title: Case T-308/00 RENV: Judgment of the General Court of 22 January 2013 — Salzgitter AG v European Commission (State aid — Steel industry — Tax incentives for the development of the border zone between the former German Democratic Republic and the former Czechoslovak Socialist Republic — Non-notified aid — Decision declaring the aid incompatible with the common market — Recovery — Delay — Legal certainty — Calculation of the aid to be repaid — Aid falling within the scope of the ECSC Treaty — Investments for the protection of the environment — Discount rate)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/17

         Judgment of the General Court of 22 January 2013 — Salzgitter AG v European Commission
   (Case T-308/00 RENV) (1)

   (State aid - Steel industry - Tax incentives for the development of the border zone between the former German Democratic Republic and the former Czechoslovak Socialist Republic - Non-notified aid - Decision declaring the aid incompatible with the common market - Recovery - Delay - Legal certainty - Calculation of the aid to be repaid - Aid falling within the scope of the ECSC Treaty - Investments for the protection of the environment - Discount rate)
   2013/C 63/32
   Language of the case: German

      Parties

      Applicant: Salzgitter AG (Salzgitter, Germany) (represented by: J. Sedemund and T. Lübbig, lawyers)

      Defendant: European Commission (represented by: initially by V. Kreuschitz and M. Niejahr, and subsequently by V. Kreuschitz and T. Maxian Rusche, Agents)

      Intervener in support of the applicant: Federal Republic of Germany (represented by: M. Lumma and A. Wiedmann, Agents, assisted by U. Karpenstein, lawyer)

      Re:

   Application for annulment of Commission Decision 2000/797/ECSC of 28 June 2000 on State aid granted by the Federal Republic of Germany to Salzgitter AG, Preussag Stahl AG and the group’s steel-industry subsidiaries, now known as Salzgitter AG — Stahl und Technologie (SAG) (OJ 2000 L 323, p. 5).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Salzgitter AG to bear its own costs and to pay those incurred by the European Commission, both before the General Court and before the Court of Justice;

               3.

               Orders the Federal Republic of Germany to bear its own costs both before the General Court and before the Court of Justice.

      (1)  OJ C 335, 25.11.2000.


title: Case C-112/10: Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium), lodged on 1 March 2010 — Procureur-Generaal bij het Hof van Beroep te Antwerpen v Zaza Retail BV [Philippe and Cécile Noelmans, administrators in the winding-up of Zaza Retail BV (Belgium)]; voluntary intervener: Zaza Retail BV [Manon Cordewener, administrator in the winding-up of Zaza Retail BV (Netherlands)]

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/33

         Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium), lodged on 1 March 2010 — Procureur-Generaal bij het Hof van Beroep te Antwerpen v Zaza Retail BV [Philippe and Cécile Noelmans, administrators in the winding-up of Zaza Retail BV (Belgium)]; voluntary intervener: Zaza Retail BV [Manon Cordewener, administrator in the winding-up of Zaza Retail BV (Netherlands)]
   (Case C-112/10)
   2010/C 113/51
   Language of the case: Dutch

      Referring court

   Hof van Cassatie van België

      Parties to the main proceedings

               Appellant

               :

               Procureur-Generaal bij het Hof van Beroep te Antwerpen

               Respondent

               :

               Zaza Retail BV
               [Philippe and Cécile Noelmans, administrators in the winding-up of Zaza Retail BV (Belgium)]

               Voluntary intervener

               :

               Zaza Retail BV
               [Manon Cordewener, administrator in the winding-up of Zaza Retail BV (Netherlands)]

      Questions referred

               1.

               Does the term ‘the conditions laid down’ in Article 3(4)(a) of Council Regulation (EC) No 1346/2000 (1) also cover conditions relating to the capacity or the interest of a person — such as the public prosecution service of another Member State — to request the opening of insolvency proceedings, or do those conditions relate only to the substantive conditions for being made subject to such proceedings?

               2.

               Can the term ‘creditor’ in Article 3(4)(b) of Regulation No 1346/2000 be interpreted broadly to mean that a national authority which, under the law of the Member State to which it belongs, has power to request the opening of insolvency proceedings and acts in the public interest and as the representative of all the creditors, may also, in the present case, validly request the opening of territorial insolvency proceedings pursuant to Article 3(4)(b) of that regulation?

               3.

               If the term ‘creditor’ can also refer to a national authority with the power to request the opening of insolvency proceedings, does the application of Article 3(4)(b) of Regulation No 1346/2000 require that national authority to demonstrate that it is acting in the interests of creditors who themselves have their domicile, habitual residence or registered office in the country of that national authority?

      (1)  Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).


title: Case C-562/07: Action brought on 19 December 2007 — Commission of the European Communities v Kingdom of Spain

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/22

         Action brought on 19 December 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-562/07)
   (2008/C 64/33)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: R. Lyal and I. Martinez del Peral Cagigal, agents)

      Defendant: Kingdom of Spain
   Form of order sought

               —

               Declare that by treating differently capital gains obtained in Spain by non-residents from those obtained by residents until 31 December 2006, the Kingdom of Spain failed to fulfil its obligations under Articles 39 and 56 EC and Articles 28 and 40 of the EEA Agreement;

               —

               Order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   Under the Spanish legislation in force until 31 December 2006, the taxation of capital gains of non-residents was subject to a proportional rate of 35 %, while that of residents was subject to a progressive schedule if the capital assets remained their property for a period of less than one year, and to a proportional rate of 15 % if the period of ownership exceeded one year. Consequently, the tax burden borne by non-residents if they sold their assets after the lapse of one year following acquisition was always greater. In the event of disposal of assets within the year following acquisition, non-residents also bore a greater tax burden, except when the average rate applied to resident taxpayers exceeded 35 % (which would imply very considerable capital gains).
   The Commission considers that there is no objective difference between the situations of those two categories of taxpayers, so that the higher tax burden on non-residents is discrimination which unlawfully restricts freedom of movement for workers and the free movement of capital provided for in Articles 39 and 56 EC and Articles 28 and 40 of the EEA Agreement.


C 21/30               EN                     Official Journal of the European Union                                   24.1.2004
       Removal from the register of Case C-308/02 (1)                       Removal from the register of Case C-461/02 (1)
                        (2004/C 21/58)                                                       (2004/C 21/61)
By order of 30 September 2003 the President of the Court of          By order of 17 September 2003 the President of the Court of
Justice of the European Communities ordered the removal              Justice of the European Communities ordered the removal
from the register of Case C-308/02: Commission of the                from the register of Case C-461/02: Commission of the
European Communities v Grand Duchy of Luxembourg.                    European Communities v Grand Duchy of Luxembourg.
(1) OJ C 247 of 12.10.2002.                                          (1) OJ C 44 of 22.2.2003.
       Removal from the register of Case C-342/02 (1)
                                                                            Removal from the register of Case C-48/03 (1)
                        (2004/C 21/59)
                                                                                (2004/C 21/62)
By order of 17 September 2003 the President of the First
Chamber of the Court of Justice of the European Communities          By order of 26 September 2003 the President of the Court of
ordered the removal from the register of Case C-342/02:              Justice of the European Communities ordered the removal
Commission of the European Communities v French Republic.            from the register of Case C-48/03: Commission of the
                                                                     European Communities v Portuguese Republic.
(1) OJ C 261 of 26.10.2002.
                                                                     (1) OJ C 70 of 22.3.2003.
       Removal from the register of Case C-370/02 (1)
                                                                            Removal from the register of Case C-190/03 (1)
                        (2004/C 21/60)
                                                                                (2004/C 21/63)
By order of 16 September 2003 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-370/02: Commission of the                By order of 29 September 2003 the President of the Court of
European Communities v Kingdom of Belgium.                           Justice of the European Communities ordered the removal
                                                                     from the register of Case C-190/03: Portuguese Republic v
                                                                     Commission of the European Communities.
(1) OJ C 305 of 7.12.2002.
                                                                     (1) OJ C 184 of 2.8.2003.


title: Case C-35/11: Reference for a preliminary ruling from High Court of Justice (England and Wales) (Chancery Division) (United Kingdom) made on 21 January 2011 — Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, Commissioners for Her Majesty's Revenue & Customs

text:
               2.4.2011

               EN

               Official Journal of the European Union

               C 103/15

         Reference for a preliminary ruling from High Court of Justice (England and Wales) (Chancery Division) (United Kingdom) made on 21 January 2011 — Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue, Commissioners for Her Majesty's Revenue & Customs
   (Case C-35/11)
   2011/C 103/27
   Language of the case: English

      Referring court

   High Court of Justice (England and Wales) (Chancery Division)

      Parties to the main proceedings

      Applicants: Test Claimants in the FII Group Litigation

      Defendants: Commissioners of Inland Revenue, Commissioners for Her Majesty's Revenue & Customs

      Questions referred

               1.

