title: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 11 March 1996, in the case of Stephen Austin Saldanha and MTS Securities Corporation v. Hiross Holding Aktiengesellschaft (Case C-122/96)

text:
 22 . 6 . 96           EN                    Official Journal of the European Communities                                   No C 180/ 19
 The request for a preliminary ruling submitted by the                  Gerichtshof ( Austrian Supreme Court) of 11 March 1996 ,
 Pretura Circondariale di Ivrea, Sezione di Strambino, by an            which was received at the Court Registry on 16 April 1996 ,
 order of 14 December 1995 is inadmissible.                             for a preliminary ruling in the case of Stephen Austin
                                                                        Saldanha and MTS Securities Corporation v . Hiross
.(') OJ No C 46 , 17 . 2 . 1996 .                                       Holding Aktiengesellschaft on the following question :
                                                                        Where proceedings are brought before an Austrian civil
                                                                        court by a British national who is also a national of the
                                                                        United States of America, who resides in that country ( in
 Reference for a preliminary ruling from the Finanzgericht              Florida ) and does not have any residence or assets in Austria ,
 Dusseldorf — Fourth Chamber — by order of that court of                against a joint-stock company whose registered office is in
 26 March 1996, in the case of Fruko-Handelsgesellschaft                Austria, by which he seeks to restrain that company from
               mbH v. Hauptzollamt Emmerich                             selling or otherwise transferring shares in specified
                          ( Case C-120/96 )                             subsidiary companies to its Italian subsidiary company, or
                                                                        to subsidiaries of that company established in Italy, without
                            ( 96/C 180/39 )                             the approval of a qualified majority of three quarters of the
                                                                        general meeting of shareholders or, in the alternative, of a
 Reference has been made to the Court of Justice of the                 simple majority of the general meeting of shareholders, does
 European Communities by an order of the Finanzgericht                  the fact that he has been ordered by the competent Austrian
 ( Finance Court ) Dusseldorf, Fourth Chamber, of 26 March              court ( of first instance ), on application by the defendant
 1 996 , which was received at the Court Registry on 15 April           company pursuant to paragraph 57 ( 1 ) of the Austrian Code
 1996 , for a preliminary ruling in the case of                         of Civil Procedure, to provide security for costs in a specified
 Fruko-Handelsgesellschaft           mbH      v.    Hauptzollamt        sum constitute discrimination on grounds of nationality
 Emmerich on the following questions :                                  contrary to the first paragraph of Article 6 of the EC
                                                                        Treaty ?
 1 . What degree of severity is required before there can be
      any finding of irreparable damage within the meaning of
      the second paragraph of Article 244 of Regulation
      ( EEC ) No 2913/92 0 ?
 2 . When is there damage within the meaning of the second              Action brought on 17 April 1996 by Kingdom of Spain
                                                                          against the Commission of the European Communities
      paragraph of Article 244 of Regulation ( EEC )
      No 2913 /92 ?                                                                             ( Case C-123 /96 )
                                                                                ( 96/C 180/41 )
 3 . What degree of probability must be held to exist for it to
      be found that there is a possibility of the occurrence of         An action against the Commission of the European
      the irreparable damage referred to in the second                  Communities was brought before the Court of Justice of the
      paragraph of Article 244 of Regulation ( EEC )                    European Communities on 17 April 1 996 by Kingdom of
      No 2913/92 ?
                                                                        Spain, represented by Gloria Calvo Diaz, Abodago del
                                                                        Estado, with an address for service in Luxembourg at the
 4 . If the answer to Question 1 is that sufficiently severe            Spanish Embassy, 4—6 Boulevard E. Servais .
      damage is constituted by the mere possibility of a
      winding-up petition based on the disputed but not                 The applicant claims that the Court should:
      suspended decision of the customs authority being
      presented with prospects of success in view of the tax            1 , annul the following Articles of Commission Directive
      debtor's       financial         circumstances,      should            96/2/EC of 16 January 1996 ( ! ):
      implementation of the decision be suspended if a
      winding-up petition could be presented even in the                     — Article 1 ( 3 ) in so far as follows :
      absence of the customs authority's decision ?
                                                                                — the second indent of Article 3 ( a ) inserted into
 (!) OJ No L 302 , 1992 , p . 1 .                                                   Directive 90/388/EEC ( 2 ),
                                                                                — the fifth ( last) indent of Article 3 ( a ) inserted into
                                                                                Directive 90/388/EEC ,
                                                                                — Article 3          (c)   inserted    into      Directive
 Reference for a preliminary ruling from the Oberster                               90/388/EEC,
 Gerichtshof by order of that court of 11 March 1996, in the
 case of Stephen Austin Saldanha and MTS Securities                              — Article 3          (d)   inserted    into      Directive
       Corporation v. Hiross Holding Aktiengesellschaft                             90/388 /EEC ,
                          ( Case C-122/96 )
                                                                             — Articles 2 ( 1 ) and 2 ( 2 ), and
                             ( 96/C 180/40 )
                                                                             — Article 4 ;
 Reference has been made to the Court of Justice of the
 European Communities by an order of the Oberster                       2 , order the Commission to pay the costs .


title: Case C-39/14: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 27 January 2014 — Bodenverwertungs- und -verwaltungs GmbH (BVVG) and Others

text:
               7.4.2014

               EN

               Official Journal of the European Union

               C 102/19

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 27 January 2014 — Bodenverwertungs- und -verwaltungs GmbH (BVVG) and Others
   (Case C-39/14)
   2014/C 102/26
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Bodenverwertungs- und -verwaltungs GmbH (BVVG)

      Other parties: Thomas Erbs, Ursula Erbs

      Consent authority: Landkreis Jerichower Land

      Question referred

   Does Article 107(1) TFEU preclude a national provision such as Paragraph 9(1), no. 3, GrdstVG, which, for the improvement of the social structure of agriculture, in effect prohibits an agency such as Bodenverwertungs- und -verwaltungs GmbH (BVVG), which must be ascribed to the State, from selling to the highest bidder in a public call for tenders agricultural land available for sale, if the highest bid is grossly disproportionate to the value of the land?


title: Judgment of the Court (Fifth Chamber) of 29 April 2004 in Case C-171/02: Commission of the European Communities v Portuguese Republic (Articles 39 EC, 43 EC and 49 EC — Directive 92/51/EEC — General system for the recognition of professional education and training — Private security services — Provisions of a Member State requiring private security firms, in order that they may operate in Portugal, to have their head office or an establishment in Portugal, to be constituted as a legal person, to have a specific share capital and to provide references and guarantees already submitted in the Member State of origin — Failure to provide for recognition of professional qualifications in the private security services sector)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/22

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 29 April 2004
   in Case C-171/02: Commission of the European Communities v Portuguese Republic (1)

   (Articles 39 EC, 43 EC and 49 EC - Directive 92/51/EEC - General system for the recognition of professional education and training - Private security services - Provisions of a Member State requiring private security firms, in order that they may operate in Portugal, to have their head office or an establishment in Portugal, to be constituted as a legal person, to have a specific share capital and to provide references and guarantees already submitted in the Member State of origin - Failure to provide for recognition of professional qualifications in the private security services sector)
   (2004/C 118/39)
   Language of the case: Portuguese
   In Case C-171/02: Commission of the European Communities (Agents: M. Patakia and A. Caeiros), with an address for service in Luxembourg, against Portuguese Republic (Agent: L. Fernandes, assisted by J.M. Calheiros), with an address for service in Luxembourg – application for a declaration that:

               1.

               in view of the fact that, under the regime for type approval to be given by the Minister for Internal Administration, foreign undertakings wishing to provide person and goods surveillance services in the private security services sector in Portugal

                           (a)

                           must have their head office or an establishment in Portugal,

                           (b)

                           may not rely on references and guarantees already submitted in their Member State of establishment,

                           (c)

                           must be constituted as a legal person,

                           (d)

                           must have a specific share capital;

               2.

               in view of the fact that the staff members of foreign undertakings wishing to provide person and goods surveillance services in the private security services sector in Portugal must hold a professional licence issued by the Portuguese authorities;

               3.

               in view of the fact that the professions in the private security services sector are not subject to the Community system for the recognition of professional qualifications,
               the Portuguese Republic has failed to fulfil its obligations under Articles 39 EC, 43 EC and 49 EC and under Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25) – the Court (Fifth Chamber), composed of: P. Jann (Rapporteur) acting for the President of the Fifth Chamber, A. Rosas and S. von Bahr, Judges; S. Alber, Advocate General; R. Grass, Registrar, has given a judgment on 29 April 2004, the operative part of which is as follows:

               1.

