title: Case C-621/11 P: Appeal brought on 2 December 2011 by New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH against the judgment of the General Court (Sixth Chamber) delivered on 29 September 2011 in Case T-415/09: New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallis K. — Vallis A. & Co. O.E.

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/44

      Appeal brought on 2 December 2011 by New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH against the judgment of the General Court (Sixth Chamber) delivered on 29 September 2011 in Case T-415/09: New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallis K. — Vallis A. & Co. O.E.
      (Case C-621/11 P)
      (2012/C 25/82)
      Language of the case: English

         Parties

         Appellant: New Yorker SHK Jeans GmbH & Co. KG, formerly New Yorker SHK Jeans GmbH (represented by: V. Spitz, A. Gaul, T. Golda, S. Kirschstein-Freund, Rechtsanwälte)

         Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Vallis K. — Vallis A. & Co. O.E.

         Form of order sought

      The appellant claims that the Court should:

                  1.

                  set aside the judgment of the General Court of the European Union of September 29, 2011 in Case T-415/09 and

                              (a)

                              annul the decision of the First Board of Appeal of the Office For Harmonization in the Internal Market (Trade Marks and Designs) of July 30, 2009 in so far as the appeal is dismissed and the rejection of the application for goods in class 25 is confirmed,
                              alternatively,

                              (b)

                              refer the case back to the General Court for final judgment.

                  2.

                  order the Office for Harmonization in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings of first instance and on appeal.

         Pleas in law and main arguments

                  —

                  The consideration of additional evidence of use filed after the expiry of the deadline set by the Office for submitting such evidence is a violation of Articles 42 (2), (3), 76 (2), CTMR (1) (formerly Articles 43 (2), (3), 74 (2) CTMR) and Rule 22 (2) CTMIR.

                  —

                  The submission of evidence proving genuine use of the opposition mark is subject to Rule 22 (2) CTMIR only. The wording of Rule 22 (2) CTMIR does not confer discretion. Therefore, Article 76 (2) CTMR does not apply in so far. In case genuine use of the opposition mark has not been proven within the period set by the Office in accordance with Rule 22 (2) sentence 1 CTMIR, the opposition shall be rejected.

                  —

                  Consequently, in case the Office invites the opponent to hand in observations in reply to the applicant's arguments with respect to the proof of use filed, in accordance with Article 75 CTMR and Rule 20 (4) CTMIR, the opponent may submit its observations. However, further evidence of use filed cannot be taken into consideration as it was filed after the expiry of term. By taking into account the evidence filed late it infringed Article 42 (2)' (3) CTMR and Rule 22 (2) CTMIR.

                  —

                  The mere submission of observations by the applicant in which it contests the sufficiency of the evidence filed within the deadline does not justify the taking into account of additional evidence of use.

                  —

                  Even if Article 76 (2) CTMR is considered applicable as regards additional proof of use filed after the expiry of term of Rule 22 (2) CTMIR, in the current case, Articles 42 (2), (3), 76 (2) CTMR and Rule 22 (2) CTMIR have been infringed.

                  —

                  The evidence submitted subsequently was no additional evidence. Additional evidence requires that the evidence filed within the first time limit proved genuine use of the opposition mark and that the evidence filed at a later date only substantiates the facts already proven. Thus, the General Court infringed Article 76 (2) CTMR by allowing application of that provision in appeal proceedings.

                  —

                  There has been an abuse of discretion conferred by Art. 76 (2) CTMR. The Office abused its discretion by merely taking into account that the filing of further examples of use was necessary for the opponent. The question whether the submission of additional evidence is necessary for one party to the proceeding is no factor to be taken into account by the respondent. This question has to be answered by the respective party on its own. Moreover, the Office did not take into account further circumstances. It did not even give consideration to the value of the material filed first. By holding that there has been no abuse of discretion the General Court infringed applicable law.

         (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark
      OJ L 78, p. 1


title: Case T-203/00: Action brought on 1 August 2000 by Beemsterboer Coldstore Services B.V. against the Commission of the European Communities

text:
21.10.2000             EN                     Official Journal of the European Communities                                       C 302/29
Action brought on 1 August 2000 by Beemsterboer                          Action brought on 31 July 2000 by CCBB Vervoer- en
Coldstore Services B.V. against the Commission of the                    Distributiecentrum BV against the Commission of the
                     European Communities                                                    European Communities
                         (Case T-203/00)                                                         (Case T-204/00)
                         (2000/C 302/69)                                                         (2000/C 302/70)
                    (Language of the case: Dutch)                                           (Language of the Case: Dutch)
An action against the Commission of the European Communi-                An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               ties was brought before the Court of First Instance of the
European Communities on 1 August 2000 by Beemsterboer                    European Communities on 31 July 2000 by CCBB Vervoer-
Coldstore Services B.V., established at Harderwijk (Nether-              en Distributiecentrum BV, having its registered office in
lands), represented by K.H.L. van Waasbergen, of Messrs Den              Rotterdam, represented by R.G. Snouckaert van Schauburg, of
Hollander Advocaten, lawyers, of Hellevoetsluis (Netherlands),           the Amsterdam Bar.
with an address for service in Luxembourg at the office of
J.-J. Soisson, of Ernst & Young SA, Rue Richard Coudenhove               The applicant claims that the Court should:
Kalergi, Kirchberg.
                                                                         Primarily:
The applicant claims that the Court should:                              —     Annul the decision of the Commission of the European
—      annul the Commission’s decision of 11 April 2000                        Communities of 4 February 1998 whereby the Com-
       (REM 34/99) addressed to the Kingdom of the Nether-                     mission rejected the request made the Netherlands to
       lands, concerning an application for remission of import                forego, for the applicant’s benefit, post-clearance recovery
       duties;                                                                 of import duties in respect of the importation of television
                                                                               sets from Turkey in November 1993, or to grant
—      order the Commission to pay the costs.                                  remission of those duties (Decision C(98) 241);
                                                                         —     Order the Commission to pay the costs of these proceed-
Pleas in law and main arguments                                                ings.
The action concerns the import declaration relating to turkey            In the alternative, should the decision not be annulled:
meat slaughtered and prepared in the kosher way. The meat
in question was the subject of an import declaration which               —     Order the Commission none the less to pay the costs of
was submitted by the applicant under Customs Code                              these proceedings (its own costs and those of the
No 1602 3111 but which should have been submitted, accord-                     applicant).
ing to the customs authorities, under Code No 0207 2710.
The customs authorities nevertheless waited for over a year              In the further alternative:
before advising the applicant to that effect and demanding               —     Order the Commission to pay its own costs.
additional import duties. The contested decision rejected
Beemsterboer’s application for remission of import duties.
                                                                         Pleas in law and main arguments
In support of its claim for annulment, the applicant advances
two pleas in law:                                                        In 1993 the applicant made a declaration to the customs
                                                                         authorities in Rotterdam concerning the importation for home
—      infringement, or misapplication, of Article 239 of the            use of 640 colour television sets. In view of the fact that an
       Community Customs Code: According to the applicant,               A.TR.1 certificate issued by the Turkish authorities in respect
       the Commission, applying incorrect criteria and without           of movements of goods, as prescribed in Decision No 5/72 of
       giving any explanation for the fact that approximately            the EEC-Turkey Association Council, was submitted along
       half a year elapsed between the discovery of what the             with the declaration in respect of those television sets, no
       customs authorities claim to be an incorrect code number          import duties were due.
       and the commencement of an in-depth investigation in
       that connection, concluded that there could be no                 The customs authorities in Rotterdam informed the applicant
       question of a ‘special situation’ within the meaning of           in 1995 that it appeared from an investigation conducted by
       Article 239 of the Community Customs Code;                        the European Commission that the A.TR.1 certificate which
                                                                         the applicant had submitted in 1993 had been improperly
—      failure to comply with the obligation to provide a                issued by the Turkish authorities. Post-clearance recovery of
       statement of reasons: No reasons are given for the                the import duties was for that reason effected.
       positions adopted by the Commission; alternatively, they
       are supported by reasons which are based on errors of             The customs authorities referred the matter to the European
       fact and law. Consequently, it cannot justify the positions       Commission, which delivered a decision on 4 February 1998
       adopted by it.                                                    to the effect that repayment of the import duties recovered
                                                                         post-clearance was not justified. The present action has been
                                                                         brought against that decision.