               Do the references to ‘tax rates’ and ‘different levels of taxation’ at paragraph 56 of the Court's judgment of 12 December 2006 in Case C-446/04 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR 1-11753:

                           (a)

                           refer solely to statutory or nominal rates of tax; or

                           (b)

                           refer to the effective rates of tax paid as well as the statutory or nominal rates of tax; or

                           (c)

                           do the phrases referred to have some different meaning and, if so, what?

               2.

               Does it make any difference to the Court's answer to Questions 2 and 4 of the reference in Case C-446/04 if:

                           (a)

                           foreign corporation tax is not (or not wholly) paid by the non-resident company paying the dividend to the resident company, but that dividend is paid from profits comprising dividends paid by its direct or indirect subsidiary resident in a Member State and which were paid out of profits on which tax has been paid in that State; and/or

                           (b)

                           advance corporation tax (‘ACT’) is not paid by the resident company which receives the dividend from a non-resident company, but is paid by its direct or indirect resident parent company upon the further distribution of the profits of the recipient company that directly or indirectly comprise the dividend?

               3.

               In the circumstances described in Question 2(b) above does the company paying the ACT have a claim for the repayment of the tax unduly levied (San Giorgio (1)) or only a claim for damages (Brasserie du Pêcheur and Factortame (2))?

               4.

               Where the national legislation in question does not apply exclusively to situations in which the parent company exercises decisive influence over the dividend paying company, can a resident company rely upon Article 63 TFEU (formerly Article 56 EC) in respect of dividends received from a subsidiary over which it exercises decisive influence and which is resident in a third country?

               5.

               Does the Court's answer to Question 3 of the reference in Case C-446/04 also apply where the non-resident subsidiaries to which no surrender could be made are not subject to tax in the Member State of the parent company?

      (1)  Case 199/82 Amministrazione delle Finanze della Stata v SpA San Giorgio [1983] ECR 3595.

      (2)  Joint Cases C-46/93 and C-48/93 Brasserie du Pêcheu: SA v Federal Republic of Germany and The Queen v Secretary of State far Transport, ex parte Factortame Ltd and Others [1996] ECR 1-1029.


title: Action brought on 8 July 1996 by the French Republic against the Commission of the European Communities (Case C-232/96)

text:
14 . 9 . 96             EN                    Official Journal of the European Communities                                      No C 269/9
Reference for a preliminary ruling from the Cour d'Appel,                  II . Can Commission Regulation ( EC ) No 1475/95
Douai, by judgment of that court of 20 June 1996 in the case                     of 28 June 1995 replacing Regulation ( EEC )
of SA Cabour and SA Nord Distribution Automobile v.                              No 123/85 (2) be interpreted as meaning that an
SARL Arnor 'Soco' ( interveners: SA Automobile Peugeot                           exclusive concession contract containing clauses of the
                  and SA Automobiles Citroen )                                   sort referred to in Question I ( 2 ) and ( 3 ) qualifies for
                           Case C-230/96 )                                       exemption under Article 1 of that Regulation, having
                                                                                regard respectively to Articles 3 ( 3 ) and 4 ( 1 ) ( 3 ) of
                            ( 96/C 269/21
                                                                                Regulation ( EC ) No 1475/95 in conjunction with
                                                                                Article 5 ( 2 ) ( 2 ), ( 2 ) ( 3 ) and ( 3 )?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Cour d'Appel                   III . In the event that Regulations ( EEC ) No 123/5 and ( EC )
( Court of Appeal ), Douai , of 20 June 1996 , which was                         No 1475/95 cannot be interpreted as conferring the
received at the Court Registry on 8 July 1996 , for a                            benefit of the exemption for which they provide on
preliminary ruling in the case of SA Cabour and SA Nord                          concession contracts of the kind referred to in
Distribution Automobile v. SARL Arnor ' Soco' ( interveners :
                                                                                Questions I and II, must Article 85 ( 1 ) of the EC Treaty
SA Automobile Peugeot and SA Automobiles Citroen ), on                           be interpreted as meaning that an exclusive distribution
the following questions :                                                        network of a motor vehicle manufacturer which is
                                                                                based, throughout the territory of a Member State, on
  I. Can Commission Regulation ( EEC ) No 123/85 of                              such concession contracts is caught by the prohibition
      12 December 1984 on the application of Article 85 ( 3 )                    set out in that provision ?
      of the EEC Treaty (') be interpreted as meaning that
      an exclusive concession agreement binding a car                    (') OJ No L 15 , 18 . 1 . 1985 , p . 16 .
      manufacturer to a concessionaire qualifies for                     ( 2 ) OJ No L 145 , 29 . 6 . 1995 , p . 25 .
      exemption under Article 1 of that Regulation where
      that contract :
      1 . does not exemplify the 'objectively valid reasons'
           referred to in Article 5 ( 2 ) ( 1 ) ( a ) and ( b ) and
           Article 5 ( 3 ) of that Regulation ;
                                                                         Action brought on 8 July 1996 by the French Republic
      2 . rules out any possibility for the concessionaire to                against the Commission of the European Communities
           sell new vehicles supplied by persons other than the
           manufacturer, even at commercial premises                                                   Case C-232/96 )
           separate from those at which contract goods are                                              ( 96/C 269/22 )
           offered for sale , except where objectively valid
           reasons not existing at the time when the contract
           was concluded are proved, a stipulation which has             An action against the Commission of the European
           to be considered in relation to the interpretation of         Communities was brought before the Court of Justice of the
           Articles 3 ( 3 ) and 5 ( 2 ) of the Regulation ;              European Communities on 8 July 1996 by the French
                                                                         Republic, represented by Catherine de Salins and Frederic
                                                                         Pascal , acting as Agents , with an address for service in
      3 . lays down a sales objective according to which the             Luxembourg at the French Embassy, 9 boulevard Henri .
           concessionaire       undertakes     to   use    its  best
           endeavours to sell during each annual period a
           quantity of contract vehicles which, if not specified         The applicant claims that the Court should :
           by agreement between the parties, is fixed by the
           manufacturer on the basis of forecasts made by it or          — declare null and void Commission Decision 96/311 /EC
           criteria determined by it, and specifies that, in the               of 10 April 1996 on the clearance of the accounts
           event that 90 % of 7/ 1 lths of the sales objective has             presented by the Member States in respect of the
           not been achieved on 31 August in the current                       expenditure for 1992 of the Guarantee Section of the
           annual period and the ' aggregate percentage                        European Agricultural Guidance and Guarantee Fund
           penetration ' of contract vehicles in the territory to              and in respect of certain expenditure for 1993 ('), in so
           which the concession relates, assessed on 31 July of                far as the Commission has disallowed for France for
           the current annual period, is 15 to 45% —                            1992 :
           depending on where the territory is located —
           lower than the national average penetration of
           contract vehicles, the manufacturer may, on giving                  — FF76 041 440 of eligible expenditure corresponding
                                                                                to intervention measures in the beef and veal sector
           three or six months ' notice, alter the contract
           territory and/or withdraw from the concessionaire                        as regards the submission of tenders under the
           exclusive dealership in the territory, or terminate                      tendering procedure ,
           the concession contract, which stipulations should
           be considered in relation to the interpretation of                  — FF 86 061 448 of eligible expenditure corresponding
           Articles 4 ( 1 ) ( 3 ) and 5 ( 2 ) ( 2 ) and ( 3 ) of the                to intervention measures concerning the public
           Regulation ?                                                             storage of cereals,
 ---pagebreak--- No C 269/ 10           EN                  Official Journal of the European Communities                                         14 . 9 . 96
— in the alternative , consider those corrections to be                   some improvements in the public storage system run by
     disproportionate in amount,                                          ONIC ( National Cereals Trades Board ) and led the
                                                                          Commission unexpectedly to propose a financial
                                                                          correction, as from the financial year 1992 , whereas
— order the defendant to pay the costs .
                                                                          initially it had contemplated the possibility of financial
                                                                          corrections only for the financial year 1993 , before
Pleas in law and main arguments adduced in support:                       ruling out any correction with regard to the results of the
                                                                          mission monitoring intervention stocks in 1993 .
( As regards expenditure in the beef and veal sector )
                                                                      — ( In the alternative ) Disregard of the principle of
                                                                          proportionality : the 2 % financial correction was
— Breach of Council Regulation ( EEC ) No 729/70 of                       wrongly applied to budget item 10-13 which finances
     21 April 1970 on the financing of the common                         losses on stock sold . There cannot be losses for EAGGF
     agricultural policy ( 2 ): in accordance with the                    on stock sold as a result of storage ; losses are attributable
     arrangements under Regulation ( EEC ) No 859/89 ( 3 ) ,              solely to variations in market prices and are in no way
     applicable in 1992 , the Commission applied certain                  attributable to the inadequate supervision and
     conditions laid down as from the second tendering                    management of ONIC, as alleged by the EAGGF .
     procedure in September 1993 by Regulation ( EEC )
     No 2456/93 ( 4 ). Within the framework of Regulation
     ( EEC ) No 859/89 , the French authorities satisfied             (') OJ No L 117, 14 . 5 . 1996 , p . 19 .
     themselves that each undertaking was legally                     (2) Official Journal, English Special Edition 1970 ( 1 ), p. 218 .
     independent when considering their buying-in tenders .           (') OJ No L 91 , 4 . 4 . 1989 , p. 5 .
     The fact that a natural person performs management               (4) OJ No L 225 , 4 . 9 . 1993 , p . 4 .
     duties in a company and executes legal instruments on its
     behalf does not preclude him in law from managing
     other legal persons in the form of companies and
     carrying out on their behalf acts of management and
     decision-taking by virtue of the powers conferred on
     him, without the companies being connected thereby
     with each other .
— ( In the alternative ) Breach of the principle of
     subsidiarity : a correction affecting 2 % of EAGGF total         Action brought on 9 July 1996 by the Government of the
     expenditure in connection with public meat storage is            Kingdom of Denmark against the Commission of the
     disproportionate in relation to the absence of any risk of                            European Communities
     loss to the Community Fund arising from the tendering                                     ( Case C-233 /96 )
     procedure .
                                                                                ( 96/C 269/23 )
 ( As regards expenditure in the cereals sector )
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of Justice of the
 — Breach of Regulation ( EEC ) No 729/70 : the French
      authorities followed the Community procedure for                 European Communities on 9 July 1996 by the Government
      accepting cereal offered for intervention . Some remarks        of the Kingdom of Denmark, represented by Peter Biering,
                                                                      Kontorchef, with an address for service in Luxembourg at
      made by the Commission concerning the unsatisfactory
                                                                      the Danish Embassy , 4 boulevard Royal .
      nature of the management system relate to requirements
      which are not laid down in the rules in force ( for
      example, entering of stocks in real time in the computer
      system of the intervention agency's head office, putting        The applicant claims that the Court should :
      up signs systematically on storage premises ). Some
      observations made by the Commission following its
      1993 monitoring mission are connected with the                  — declare Commission Decision 96/311 /EC of 10 April
      situation at the end of 1992/93 marketing year which                 1996 on the clearance of the accounts presented by the
      was notable for an exceptionally large increase in the               Member States in respect of the expenditure for 1992 of
      quantities put into intervention . In some cases , goods             the Guarantee Section of the European Agricultural
      were put into store in non-specialized storage premises .            Guidance and Guarantee Fund and in respect of certain
      The French authorities dispute, however, the EAGGF's                 expenditure for 1 993 ( 1 ) void in so far as it provides that
      inference that it was impossible to check the                        the following expenditure incurred by Denmark cannot
      quantities .                                                         be financed by the EAGGF Guarantee Section :
 — Disregard of the principle of legal certainty : the                     — Dkr 26 867 909 for the intervention purchase of
      clearance procedure was initiated in the context of                      beef and veal during the 1991 and 1992 financial
      mutual cooperation reflected in the introduction of                      years ,


