title: Case T-386/02: Action brought on 16 December 2002 by Lamprecht A.G. against Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM)

text:
C 55/32                  EN                          Official Journal of the European Union                                        8.3.2003
Finally, the applicant alleges breach of the principle of                    Pleas in law and main arguments
proportionality and breach of the principle of the protection of
legitimate expectations based on the existence of Community
financing for the production and marketing of ‘Feta’.                        The applicant is an official at the Commission in Brussels. In
                                                                             June 2000, on taking up his appointment, he settled in
                                                                             Brussels. His spouse subsequently settled in Brussels with him
( 1) OJ L 277, p. 10.                                                        and organised the removal of the family, which took place on
( 2) Judgment in Joined Cases C-289/96, C-293/96 and C-299/96                11 April 2001, whilst continuing to be present at her
     Denmark and Others v Commission [1999] ECR I-1541.                      former home in Madrid, where their youngest daughter was
( 3) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the              completing her secondary education. Consequently, his spouse
     protection of geographical indications and designations of origin       and daughter did not join him until July 2001, which they
     for agricultural products and foodstuffs (OJ L 208, p. 1).              declared to the Privileges and Immunities service.
                                                                             By the contested decision, the Commission refused to pay the
                                                                             applicant the second half of the installation allowance.
                                                                             In support of his action, the applicant pleads an error of law
                                                                             and a manifest error of assessment. According to the applicant,
Action brought on 18 December 2002 by Fernando                               the administration attached decisive importance to the declar-
Valenzuela Marzo against Commission of the European                          ations made by his spouse and daughter to the Privileges and
                            Communities                                      Immunities service. The applicant states that the concept of
                                                                             installation is a factual concept and that the text of the Staff
                                                                             Regulations does not prescribe any particular mode of proof.
                           (Case T-384/02)
                                                                             The applicant also pleads an error of law and an omission of
                           (2003/C 55/83)                                    essential facts, since the administration considered the period
                                                                             laid down by Articles 5(4) and 9(3) of Annex VII to the Staff
                                                                             Regulations to be a mandatory time-limit and did not consider
                      (Language of the case: French)                         the possibility of waiving it by reason of the complainant’s
                                                                             establishment as an official on taking up his appointment and
                                                                             the fact that his daughter was unable to join her parents in
                                                                             Brussels before the end of the school year.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 18 December 2002 by Fernando
Valenzuela Marzo, residing in Brussels, represented by Marc-
Albert Lucas, lawyer.
The applicant claims that the Court should:                                  Action brought on 16 December 2002 by Lamprecht A.G.
                                                                             against Office for Harmonisation in the Internal Market
—      annul the decisions of the head of the Administration of                            (trade marks and designs) (OHIM)
       Individual Rights unit of the Adminstration Directorate-
       General of 16 November 2001 and 13 February 2002                                               (Case T-386/02)
       refusing the applicant the second half of the installation
       allowance;
                                                                                (2003/C 55/84)
—      annul the decision of the appointing authority of 16 Sep-
       tember 2002 rejecting the complaint through official                                     (Language of the case: Spanish)
       channels of 9 May 2002 against the abovementioned
       decisions;
—      order the Commission to pay the applicant the second
                                                                             An action against Office for Harmonisation in the Internal
       half of his installation allowance together with default              Market (trade marks and designs) (OHIM) was brought before
       interest at the rate of 8 % per annum with effect from
                                                                             the Court of First Instance of the European Communities on
       11 April 2001 and until payment is made in full;
                                                                             16 December 2002 by Lamprecht A.G., whose registered
                                                                             office is in Madrid, represented by Enrique Armijo Chávarri
—      order the Commission to pay the costs.                                and Antonio Castán Pérez-Gómez.
 ---pagebreak--- 8.3.2003              EN                          Official Journal of the European Union                                            C 55/33
The applicant claims that the Court should:                                     ing additives in feedingstuffs as regards withdrawal of the
                                                                                authorisation of an additive and amending Commission
—     annul the decision of the Second Board of Appeal of the                   Regulation (EC) No 2430/1999;
      Office for Harmonization in the Internal Market (OHIM)
      of 1 October 2002 in Case 114/2000-1;
                                                                          —     order the Council to pay the costs;
—     order the defendant to pay the costs.
                                                                          —     in the alternative, should the application be dismissed on
                                                                                the merits, apply the first subparagraph of Article 87(3)
Pleas in law and main arguments                                                 of the Rules of Procedure and order the Council to pay
                                                                                the costs, in view of the persistent lack of cooperation
Applicant for the Com-        J. Tricot & Sons Ltd.                             and transparency on the part of the Commission in the
munity trade mark:                                                              administrative handling of the case.
The Community trade           ‘EMOS’          —       Application
mark concerned:               No 133637 for goods in Class 25
                              (articles of clothing)
Proprietor of the right to    Applicant                                   Pleas in law and main arguments
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                              The applicant manufactures Nifursol, a feedingstuff additive.
                                                                          The applicant is contesting Council Regulation No 1756/
Trade mark or sign            German trade mark ‘EMOSWISS’                2002 (1). The contested regulation amends Council Directive
asserted by way of oppo-      registered in respect of goods              70/524/EEC ( 2) concerning additives in feeding-stuffs and
sition in the opposition      within Classes 10, 24 and 25                withdraws authorisation to place Nifursol on the market. That
proceedings:                                                              authorisation is linked, by virtue of Regulation No 2430/
Decision of the Oppo-         Application rejected                        1999 (3), to the person responsible for putting the product
                                                                          into circulation, in this case the applicant.
sition Division:
Decision of the Board of      Appeal dismissed
Appeal:
                                                                          In support of its application, the applicant alleges infringement
Grounds of claim:             Misapplication of Article 8(1)(b)           of Articles 9m and 3a(b) of Directive 70/524/EEC and breach
                              of Regulation (EC) No 40/94 (like-          of the precautionary principle. The sixth recital in the preamble
                              lihood of confusion).                       to the contested regulation states that it could not be guaran-
                                                                          teed that Nifursol does not present a risk for human health.
                                                                          According to the applicant, the Council altered the test
                                                                          referred to in the abovementioned articles according to which
                                                                          authorisation may be withdrawn only where it becomes
                                                                          apparent that the additive adversely affects human or animal
                                                                          health or the environment, or harms the consumer by
Action brought on 26 December 2002 by Solvay Pharma-
                                                                          impairing the characteristics of products.
    ceuticals B.V. against Council of the European Union
                         (Case T-392/02)
                                                                          The applicant further points out that the Council cannot rely
                         (2003/C 55/85)                                   on the precautionary principle since no reference is made
                                                                          thereto. In any event, the applicant claims that the Council is
                   (Language of the case: French)                         in fact choosing a purely hypothetical risk criterion which is
                                                                          irreconcilable with the case-law of the Court of First Instance
                                                                          which rules out a zero-risk level when applying the precaution-
                                                                          ary principle.
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 26 December 2002 by Solvay Pharmaceut-
icals B.V., established in Weesp (Netherlands), represented by            The applicant also alleges infringement of the fifth indent of
Callista Meijer, Francis Herbert and Michel L. Struys, lawyers,           Article 9m of Directive 70/524 as amended and of the general
with an address for service in Luxembourg.                                principle of equal treatment. According to the applicant, the
                                                                          Council and the Commission could not base themselves on
The applicant claims that the Court should:                               the inadequacy of the information provided in order to
                                                                          withdraw authorisation, when the Commission has not made
—     annul Council Regulation (EC) No 1756/2002 of 23 Sep-               use of its powers to enjoin the person responsible for placing
      tember 2002 amending Directive 70/524/EEC concern-                  an additive on the market to provide it with information.


title: Information note on references from national courts for a preliminary ruling

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/1

         Following the entry into force of the Treaty of Lisbon, this note replaces the information note published in OJ 2005 C 143, p. 1 and the supplement to that note published in OJ 2008 C 64.