title: Reference for a preliminary ruling by the House of Lords, by order of that court of 15 October 1996, in the case of Card Protection Plan Ltd against Commissioners of Customs and Excise (Case C-349/96)

text:
7 . 12 . 96               I EN I               Official Journal of the European Communities                                            No C 370/9
Reference for a preliminary ruling by the House of Lords,                         the exemption for 'insurance [...] transactions ' to
by order of that court of 15 October 1996, in the case of                         supplies made by persons permitted to carry on
Card Protection Plan Ltd against Commissioners of                                 insurance business under the law of that Member State ?
                            Customs and Excise
                              Case C-349/96 )                              (') Council Directive 77/388/EEC of 17 May 1977 on the
                                                                                harmonization of the laws of the Member States relating to
                               ( 96/C 370/20 )                                   turnover taxes — Common system of value added tax :
                                                                                uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977, p. 1 ).
                                                                           ( 2 ) Council Directive 73/239/EEC of 24 July 1973 on the
                                                                                coordination of laws, regulations and administrative provisions
                                                                                relating to the taking-up and pursuit of the business of direct
Reference has been made to the Court of Justice of the                           insurance other than life assurance ( OJ No L 228 , 16 . 8 . 1973 ,
European Communities by an order of the House of Lords                           p. 3 ).
of 15 October 1996, which was received at the Court                        ( 3 ) Council Directive 84/641 /EEC of 10 December 1984 amending,
Registry on 21 October 1996, for a preliminary ruling in                         particularly as regards tourist assistance, the first Directive ( 73/
the case of Card Protection Plan Ltd against Commissioners                       239/EEC ) on the coordination of laws , regulations and
of Customs and Excise, on the following questions:                               administrative provisions relating to the taking-up and pursuit
                                                                                of the business of direct insurance other than life assurance ( OJ
                                                                                No L 339, 27. 12 . 1984, p. 21 ).
                                                                           ( 4 ) Council Directive 77/92/EEC of 13 December 1976 on
                                                                                measures to facilitate the effective exercise of freedom of
1 . Having regard to the provisions of the sixth VAT                             establishment and freedom to provide services in respect of the
     Directive (*) and in particular to Article 2 ( 1 ) thereof,                 activities of insurance agents and brokers (ex ISIC Group 630 )
     what is the proper test to be applied in deciding                           and, in particular, transitional measures in respect of those
     whether a transaction consists for VAT purposes of a                        activities ( OJ No L 26 , 31 . 1 . 1977, p. 14 ).
     single composite supply or of two or more independent
     supplies ?
2 . Does the supply by an undertaking of a service or
     services of the kind provided by Card Protection Plan                 Reference for a preliminary ruling by the French Cour de
     Limited ( CPP ) through the card protection plan                      Cassation by judgment of that court of 8 October 1996 in
     operated by them constitute for VAT purposes a single                 the case of Drouot Assurances SA against Consolidated
     composite supply or two or more independent supplies ?                Metallurgical Industries ( CMI Industrial Sites ), GIE
     Are there any particular features of the present case,                              Reunion Europeenne and Protea Assurance
     such as the payment of a single price by the customer or                                           Case C-351 /96 )
     the involvement of Continental Assurance Company of
     London pic as well as CPP, that affect the answer to                                                 ( 96/C 370/21 )
     that question ?
                                                                           Reference has been made to the Court of Justice of the
3 . Do such supply or supplies constitute or include
                                                                         ' European Communities by judgment of the French Cour ,de
     ' insurance [...] transactions including related services
                                                                           Cassation ( Court of Cassation ) of 8 October 1996 , received
     performed by insurance [...] agents' within the meaning
     of Article 13 ( B ) ( a ) of the sixth VAT Directive ? In
                                                                           at the Court Registry on 25 October 1996 , for a
                                                                           preliminary ruling in the case of Drouot Assurances SA
     particular, for the purpose of answering that question :
                                                                           against Consolidated Metallurgical Industries ( CMI
                                                                           Industrial Sites ), GIE Reunion Europeenne and Protea
                                                                           Assurance on the following question :
     a . Does ' insurance' within the meaning of Article 13
          ( B ) ( a ) of the sixth VAT Directive include the classes
          of activity, in particular ' assistance ' activity, listed in
          the Annex to Council Directive 73/239/EEC ( 2 ) (the             With regard in particular to the independent concept of
          first Council Directive on non-life insurance ), as              ' same parties' used in Article 21 of the Convention of
          amended by Directive 84/641 /EEC ( 3 )?                          27 September 1968 on jurisdiction and the enforcement of
                                                                           judgments in civil and commercial matters, is there inter
                                                                           State lis alibi pendens for the purposes of that provision
     b. Do the 'related services of [...] insurance agents' in             where a court of one contracting State is seised by the
          Article 13 ( B ) ( a ) of the sixth VAT Directive                insurer of a vessel that has been shipwrecked with an action
          constitute or include the activities referred to in              seeking from the owner and the insurer of the cargo on
          Article 2 of Council Directive 77/92/EEC ( 4 )?                  board partial reimbursement, by way of contribution to the
                                                                           general average, of the refloating costs, when a court of
                                                                           another contracting State has already been seised by that
                                                                           owner and insurer with an action against the owner and the
4 . Is it compatible with Article 13 ( B ) ( a ) of the sixth VAT          charterer of the vessel for a declaration that they were not
     Directive for a Member State to restrict the scope of                 obliged to contribute to the general average, and the court


title: Case C-121/12 P: Judgment of the Court (Fourth Chamber) of 3 October 2013 — Bernhard Rintisch v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Valfleuri Pâtes alimentaires SA (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 74(2) — Regulation (EC) No 2868/95 — First and third subparagraphs of Rule 50(1) — Opposition by the proprietor of an earlier trade mark — Existence of the mark — Evidence submitted in support of the opposition after the expiry of the period set for that purpose — Failure to take account thereof — Discretion of the Board of Appeal — Provision to the contrary — Circumstances precluding additional or supplementary evidence from being taken into account)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/25

         Judgment of the Court (Fourth Chamber) of 3 October 2013 — Bernhard Rintisch v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Valfleuri Pâtes alimentaires SA
   (Case C-121/12 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 74(2) - Regulation (EC) No 2868/95 - First and third subparagraphs of Rule 50(1) - Opposition by the proprietor of an earlier trade mark - Existence of the mark - Evidence submitted in support of the opposition after the expiry of the period set for that purpose - Failure to take account thereof - Discretion of the Board of Appeal - Provision to the contrary - Circumstances precluding additional or supplementary evidence from being taken into account)
   2013/C 344/41
   Language of the case: English