               By requiring that, in order that they may be able to operate in Portugal, foreign undertakings wishing to provide person and goods surveillance services in the private security services sector in Portugal must:

                           —

                           have their head office or a permanent establishment in Portugal;

                           —

                           be constituted as a legal person;

                           —

                           have a minimum share capital;

                           —

                           obtain a licence granted by the Portuguese authorities without their being able to rely on references and guarantees already submitted in their Member State on origin;

                           —

                           ensure that their staff members hold a professional licence issued by the Portuguese authorities, without their being able to rely on checks or inspections already carried out in the Member State of origin, the Portuguese Republic has failed to fulfil its obligations under Articles 39 EC 43 EC and 49 EC.

               2.

               The remainder of the action is dismissed.

               3.

               The Portuguese Republic is ordered to pay the costs.

      (1)  OJ C 169, 13.7.2002.


title: Judgment of the Court 4 June 2002 in Case C-164/00 (Reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen's Bench Division): Katia Beckmann v Dynamco Whicheloe Macfarlane Ltd (Directive 77/187/EEC — Safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses — Conditions for appplying exceptions to maintenance of rights — Benefits provided for in the event of dismissal)

text:
C 169/8                 EN                      Official Journal of the European Communities                                           13.7.2002
                  JUDGMENT OF THE COURT                                          ment relationship or a collective agreement binding the trans-
                                                                                feror as regards that employee, are transferred to the transferee
                                                                                subject to the conditions and limitations laid down by that
                                                                                article, regardless of the fact that those obligations derive from
                            4 June 2002
                                                                                statutory instruments or are implemented by such instruments
                                                                                and regardless of the practical arrangements adopted for such
                                                                                implementation.
in Case C-164/00 (Reference for a preliminary ruling from
the High Court of Justice (England & Wales), Queen’s
Bench Division): Katia Beckmann v Dynamco Whicheloe                        (1) OJ C 192 of 8.7.2000.
                         Macfarlane Ltd (1)
(Directive 77/187/EEC — Safeguarding of employees’ rights
in the event of transfers of undertakings, businesses or parts
of businesses — Conditions for appplying exceptions to
maintenance of rights — Benefits provided for in the event                                   JUDGMENT OF THE COURT
                            of dismissal)
                                                                                (Second Chamber)
                          (2002/C 169/12)
                                                                                30 May 2002
                    (Language of the case: English)                        in Joined Cases C-284/00 and C-288/00 (Reference for a
                                                                           preliminary ruling from the Bundesverwaltungsgericht):
                                                                           Stratmann GmbH und Co. KG v Landrätin des Kreises
                                                                           Wesel (C-284/00) and Fleischversorgung Neuss GmbH
                                                                                und Co. v Landrat des Kreises Neuss (C-288/00) (1)
In Case C-164/00: Reference to the Court under Article 234                 (Common agricultural policy — Fees for health inspections
EC by the High Court of Justice of England and Wales, Queen’s                             and controls in respect of fresh meat)
Bench Division, for a preliminary ruling in the proceedings
pending before that court between Katia Beckmann and
                                                                                (2002/C 169/13)
Dynamco Whicheloe Macfarlane Ltd, on the interpretation of
Article 3 of Council Directive 77/187/EEC of 14 February
1977 on the approximation of the laws of the Member States                                     (Language of the case: German)
relating to the safeguarding of employees’ rights in the event
of transfers of undertakings, businesses or parts of businesses            (Provisional translation; the definitive translation will be published
(OJ 1977 L 61, p. 26), the Court (Sixth Chamber), composed                                     in the European Court Reports)
of: G.C. Rodrı́guez Iglesias, President, N. Colneric, and S. von
Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,
A. La Pergola, J.-P. Puissochet (Rapporteur), M. Wathelet,
R. Schintgen, J.N. Cunha Rodrigues and C.W.A. Timmermans,                  In Joined Cases C-284/00 and C-288/00: Reference to the
Judges; S. Alber, Advocate General; L. Hewlett, Administrator,             Court under Article 234 EC by the Bundesverwaltungsgericht
for the Registrar, has given a judgment on 4 June 2002, in                 (Germany) for a preliminary ruling in the proceedings pending
which it has ruled:                                                        before that court between Stratmann GmbH und Co. KG
                                                                           and Landrätin des Kreises Wesel (C-284/00), and between
                                                                           Fleischversorgung Neuss GmbH und Co. KG and Landrat des
1.    Early retirement benefits and benefits intended to enhance the       Kreises Neuss (C-288/00), on the interpretation of, first,
      conditions of such retirement, paid in the event of dismissal to     Council Directive 85/73/EEC of 29 January 1985 on the
      employees who have reached a certain age, such as the benefits       financing of health inspections and controls of fresh meat and
      at issue in the main proceedings, are not old-age, invalidity or     poultrymeat (OJ 1985 L 32, p. 14) and Council Decision 88/
      survivors’ benefits under supplementary company or inter-            408/EEC of 15 June 1988 on the levels of the fees to be
      company pension schemes within the meaning of Article 3(3)           charged for health inspections and controls of fresh meat
      of Council Directive 77/187/EEC of 14 February 1977 on the           pursuant to Directive 85/73 (OJ 1988 L 194, p. 24) and,
      approximation of the laws of the Member States relating to the       secondly, Directive 85/73 as amended by Council Directive
      safeguarding of employees’ rights in the event of transfers of       93/118/EC of 22 December 1993 (OJ 1993 L 340, p. 15), in
      undertakings, businesses or parts of businesses.                     conjunction with Council Directive 64/433/EEC of 26 June
                                                                           1964 on health problems affecting intra-Community trade in
                                                                           fresh meat (OJ, English Special Edition 1963-64, p. 185) both
2.    On a proper construction of Article 3 of Directive 77/187, the       in the version resulting from Council Directive 89/662/EEC of
      obligations applicable in the event of the dismissal of an           11 December 1989 concerning veterinary checks in intra-
      employee, arising from a contract of employment, an employ-          Community trade with a view to the completion of the internal


title: Case T-245/11: Action brought on 6 May 2011 — ClientEarth and International Chemical Secretariat v ECHA

text:
               2.7.2011

               EN

               Official Journal of the European Union

               C 194/20

         Action brought on 6 May 2011 — ClientEarth and International Chemical Secretariat v ECHA
   (Case T-245/11)
   2011/C 194/33
   Language of the case: English

      Parties

      Applicants: ClientEarth (London, United Kingdom) and The International Chemical Secretariat (Gothenburg, Sweden) (represented by: P. Kirch, lawyer)

      Defendant: European Chemicals Agency (ECHA)

      Form of order sought

               —

               Declare the defendant in violation of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;

               —

               Declare the defendant in violation of Regulation (EC) No 1367/2006 (1);

               —

               Declare the defendant in violation of Regulation (EC) No 1049/2001 (2);

               —

               Annul the decision set out in the defendant’s confirmatory reply of 4 March 2011 to withhold the requested documents; and

               —

               Order the defendant to pay the applicants’ costs, including the costs of any intervening party.