title: Case C-421/06: Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 16 October 2006 — Fratelli Martini & C. s.p.a, Cargill s.r.l. v Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/27

         Reference for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 16 October 2006 — Fratelli Martini & C. s.p.a, Cargill s.r.l. v Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive
   (Case C-421/06)
   (2006/C 326/56)
   Language of the case: Italian
   Referring court
   Consiglio di Stato
   Parties to the main proceedings

      Applicants: Fratelli Martini & C. s.p.a, Cargill s.r.l.

      Defendants: Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive,
   Questions referred

               1.

               Following the judgment of the Court of Justice of 6 December 2005 in Joined Cases 453/03, 11/04, 12/04 and 194/04, which declared Directive 2002/2 (1) partially invalid, are the European institutions which adopted that Directive, having regard to Article 233 of the EC Treaty (referring to acts which have been declared void) ‘required to take the necessary measures to comply with the judgment of the Court of Justice’?

               2.

               If the answer to question (1) is in the affirmative, must the measures which the European institutions are required to adopt in order to bring Directive 2002/2 into conformity with that judgment of the Court of Justice enter into force first in the Community legal order, to enable the Member States to implement them in their own legal systems?

               3.

               Must the measures referred to in question (2) be adopted by the Community institutions and implemented by the Member States in a manner which ensures compliance with the subsequently adopted Regulation No 183/2005? (2)

               4.

               Must Regulation No 183/2005, read together with Articles 8 and 16 of Regulation No 178/2002 (3), be interpreted as prohibiting producers of feedingstuffs from affixing to their products labels which could mislead consumers?

               5.

               Are labels affixed to feedingstuffs to be regarded as misleading for consumers where the percentages of the various ingredients, as indicated on those labels, may intentionally be set by the producers at levels which deviate by 15 % in each case from the actual percentage?

      (1)  OJ L 63, p. 23.

      (2)  OJ L 35, p. 1.

      (3)  OJ L 31, p. 1.


title: Case F-103/08: Action brought on 23 December 2008 — Katrakasas v Commission

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/77

         Action brought on 23 December 2008 — Katrakasas v Commission
   (Case F-103/08)
   (2009/C 44/139)
   Language of the case: French
   Parties

      Applicant: Nicolas Katrakasas (Brussels, Belgium) (represented by: L. Levi, and M. Vandenbussche, lawyers)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   Annulment of the decision of the selection board in competition EPSO/AD/116/08 refusing to enter the name of the applicant on the list of candidates admitted to the written tests of the competition, and all subsequent decisions, including the reserve list and all appointments.
   Form of order sought

               —

               annul the decision of the selection board in competition EPSO/AD/116/08 dated 23 September 2008 refusing to enter the name of the applicant on the list of candidates admitted to the written tests;

               —

               annul all decisions taken after the decision of 23 September 2008, including the reserve list and all appointments;

               —

               order the Commission of the European Communities to pay the costs.


title: Case C-190/17: Request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid (Spain) lodged on 12 April 2017 — Lu Zheng v Ministerio de Economía y Competitividad

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/8

         Request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid (Spain) lodged on 12 April 2017 — Lu Zheng v Ministerio de Economía y Competitividad
   (Case C-190/17)
   (2017/C 221/11)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Madrid

      Parties to the main proceedings

      Applicant: Lu Zheng

      Defendant: Ministerio de Economía y Competitividad

      Questions referred

               1.

               Must Article 9(1) of Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the European Union (1) be interpreted as precluding national legislation, such as that at issue in the main proceedings, which in order to penalise failure to comply with the obligation to declare under Article 3 of that regulation permits a fine to be imposed of up to double the value of the means of payment used?

