicant claims that the Court should:
                                                                        —     Order the Grand Duchy of Luxembourg to pay the costs.
1.     Declare that, by not adopting within the prescribed time-
       limit, or in any event not notifying the laws, regulations
       and administrative provisions necessary to comply with           Pleas in law and main arguments
       Article 5 of Directive 97/66/EC ( 1) of the European
       Parliament and of the Council of 15 December 1997
       concerning the processing of personal data and the               The period prescribed for transposition expired on 5 May
       protection of privacy in the telecommunications sector,          2001.
       the Italian Republic has failed to fulfil its obligations
       under Articles 5 and 15 of that directive;
                                                                        (1 ) OJ 1998 L 131, p. 11.
2.     Order the Italian Republic to pay the costs.


title: Case T-47/02: Order of the Court of First Instance of 21 June 2006 — Danzer v Council (Company law — Directives 68/151/EEC and 78/660/EEC — Disclosure of annual accounts — Protection of business secrets — Breach of fundamental rights — Legal basis — Action for damages — Inadmissibility)

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/17

         Order of the Court of First Instance of 21 June 2006 — Danzer v Council
   (Case T-47/02) (1)

   (Company law - Directives 68/151/EEC and 78/660/EEC - Disclosure of annual accounts - Protection of business secrets - Breach of fundamental rights - Legal basis - Action for damages - Inadmissibility)
   (2006/C 190/28)
   Language of the case: German
   Parties

      Applicants: Manfred Danzer and Hannelore Danzer (Linz, Austria) (represented by: initially by J. Hintermayr, M. Krüger, F. Haunschmidt, G. Minichmayr and P. Burgstaller, and subsequently by J. Hintermayr, F. Haunschmidt, G. Minichmayr, P. Burgstaller, G. Tusek, T. Riedler and C. Hadeyer, lawyers)

      Defendants: Council of the European Union (represented by: M. Giorgi Fort and M. Bauer, Agents)
   Re:
   Application, first, for compensation under Article 288 EC in respect of damage allegedly suffered by the applicants due to the obligation to disclose certain information in the annual accounts of the companies of which they are managers under Article 2(1)(f) of First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty (subsequently the second paragraph of Article 58 of the EC Treaty, now the second paragraph of Article 48 EC), with a view to making such safeguards equivalent throughout the Community (OJ, English Special Edition 1968 (I), p. 41), and Article 47 of Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty (subsequently Article 54(3)(g) of the EC Treaty, now, after amendment, Article 44(2)(g) EC) on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11) and, second, for a declaration that the aforementioned provisions are invalid.
   Operative part of the order:
   The Court hereby:

               1.

               Dismisses the action;

               2.

               Orders the applicants to bear their own costs and to pay the Council's costs.

      (1)  OJ C 109, 4.5.2002.


title: Judgment of the Court of 10 November 2014 in Case E-9/14 — Otto Kaufmann AG (Admissibility — Exchange of information on convictions of legal persons — Freedom to provide services — Freedom of establishment — Directive 2004/18/EC — Directive 2006/123/EC)

text:
               4.6.2015

               EN

               Official Journal of the European Union

               C 183/6

         JUDGMENT OF THE COURT
   of 10 November 2014
   in Case E-9/14
   Otto Kaufmann AG
   (Admissibility — Exchange of information on convictions of legal persons — Freedom to provide services — Freedom of establishment — Directive 2004/18/EC — Directive 2006/123/EC)
   (2015/C 183/07)
   In Case E-9/14, Otto Kaufmann AG – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Princely Court of Liechtenstein (Fürstliches Landgericht des Fürstentums Liechtenstein) on the interpretation of EEA law with regard to the recording of criminal convictions of legal persons, the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Páll Hreinsson, Judges, gave judgment on 10 November 2014, the operative part of which is as follows:
   Articles 31 and 36 of the EEA Agreement do not require that a criminal conviction of a legal person be clearly recorded. Provisions such as Article 45 of Directive 2004/18/EC and Article 33 of Directive 2006/123/EC may require an EEA State to provide information, upon request from another EEA State, on convictions relevant to the competence and professional reliability of legal persons. However, these Directives leave the maintenance and handling of relevant information to national law.


title: Case C-118/07: Action brought on 27 February 2007 — Commission of the European Communities v Republic of Finland

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/30

         Action brought on 27 February 2007 — Commission of the European Communities v Republic of Finland
   (Case C-118/07)
   (2007/C 95/57)
   Language of the case: Finnish
   Parties

      Applicant: Commission of the European Communities (represented by M. Huttunen, H. Støvlbæk and B. Martenczuk, acting as Agents)

      Defendant: Republic of Finland
   Form of order sought

               —

               declare that, by failing to take the appropriate steps in accordance with the second paragraph of Article 307 EC to eliminate the incompatibilities relating to provisions on transfers in the international investment agreements concluded between it and the Russian Federation (the former Soviet Union), Belarus, China, Malaysia, Sri Lanka and Uzbekistan, the Republic of Finland has failed to fulfil its obligations under Article 307 EC;

               —

               order the Republic of Finland to pay the costs.