      Parties

      Appellant: Bernhard Rintisch (represented by: A. Dreyer, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: G. Schneider, Agent), Valfleuri Pâtes alimentaires SA (represented by: F. Baujoin, avocate)

      Re:

   Appeal brought against the judgment of the General Court (Seventh Chamber) of 16 December 2011 in Case T-109/09 Rintisch v OHIM — Valfleuri Pâtes alimentaires, by which the General Court dismissed an action, brought by the proprietor of certain national and Community word marks, a national figurative mark and a business name containing the word ‘PROTI’ for goods in Classes 5, 29, 30 and 32, for the annulment of Decision R 1660/2007-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 21 January 2009 which had dismissed the appeal against the Opposition Division’s decision rejecting the opposition brought by Mr Rintisch against registration of the word mark ‘PROTIVITAL’ in respect of goods in Classes 5, 29 and 30 — Late submission of documents — Discretion granted by Article 74(2) of Regulation (EC) No 40/94 (now Article 76(2) of Regulation (EC) No 207/2009)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Bernhard Rintisch to pay the costs.

      (1)  OJ C 165, 9.6.2012.


title: Case C-501/08 P: Appeal brought on 20 November 2008 by Município de Gondomar against the order made by the Court of First Instance (Fourth Chamber) on 10 September 2008 in Case T-324/06 Município de Gondomar v Commission

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/18

         Appeal brought on 20 November 2008 by Município de Gondomar against the order made by the Court of First Instance (Fourth Chamber) on 10 September 2008 in Case T-324/06 Município de Gondomar v Commission
   (Case C-501/08 P)
   (2009/C 19/32)
   Language of the case: Portuguese
   Parties

      Appellant: Município de Gondomar (represented by J.L. da Cruz Vilaça and L. Pinto Monteiro, advogados)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               A decision setting aside the order of the Court of First Instance and declaring admissible the action for annulment of Commission Decision C(2006) 3782 of 16 August 2006 on the cancellation of the financial assistance granted by the Cohesion Fund;

               —

               alternatively, a decision setting aside the order of the Court of First Instance and ordering the case to be referred back to the Court of First Instance for it to give another decision;

               —

               an order that the European Commission should pay all the costs including the appellant's, pursuant to Article 69 of the Rules of Procedure of the Court of Justice or, alternatively, that the decision as to costs should be reserved to the judgment or order closing the proceedings.

         Pleas in law and main arguments
   1.   ERROR OF LAW IN THE ASSESSMENT OF THE CONDITION OF DIRECT CONCERN AND FAILURE TO STATE GROUNDS
   The Município de Gondamar considers that the Portuguese legal order includes special features that ought to lead to an interpretation other than that made by the Court of First Instance in its order in Case T-324/06 declaring the action inadmissible, which is marred by errors of law.
   It is clear from the Portuguese legislation, in particular from Articles 18 and 20 of the Regulation giving effect to the Cohesion Fund in Portugal, approved by the single article of Decree-Law No 191/2000 of 16 August 2000, that the Portuguese Republic enjoys no latitude at all in deciding whether or not to maintain the assistance allocated by the Cohesion Fund to the Município de Gondamar as the body responsible for the execution of the project, leading thus to the conclusion that the Commission's decision to cancel the aid granted by the Cohesion Fund is of an automatic nature, for the legislation concerned does not permit the bodies responsible for performance to be relieved of the duty to reimburse the sums overpaid.
   The Court of First Instance, in its order in Case T-324/06 declaring the action inadmissible, refrained from making any reference to that question and so, the latter being an essential point for the purpose of determining whether the action is admissible, the Court of First Instance erred in law, with immediate effects on the exercise of the procedural rights conferred by Article 230 EC.
   As a result of that failure to rule on the matter, the order is vitiated because the statement of grounds is lacking or defective. In accordance with Community case-law and legal writings, there is a general duty to state the reasons for the decisions made by administrative and judicial bodies, so as to make it easier for the Court of Justice to perform its task of judicial review.
   The Court of First Instance's failure to give a decision concerning the special features of the Portuguese legal order constitutes a failure to state the grounds capable of seriously affecting the appellant's interests.
   2.   BREACH OF THE PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION
   The Município de Gondamar further considers that it runs the risk of being denied its right to effective judicial protection, for want of means of obtaining redress at the domestic level by which it might challenge the demand for reimbursement of the financial assistance granted by the Cohesion Fund, given that the measure notifying it of the Commission's decision to cancel the financial assistance granted by the Cohesion Fund is not a measure actionable under domestic law.
   The communication of the Commission's decision, unactionable at domestic level, was made by letter of the sectorial management body for the Cohesion Fund of the Ministry of the Environment, dated 25 September 2006, that letter doing no more than ‘notify’ the Commission's decision, the latter being the act with operative content.
   The lack of any means of redress is contrary to the principle of the right to effective judicial protection, as recognised in the most recent Community case-law and legal writings.


title: Case T-276/14: Action brought on 30 April 2014  — Flachglas Torgau and Others v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/29

         Action brought on 30 April 2014 — Flachglas Torgau and Others v Commission
   (Case T-276/14)
   2014/C 223/34
   Language of the case: German

      Parties

      Applicants: Flachglas Torgau GmbH (Torgau, Germany), Saint-Gobain Isover G+H AG (Ludwigshafen am Rhein, Germany) and Saint-Gobain Oberland AG (Bad Wurzach, Germany) (represented by: S. Altenschmidt and H. Janssen, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 in State aid case SA.33995 (2013/C) — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law: Infringement of Article 107(1) TFEU

                           —

                           The applicants claim that the contested decision infringes Article 107(1) TFEU because the EEG-surcharge provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG) and the special compensation regime did not constitute an allocation of State or State-controlled resources. All the facts relevant to the qualification of those measures were determined in the preliminary proceedings between the Commission and the Federal Republic of Germany. There were no longer any doubts, which the Commission should have found in a proceeding pursuant to Article 108(2) TFEU and Article 4(4) of Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty. (1)

               2.

               Second plea in law: Infringement of Article 108(1) TFEU and the principle of legal certainty

                           —

                           The applicants submit in that regard that the Commission infringed Article 108(1) TFEU and the principle of legal certainty by applying the procedure for new aid pursuant to Article 4(4) of Regulation No 659/1999 instead of the procedure for existing aid pursuant to Article 17 et seq. of Regulation No 659/1999 in order to review its provisional assessment of the EEG as aid. In that regard, the applicants observe in particular that, by decision of 22 May 2002, the Commission did not classify the 2000 EEG as aid within the meaning of Article 107(1) TFEU because there was no transfer of State resources. The changes from the 2000 EEG to the 2012 EEG were not substantial in comparison to the Commission decision of 22 May 2002. The Commission, therefore, could have asserted an amended legal opinion in a proceeding pursuant to Article 108(1) TFEU without impacting on the applicants.

               3.