      INFORMATION NOTE

   on references from national courts for a preliminary ruling
   2009/C 297/01
   I.   General

               1.

               The preliminary ruling system is a fundamental mechanism of European Union law aimed at enabling national courts to ensure uniform interpretation and application of that law in all the Member States.

               2.

               The Court of Justice of the European Union has jurisdiction to give preliminary rulings on the interpretation of European Union law and on the validity of acts of the institutions, bodies, offices or agencies of the Union. That general jurisdiction is conferred on it by Article 19(3)(b) of the Treaty on European Union (OJEU 2008 C 115, p. 13) (‘the TEU’) and Article 267 of the Treaty on the Functioning of the European Union (OJEU 2008 C 115, p. 47) (‘the TFEU’).

               3.

               Article 256(3) TFEU provides that the General Court is to have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute. Since no provisions have been introduced into the Statute in that regard, the Court of Justice alone has jurisdiction to give preliminary rulings.

               4.

               While Article 267 TFEU confers on the Court of Justice a general jurisdiction, a number of provisions exist which lay down exceptions to or restrictions on that jurisdiction. This is true in particular of Articles 275 and 276 TFEU and Article 10 of Protocol (No 36) on Transitional Provisions of the Treaty of Lisbon (OJEU 2008 C 115, p. 322).

               5.

               The preliminary ruling procedure being based on cooperation between the Court of Justice and national courts, it may be helpful, in order to ensure that that cooperation is effective, to provide the national courts with the following information.

               6.

               This practical information, which is in no way binding, is intended to provide guidance to national courts as to whether it is appropriate to make a reference for a preliminary ruling and, should they proceed, to help them formulate and submit questions to the Court.

      The role of the Court of Justice in the preliminary ruling procedure

               7.

               Under the preliminary ruling procedure, the Court’s role is to give an interpretation of European Union law or to rule on its validity, not to apply that law to the factual situation underlying the main proceedings, which is the task of the national court. It is not for the Court either to decide issues of fact raised in the main proceedings or to resolve differences of opinion on the interpretation or application of rules of national law.

               8.

               In ruling on the interpretation or validity of European Union law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply, if necessary by disapplying the rule of national law in question.

      The decision to submit a question to the Court

         The originator of the question

               9.

               Under Article 267 TFEU, any court or tribunal of a Member State, in so far as it is called upon to give a ruling in proceedings intended to arrive at a decision of a judicial nature, may as a rule refer a question to the Court of Justice for a preliminary ruling (1). Status as a court or tribunal is interpreted by the Court of Justice as a self-standing concept of European Union law.

               10.

               It is for the national court alone to decide whether to refer a question to the Court of Justice for a preliminary ruling, whether or not the parties to the main proceedings have requested it to do so.

         References on interpretation

               11.

               Any court or tribunal may refer a question to the Court of Justice on the interpretation of a rule of European Union law if it considers it necessary to do so in order to resolve a dispute brought before it.

               12.

               However, courts or tribunals against whose decisions there is no judicial remedy under national law must, as a rule, refer such a question to the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case-law may be applied), or unless the correct interpretation of the rule of law in question is obvious.

               13.

               Thus, a court or tribunal against whose decisions there is a judicial remedy may, in particular when it considers that sufficient guidance is given by the case-law of the Court of Justice, itself decide on the correct interpretation of European Union law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful, at an appropriate stage of the proceedings, when there is a new question of interpretation of general interest for the uniform application of European Union law in all the Member States, or where the existing case-law does not appear to be applicable to a new set of facts.

               14.

               It is for the national court to explain why the interpretation sought is necessary to enable it to give judgment.

         References on determination of validity

               15.

               Although national courts may reject pleas raised before them challenging the validity of acts of an institution, body, office or agency of the Union, the Court of Justice has exclusive jurisdiction to declare such an act invalid.

               16.

               All national courts must therefore refer a question to the Court when they have doubts about the validity of such an act, stating the reasons for which they consider that that act may be invalid.

               17.

               However, if a national court has serious doubts about the validity of an act of an institution, body, office or agency of the Union on which a national measure is based, it may exceptionally suspend application of that measure temporarily or grant other interim relief with respect to it. It must then refer the question of validity to the Court of Justice, stating the reasons for which it considers the act to be invalid.

      The stage at which to submit a question for a preliminary ruling

               18.

               A national court or tribunal may refer a question to the Court for a preliminary ruling as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment; it is the national court which is in the best position to decide at what stage of the proceedings such a question should be referred.

               19.

               It is, however, desirable that a decision to seek a preliminary ruling should be taken when the national proceedings have reached a stage at which the national court is able to define the factual and legal context of the question, so that the Court of Justice has available to it all the information necessary to check, where appropriate, that European Union law applies to the main proceedings. It may also be in the interests of justice to refer a question for a preliminary ruling only after both sides have been heard.

      The form of the reference for a preliminary ruling

               20.

               The decision by which a national court or tribunal refers a question to the Court of Justice for a preliminary ruling may be in any form allowed by national law as regards procedural steps. It must however be borne in mind that it is that document which serves as the basis of the proceedings before the Court and that it must therefore contain such information as will enable the latter to give a reply which is of assistance to the national court. Moreover, it is only the actual reference for a preliminary ruling which is notified to the interested persons entitled to submit observations to the Court, in particular the Member States and the institutions, and which is translated.

               21.

               Owing to the need to translate the reference, it should be drafted simply, clearly and precisely, avoiding superfluous detail.

               22.

               A maximum of about 10 pages is often sufficient to set out in a proper manner the context of a reference for a preliminary ruling. The order for reference must be succinct but sufficiently complete and must contain all the relevant information to give the Court and the interested persons entitled to submit observations a clear understanding of the factual and legal context of the main proceedings. In particular, the order for reference must:

                           —

                           include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based;

                           —

                           set out the tenor of any applicable national provisions and identify, where necessary, the relevant national case-law, giving in each case precise references (for example, a page of an official journal or specific law report, with any internet reference);

                           —

                           identify the European Union law provisions relevant to the case as accurately as possible;

                           —

                           explain the reasons which prompted the national court to raise the question of the interpretation or validity of the European Union law provisions, and the relationship between those provisions and the national provisions applicable to the main proceedings;

                           —

                           include, if need be, a summary of the main relevant arguments of the parties to the main proceedings.

                     In order to make it easier to read and refer to the document, it is helpful if the different points or paragraphs of the order for reference are numbered.

               23.

               Finally, the referring court may, if it considers itself able, briefly state its view on the answer to be given to the questions referred for a preliminary ruling.

               24.

               The question or questions themselves should appear in a separate and clearly identified section of the order for reference, generally at the beginning or the end. It must be possible to understand them without referring to the statement of the grounds for the reference, which will however provide the necessary background for a proper assessment.

      The effects of the reference for a preliminary ruling on the national proceedings

               25.

               A reference for a preliminary ruling calls for the national proceedings to be stayed until the Court of Justice has given its ruling.