      Pleas in law and main arguments

   By means of their application, the applicants seek, pursuant to Article 263 TFEU, the annulment of the decision set out in the defendant’s confirmatory reply of 4 March 2011 not to grant access to documents containing the names and contact details of the registrants (manufacturers/importers) of and important number of alleged dangerous substances for human health and the environment and the tonnage in which they are placed on the EU market.
   In support of the action, the applicants rely on five pleas in law.

               1.

               First plea in law, alleging that the contested decision violates Article 8(2) of Regulation No 1049/2001 for not replying within the prescribed time limits to the applicants' confirmatory application and not having a justification for not doing so.

               2.

               Second plea in law, alleging that the contested decision violates Article 4(4) and Article 4(6) of Regulation No 1049/2001 for not consulting the registrants in order to assess whether a commercial interest in non disclosure exists and not providing sufficient grounds to prove that it was clear that the documents did not have to be disclosed.

               3.

               Third plea in law, alleging that the contested decision violates Article 4(1) (2) (3) and (4) of the Aarhus Convention for failure to provide the applicants access to the requested information. The contested decision also violates Article 6(1) of Regulation No 1367/2006 for failure to interpret the exceptions provided under Article 4 of Regulation No 1049/2001 in a restrictive way taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.

               4.

               Fourth plea in law, alleging that the contested decision violates Article 4(3) first subparagraph of Regulation No 1049/2001 for failure to demonstrate that the disclosure of the requested documents would seriously undermine ECHA’s internal decision-making process, as well as Article 4(2) first indent of the same act for failing to demonstrate the existence of a commercial interest justifying non-disclosure.

               5.

               Fifth plea in law, alleging that the contested decision violates Article 4(3) second subparagraph and Article 4(2) first subparagraph of Regulation No 1049/2001 for failure to assess whether there is an overriding public interest in disclosure and to provide a detailed statement of reasons for such a refusal.

      (1)  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13)

      (2)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)


title: Case C-397/07: Action brought on 27 August 2007 — Commission of the European Communities v Kingdom of Spain

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/31

         Action brought on 27 August 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-397/07)
   (2007/C 269/54)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by E. Gippini Fournier and M. Afonso, acting as Agents)

      Defendant: The Kingdom of Spain
   Forms of order sought by the applicant

               —

               Declare that:

                           —

                           by subjecting the application of obligatory exemptions from capital duty to certain conditions;

                           —

                           by imposing an indirect tax on the transfer of the effective centre of management or the registered office of a company to Spain, for those companies which have not been subject to a similar tax in their country of origin;

                           —

                           by subjecting, to an indirect tax, capital used to carry out business transactions through a subsidiary or fixed place of business for companies established in a Member State which does not apply a similar tax similar to the Spanish tax,

                     The Kingdom of Spain has failed to fulfil its obligations under Directive 69/335/EEC (1), of 17 July 1969.

               —

               Order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments

               —

               Directive 69/335 maintains the status quo regarding the freedom of Member States to re-introduce a capital duty or once again to subject transactions, currently exempt, to that tax. Consequently, Spain cannot abolish its exemptions and tax all transactions to which the special scheme of Royal Decree No 4/2004 is applicable, but which are excluded from the scope of former Article 7(1)(b) and (b)a. Spain must apply the exemption of Article 45(1)(B)10 to all transactions within the scope of the special scheme of Royal Decree No 4/2004, whether in fact that scheme applies or not.

               —

               Article 4 of Directive 69/335 lays down an exhaustive list of transactions subject to capital duty. In accordance with Article 4(1)(g) the transfer of the effective centre of management of a company, firm, association or legal person which is considered in the host Member State, for the purposes of charging capital duty, as a capital company, although it is not so considered in the Member State of origin, is subject to capital duty. Consequently Spain cannot tax the transfer of the effective centre of management or the registered office of a capital company which is not subject to a similar tax in its country of origin. The transfer, by a capital company, of its seat to another Member State is not such as to generate capital duty, even where the Member State in which the company was formed did not claim that tax. In addition, nothing in the Spanish legislation indicates that it applies solely in cases of tax evasion or fraud.

               —

               Spain cannot subject to capital duty that part of the capital used to carry out business transactions in Spain through subsidiaries or fixed places of business. As is clear from Article 2(1) of Directive 69/335 Spain cannot subject to capital tax companies whose effective centre of management is situated in another Member State, and not in Spain. Article 2(3) of Directive 69/335 reserves measures, such as that to be applied by Spain, to the specific case of a company whose registered office and effective centre of management is in a third country. As regards the issue of fraud or tax evasion, the Commission emphasises that the Spanish provisions apply without any limitation or distinction according to whether there is tax evasion or fraud. Consequently Spain cannot validly claim such a justification.

      (1)  Council Directive 69/335/EEC, of 17 July 1969, concerning indirect taxes on the raising of capital OJ, English Special Edition 1969 (II), p. 412.


title: Case C-403/12 P: Appeal brought on 27 August 2012 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-396/09 Vereniging Milieudefensie, Stichting Stop Luchtverontreiniging Utrecht v Commission

text:
               12.1.2013

               EN

               Official Journal of the European Union

               C 9/26

         Appeal brought on 27 August 2012 by the European Commission against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-396/09 Vereniging Milieudefensie, Stichting Stop Luchtverontreiniging Utrecht v Commission
   (Case C-403/12 P)
   2013/C 9/44
   Language of the case: Dutch

      Parties

   Appellant: European Commission (represented by: P. Oliver, J.-P. Keppenne, G. Valero Jordana, P. van Nuffel, Agents)
   Other parties to the proceedings:

               Vereniging Milieudefensie,

               Stichting Stop Luchtverontreiniging Utrecht, Kingdom of the Netherlands,

               European Parliament,

               Council of the European Union

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (Seventh Chamber) of 14 June 2012 in Case T-396/09;

               —

               rule on the substance of the case and dismiss the action for annulment of Commission Decision C(2006)6121; and

               —

               order the applicants in Case T-396/09 to pay the costs incurred by the Commission in that case and in the present case.

      Pleas in law and main arguments

   The appeal essentially relates to whether the General Court was permitted, having regard particularly to the judgment of 8 March 2011 in Case C-240/09, to assess the validity of Article 10(1), in conjunction with Article 2(1)(g) of Regulation (EC) No 1367/2006, (1) in the light of Article 9(3) of the Aarhus Convention. (2)

   The Commission puts forward two grounds of appeal.
   By its first ground of appeal, the Commission states that although the General Court did indeed correctly cite the strict conditions under which, according to the case-law of the Court of Justice, individuals may rely on rules of international law laid down by conventions in order to assess the validity of legal acts of the European Union (in particular that an assessment in the light of the provisions of a convention is possible only where the nature and the broad logic of that convention do not preclude this and the provisions relied upon appear, as regards their content, to be unconditional and sufficiently precise), it erred in finding that the exception to these conditions which follows from the Fediol and Nakajima case-law (Case 70/87 and Case C-69/89) applied also to Article 9(3) of the Aarhus Convention.
   The Court of Justice already held, in its judgment in Case C-240/09, that Article 9(3) of the Aarhus Convention does not have direct effect. Furthermore, since the Fediol and Nakajima case-law is an exception, it must be interpreted strictly; that case-law has until now been applied only to the area of commercial policy, and can only be applied to other policy areas if the conditions for doing so are clearly fulfilled, which is not the case here. Indeed, Article 10(1) of Regulation No 1367/2006 makes no reference to the legal rules of the Aarhus Convention and, moreover, this provision does not provide for the implementation of a specific obligation of that convention for the purposes of the Nakajima case-law. Lastly, Article 9(3) of the Aarhus Convention is insufficiently clear and precise to enable the exception provided for in the Nakajima case-law to be applied.
   By its second ground of appeal, the Commission submits, in the alternative, that the General Court misinterpreted Article 9(3) of the Aarhus Convention in considering that Article 10(1) of Regulation No 1367/2006 is contrary to that provision for the sole reason that the review procedure provided for in that Article 10 is limited to acts of individual scope, whereas the General Court ought to have carried out a specific examination of whether sufficient implementation was given to Article 9(3) of the Aarhus Convention through all judicial procedures available to individuals at national and Union level.