               2.

               Must Article 9(1) of Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the European Union be interpreted as precluding national legislation, such as that at issue in the main proceedings, which lays down as aggravating circumstances in the case of failure to comply with the obligation to declare, lack of proof of the lawful origin of the means of payment and inconsistency between the activity carried on by the person concerned [and the amount of the movement]?

               3.

               In the event that the two preceding questions are answered in the affirmative, must Article 9(1) of Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the European Union be interpreted as meaning that the imposition of a financial penalty which, independently of the amount of the movement, can be up to 25 % of the undeclared cash satisfies the requirement of proportionality?

      (1)  OJ 2005 L 309, p. 9.


title: Action brought on 24 July 1997 by H & R Ecroyd Holdings Ltd. against the Commission of the European Communities (Case T-220/97)

text:
1 . 11 . 97               EN                     Official Journal of the European Communities                                 C 331/19
common market — the Court of First Instance (Fifth                          Action brought on 24 July 1997 by H & R Ecroyd
Chamber, Extended Composition), composed of: R.                             Holdings Ltd. against the Commission of the European
Garcia-Valdecasas, President, V. Tiili, J. Azizi, R. M.                                                Communities
Moura Ramos and M. Jaeger, Judges; A. Mair,                                                         ( Case T-220/97)
Administrator, for the Registrar, has given a judgment on
25 September 1997, in which it:                                                                       ( 97/C 331/41 )
1 . annuls the decision reproduced in Commission notice                                      (Language of the case: English)
       94/C 400/02 pursuant to Article 6 (4) of Decision
       No 3855/91 /ECSC          to   other Member States and
       interested parties concerning aid which Luxembourg                   An action against the Commission of the European
       plans to grant to ProfilARBED SA (Arbed) (State Aid                  Communities was brought before the Court of First
       C 25/94 (ex N 11 /94));                                              Instance of the European Communities on 24 July 1997
                                                                            by H & R Ecroyd Holdings Ltd., represented by William
2 . orders the Commission to pay the costs;                                 Neville, Peter Duffy and Philippa Watson, with an address
                                                                            for service in Luxembourg at the Chambers of Elvinger
                                                                            Hoss and Prussen, 2 Place Winston Churchill.
3 . orders the Grand Duchy of Luxembourg and Arbed
       SA to bear their own costs.
                                                                            The applicant claims that the Court should:
H OJ C 248 , 23 . 9 . 1995 .
( 2 ) OJ C 400, 31 . 12 . 1994, p . 10 .
                                                                            — annul the Commission's decision contained in its letter
                                                                                dated 16 May 1997 addressed to the applicant's
                                                                                solicitor, and
       ORDER OF THE COURT OF FIRST INSTANCE
                                                                            — order the Commission to pay the applicant's costs of
                                                                                the proceedings.
                            of 9 July 1997
in Case T-63/96: Augusto Fichtner v. Commission of the
                                                                            Pleas in law and main arguments adduced in support:
                     European Communities (')
 (Officials — Staff reports — Complaint — Implicit
     rejection — Manifest inadmissibility of the application)               The applicant refers to the preliminary ruling of the Court
                                                                            of Justice of 6 June 1996 in Case C-127/94 (The Queen v.
                             ( 97/C 331/40 )                                Ministry of Agriculture, Fisheries and Food, ex parte: H
                                                                            & R Ecroyd Holdings Ltd. and John Rupert Ecroyd
                  (Language of the case: Italian)                           [ 1996] ECR 1-2731 ), hereinafter 'the judgment', holding
                                                                            that producers such as the applicant had been unlawfully
In Case T-63/96 : Augusto Fichtner, an official of the                      excluded from the award of a special reference quantity
Commission of the European Communities, residing at                         under Article 3a ( 1 ) of Regulation (EEC ) No 857/84 of
Besozzo ( Italy ), represented by Vincenzo Salvatore, of the                31 March 1984 adopting general rules for the application
Pavia Bar, v. Commission of the European Communities                        of the levy referred to in Article 5c of Regulation ( EEC )
 (Agents: Gianluigi Valsesia and Alberto dal Ferro) —                       No 804/68 in the milk and milk products sector, as
application, first, for annulment of the Commission's                       amended by Regulation (EEC ) No 764/89 of 20 March
                                                                            1989 .
decision of 12 February 1996 expressly rejecting the
 applicant's complaint of 14 February 1995 concerning his
 staff report for the period from 1 July 1991 to 30 June                    The applicant challenges the Commission's decision of
 1993 and, second, for damages for the material and non                     16 May 1997 asserting that it has no obligation to ensure
 material loss allegedly suffered by the applicant — the                    that effect is given to the judgment. In consequence of this
 Court of First Instance (Fourth Chamber ), composed of:
                                                                            refusal, the applicant remains unlawfully deprived of
 K. Lenaerts, President; P. Lindh and J. D. Cooke, Judges;                  quota since 1989 and is suffering severe and continuous
 H. Jung, Registrar, made an order on 9 July 1997, the                      loss .
 operative part of which is as follows :
 I. The        application       is      dismissed    as    manifestly      The applicant pleads infringement of Articles 155 and 176
        inadmissible;                                                       of the EC Treaty and of fundamental rights. Articles 155
                                                                             and 176 impose legal obligations on the Commission to
                                                                            take the 'necessary steps to comply with' a ruling of the
 2 . The parties are ordered to bear their own costs.
                                                                             Court, and according to the Court's case-law, the
                                                                             Commission is obliged 'to review the individual situation'
 w OJ C 233 , 10. 8 . 1996 .                                                 of a person who has been the victim of unlawful
                                                                             treatment. The Commission's position displays a serious
                                                                             misunderstanding of its clear obligations .
 ---pagebreak--- C 331 /20            EN                   Official Journal of the European Communities                                     1 . 11 . 97
As regards the fundamental rights violated in this case,             He explains that a previous decision of the Administrative
reference is made to Article F of the Treaty on European             Committee of the Court of Justice of 14 June 1995 not to
Union as well as to the case-law of the European Court of            initiate the procedure leading to his establishment as a
Human Rights establishing that milk quota is a property              permanent official is the subject matter of proceedings
right entitled to due process protection in accordance with          pending before the Court of First Instance ( ! ). In the
Article 6 of the European Convention on Human Rights.                course of those proceedings, the defendant institution
In addition, this Court has expressly ruled that it is               contested the admissibility of the action on the ground
incompatible with respect for fundamental rights for a               that the contested decision was not an individuial decision
political institution to refuse to execute a judgment or             which adversely affected the applicant. Accordingly the
arbitral award given against it. Therefore, the                      applicant caused two further steps to be taken in order to
Commission's refusal to ensure that effect is properly               ensure that the substance of his case would be ruled upon:
given to the ruling of the Court of Justice in the                   ( 1 ) on 9 September 1996 he made a request of the
applicant's favour is as much a breach of fundamental                President of the Court (the appointing authority in the
rights as actions of Governments in comparable cases                 matter) under Article 90 ( 1 ) of the Staff Regulations to be
which the European Court of Human rights, vindicating                appointed as an established official; (2 ) by memorandum
fundamental rights and the rule of law, had robustly                 of 1 October 1996 the member to whom the applicant is
condemned .                                                          attached made a request of the President under the
                                                                     decision of the Administrative Meeting of the Court of
                                                                     Justice of 30 June 1976 which states, inter alia, that the
                                                                     appointment procedure may be initiated after three years'
                                                                     service on a proposal from the Member concerned .
Action brought on 29 July 1997 by John Mellet against
                                                                     By memorandum of 17 October 1996 the President
     the Court of Justice of the European Communities
                                                                     decided to refuse the request of 1 October 1996 and not
                       ( Case T-221/97)                              to organize an internal competition to appoint a driver as
                         ( 97/C 331 /42 )
                                                                     a permanent official. The applicant maintains that this
                                                                     decision :
               (Language of the case: English)
                                                                     — was adopted in breach of the essential procedural
                                                                           requirements contained in Article 25 of the Staff
An action against the Court of Justice of the European                     Regulations,
Communities was brought before the Court of First
Instance of the European Communities on 29 July 1997
by John Mellett, represented by Anthony M. Collins and
Brendan O'Donovan, with an address for service in                    — infringes general rules of law relating to the
Luxembourg at the applicant's home, 127 route de                           application of the Treaty establishing the European
Diekirch, Walferdange .                                                    Community, namely the- principles of equal treatment
                                                                           and of the protection of legitimate expectations, and
                                                                           the prohibition on the retroactive withdrawal of a
The applicant claims that the Court should:                                legal measure that confers individual rights, and
— annul the decision of the President of the Court of
    Justice of the European Communities of 17 October                — was adopted without taking proper account of his
    1996 refusing to open a competition to appoint a                       rights and legitimate interests.
    driver as a permanent official, and/or
— annul the decision of the President of the Court of
                                                                     By memorandum of 4 December 1996 the President
                                                                     refused the applicant's request to be appointed as an
    Justice of the European Communities of 4 December                established official on the ground that the 1976 decision
    1996 refusing to appoint him as a permanent official,
    and
                                                                     had not been applicable since 1994. The applicant states:
— award him the costs of these proceedings.                          — that the failure to apply the 1976 decision to him was
                                                                           made in error, and
Pleas in law and main arguments adduced in support:
                                                                     — that the decision infringes general rules of law relating
The applicant, the personal driver of one of the Members                   to the application of the Treaty establishing the
of the Court of Justice, challenges the refusal to open a                  European Community, namely the principles of equal
competition to appoint a driver as a permanent official                    treatment and of the protection of legitimate
and the refusal to appoint him as a permanent official.                    expectations, and the prohibition on the retroactive