               Third plea in law: Infringement of Article 41 of the Charter of Fundamental Rights and the principle of audi alteram partem

                           —

                           The applicants also claim that the defendant adopted the contested decision without previously giving the applicants the opportunity to provide comments.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ 1999 L 83, p. 1.


title: Case T-117/08: Judgment of the General Court of 31 March 2011 — Italy v EESC (Rules on the use of languages — Vacancy notice concerning the recruitment of the Secretary-General of the EESC — Publication in three official languages — Information relating to the vacancy notice — Publication in all official languages — Action for annulment — Admissibility — Articles 12 EC and 290 EC — Article 12 of the CEOS — Regulation No 1)

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/23

         Judgment of the General Court of 31 March 2011 — Italy v EESC
   (Case T-117/08) (1)

   (Rules on the use of languages - Vacancy notice concerning the recruitment of the Secretary-General of the EESC - Publication in three official languages - Information relating to the vacancy notice - Publication in all official languages - Action for annulment - Admissibility - Articles 12 EC and 290 EC - Article 12 of the CEOS - Regulation No 1)
   2011/C 145/37
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: R. Adam, Agent, and by P. Gentili, lawyer)

      Defendant: European Economic and Social Committee (EESC) (represented initially by: M. Bermejo Garde, and subsequently by: M. Arsène, Agents, and by A. Dal Ferro, lawyer)

      Intervener in support of the applicant: Kingdom of Spain, (represented by: F. Díez Moreno, Agent)

      Re:

   ACTION for annulment, firstly, of vacancy notice No 73/07 concerning a post of Secretary-General in the Secretariat of the EESC, published in the English, French and German versions of the Official Journal of the European Union of 28 December 2007 (OJ 2007 C 316 A, p. 1), and, secondly, of the corrigendum to that vacancy notice published in the English, French and German versions of the Official Journal of the European Union of 30 January 2008 (OJ 2008 C 25 A, p. 19)

      Operative part of the judgment

   The Court:

               1.

               Annuls vacancy notice No 73/07 concerning a post of Secretary-General in the Secretariat of the European Economic and Social Committee (EESC), published on 28 December 2007, as corrected on 30 January 2008;

               2.

               Orders each party to bear its own costs.

      (1)  OJ C 116, 9.5.2008.


title: Case T-30/01: Action brought on 9 February 2001 by the Territorio Histórico de Alava — Diputación Foral de Alava against the Commission of the European Communities

text:
C 108/26               EN                      Official Journal of the European Communities                                      7.4.2001
Secondly, despite not being in possession of documentary                  Following an exchange of correspondence with the Com-
evidence to prove that he had participated in the elections, the          mission, the applicant sent the defendant a letter calling upon
appointing authority did not grant even a single day in respect           it to act pursuant to Article 232 EC. However, even after being
of travelling time to the applicant, who had travelled from his           so called upon, the Commission has failed to define its
place of work to the place where elections were being held.               position. Therefore the applicant states that, some 20 months
The appointing authority’s refusal to grant him even the                  after the lodging of the complaint, the Commission has not
minimum amount of travelling time is a manifest breach of                 defined its position with regard to the preliminary inquiry
the principle of proportionality.                                         undertaken by it.
                                                                          In support of its claims, the applicant alleges breach of the
                                                                          principle of good administration, inasmuch as the Commission
                                                                          ought to have concluded the preliminary stage of the procedure
                                                                          within a reasonable time.
                                                                          Secondly, the defendant has failed to define its position with
                                                                          regard to the requests contained in the complaint.
Action brought on 29 January 2001 by Fiocchi Munizioni
 SpA against Commission of the European Communities
                           (Case T-26/01)
                          (2001/C 108/47)
                                                                          Action brought on 9 February 2001 by the Territorio
                                                                          Histórico de Alava — Diputación Foral de Alava against
                                                                                the Commission of the European Communities
                   (Language of the case: Italian)
                                                                                (Case T-30/01)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 29 January 2001 by Fiocchi                                                (2001/C 108/48)
Munizioni SpA, represented by Ivo Van Bael, Enrico Adriano
Raffaelli, Fabrizio Di Gianni and Renato Antonini, avvocati.
                                                                                (Language of the case: Spanish)
The applicant claims that the Court should:                               An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
—     declare, on the grounds set forth in the present application        European Communities on 9 February 2001 by the Territorio
      and as a consequence thereof, that the Commission has               Histórico de Alava — Diputación Foral de Alava, established
      failed to fulfil its obligations under Article 232 EC by            in Alava (Spain), represented by Marta Morales Isasi and
      failing to act with respect to the complaint of the                 Ignacio Sáenz-Cortabarrı́a Fernández, lawyers.
      applicant, having refrained from adopting the appropriate
      decisions and not having addressed the requisite acts;              The applicant claims that the Court should:
—     order the Commission to pay the costs; and                          —     annul the Commission’s decision of 28 November 2000
                                                                                initiating the procedure provided for by Article 88(2) EC
                                                                                with regard to Article 14 of Norma Foral 18/1993;
—     adopt any other necessary and equitable measure.
                                                                          —     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                          Pleas in law and main arguments
The applicant in the present proceedings — an undertaking                 The measure to which the contested decision relates is
involved in the manufacture and marketing of arms and                     contained in Article 14 of the Norma Foral No 18/1993 of the
munitions — claims to have lodged with the Commission a                   Territorio Histórico de Alava of 5 July 1993 concerning urgent
complaint relating to State aid allegedly granted by the                  fiscal measures in support of investment and the promotion
Kingdom of Spain to E.N. Santa Barbara, having its registered             of economic activity. That measure concerns the grant of an
office in Spain. In that complaint, the applicant pointed out             exemption from corporation tax to undertakings founded in
that the alleged aid gave rise to serious distortion of compe-            1993 and 1994, and was adopted as part of a whole series of
tition in the market for arms, in which it is in direct                   fiscal measures in support of investment and the promotion
competition with E.N. Santa Barbara.                                      of economic activity.
 ---pagebreak--- 7.4.2001                EN                      Official Journal of the European Communities                                      C 108/27
The applicant bases its claim in essence on alleged infringement           The applicant claims that the Court should:
of the procedure laid down by law in Article 88 EC and in
Regulation No 659/1999 (1) as regards existing aid schemes,                —     annul the Commission’s decision of 28 November 2000
and consequently pleads violation of the principles of legal                     initiating the procedure provided for by Article 88(2) EC
certainty, the protection of legitimate expectations and the                     with regard to Article 14 of Norma Foral 11/1993;
right to a fair hearing.
It maintains in that regard that the Commission has since                  —     order the Commission to pay the costs.
1994 been aware of the existence of the Norma Foral in
question, the provisions of which as a whole, and not
merely Article 14, were the subject of a complaint seeking a
declaration that it was incompatible with the common market                Pleas in law and main arguments
under Article 87 of the EC Treaty.
                                                                           The measure to which the contested decision relates is laid
As a result of that complaint, the Commission proceeded to
                                                                           down by Article 14 of the Norma Foral No 11/1993 of the
carry out a preliminary State aid investigation and sent a copy
                                                                           Territorio Histórico de Gipuzkoa of 26 June 1993 concerning
of the complaint in question to the Kingdom of Spain.
                                                                           urgent fiscal measures in support of investment and the
According to the applicant, the Commission at no time
                                                                           promotion of economic activity, which provides for an
indicated that it was initiating, or had initiated, the formal
                                                                           exemption from corporation tax for certain newly formed
investigation procedure provided for in Article 88(2) EC.
                                                                           undertakings.
The fact that, in November 2000, the Commission proceeded
to initiate the inter partes procedure provided for in Article             The pleas in law and main arguments are similar to those
88(2) with regard to one of the articles of Norma Foral                    advanced in Case T-30/01.
No 18/1993 necessarily means, in the applicant’s view,
that the Commission has failed to comply with the legally
established procedure for investigating and assessing existing
aid schemes.
The applicant considers that, if the Commission has any
doubts either as to whether the tax exemption provided for
may constitute aid or as to its compatibility with the common
market, it cannot categorise that exemption as new aid but
must classify it as existing aid and should proceed, in
accordance with the principle of sound administration, to                  Action brought on 9 February 2001 by the Territorio
analyse and scrutinise the same in the context of the constant             Histórico de Bizkaia — Diputación Foral de Bizkaia
review of aid systems of that type provided for in Article 88(1)             against the Commission of the European Communities
EC.
                                                                                (Case T-32/01)
(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
    down detailed rules for the application of the EC Treaty (OJ L 83
    of 27.3.1999, p. 1).
                                                                                (2001/C 108/50)
                                                                                (Language of the case: Spanish)
Action brought on 9 February 2001 by the Territorio
Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa                     An action against the Commission of the European Communi-
  against the Commission of the European Communities                       ties was brought before the Court of First Instance of the
                                                                           European Communities on 9 February 2001 by the Territorio
                          (Case T-31/01)                                   Histórico de Bizkaia — Diputación Foral de Bizkaia, established
                                                                           in Bizkaia (Spain), represented by Marta Morales Isasi and
                         (2001/C 108/49)                                   Ignacio Sáenz-Cortabarrı́a Fernández, lawyers.
                   (Language of the case: Spanish)                         The applicant claims that the Court should:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 —     annul the Commission’s decision of 28 November 2000
European Communities on 9 February 2001 by the Territorio                        initiating the procedure provided for by Article 88(2) EC
Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa,                          with regard to Article 14 of Norma Foral 5/1993;
established in Gipuzkoa (Spain), represented by Marta Morales
Isasi and Ignacio Sáenz-Cortabarrı́a Fernández, lawyers.                 —     order the Commission to pay the costs.


