title: Action brought on 12 July 1996 by Pantochim SA against the Commission of the European Communities (Case T-107/96)

text:
No C 269/26           EN                  Official Journal of the European Communities                                     14 . 9 . 96
unprofitable steelworks is prohibited . According to the             Action brought on 12 July 1996 by Pantochim SA against
Treaty ( Article 56 ( 2 )) and the code, approval could have                the Commission of the European Communities
been given only in respect of aid relating to closures .                                     ( Case T-107/96 )
                                                                                ( 96/C 269/59 )
The applicant advances, in particular, the following
pleas :
                                                                                (Language of the case: French)
— breach of the principle that the administration must act
    in accordance with the law, since the contested decision
    is not in conformity with the ECSC Treaty and the fifth          An action against the Commission of the European
    steel aids code, and since a derogation from the aids code       Communities was brought before the Court of First
    could only have been provided for by a general rule in the       Instance of the European Communities on 12 July 1996 by
    abstract,                                                        Pantochim SA, whose registered office is in Feluy ( Belgium ),
                                                                     represented by Jacques H. J. Bourgeois, of the Brussels Bar,
— breach of the principle of equality, and in particular of          with an address for service in Luxembourg at the Chambers
    the principle that the administration is bound by its own        of Marc Loesch, 11 rue Goethe .
    acts ,
— the absence of any compelling need for approval of aid in          The applicant claims that the Court should :
    order to attain the objectives of the Treaty, since the aid
    payments did not serve to achieve any of the objectives of       — declare that the Commission has infringed the EC Treaty
    Articles 2 and 3 but were designed to offset losses and               by failing to decide, pursuant to the first subparagraph
    liabilities from previous years ,                                     of Article 93 ( 2 ) thereof, that France must alter its
                                                                          procedures governing the grant of aid for biofuel so that
— breach of the inherent scheme of Article 3 of the ECSC                  they comply with the rules in the EC Treaty,
    Treaty and infringement of Article 56 ( 2 ) of that
    Treaty,
                                                                     — find the Community liable for the harm resulting from
                                                                          the    Commission 's    failure to   act  and   order     the
— unlawful legalization of unnotified aids dating from
    1993 ,
                                                                          Commission to make good that harm, provisionally
                                                                          assessed at FF 50 508 729 ,
— breach of the principle of the restrictive interpretation of
    exemption provisions , in particular Article 95 of the           — order the Commission to pay the costs .
    ECSC Treaty,
— breach of the principle of the protection of legitimate            Pleas in law and main arguments adduced in support:
    expectations, since the reliance placed by privately
    operated steel undertakings on meticulous adherence to           The applicant, a company established under Belgian law and
    the aids code as a guideline for action by the Commission        subsidiary of Societa Italiana Serie Acetica Sintetica SpA
    has been rendered worthless ,                                    (' Sisas'), has a factory in Feluy where it produces a methyl
                                                                     ester from vegetable oils, called Sisoil E. It challenges the
— breach of the principle of the right to a fair hearing, since      alleged failure of the Commission to take action under the
    the competitors of Irish Steel were not notified in              procedure laid down by Article 93 ( 2 ) of the EC Treaty
    advance and invited to comment,                                  against the discriminatory grant by the French authorities of
                                                                     tax relief for biodiesel other than ethyl alcohol originating in
— infringement of the procedural rules governing the                 another Member State .
    adoption of the contested decision, in particular
    Article 13 of the ECSC Treaty, concerning the                    The applicant points out in that regard that Sisas contacted
    decision-making procedure of the Commission ,                    both the main French oil companies with a view to entering
    Articles 1 and 27 of the Commission 's rules of procedure        into contracts for the direct supply of Sisoil E and three
    of 9 January 1963 concerning the principle of                    French vegetable oil producers with a view to entering into
    collegiality and the delegation of powers , and Articles 1 1     contracts for ester processing on their behalf at the Feluy
    and 12 of the rules of procedure concerning written              factory . The problem has arisen because the French
    procedure and the procedure for holding meetings,                authorities' approval of the factory in Feluy as a ' pilot unit'
                                                                     is required before such contracts can be entered into .
— breach of the obligation to provide a statement of                 Despite repeated efforts, Sisas has never obtained French
    reasons pursuant to Article 15 of the ECSC Treaty,               Government approval for the applicant to supply in France
                                                                     biodiesel benefiting from the tax relief.
— breach of the principle of proportionality , as a result of
    the distortion of competition arising from the grant of
    approval of a massive expansion of production .                  Since the procedure initiated by the Commission under
                                                                     Article 93 ( 2 ) of the EC Treaty was not pursued , the
                                                                     applicant has brought this action for declaration of failure
                                                                     to act. In that regard, the applicant considers that the legal
 ---pagebreak--- 14 . 9 . 96           EN                   Official Journal of the European Communities                               No C 269/27
instrument enabling the application lodged by Sisas on                    applicant, in accordance with Article 87 of the Rules of
Pantochim's behalf to be granted is a decision which,                     Procedure of the Court of First Instance .
although addressed to France, is of direct and individual
concern to the applicant . Pantochim is currently the only
non-French producer within the Community that is                      Pleas in law and main arguments adduced in support:
genuinely capable of supplying biodiesel in France at a price
that is competitive with that of standard diesel , in so far as it,
like its French competitors, is entitled to the exemption from        The applicant states that the contested decision rejected
excise duty .                                                         specific aspects of a complaint ('the complaint') filed by ITT
                                                                      Promedia NV ('Promedia ') with the European Commission
The applicant also contends that the systematic refusal by            ('the Commission ') on 20 October 1994 against Belgacom
the French administrative authorities to grant the tax relief         NV (' Belgacom') alleging infringements of Article 86 of the
in respect of the biodiesel that it produces reflects their           EC Treaty. The behaviour challenged in the complaint
desire to close off the French market by preventing the only          involves, inter alia, vexatious and confiscatory legal
genuinely competitive non-French producer of biodiesel                proceedings brought by Belgacom against Promedia .
within the Community from gaining access to that                      According to the applicant those actions were part of a plan
market .                                                              to drive it out of business and were based on the Belgian
                                                                      regulatory framework governing commercial directories
                                                                      whose status was questionable under Articles 59, 86 and 90
It also considers that the procedures applied by the French           of the EC Treaty . The second action sought to stop
administrative authorities patently infringe Article 95 of the        Promedia from requesting the subscriber data necessary for
EC Treaty. It is clear, in its view, that those procedures            the publication of directories . The third action sought
adversely affect both the free movement of biodiesel and              expropriation of Promedia 's business in the guise of a
normal conditions of competition between Member States :              contractual claim under a publishing agreement which
the conditions of competition of biofuel producers                    linked Promedia and Belgacom at a time when Belgacom
established in Belgium and those for producers established            enjoyed a statutory monopoly with respect to directories .
in France are not normalized by the rules governing the
grant of the tax relief at issue .
                                                                      The applicant submits that the Commission was wrong in
                                                                      rejecting the complaint. Its arguments are that:
                                                                      — the Commission made an incorrect assessment of the
                                                                           facts which resulted in an inadequate statement of
                                                                           reasons in breach of Article 190 of the EC Treaty in
                                                                           respect of a material argument put forward by Promedia
 Action brought on 22 July 1996 by ITT Promedia NV                         in support of its claim concerning Belgacom's vexatious
   against the Commission of the European Communities                      litigation ,
                        ( Case T-lll /96 )
                          ( 96/C 269/60 )
                                                                      — the Commission made a manifest error of appraisal and
                                                                           failed to review all elements of the case with due care in
                 (Language of the case: English)                           respect of the Belgian regulatory framework governing
                                                                           directories ,
 An action against the Commission of the European                      — the Commission relied on an incorrect assessment of the
 Communities was brought before the Court of First                         Belgian regulatory framework governing directories
 Instance of the European Communities on 22 July 1996 by                   with the result that the conclusion in paragraph 22 of its
 ITT Promedia NV, represented by Ivo Van Bael , Peter                      decision was defective ,
 L'Ecluse and Kris Van Hove , with an address for service in
 Luxembourg at the Chambers of Loesch & Wolter, 11 rue
 Goethe .                                                              — the Commission made a manifest error of appraisal
                                                                           regarding the supposed legality of Belgacom 's refusal to
                                                                           supply,
 The applicant claims that the Court should :
 — annul the Commission decision of 21 May 1996 to reject              — the Commission made a manifest error of appraisal in
     definitively the complaint filed with the Commission                  respect of Belgacom's strategy to eliminate Promedia in
     and registered under number IV/35.268 in so far as it                  order to benefit Belgacom's subsidiary, BDS ,
     concerns Belgacom 's vexatious and confiscatory
     litigation,                                                       — the Commission gave an inadequate statement of
                                                                            reasons in breach of Article 190 of the EC Treaty
 — order the Commission to pay the costs in connection                      regarding the rejection of the part of the complaint
     with the present application, including those of the                   relating to Belgacom 's confiscatory action,


title: Judgment of the Court (Sixth Chamber) of 12 May 2005 in Case C-315/03: Commission of the European Communities v Huhtamaki Dourdan SA (Arbitration clause — Repayment of an advance paid in the course of performance of a research contract — Non-justification of part of the costs)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/8