      (1)  Regulation of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

      (2)  Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).


title: Case C-445/14: Order of the President of the Court of 28 April 2015 (request for a preliminary ruling from the Bundesverwaltungsgericht Germany) — Seusen Sume v Landkreis Stade, in the presence of: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/26

         Order of the President of the Court of 28 April 2015 (request for a preliminary ruling from the Bundesverwaltungsgericht Germany) — Seusen Sume v Landkreis Stade, in the presence of: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht
   (Case C-445/14) (1)

   (2015/C 320/38)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 439, 8.12.2014.


title: Case T-623/11: Action brought on 30 November 2011 — PICO Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/38

         Action brought on 30 November 2011 — PICO Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE)
   (Case T-623/11)
   2012/C 32/75
   Language in which the application was lodged: English

      Parties

      Applicant: PICO Food GmbH (Tamm, Germany) (represented by: M. Douglas, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Bogumit Sobieraj (Milanówek, Poland)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 September 2011 in case R 553/2010-1;

               —

               Order the defendant to bear the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘MILANÓWEK CREAM FUDGE’, for goods in class 30 — Community trade mark application No 6342455

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

      Mark or sign cited in opposition: German trade mark registration No 30522224 of the figurative mark representing a cow, for goods in class 30; German trade mark registration No 30523439 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30702751 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30702748 of the figurative mark ‘Original Sahne Muh-Muhs HANDGESCHNITTEN HANDGEWICKELT’, for goods in class 30; German trade mark registration No 30700574 of the figurative mark ‘SAHNE TOFFEE LUXURY CREAM FUDGE’, for goods in class 30

      Decision of the Opposition Division: Rejected the opposition in its entirety

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal misinterpreted the general principles laid down by the European Courts and denied the existence of likelihood of confusion between the opposition trademarks and the contested application. Infringement of Article 76(1) of Council Regulation No 207/2009, as the Board of Appeal based the decision on facts which have not been forwarded by the parties to the proceedings.


title: Case C-556/12: Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 3 December 2012 — TDC A/S v Teleklagenævnet

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/13

         Reference for a preliminary ruling from the Østre Landsret (Denmark) lodged on 3 December 2012 — TDC A/S v Teleklagenævnet
   (Case C-556/12)
   2013/C 38/16
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: TDC A/S

      Defendant: Teleklagenævnet

      Questions referred

               1.

               Does the definition of ‘access’ in Article 2(a) of the Access Directive (1) cover access in the form of the installation of drop cables between the distribution point in an access network and the terminating segment at the end-user’s premises? Does it make a difference in answering the question that the maximum length of such drop cables is 30 metres?

               2.

               Is the installation of a drop cable over a distance of up to 30 metres between the distribution point in an access network and the terminating segment at the end user’s premises covered by the phrase ‘access to, and use of, specific network elements and associated facilities’ in Article 12 of the Access Directive, ref. Article 2 and Article 8?

               3.

               Is it relevant for the answer to question 1 and question 2, where the access obligation takes the form of a requirement, for example, to install drop cables between the distribution point in an access network and the terminating segment at an end-user’s premises, that the owner of an electronic communications network must undertake investment which considerably exceeds the acquisition cost of the electronic communications network to which access must be provided?

               4.

               Is it relevant for the answer to question 3 that the owner is able to recover the costs of installing the drop cables through an imposed price control obligation?

      (1)  Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7)


title: Case T-260/07: Action brought on 17 July 2007 — Las Marismas de Lebrija v Council and Commission

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/52

         Action brought on 17 July 2007 — Las Marismas de Lebrija v Council and Commission
   (Case T-260/07)
   (2007/C 211/98)
   Language of the case: Spanish
   Parties

      Applicant: Las Marismas de Lebrija, S Coop. And. (Sevilla, Spain) (represented by: L. Ortiz Blanco, lawyer)

      Defendants: Council of the European Union and Commission of the European Communities
   Form of order sought

               —

               declare under Article 288 EC that the applicant is entitled to have damage totalling one million five hundred and seventy five thousand one hundred and twenty two euros (EUR 1 575 122) made good by the Council and the Commission jointly and severally;

               —

               order the defendants to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are those relied on in Case T-217/07 Las Palmeras v Council and Commission.


title: Case T-207/05: Action brought on 25 May 2005 by Gudrun Schulze against the Commission of the European Communities

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/36

         Action brought on 25 May 2005 by Gudrun Schulze against the Commission of the European Communities
   (Case T-207/05)
   (2005/C 193/60)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 25 May 2005 by Gudrun Schulze, residing in Brussels [(Belgium)], represented by Stéphane Rodrigues and Alice Jaume, lawyers.
   The applicant claims that the Court should:

               1.

               annul the decision of the appointing authority rejecting the applicant's complaint, in conjunction with the appointment decision adopted by the appointing authority on 11 October 2004, in so far as it determines her grade in accordance with Article 12(3) of Annex XIII to the Staff Regulations and her step in the grade pursuant to the current Article 32 of the Staff Regulations;

               2.

               advise the appointing authority of the consequences of the annulment of the contested decisions, in particular the re-grading of the applicant to grade A*10, step 4 with retrospective effect from 16 June 2004, the date on which the appointment decision of 11 October 2004 took effect;

               3.

               in the alternative, order the Commission to pay compensation for the damage suffered by the applicant as a result of not being graded at grade A*10, step 4 with effect from 16 June 2004, the date on which the appointment decision of 11 October 2004 took effect;

               4.

               order the defendant to pay the costs.

         Pleas in law and main arguments
   Between March 2000 and December 2003, the applicant was employed at the Commission as a temporary staff member, initially at grade A4, then, from 1 January 2001, at grade A6. From 1 January to 30 April 2004, the applicant was a member of the auxiliary staff in group AI 04.
   Having passed Open competition COM/A/3/02 for grade A7/A6 administrators in the field of research, the applicant was appointed an official by the contested decision of 11 October 2004. She was appointed to the post which she had previously held as a temporary and auxiliary staff member. Under Article 12 of Annex XIII to the Staff Regulations, the applicant was, on recruitment, placed in the new grade A*6, which ranks below the old A7/A6 grades which correspond to grades A*8/A*10 under the new system.
   In support of her action, the applicant argues first that Article 12 of Annex XIII to the Staff Regulations is inapplicable in her case. According to the applicant, that article applies only to officials on a list of suitable candidates. Successful candidates on a recruitment reserve list cannot be regarded as officials.
   In the alternative, the applicant argues that that article is unlawful, being in breach, in her view, of the principle of equal treatment for successful candidates of competitions published before 1 May 2004, as well as of Article 5(5) of the Staff Regulations. She also claims that her appointment to grade A*6 constitutes indirect discrimination on the ground of age as against administrators appointed in that grade, in so far as her long career is not given recognition. Furthermore, the applicant considers that the principle of equal treatment for officials performing the same functions is also infringed by the fact that she has the same experience and performs the same functions as other officials who are however in higher grades and receive a higher salary.
   The applicant also pleads breach of Article 31 of the Staff Regulations, of legitimate expectations, of legal certainty, of the principle of good administration and of the duty to have regard for the interests of officials. The applicant considers that the contested decision also infringes her legitimate expectation of being allowed additional seniority in accordance with Article 32 of the Staff Regulations, as applicable before 1 May 2004.
   Finally the applicant claims compensation for the material and non-material damage she has suffered as a result of her appointment to a lower grade.