title: Case C-321/05: Judgment of the Court (First Chamber) of 5 July 2007 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Hans Markus Kofoed v Skatteministeriet (Directive 90/434/EEC — Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares — National decision to tax an exchange of shares — Exchange of shares — Distribution of a dividend shortly afterwards — Abuse of rights)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/6

         Judgment of the Court (First Chamber) of 5 July 2007 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Hans Markus Kofoed v Skatteministeriet
   (Case C-321/05) (1)

   (Directive 90/434/EEC - Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares - National decision to tax an exchange of shares - Exchange of shares - Distribution of a dividend shortly afterwards - Abuse of rights)
   (2007/C 199/09)
   Language of the case: Danish
   Referring court
   Østre Landsret
   Parties to the main proceedings

      Applicant: Hans Markus Kofoed

      Defendant: Skatteministeriet
   Re:
   Preliminary ruling — Østre Landsret — Interpretation of Article 2(d) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1) — Exchange of shares followed immediately by a distribution of dividends by the acquiring company, the amount of which exceeds 10 % of the nominal value of the shares exchanged
   Operative part of the judgment
   In circumstances such as those in the main proceedings, a dividend, such as that paid, is not to be included in the calculation of the ‘cash payment’ provided for in Article 2(d) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States and that, accordingly, an exchange of shares such as that in issue constitutes an ‘exchange of shares’ within the meaning of Article 2(d) of that directive.
   Consequently, Article 8(1) of Directive 90/434 precludes, in principle, the taxation of such an exchange of shares, unless national rules on abuse of rights, tax evasion or tax avoidance may be interpreted in accordance with Article 11(1)(a) of Directive 90/434 and thus justify the taxation of that exchange.

      (1)  OJ C 257, 15.10.2005.


title: Judgment of the Court (Fifth Chamber) of 14 September 2000 in Case C-16/99 (reference for a preliminary ruling from the Cour Administrative): Ministre de la Santé v Jeff Erpelding (Council Directive 93/16/EEC — Interpretation of Articles 10 and 19 — Use of the title of specialist doctor in the host Member State by a doctor who has obtained in another Member State a qualification not included as regards that State on the list in Article 7 of the directive)