         Pleas in law and main arguments
   The present case concerns international investment agreements made by the Republic of Finland with the Russian Federation, Belarus, China, Malaysia, Sri Lanka and Uzbekistan before it acceded to the European Union. Provisions contained in those agreements concern the transfer of capital and payments in connection with investments. The Commission submits that those provisions in the agreements are incompatible with Community law, since as a result of those provisions Finland is unable to comply with measures taken by the EC institutions under Articles 57(2) EC, 59 EC and 60(1) EC. Since the agreements in question were made before Finland's accession to the EU, Finland is obliged to take all appropriate steps to eliminate the incompatibilities in the agreements in accordance with the second paragraph of Article 307 EC.


title: Case T-425/04: Action brought on 13 October 2004 by French Republic against Commission of the European Communities

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/30

         Action brought on 13 October 2004 by French Republic against Commission of the European Communities
   (Case T-425/04)
   (2005/C 19/64)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 October 2004 by the French Republic, represented by its Agents Ronny Abraham, Géraud de Bergues and Stéphanie Ramet, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul in its entirety Commission Decision No C(2004)360 of 2 August 2004 concerning State aid paid by France to France Télécom;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   In support of its action, the applicant relies, first, on an infringement of essential procedural requirements and the rights of the defence. According to the applicant, the Commission based its decision on factors, namely ministerial proposals of 12 July 2002, which are outside the scope of the procedure as defined by the decision to open the procedure. The applicant claims that the Commission should have extended the procedure by adopting a new decision to open it.
   The applicant also relies on an error of law in relation to the concept of State aid within the meaning of Article 87(1) EC. According to the applicant, the Commission wrongly applied the principle of the private investor who is fully informed of the conditions of a market economy. According to the applicant, since the ministerial proposals did not amount to a commitment on the part of the State and could not be categorised as State aid, the principle of the fully-informed private investor was not applicable. The applicant also maintains that the Commission wrongly held there to be aid on the basis of two separate events which, taken separately, it would have to accept did not comprise the elements necessary for the categorisation of State aid to apply. Those events are the statements of July 2002 and the draft shareholder's advance of December 2002.
   Thirdly, the applicant claims that the Commission committed a manifest error of assessment when it took the view that an analysis of the contents of the interview of 12 July 2002 allowed it to be concluded that the State was giving an undertaking as a shareholder, which would have had an influence on the markets in December.
   Lastly, the applicant submits that the reasoning adopted contains contradictions and inadequacies which lead to the contested decision being vitiated on the ground of a lack of proper reasoning.


title: Order of the Court of First Instance of 17 November 2003 In Case T-340/99 DEP: Arne Mathisen AS against Council of the European Union (Taxation of costs — Expenses necessarily incurred by the parties for the purposes of the proceedings — Lawyers' fees — Photocopy expenses)

text:
20.3.2004                EN                          Official Journal of the European Union                                             C 71/27
      ORDER OF THE COURT OF FIRST INSTANCE                                   SA, established in Nyon (Switzerland), represented by
                                                                             A. Vianello, lawyer, with an address for service in Luxembourg,
                                                                             against the Council of the European Union (Agents: S. Mar-
                       of 17 November 2003
                                                                             quardt and F.P. Ruggeri Laderchi) — application for taxation
                                                                             of the costs to be reimbursed by the applicants to the defendant
In Case T-340/99 DEP: Arne Mathisen AS against Council                       following the judgment of the Court of First Instance (Second
                    of the European Union (1)                                Chamber, Extended Composition) of 5 April 2001 given in
                                                                             Case T-82/00 Bic and Others v Council [2001] ECR II-1241
(Taxation of costs — Expenses necessarily incurred by the                    — the Court of First Instance (Second Chamber), composed
parties for the purposes of the proceedings — Lawyers’ fees                  of: J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges;
                       — Photocopy expenses)                                 H. Jung, Registrar, made an order on 3 December 2003, the
                                                                             operative part of which is as follows:
                           (2004/C 71/49)
                                                                             The total amount of costs recoverable by the Council in Case T-82/
                    (Language of the case: English)                          00 is fixed at EUR 5 500.
                                                                             (1) OJ C 176 of 24.6.2000.
In Case T-340/99 DEP: Arne Mathisen AS, established in
Vaeroy (Norway), represented by S. Knudtzon, lawyer, with an
address for service in Luxembourg, against Council of the
European Union, (Agents: S. Marquardt and G. Berrisch),
supported by Commission of the European Communities
(Agents: V. Kreuschitz and S. Meany): Application for taxation
of costs brought by the Council following the judgment of the
Court of First Instance in Case T-340/99 Arne Mathisen v
Council [2002] ECR II-2905, the Court of First Instance
(Fourth Chamber, Extended Composition), composed of:                                ORDER OF THE COURT OF FIRST INSTANCE
H. Legal, President, V. Tiili, A.W.H. Meij, M. Vilaras and
N.J. Forwood, Judges; H. Jung, Registrar, has made an order on
17 November 2003, the operative part of which is as follows:                                        of 4 December 2003
The total amount of costs to be reimbursed by Arne Mathisen AS to            in Case T-78/01 INNOVA – Centro euromediterraneo per
the Council is fixed at EUR 30 620,01.                                       lo sviluppo sostenibile v Commission of the European
                                                                                Communities (1)
(1) OJ C 79 of 18.3.2000.
                                                                             (‘Culture 2000’ Programme — ‘Una festa per Aristofane’
                                                                             project — Suspension of payment of part of a Community
                                                                                grant awarded — No need to adjudicate)
                                                                                (2004/C 71/51)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: French)
                        of 3 December 2003
in Case T-82/00 DEP: Bic SA and Others v Council of the
                         European Union (1)                                  In Case T-78/01: INNOVA — Centro euromediterraneo per lo
                                                                             sviluppo sostenibile, established in Calatafimi (Italy), represent-
                 (Procedure — Taxation of costs)                             ed by D. Waelbroeck and J. Waldron, lawyers, v Commission
                                                                             of the European Communities (Agents: D. Martin and H.
                                                                             Speyart) — application seeking, in the first place, an order that
                           (2004/C 71/50)                                    the Commission should pay the second and final tranches of
                                                                             the grant awarded to the applicant for the ‘Una festa per
                     (Language of the case: Italian)                         Aristofane’ project under the ‘Culture 2000’ programme
                                                                             established by Decision No 508/2000/EC of the European
                                                                             Parliament and of the Council of 14 February 2000 (OJ 2000
                                                                             L 63, p. 1), and, in the alternative, annulment of the
In Case T-82/00 DEP: Bic SA, established in Clichy (France),                 Commission’s decision allegedly sent by letter of 25 January
Flamagas SA, established in Barcelona (Spain), Swedish Match                 2001, informing the applicant of the suspension of payment