title: Case C-439/04: Reference for a preliminary ruling by the Belgian Cour de Cassation (1st Chamber) by decision of that court of 7 October 2004 in the case of Axel Kittel against Belgian State

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/25

         Reference for a preliminary ruling by the Belgian Cour de Cassation (1st Chamber) by decision of that court of 7 October 2004 in the case of Axel Kittel against Belgian State
   (Case C-439/04)
   (2005/C 6/47)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by order of the Belgian Cour de Cassation (Court of Cassation) (1st Chamber) of 7 October 2004, received at the Court Registry on 19 October 2004, for a preliminary ruling in the case of Axel Kittel against the Belgian State on the following questions:

               1.

               Where the recipient of a supply of goods is a taxable person who has entered into a contract in good faith without knowledge of a fraud committed by the seller, does the principle of fiscal neutrality in respect of value added tax mean that the fact that the contract of sale is void, by reason of a rule of domestic civil law which renders the contract incurably void as contrary to public policy on the ground of illegal basis of the contract attributable to the seller, cannot cause that taxable person to lose his right to deduct that tax?

               2.

               Is the answer different where the contract is incurably void for fraudulent evasion of VAT itself?

               3.

               Is the answer different where the unlawful basis of the contract of sale which renders it incurably void under domestic law is a fraudulent evasion of value added tax known to both parties to the contract?


title: Case T-186/01: Action brought on 8 August 2001 by Nicole Robert against European Parliament

text:
C 317/30               EN                     Official Journal of the European Communities                                    10.11.2001
Action brought on 8 August 2001 by Nicole Robert                         European Communities on 5 August 2001 by Vassilios
                 against European Parliament                             Tsarnavas, resident in Brussels, represented by Nicolas Lhoëst,
                                                                         lawyer, with an address for service in Luxembourg.
                         (Case T-186/01)
                         (2001/C 317/58)                                 The applicant claims that the Court should:
                   (Language of the case: French)                        —     annul the decision adopted by the Commission on
                                                                               21 September 2000 in that it decides that the applicant’s
An action against the European Parliament was brought before                   name should not be included on the list of grade A5
the Court of First Instance of the European Communities on                     officials considered the most deserving of promotion
8 August 2001 by Nicole Robert, of Strassen, Luxembourg,                       under the 1998 promotions procedure and, as a result,
represented by Alain Lorang, lawyer, with an address for                       that the applicant should not be promoted to grade A4
service in Luxembourg.                                                         under the 1998 promotions procedure;
                                                                         —     in so far as necessary, annul the Commission’s implied
The applicant claims that the Court should:                                    decision rejecting the complaint submitted by the appli-
—     annul the decisions taken by the Director-General of                     cant on 27 December 2000 under Article 90(2) of the
                                                                               Staff Regulations;
      Personnel on 26 November 1999 promoting certain
      other officials from grade B2 to grade B1, in that they
      were reached without opening or publishing vacant posts            —     consequently annul the 1998 A4 promotions procedure
      for principal assistants and with an incorrect comparison                with regard to the applicant;
      of the merits;
                                                                         —     order the defendant to pay all the costs of the action.
—     annul the decision of 23 May 2001 by which the President
      of the European Parliament rejected her complaint of
      29 February 2000;
                                                                         Pleas in law and main arguments
—     order the defendant to pay the costs.
                                                                         In support of his action, the applicant alleges a lack of
Pleas in law and main arguments                                          reasoning in the contested decision, breach of Articles 26, 43
                                                                         and 45 of the Staff Regulations and of the principles of equal
                                                                         treatment and sound administration and a manifest error of
The applicant, an official in grade B 2 at the Parliament,               assessment.
contests the Parliament’s decision not to include her amongst
the officials actually promoted by decision of the Director-
General of Personnel of 26 November 1999.
She alleges that the promotion system in force at the Parlia-
ment and the method used in order to apply it are unlawful.
She submits that the Parliament adopted a decision contrary
                                                                         Action brought on 5 August 2001 by Vassilios Tsarnavas
to Articles 4, 5, 7, second paragraph, 9 and 45 and Annex 1
                                                                           against the Commission of the European Communities
to the Staff Regulations. Moreover, because of the procedure
adopted by the Parliament, seniority prevails over merit,
contrary to Article 45 of the Staff Regulations, which can lead                                   (Case T-190/01)
to discrimination against officials who have obtained very high
marks in their staff reports in comparison with those who                                        (2001/C 317/60)
have obtained lower marks in their reports.
                                                                                (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Action brought on 5 August 2001 by Vassilios Tsarnavas                   European Communities on 5 August 2001 by Vassilios
  against the Commission of the European Communities                     Tsarnavas, resident in Brussels, represented by Nicolas Lhoëst,
                                                                         lawyer, with an address for service in Luxembourg.
                         (Case T-188/01)
                         (2001/C 317/59)                                 The applicant claims that the Court should:
                   (Language of the case: French)                        —     annul the Commission decision of 29 September 2000
                                                                               not to uphold the appeal lodged by the applicant
An action against the Commission of the European Communi-                      contesting the list of names put forward for promotion
ties was brought before the Court of First Instance of the                     to grade A4 under the 2000 promotions procedure in


title: Case C-438/10: Order of the Court (Fifth Chamber) of 13 July 2011 (reference for a preliminary ruling from the Curtea de Apel Bacău (Romania)) — Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău v Lilia Druțu (Article 104(3), first indent of the Rules of Procedure — Internal impositions — Article 110 TFEU — Introduction of a pollution tax on first registration of motor vehicles)

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/13

         Order of the Court (Fifth Chamber) of 13 July 2011 (reference for a preliminary ruling from the Curtea de Apel Bacău (Romania)) — Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău v Lilia Druțu
   (Case C-438/10) (1)

   (Article 104(3), first indent of the Rules of Procedure - Internal impositions - Article 110 TFEU - Introduction of a pollution tax on first registration of motor vehicles)
   2011/C 311/19
   Language of the case: Romanian

      Referring court

   Curtea de Apel Bacău

      Parties to the main proceedings

      Applicants: Direcția Generală a Finanțelor Publice Bacău, Administrația Finanțelor Publice Bacău

      Defendant: Lilia Druțu

      Re:

   Reference for a preliminary ruling — Curtea de Appel Bacău Comercială, Contencios Administrativ și Fiscal — Registration of second-hand vehicles previously registered in other Member States — Environmental tax on motor vehicles on first registration in a Member State — Compatibility of national legislation with Article 110 TFEU — Discrimination compared with second-hand vehicles already registered in that Member State and not subject to that tax on subsequent sale and new registration

      Operative part of the order

   Article 110 TFEU must be interpreted as meaning that it precludes a Member State from introducing a pollution tax on motor vehicles on first registration in that Member State if that fiscal measure is set up in such a way as to discourage the placing on the market in that Member State of second-hand vehicles purchased in other Member States without discouraging the purchase of second-hand vehicles of a similar age and condition on the national market.