title: Case C-355/03: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 28 July 2003, in the case of Fulcrum Electronics Ltd (in Liquidation) against Commissioners of Customs and Excise

text:
18.10.2003             EN                          Official Journal of the European Union                                         C 251/7
Reference for a preliminary ruling by the High Court of                  Pleas in law and main arguments
Justice (England & Wales), Chancery Division, by order of
that court dated 28 July 2003, in the case of Fulcrum
Electronics Ltd (in Liquidation) against Commissioners                   The abovementioned DEI power station unquestionably falls
                      of Customs and Excise                              within the category of industrial plants listed in Annex I to
                                                                         Directive 84/360 and is an ‘existing plant’ within the meaning
                          (Case C-355/03)                                of Article 2(3) of that directive. Therefore, the Hellenic
                                                                         Republic is obliged, under Article 13 of the directive, to imple-
                          (2003/C 251/13)                                ment a policy and strategy including appropriate measures for
                                                                         the adaptation of that plant to the best available technology. In
                                                                         accordance with Article 16 of the directive, that obligation has
Reference has been made to the Court of Justice of the                   existed since 30 June 1987, but the Hellenic Republic has not
European Communities by an order of the High Court of                    yet determined appropriate policies and strategies.
Justice (England & Wales), Chancery Division, dated 28 July
2003, which was received at the Court Registry on 18 August
2003, for a preliminary ruling in the case of Fulcrum                    (1) OJ L 188, 16.7.1984, p. 20.
Electronics Ltd (in Liquidation) against Commissioners of
Customs and Excise on the questions which are identical to
those in Case C-354/03 (1).
(1) See page 6 of this Official Journal.                                 Action brought on 27 August 2003 by the Hellenic
                                                                         Republic against the Commission of the European
                                                                                Communities
                                                                                (Case C-370/03)
                                                                                (2003/C 251/15)
Action brought on 22 August 2003 by the Commission of
the European Communities against the Hellenic Republic
                                                                         An action against the Commission of the European
                          (Case C-364/03)                                Communities was brought before the Court of Justice of the
                                                                         European Communities on 27 August 2003 by the Hellenic
                          (2003/C 251/14)                                Republic, represented by G. Kanellopoulos, a Member of the
                                                                         State Legal Service, with an address for service in Luxembourg
                                                                         at the Greek Embassy, 27 rue Marie-Adelaïde.
An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on
22 August 2003 by the Commission of the European                         The applicant asks the Court to:
Communities, represented by G. Valero Jordana and
M. Konstantinidis, of its Legal Service.
                                                                         —     annul Commission Decision 2003/481/EC in so far as
                                                                               concerns the particular chapter concerning the charging
                                                                               to the budget of the Member State rather than to the
The Commission claims that the Court should:
                                                                               EAGGF Guarantee Section the sum not recoverable by the
                                                                               Greek authorities of DR 14 272 278 (EUR 41 884,90);
—     declare that, by failing to determine policies and strategies
      for the gradual adaptation of the steam-turbine and gas-           —     order that the financial consequences of the non-recovery
      turbine units of the DEI (Dimosia Epikhirisi Ilektrismou;                of the above sum should be borne by the Community.
      State Electricity Undertaking) power station at
      Linoperamata, Crete, to the best available technology,
      the Hellenic Republic has failed to fulfil its obligations
                                                                         Pleas in law and main arguments
      under Article 13 of Council Directive 84/360/EEC (1) of
      28 June 1984 on the combating of air pollution from
      industrial plants;
                                                                         —     Infringement of an essential procedural requirement
                                                                               since Greece was not invited by the Commission to a
                                                                               discussion in accordance with Article 8(1) of Regulation
—     order the Hellenic Republic to pay the costs.                            No 1663/96;


title: Case C-69/09 P: Appeal brought on 14 February 2009 by Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl, Magan Italia Srl against the order of the Court of First Instance (Sixth Chamber) delivered on 26 November 2008 in Case T-393/06 Makhteshim-Agan Holding BV and Others v Commission

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/22

         Appeal brought on 14 February 2009 by Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl, Magan Italia Srl against the order of the Court of First Instance (Sixth Chamber) delivered on 26 November 2008 in Case T-393/06 Makhteshim-Agan Holding BV and Others v Commission
   (Case C-69/09 P)
   (2009/C 82/39)
   Language of the case: English
   Parties

      Appellants: Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl, Magan Italia Srl (represented by: K. Van Maldegem, C. Mereu, advocaten)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought
   The appellants claim that the Court should, following an oral hearing:

               —

               set aside the Order of the Court of First Instance in Case T-393/06 and declare the Appellants' application for annulment admissible; and

               —

               annul the Contested Decision; or

               —

               alternatively, refer the case back to the Court of First Instance to rule on the Appellants' application for annulment; and

               —

               order the Commission to pay all the costs of these proceedings (including the costs before the Court of First Instance).

         Pleas in law and main arguments
   The Appellants submit that the CFI erred in law in rejecting their application for annulment of the decision of the European Commission, expressed in a letter dated 12 October 2006, not to include the active substance azinphos-methyl in Annex I to Council Directive 91/414/EEC (1) of 15 July 1991 concerning the placing of plant protection products on the market (the ‘Contested Decision’).
   In particular, the Appellants contend that the Court of First Instance erred in law in rejecting their application on grounds of admissibility. It wrongly held that the Contested Decision was not a challengeable act pursuant to Article 230 of the EC Treaty.

      (1)  OJ L 230, p. 1.


title: Case T-234/11 P: Appeal lodged on 28 April 2011 by Oscar Orlando Arango Jaramillo a.o. against the Order of the Civil Service Tribunal of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others v EIB

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/27

         Appeal lodged on 28 April 2011 by Oscar Orlando Arango Jaramillo a.o. against the Order of the Civil Service Tribunal of 4 February 2011 in Case F-34/10 Arango Jaramillo and Others v EIB
   (Case T-234/11 P)
   2011/C 211/58
   Language of the case: French

      Parties

      Applicants: Oscar Orlando Arango Jaramillo (Luxembourg, Luxembourg), Maria Esther Badiola (Luxembourg), Marcella Bellucci (Luxembourg), Stefan Bidiuc (Grevenmacher, Luxembourg), Raffaella Calvi (Schuttrange, Luxembourg), Maria José Cerrato (Luxembourg), Sara Confortola (Verona, Italy), Carlos D’Anglade (Luxembourg), Nuno Da Fonseca Pestana Ascenso Pires (Luxembourg), Andrew Davie (Medernach, Luxembourg), Marta De Sousa e Costa Correia (Itzig, Luxembourg), Nausica Di Rienzo (Luxembourg), José Manuel Fernandez Riveiro (Sandweiler, Luxembourg), Eric Gällstad (Rameldange, Luxembourg), Andres Gavira Etzel (Luxembourg), Igor Greindl (Canach, Luxembourg), José Doramas Jorge Calderon (Luxembourg), Monica Lledo Moreno (Sandweiler), Antonio Lorenzo Ucha (Luxembourg), Juan Antonio Magaña-Campos (Luxembourg), Petia Manolova (Bereldange, Luxembourg), Ferran Minguella Minguella (Gonderange, Luxembourg), Barbara Mulder-Bahovec (Luxembourg), István Papp (Luxembourg), Stephen Richards (Blaschette, Luxembourg), Lourdes Rodriguez Castellanos (Sandweiler), Daniela Sacchi (Mondorf-les-Bains, Luxembourg), Maria Teresa Sousa Coutinho da Silveira Ramos (Almargem do Bispo, Portugal), Isabelle Stoffel (Mondorf-les-Bains), Fernando Torija (Luxembourg), Maria del Pilar Vargas Casasola (Luxembourg), Carolina Vento Sánchez (Luxembourg), Pé Verhoeven (Brussels, Belgium), Sabina Zajc (Contern, Luxembourg); and Peter Zajc (Contern) (represented by B. Cortese and C. Cortese, lawyers)

      Other party to the proceedings: European Investment Bank

      Forms of order sought

   The appellants claim that the Court should:

               —

               annul the order subject to appeal, dismiss the objection of inadmissibility raised by the EIB in Case F-34/10, and refer the matter back to the Civil Service Tribunal for it to rule on the substance and on costs in accordance with the forms of order sought by the appellants at first instance;

               —

               in the alternative, having regard to the novelty of the legal questions raised by this appeal, allocate the costs between the parties as fairness requires.