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 12 May 2005
   in Case C-315/03: Commission of the European Communities v Huhtamaki Dourdan SA (1)

   (Arbitration clause - Repayment of an advance paid in the course of performance of a research contract - Non-justification of part of the costs)
   (2005/C 182/15)
   Language of the case: French
   In Case C-315/03 Commission of the European Communities (Agent: C. Giolito) v Huhtamaki Dourdan SA, established in Dourdan (France), (Lawyers: F. Puel and L. François-Martin) — action under Article 238 EC, brought on 23 July 2003 — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet (Rapporteur) and S. von Bahr, Judges; L. M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 12 May 2005, in which it:

               1.

               Orders Huhtamaki Dourdan SA to pay the Commission of the European Communities the sum of EUR 151 533,47 representing the total capital of the repayment of part of the advance paid to it in the context of contract No BRST-CT 98 5422, the sum of EUR 23 583,63 representing the interest due at the date of the present judgment, and interest at the rate of 4.81 % on the total capital still to be repaid with effect from the day after this judgment and until its debt has been fully repaid;

               2.

               Orders Huhtamaki Dourdan SA to pay the costs.

      (1)  OJ C 213 of 6.9.2003.


title: Case T-678/15: Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in black and white)

text:
               7.3.2016

               EN

               Official Journal of the European Union

               C 90/19

         Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in black and white)
   (Case T-678/15)
   (2016/C 090/26)
   Language of the case: English

      Parties

      Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Zintler, 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 figurative mark (Representation of a crescent in black and white) — Application for registration No 13 191 036

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 23 September 2015 in Case R 89/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               declare that Article 7(1)(b) of Regulation No 207/2009 does not preclude the sign at issue (Community trade mark No 13 191 036) in respect of the goods in Class 5 described in the application for registration;

               —

               order the defendant to pay the costs.

      Plea in law

               —

               wrong application of Article 7(1)(b) Regulation No 207/2009.


title: ORDER OF THE COURT OF FIRST INSTANCE of 10 June 1998 in Case T-116/95: Cementir-Cementerie del Tirreno SpA v Commission of the European Communities (Inadmissibility - Confirmatory act - Lis pendens)

text:
15.8.98              EN                  Official Journal of the European Communities                                C 258/31
the Court (Second Chamber, Extended Composition),                   of 19 December 1994 adjusting, with effect from 1 July
composed of: C. W. Bellamy, President, K. Lenaerts, C. P.           1994, the remuneration and pensions of officials and other
BrieÈt, A. Kalogeropoulos and A. Potocki, Judges; J.                servants of the European Communities and the weightings
Palacio GonzaÂlez, Administrator, has given a judgment on           applied thereto (OJ L 335 of 23.12.1994, p. 1), and,
25 June 1998, in which it:                                          secondly, applications for the payment of arrears, together
                                                                    with default interest at the rate of 8 % Ð the Court of
1. Joins Cases T-371/94 and T-394/94 for the purposes of            First Instance (Second Chamber), composed of A.
     judgment;                                                      Kalogeropoulos, President, C. W. Bellamy and J. Pirrung,
                                                                    Judges; H. Jung, Registrar, gave a judgment on 7 July
2. Annuls Commission Decision 94/653/EC of 27 July                  1998, in which it:
     1994 concerning the notified capital increase of Air
     France;
                                                                    1. Dismisses the actions.
3. Orders the Commission to pay the costs, including
     those of the interveners Maersk Air I/S and Maersk
     Air Ltd;                                                       2. Orders the parties to bear their own costs.
4. Orders Compagnie Nationale Air France, the French                (1) OJ 1996 C 64.
     Republic, the Kingdom of Denmark, the United
     Kingdom of Great Britain and Northern Ireland, the
     Kingdom of Sweden and the Kingdom of Norway to
     bear their own costs.
(1) OJ C 386 of 31.12.1994 and C 392 of 31.12.1994.
                                                                         ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 10 June 1998
                                                                    in Case T-116/95: Cementir-Cementerie del Tirreno SpA v
                                                                            Commission of the European Communities (1)
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                      (Second Chamber)                                  (Inadmissibility Ð Confirmatory act Ð Lis pendens)
                        of 7 July 1998                                                      (98/C 258/53)
in Joined Cases T-238/95, T-239/95, T-240/95, T-241/95
and T-242/95: Francesco Mongelli v Commission of
                the European Communities (1)                                       (Language of the case: Italian)
(Officials Ð Pensions Ð Weighting Ð Determination Ð
                        Exchange rate)                              In Case T-116/95: Cementir-Cementerie del Tirreno SpA,
                        (98/C 258/52)                               established in Rome, represented by Gian Michele Roberti
                                                                    and Antonio Tizzano, of the Naples Bar, with an address
                (Language of the case: Italian)                     for service in Luxembourg at the Chambers of Alain
                                                                    Lorang, 51 Rue Albert 1er, v Commission of the European
In Joined Cases T-238/95, T-239/95, T-240/95, T-241/95              Communities (Agent: Giuliano Marenco) Ð application
and T-242/95: Francesco Mongelli, former official of the            for annulment of a letter of 2 March 1995 from the
Commission of the European Communities, residing in                 Commission rejecting a request for reduction of the fine
Cecina (Italy), Alberto Castagnoli, former official of the          imposed on the applicant by Commission Decision 94/
Commission of the European Communities, residing in                 815/EC of 30 November 1994 relating to a proceeding
Segrate (Italy), Eduardo Capuano, former official of the            under Article 85 of the EC Treaty (Cases IV/33.126 and
Commission of the European Communities, residing at                 33.322 Ð Cement) (OJ L 343 of 30.12.1994, p. 1) Ð the
Rome, Vittorio Sadini, former official of the Commission            Court of First Instance (Fourth Chamber, Extended
of the European Communities, residing in Segrate (Italy),           Composition), composed of P. Lindh, President, and R.
and Lando Tinelli, former official of the Commission of             García-Valdecasas, K. Lenaerts, J. Azizi and M. Jaeger,
the European Communities, residing at Rome, represented             Judges; H. Jung, Registrar, made an order on 10 June
by Giuseppe Marchesini, advocate with the right of                  1998, the operative part of which is as follows:
audience before the Corte Suprema di Cassazione, with
an address for service in Luxembourg at the Chambers
of Ernst Arendt, 8-10 Rue Mathias Hardt, against                    1. The action is dismissed as inadmissible.
Commission of the European Communities (Agent:
Gianluigi Valsesia), supported by Council of European
Communities (Agents: Diego Canga Fano, Marco-                       2. The applicant shall pay the costs.
Umberto Moricca and Paolo Martino Cossu) Ð first,
application for annulment of the applicants' pension                (1) OJ C 208 of 12.8.1995.
statements in respect of the period from January 1995, in
so far as they apply the weighting fixed for Italy at 94.2
by Council Regulation (EC, Euratom, ECSC) No 3161/94


title: Case C-74/12: Reference for a preliminary ruling from the Giudice di Pace di Revere (Italy) lodged on 13 February 2012 — Criminal proceedings against Abd Aziz Tam

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/17

         Reference for a preliminary ruling from the Giudice di Pace di Revere (Italy) lodged on 13 February 2012 — Criminal proceedings against Abd Aziz Tam
   (Case C-74/12)
   2012/C 118/27
   Language of the case: Italian

      Referring court

   Giudice di Pace di Revere

      Party/parties to the main proceedings

   Abd Aziz Tam

      Questions referred

               1.