      (1)  OJ C 328, 4.12.2010.


title: Case C-508/08: Judgment of the Court (Second Chamber) of 28 October 2010 — European Commission v Republic of Malta (Failure of a Member State to fulfil obligations — Freedom to provide maritime transport services — Regulation (EEC) No 3577/92 — Articles 1 and 4 — Cabotage services within a Member State — Obligation to conclude public service contracts on a non-discriminatory basis — Conclusion of an exclusive contract, without a prior call for tenders, before the date of accession of a Member State to the European Union)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/7

         Judgment of the Court (Second Chamber) of 28 October 2010 — European Commission v Republic of Malta
   (Case C-508/08) (1)

   (Failure of a Member State to fulfil obligations - Freedom to provide maritime transport services - Regulation (EEC) No 3577/92 - Articles 1 and 4 - Cabotage services within a Member State - Obligation to conclude public service contracts on a non-discriminatory basis - Conclusion of an exclusive contract, without a prior call for tenders, before the date of accession of a Member State to the European Union)
   2010/C 346/11
   Language of the case: Maltese

      Parties

      Applicant: European Commission (represented by: J. Aquilina and K. Simonsson, Agents)

      Defendant: Republic of Malta (represented by: S. Camilleri, L. Spiteri and A. Fenech, Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7) — Conclusion of an exclusive contract, without a prior call for tenders, for the provision of maritime transport between Malta and Gozo

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 32, 7.2.2009.


16 . 3 . 96             EN                   Official Journal of the European Communities                                       No C 77/9
      under the legislation of one Member State may not rely            Is Council Regulation ( EEC ) No 1531/88 (') of 31 May
      on the provisions of Article 10 ( 1 ) of Regulation ( EEC )       1988 valid ?
      No 1408/71 in order to challenge a withdrawal of
      entitlement on the sole ground that the person resides in         (') Imposing a definitive anti-dumping duty on imports of
      the territory of another Member State ?                                 potassium permanganate originating in the People's Republic of
                                                                              China ( OJ No L 138 , 1988 , p. 1 ).
2. If the answer to question 1 is yes, is Regulation ( EEC )
      No 1247/92 made within the powers granted by the
      Treaty of Rome, and in particular by Articles 5 1 and 235
      of that Treaty ?
(') OJ No L 149, 1971 , p . 2 .                                         Reference for a preliminary ruling by judgment of the
( 2 ) OJ No L 136 , 19 . 5 . 1992 , p . 1 .                             Supremo Tribunal Administrativo ( Second Chamber —
                                                                        Tax matters ) of 4 October 1995 in the proceedings
                                                                        pending before that court between Fazenda Publica and
                                                                                Fricarnes SA
                                                                                ( Case C-2 8/96 )
                                                                                ( 96/C 77/20 )
Reference for a preliminary ruling by the Pretura
Circondariale di Roma — Sezione Distaccata di Tivoli by
                                                                        Reference has been made to the Court of Justice of the
orders of that court of 10 January 1996 in criminal
                                                                        European Communities by judgment of the Second
proceedings against Vittorio Ianilli and Francesco
                               Cannizzaro
                                                                        Chamber for tax matters of the Supremo Tribunal
                                                                        Administrativo ( Supreme Administrative Court ) of
                 ( Cases C-24/96 and C-25/96 )                          4 October 1995 , which was received at the Court Registry
                             ( 96/C 77/ 18 )                            on 1 February 1996 , for a preliminary ruling in the
                                                                        proceedings pending before that court between Fazenda
                                                                        Publica ( tax authorities ) and Fricarnes SA on the following
Reference has been made to the Court of Justice of the
                                                                        questions :
European Communities by orders of the Pretura
Circondariale di Roma — Sezione Distaccata di Tivoli
( Rome District Magistrate's Court, Tivoli Division ) of                1 . Are the 'charges' described, which have                      the
10 January 1996 , which were received at the Court Registry                   characteristics described above, contrary                   to
on 29 January 1996 , for a preliminary ruling in ciriminal                    Article 95 ( 1 ) and ( 2 ) of the Treaty of Rome ?
proceedings against Vittorio Ianilli and Francesco
Cannizzaro . The questions referred by the Pretura                      2 . Are they to be regarded as charges having an effect
Circondariale di Roma — Sezione Distaccata di Tivoli to the
                                                                              equivalent to a customs duty on imports, prohibited by
Court of Justice for a preliminary ruling are identical with                   Articles 9 and 12 of that Treaty ?
those in Case C-58/95 ( 1 ).
                                                                        3 . Are they to be regarded as turnover taxes within the
(') OJ No C 119 , 13 . 5 . 1995 , p . 6 .
                                                                               meaning of Article 33 of the Sixth Directive (^ without
                                                                               prejudice to Article 378 of the Act of Accession ( 2 ) or any
                                                                               other Community legislation ?
                                                                        (>) OJ No L 145 , 13 . 6 . 1977, p . 1 .
                                                                        ( 2 ) OJ No L 302 , 15 . 11 . 1985 , p . 135 .
Reference for a preliminary ruling by the Finanzgericht
Hamburg by order of that court of 10 January 1996 in the
case of Rotexchemie International Handels GmbH & Co . v.
              Hauptzollamt Hamburg-Waltershof
                           ( Case C-26/96 )
                             ( 96/C 77/19 )                                     Removal from the register of Case C-263/94 ( 1 )
                                                                                ( 96/C 77/21 )
Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht                      By order of 13 November 1995 the President of the Court of
Hamburg — Fourth Chamber of the Joint Chamber of the                    Justice of the European Communities ordered the removal
Finanzgericht Hamburg for the Länder of the Free and                    from the register of Case C-263/94 : Commission of the
Hanseatic City of Hamburg, Lower Saxony and                             European Communities v. Kingdom of the Netherlands .
Schleswig-Holstein — of 10 January 1996 , which was
received at the Court Registry on 30 January 1996 , for a
                                                                        H OJ No C 304 , 29 . 10 . 1994 .
preliminary ruling in the case of Rotexchemie International
Handels GmbH & Co . v. Hauptzollamt Ham
burg-Waltershof on the following question :