title: Case C-136/00: Reference for a preliminary ruling from the Kuopion Hallinto-oikeus by order of that court of 22 March 2000 in the case of Rolf Dieter Danner

text:
C 176/10               EN                    Official Journal of the European Communities                                    24.6.2000
(3) Does the fact that the exchange of views is to take place at        Reference for a preliminary ruling by the High Court of
     an earlier stage, without the undertaking which has                Justice (England & Wales), Queen’s Bench Division
     allegedly submitted an irregular tender being assured of an        (Crown Office), by order of that court of 31 March 2000,
     opportunity to state its reasons, after the opening of the         in the cases of The Queen against 1) The Monopolies and
     envelopes and before the adoption of the measure exclud-           Mergers Commission 2) Secretary of State for Trade and
     ing it, represent an obstacle to the application of Article        Industry, Ex parte: Milk Marque Ltd and The Queen
     30(4) of Directive 93/37?                                          against 1) The Competition Commission 2) Secretary of
                                                                        State for Trade and Industry 3) Director General of Fair
(4) Does a provision under which the contracting authority                       Trading, Ex Parte: National Farmers’ Union
     may take account of explanations relating solely to the
     economy of the construction method or the technical                                         (Case C-137/00)
     solutions adopted or the exceptionally favourable con-
     ditions available to the tenderer represent an obstacle to
     the application of Article 30(4) of Directive 93/37?                                        (2000/C 176/18)
(5) Does the [exclusion] of explanations relating exclusively to        Reference has been made to the Court of Justice of the
     items for which minimum values have been established by            European Communities by an order of the High Court of
     administrative provisions or can be inferred from official         Justice (England & Wales), Queen’s Bench Division (Crown
     lists represent an obstacle to the application of Article          Office) of 31 March 2000, which was received at the Court
     30(4) of Directive 93/37?                                          Registry on 11 April 2000, for a preliminary ruling in the case
                                                                        of The Queen against 1) The Monopolies and Mergers
                                                                        Commission 2) Secretary of State for Trade and Industry, Ex
(1) Council Directive 93/37/EEC of 14 June 1993 concerning the          parte: Milk Marque Ltd and The Queen against 1) The
    coordination of procedures for the award of public works            Competition Commission 2) Secretary of State for Trade and
    contracts (OJ L 199 of 9.8.1993, p. 54).                            Industry 3) Director General of Fair Trading, Ex parte: National
                                                                        Farmers’ Union, on the following questions:
                                                                        1. Are Articles 32 to 38 (ex Articles 38 to 46) EC, Council
                                                                            Regulation 26/62/EEC (1) and Council Regulation (EC)
                                                                            No 804/68 (2), as amended, to be interpreted as precluding
                                                                            a Member State from applying national laws such as the
                                                                            Fair Trading Act 1973 and the Competition Act 1998 to
                                                                            the manner in which producers of milk choose to organise
Reference for a preliminary ruling from the Kuopion                         themselves into co-operatives and conduct themselves in
Hallinto-oikeus by order of that court of 22 March 2000                     regard to the sale and processing of their milk:
               in the case of Rolf Dieter Danner
                                                                            (a) in all circumstances; or
                         (Case C-136/00)
                                                                            (b) where the intended or actual effect is to deprive such
                         (2000/C 176/17)                                        producers of the ability to increase the price obtained
                                                                                for their milk; or
Reference has been made to the Court of Justice of the
                                                                            (c) where the intended or actual effect is to reduce
European Communities by an order of the Kuopion Hallinto-
                                                                                the price that producers obtain for their milk in
oikeus (Administrative Court, Kuopio), Finland, of 22 March
                                                                                circumstances where that price is already below the
2000, which was received at the Court Registry on 10 April
                                                                                target price fixed pursuant to Article 3 of Regulation
2000, for a preliminary ruling in the case of Rolf Dieter
                                                                                804/68; or
Danner on the following question:
                                                                            (d) in a way which is not consistent with any one or more
Is the restriction described above of the right to deduct for                   of the following:
tax purposes pension insurance contributions payable from
Finland to a foreign institution, laid down in the first sentence
of Paragraph 96(9) of the Tuloverolaki (Income Tax Law),                        (i) the objectives set out in Article 33 EC (ex Article
contrary to Article 59 of the EC Treaty referred to in the appeal                     39); and/or
(now Article 49 EC) or to the other articles referred to in the
appeal (Articles 6, 60, 73b, 73d and 92 of the EC Treaty) or                    (ii) the policy, aims or functioning of the common
the corresponding present articles (Articles 12, 50, 56, 58 and                       organisation of the market in milk and milk
87 EC)?                                                                               products; and/or
                                                                                (iii) the policy of Article 36 EC (ex Article 42) and
                                                                                Regulation 26?