               In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 2, 4, 6, 7 and 8 of Directive 2008/115/EC (1) preclude the possibility that a third-country national illegally staying in a Member State may be liable to a fine, for which home detention is substituted by way of criminal-law sanction, solely as a consequence of that person’s illegal entry and stay, even before any failure to comply with a removal order issued by the administrative authorities?

               2.

               In the light of the principles of sincere cooperation and the effectiveness of directives, do Articles 2, 15 and 16 of Directive 2008/115/EC preclude the possibility that, subsequent to the adoption of the directive, a Member State may enact legislation which provides that a third-country national illegally staying in that Member State may be liable to a fine, for which an enforceable order for expulsion with immediate effect is substituted by way of criminal-law sanction, without respecting the procedure and rights of the foreign national laid down in the directive?

               3.

               Does the principle of sincere cooperation established in Article 4(3) TEU preclude national rules adopted during the period prescribed for transposition of a directive in order to circumvent or, in any event, limit the scope of the directive, and what measures must the national court adopt in the event that it concludes that there was such an objective?

      (1)  OJ 2008 L 348, p. 98.


title: Case C-405/06 P: Order of the Court (Seventh Chamber) of 24 September 2007 — Miguel Torres SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bodegas Muga SA (Appeal — Community trade mark — Application for the figurative mark Torre Muga — Opposition proceedings — Earlier international and national word mark TORRES — Likelihood of confusion — Opposition rejected)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/28

         Order of the Court (Seventh Chamber) of 24 September 2007 — Miguel Torres SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bodegas Muga SA
   (Case C-405/06 P) (1)

   (Appeal - Community trade mark - Application for the figurative mark ‘Torre Muga’ - Opposition proceedings - Earlier international and national word mark ‘TORRES’ - Likelihood of confusion - Opposition rejected)
   (2008/C 51/47)
   Language of the case: Spanish
   Parties

      Appellant: Miguel Torres SA (represented by: E. Armijo Chávarri, abogado)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, Agent), Bodegas Muga SA (represented by: F. Porcuna de la Rosa, abogado)
   Re:
   Appeal against the judgment of the Court of First Instance (Second Chamber) of 11 July 2006 in Case T-247/03 Torres v OHIM and Bodegas Muga, by which the Court dismissed the action brought against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 April 2003 (Case R 998/2001-1) relating to opposition proceedings between Miguel Torres SA and Bodegas Muga SA
   Operative part of the order

               1.

               The appeal is dismissed;

               2.

               Miguel Torres SA is ordered to pay the costs.

      (1)  OJ C 310, 16.12.2006.


title: Last publication of the Court of Justice in the Official Journal of the European CommunitiesOJ C 219, 14.9.2002

text:
C 233/38        EN                  Official Journal of the European Communities                         28.9.2002
                                                           III
                                                         (Notices)
                                                   (2002/C 233/65)
            Last publication of the Court of Justice in the Official Journal of the European Communities
         OJ C 219, 14.9.2002
         Past publications
         OJ C 202, 24.8.2002
         OJ C 191, 10.8.2002
         OJ C 180, 27.7.2002
         OJ C 169, 13.7.2002
         OJ C 156, 29.6.2002
         OJ C 144, 15.6.2002
                                              These texts are available on:
                                         EUR-Lex: http://europa.eu.int/eur-lex
                                           CELEX: http://europa.eu.int/celex


title: Case C-78/03 P: Appeal brought on 20 February 2003 (by fax on 19 February 2003) by the Commission of the European Communities against the judgment delivered on 5 December 2002 by the Fourth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-114/00 between Aktionsgemeinschaft Recht und Eigentum eV and Commission of the European Communities, supported by the Federal Republic of Germany

text:
26.4.2003              EN                         Official Journal of the European Union                                        C 101/23
Appeal brought on 20 February 2003 (by fax on 19 Febru-                        of particular circumstances in which the applicant is
ary 2003) by the Commission of the European Communi-                           differentiated from all other persons. The Court of First
ties against the judgment delivered on 5 December 2002                         Instance thereby infringed Articles 230, 232 and 234 EC
by the Fourth Chamber, Extended Composition, of the                            as interpreted by the Court of Justice;
Court of First Instance of the European Communities in
Case T-114/00 between Aktionsgemeinschaft Recht und
Eigentum eV and Commission of the European Communi-                       —    inasmuch as its findings were made on the basis that for
   ties, supported by the Federal Republic of Germany                          the purposes of the criterion of individual concern under
                                                                               Article 230 EC the competitive relationship (where
                                                                               competition constitutes the decisive criterion) is not the
                         (Case C-78/03 P)                                      same as when that criterion is applied to decisions under
                                                                               Article 88(2) EC and Article 88(3) EC in the sphere of
                                                                               State aid, so that admissibility is subject to different
                         (2003/C 101/38)                                       criteria. The Court of First Instance thereby infringed
                                                                               Articles 230, 232 and 234 EC as interpreted by the Court
                                                                               of Justice;
An appeal against the judgment delivered on 5 December
                                                                          —    inasmuch as it applied a criterion of competitive relation-
2002 by the Fourth Chamber, Extended Composition, of the
                                                                               ship (the applicant’s position under competition law must
Court of First Instance of the European Communities in
                                                                               be affected) which is different from, and less strict than,
Case T-114/00 ( 1) between Aktionsgemeinschaft Recht und
                                                                               the criterion established by the Court of Justice (the
Eigentum eV and Commission of the European Communities,
                                                                               applicant’s position under competition law must be
supported by the Federal Republic of Germany, was brought
                                                                               appreciably affected). The Court of First Instance thus
before the Court of Justice of the European Communities on
                                                                               infringed Articles 230, 232 and 234 EC as interpreted by
20 February 2003 (by fax on 19 February 2003) by the
                                                                               the Court of Justice;
Commission of the European Communities, represented by
James Flett, of its Legal Service, and Viktor Kreuschitz, Legal
Adviser, with an address for service in Luxembourg.
                                                                          —    inasmuch as it included in the judgment, of its own
                                                                               motion, without hearing the views of the Commission,
                                                                               the intervener or the applicant, a ground of action for the
The appellant claims that the Court of Justice should:                         purposes of Article 230 EC which was not contained in
                                                                               the application, namely the allegation that the Com-
—     set aside the judgment of the Court of First Instance of                 mission — unjustifiably — adopted its decision without
      5 December 2002 in Case T-114/00 Aktionsgemeinschaft                     initiating the procedure under Article 88(2) EC. The Court
      Recht und Eigentum eV v Commission;                                      of First Instance thereby infringed Article 230 EC, the
                                                                               Statute, the Rules of Procedure and a general principle of
                                                                               Community law — the Commmission’s right to a fair
—     give a final decision in the case and in so doing dismiss                hearing;
      the application as inadmissible on the ground that the
      contested act is not of individual concern, within the
      meaning of the fourth paragraph of Article 230 EC, to               —    inasmuch as it found that the applicant was affected in
      the applicant; or                                                        its capacity as negotiating partner and was therefore
                                                                               individually concerned by the contested act. The Court of
—     refer the case back to the Court of First Instance with                  First Instance thereby infringed Articles 230, 232 and
      regard to the question of admissibility; and                             234 EC as interpreted by the Court of Justice as well as
                                                                               the Statute, the Rules of Procedure and a general principle
                                                                               of Community law — the Commission’s right to a fair
—     order the applicant to pay the costs of Case T-114/00
      and of this appeal.                                                      hearing;
                                                                          —    inasmuch as it did not set out with sufficient clarity the
                                                                               reasons on which the contested judgment was based. The
Pleas in law and main arguments                                                Court of First Instance thereby infringed Article 253 EC;
The Court of First Instance erred
                                                                          —    inasmuch as it found, with regard to the applicant’s
                                                                               advice during the procedure under the provisions on
—     inasmuch as it found that its conclusion that the applicant              State aid, that on the one hand the applicant had not
      was individually concerned by the contested act was not                  been consulted and on the other hand had been consulted
      contradicted by the fact that the contested act is a measure             sufficiently for it to have acquired the status of a
      of general scope; and that the contested act affects the                 negotiating partner. By at least one of these findings or
      applicant (or one of the applicant’s members) by reason                  — in the Commission’s view — by both findings, the
      of certain attributes peculiar to the applicant or by reason             Court of First Instance completely distorted the facts of
 ---pagebreak--- C 101/24               EN                        Official Journal of the European Union                                             26.4.2003
       the case and made a manifest error of assessment. The             The Commission takes the view that there are alternative
       Court of First Instance thus infringed Articles 230, 232          methods for capturing thrushes with the aim of avoiding
       and 234 EC as well as the Statute and the Rules of                damage to crops, such as hunting with rifles or employing
       Procedure.                                                        auditory or visual deterrents using flare guns, vibrating tapes
                                                                         or a combination of such methods. In other Spanish regions
                                                                         (Andalusia, Castilla-La Mancha, etc) there are extensive areas
( 1) OJ C 44 of 22.2.2003.                                               of olive groves and vineyards where hunting with lime is not
                                                                         permitted and where hunting with rifles in autumn and winter
                                                                         is considered adequate protection.
                                                                         Finally, the derogation under Article 9(1)(c) of Directive 79/
                                                                         409/EEC cannot apply in view of the fact that the parany is a
                                                                         non-selective hunting method and the high number of speci-
                                                                         mens captured.
Action brought on 21 February 2003 by Commission of
    the European Communities against Kingdom of Spain
                                                                         (1 ) OJ 1979 L 103, p. 1.
                                                                         (2 ) According to Article 4(1) of Decree 135/2000, ‘the only species
                          (Case C-79/03)                                      whose capture is permitted are the following: song thrush (Turdus
                                                                              philomenus), fieldfare (Turdus pilares), redwing (Turdus iliacus)
                                                                              and mistle thrush (Turdus viscivorus)’.
                         (2003/C 101/39)
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 21 Febru-
ary 2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,            Action brought on 24 February 2003 (by fax on 21 Febru-
with an address for service in Luxembourg.                               ary 2003) by the Commission of the European Communi-
                                                                                ties against the Republic of Austria
The applicant claims that the Court should:                                                           (Case C-81/03)
—      declare that, by tolerating the practice of hunting with                                      (2003/C 101/40)
       birdlime in the Autonomous Community of Valencia,
       governed by Decree 135/2000 of 12 September 2000 of
       the Government of Valencia laying down conditions and
       requirements for the granting of special permits for the
       hunting of thrush with birdlime in the Community of               An action against the Republic of Austria was brought
       Valencia, the Kingdom of Spain has failed to fulfil its           before the Court of Justice of the European Communities on
       obligations under Article 8(1) and Article 9(1) of Council        24 February 2003 (by fax on 21 February 2003) by the
       Directive 79/409/EEC ( 1) of 2 April 1979 on the conser-          Commission of the European Communities, represented by
       vation of wild birds.                                             Maria Patakia, Legal Adviser in the Commission’s legal service
                                                                         and Claudia Schmidt, a member of the Commission’s legal
                                                                         service, with an address for service at the office of Luis Escobar
—      order the Kingdom of Spain to pay the costs.                      Guerrero, a member of the Commission’s legal service, Wagner
                                                                         Centre C 254, Luxembourg-Kirchberg.
Pleas in law and main arguments                                          The Commission claims that the Court should:
                                                                         1.     declare that, by prohibiting, under Paragraph 7a of
The ‘parany’ is an arrangement intended for the capture of                      the Bundesgesetz über die Regelung der gehobenen
thrush ( 2), which requires the use of small twigs impregnated                  medizinisch-technischen Dienste (Federal Law on the
with birdlime. Hunting with birdlime is a non-selective method                  Regulation of Higher Medico-Technical Services; ‘MTD-
of capture, as referred to in Annex IV(a) to Directive 79/409/                  Gesetz’), the independent exercise in Austria of certain
EEC and, accordingly, prohibited under Article 8 thereof, since                 medico-technical professions (laboratory, radiological
it cannot be guaranteed that birds of the species listed in                     and orthoptic services), the Republic of Austria has failed
Annex I to Directive 79/409/EEC or other protected migratory                    to fulfil its obligations under Articles 43 and 49 EC;
or non-hunting species are not caught in the parany and
trapped in the lime.                                                     2.     order the Republic of Austria to pay the costs.