title: Case T-150/02: Action brought on 8 May 2002 by SiSi-Werke GmbH & Co. Betriebs KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
27.7.2002             EN                      Official Journal of the European Communities                                        C 180/27
Pleas in law and main arguments                                          The applicant claims that the Court should:
The Community trade           A three-dimensional mark in the
mark concerned:               form of a flat-bottomed pouch —            —     annul the decision of the Second Board of Appeal of the
                              Application No 573 048                           Office for Harmonisation in the Internal Market (Trade
                                                                               Marks and Designs) of 28 February 2002 in case R 723/
Goods or services:            After restriction of the goods and               1999-2, relating to Community trade mark application
                              services categories: Goods in class              number 573 626, in so far as it relates to goods in
                              32 (Fruit drinks and Fruit juices)               Class 32 of the Nice Agreement corresponding to the
                                                                               following description: fruit drinks and fruit juices;
Decision        contested     Examiner’s refusal to register
before the Board of
Appeal:                                                                  —     order the defendant to pay the costs.
Decision of the Board of      Rejection of the applicant’s com-
Appeal:                       plaint
Grounds of claim:             —     Infringement                 of
                                    Article 7(1)(c) of Regulation
                                                                         Pleas in law and main arguments
                                    (EC) No 40/94 (1);
                              —     No need to exclude the trade
                                    mark from registration as a
                                    mark;                                Trade mark applied for:       Three-dimensional mark in the
                                                                                shape of an upright bottle —
                              —     Infringement                 of                                    application No 573 626
                                    Article 7(1)(b) of Regulation
                                    (EC) No 40/94;
                                                                         Goods or services:            After limiting the list of goods
                              —     German registered marks for                                        and services: goods in Class 32
                                    flat-bottomed pouches.                                             (fruit drinks and fruit juices)
(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-           Decision        contested     Refusal to register by the Exam-
    munity trade mark (OJ 1993 L 11, p. 1).                              before the Board of           iner
                                                                         Appeal:
                                                                         Decision of the Board of      Dismissal of the applicant’s appeal
                                                                         Appeal:
Action brought on 8 May 2002 by SiSi-Werke GmbH &                        Pleas in law relied on:       —     Infringement                of
Co. Betriebs KG against the Office for Harmonisation in                                                      Article 7(1)(c) of Regulation
       the Internal Market (Trade Marks and Designs)                                                         No 40/94 (1)
                                                                                —     No need to refuse the mark
                        (Case T-150/02)                                                                      claimed registration
                                                                                —     Infringement                of
                        (2002/C 180/47)                                                                      Article 7(1)(b) of Regulation
                                                                                No 40/94
                  (Language of the case: German)                                                       —     German registrations       for
                                                                                upright bottles
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
                                                                         (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Court of First Instance of the European Communities on 8 May                 Community trade mark (OJ 1994 L 11, p. 1).
2002 by SiSi-Werke GmbH & Co. Betriebs KG, of Eppelheim,
Germany, represented by H. Eichmann, G. Barth, U. Blumen-
röder, C. Niklas-Falter, M. Kinkeldey, K.Brandt, A. Franke,
U. Stephani, B. Allekotte, E. Pfrang, K. Lochner and B. Ertle,
lawyers.


title: Order of the Court of First Instance of 22 March 1999 in Case T-105/98 Rainer Dumont du Voitel v Council of the European Union (Council Decision 98/319/EC of 27 April 1998 on the procedures whereby officials and employees of the General Secretariat of the Council may be allowed access to classified information held by the Council - Action for annulment - Inadmissibility)

text:
C 188/26                EN                      Official Journal of the European Communities                                          3.7.1999
                                                          COURT OF FIRST INSTANCE
        ORDER OF THE COURT OF FIRST INSTANCE                               whose registered office is at Cabestany (France), represented
                                                                           by Nicolas Boespflug, of the Paris Bar, 22 Rue Lalo, Paris, v
                         of 17 March 1999                                  Commission of the European Communities (Agents: José Luis
                                                                           Iglesias Buhigues and Jean-Francis Pasquier), supported by the
in Joined Cases T-163/94 and T-165/94 (92), NTN Corpor-                    Kingdom of Spain, represented by Paloma Plaza Garcı́a,
ation and Koyo Seiko Co. Ltd. v Council of the European                    Abogado del Estado, of its Community Affairs Legal Depart-
                              Union (1)                                    ment, acting as Agent, with an address for service in Luxem-
                                                                           bourg at the Spanish Embassy, 4-6 Boulevard Emmanuel
               (Taxation of costs — Inadmissible)                          Servais — application for annulment of Commission Regu-
                                                                           lation (EC) No 1107/96 of 12 June 1996 on the registration
                                                                           of geographical indications and designations of origin under
                          (1999/C 188/60)                                  the procedure laid down in Article 17 of Council Regulation
                                                                           (EEC) No 2081/92 (OJ 1996 L 148, p. 1) in so far as it
                    (Language of the case: English)                        registered the names Turrón de Jijona and Turrón de Alicante
                                                                           as protected geographical indications — the Court of First
In Joined Cases T-163/94 and T-165/94 (92), NTN Corpor-                    Instance (First Chamber), composed of B. Vesterdorf (President
ation, established at Osaka, represented by Jürgen Schwarze                of the Chamber), and J. Pirrung and M. Vilaras, Judges; H. Jung,
and Malte Sprenger, Rechtsanwalt, Düsseldorf, with an address              Registrar, has given an order on 26 March 1999 in which it:
for service in Luxembourg at the Chambers of Claude Penning,
78 Grand-Rue, and Koyo Seiko Co. Ltd, established at Osaka,                1. Dismisses the application as inadmissible;
represented by Jacques Buhart, of the Paris Bar, and Charles
Kaplan, Barrister, with an address for service in Luxembourg               2. Orders the applicants to bear their own costs and those of the
at the Chambers of Arendt and Medernach, 8-10 Rue Mathias                       Commission, and orders the intervener to bear its own costs.
Hardt, against Council of the European Union (Agent: Stephan
Marquardt), application for taxation of costs made by NTN
Corporation following the judgment of the Court of First                   (1) OJ No C 269 (14.9.1996).
Instance of 2 May 1995 in Joined Cases T-163/94 and
T-165/94 NTN Corporation and Koyo Seiko v Council [1995]
ECR II-1381, the Court (Fifth Chamber, Extended Compo-
sition), composed of J.D. Cooke, President, R. Garcı́a-
Valdecasas, P. Lindh, J. Pirrung and M. Vilaras, Judges; Registrar:
H. Jung, made an order on 17 March 1999, the operative part
of which is as follows:
1) The application by NTH Corporation is dismissed as inadmis-                   ORDER OF THE COURT OF FIRST INSTANCE
      sible.
                                                                                of 22 March 1999
( 1) OJ No C 29 of 2 February 1993.
                                                                           in Case T-105/98 Rainer Dumont du Voitel v Council of
                                                                                the European Union (1)
                                                                           (Council Decision 98/319/EC of 27 April 1998 on the
                                                                           procedures whereby officials and employees of the General
        ORDER OF THE COURT OF FIRST INSTANCE                               Secretariat of the Council may be allowed access to classified
                                                                           information held by the Council — Action for annulment —
                         of 26 March 1999                                                          Inadmissibility)
in Case T-114/96 Biscuiterie-confiserie LOR SA and                                                (1999/C 188/62)
Another v Commission of the European Communities
                           and Another (1)
                                                                                (Language of the case: French)
(Actions for annulment — Regulation (EC) No 1107/96 —
Registration of geographical indications — ‘Turrón de Jijona’
    and ‘Turrón de Alicante’ — Locus standi – Inadmissible)               Application, in Case T-105/98, Rainer Dumont du Voitel, an
                                                                           official at the Council of the European Union resident at
                          (1999/C 188/61)                                  Vossem-Tervuren, Belgium, represented by Pierre-Paul Van
                                                                           Gehuchten and Jacques Sambon, of the Brussels Bar, with an
                                                                           address for service in Luxembourg at the Chambers of Louis
                     (Language of the case: French)                        Schiltz, 2 Rue du Fort Rheinsheim against the Council of the
                                                                           European Union (Agents: Jean-Paul Jacqué and Diego Canga
In Case T-114/96 Biscuiterie-confiserie LOR SA, whose regis-               Fano), for annulment of Council Decision 98/319/EC of
tered office is at Perpignan (France) and Confiserie du Tech SA,           27 April 1998 relating to the procedures whereby officials and
 ---pagebreak--- 3.7.1999              EN                      Official Journal of the European Communities                                        C 188/27
employees of the General Secretariat may be allowed access to            emergency aid on the basis of Articles 147(b) and 164 of
classified information held by the Council (OJ 1998 L 140                Council Decision 91/482/EEC of 25 July 1991 on the associ-
p. 12). The Court (Third Chamber) composed of M. Jaeger,                 ation of the overseas countries and territories with the
President, K. Lenaerts and J. Azizi, Judges, and H. Jung,                European Economic Community. (1)
Registrar, made an order on 22 March 1999, the operative
part of which provides:
                                                                         By letter of 17 February 1999, that request was refused on the
                                                                         ground that, according to the regulations and decisions of the
1. The action is dismissed as inadmissible.                              Council, such aid could not be granted directly to private
                                                                         individuals or private undertakings.
2. The applicant is to be bear the costs.
                                                                         The applicant submits that that decision is incompatible with
(1) OJ 1998 No C 299.                                                    the abovementioned Decision 91/482/EEC and with the
                                                                         Declaration of the European Parliament, the Council and the
                                                                         Commission of 11 June 1986 against racism and xeno-
                                                                         phobia (2) and does not take into account Article 92(2)(a) of
                                                                         the EC Treaty.
                                                                         (1) OJ L 263,19.9.91, p. 1.
                                                                         (2) OJ C 158, 25.6.86, p. 1.
Action brought on 10 March 1999 by Karl L. Meyer
  against the Commission of the European Communities
                          (Case T-71/99)
                         (1999/C 188/63)
                                                                         Action brought on 10 March 1999 by Karl L. Meyer
                                                                           against the Commission of the European Communities
                   (Language of the case: French)
                                                                                (Case T-72/99)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 March 1999 by Karl L. Meyer,                                           (1999/C 188/64)
of Uturoa, Raiatea, French Polynesia, represented by Jean-
Dominique des Arcis, of the Papeete Bar, with an address
for service in Luxembourg at the offices of Mr Pakowski,                                    (Language of the case: French)
20-22 Avenue Emile Reuter.
                                                                         An action against the Commission of the European Communi-
The applicant claims that the Court should:                              ties was brought before the Court of First Instance of the
                                                                         European Communities on 10 March 1999 by Karl L. Meyer,
— hold that the content of the letter of Directorate-General             of Uturoa, Raiatea, French Polynesia, represented by Jean-
    VIII of 17 February 1999 is incompatible with both the               Dominique des Arcis, of the Papeete Bar, with an address for
    applicable legislation of and fundamental rights in the              service in Luxembourg at the offices of Mr Pakowski, 20-22
    European Union, and order that institution to comply                 Avenue Emile Reuter.
    properly, and without the exercise of discretion, with the
    content and spirit of Council Decision 91/482/EEC of
    25 July 1991 and Article 92(2)(a) of the Treaty of Rome;             The applicant claims that the Court should:
— hold that the European Commission is liable to the                     — hold that the EDF Agency of the Commission is, by its
    applicant for failure to comply with the above-mentioned                 inaction, guilty of a culpable failure to fulfil an obligation,
    European provisions;                                                     compounded by a failure to satisfy a legitimate expectation;
— in addition, order the Commission to pay the applicant the             — hold that the EDF Agency of the Commission failed to
    sum of FRF 20 000 in respect of irrecoverable costs which                fulfil its obligation to ensure the application of the
    he had to incur to protect his interests.                                provisions adopted by it;
                                                                         — find that the applicant has suffered damage in the sum of
                                                                             FRF 181 518, and order that the said sum, due as of 1992,
Pleas in law and main arguments                                              be paid together with interest on account of delay;
The applicant, who is the owner of a plantation in French                — in addition, order the Commission to pay the applicant the
Polynesia, states that, following a series of natural disasters, he          sum of FRF 20 000 in respect of irrecoverable costs which
applied to the Commission’s Directorate-General VIII for                     he had to incur to protect his interests.