title: Case T-289/14: Action brought on 2 May 2014  — H-O-T Servicecenter Nürnberg and Others v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/41

         Action brought on 2 May 2014 — H-O-T Servicecenter Nürnberg and Others v Commission
   (Case T-289/14)
   2014/C 223/44
   Language of the case: German

      Parties

      Applicants: H-O-T Servicecenter Nürnberg GmbH (Nuremberg, Germany), H-O-T Servicecenter Schmölln GmbH & Co. KG (Schmölln), H-O-T Servicecenter Allgäu GmbH & Co. KG (Memmingerberg), EB Härtetechnik GmbH & Co. KG (Nuremberg) (represented by: A. Reuter, C. Arhold, N. Wimmer, F.-A. Wesche, K. Kindereit, R. Busch, A. Hohler and T. Woltering, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the defendant’s decision of 18 December 2013 to open the formal investigation procedure in State aid case SA.33995 (2013/C) (ex 2013/NN) — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users, OJ 2014 C 37, p. 73;

               —

               join the present procedure and the procedure relating to Germany’s action before the General Court, seeking the annulment of the contested decision (lodging of the application on 21 March 2014);
               in the alternative: order that access be made available to the file in the proceedings referred to relating to Germany’s action;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on ten pleas in law.

               1.

               First plea in law: No advantage

                           —

                           The applicants claim that the special compensation regime provided for in the Gesetz für den Vorrang ernererbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG) does not involve an advantage for energy-intensive users in the hardening shop and coating industry in general and for the applicants in particular.

               2.

               Second plea in law: No selective advantage

                           —

                           The applicants also claim that there is a fortiori no selective advantage for the purpose of Article 107(1) TFEU for the applicants in the special compensation regime.

               3.

               Third plea in law: No use of State resources

                           —

                           In addition, the applicants maintain that the special compensation regime does not constitute support ‘granted by a Member State or through State resources’ within the meaning of Article 107(1) TFEU.

               4.

               Fourth plea in law: No distortion of competition

                           —

                           The applicants claim that the special compensation regime does not distort competition in the European Union.

               5.

               Fifth plea in law: No effect on trade between the Member States

                           —

                           The applicants further state that the special compensation regime also does not affect trade between Member States.

               6.

               Sixth plea in law: A cessation or substantial reduction of the special compensation regime infringes the applicants’ fundamental rights

                           —

                           The applicants submit that not only would the limits of Article 107 TFEU clearly defined by the Court of Justice of the European Union be exceeded upon a classification of the special compensation regime as aid or a substantial reduction of the special compensation regime, but the fundamental requirement of substantive equity of charges would also be infringed. An abolition or substantial reduction of the special compensation regime would therefore also infringe the applicants’ fundamental rights, particularly their rights under the Charter of Fundamental Rights of the European Union.

               7.

               Seventh plea in law: the special compensation regime is covered by the Commission decision of 22 May 2002

                           —

                           The applicants also claim that, by its decision of 22 May 2002, the Commission expressly stated that the EEG and its ‘compensation regimes’ did not fall to be categorised as aid. (1) That decision also covers the special compensation regime.

               8.

               Eighth plea in law: Manifest error of assessment and insufficient preliminary examination

                           —

                           The applicants also allege that the Commission did not adequately examine and therefore also did not realise that the exceptions for energy-intensive users are justified according to the aim, nature and scheme of the EEG and therefore did not constitute a selective advantage.

               9.

               Ninth plea in law: Infringement of the right to be heard

                           —

                           The applicants argue also that the Commission should have consulted them in any event before adopting a decision with such serious legal effects.

               10.

               Tenth plea in law: Insufficient reasoning

                           —

                           Lastly, the applicants claim that the opening decision is vitiated by a lack of reasoning in the essential passages.