title: Case C-579/11: Reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Portugal) lodged on 22 November 2011 — Grande Área Metropolitana do Porto (GAMP) v Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território and Others

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/14

         Reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto (Portugal) lodged on 22 November 2011 — Grande Área Metropolitana do Porto (GAMP) v Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território and Others
   (Case C-579/11)
   2012/C 32/26
   Language of the case: Portuguese

      Referring court

   Tribunal Administrativo e Fiscal do Porto

      Parties to the main proceedings

      Applicant: Grande Área Metropolitana do Porto (GAMP)

      Defendants: Ministério da Agricultura, do Mar, do Ambiente e do Ordenamento do Território, Comissão Directiva do Programa Operacional Potencial Humano, Ministério do Trabalho e da Solidariedade Social

      Other parties: Sindicato dos Quadros Técnicos do Estado, Ministério da Saúde, Instituto do Desporto de Portugal (IP)

      Questions referred

               1.

               Must Community law and, in particular, the provisions of Articles 5 to 8, 22, 32, 34, 35 and 56 of Council Regulation (EC) No 1083/2006 (1) of 11 July 2006 and Articles 174, 175 and 176 of the Treaty on the Functioning of the European Union, be interpreted as meaning that it does not allow exceptions to the principle of territorial eligibility of expenditure, that is, that expenditure relating to operations co-financed by the Structural Funds and by the Cohesion Fund is eligible under the Operational Programmes only if it is effected in the NUTS II regions covered by each of those Operational Programmes?

               2.

               Specifically, must the abovementioned instruments be interpreted as meaning that they do not allow national authorities to establish rules that, by constituting exceptions to the principle of territoriality of expenditure, allow investments to be considered eligible under Operational Programmes specifically aimed at the Convergence Objective if the location of those investments, or of the beneficiary body, is not situated in the NUTS II regions covered by such Operational Programmes?

               3.

               Or, on the contrary, must Community law and, in particular, the provisions in Articles 5 to 8, 22, 32, 34, 35 and 56 of Council Regulation (EC) No 1083/2006 of 11 July 2006 and Articles 174, 175 and 176 of the Treaty on the Functioning of the European Union, be interpreted as meaning that they do not preclude the existence of exceptions to the principle of territorial eligibility of expenditure, allowing national authorities to establish rules that allow the expenditure relating to operations co-financed by the Structural Funds and by the Cohesion Fund to be considered as eligible under the Operational Programmes, even though it is not effected in the NUTS II regions covered by each of those Operational Programmes, particularly when those exceptions relate to expenditure/operations with a relevant spill-over effect, that is, justified according to the nature of the operations and the multiplying effect that they give rise to in regions other than those in which the investment is made?

               4.

               More specifically, do those instruments preclude national authorities from establishing rules that allow investments to be considered eligible in the context of Operational Programmes aimed at the Convergence Objective where those investments, or the beneficiary body, are not located in the NUTS II regions covered by that Convergence Objective, particularly where they relate to expenditure/operations with a relevant spill-over effect, that is, justified according to the nature of the operations and the multiplying effect that they give rise to in regions other than those in which the investment is made?

      (1)  Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).


title: Case C-51/06: Order of the President of the Court of 14 June 2006 (reference for a preliminary ruling from the Tribunale di Livorno — Italy) — Alberto Bianchi v De Robert Calzature Srl

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/33

         Order of the President of the Court of 14 June 2006 (reference for a preliminary ruling from the Tribunale di Livorno — Italy) — Alberto Bianchi v De Robert Calzature Srl
   (Case C-51/06) (1)

   (2006/C 224/71)

      Language of the case: Italian

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

      (1)  OJ C 86, 08.04.2006.


title: Case T-289/16: Action brought on 3 June 2016 — Inox Mare v Commission

text:
               25.7.2016

               EN

               Official Journal of the European Union

               C 270/63

         Action brought on 3 June 2016 — Inox Mare v Commission
   (Case T-289/16)
   (2016/C 270/69)
   Language of the case: Italian

      Parties

      Applicant: Inox Mare Srl (Rimini, Italy) (represented by: R. Holzeisen, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Final Report OF/2013/0086/B1 THOR (2015) 40189 — 26.11.2015 because it is invalidated by serious illegalities;

               —

               And, in consequence, annul Recommendation for action to be taken following an OLAF investigation THOR (2015) 4257 — 09.12.2015;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   The present action is brought against the contested measures, inasmuch as they find that, for a certain number of years, the applicant has evaded the payment of customs and anti-dumping duties. The applicant states in that regard that it has imported a large amount of stainless steel fixation goods, relying on the correctness of the certification in bulk by the customs authorities of the Philippines that the goods supplied by two Philippine companies allegedly originated from the Philippines, until it became aware of the opening by the European Union of an anti-circumvention procedure against the Philippines on the grounds of suspicion that the goods referred to above were goods originating from Taiwan and were, therefore, merely transhipped from Taiwan via the Philippines to the European Union.
   In support of the action, the applicant relies on two pleas in law.