               26.

               However, the national court may still order protective measures, particularly in connection with a reference on determination of validity (see point 17 above).

      Costs and legal aid

               27.

               Preliminary ruling proceedings before the Court of Justice are free of charge and the Court does not rule on the costs of the parties to the main proceedings; it is for the national court to rule on those costs.

               28.

               If a party has insufficient means and where it is possible under national rules, the national court may grant that party legal aid to cover the costs, including those of lawyers’ fees, which it incurs before the Court. The Court itself may also grant legal aid where the party in question is not already in receipt of legal aid under national rules or to the extent to which that aid does not cover, or covers only partly, costs incurred before the Court.

      Communication between the national court and the Court of Justice

               29.

               The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post (addressed to the Registry of the Court of Justice, L-2925 Luxembourg, telephone +352 4303-1).

               30.

               The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents.

               31.

               The Court of Justice will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court’s final decision.

         II.   The Urgent preliminary ruling procedure (PPU)

               32.

               This part of the note provides practical information on the urgent preliminary ruling procedure applicable to references relating to the area of freedom, security and justice. The procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Article 104b of the Rules of Procedure of the Court of Justice. National courts may request that this procedure be applied or request the application of the accelerated procedure under the conditions laid down in Article 23a of the Protocol and Article 104a of the Rules of Procedure.

      Conditions for the application of the urgent preliminary ruling procedure

               33.

               The urgent preliminary ruling procedure is applicable only in the areas covered by Title V of Part Three of the TFEU, which relates to the area of freedom, security and justice.

               34.

               The Court of Justice decides whether this procedure is to be applied. Such a decision is generally taken only on a reasoned request from the referring court. Exceptionally, the Court may decide of its own motion to deal with a reference under the urgent preliminary ruling procedure, where that appears to be required.

               35.

               The urgent preliminary ruling procedure simplifies the various stages of the proceedings before the Court, but its application entails significant constraints for the Court and for the parties and other interested persons participating in the procedure, particularly the Member States.

               36.

               It should therefore be requested only where it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible. Although it is not possible to provide an exhaustive list of such situations, particularly because of the varied and evolving nature of the rules of European Union law governing the area of freedom, security and justice, a national court or tribunal might, for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the following situations: in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation or, in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling.

      The request for application of the urgent preliminary ruling procedure

               37.

               To enable the Court to decide quickly whether the urgent preliminary ruling procedure should be applied, the request must set out the matters of fact and law which establish the urgency and, in particular, the risks involved in following the normal preliminary ruling procedure.

               38.

               In so far as it is able to do so, the referring court should briefly state its view on the answer to be given to the question(s) referred. Such a statement makes it easier for the parties and other interested persons participating in the procedure to define their positions and facilitates the Court’s decision, thereby contributing to the rapidity of the procedure.

               39.

               The request for the urgent preliminary ruling procedure must be submitted in a form that enables the Court Registry to establish immediately that the file must be dealt with in a particular way. Accordingly, the request should be submitted in a document separate from the order for reference itself, or in a covering letter expressly setting out the request.

               40.

               As regards the order for reference itself, it is particularly important that it should be succinct where the matter is urgent, as this will help to ensure the rapidity of the procedure.

      Communication between the Court of Justice, the national court and the parties

               41.

               As regards communication with the national court or tribunal and the parties before it, national courts or tribunals which submit a request for an urgent preliminary ruling procedure are requested to state the e-mail address or any fax number which may be used by the Court of Justice, together with the e-mail addresses or any fax numbers of the representatives of the parties to the proceedings.

               42.

               A copy of the signed order for reference together with a request for the urgent preliminary ruling procedure can initially be sent to the Court by e-mail (ECJ-Registry@curia.europa.eu) or by fax (+352 43 37 66). Processing of the reference and of the request can then begin upon receipt of the e-mailed or faxed copy. The originals of those documents must, however, be sent to the Court Registry as soon as possible.

      (1)  Article 10(1) to (3) of Protocol No 36 provides that the powers of the Court of Justice in relation to acts adopted before the entry into force of the Treaty of Lisbon (OJ 2007 C 306, p. 1) under Title VI of the TEU, in the field of police cooperation and judicial cooperation in criminal matters, and which have not since been amended, are, however, to remain the same for a maximum period of five years from the date of entry into force of the Treaty of Lisbon (1 December 2009). During that period, such acts may, therefore, form the subject-matter of a reference for a preliminary ruling only where the order for reference is made by a court of a Member State which has accepted the jurisdiction of the Court of Justice, it being a matter for each State to determine whether the right to refer a question to the Court is to be available to all of its national courts or is to be reserved to the courts of last instance.


title: Case C-404/15: Request for a preliminary ruling from the Hanseatisches Oberlandesgericht in Bremen (Germany) lodged on 24 July 2015 — Criminal proceedings against Pál Aranyosi

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/18

         Request for a preliminary ruling from the Hanseatisches Oberlandesgericht in Bremen (Germany) lodged on 24 July 2015 — Criminal proceedings against Pál Aranyosi
   (Case C-404/15)
   (2015/C 320/26)
   Language of the case: German

      Referring court

   Hanseatisches Oberlandesgericht in Bremen

      Party/parties to the main proceedings

   Pál Aranyosi

      Other party: Generalstaatsanwaltschaft Bremen

      Questions referred

               1.

               Is Article 1(3) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (1) to be interpreted as meaning that extradition for the purposes of prosecution is impermissible where there are strong indications that detention conditions in the issuing Member State infringe the fundamental rights of the person concerned and the fundamental legal principles as enshrined in Article 6 of the Treaty on European Union, or is it to be interpreted as meaning that, in such circumstances, the executing Member State can or must make the decision on the permissibility of extradition conditional upon an assurance that detention conditions are compliant? To that end, can or must the executing Member State lay down specific minimum requirements applicable to the detention conditions in respect of which an assurance is sought?

               2.

               Are Articles 5 and 6(1) of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) to be interpreted as meaning that the issuing judicial authority is also entitled to give assurances that detention conditions are compliant, or do assurances in this regard remain subject to the domestic rules of competence in the issuing Member State?

      (1)  OJ 2002 L 190, p. 1.


title: Case T-330/09: Order of the General Court of 17 February 2011 — RapidEye v Commission (Action for annulment — State aid — Aid granted by the German authorities pursuant to the multi-sectoral framework on regional aid — Satellite-based geo-information services system project — Request for confirmation of the scope of a decision declaring aid to be compatible with the common market — Commission's response — Measure not open to appeal — Inadmissibility)

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/13

         Order of the General Court of 17 February 2011 — RapidEye v Commission
   (Case T-330/09) (1)

   (Action for annulment - State aid - Aid granted by the German authorities pursuant to the multi-sectoral framework on regional aid - Satellite-based geo-information services system project - Request for confirmation of the scope of a decision declaring aid to be compatible with the common market - Commission's response - Measure not open to appeal - Inadmissibility)
   2011/C 113/25
   Language of the case: German

      Parties

      Applicant: RapidEye AG (Brandenbourg-sur-la-Havel, Germany) (represented by: T. Jestaedt, lawyer)

      Defendant: European Commission (represented by: K. Gross and B. Martenczuk, Agents)

      Re:

   Application for annulment of the decision allegedly contained in the letter from the Commission of 9 June 2009, relating to the aid granted to RapidEye AG by the German authorities for the creation of a satellite-based geo-information services system (State Aid CP 183/2009 — Germany, RapidEye AG (ex-post monitoring MSR 1998 — N 416/2002)).