      (1)  Commission letter of 22 May 2002, C(2002) 1887 fin./State aid NN 27/2000- Germany


title: Case T-264/03: Action brought on 28 July 2003 by Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. against the Commission of the European Communities

text:
C 239/22              EN                          Official Journal of the European Union                                     4.10.2003
Action brought on 18 July 2003 by Celltech R&D Limited                    Action brought on 28 July 2003 by Jürgen Schmoldt,
against the Office for Harmonisation in the Internal                      Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband
          Market (Trade Marks and Designs) (OHIM)                         der Deutschen Bauindustrie e.V. against the Commission
                                                                                of the European Communities
                        (Case T-260/03)
                                                                                (Case T-264/03)
                        (2003/C 239/41)
                                                                                (2003/C 239/42)
                  (Language of the case: English)                                            (Language of the case: German)
An action against Office for Harmonisation in the Internal                An action against the Commission of the European Communi-
Market (Trade Marks and Designs) (OHIM) was brought before                ties was brought before the Court of First Instance of the
the Court of First Instance of the European Communities on                European Communities on 28 July 2003 by Jürgen Schmoldt,
18 July 2003 by Celltech R&D Limited, Slough, (United                     Dallgow-Döberitz (Germany), Kaefer Isoliertechnik GmbH &
Kingdom), represented by D. Alexander, QC, and N. Jenkins,                Co. KG, Bremen (Germany), and Hauptverband der Deutschen
lawyer.                                                                   Bauindustrie e.V., Berlin (Germany), represented by
                                                                          H.-P. Schneider, Hanover.
The applicant claims that the Court should:
                                                                          The applicants claim that the Court should:
—     annul the Decision of the Second Board of Appeal of the             —     annul Article 1 of, and Table 1 of the Annex to,
      Office for Harmonisation in the Internal Market (Trade                    Commission Decision 2003/312/EC of 9 April 2003,
      Marks and Designs) (‘OHIM’) of 19 May 2003 (Case                          published on 8 May 2003 (OJ 2003 L 114, p. 50) and
      R0659/2002-2) in whole or in part;                                        notified under no C(2003) 1161, on the publication of
                                                                                the reference of European standards relating to the
—     order OHIM to pay the costs of this Application.                          thermal insulation products EN 13162:2001 to EN 1
                                                                                13172:2001, with the result that Commission communi-
                                                                                cation 2001/C 358/08 of 15 December 2001 (OJ 2001
                                                                                C 358, p. 9), in so far as it concerns the products EN
                                                                                13162:2001 to EN 1 13172:2001, and Commission
Pleas in law and main arguments                                                 communication 2001/C 120/06 of 22 May 2003 (OJ
                                                                                2003 C 120, p. 17) be removed from the Official Journal
                                                                                of the European Union;
Trade mark concerned:        ‘CELLTECH’ —             Application
                             No 1731678.                                  —     order the defendant to pay the costs.
Products or services:        Pharmaceutical, veterinary and
                             sanitary preparations, compounds
                             and substances (Class 5), surgical,          Pleas in law and main arguments
                             medical, dental and veterinary
                             apparatus        and     instruments
                             (Class 10), research and develop-
                                                                          On 23 May 2001, the European Committee for Standardisation
                             ment, consultancy services, all
                             relating to the biological, medical          adopted ten standards for thermal insulation products, the
                                                                          references for which were published in the Official Journal of
                             and chemical sciences (Class 41).
                                                                          the European Communities of 15 December 2001 (1). The Federal
                                                                          Republic of Germany subsequently objected to, inter alia,
Challenged       decision    Refusal of registration by the               these ten standards for thermal insulation products under
before the Board of          examiner.                                    Article 5(1) of Directive 89/106/EEC ( 2). The objection was
Appeal:                                                                   rejected by the contested decision.
Grounds submitted:           Infringement of Article 7(1)(b) of
                             the Community Trade Mark Regu-               The applicants rely on both formal and substantive grounds.
                             lation 40/94/EEC.                            The applicants take the view that procedural errors were
                                                                          committed in so far as, contrary to Article 5(1) of Directive
                                                                          89/106, the Standing Committee on Construction failed to
                                                                          issue an opinion and in so far as the statement of reasons in
 ---pagebreak--- 4.10.2003              EN                          Official Journal of the European Union                                            C 239/23
the recitals to the contested decision is inadequate. The                  Pleas in law and main arguments
publication of the standards in the Official Journal is likewise
defective as no reference is made to the fact that the standards,
for the most part, and their annexes (with the exception of
Annex ZA) are not binding and that thermal installation                    In the context of an invitation to tender for the supply of
products only need to comply with Annex ZA in order to bear                artificial fertiliser to North Korea, the applicant was awarded
the EC mark. As regards the substance, the applicants are of               the contract by the Commission. Since the artificial fertiliser
the opinion that the standards in question are incomplete,                 supplied by the applicant was late in reaching its destination,
unclear, imprecise and contradictory and that the system of                the Commission withheld from the applicant a sum of
standards is incoherent. Moreover, the use of the EC mark is               EUR 346 221,20 and refused, finally by letter of 23 May 2003,
misleading since it does not prove that the product complies               to pay the sum concerned to the applicant.
with all European standards but rather only with Annex ZA to
those standards. The contested decision thus fails to meet the
requirements of Directive 89/106, the principle of pro-                    The applicant submits that the delay in delivering the fertiliser
portionality (third paragraph of Article 5 EC) and the require-            can be attributed to restrictions on the export of fertiliser from
ments of consumer protection (Article 95(3) EC).                           China, where it intended to procure the fertiliser for export.
                                                                           As those restrictions were wholly unforeseeable, they may be
                                                                           regarded as a case of force majeure and, consequently, in
( 1) OJ C 358 of 15 December 2001, p. 9.                                   accordance with Article 22(4) of Regulation No 2519/97 (1),
( 2) Council Directive 89/106/EEC of 21 December 1989 on the               no sum may be retained. The applicant also submits that no
     approximation of laws, regulations and administrative provisions      loss was suffered as a result of the late delivery and that
     of the Member States relating to construction products (OJ L 40       retention of the amount is therefore disproportionate to the
     of 11 February 1989, p. 12) as amended by Directive 93/68/EEC         failure to observe the delivery period and is in breach of the
     (OJ L 220 of 30 August 1993, p. 1).
                                                                           Community-law principle of proportionality. The retention
                                                                           also infringes provisions of the Belgian Civil Code, since the
                                                                           Commission did not previously expressly call on the applicant
                                                                           to fulfil that contractual obligation.
                                                                           (1 ) Commission Regulation (EC) No 2519/97 of 16 December 1997
                                                                                laying down general rules for the mobilisation of products to be
                                                                                supplied under Council Regulation (EC) No 1292/96 as Com-
Action brought on 23 July 2003 by Helm Düngemittel                              munity food aid (OJ L 346 of 17.12.1997, p. 23).
GmbH against the Commission of the European Com-
                              munities
                         (Case T-265/03)
                         (2003/C 239/43)
                   (Language of the case: German)                          Action brought on 24 July 2003 by Anna Maria Roccato
                                                                           (Mrs Pinson) against the Commission of the European
                                                                                Communities
An action against the Commission of the European Communi-                                            (Case T-267/03)
ties was brought before the Court of First Instance of the
European Communities on 23 July 2003 by Helm Düngemittel
GmbH, Hamburg (Germany), represented by Dr W.P. Wasch-                                               (2003/C 239/44)
mann, lawyer.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
—      annul the Decision of the Commission of the European
       Communities of 23 May 2003 concerning retention of a                An action against the Commission of the European Communi-
       sum of EUR 346 221,20;
                                                                           ties was brought before the Court of Justice of the European
                                                                           Communities on 24 July 2003 by Anna Maria Roccato,
—      order the Commission of the European Communities to                 residing in Brussels, represented by Georges Vandersanden and
       pay the costs.                                                      Laure Levi, lawyers.