      Pleas in law and main arguments

   In support of their appeal, the appellants rely on three pleas in law.

               1.

               First plea, divided into three limbs, claiming an error of law in the determination of the reasonable period applicable to the making of the application in the disputes between the EIB and its staff.

                           —

                           In the first limb, the appellants accuse the Civil Service Tribunal of giving incorrect scope to the case-law concerning the time-limits for EIB staff bringing an action, by abandoning de facto the rule that action must be brought within a reasonable period, which is by nature flexible and open to the balancing of the specific interests at stake, and substituting a strictly-applied and generalised time-limit of three months.

                           —

                           In the second limb, the appellants argue that, with regard to disputes between the EIB and its staff, no time-limit is laid down by the relevant provisions, whereas the Civil Service Tribunal applied by analogy the period of three months and ten days laid down by Article 91 of the Staff Regulations and Article 100(3) of the Rules of Procedure.

                           —

                           In the third limb, the appellants claim infringement of the principle of proportionality and their right to effective legal protection in so far as the Civil Service Tribunal described as unreasonable the time-limit observed by the appellants, which had a few seconds of difference by comparison with the reference time-limits applicable in relations under the Staff Regulations.

               2.

               Second plea, raised in the alternative and claiming error of law in the interpretation of the procedural rules applicable, read in the light of the principle of the unforeseen occurrence.

               3.

               Third plea, raised in the alternative and alleging distortion of the evidence for proving the existence of an unforeseen occurrence and an infringement of the rules concerning the investigation and the organisation of the procedure.


title: Judgment of the Court (Second Chamber) of 17 February 2000 in Case C-156/97: Commission of the European Communities v Van Balkom Non-Ferro Scheiding BV (Arbitration clause — Rescission of a contract — Right to reimbursement of advance payments)

text:
C 102/8                  EN                      Official Journal of the European Communities                                           8.4.2000
Verwaltungsgericht Ansbach (Bavarian Administrative Court,                                    JUDGMENT OF THE COURT
Ansbach), Germany, for a preliminary ruling in the proceedings
pending before that court between Ömer Nazli, Caglar Nazli,
Melike Nazli and Stadt Nürnberg — on the interpretation of                                           (Second Chamber)
Articles 6(1) and 14(1) of Decision No 1/80 of 19 September
1980 on the development of the Association, adopted by the
Association Council established by the Association Agreement                                        of 17 February 2000
between the European Economic Community and Turkey
— the Court (Sixth Chamber), composed of: R. Schintgen
(Rapporteur), President of the Second Chamber, acting as                    in Case C-156/97: Commission of the European Communi-
President of the Sixth Chamber, P.J.G. Kapteyn and G. Hirsch,                       ties v Van Balkom Non-Ferro Scheiding BV (1)
Judges; J. Mischo, Advocate General; H.A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
10 February 2000, in which it has ruled:                                    (Arbitration clause — Rescission of a contract — Right to
                                                                                reimbursement of advance payments)
                                                                                (2000/C 102/12)
1. A Turkish national who has been in legal employment in a
    Member State for an uninterrupted period of more than four
    years but is subsequently detained pending trial for more than a                            (Language of the case: German)
    year in connection with an offence for which he is ultimately
    sentenced to a term of imprisonment suspended in full has not
    ceased, because he was not in employment while detained pending
    trial, to be duly registered as belonging to the labour force of the    (Provisional translation; the definitive translation will be published
    host Member State if he finds a job again within a reasonable                               in the European Court Reports)
    period after his release, and may claim there an extension of his
    residence permit for the purposes of continuing to exercise his
    right of free access to any paid employment of his choice under         In Case C-156/97: Commission of the European Communities
    the third indent of Article 6(1) of Decision No 1/80 of                 (Agents: H. van Lier and G. zur Hausen, assisted by B.
    19 September 1980 on the development of the Association,                Wägenbaur) v Van Balkom Non-Ferro Scheiding BV, estab-
    adopted by the Association Council established by the Association       lished in Oss, Netherlands, represented by D. Baas, Rechtsan-
    Agreement between the European Economic Community and                   walt, Mannheim, Postfach 10 27 50, D-68027 Mannheim —
    Turkey.                                                                 application for recovery of an advance payment which the
                                                                            Commission made to the defendant in respect of a demon-
                                                                            stration project in the field of the production of energy from
                                                                            crushed motor vehicle scrap metal — the Court (Second
                                                                            Chamber), composed of: R. Schintgen, President of the Chamb-
                                                                            er, G. Hirsch (Rapporteur) and V. Skouris, Judges; J. Mischo,
2. Article 14(1) of Decision No 1/80 is to be interpreted as
                                                                            Advocate General; L. Hewlett, Administrator, and then
    precluding the expulsion of a Turkish national who enjoys a right
                                                                            H.A. Rühl, Principal Administrator, for the Registrar, has given
    granted directly by that decision when it is ordered, following a
                                                                            a judgment on 17 February 2000, in which it:
    criminal conviction, as a deterrent to other aliens without the
    personal conduct of the person concerned giving reason to
    consider that he will commit other serious offences prejudicial to      1. Orders Van Balkom Non—Ferro Scheiding BV to pay to the
    the requirements of public policy in the host Member State.                 Commission of the European Communities the sum of EUR
                                                                                251 649, plus interest on that sum as from 1 May 1995 at the
                                                                                percentage rates, published on the first working day of each
                                                                                month, which the European Monetary Cooperation Fund charges
                                                                                in respect of its euro transactions;
(1) OJ C 357 of 22.11.1997.                                                 2. Dismisses the application as to the remainder;
                                                                            3. Orders Van Balkom Non-Ferro Scheiding BV to pay the costs.
                                                                            (1) OJ C 212 of 12.7.1997.


title: Case T-73/16 P: Order of the General Court of 3 May 2017 — De Nicola v EIB (Appeal — Civil service — EIB staff — Psychological harassment — Non-contractual liability — Errors of law — Appeal manifestly unfounded)

text:
               3.7.2017

               EN

               Official Journal of the European Union

               C 213/30

         Order of the General Court of 3 May 2017 — De Nicola v EIB
   (Case T-73/16 P) (1)

   ((Appeal - Civil service - EIB staff - Psychological harassment - Non-contractual liability - Errors of law - Appeal manifestly unfounded))
   (2017/C 213/40)
   Language of the case: Italian

      Parties

      Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by: G. Ferabecoli, lawyer)

      Other party to the proceedings: European Investment Bank (EIB) (represented initially by G. Nuvoli and T. Gilliams, and subsequently by G. Nuvoli and G. Faedo, acting as Agents, assisted by A. Dal Ferro, lawyer)

      Re:

   Appeal against the judgment of the European Union Civil Service Tribunal (sitting as a single judge) of 18 December 2015, De Nicola v EIB (F-37/12, EU:F:2015:162), seeking to have that judgment set aside in part.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Carlo De Nicola shall bear his own costs and shall pay those incurred by the European Investment Bank (EIB) in the present proceedings.