text:
25.11.2000               EN                       Official Journal of the European Communities                                               C 335/5
the Chamber, P.J.G. Kapteyn (Rapporteur) and H. Ragnemalm,                   of 17 May 1977 on the harmonisation of the laws of the
Judges; S. Alber, Advocate General; H. von Holstein, Deputy                  Member States relating to turnover taxes — Common system
Registrar, for the Registrar, has given a judgment on 14 Sep-                of value added tax: uniform basis of assessment (OJ 1977
tember 2000, in which it has ruled:                                          L 145, p. 1) — the Court, composed of: L. Sevón (Rapporteur),
                                                                             President of the First Chamber, acting for the President of the
1.    Articles 3(1) and 9 of Council Regulation (EEC) No 3508/92             Fifth Chamber, P.J.G. Kapteyn, P. Jann, H. Ragnemalm and
      of 27 November 1992 establishing an integrated adminis-                M. Wathelet, Judges; A. Saggio, Advocate General; H.A. Rühl,
      tration and control system for certain Community aid schemes,          Principal Administrator, for the Registrar, has given a judgment
      coupled with the general principles of Community law, allow            on 14 September 2000, in which it has ruled:
      the competent authority, after balancing the respective interests
      of the persons concerned, to disclose data relating to crops sown
      during the preceding years, and which have been supplied by or         Article 13A(1)(c) of the Sixth Council Directive (77/388/EEC) of
      on behalf of a former claimant for payment under the arable            17 May 1977 on the harmonisation of the laws of the Member
      area payment scheme, to a new farmer who has need of those             States relating to turnover taxes — Common system of value added
      data in order to be able to apply for such payments in respect of      tax: uniform basis of assessment is to be interpreted as meaning that
      the same fields and who is unable otherwise to obtain them.            it does not apply to services consisting, not in providing care to
                                                                             persons by diagnosing and treating a disease or any other health
2.    In the event of refusal to disclose the information requested, the     disorder, but in establishing the genetic affinity of individuals through
      competent authority cannot, on the basis of the information            biological tests. The fact that the doctor acting as expert was
      which it did not provide to the applicant at the time of the           instructed by a court is irrelevant in that regard.
      application, impose penalties on him under Article 9 of
      Commission Regulation (EEC) No 3887/92 of 23 December
                                                                             (1) OJ C 397 of 19.12.1998.
      1992 laying down detailed rules for applying the integrated
      administration and control system for certain Community aid
      schemes.
(1) OJ C 397 of 19.12.1998.
                                                                                JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                  JUDGMENT OF THE COURT
                                                                                of 14 September 2000
                           (Fifth Chamber)
                                                                             in Case C-16/99 (reference for a preliminary ruling from
                      of 14 September 2000
                                                                             the Cour Administrative): Ministre de la Santé v Jeff
                                                                                Erpelding (1)
in Case C-384/98 (reference for a preliminary ruling from
            the Landesgericht St Pölten): D. v W. (1)
                                                                             (Council Directive 93/16/EEC — Interpretation of Articles
                                                                             10 and 19 — Use of the title of specialist doctor in the host
(Sixth VAT Directive — Exemption for medical care provided
in the exercise of the medical and paramedical professions                   Member State by a doctor who has obtained in another
— Supply by a doctor approved as a court expert of an                        Member State a qualification not included as regards that
                                                                                State on the list in Article 7 of the directive)
                  opinion in a paternity dispute)
                           (2000/C 335/09)                                                              (2000/C 335/10)
                   (Language of the case: German)                                                 (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-384/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Landesgericht St                 In Case C-16/99: reference to the Court under Article 177 of
Pölten (Austria) for a preliminary ruling in the proceedings                 the EC Treaty (now Article 234 EC) from the Cour Administrat-
pending before that court between D. and W., intervener:                     ive, Luxembourg, for a preliminary ruling in the proceedings
Osterreichischer Bundesschatz — on the interpretation of                     pending before that court between Ministre de la Santé and
Article 13A(1)(c) of the Sixth Council Directive (77/388/EEC)                Jeff Erpelding — on the interpretation of Council Directive
 ---pagebreak--- C 335/6                    EN                     Official Journal of the European Communities                                        25.11.2000
93/16/EEC of 5 April 1993 to facilitate the free movement of                 d’Arrondissement de Luxembourg, Luxembourg, for a prelimi-
doctors and the mutual recognition of their diplomas, certifi-               nary ruling in the proceedings pending before that court
cates and other evidence of formal qualifications (OJ 1993                   between State of the Grand Duchy of Luxembourg and
L 165, p. 1) — the Court (Fifth Chamber), composed of:                       Berthe Linster, Aloyse Linster and Yvonne Linster — on the
D.A.O. Edward (Rapporteur), President of the Chamber,                        interpretation of Council Directive 85/337/EEC of 27 June
L. Sevón, P. Jann, H. Ragnemalm and M. Wathelet, Judges;                    1985 on the assessment of the effects of certain public and
P. Lédger, Advocate General; H.A. Rühl, Principal Adminis-                   private projects on the environment (OJ 1985 L 175, p. 40),
trator, for the Registrar, has given a judgment on 14 September              in particular Article 1(5) thereof, and of Articles 177 and 189
2000, in which it has ruled:                                                 of the EC Treaty (now Article 249 EC) as regards the effect to
                                                                             be accorded to that directive — the Court, composed of:
1.    A doctor who has obtained in another Member State a diploma            Rodrı́guez Iglesias, President, J.C. Moitinho de Almeida,
      in specialised medicine which does not appear on the list of           L. Sevón (Rapporteur) and R. Schintgen, Presidents of Cham-
      specialist training courses in Article 7 of Council Directive          bers, P.J.G. Kapteyn, C. Gulmann, P. Jann, H. Ragnemalm,
      93/16/EEC of 5 April 1993 to facilitate the free movement of           M. Wathelet, V. Skouris and F. Macken, Judges; P. Léger,
      doctors and the mutual recognition of their diplomas, certificates     Advocate General; L. Hewlett, Administrator, for the Registrar,
      and other evidence of formal qualifications may not rely on            has given a judgment on 19 September 2000, in which it has
      Article 19 of that directive to use the corresponding professional     ruled:
      title of specialist in the host State.
2.    The first sentence of Article 10(1) of Directive 93/16 must be
      interpreted as referring only to the right of beneficiaries of the     1.   A national court, called on to examine the legality of a
      system of mutual recognition of diplomas established by the                 procedure for the expropriation in the public interest, in
      directive to use their academic title, and if appropriate its               connection with the construction of a motorway, of immovable
      abbreviation, in the language of the Member State of origin or              property belonging to a private individual, may review whether
      the Member State from which they come. This does not affect                 the national legislature kept within the limits of the discretion
      the right of the host Member State to authorise the use in its              set by Council Directive 85/337/EEC of 27 June 1985 on the
      territory of the academic title or an equivalent title in a language        assessment of the effects of certain public and private projects
      other than that of the Member State of origin or Member State               on the environment, in particular where prior assessment of the
      from which the person concerned comes.                                      environmental impact of the project has not been carried out,
                                                                                the information gathered in accordance with Article 5 has not
                                                                                been made available to the public and the members of the
(1) OJ C 71 of 13.3.1999.                                                         public concerned have not had an opportunity to express an
                                                                                opinion before the project is initiated, contrary to the require-
                                                                                ments of Article 6(2) Directive 85/337.
                                                                             2.   The terms ‘specific act of national legislation’ and ‘project’ used
                                                                                in Article 1(5) of Directive 85/337 must be given an
                   JUDGMENT OF THE COURT                                          autonomous interpretation.
                        of 19 September 2000
                                                                             3.   On a proper construction of Article 1(5) of Directive 85/337,
in Case C-287/98 (reference for a preliminary ruling from                         a measure adopted by a parliament after public parliamentary
the Tribunal d’Arrondissement de Luxembourg): State of                            debate constitutes a specific act of national legislation within
the Grand Duchy of Luxembourg v Berthe Linster, Aloyse                            the meaning of that provision where the legislative process has
                   Linster and Yvonne Linster (1)                                 enabled the objectives pursued by Directive 85/337, including
                                                                                that of supplying information, to be achieved, and the infor-
                                                                                mation available to the parliament at the time when the details
(Environment — Directive 85/337/EEC — Assessment of                               of the project were adopted was equivalent to that which would
the effects of certain public and private projects — Specific                     have been submitted to the competent authority in an ordinary
     act of national legislation — Effect of the directive)                       procedure for granting consent for a project.
                             (2000/C 335/11)
                      (Language of the case: French)                         (1) OJ C 299 of 26.9.1998.
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)
In Case C-287/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Tribunal


title: Case F-61/15: Action brought on 23 April 2015 — ZZ v European Commission

text:
               6.7.2015

               EN

               Official Journal of the European Union

               C 221/27

         Action brought on 23 April 2015 — ZZ v European Commission
   (Case F-61/15)
   (2015/C 221/37)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   The annulment of the decision of the Commission’s Office for the Administration and Payment of Individual Entitlements of 25 September 2014 refusing to grant the applicant the expatriation allowance.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the AECE’s decision of 25 September 2014 refusing to grant the applicant the expatriation allowance;

               —

               order the European Commission to pay the costs.


title: Case C-128/10: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 11 March 2010 — Navtiliaki Etairia Thasou AE v Ipourgos Emborikis Navtilias

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/25

         Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 11 March 2010 — Navtiliaki Etairia Thasou AE v Ipourgos Emborikis Navtilias
   (Case C-128/10)
   2010/C 134/38
   Language of the case: Greek

      Referring court

   Simvoulio tis Epikratias (Council of State), Greece

      Parties to the main proceedings

      Applicant: Navtiliaki Etairia Thasou AE

      Defendants: Ipourgos Emborikis Navtilias (Minister for Mercantile Marine)

      Question referred

   Do the provisions of Articles 1, 2 and 4 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), interpreted in accordance with the principle of freedom to provide services, allow national schemes to be adopted, whereby shipowners cannot provide cabotage services without a prior administrative authorisation, when: (a) the purpose of the authorisation system in question is to allow verification of whether, in light of the prevailing conditions in a specific port, the schedules declared by the shipowner can be implemented under conditions of safety for the ship and maintenance of order in the port and verification of the ability of the scheduled vessel to enter a specific port unhindered at the time declared by the shipowner as the preferred time for a specific service without, however, determination in advance in a legal rule of the criteria on the basis of which the authorities rule on such questions, especially in a case where more than one shipowner is interested in entering the same port at the same time; (b) at the same time, the authorisation system in question constitutes a means of imposing public service obligations, inasmuch as it has in that respect the following features: (i) it applies without exception to all scheduled shipping routes to the islands, (ii) it grants the administrative authority responsible for issuing authorisations the broadest discretionary powers in terms of imposing public service obligations, without determining in advance in a legal rule the criteria for the exercise of those powers and without determining in advance the content of the public service obligations which may be imposed?