title: Case C-353/04: Judgment of the Court (First Chamber) of 7 September 2006 (Reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas (Regulations (EEC) Nos 1538/91 and 3665/87 — Community Customs Code — Export refunds — Conditions for granting — Sound and fair marketable quality — Customs procedure — Export declaration — Physical check — Sample — Tolerated number of defective units — Uniform quality — Rights and obligations of the exporter and of the customs authority — Poultrymeat)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/7

         Judgment of the Court (First Chamber) of 7 September 2006 (Reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas
   (Case C-353/04) (1)

   (Regulations (EEC) Nos 1538/91 and 3665/87 - Community Customs Code - Export refunds - Conditions for granting - Sound and fair marketable quality - Customs procedure - Export declaration - Physical check - Sample - Tolerated number of defective units - Uniform quality - Rights and obligations of the exporter and of the customs authority - Poultrymeat)
   (2006/C 281/11)
   Language of the case: German
   Referring court
   Bundesfinanzhof
   Parties to the main proceedings

      Applicant: Nowaco Germany GmbH

      Defendant: Hauptzollamt Hamburg-Jonas
   Re:
   Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90 on certain marketing standards for poultry (OJ 1991 L 143, p. 11), and of Article 70(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Application for export refunds for frozen chicken — Conditions as to merchantable quality of products where examination of samples has shown that a proportion of the chicken did not meet the requirements laid down in Article 6 of Regulation (EEC) No 1538/91
   Operative part of the judgment
   The Court rules:

               1.

               For the purpose of establishing whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’, Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90, as amended by Commission Regulation (EC) No 1000/96 of 4 June 1996, which lays down minimum quality requirements and tolerance margins, in particular Articles 6 and 7, applies.

               2.

                           (a)

                           In circumstances such as those of the main proceedings, Article 70 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, applies, subject to the proper conduct of the examination referred to therein, where it is necessary to establish whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’.

                           (b)

                           The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation No 2913/92, as amended by Regulation No 82/97, does not apply if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91.

               3.

               In circumstances such as those of the case in the main proceedings, it is for the national administrative and judicial authorities to establish the facts by taking into account all of the evidence. Such evidence may include available samples but also other information, in particular the examination account produced in accordance with Community legislation by the customs officer who carried out the physical checks. In the event that the facts cannot be conclusively established for the purpose of entitlement to the refund, it is for the national court to assess the exporter's conduct and that of the customs authority by establishing the extent to which each has, or has not, exercised its rights and fulfilled its obligations and to draw the appropriate conclusions concerning entitlement to the export refund.

      (1)  OJ C 262, 23.10.2004.


title: Case T-23/07: Judgment of the Court of First Instance of 29 April 2009 — BORCO-Marken-Import Matthiesen v OHIM (α) (Community trade mark — Application for the Community figurative mark α — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/38

         Judgment of the Court of First Instance of 29 April 2009 — BORCO-Marken-Import Matthiesen v OHIM (α)
   (Case T-23/07) (1)

   (Community trade mark - Application for the Community figurative mark α - Absolute ground for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)
   2009/C 141/78
   Language of the case: German

      Parties

      Applicant: BORCO-Marken-Import Matthiesen GmbH & Co. KG (Hamburg, Germany) (represented by: M. Wolter, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Kicia, acting as Agent)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 30 November 2006 (Case R 808/2006-4), concerning the registration as a Community trade mark of the figurative sign α

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 November 2006 (Case R 808/2006-4);

               2.