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               RapidEye AG shall pay the costs.

      (1)  OJ C 267, 7.11.2009.


title: Judgment of the Court (Sixth Chamber) of 6 April 2000 in Case C-226/98 (reference for a preliminary ruling from the Østre Landsret): Birgitte Jørgensen v Foreningen af Speciallæger, Sygesikringens Forhandlingsudvalg (Directives 76/207/EEC and 86/613/EEC — Equal treatment for men and women — Self-employed activity — Downgrading of medical practices)

text:
24.6.2000               EN                      Official Journal of the European Communities                                                 C 176/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       gio; Registrar: H. von Holstein, Deputy Registrar, has given a
                                                                             judgment on 6 April 2000, in which it has ruled:
                         (Sixth Chamber)
                                                                             1. In order to determine whether indirect discrimination on grounds
                          of 6 April 2000                                        of sex exists in a case concerning equal treatment such as the
                                                                                present case, Council Directive 76/207/EEC of 9 February 1976
in Case C-226/98 (reference for a preliminary ruling from                        on the implementation of the principle of equal treatment for
the Østre Landsret): Birgitte Jørgensen v Foreningen af                          men and women as regards access to employment, vocational
    Speciallæger, Sygesikringens Forhandlingsudvalg (1)                          training and promotion, and working conditions and Council
                                                                                Directive 86/613/EEC of 11 December 1986 on the application
                                                                                of the principle of equal treatment between men and women
(Directives 76/207/EEC and 86/613/EEC — Equal treatment                          engaged in an activity, including agriculture, in a self-employed
for men and women — Self-employed activity — Downgrad-                           capacity, and on the protection of self-employed women during
                     ing of medical practices)                                   pregnancy and motherhood must be interpreted as requiring a
                                                                                separate assessment to be made of each of the key conditions
                          (2000/C 176/01)                                        governing the exercise of a professional activity laid down in the
                                                                                contested provisions, in so far as those key elements constitute in
                                                                                themselves specific measures based on their own criteria of
                                                                                application and affecting a significant number of persons
                   (Language of the case: Danish)                                belonging to a determined category.
(Provisional translation; the definitive translation will be published       2. Budgetary considerations cannot in themselves justify discrimi-
                   in the European Court Reports)                                nation on grounds of sex. However, measures intended to ensure
                                                                                sound management of public expenditure on specialised medical
In Case C-226/98: reference to the Court under Article 177 of                    care and to guarantee people’s access to such care may be justified
the EC Treaty (now Article 234 EC) by the Østre Landsret                         if they meet a legitimate objective of social policy, are appropriate
(Denmark), for a preliminary ruling in the proceedings pending                   to attain that objective and are necessary to that end.
before that court between Birgitte Jørgensen and Foreningen
af Speciallæger, Sygesikringens Forhandlingsudvalg — on the
interpretation of Council Directive 76/207/EEC of 9 February                 3. The price which a doctor may receive for goodwill when the
1976 on the implementation of the principle of equal treat-                      doctor ceases activity on reaching retirement age cannot be treated
ment for men and women as regards access to employment,                          as equivalent to the retirement pension of an employed worker.
vocational training and promotion, and working conditions
(OJ 1976 L 39, p. 40) and Council Directive 86/613/EEC of
11 December 1986 on the application of the principle of equal
treatment between men and women engaged in an activity,
including agriculture, in a self-employed capacity, and on the               (1) OJ C 278 of 5.9.1998.
protection of self-employed women during pregnancy and
motherhood (OJ 1986 L 359, p. 56) — the Court (Sixth
Chamber), composed of: J.C. Moitinho de Almeida, President
of the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur),
G. Hirsch and F. Macken, Judges; Advocate General: M.A. Sag-


title: Judgment of the Court (Sixth Chamber) of 8 March 2001 in Case C-266/99: Commission of the European Communities v French Republic (Failure of Member State to fulfil its obligations — Quality of surface water intended for the abstraction of drinking water — Directive 75/440/EEC — Conditions of drinking water abstraction in Brittany)

text:
C 173/16                 EN                     Official Journal of the European Communities                                          16.6.2001
Article 19(1) of Council Regulation (EEC) No 1408/71 of 14 June            1.    Declares that, by failing to take the necessary measures to
1971 on the application of social security schemes to employed                   ensure that the quality of surface water intended for the
persons, to self-employed persons and to members of their families               abstraction of drinking water conforms to the values laid down
moving within the Community, as amended and updated by Council                   pursuant to Article 3 of Council Directive 75/440/EEC of
Regulation (EC) No 118/97 of 2 December 1996, and the                            16 June 1975 concerning the quality required of surface water
corresponding provisions of the other sections of Chapter 1 of Title III         intended for the abstraction of drinking water in the Member
of that regulation preclude entitlement to Pflegegeld (care allowance)           States, the French Republic has failed to fulfil its obligations
under the Bundespflegegeldgesetz (Austrian Federal Law on care                   under Article 4 of that directive;
allowance) from being subject to the condition that the person reliant
on care must be habitually resident in Austria.                            2.    Orders the French Republic to pay the costs.
(1) OJ C 226 of 7.8.1999.
                                                                           (1) OJ C 281 of 2.10.1999.
                  JUDGMENT OF THE COURT
                                                                                JUDGMENT OF THE COURT
                           (Sixth Chamber)
                                                                                (Sixth Chamber)
                           of 8 March 2001
in Case C-266/99: Commission of the European Communi-                                               of 8 March 2001
                      ties v French Republic (1)
                                                                           in Case C-278/99 (reference for a preliminary ruling from
(Failure of Member State to fulfil its obligations — Quality               the Hoge Raad der Nederlanden): Criminal proceedings
of surface water intended for the abstraction of drinking                                  against Georgius van der Burg (1)
water — Directive 75/440/EEC — Conditions of drinking
                   water abstraction in Brittany)
                                                                           (Technical standards and regulations — Non-approved
                                                                                transmitting equipment — Advertising)
                           (2001/C 173/26)
                                                                                (2001/C 173/27)
                     (Language of the case: French)
                                                                                (Language of the case: Dutch)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                           (Provisional translation; the definitive translation will be published
In Case C-266/99: Commission of the European Communities                                      in the European Court Reports)
(Agent: M. Nolin) v French Republic (Agents: K. Rispal-
Bellanger and D. Colas) — application for a declaration that,
by failing to take the necessary measures to ensure that the               In Case C-278/99: reference to the Court under Article 234 of
quality of surface water intended for the abstraction of drinking          the EC Treaty from the Hoge Raad der Nederlanden (Nether-
water complied with the standards laid down under Article 3                lands) for a preliminary ruling in the criminal proceedings
of Council Directive 75/440/EEC of 16 June 1975 concerning                 pending before that court against Georgius van der Burg — on
the quality required of surface water intended for the abstrac-            the interpretation of Article 1 of Council Directive 83/189/EEC
tion of drinking water in the Member States (OJ 1975 L 194,                of 28 March 1983 laying down a procedure for the provision
p. 26), the French Republic failed to fulfil its obligations under         of information in the field of technical standards and regu-
that directive, and in particular Article 4 thereof — the Court            lations (OJ 1983 L 109, p. 8) — the Court (Sixth Chamber),
(Sixth Chamber), composed of: C. Gulmann, President of                     composed of: C. Gulmann (Rapporteur), President of the
the Chamber, V. Skouris, J.-P. Puissochet, R. Schintgen and                Chamber, V. Skouris, J.-P. Puissochet, R. Schintgen and N. Col-
F. Macken (Rapporteur), Judges; C. Stix-Hackl, Advocate Gen-               neric, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
eral; L. Hewlett, Administrator, for the Registrar, has given a            R. Grass, Registrar, has given a judgment on 8 March 2001, in
judgment on 8 March 2001, in which it:                                     which it has ruled:


title: Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 26 June 1997 in the case of Verbraucherschutzverein e.V. v. Sektkellerei G. C. Kessler GmbH & Co. (Case C-303/97)

text:
18 . 10 . 97             EN                  Official Journal of the European Communities                                      C 318/9
Reference for a preliminary ruling from the Landesgericht                     federal structure lays down that in the case of
für Zivilrechtssachen Wien by order of that court of                          infringements imputable to a part of the State, the
13 August 1997 in the case of Klaus Konle v. Republic of                      injured party may claim only against the part State,
                                Austria                                       not the State as a whole ?
                          ( Case C-302/97)
                            ( 97/C 318/15 )
Reference has been made to the Court of Justice of the                  Reference for a preliminary ruling from the Bundes
European Communities by an order of the Landesgericht                   gerichtshof by order of that court of 26 June 1997 in
für Zivilrechtssachen Wien ( Regional Civil Court, Vienna )             the case of Verbraucherschutzverein e.V. v. Sektkellerei
of 13 August 1997, which was received at the Court                                         G. C. Kessler GmbH & Co.
Registry on 22 August 1997, for a preliminary ruling in                                              ( Case C-303/97
the case of Klaus Konle v. Republic of Austria on the
following questions :                                                                                ( 97/C 318/ 16 )
1 . Does it follow from the interpretation of Articles 6, 52            Reference has been made to the Court of Justice of the
     et seq. ( Part Three, Title III, Chapter 2 ) and Article 73b       European Communities by an order of the Bundesgerichts
     et seq. ( Part Three, Title III, Chapter 4 ) of the EC             hof ( Federal Court of Justice ) of 26 June 1997, which was
     Treaty and Article 70 of the Act of Accession ( Act                received at the Court Registry on 25 August 1997, for a
     concerning the conditions of accession of [...] the                preliminary ruling in the case of Verbraucherschutz
                                                                        verein e.V. v. Sektkellerei G. C. Kessler GmbH & Co .
     Republic of Austria [...] and the adjustments to the
     treaties on which the European Union is founded )                  on the following questions on the interpretation of
     that:                                                              Article 13 ( 2 ) ( b ) of Council Regulation ( EEC ) No 2333/
                                                                        92 of 13 July 1992 laying down general rules for the
                                                                        description and presentation of sparkling wines and
     ( a ) in that, while the Tiroler Grundverkehrsgesetz               aerated sparkling wines ('):
           ( TGVG ) 1993 was in force, the plaintiff was
           required to prove that he would not establish a              ( a ) Does it suffice for the prohibition in Article 13 ( 2 ) ( b )
           holiday residence, whereas in the case of an
                                                                              of the said Regulation to be applicable that a word in
           acquisition by an Austrian a mere declaration
                                                                              a brand name used to describe the sparkling wine ( in
           under Paragraph 10 ( 2 ) would have sufficed to
           obtain    the   consent   of  the  land    transactions
                                                                              this case 'Hochgewächs') may be confused with part
                                                                              of the description of a wine ( in this case ' Riesling-
           authority, and he was refused consent, and                         Hochgewächs') not used for constituting the cuvée of
                                                                              the sparkling wine, even if it is not the case that a
     ( b ) in that, under the TGVG 1996 , the plaintiff, even                 substantial proportion of consumers form mistaken
           before his property right is entered in the land                   impressions as to the composition of the cuvée which
           register, must — as Austrians now also must —                      influence their purchases, and there is no intent to
           undergo a consent procedure, the possibility of                    deceive on the part of the owner of the brand ?
           making an effective declaration that no holiday
           residence is being created no longer existing for            ( b ) If so, may the industrial property which the owner of
           Austrians either,                                                  the brand has acquired by reason of the traditional
                                                                              undisturbed use of his description in Germany, as a
     Community law was infringed and the plaintiff injured                    higher-ranking interest deserving protection, preclude
     in respect of a fundamental freedom guaranteed by                        the application of the prohibition of descriptions in
     provisions of Community law ?                                            Article 13 ( 2 ) ( b ) of the said Regulation ?
                                                                        O OJ L 231 , 13 . 8 . 1992, p . 9 .
2 . If so, is it for the Court of Justice, in proceedings
     under Article 177 of the EC Treaty, also to decide
     whether a breach of Community law is 'sufficiently
     serious' ( as the phrase is used, for example, in the
     judgment in Joined Cases C-46/93 and C-48/93
     Brasserie du Pêcheur and Factortame )?                             Appeal brought on 26 August 1997 by Fernando . Carbajo
                                                                        Ferrero against the judgment delivered on 12 June 1997
                                                                        by the First Chamber of the Court of First Instance of the
3 . If Questions 1 and 2 are answered in the affirmative,
                                                                        European Communities in Case T-237/95 between
     is the breach ' sufficiently serious'?
                                                                           Fernando Carbajo Ferrero and the European Parliament
                                                                                ( Case C-304/97 P)
4 . Is the principle of the liability of Member States for
                                                                                ( 97/C 318/ 17 )
     the damage caused to an individual by breaches
     of Community law complied with, on a proper
     interpretation of Article 5 of the EC Treaty, if the               An appeal against the judgment delivered on 12 June 1997
     national law on liability of a Member State with a                 by the First Chamber of the Court of First Instance of


title: Order of the Court (Second Chamber) of 14 July 2005 in Case C-52/04: Reference for a preliminary ruling from the Bundesverwaltungsgericht in Personalrat der Feuerwehr Hamburg v Leiter der Feuerwehr Hamburg (Article 104(3) of the Rules of Procedure — Social policy — Protection of workers' health and safety — Directives 89/391/EEC and 93/104/EC — Scope — Operational crews of a public fire service — Inclusion — Conditions)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/23

      ORDER OF THE COURT

   (Second Chamber)
   of 14 July 2005
   in Case C-52/04: Reference for a preliminary ruling from the Bundesverwaltungsgericht in Personalrat der Feuerwehr Hamburg v Leiter der Feuerwehr Hamburg (1)

   (Article 104(3) of the Rules of Procedure - Social policy - Protection of workers' health and safety - Directives 89/391/EEC and 93/104/EC - Scope - Operational crews of a public fire service - Inclusion - Conditions)
   (2005/C 217/44)
   Language of the case: German
   In Case C-52/04: reference for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany), made by decision of 17 December 2003, received at the Court on 10 February 2004, in the proceedings between Personalrat der Feuerwehr Hamburg and Leiter der Feuerwehr Hamburg — the Court (Second Chamber), composed of C. W. A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen (Rapporteur), J. Makarczyk and J. Klučka, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, made an order on 14 July 2005, the operative part of which is as follows:
   Article 2 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work and Article 1(3) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time must be interpreted as meaning that:

               —

               the activities carried out by the operational crews of a public fire service such as that at issue in the main proceedings normally fall within the scope of the directives referred to so that, in principle, Article 6(2) of Directive 93/104 precludes exceeding the 48 hours' ceiling prescribed as the maximum weekly working time, including guard duty;

               —

               it is nevertheless possible for such ceiling to be exceeded in exceptional circumstances of such gravity and scale that the aim of ensuring the proper functioning of services essential for the protection of public interests, such as public order, health and safety, must temporarily prevail over the aim of guaranteeing the health and safety of workers assigned to intervention and rescue teams. Even in such exceptional situations, however, the aims of Directive 89/391 must be upheld as far as possible.