               1.

               First plea in law alleging, as a preliminary point, that the measures against which the action has been brought are challengeable under Article 263 TFEU.

                           —

                           It is argued in that regard that the contested measures, despite their nomen juris (legal name) which could infer the contrary, have in essence binding effect on the Italian customs authorities, and have direct legal effects that harm the interests and the personal and actual rights of the applicant, altering its legal position, and this is so taking into consideration (1) the nature of the customs duties as ‘EU own resources’ and of the consequential obligations for Member States, which are responsible simply for charging the duties, (2) the nature of OLAF as the administrative investigating body that replaces the Commission in external investigations, (3) the role of the European Commission, as the institution with an enforcement function in relation to the application of the European Union’s Customs Code.

                           —

                           To deny, in this legal context, direct challengeability under Article 263 TFEU of OLAF’s measures contested by the applicant would amount to denying the fundamental right of the applicant to effective remedies, and, therefore, an infringement of Article 47 of the Charter of Fundamental Rights of the EU and Article 13 of the European Convention on Human Rights.

               2.

               Second plea in law, alleging the illegality of the contested measures.

                           —

                           It is argued in this respect that Final Report OF/2013/0086/B1 THOR (2015) 40189 does not contain any of the mandatory essential information envisaged by the legislator in Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013, (1) with the result that it is absolutely unlawful and lacking in any evidential value.

                           —

                           The contested measure is vitiated by the following illegalities: lack of information relating to procedural guarantees, to the persons involved in the investigation, to the hearing of the applicant’s legal representatives, to the required preliminary legal qualification, unreasoned and contradictory rejection of the responsibility of the competent authorities, failure by OLAF to fulfil its duty to conduct its investigations objectively and impartially and in accordance with the principle of presumption of innocence, and also incorrect information in the Final Report because of the lack of a preliminary investigation.

                           —

                           Because of all the illegalities outlined above, the recommendation of the Director General of OLAF that the Agenzia delle Dogane e dei Monopoli della Repubblica italiana should adopt all the measures necessary for the recovery of the duties from the applicant lacks any basis at all in law and is therefore unlawful.

      (1)  Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013L 248, p. 1)


title: Case T-321/14: Action brought on 12 May 2014  — Volkswagen v OHIM (STREET)

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/39

         Action brought on 12 May 2014 — Volkswagen v OHIM (STREET)
   (Case T-321/14)
   2014/C 212/51
   Language of the case: German

      Parties

      Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by U. Sander, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 March 2014 in Case R 2025/2013-1;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘STREET’ for goods in Classes 12, 28 and 35

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 7(1)(c) of Regulation No 207/2009


title: Case C-18/17: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 16 January 2017 — Danieli & C. Officine Meccaniche SpA and Others v Arbeitsmarktservice Leoben

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/18

         Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 16 January 2017 — Danieli & C. Officine Meccaniche SpA and Others v Arbeitsmarktservice Leoben
   (Case C-18/17)
   (2017/C 144/24)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicants: Danieli & C. Officine Meccaniche SpA, Dragan Panic, Ivan Arnautov, Jakov Mandic, Miroslav Brnjac, Nikolai Dorassevitch, Alen Mihovic

      Defendant: Arbeitsmarktservice Leoben

      Questions referred

               1.

               Are Articles 56 and 57 TFEU, Directive 96/71/EC (1) of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, Paragraph 2 and Paragraph 12 of Chapter 2, Free movement of persons, of Annex V to the Act concerning the conditions of accession of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union, and to the Treaty establishing the European Atomic Energy Community, to be interpreted as meaning that Austria is entitled to restrict the posting of workers employed in an undertaking established in Croatia by requiring a work permit, where this posting takes place by means of transfer to a company established in Italy [Or. 2] so that the Italian company can provide a service in Austria, and the work carried out by the Croatian workers for the Italian company on the construction of a wire rod mill in Austria is restricted to providing this service in Austria and there is no employment relationship between them and the Italian company?

               2.

               Are Articles 56 and 57 TFEU and Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services to be interpreted as meaning that Austria is entitled to restrict the posting of Russian and Belarusian workers employed in a company established in Italy by requiring a work permit, if this posting takes place by means of transfer to a second company established in Italy for the purpose of the provision by the second company of a service in Austria, and the work of the Russian and/or Belarusian workers for the second company is restricted to providing its service in Austria and there is no employment relationship between them and the second company?

      (1)  OJ L 18, 21.1.1997, p. 1.


title: Case C-302/07: Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 29 June 2007 — J D Wetherspoon PLC v The Commissioners of Her Majesty's Revenue and Customs

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/20

         Reference for a preliminary ruling from VAT and Duties Tribunal, London (United Kingdom) made on 29 June 2007 — J D Wetherspoon PLC v The Commissioners of Her Majesty's Revenue and Customs
   (Case C-302/07)
   (2007/C 211/38)
   Language of the case: English
   Referring court
   VAT and Duties Tribunal, London
   Parties to the main proceedings

      Applicant: J D Wetherspoon PLC

      Defendant: The Commissioners of Her Majesty's Revenue and Customs
   Questions referred

               1.

               Is the rounding off of VAT amounts governed solely by national law, or instead governed by Community law? In particular do the first and second paragraphs of Article 2 of the First Directive (1) and Articles 11A(l)(a) and/or 12(3)(a) and/or Article 22(3)(b), (version as at 1st January 2004) of the Sixth Directive (2) confirm that rounding off is a matter of Community law?

               2.

               In particular:

                           (i)

                           Does Community law prevent the application of a national rule or practice of the national taxing authority which requires rounding up of any given VAT amount whenever the fraction of the smallest unit of currency is concerned is at or above 0.50 (for example, 0.5 pence is required to be rounded up to the nearest whole pence)?

                           (ii)

                           Does Community law require that the taxpayers be allowed to round down any VAT amount which includes a fraction of the smallest unit of currency available?

               3.

               In a VAT inclusive sale at which level does Community law require rounding off to be applied for the purpose of calculating the VAT due: at the level of each individual item, each line of goods, each supply (if more than one supply is included in the same basket), each transaction/basket total, or each VAT accounting period or some other level?

               4.

               Is the answer to any of the questions affected by the Community law principles of equal treatment and fiscal neutrality, particularly by reference to the existence, in the United Kingdom, of a concession by the relevant taxing authorities allowing only certain traders to round down the VAT amounts to be accounted for?

      (1)  First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ 71, p. 1301), English special edition: Series 1, Chapter 1967, p. 14.

      (2)  Sixth Council Directive 77/388/EEC OF 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1).


title: Case C-179/17: Request for a preliminary ruling from the Juzgado de Primera Instancia No 1 de Barcelona (Spain) lodged on 7 April 2017 — Bankia, S.A. v Alfonso Antonio Lau Mendoza, Verónica Yuliana Rodríguez Ramírez

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/6

         Request for a preliminary ruling from the Juzgado de Primera Instancia No 1 de Barcelona (Spain) lodged on 7 April 2017 — Bankia, S.A. v Alfonso Antonio Lau Mendoza, Verónica Yuliana Rodríguez Ramírez
   (Case C-179/17)
   (2017/C 231/08)
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia No 1 de Barcelona

      Parties to the main proceedings

      Applicant: Bankia, S.A.