      (1)  OJ C 118, 4.4.2016.


title: Judgment of the Court (Second Chamber) of 8 July 2004 in Joined Cases C-502/01 and C-31/02 (reference for a preliminary ruling from the Sozialgericht Hannover and the Sozialgericht Aachen): Silke Gaumain-Cerri v Kaufmännische Krankenkasse-Pflegekasse, and Maria Barth v Landesversicherungsanstalt Rheinprovinz (Social security — Freedom of movement for workers — EC Treaty — Council Regulation (EEC) No 1408/71 — Benefits designed to cover the risk of becoming reliant on care — Payment by the care insurance of old age insurance contributions of the carer assisting the reliant person)

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/1

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 8 July 2004
   in Joined Cases C-502/01 and C-31/02 (reference for a preliminary ruling from the Sozialgericht Hannover and the Sozialgericht Aachen): Silke Gaumain-Cerri v Kaufmännische Krankenkasse-Pflegekasse, and Maria Barth v Landesversicherungsanstalt Rheinprovinz (1)

   (Social security - Freedom of movement for workers - EC Treaty - Council Regulation (EEC) No 1408/71 - Benefits designed to cover the risk of becoming reliant on care - Payment by the care insurance of old age insurance contributions of the carer assisting the reliant person)
   (2004/C 217/02)
   Language of the case: German
   In Joined Cases C-502/01 and C-31/02: Reference to the Court under Article 234 EC from the the Sozialgericht Hannover (Germany) (C-502/01) and the Sozialgericht Aachen (Germany) (C-31/02) for a preliminary ruling in the proceedings pending before that court between Silke Gaumain-Cerri and Maria Barth and Kaufmännische Krankenkasse-Pflegekasse, and Landesversicherungsanstalt Rheinprovinz — on the interpretation of the provisions of the EC Treaty and of secondary legislation relating to freedom of movement of Union citizens and in particular of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community as amended and updated by Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet (Rapporteur), R. Schintgen, F. Macken and N. Colneric, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 8 July 2004 in which it has ruled:

               1.

               A benefit such as the payment, by the body providing care insurance, of old age insurance contributions of the third party providing care in the home of a reliant person in the circumstances of the cases in the main proceedings constitutes a sickness benefit to the advantage of the reliant person covered by Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community as amended and updated by Regulation (EC) No 118/97 of 2 December 1996.

               2.

               So far as concerns benefits such as those under German care insurance accorded in the circumstances of the cases in the main proceedings to an insured person resident on the territory of the competent State or to a person resident on the territory of another Member State and covered by that insurance as a member of the family of a worker, the Treaty, in particular Article 17 EC, and Regulation No 1408/71, as amended and updated by Regulation No 118/97, preclude payment of the old age insurance contributions of a national of a Member State in the position of the third party caring for the recipient of those benefits being refused by the competent institution on the ground that that third party or the aforementioned recipient resides in a Member State other than the competent State.

      (1)  OJ C 84 of 6.4.2002.

      OJ C 109 of 4.5.2002.


title: Case T-369/00: Action brought on 4 December 2000 by the Département du Loiret against the Commission of the European Communities

text:
C 61/18                EN                     Official Journal of the European Communities                                        24.2.2001
The applicants oppose the unduly broad scope of the Com-                 Action brought on 4 December 2000 by the Département
mission’s findings and the excessive level of the fine and put           du Loiret against the Commission of the European Com-
forward, in particular, the following arguments:                                                       munities
                                                                                (Case T-369/00)
—     Contrary to the Commission’s findings Opel Nederland                                         (2001/C 61/35)
      did not apply a general strategy vis-à-vis its dealers to
      hinder or restrict all exports of new cars but conducted a
      lawful policy to dissuade irregular sales to unauthorized                              (Language of the case: French)
      resellers in order to protect the integrity of its selective
      distribution system.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 4 December 2000 by the Départe-
                                                                         ment du Loiret, of Orléans (France), represented by Alexandre
—     The applicants do not contest that Opel Nederland took
                                                                         Carnelutti, of the Paris Bar.
      a decision to limit product allocation based on certain
      sales targets. However, this unilateral decision cannot be
      characterised as an agreement with its dealers to restrict         The applicant claims that the Court should:
      exports in violation of Article 81 EC. This decision was
      never implemented nor was it ever communicated to the              —     annul the decision of the Commission of 12 July 2000 in
      dealers. In any event, it left dealers free to engage in                 so far as it declares illegal, and orders the repayment of,
      lawful export sales of their allegedly allocated volumes.                State aid amounting to FRF 48.7 million (100 million in
                                                                               terms of its current value) granted in the form of a
                                                                               preferential price for the purchase of land;
—     The Commission erred in finding that Opel Nederland’s              —     order the Commission to pay the costs.
      bonus policy infringed 81 EC. There were no findings
      that the dealers expressly or impliedly agreed to restrict
                                                                         Pleas in law and principal arguments
      their exports sales in reaction to the bonus policy.
      Moreover, the normal dealer margin was sufficient to
      make export sales profitable. In any event, the bonus              The present action seeks annulment of the same Commission
      policy could not be considered restrictive of exports since        decision as that forming the subject-matter of Case T-366/00
      supplies were never limited.                                       Scott Paper v Commission (1). The applicant is one of the two
                                                                         entities which granted the aid in issue.
                                                                         In support of its claims, the above-mentioned Département
—     There was no agreement to discontinue exports with all             asserts, first of all, that the Commission has applied an
      the dealers of the Opel distribution network in the                excessively narrow construction to the notion of a private
      Netherlands. The alleged commitments to restrict exports           investor, inasmuch as it fails to take account of the nature of
      concern a very small number of dealers and a short                 the local authority, of its investment parameters and of the
      period of time and did not appreciably restrict inter- or          economic considerations underlying its decision to sell a parcel
      intra-brand competition.                                           of developed industrial land. It states in that regard that, in
                                                                         seeking a suitable candidate to set up a business on its territory,
                                                                         a local authority necessarily includes, amongst the economic
                                                                         criteria on which its analysis is based, the specific fiscal revenue
                                                                         which it will receive, such as that arising from the business
As to the level of the fine, the applicants consider that it is          taxes and property taxes resulting from the business set up.
disproportionate and fails to reflect the short duration of the
alleged infringement and the limited number of dealers                   The applicant also complains that the Commission has
involved, the lack of intent of Opel Nederland, the clear                included in the total costs expenditure which has manifestly
evidence of large-scale violations of the Opel selective distri-         not been incurred in the interests of Scott Paper S.A. The
bution system by some dealers, the limited impact on intra-              specific sum in question amounts to FRF 2 372 000, relating
Community trade and, finally, the immediate and effective                to preliminary studies.
corrective action taken by Opel Nederland at its own initiative.
                                                                         Lastly, it maintains that the calculation method used by the
                                                                         Commission is wrong.
                                                                         (1) Not yet published in the Official Journal of the European
                                                                             Communities.


title: Case C-176/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Kamil Hasan v Federal Republic of Germany

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/3

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 29 April 2008 — Kamil Hasan v Federal Republic of Germany
   (Case C-176/08)
   (2008/C 197/05)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicant: Kamil Hasan

      Defendant: Federal Republic of Germany
   Questions referred

               1.

               Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 (1) to be interpreted as meaning that — apart from the second clause of Article 1(C)(5) of the Convention of 28 July 1951 relating to the Status of Refugees (Geneva Convention on Refugees) — refugee status ceases to exist if the refugee's well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83?

               2.

               If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of Directive 2004/83 also require that, in the country of the refugee's nationality,

                           (a)

                           an actor of protection within the meaning of Article 7(1) of Directive 2004/83 be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops,

                           (b)

                           the refugee should not be threatened with serious harm, within the meaning of Article 15 of Directive 2004/83, which leads to the granting of subsidiary protection under Article 18 of that directive, and/or

                           (c)

                           the security situation be stable and the general living conditions ensure a minimum standard of living?

               3.

               In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be

                           (a)

                           measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or

                           (b)

                           assessed having regard to the relaxation of the burden of proof under Article 4(4) of Directive 2004/83?

      (1)  OJ 2004 L 304, p. 12.