      (1)  OJ C 94 of 17.04.2004.


title: Case T-372/00: Action brought on 11 December 2000 by Mário Campolargo against the Commission of the European Communities

text:
10.2.2001             EN                       Official Journal of the European Communities                                       C 45/23
Pleas in law and main arguments                                           Pleas in law and main arguments
Trade Mark concerned:         Word mark ‘UltraPlus’ — Appli-              The applicant in this case, the same as in Case T-91/00 (1),
                              cation No. 716597                           challenges the refusal of the Settlements Office of the Joint
                                                                          Sickness Insurance Scheme in Luxembourg to reimburse sums
                                                                          incurred by him in the first half of the year 2000, on care
Product or Service:           Class 21 (plastic ovenware for              services needed by one of his sons, as assistance by medical
                              use in microwave, convection and            auxiliaries within the meaning of Paragraph 1 of Title X of
                              conventional ovens)                         Annex I to the Rules on Sickness Insurance. The Settlements
                                                                          Office authorised those services only as nursing attendance
Contested        Decision     Refusal of registration by the              within the meaning of Paragraph 2(c) and (d) of those rules.
before the Board of           examiner
Appeal:
                                                                          The pleas in law and main arguments are similar to those
Pleas in law relied on:       Infringement of Article 7 (1) (b)           raised in Case T-91/00.
                              and (c) of Regulation 40/94.
                                                                          (1) OJ C 176 of 24.6.2000, p. 24.
                                                                          Action brought on 11 December 2000 by Mário Campo-
Action brought on 27 November 2000 by Adolfo Kind                         largo against the Commission of the European Communi-
  against the Commission of the European Communities                                                     ties
                        (Case T-362/00)                                                           (Case T-372/00)
                                                                                (2001/C 45/49)
                         (2001/C 45/48)
                                                                                (Language of the case: French)
                   (Language of the case: Italian)
                                                                          An action against the Commission of the European Communi-
An action against the Commission of the European Communi-                 ties was brought before the Court of First Instance of the
ties was brought before the Court of First Instance of the                European Communities on 11 December 2000 by Mário
European Communities on 27 November 2000 by Adolfo                        Campolargo, residing at Kraainem (Belgium), represented by
Kind, represented by Giuseppe Marchesini, of the Vicenza Bar,             Carlos Mourato, of the Brussels Bar.
with an address for service in Luxembourg at the chambers of
Ernest Arendt, 8-10 Rue Mathias Hardt.
                                                                          The applicant claims that the Court should:
The applicant claims that the Court should:                               —     annul the appointing authority’s decision of 15 February
                                                                                2000 annulling the appointment of the applicant as head
                                                                                of the former unit DG XIII/G/2 and his promotion to
—     annul the measures challenged for unlawful and                            grade A3, and the appointing authority’s implicit decision
      erroneous application of the system of repayment                          of 12 September 2000 giving a negative response to the
      adopted;                                                                  complaint submitted by the applicant;
—     order the Commission to carry out settlement, as in the             —     order the defendant to pay the costs pursuant to
      past, on the basis of invoices in respect of expenses for                 Article 87(2) of the Rules of Procedure of the Court of
      paramedical assistance produced by the insured;                           First Instance and the expenses necessarily incurred for
                                                                                the purposes of the proceedings, in particular the travel
                                                                                and subsistence expenses and the remuneration of law-
—     order the Commission to pay the costs.                                    yers, pursuant to Article 91(b) of those Rules.
 ---pagebreak--- C 45/24                EN                      Official Journal of the European Communities                                     10.2.2001
Pleas in law and main arguments                                           The applicants claims that the Court should:
The applicant states that he was informed in August 1999 of               —     annul the decision of 12 January 2000 rejecting the
his appointment to the post of head of unit DG XIII/G/2 and                     request submitted by Ms Dubigh on 24 September 1999
of his promotion to grade A3, but that the Director-General                     for the regularisation of her administrative situation by
for Personnel announced to him in February 2000 that he had                     the acknowledgement of her status as a temporary agent
decided to annul those decisions in the light of a complaint                    from 12 May 1997 and the conferment on her of the
submitted by an official who had also applied for the post in                   rights attaching thereto;
question. In the present proceedings, the applicant contests
that decision withdrawing his appointment and promotion.                  —     annul the decision of 12 January 2000 rejecting the
                                                                                request submitted by Ms Zaur-Gora on 24 September
He maintains that the decision which has been withdrawn:                        1999 for the regularisation of her administrative situation
                                                                                by the acknowledgement of her status as a temporary
—     was not adopted in breach of Article 45 of the Staff                      agent from 22 May 1997 and the conferment on her of
      Regulations of officials or of vacancy notices 07 of                      the rights attaching thereto;
      2 February 2000, inasmuch as those rules were scrupu-
      lously observed, having regard to the seniority criteria            —     order the defendant to pay the costs.
      needing to be fulfilled in order to qualify for promotion;
—     was not adopted on the basis of any manifest error of               Pleas in law and main arguments
      assessment in the examination of the comparative merits
      and staff reports of the candidates, or in breach of any of
      the vacancy notices in issue; and                                   The applicants state that, since 12 May and 22 May 1997
                                                                          respectively, they have performed, without interruption, the
—     is not vitiated by any misuse of powers on the part of the          same duties as secretaries/typists in the same units, working
      appointing authority.                                               successively as members of the interim staff and as members
                                                                          of the auxiliary staff. In their view, the formal nature of the
                                                                          contracts and the classification applied to them by the parties
In addition, as regards the contested decision, the applicant
                                                                          had no effect on the de facto circumstances.
pleads:
—     infringement of the right to a fair hearing;                        Thus, the tasks carried out by the applicants are characterised
                                                                          by their continuity; the duties performed by them have been
—     infringement of the obligation to provide a statement of            of a permanent nature.
      reasons;
—     infringement of the principle of the protection of legit-           In support of their claims, the applicants plead infringement
      imate expectations; and                                             of the principles of sound administration and proper staff
                                                                          management, together with a misuse of powers in the present
—     infringement of the principles of equal treatment, pro-             case.
      portionality and sound administration.
Action brought on 11 December 2000 by Danielle Dubigh                     Action brought on 19 December 2000 by Carmelo Mor-
and Tamara Zaur-Gora against the Commission of the                        ello against the Commission of the European Communi-
                     European Communities                                                                 ties
                         (Case T-375/00)                                                           (Case T-378/00)
                          (2001/C 45/50)                                                            (2001/C 45/51)
                    (Language of the case: French)
                                                                                (Language of the case: French)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                An action against the Commission of the European Communi-
European Communities on 11 December 2000 by Danielle                      ties was brought before the Court of First Instance of the
Dubigh, residing in Brussels, and Tamara Zaur-Gora, residing              European Communities on 19 December 2000 by Carmelo
at Lodelinsart (Belgium), represented by Jean-Noël Louis and              Morello, residing in Brussels, represented by Jacques Sambon
Véronique Peere, of the Brussels Bar.                                     and Pierre-Paul Van Gehuchten, of the Brussels Bar.