      Defendants: Alfonso Antonio Lau Mendoza, Verónica Yuliana Rodríguez Ramírez

      Questions referred

               1)

               Is case-law incompatible with Articles 6 and 7 of Directive 93/13/EEC (1) on unfair terms in consumer contracts when it (STS (Sentencia del Tribunal Supremo: judgment of the Supreme Court) of 18 February 2016) holds that, despite the unfairness of the early repayment term and even though the application for enforcement is based on that term, mortgage enforcement proceedings are not to be closed because their continuation is more favourable to the consumer, given that, in the event of any enforcement of a judgment given in declaratory proceedings brought under Article 1124 CC (Código Civil: Civil Code), a consumer would not enjoy the procedural privileges applicable in mortgage enforcement proceedings, and when that case-law does not take into account the settled case-law of the TS (Tribunal Supremo: Supreme Court) to the effect that Article 1124 CC (laid down for contracts creating reciprocal obligations) is not applicable to loan agreements, because such an agreement is a real, unilateral contract which does not become valid until the money is handed over and which, therefore, creates obligations for the borrower alone and not for the lender (creditor), so that, if that case-law of the TS were to be applied in declaratory proceedings, a consumer could obtain a ruling dismissing the claim for termination and compensation and it could no longer be argued that continuation of the mortgage enforcement proceedings was more favourable to him?

               2)

               If the application of Article 1124 CC to loan agreements or in the case of all credit agreements should be accepted, is case-law like that referred to incompatible with Articles 6 and 7 of Directive 93/13/EEC on unfair terms in consumer contracts when that case-law does not take into account, for the purpose of assessing whether it is more favourable to the consumer for the mortgage enforcement proceedings to continue or more detrimental to hold declaratory proceedings under Article 1124 CC, the fact that, in declaratory proceedings, the claim for termination of the agreement and the claim for compensation may be dismissed if the court applies the stipulation in Article 1124 CC that ‘the court shall order the termination requested, unless there are justified grounds allowing it to fix a period’, bearing in mind that, precisely in the context of long-term (20 or 30 years) loans and mortgages for the purchase of dwellings, it is relatively likely that the courts will apply that ground for dismissal, particularly where the non-performance of the payment obligation has not been very serious?

               3)

               If it were to be accepted that it is more favourable to the consumer to continue enforcement of the mortgage with the effects of early repayment, is case-law like that referred to incompatible with Articles 6 and 7 of Directive 93/13/EEC on unfair terms in consumer contracts when that case-law applies on a supplementary basis a statutory provision (Article 693(2) LEC (Ley de Enjuiciamiento Civil: Law on Civil Procedure), even though the contract is capable of continuing to exist without the early repayment term, and when that case-law gives effects to Article 693(2) LEC, even though the essential condition stipulated therein has not been met: that there should be in the contract a valid and effective agreement regarding early repayment, and the early repayment term has in fact been declared unfair, void and ineffective?

      (1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).


title: Case C-500/04: Judgment of the Court (Sixth Chamber) of  16 February 2006  (reference for a preliminary ruling from the Finanzgericht Düsseldorf) — Proxxon GmbH v Oberfinanzdirektion Köln (Tariff classification — Hand-operated spanners and wrenches and interchangeable spanner sockets)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/21

         Judgment of the Court (Sixth Chamber) of 16 February 2006 (reference for a preliminary ruling from the Finanzgericht Düsseldorf) — Proxxon GmbH v Oberfinanzdirektion Köln
   (Case C-500/04) (1)

   (Tariff classification - Hand-operated spanners and wrenches and interchangeable spanner sockets)
   (2006/C 131/38)
   Language of the case: German
   Referring court
   Finanzgericht Düsseldorf (Germany)
   Parties to the main proceedings

      Applicant: Proxxon GmbH

      Defendant: Oberfinanzdirektion Köln
   Re:
   Reference for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of the Combined Nomenclature as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2003 L 281) — ‘Hand-operated spanners and wrenches (including torque meter wrenches but not including tap wrenches); interchangeable spanner sockets, with or without handles’ within the meaning of Heading 8204 — Screwdriver bits with square drive for slotted-head, cross-head, TX and hexagon socket head screws and square-system torque meter wrenches
   Operative part of the judgment

               1.

               Heading 8204 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 2388/2000 of 13 October 2000, is to be interpreted as not covering separately imported screwdriver bits with square drive for slotted-head, cross-head, TX (internal Torx) and hexagon socket head screws, as described in the order for reference.

               2.

               Heading 8204 of the Combined Nomenclature is to be interpreted as covering separately imported parts of the square system, as described in the order for reference, which are not in direct contact with the fastener during use.

               3.

               Heading 8204 of the Combined Nomenclature is to be interpreted as covering separately imported square-system torque meter wrenches of the type described in the order for reference.

      (1)  OJ C 57, 05.03.2005


title: Judgment of the Court (Sixth Chamber) of  27 October 2005  in Case C-377/04: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Directive 1999/92/EC — Protection of workers — Risk from explosive atmospheres — Failure to transpose within the prescribed period)

text:
               24.12.2005

               EN

               Official Journal of the European Union

               C 330/6

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 27 October 2005
   in Case C-377/04: Commission of the European Communities v Republic of Austria (1)

   (Failure of a Member State to fulfil obligations - Directive 1999/92/EC - Protection of workers - Risk from explosive atmospheres - Failure to transpose within the prescribed period)
   (2005/C 330/11)
   Language of the case: German
   In Case C-377/04 Commission of the European Communities (Agents: D. Martin and V. Kreuschitz) v Republic of Austria (Agent: C. Pesendorfer) — action under Article 226 EC for failure to fulfil obligations, brought on 2 September 2004 — the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, A. Borg Barthet (Rapporteur) and U. Lõhmus, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 27 October 2005, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to implement fully Directive 1999/92/EC of the European Parliament and of the Council of 16 December 1999 on minimum requirements for improving the safety and health protection of workers potentially at risk from explosive atmospheres (15th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Republic of Austria has failed to fulfil its obligations under that directive;

               2.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 262 of 23.10.2004.


title: Case C-28/04: Reference for a preliminary ruling by the Tribunal De Grand Instance de Paris (Third Chamber, Second Division) by order of that Court of 5 December 2003 in the case of Société TOD'S SpA (formerly named EMA Srl) and SARL TOD'S France formerly named DEVA France against S.A. Heyraud; Voluntary intervener: Sté Technisynthese

text:
C 71/12                EN                          Official Journal of the European Union                                         20.3.2004
Pleas in law and main arguments                                            Action brought on 28 January 2004 by the Commission
                                                                           of the European Communities against the Republic of
                                                                                Austria
The Spanish authorities have not officially designated as
bathing areas, the beaches Viela/A Videira, Niño do Corvo and
Canabal in the municipality of Moaña (Pontevedra), in spite of
                                                                                (Case C-29/04)
the frequent presence of bathers on those beaches. In the
absence of a ban on bathing, the presence of bathers requires
the designation of those beaches as bathing waters, for the
purpose of Directive 76/160. In the absence of such a                                               (2004/C 71/19)
designation, those three beaches have not been subject to the
surveillance required by the Directive.
The waters of the Ría de Vigo do not conform to the guideline              An action against the Republic of Austria was brought
values, laid down by Directive 79/923, for faecal coliforms, in            before the Court of Justice of the European Communities
spite of the fact that nearly all of those waters have been                on 28 January 2004 by the Commission of the European
designated by the Spanish authorities as shellfish waters.                 Communities, represented by Klaus Wiedner, acting as Agent,
Accordingly, Article 5 of that directive requires the establish-           with an address for service in Luxembourg.
ment of a programme to reduce pollution in order to ensure
that the designated waters conform to the values fixed in the
Annex to Directive 79/923. However, the pollution-reduction
programme for the Ría de Vigo has not been notified to the                 The applicant claims that the Court should:
Commission.
                                                                           1.    declare that the Republic of Austria has failed to fulfil its
(1) OJ 1976 L 31, p. 1; Spanish Special Edition 15/01, p. 133.                   obligations under Council Directive 92/50/EEC of 18 June
(2) OJ 1979 L 281, p. 47; Spanish Special Edition 15/02, p. 156.                 1992 relating to the coordination of procedures for the
                                                                                award of public service contracts (1), in that award of the
                                                                                refuse disposal contract entered into by the town of
                                                                                Mödling failed to comply with the procedures and
                                                                                advertising rules laid down in Article 8, in conjunction
                                                                                with Article 11(1) and Article 15(2), of that directive;
Reference for a preliminary ruling by the Tribunal De
                                                                           2.    order the Republic of Austria to pay the costs.
Grand Instance de Paris (Third Chamber, Second Division)
by order of that Court of 5 December 2003 in the case of
Société TOD’S SpA (formerly named EMA Srl) and SARL
TOD’S France formerly named DEVA France against S.A.
    Heyraud; Voluntary intervener: Sté Technisynthese
                                                                           Pleas in law and main arguments
                          (Case C-28/04)
                          (2004/C 71/18)                                   On 21 May 1999, the municipality of Mödling decided to use
                                                                           its own vehicle to carry out its statutory duties relating to
                                                                           refuse disposal. A company, AbfallGmbH, was incorporated
                                                                           for this purpose. The whole of the company’s share capital
Reference has been made to the Court of Justice of the                     was held by one member, namely the municipality of Mödling.
European Communities by order of the Tribunal De Grand                     The contract for disposal, under which the municipality of
Instance de Paris (Paris Regional Court) of 5 December 2003,               Mödling transferred exclusive responsibility for the collection
received at the Court Registry on 28 January 2004, for a                   and treatment of waste to AbfallGmbH, was entered into on
preliminary ruling in the case of Société TOD’S SpA (formerly              15 September 1999. The contract was entered into for an
named EMA Srl) and SARL TOD’S France formerly named                        unlimited period and came into force with retrospective effect
DEVA France against S.A. Heyraud; Voluntary intervener: Sté                on 1 July 1999. Two weeks after the conclusion of the contract
Technisynthese, on the following question:                                 for refuse disposal, the town council of the municipality of
                                                                           Mödling decided that the municipality of Mödling, as sole
                                                                           member of AbfallGmbH, should transfer 49 % of its shares to
Does Article 12 of the EC Treaty, which lays down the general              a private undertaking.
principle of non-discrimination on grounds of nationality,
mean that the right of an author to claim in a Member State
the copyright protection afforded by the law of that State may
not be subject to a distinction based on the country of origin             The Republic of Austria is of the opinion that the provisions
of the work?                                                               of Directive 92/50/EEC do not apply to the award of the waste
                                                                           disposal contract to AbfallGmbH, as it involved a so-called ‘in-
                                                                           house’ transaction.