               27.1.2007

               EN

               Official Journal of the European Union

               C 20/1

         (2007/C 20/01)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 326, 30.12.2006

   Past publications

      OJ C 310, 16.12.2006

      OJ C 294, 2.12.2006

      OJ C 281, 18.11.2006

      OJ C 261, 28.10.2006

      OJ C 249, 14.10.2006

      OJ C 237, 30.9.2006

   These texts are available on:

               EUR-Lex: http://eur-lex.europa.eu


title: Case T-635/15: Judgment of the General Court of 6 December 2016 — Tuum v EUIPO — Thun (TUUM) (EU trade mark — Application for EU figurative mark TUUM — Earlier national figurative mark THUN — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/29

         Judgment of the General Court of 6 December 2016 — Tuum v EUIPO — Thun (TUUM)
   (Case T-635/15) (1)

   ((EU trade mark - Application for EU figurative mark TUUM - Earlier national figurative mark THUN - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 022/39)
   Language of the case: Italian

      Parties

      Applicant: Tuum Srl (San Giustino, Italy) (represented by: B. Saguatti, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: L. Rampini, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Thun SpA (Bolzano, Italy) (represented by: L. Sergi and G. Muscas, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 3 September 2015 (Case R 2624/2014-1), relating to opposition proceedings between Thun and Tuum.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 September 2015 (Case R 2624/2014-1);

               2.

               Rejects the opposition;

               3.

               Orders EUIPO to bear its own costs and to pay half of the costs incurred by Tuum Srl in the proceedings before the General Court and the Board of Appeal;

               4.

               Orders Thun SpA to bear its own costs and to pay half of the costs incurred by Tuum in the proceedings before the General Court and the Board of Appeal.

      (1)  OJ C 16, 18.1.2016.


title: Joined Cases C-578/10 to C-580/10: Judgment of the Court (Third Chamber) of 26 April 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v L.A.C. van Putten (C-578/10), P. Mook (C-579/10), G. Frank (C-580/10) (Articles 18 EC and 56 EC — Motor vehicles — Use in a Member State of a borrowed private motor vehicle which is registered in another Member State — Taxation of that vehicle in the first Member State on its first use on the national road network)

text:
               16.6.2012

               EN

               Official Journal of the European Union

               C 174/10

         Judgment of the Court (Third Chamber) of 26 April 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v L.A.C. van Putten (C-578/10), P. Mook (C-579/10), G. Frank (C-580/10)
   (Joined Cases C-578/10 to C-580/10) (1)

   (Articles 18 EC and 56 EC - Motor vehicles - Use in a Member State of a borrowed private motor vehicle which is registered in another Member State - Taxation of that vehicle in the first Member State on its first use on the national road network)
   2012/C 174/13
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Staatssecretaris van Financiën

      Defendants: L.A.C. van Putten (C-578/10), P. Mook (C-579/10), G. Frank (C-580/10)

      Re:

   Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 18 EC (now Article 21 TFEU) — National rule imposing a registration tax on the first use of a vehicle on the national road network — Liability to tax of a person residing in the Member State in question who has borrowed a vehicle registered in another Member State from a person residing in that State for the purposes of private use for a brief period in the first Member State

      Operative part of the judgment

   Article 56 EC must be interpreted as meaning that it precludes legislation of a Member State which requires residents who have borrowed a vehicle registered in another Member State from a resident of that State to pay, on first use of that vehicle on the national road network, the full amount of a tax normally due on registration of a vehicle in the first Member State, without taking account of the duration of the use of that vehicle on that road network and without that person being able to invoke a right to exemption or reimbursement where that vehicle is neither intended to be used essentially in the first Member State on a permanent basis nor, in fact, used in that way.

      (1)  OJ C 72, 5.3.2011.


title: Case F-125/15: Action brought on 22 September 2015 — ZZ v Commission

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/80

         Action brought on 22 September 2015 — ZZ v Commission
   (Case F-125/15)
   (2015/C 398/95)
   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

   Annulment of the Commission’s decision not to promote the applicant to grade AD 8 in the 2014 promotion exercise and compensation for the non-material damage which the applicant claims to have suffered.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the decision of the appointing authority of 14 November 2014 not to promote the applicant in the 2014 promotion exercise;

               —

               order the European Commission to pay EUR 15  000 by way of compensation for the non-material damage suffered;

               —

               order the Commission to pay the costs.


title: Case T-259/02: Action brought on 30 August 2002 by Raiffeisen Zentralbank Österreich Aktiengesellschaft against the Commission of the European Communities

text:
C 274/28               EN                     Official Journal of the European Communities                                      9.11.2002
—     breach of Articles 8, 12 and 14 of the European                    The applicant submits first of all that the defendant wrongly
      Convention for the Protection of Human Rights and                  assumed that the arrangements in the present case could affect
      Fundamental Freedoms;                                              trade between States. The Austrian banks’ arrangements were
                                                                         restricted exclusively to Austria. Nor were they liable, given
—     Disregard of general principles of law, such as non-               the nature of the service in question, to partition the Austrian
      discrimination and equal treatment, equal pay for men              market. There is therefore no infringement of Article 81
      and women, respect for private and family life, the                EC. Furthermore, there is no basis for the Commission’s
      principle that the civil status of Community nationals is          requirement to cease the infringement in the future. The
      to be governed by the legislation of their Member                  Commission itself found that the applicant had brought the
      State, proper administration, the protection of legitimate         arrangements to an end on 24 June 1998.
      expectations.
                                                                         The applicant also contests the classification of the infringe-
                                                                         ment as ‘very serious’ for the purposes of the guidelines on
                                                                         the calculation of fines. When assessing the gravity of the
                                                                         infringement, the Commission disregarded in particular the
                                                                         fact that the Bankenrunden were not established by the banks
                                                                         expressly to interfere with competition but, on the contrary,
Action brought on 30 August 2002 by Raiffeisen Zentral-                  took place over 50 years in accordance with Austrian law and
bank Österreich Aktiengesellschaft against the Com-                      — to the end — with the cooperation of State authorities.
            mission of the European Communities
                         (Case T-259/02)                                 Furthermore, the applicant contests the calculation of the fine
                                                                         imposed on it. In disregard of the links in the rural cooperative
                        (2002/C 274/50)                                  sector and inconsistently with settled case-law, the Com-
                                                                         mission attributed to the applicant market shares of undertak-
                                                                         ings in which it had no stake and whose market conduct it
                  (Language of the Case: German)                         could not determine. In addition, the Commission rejected all
                                                                         mitigating grounds put forward without considering them
                                                                         sufficiently. Finally, the Commission misapplied the Leniency
                                                                         Notice ( 1).
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 August 2002 by Raiffeisen
                                                                         (1 ) Commission Notice on the non-imposition or reduction of fines
Zentralbank Österreich Aktiengesellschaft, established in Vien-               in cartel cases (OJ C 207 of 18.7.1996, p. 4).
na, represented by S. Völcker, Lawyer.
The applicant claims that the Court should:
—     annul the Commission decision of 11 June 2002
      (C(2002)2091 final) in so far as it relates to the applicant;
—     in     the    alternative,     reduce     the      fine    of
      EUR 30 380 000 imposed on the applicant in the                     Action brought on 2 September 2002 by Bank Austria
      defendant’s decision;                                              Creditanstalt AG against the Commission of the European
                                                                                Communities
—     order the defendant to pay the costs.
                                                                                (Case T-260/02)
Pleas in law and main arguments                                                                      (2002/C 274/51)
The proceeding conducted by the defendant was directed                                        (Language of the Case: German)
against regular meetings of banks in Austria (‘Bankenrunden’).
By the contested decision the Commission found that the
applicant — together with seven other Austrian banking
institutions — had infringed Article 81 EC by participating in
agreements and concerted practices concerning prices, charges            An action against the Commission of the European Communi-
and advertising measures, designed to restrict competition on            ties was brought before the Court of First Instance of the
the Austrian banking market from 1 January 1995 until                    European Communities on 2 September 2002 by Bank
24 June 1998. The Commission imposed fines on the banks                  Austria Creditanstalt AG, established in Vienna, represented
concerned.                                                               by C. Zschocke and J. Beninca, Lawyers.