title: Case T-413/06 P: Judgment of the Court of First Instance of 4 September 2008 — Gualtieri v Commission (Appeal — Seconded National Expert — Order for referral — Decision against which an appeal may be lodged — Inadmissibility)

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/25

         Judgment of the Court of First Instance of 4 September 2008 — Gualtieri v Commission
   (Case T-413/06 P) (1)

   (Appeal - Seconded National Expert - Order for referral - Decision against which an appeal may be lodged - Inadmissibility)
   (2008/C 272/46)
   Language of the case: Italian
   Parties

      Applicant: Claudia Gualtieri (Brussels, Belgium) (represented by: P. Gualtieri and M. Gualtieri, lawyers)

      Defendant: Commission of the European Communities (represented by: J. Currall, acting as Agent, and G. Faedo, lawyer)
   Re:
   Appeal brought against the order of the Civil Service Tribunal (First Chamber) of 9 October 2006 in Case F-53/06 Gualtieri v Commission, not yet published in the ECR, and seeking the annulment of that order
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Ms Claudia Gualtieri to bear her own costs and to pay the costs incurred by the Commission in the appeal proceedings.

      (1)  OJ C 42, 24.2.2007.


title: Case C-423/11 P: Appeal brought on 11 August 2011 by the Republic of Poland against the order of the General Court (Seventh Chamber) of 23 May 2011 in Case T-226/10 Prezes Urzędu Komunikacji Elektronicznej v Commission

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/22

         Appeal brought on 11 August 2011 by the Republic of Poland against the order of the General Court (Seventh Chamber) of 23 May 2011 in Case T-226/10 Prezes Urzędu Komunikacji Elektronicznej v Commission
   (Case C-423/11 P)
   2011/C 311/38
   Language of the case: Polish

      Parties

      Appellant: Republic of Poland (represented by: M. Szpunar, Agent)

      Other parties to the proceedings: European Commission, Prezes Urzędu Komunikacji Elektronicznej

      Form of order sought

               —

               set aside in its entirety the order of the General Court of the European Union of 23 May 2011 in Case T-226/10.

      Pleas in law and main arguments

   The ground given for the dismissal of the a ction was the employment relationship linking the legal advisers representing the Prezes Urzędu Komunikacji Elektronicznej (President of the Electronic Communications Authority) with that authority, which, in the view of the General Court, made it impossible for those legal advisers to represent the applicant before the General Court. The Government of the Republic of Poland sets out the following submissions challenging the order under appeal:

               First, it is submitted, there has been a breach of the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice by reason of misinterpretation thereof. The provisions of European Union law do not harmonise the permissible forms in which legal services may be provided. Nor does Article 19 of the Statute introduce restrictions in this area, referring instead directly to national provisions. In the Republic of Poland’s view, Article 19 of the Statute does not provide any basis for generally and arbitrarily depriving legal advisers who provide legal assistance pursuant to their contract of employment of their right to represent parties before the Court of Justice, inasmuch as the provisions of Polish law guarantee their full independence.

               Second, it is submitted that there has been an infringement of the principle of proportionality referred to in Article 5(4) TEU. In the view of the Government of the Republic of Poland, the exclusion of the possibility for a party to be represented by a legal adviser who is linked to that party by an employment relationship goes beyond what is necessary in order to guarantee that legal services are provided to a party by an independent lawyer. Less restrictive means, in material and formal terms, exist by which that objective can be achieved, in particular national rules which concern the principles governing the exercise of a profession and professional deontology.

               Third, it is submitted that there has been a procedural infringement by reason of the absence of an appropriate statement of reasons. The Government of the Republic of Poland takes the view that the General Court did not set out an adequate statement of reasons for the order in Case T-226/10, and in particular did not address the specific aspects of the legal relationship linking the legal advisers to the Prezes Urzędu Komunikacji Elektronicznej.


title: Case C-368/15: Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 14 July 2015 — Ilves Jakelu Oy

text:
               21.9.2015

               EN

               Official Journal of the European Union

               C 311/34

         Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 14 July 2015 — Ilves Jakelu Oy
   (Case C-368/15)
   (2015/C 311/40)
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

      Appellant: Ilves Jakelu Oy

      Other party: Ministry of Transport and Communications

      Questions referred

               1.

               In interpreting Article 9 of Postal Directive 97/67/EC (1), as amended by Directives 2002/39/EC (2) and 2008/6/EC (3), is the distribution of postal items of contract customers to be considered a service outside the scope of the universal service under Article 9(1) or a service within the scope of the universal service under Article 9(2), where the postal undertaking agrees with its customers on the conditions governing delivery and charges them an individually agreed fee?

               2.

               If the aforementioned distribution of postal items of contract customers involves a service outside the scope of the universal service, are Article 9(1) and Article 2(14) to be interpreted in such a way that the provision of such postal services, under circumstances such as those in the main proceedings, can be made subject to an individual licence, as provided for in the Postal Act?

               3.

               If the aforementioned distribution of postal items of contract customers involves a service outside the scope of the universal service, is Article 9(1) to be interpreted in such a way that an authorisation concerning such services can be made subject only to terms intended to guarantee compliance with the essential requirements under Article 2(19) of the Postal Directive and that authorisations concerning such services cannot be made subject to any terms with respect to the quality, availability, or performance of the relevant services under Article 9(2) of the Directive?

               4.

               If authorisations concerning the aforementioned distribution of postal items of contract customers can be made subject only to terms intended to guarantee compliance with the essential requirements, can terms such as those at issue in the main proceedings — which relate to the postal service’s conditions governing delivery, the frequency of distribution of items, change-of-address and delivery-suspension service, the labelling of items, and clearance locations — be considered consistent with the essential requirements under Article 2(19) and necessary in order to guarantee compliance with the essential requirements under Article 9(1)?

      (1)  Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14).

      (2)  Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (OJ 2002 L 176, p. 21).

      (3)  Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, p. 3).


title: Case C-79/02: Reference for a preliminary ruling by the Athens Appeal Court by order of that Court of 31 January 2002 in the case of the Greek State against Katina Petrova