               Declares that there is no need to adjudicate on the second head of claim of BORCO-Marken-Import Matthiesen GmbH & Co. KG;

               3.

               Orders OHIM to pay the costs.

      (1)  OJ C 69, 24.3.2007.


title: Case C-379/03 P: Appeal brought on 10 September 2003 by Rafael Pérez Escolar against the order delivered on 25 June 2003 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-41/01 between Rafael Pérez Escolar and the Commission of the European Communities

text:
C 251/8               EN                      Official Journal of the European Union                                         18.10.2003
—     Infringement/misapplication of Article 8(2) of Regulation        Appeal brought on 10 September 2003 by Rafael Pérez
      No 729/70 since there was an error as to the facts in so         Escolar against the order delivered on 25 June 2003 by
      far as misassessment of irregularities or negligence is          the Court of First Instance of the European Communities
      concerned;                                                       (Fourth Chamber, Extended Composition) in Case T-41/01
                                                                       between Rafael Pérez Escolar and the Commission of the
                                                                                European Communities
—     Infringement of an essential procedural requirement
      since there is an insufficient statement of reasons                                      (Case C-379/03 P)
      (Article 253 EC).
                                                                                (2003/C 251/17)
                                                                       An appeal against the order delivered on 25 June 2003 by the
                                                                       Court of First Instance of the European Communities (Fourth
                                                                       Chamber, Extended Composition) in Case T-41/01 between
                                                                       Rafael Pérez Escolar and the Commission of the European
                                                                       Communities was brought before the Court of Justice of the
Action brought on 8 September 2003 by the Commission                   European Communities on 10 September 2003 by Rafael
of the European Communities against the Grand Duchy                    Pérez Escolar represented by Fernando Moreno Pardo.
                         of Luxembourg
                        (Case C-375/03)
                                                                       The appellant claims that the Court should:
                        (2003/C 251/16)
An action against the Grand Duchy of Luxembourg was                    —     Accept the application, its copies and annexes, allow the
brought before the Court of Justice of the European                          present appeal subject to the relevant procedure and set
Communities on 8 September 2003 by the Commission of                         aside the order of the Court of First Instance of 25 June
the European Communities, represented by W. Wils, acting as                  2003, by declaring admissible the action for failure to act
Agent, with an address for service in Luxembourg.                            brought before the Court of First Instance, and in the
                                                                             event that it considers it appropriate, hear and decide the
                                                                             case itself by declaring that the Commission, by failing to
                                                                             adopt any decision whatsoever on the complaint submit-
The Commission of the European Communities claims that                       ted by the appellant's representatives on 23 February
the Court should:                                                            1999 on the State aid granted by the Banco Español de
                                                                             Credito S.A. and Banco Santander S.A., had failed to act;
1.   declare that, by failing to adopt the laws, regulations and
     administrative provisions necessary to comply with
     Directive 2000/30/EC of the European Parliament and of            —     Alternatively, in the event that the Court does not con-
     the Council of 6 June 2000 on the technical roadside                    sider it appropriate to hear and determine the case itself,
     inspection of the roadworthiness of commercial vehicles                 the Court should refer the case back to the Court of First
     circulating in the Community (1) and, in any event, by                  Instance in order for it to hear and determine the sub-
     failing to communicate them to the Commission,                          stance of the case;
     Luxembourg has failed to fulfil its obligations under that
     directive;
                                                                       —     In any event, order the Commission of the European
                                                                             Communities to pay all the costs arising from the pro-
2.   order Luxembourg to pay the costs.                                      ceedings both at first instance and on appeal.
Pleas in law and main arguments
                                                                       Pleas and main arguments
The period prescribed for implementing the directive expired
on 10 August 2002.
                                                                       The Court of First Instance erred in law in holding that the
                                                                       applicant did not have locus standi to bring an action for failure
                                                                       to act against the Commission for not adopting any decision
(1) OJ L 203 of 10.08.2000, p. 1.                                      whatever on the complaint submitted. The Court of First
                                                                       Instance held that the criteria for locus standi for the purposes
                                                                       of an action for failure to act under Article 232 EC are the
 ---pagebreak--- 18.10.2003            EN                        Official Journal of the European Union                                     C 251/9
same as the express formal requirements laid down by                  15 September 2003 by the Commission of the European
Article 230 EC. Moreover, that excessively restrictive interpre-      Communities, represented by A. Bordes, acting as Agent,
tation impairs effective judicial protection.                         with an address for service in Luxembourg.
Secondly, the Court of First Instance considered that the
requirement of direct and individual concern amounts to
being a requirement that a person should be a ‘party con-             The Commission of the European Communities claims that
cerned’ within the meaning of Article 88(2) EC; it also took the      the Court should:
view that waiver of the share warrant required by the State aid
package is not sufficient to result in the applicant's being
directly and individually concerned, and wrongly held that
the applicant is trying to obtain compensation for the damage         1.   declare that, by not adopting the laws, regulations and
suffered during the Commission's procedure investigating                   administrative provisions necessary to comply with
whether the measure complied with Community law.                           Council Directive 1999/74/EC of 19 July 1999 laying
                                                                           down minimum standards for the protection of laying
                                                                           hens (1), the Kingdom of Belgium has failed to fulfil its
                                                                           obligations under that directive;
                                                                      2.   order the Kingdom of Belgium to pay the costs.
Action brought on 15 September 2003 by the
Commission of the European Communities against the                    Pleas in law and main arguments
                     Kingdom of Belgium
                        (Case C-389/03)
                                                                      The time-limit for transposition of the directive expired on
                                                                      1 January 2002.
                        (2003/C 251/18)
An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on                   (1) OJ 1999 L 203, p. 53.