title: Case C-480/07: Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Directive 2000/59/EC — Port reception facilities for ship-generated waste and cargo residues — Failure to have developed, implemented or approved waste reception and handling plans for all ports)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/18

         Judgment of the Court (Second Chamber) of 11 December 2008 — Commission of the European Communities v Kingdom of Spain
   (Case C-480/07) (1)

   (Failure of a Member State to fulfil its obligations - Directive 2000/59/EC - Port reception facilities for ship-generated waste and cargo residues - Failure to have developed, implemented or approved waste reception and handling plans for all ports)
   (2009/C 44/30)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: K. Simonsson and R. Vidal Puig, acting as Agents)

      Defendant: Kingdom of Spain (represented by: B. Plaza Cruz, acting as Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Infringement of Article 5(1) and Article 16(1) of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (OJ 2000 L 332, p. 81) — Failure to have developed and/or implemented waste reception and handling plans for all ports under the jurisdiction of the ‘Comunidades Autónomas’
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to develop, implement and approve waste reception and handling plans for all Spanish ports, the Kingdom of Spain has failed to fulfil its obligations under Article 5(1) and Article 16(1) of Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 315 of 22.12.2007.


title: Action brought on 15 September 1995 by Paolo Carrer against the Court of Justice of the European Communities (Case T-170/95)

text:
11 . 11 . 95          EN                   Official Journal of the European Communities                                 No C 299/ 17
( EEC ) No 193/82 and which together hold about 92% of                The applicant claims that the Court should :
the production quotas assigned to Italy as a whole, challenge
the new rules for the sugar sector in as much as they provide         — annul the Commission 's decision to regard the
for the total elimination of the aids to the Italian industry             applicant's absence from work between 8 and 23 August
which had been permitted until the 1994/95 marketing year                  1994 as unauthorized and to impute 10 days against his
while at the same time maintaining in force the system                    annual holiday entitlement,
whereby in deficit areas ( being those in which production is
lower than consumption ( sugar manufacturers pay a higher             — order the Commission to pay the costs .
minimum price for beet than that paid by manufacturers in
non-deficit areas . That difference, like the corresponding           Pleas in law and main arguments adduced in support:
difference between the intervention price and the derived
intervention price for sugar, is referred to as regionalization ,     The applicant challenges the Commission 's determination
and its original purpose was to allow producers in countries          that his absence from work during the second and third
with a surplus to supply deficit countries , covering the             weeks of August 1994 was unauthorized .
higher transport costs necessary .
                                                                      He states that it was not until he became aware of the
Given that Italy is not a deficit country, the fact that              contested decision of 21 September 1994 that he was told
regionalized prices are applied indicates, in the applicants'         that the Commission 's medical officer had concluded that
submission , that the arrangement has lost its original               the cessation of work prescribed by his attending doctor was
function and become a gratuitous and undue benefit for beet           unjustified , and that he should have resumed work
growers, entirely at the cost and to the enormous and                 immediately .
unwarranted detriment of Italian sugar manufacturers, who
are no longer compensated by the receipt of aids . In order to        The applicant considers that the institution 's medical
maintain the coherence of the system, abolition of the aids           officer, being merely a general practitioner engaged at given
and abolition of the regionalized prices should have gone             times to perform specific functions , had no jurisdiction in
hand in hand under the new system .                                   the matter beyond submitting a report to the appointing
                                                                      authority as to the validity of the medical certificate; only the
In the applicants' submission, the new Community rules :              institution had the authority to form the opinion that sick
                                                                      leave prescribed by an attending doctor was not binding
— infringe Article 40 of the EEC Treaty, which excludes               upon it and to order an official to resume work immediately .
     any discrimination between producers within the                  Moreover, pursuant to Article 25 of the Staff Regulations,
     Community and provides that any common price policy              such a decision must be communicated to the official
     is to be based on common criteria and uniform methods            concerned immediately in writing, which was not done in
     of calculation ,                                                 this case .
— are contrary to Articles 30 and 34 of the EEC Treaty,               The applicant also claims that he sent the Commission a
     since the mechanism in question places unjustified               medical certificate from his doctor prescribing cessation of
     obstacles to applying free market principles to Italian          work from 25 July to 19 August 1994 , and that under
     producers,                                                       Article 59 of the Staff Regulations he was therefore
                                                                      automatically entitled to sick leave . Although Article 59
— introduces a ' masked' aid to Italian growers , exclusively         permits the institution to require the applicant to undergo a
     at the expense of Italian sugar producers .                      medical examination, it does not authorize it, in the event of
                                                                      the medical officer disputing the validity of the medical
                                                                      certificate produced, to disregard that certificate and order
                                                                      the official concerned to resume work .
 Action brought on 8 September 1995 by Agustin Qui) ano
   against the Commission of the European Communities
                        ( Case T-l 69/95 )                            Action brought on 15 September 1995 by Paolo Carrer
                          ( 95/C 299/29 )                              against the Court of Justice of the European
                                                                                Communities
                                                                                ( Case T-170/95 )
                 (Language of the case: French)
                                                                                ( 95/C 299/30 )
 An action against the Commission of the European
 Communities was brought before the Court of First                                    (Language of the case: Italian)
 Instance of the European Communities on 8 September
  1995 by Agustin Quijano, resident in Luxembourg,                     An action against the Court of Justice of the European
 represented by Jean-Noel Louis, Thierry Demaseure and                 Communities was brought before the Court of First
 Ariane Tornel , all of the Brussels Bar, with an address for          Instance of the European Communities on 15 September
 service in Luxembourg at the offices of Fiduciaire Myson              1995 by Paolo Carrer, an official of the Court of Justice ,
 Sari , 1 Rue Glesener.                                                residing at Kehlen, Luxembourg, represented by Roberta
 ---pagebreak---  No C 299/ 1 8           EN                  Official Journal of the European Communities                                   11 . 11 . 95
 Borlandi , of the Genoa Bar, with an address for service in            linguistic knowledge was based on his poor knowledge of a
 Luxembourg at the office of Marisa Ruggeri Montanelli ,                second foreign language . That , however, constituted a
 6 Rue de l'Fxole , Nospelt .                                           manifest breach by the Selection Board of the spirit of the
                                                                        notice of competition . Although knowledge of a second
                                                                        foreign language could be taken into consideration and thus
 The applicant claims that the Court should :
                                                                        confer higher marks , the absence of such knowledge could
                                                                        not in any way justify a mark less than 50% of the
 — annul at least the oral test of Internal Competition No              maximum , since that knowledge was not a requirement for
      CJ 51 /93 ' administrative assistants '1 for the constitution     admission .
      of a reserve list of administrative assistants ( m/fi of
      Grade B 5 / B 4 ,
 — annul the consequent decisions of the appointing
      authority concerning the reserve list drawn up by the
      Selection Board ,
— annul the decision of the Complaints Committee ,                     Action brought on 22 September 1995 by Tidningen
      communicated to the applicant on 21 June 1995 ,                  Journalisten, Svenska Journalistforbundets Tidning, against
      rejecting his complaint lodged on 14 March 1995 ( Cont .                       the Council of the European Union
      5 / 95 R ),                                                                               ( Case T- 174 /95 )
                                                                                ( 95 /C 299/31 )
— order the Court of Justice to pay the costs .
                                                                                (Language of the ease : English)
 Picas in law and main arguments adduced in support:
The applicant bases his action on the irregularities which             An action against the Council of the European Union was
vitiated the oral test in which he took part .                         brought before the Court of Eirst Instance of the European
                                                                       Communities on 22 September 1995 by Tidningen
According to the notice of competition , that oral test was to         Journalisten , Svenska Journalistforbundets Tidning,
consist of a discussion with the Selection Board to enable it          represented by Onno W. Brouwer and Frederic P. Louis
to assess : ( a ) the knowledge and professional experience of         with an address for service in Luxembourg at the Chambers
candidates and the level of their linguistic knowledge ; and           of Me Marc Loesch , 1 1 , rue Goethe .
( b ) the attitude and motivation of candidates and their
fitness for the duties to be performed . It follows                     I he applicant claims that the Court should :
unequivocally from that statement that the test must
constitute a genuine dialogue between the candidate and the
members of the Selection Board , and must be conducted in              — annul the Council 's decision of 6 July 1995 , refusing to
the first language chosen by the candidate, except of course                grant access to the documents requested by the
in so far as the examination of linguistic knowledge is                     applicant,
concerned .
                                                                       — order the Council to pay the applicant's costs pursuant
At the applicant's oral test, the members of the Selection                  to Article 87 of the Rules of Procedure of the Court of
Board read the questions they put, thereby demonstrating                    First Instance , including the costs of any interveners .
that they were unable either to put the questions
spontaneously or, through not having prepared them in
advance, to add new questions or ask for clarification of the          Pleas in law and main arguments adduced in support:
replies given by the candidate . In those circumstances , the
applicant has reason to doubt the fitness of the members of            The applicant, the weekly , non-profit-making magazine of
the Selection Board to conduct the oral test in Italian and to         the Swedish Union of Journalists , seeks the annulment of a
conclude that assessments made and marks awarded bv the                refusal by the Council of the European Union to grant access
Selection Board might well have been affected by linguistic            to certain documents which were requested in the context of
considerations . In any event, they were made in a context of          Council Decision 93 /731 /EC of 20 December 1993 on
disparity between candidates , some of whom spoke in                   public access to Council documents .
languages which the members of the Selection Board knew
perfectly , thereby enabling a genuine dialogue to take place ,        The applicant explains that , on 6 July 1995 , the Council
as had been precluded from happening in the applicant 's               refused to grant it access to 16 out of the 20 documents
case .
                                                                       relating to Europol which had been requested by it, stating
                                                                       that the divulgation of such documents would damage the
As for the assessment of his linguistic knowledge, and in              public interest, and specifically public security, and that
particular his knowledge of official languages of the                  those documents relate to the Council 's proceeding,
European Union other than Italian , the applicant maintains            including the positions taken by members of the Council ,
that, judging by the reply to his complaint by the                     and fell therefore within the scope of the duty of
Complaints Committee , the insufficient mark given for                 confidentiality .