text:
C 144/14              EN                   Official Journal of the European Communities                                     15.6.2002
(Supreme Court) (Republic of Austria) of 29 January 2002,             The preliminary questions are identical to those in Case C-78/
received at the Court Registry on 4 March 2002, for a                 02.
preliminary ruling in the case of Herbert Karner Industrieauk-
tionen GmbH against Troostwijk GesmbH on the following
question:
Is Article 28 EC to be interpreted as precluding national
legislation which, irrespective of the truthfulness of infor-
mation, prohibits any reference therein to the fact that the
goods come from assets in a bankruptcy, where, in public
announcements or notifications intended for a large circle of
persons, the notice given states that the goods offered for sale      Reference for a preliminary ruling by the Oberster
are from assets in a bankruptcy although the goods in question        Gerichtshof (Republic of Austria) by order of that Court
no longer form part of the assets in the bankruptcy?                  of 31 January 2002 in the case of Eurokeramik Gesell-
                                                                      schaft mbh & Co KG against Gemeinnützige Salzburger
                                                                                Wohnbaugesellschaft mbH
                                                                                (Case C-81/02)
                                                                                (2002/C 144/23)
Reference for a preliminary ruling by the Athens Appeal
Court by order of that Court of 31 January 2002 in the
       case of the Greek State against Katina Petrova
                        (Case C-79/02)                                Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Oberster Gerichtshof
                                                                      (Republic of Austria) of 31 January 2002, received at the Court
                       (2002/C 144/21)                                Registry on 11 March 2002, for a preliminary ruling in the
                                                                      case of Eurokeramik Gesellschaft mbh & Co KG against
                                                                      Gemeinnützige Salzburger Wohnbaugesellschaft mbH on the
                                                                      following questions:
Reference has been made to the Court of Justice of the
European Communities by order of the Athens Appeal Court
                                                                      1.   Does a social housing association established as a limited
(Greece) of 31 January 2002, received at the Court Registry on
                                                                           liability company of which there are two shareholders,
11 March 2002, for a preliminary ruling in the case of the
                                                                           each a regional or local authority, in carrying out the
Greek State against Katina Petrova on the following questions:
                                                                           objects laid down in its statutes which consist in the
                                                                           provision of social housing, meet needs in the general
The preliminary questions are identical to those in Case C-78/             interest not having an industrial or commercial character,
02.                                                                        and is the association therefore to be regarded as a body
                                                                           governed by public law for the purposes of Article 1(b)
                                                                           of Council Directive 93/37/EEC (1) of 14 June 1993
                                                                           concerning the coordination of procedures for the award
                                                                           of public works contracts, where it carries out its activities
                                                                           with a limited intention to make a profit and is subject to
                                                                           both competition generally and competition specifically
                                                                           from other social housing associations, but at the same
Reference for a preliminary ruling by the Athens Appeal                    time is supported by public funds and is subject to special
Court by order of that Court of 31 January 2002 in the                     State controls?
       case of the Greek State against Loukas Vlachos
                                                                      2.   Is a national procurement law which permits contracting
                        (Case C-80/02)                                     authorities to exclude tenderers, without giving any
                                                                           reasons, from procurement procedures in respect of
                                                                           works contracts below the Community law threshold
                       (2002/C 144/22)                                     and within a minimal amount of up to, for example,
                                                                           EUR 10 000, compatible with Community law?
Reference has been made to the Court of Justice of the
European Communities by order of the Athens Appeal Court              (1) OJ L 199 1993, p. 54.
(Greece) of 31 January 2002, received at the Court Registry on
11 March 2002, for a preliminary ruling in the case of the
Greek State against Loukas Vlachos on the following questions:


title: Case C-137/08: Judgment of the Court (Grand Chamber) of 9 November 2010 (reference for a preliminary ruling from the Budapesti II. és III. Kerületi Bíróság — Republic of Hungary) — VB Pénzügyi Lízing Zrt. v Ferenc Schneider (Directive 93/13/EEC — Unfair terms in consumer contracts — Criteria for assessment — Examination by the national court of its own motion of the unfairness of a term conferring jurisdiction — Article 23 of the Statute of the Court of Justice)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/2

         Judgment of the Court (Grand Chamber) of 9 November 2010 (reference for a preliminary ruling from the Budapesti II. és III. Kerületi Bíróság — Republic of Hungary) — VB Pénzügyi Lízing Zrt. v Ferenc Schneider
   (Case C-137/08) (1)

   (Directive 93/13/EEC - Unfair terms in consumer contracts - Criteria for assessment - Examination by the national court of its own motion of the unfairness of a term conferring jurisdiction - Article 23 of the Statute of the Court of Justice)
   2011/C 13/02
   Language of the case: Hungarian

      Referring court

   Budapesti II. és III. Kerületi Bíróság

      Parties to the main proceedings

      Applicant: VB Pénzügyi Lízing Zrt.

      Defendant: Ferenc Schneider

      Re:

   Reference for a preliminary ruling — Budapesti II. és III. Kerületi Bíróság — Interpretation of the first paragraph of Article 23 of the Protocol on the Statute of the Court of Justice and of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, 29) — Contractual term granting jurisdiction to a judicial body which is located closer to the registered office of the service provider than the place of establishment of the consumer — Power of the national courts to assess, of their own motion, the unfair nature of a term granting jurisdiction in the context of the examination of its jurisdiction — Criteria for the assessment of the unfair nature of the term

      Operative part of the judgment

               1.

               The first paragraph of Article 23 of the Statute of the Court of Justice does not preclude a provision of national law which provides that the court which initiates a preliminary reference procedure is at the same time to inform, of its own motion, the Minister with responsibility for Justice in the Member State concerned;

               2.

               Article 267 TFEU must be interpreted as meaning that the jurisdiction of the Court of Justice of the European Union extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of that Directive, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case;

               3.

               The national court must investigate of its own motion whether a term conferring exclusive territorial jurisdiction in a contract concluded between a seller or supplier and a consumer, which is the subject of a dispute before it, falls within the scope of Directive 93/13 and, if it does, assess of its own motion whether such a term is unfair.

      (1)  OJ C 183, 19.7.2008.


title: Case T-805/14: Action brought on 9 December 2014 — Stagecoach Group v OHIM (MEGABUS.COM)

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/44

         Action brought on 9 December 2014 — Stagecoach Group v OHIM (MEGABUS.COM)
   (Case T-805/14)
   (2015/C 034/53)
   Language of the case: English

      Parties

      Applicant: Stagecoach Group plc (Perth, United Kingdom) (represented by: G. Jacobs, lawyer)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community word mark ‘MEGABUS.COM’ — Application for registration No 1 1 1 31  216

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 7 October 2014 in Case R 1894/2013-4

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision;

               —

               Order Community trade mark No 1 1 1 31  216‘MEGABUS.COM’ be registered for all goods and services, or partially registered for some goods and services;

               —

               Order Community trade mark No 1 1 1 31  216‘MEGABUS.COM’, in the alternative, be registered at least partially in respect of ‘provision of passenger transport services’ for which evidence of acquired distinctiveness has been shown;

               —

               Order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Articles 7(1)(c) and 7(1)(b) of Regulation No 207/2009.


title: Case C-406/11 P: Appeal brought on 29 July 2011 by Atlas Transport GmbH against the judgment of the General Court (Third Chamber) delivered on 16 May 2011 in Case T-145/08 Atlas Transport GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs): other party: Atlas Air Inc.

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/20

         Appeal brought on 29 July 2011 by Atlas Transport GmbH against the judgment of the General Court (Third Chamber) delivered on 16 May 2011 in Case T-145/08 Atlas Transport GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs): other party: Atlas Air Inc.
   (Case C-406/11 P)
   2011/C 311/33
   Language of the case: German

      Parties

      Appellant: Atlas Transport GmbH (represented by: K. Schmidt-Hern, lawyer)

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

      Form of order sought

               —

               Set aside the judgment of the General Court of the European Union of 16 May 2011 in Case T-145/08;

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 24 January 2008 (Case R 1023/2007-1);

               —

               Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the costs of both legal proceedings.

      Pleas in law and main arguments

   By the contested decision, OHIM and the General Court infringed the third sentence of Article 59 of the Regulation on the Community trade mark (old version) which governs the obligation to state the grounds of appeal. By the contested decision, OHIM and the General Court also infringed Article 60 of the Regulation on the Community trade mark in conjunction also with Rule 20(7) of the Regulation implementing the Regulation on the Community trade mark, as well as established legal principles of the Member States. The proceedings before OHIM should imperatively have been stayed, meaning that the time-limit for bringing the appeal has not yet expired.