title: Case C-385/10: Judgment of the Court (Fifth Chamber) of 18 October 2012 (reference for a preliminary ruling from the Consiglio di Stato — Italy) — Elenca Srl v Ministero dell’Interno (Free movement of goods — Quantitative restrictions and measures having equivalent effect — Internal liners in flues and chimney pipes — Lack of CE conformity marking — Marketing precluded)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/3

         Judgment of the Court (Fifth Chamber) of 18 October 2012 (reference for a preliminary ruling from the Consiglio di Stato — Italy) — Elenca Srl v Ministero dell’Interno
   (Case C-385/10) (1)

   (Free movement of goods - Quantitative restrictions and measures having equivalent effect - Internal liners in flues and chimney pipes - Lack of CE conformity marking - Marketing precluded)
   2012/C 379/04
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Elenca Srl

      Defendant: Ministero dell’Interno

      Re:

   Reference for a preliminary ruling — Consiglio di Stato — Interpretation of Articles 2, 4(2), 5 and 6 of Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (OJ 1989 L 40, p. 12) — Products not covered by harmonised standards as provided for in the directive — National rules that preclude the marketing of plastic internal flue or chimney pipe linings not bearing EC marking

      Operative part of the judgment

               1.

               Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, must be interpreted as precluding national provisions which automatically make the marketing of construction products, such as those at issue in the main proceedings, originating from another Member State, subject to the affixing of CE marking.

               2.

               Articles 34 TFEU to 37 TFEU must be interpreted as precluding national provisions which automatically make the marketing of construction products, such as those at issue in the main proceedings, originating from another Member State, subject to the affixing of CE marking.

      (1)  OJ C 274, 9.10.2010.


13.7.2002             EN                     Official Journal of the European Communities                                   C 169/43
The applicant claims that the Court should:                                    Removal from the register of Case T-203/00 (1)
—     partially annul Decision R 34/2000-1 of the First Board                                   (2002/C 169/76)
      of Appeal of 21 February 2002 to the extent that the
      applicant was ordered to bear half of the opposition fees                            (Language of the case: Dutch)
      as well as its owns costs in the opposition and appeal
      proceedings;
—     order the Office to pay the costs.                                By order of 25 February 2002 the President of the Third
                                                                        Chamber of the Court of First Instance of the European
                                                                        Communities ordered the removal from the register of Case
                                                                        T-203/00: Beemsterboer Coldstore Services B.V. v Commission
Pleas in law and main arguments                                         of the European Communities.
The applicant filed an application for registration of the word         (1) OJ C 302 of 21.10.2000.
mark ‘METABALANCE 44’ in respect of goods in Classes 5
and 29 at the Office for Harmonisation in the Internal Market
(application no 155747). Frieslands Brands B.V. opposed that
application. The opposition was based on various national and
international marks including, inter alia, ‘BALANCE’, ‘BALANS’
and ‘FRIESISCHE FLAGGE BALANCE’ in respect of, inter alia,                     Removal from the register of Case T-309/00 (1)
goods in Classes 5 and 29.
                                                                                (2002/C 169/77)
As a result of a private settlement with the opponent, the
applicant limited the category of goods by removing some of                                (Language of the case: French)
the goods claimed in Class 29. The opponent later withdrew
its opposition but sought a decision on costs.
                                                                        By order of 17 April 2002 the President of the First Chamber
The Opposition Division decided that the applicant should               of the Court of First Instance of the European Communities
bear the costs of the opposition procedure. The Board of                ordered the removal from the register of Case T-309/00: S.A.
Appeal set this decision aside and ordered each of the parties          Cimenteries CBR v Commission of the European Communities.
to pay its own costs in respect of the opposition and appeal
proceedings.                                                            (1) OJ C 335 of 25.11.2000.
The applicant is appealing against the decision of the Board of
Appeal and claims that the more specific Article 81(4) of
Council Regulation (EC) No 40/94 (1) , not Article 81(3), is
applicable in the present case. The defendant thus failed to
take into account the fundamental assessment criteria and to                   Removal from the register of Case T-14/02 (1)
observe the principle of proportionality.
                                                                                (2002/C 169/78)
Moreover, in the applicant’s opinion, the defendant also
wrongly applied the assessment criteria in Article 81(3) in                               (Language of the case: English)
conjunction with Article 81(2) of Council Regulation (EC)
No 40/94. In the applicant’s view, that provision requires
that a decision on costs should take into account general               By order of 9 April 2002 the President of the Fifth Chamber
considerations of equity and fairness.                                  of the Court of First Instance of the European Communities
                                                                        ordered the removal from the register of Case T-14/02:
                                                                        Agrofair Benelux BV and Others v Commission of the
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the         European Communities.
    Community trade mark (OJ 1994 L 11, p. 1).
                                                                        (1) OJ C 109 of 4.5.2002.