title: Case F-64/09: Order of the Civil Service Tribunal (First Chamber) of 29 September 2009 — Labate v Commission (Staff cases — Officials — Social security — Insurance against the risk of accident and occupational disease — Occupational disease — Action for failure to act — Lack of jurisdiction of the Tribunal — Referral to the Court of First Instance)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/79

         Order of the Civil Service Tribunal (First Chamber) of 29 September 2009 — Labate v Commission
   (Case F-64/09)
   (Staff cases - Officials - Social security - Insurance against the risk of accident and occupational disease - Occupational disease - Action for failure to act - Lack of jurisdiction of the Tribunal - Referral to the Court of First Instance)
   2010/C 24/151
   Language of the case: English

      Parties

      Applicant: Kay Labate (Tarquinia, Italy) (represented by: I. Forrester, lawyer)

      Defendant: Commission of the European Communities

      Re:

   Application for a declaration that the Commission unlawfully failed to act insofar as it failed to take a decision on the applicant’s request for recognition that the illness from which her husband died was an occupational disease.

      Operative part of the order

               1.

               The action registered as Case F 64/09 Labate v Commission is referred to the Court of First Instance.

               2.

               The costs are reserved.


title: Case C-99/05: Order of the President of the Fourth Chamber of the Court of  18 May 2006  — Commission of the European Communities v Republic of Finland

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/29

         Order of the President of the Fourth Chamber of the Court of 18 May 2006 — Commission of the European Communities v Republic of Finland
   (Case C-99/05) (1)

   (2006/C 178/50)

      Language of the case: Finnish

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

      (1)  OJ C 93, 16.4.2005.


title: Case T-753/15: Action brought on 18 December 2015 — Guccio Gucci v OHIM — Guess? IP Holder (Representation of four interlaced letters G)

text:
               29.2.2016

               EN

               Official Journal of the European Union

               C 78/26

         Action brought on 18 December 2015 — Guccio Gucci v OHIM — Guess? IP Holder (Representation of four interlaced letters G)
   (Case T-753/15)
   (2016/C 078/37)
   Language in which the application was lodged: English

      Parties

      Applicant: Guccio Gucci SpA (Florence, Italy) (represented by: P. Roncaglia, F. Rossi and N. Parrotta, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Guess? IP Holder LP (Los Angeles, United States)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: International registration designating the European Union in respect of the figurative mark representing four interlaced letters G — International registration designating the European Union No 1 090 048

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 14 October 2015 in Case R 1703/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs incurred by the applicant during these proceedings;

               —

               order Guess to pay the costs incurred by the applicant in the proceedings before the Board of Appeal of OHIM.

      Pleas in law

               —

               Infringement of Articles 8(1)(b), 8(5) and 75 of Regulation No 207/2009.


title: Case T-443/04: Action brought on 5 November 2004 by the Italian Republic against the Commission of the European Communities

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/32

         Action brought on 5 November 2004 by the Italian Republic against the Commission of the European Communities
   (Case T-443/04)
   (2005/C 19/66)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 5 November 2004 by the Italian Republic, represented by Antonio Cingolo, Avvocato dello Stato.
   The applicant claims that the Court should:

               —

               annul the European Commission's memoranda of 27 August 2004 (DOCUP Abruzzo), 3 September 2004 (DOCUP Lazio), 15 September 2004 (POR Molise), 17 September 2004 (PON Sviluppo Imprenditoriale Locale (local business development)), 17 September 2004 (DOCUP Veneto), 20 September 2004 (POR Calabria) and 22 September 2004 (DOCUP Liguria), all of which make the implementation of the procedures for the payment of advances under the aid schemes subject to obligations which are not laid down in the relevant rules, with the effect of unlawfully restricting the admissibility of the operating costs of the Structural Funds to which they relate;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:
   The pleas in law and main arguments are those put forward in Case T-345/04 Italian Republic v Commission (1).

      (1)  OJ C 262 of 23.10.2004, p. 55.


title: Case C-141/13 P: Appeal brought on 20 March 2013 by Reber Holding GmbH & Co. KG against the judgment of the General Court (Fifth Chamber) delivered on 17 January 2013 in Case T-355/09 Reber Holding GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               18.5.2013

               EN

               Official Journal of the European Union

               C 141/16

         Appeal brought on 20 March 2013 by Reber Holding GmbH & Co. KG against the judgment of the General Court (Fifth Chamber) delivered on 17 January 2013 in Case T-355/09 Reber Holding GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-141/13 P)
   2013/C 141/30
   Language of the case: German

      Parties

      Appellant: Reber Holding GmbH & Co. KG (represented by: O. Spuhler and M. Geitz, Rechtsanwälte)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Wedl & Hofmann GmbH

      Form of order sought

               I.

               Set aside the judgment of 17 January 2013 in Case T-355/09 and the decision of the Fourth Board of Appeal of the respondent of 9 July 2009 in Case R 623/2008-4;

               II.

               in the alternative,
               set aside the judgment referred to at I above and refer the case back to the General Court;

               III.

               order the respondent to pay the costs of the proceedings.

      Pleas in law and main arguments

   The General Court interprets the element of ‘genuine use’ in the first sentence of Article 42(2) in conjunction with Article 42(3) of the Community Trade Mark Regulation as being dependent on the level of turnover and the number of sales outlets. This is incorrect for the simple reason that, according to the relevant case-law of the Court of Justice, there is no need at all for a particular level of turnover to be achieved in order for use to be genuine.
   Even if the General Court had established that, in the present case, the mark cited in opposition, ‘Walzertraum’, had not been used for chocolate goods in such a way as to preserve the rights attached to it, the General Court should not simply have broken off its assessment.
   The General Court ought to have moved on in its assessment to focus on handmade chocolates, taking into consideration the principles of the judgment of the Court of Justice of 19 June 2012 in Case C-307/10 (not yet published). Next it ought to have assessed whether the evidence of use submitted was sufficient to demonstrate use such as to preserve the rights attached to the mark cited in opposition, ‘Walzertraum’, in respect of handmade chocolates. That is clearly the case. The General Court failed, however, to proceed with that assessment.
   Furthermore the contested decision also represents a breach of the general principle of equal treatment. The unequal treatment stems, in particular, from the fact that the General Court focused in relation to the mark cited in opposition also on chocolate goods generally, even though the mark cited in opposition is used for handmade chocolates. By using chocolate goods as a point of reference, the standards for use such as to preserve rights applied to the appellant are necessarily the same as those applied to a multinational corporation. That is contrary to the general principle of equal treatment.
   The appeal should therefore be allowed in its entirety.


title: Case T-444/11: Action brought on 8 August 2011 — Gold East Paper (Jiangsu) and Gold Huasheng Paper (Suzhou Industrial Park) v Council

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/24

         Action brought on 8 August 2011 — Gold East Paper (Jiangsu) and Gold Huasheng Paper (Suzhou Industrial Park) v Council
   (Case T-444/11)
   2011/C 298/44
   Language of the case: English

      Parties

      Applicants: Gold East Paper (Jiangsu) Co. Ltd (Jiangsu, China) and Gold Huasheng Paper (Suzhou Industrial Park) Co. Ltd (Jiangsu) (represented by: V. Akritidis, Y. Melin and F. Crespo, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Implementing Regulation (EU) No 452/2011 of 6 May 2011 imposing a definitive anti-subsidy duty on imports of coated fine paper originating in the People's Republic of China (OJ 2011 L 128, p. 18), as far as the applicants are concerned; and

               —

               Order the defendant to bear the costs of these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the amount of countervailing duty imposed exceeds the amount of countervailable subsidies found in breach of Article 15(1) of the basic anti-subsidy regulation (1), in that first the ad valorem duty imposed was not expressed as a percentage of the CIF price, but rather as a percentage of the turnover.