title: Case C-206/10: Action brought on 30 April 2010 — European Commission v Federal Republic of Germany

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/22

         Action brought on 30 April 2010 — European Commission v Federal Republic of Germany
   (Case C-206/10)
   2010/C 179/37
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: V. Kreuschitz, acting as Agent)

      Defendant: Federal Republic of Germany

      Form of order sought

               —

               Declare that, by making the grant of benefits for the blind and the disabled, including the deaf (Blindengeld or Landesblindengeld, Blindenbeihilfe or Landesblindenbeihilfe (State and Länder benefits and allowances for blind persons), Pflegegeld (care allowance) or assistance for deaf/blind persons, Blinden- und Gehörlosengeld (deaf/blind person’s allowance) etc), under Länder legislation conditional, in respect of persons for whom the Federal Republic of Germany is the competent Member State, upon the recipient being resident or habitually resident in the German Land concerned, the Federal Republic of Germany has, on the basis of national legislation, failed to fulfil its obligations under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (1) and Article 4(1)(a), in conjunction with Title III, Chapter 1 (sickness and maternity), of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community; (2)

               —

               order the Federal Republic of Germany to pay the costs.

      Pleas in law and main arguments

   The present action concerns the incompatibility with Regulation (EEC) No 1408/71 and Regulation (EEC) No 1612/68 of German Länder legislation under which the grant of benefits to blind and disabled persons is conditional upon the recipients being resident or habitually resident in the German Land concerned.
   Regulation No 1408/71 is designed to coordinate national social security legislations within the framework of freedom of movement in accordance with the objectives of Article 42 of the EC Treaty (now Article 48 TFEU). Under Article 4(2b), Regulation No 1408/71 is not to apply to the provisions in the legislation of a Member State concerning special non-contributory benefits, referred to in Annex II, Section III, the validity of which is confined to part of its territory. The German benefits at issue are listed as special benefits in Annex II, Section III to Regulation No 1408/71.
   The Commission nevertheless takes the view that the mere entry of a benefit in the list in Annex II to Regulation No 1408/71 is not sufficient for a benefit to be excluded as a ‘special non-contributory benefit’ from the scope of that regulation. As an exemption, Article 4(2b) of Regulation No 1408/71 must be narrowly interpreted; it can only apply to benefits which satisfy the criteria set out in that provision cumulatively. Accordingly, the provision covers only benefits which are both special and non-contributory benefits, which are referred to in Annex II, Section III to Regulation No 1408/71 and which are introduced by legislation the validity of which is confined to part of the territory of a Member State.
   The benefits at issue which are governed by Länder legislation do not, however, satisfy all those criteria, inasmuch as they should be categorised as ‘sickness benefits’ instead of as ‘special non-contributory benefits’ for the following reasons.
   First, the Länder benefits at issue are granted on the basis of circumstances laid down by law, without any assessment of personal need. They serve to compensate for the additional expenditure incurred as a result of a disability and are intended to improve the state of health and the living conditions of the disabled. Consequently, they are intended, essentially, to be ancillary to sickness insurance benefits. The fact that care allowances granted under German Federal legislation count towards the benefits paid by the Länder for the blind and the disabled proves, moreover, that both benefits cover the same risk — the risk of sickness-related additional expenditure — and that it is not a question of ‘supplementary, substitute or ancillary cover against the risks’.
   Second, the classification of a certain benefit in accordance with the domestic constitution of a Member State does not determine whether that benefit is to be regarded as a social security benefit for the purposes of Regulation No 1408/71.
   Moreover, from a substantive point of view, the Länder legislation at issue here does not represent an ancillary advantage that is valid only on a regional basis. Instead, this benefit forms part of the system of cover against the risk of additional sickness-related expenditure that has been established throughout Germany and which, by virtue of reciprocal crediting, is closely connected with Federal law.
   It follows from this that the Länder benefits concerned should be categorised as sickness benefits, not as special benefits. The inclusion of those benefits in Annex II, Section III to Regulation (EEC) No 1408/71 is, therefore, unlawful; they fall within the scope of that regulation.
   Further, the residence requirement imposed under German law infringes Regulation No 1612/68 in so far as it prevents frontier workers and members of their families from receiving those benefits.
   The Court of Justice has clearly confirmed that a Member State cannot make the grant of a social advantage contingent upon the recipient’s residence in that State. The Court’s conclusion applies to all social advantages within the meaning of Article 7(2) of Regulation No 1612/68.
   ‘Social advantage’ is a very broad concept. It covers not only the advantages associated with an employment contract, but all advantages which a Member State grants to its citizens and thus also to workers. In the Commission’s opinion, the fact that the grant of the benefits concerned is determined neither by the employment nor the financial resources of the person concerned or of his family, and is thus made purely on the basis of residence in the Land in question, cannot justify the failure to take into account the consequences for workers who work in Germany but who live in a different Member State. There is, therefore, no adequate reason why those benefits should not be regarded as social advantages within the meaning of Regulation No 1612/68.
   Frontier workers who work in Germany and members of their families should, therefore, even if they do not live in Germany, be entitled to benefits granted to the disabled and the blind under Länder legislation. The condition requiring them to be resident or habitually resident in the Land concerned therefore infringes Regulation No 1612/68.

      (1)  OJ, English Special Edition 1968(II), p. 475.

      (2)  OJ, English Special Edition 1971(II), p. 416.