title: Case T-137/12: Action brought on 19 March 2012 — FunFactory v OHIM (three-dimensional mark in the shape of a vibrator)

text:
               2.6.2012

               EN

               Official Journal of the European Union

               C 157/10

         Action brought on 19 March 2012 — FunFactory v OHIM (three-dimensional mark in the shape of a vibrator)
   (Case T-137/12)
   2012/C 157/17
   Language of the case: German

      Parties

      Applicant: FunFactory GmbH (Bremen, Germany) (represented by K.-D. Franzen, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision (R 1436/2011-4) of the Fourth Board of Appeal of OHIM of 19 January 2012;

               —

               order OHIM to pay the costs of the proceedings, including those incurred in the proceedings before the Board of Appeal.

      Pleas in law and main arguments

      Community trade mark concerned: three-dimensional mark in the shape of a vibrator (application No 9 390 691) for goods in Class 10

      Decision of the Examiner: refusal to register

      Decision of the Board of Appeal: dismissal of the appeal

      Pleas in law: incorrect interpretation and application of Article 7(1)(b) of Regulation No 207/2009, since the mark applied for is distinctive and is not descriptive of the goods in respect of which registration is sought. Infringement of the duty to state reasons laid down in Article 73(1) of Regulation No 207/2009 and of the right to be heard.


title: Case T-242/06: Action brought on 5 September 2006 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (El charcutero artesano)

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/25

         Action brought on 5 September 2006 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (El charcutero artesano)
   (Case T-242/06)
   (2006/C 261/48)
   Language in which the application was lodged: Spanish
   Parties

      Applicant: Miguel Cabrera Sánchez (Móstoles, Spain) (represented by: J. A. Calderón Chavero and T. Villate Consonni, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Industrias Cárnicas Valle SA
   Form of order sought

               —

               annul the decision of the First Board of Appeal of OHIM of 16 June 2006 in Case R-790/2005-1;

               —

               annul Decision 2239/2005 in opposition No 637 647;

               —

               order the Opposition Division to refuse in full registration of the mark concerned;

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: Industrias Cárnicas Valle SA

      Community trade mark concerned: Figurative colour mark EL CHARCUTERO ARTESANO (Application No 2 823 193) for goods in Class 29

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: National figurative mark (No 2 047 511) EL CHARCUTERO for goods in Class 29

      Decision of the Opposition Division: Rejection of the opposition and registration of the mark applied for

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark


title: Case C-49/05 P: Judgment of the Court (Fourth Chamber) of 8 May 2008 — Ferriere Nord SpA v Commission of the European Communities, Italian Republic (Appeal — State aid — Formal examination procedure — Community framework for State aid for environmental protection — Rights of the parties — Application to submit observations — Article 88(2) EC — Regulation (EC) No 659/1999 — Legitimate expectations — Legal certainty — Environmental purpose of the investment)

text:
               21.6.2008

               EN

               Official Journal of the European Union

               C 158/2

         Judgment of the Court (Fourth Chamber) of 8 May 2008 — Ferriere Nord SpA v Commission of the European Communities, Italian Republic
   (Case C-49/05 P) (1)

   (Appeal - State aid - Formal examination procedure - Community framework for State aid for environmental protection - Rights of the parties - Application to submit observations - Article 88(2) EC - Regulation (EC) No 659/1999 - Legitimate expectations - Legal certainty - Environmental purpose of the investment)
   (2008/C 158/02)
   Language of the case: Italian
   Parties

      Appellant: Ferriere Nord SpA (represented by: W. Viscardini, G. Donà, avvocati)

      Other parties to the proceedings: Commission of the European Communities (represented by: V. Di Bucci, acting as Agent); Italian Republic (represented by: I. Braguglia, Agent, and M. Fiorilli, avvocato dello Stato)
   Re:
   Appeal against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 18 November 2004 in Case T-176/01 Ferriere Nord v Commission, dismissing an application for, on the one hand, annulment of Commission Decision 2001/829/EC, ECSC of 28 March 2001 Commission Decision of 28 March 2001 on the State aid which Italy is planning to grant to Ferriere Nord SpA (OJ 2001 L 310, p. 22), declaring incompatible with the common market aid notified as environmental aid which the autonomous Region of Friuli-Venezia Giulia (Italy) is planning to grant to the applicant in the form of a financial contribution to investments in new plant for the production of electrowelded wire mesh to reduce noise and eliminate waste in the form of iron oxide, and, on the other, compensation for the harm allegedly suffered by the applicant following adoption of that decision
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Ferriere Nord SpA to pay the costs;

               3.

               Orders the Italian Republic to bear its own costs.

      (1)  OJ C 82, 2.4.2005.