               2.

               Second plea in law, alleging that the benefit conferred by the government provision of land-use rights for less than adequate remuneration was not properly calculated, in breach of Articles 4, 6(d) and 28 of the basic anti-subsidy regulation.

               3.

               Third plea in law, alleging breach of Article 4 of the basic anti-subsidy regulation, as the dividend exemption between qualified residents enterprises scheme is not specific and, as a result, the duty imposed to countervail this scheme breaches the said legal provision.

               4.

               Fourth plea in law, alleging breach of Article 7(3) of the basic anti-subsidy regulation, as the allocation of the subsidy amount for the VAT and tariff exemption on imported equipment and VAT rebates on domestically produced equipment was allocated over a period shorter than the normal depreciation period in the industry concerned.

               5.

               Fifth plea in law, alleging breach of Article 6(b) of the basic anti-subsidy regulation, since for the preferential lending to the coated paper industry the European institutions concerned have not investigated what rate the applicants would have obtained in the market.

               6.

               Sixth plea in law, alleging breach of Article 14(2) of the basic anti-subsidy regulation, as the imposition of the countervailing duties is not necessary in view of the concomitant imposition of anti-dumping duties.

               7.

               Seventh plea in law, alleging breach of Article 8(1) of the basic anti-subsidy regulation and lack of reasoning, in that the European institutions concerned conducted their investigation in such a way that it became more likely that, as a result of the fact-finding or evaluation process, they would determine that the EU industry is injured.

               8.

               Eighth plea in law, alleging breach of Article 2(d) and 15 of the basic anti-subsidy regulation, in that Council Implementing Regulation (EU) No 4522011 set target profit margin that the EU industry never achieved in the past.

               9.

               Ninth plea in law, alleging that the decision to exclude web-fed rolls from the product concerned and the like product was based on manifest errors in the assessment of the facts of the case, and resulted in a breach of Article 8 (injury), Article 9(1) (Union industry) and Article 10(6) (standing) of the basic anti-subsidy regulation.

               10.

               Tenth plea in law, alleging breach of Article 8(1) and Article 8(6) of the basic anti-subsidy regulation, in that there is no assessment in the contested regulation of whether the duty imposed does not go beyond what is necessary to offset the injury caused by the subsidised imports.

      (1)  Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93)


title: Case F-21/06: Action brought on  2 March 2006  — Da Silva v Commission of the European Communities

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/31

         Action brought on 2 March 2006 — Da Silva v Commission of the European Communities
   (Case F-21/06)
   (2006/C 108/58)
   Language of the case: French
   Parties

      Applicant(s): João Da Silva (Brussels) (represented by: G. Vandersanden and L. Levi, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               a declaration that the action is admissible and well founded, including the plea of illegality that it contains;

               —

               annulment of the applicant's classification in Grade A*14, step 2, contained in the decision of 18 May 2005 appointing the applicant as a director;

               —

               restoration of the applicant to the grade and step in which he would in the ordinary course of events have been placed (or the equivalent according to the classification introduced by the new Staff Regulations), according to the provisions of the notice of vacancy published on 7 November 2003, pursuant to Article 29(2) of the Staff Regulations (notice for a director's post at Grade A2);

               —

               complete reinstatement of the applicant's career with effect retrospective to the date of his being classified in the grade and step thus corrected, including the payment of default interest;

               —

               an order that the Commission of the European Communities should pay the costs.

         Pleas in law and main arguments
   On 7 November 2003 the Commission published a notice of vacancy for a director's post at Grade A2, pursuant to Article 29(2) of the Staff Regulations. The applicant, a head of unit in Grade 3, step 7, occupying that post as a locum tenens, decided to apply for it.
   By decision of 18 May 2005 he was appointed to the vacant post and classified in Grade A*14, step 2, the date on which that was to take effect being fixed at 16 September 2004.
   In his action the applicant argues that this classification is lower than Grade 2, now A*15, which appeared in the notice of vacancy. What is more, the classification is also lower than that enjoyed by the applicant before his appointment to the director's post, while he was head of unit. That result is not consistent with the fact that a director's post entails higher duties and responsibilities.
   The applicant considers that his classification is contrary to Articles 2(1) and 5 of Annex XIII to the Staff Regulations. More than one legal principle has also been infringed: the principle of non-discrimination, the principle of correspondence of grade to post, set out in Article 7(1) as an essential principle guaranteeing equal treatment of officials, the principles of legal certainty and protection of legitimate expectations, and the principles of good administration and the duty to have regard to the interests of officials. In addition, there is an infringement of the right to reasonable career prospects and of the interests of the service.
   In the alternative, the applicant claims that Article 12(3) of Annex XIII to the Staff Regulations is unlawful.


title: Case C-447/08: Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 13 October 2008 — Otto Sjöberg v Åklagaren

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/17

         Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 13 October 2008 — Otto Sjöberg v Åklagaren
   (Case C-447/08)
   (2008/C 327/28)
   Language of the case: Swedish
   Referring court
   Svea hovrätt
   Parties to the main proceedings

      Applicant: Otto Sjöberg

      Defendant: Åklagaren
   Questions referred

               1.

               May discrimination on grounds of nationality be accepted, under some circumstances, on national gaming and lottery markets on the basis of overriding reasons in the general interest?

               2.

               If there are a number of objectives pursued by the restrictive policy adopted on a national gaming and lottery market and one of them is the financing of social activities, can the latter then be said to be an incidental beneficial consequence of the restrictive policy? If this question is answered in the negative, can the restrictive policy pursued still be acceptable if the objective of financing social activities cannot be said to be the principal objective of the restrictive policy?

               3.

               Can the State rely on overriding reasons in the general interest as justification for a restrictive gaming policy if State-controlled companies market gaming and lotteries, the revenue from which accrues to the State, and one of several objectives of that marketing is the financing of social activities? If this question is answered in the negative, can the restrictive policy pursued still be acceptable if the financing of social activities is not found to be the principal objective of the marketing?

               4.

               Can a total prohibition on the marketing of gaming and lotteries organised in another Member State by a gaming company established there and supervised by that Member State's authorities be proportionate to the objective of controlling and supervising gaming activity, when at the same time there are no restrictions on the marketing of gaming and lotteries organised by gaming companies established in the Member State which pursues the restrictive policy? What is the answer to the question if the objective of such an arrangement is to limit gaming?

               5.

               Is a gaming operator who has been granted a licence to operate certain gaming activities in a State and is supervised by the competent authority in that State entitled to market its gaming products in other Member States through, for example, advertisements in newspapers, without first applying for a licence from those States' competent authorities? If this question is answered in the affirmative, does this mean that a Member State's rules which are based on the imposition of criminal penalties on the promotion of participation in lotteries organised abroad constitute an obstacle to the freedom of establishment and the freedom to provide services which can never be accepted on the basis of overriding reasons in the general interest? Is it of any significance for the answer to the first question whether the Member State where the gaming operator is established invokes the same overriding reasons in the general interest as the State where the operator wishes to market its gaming activities?