title: Case F-57/12: Action brought on 28 May 2012 — ZZ v Commission

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/37

         Action brought on 28 May 2012 — ZZ v Commission
   (Case F-57/12)
   2012/C 227/63
   Language of the case: Italian

      Parties

      Applicant: ZZ (represented by: G. Cipressa, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Application for annulment of the Commission’s decision to reduce the applicant’s invalidity allowance for the months of June to September 2011.

      Form of order sought

               —

               Annul the Commission’s decision, in so far as, ultraque incerta sunt, it exists, rejecting the request of 19 October 2011;

               —

               Annul the Commission’s decision, in so far as, ultraque incerta sunt, it exits, rejecting the request of 20 October 2011;

               —

               Annul each of the decisions, if and to the extent that, ultraque incerta sunt, they exist, on the basis of which the Commission unlawfully deducted from each monthly instalment of the invalidity allowance to which the applicant was entitled for the months of June to September 2011 sums totalling EUR 1 661, and annul the decisions, if and to the extent that they exist, to make those deductions;

               —

               Order the Commission to pay to the applicant the sum of EUR 1 661, together with interest on that sum at the rate of 15 % per annum, with annual capitalisation, from 27 October 2011 until the date on which sums in question are actually paid,

               —

               Order the Commission to pay the costs.


title: Case C-298/11: Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 14 June 2011 — Dobrudzhanska petrolna kompania AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/22

         Reference for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 14 June 2011 — Dobrudzhanska petrolna kompania AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite
   (Case C-298/11)
   2011/C 232/35
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Varna

      Parties to the main proceedings

      Applicant: Dobrudzhanska petrolna kompania AD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’– gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite

      Questions referred

               1.

               Is Article 80(1)(a) and (b) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted as meaning that, where there are supplies between connected persons, in so far as the consideration is lower than the open market value, the taxable amount is the open market value of the transaction only if the supplier or the recipient does not qualify for the right to deduct in full the input tax chargeable on the purchase or production of the goods supplied?

               2.

               Is Article 80(1)(a) and (b) of Directive 2006/112 to be interpreted as meaning that, if the supplier has exercised the right to deduct in full the input tax on goods and services which are the subject of subsequent supplies between connected persons at a value lower than the open market value, and that right to deduct input tax has not been corrected under Articles 173 to 177 of the Directive and the supply is not subject to a tax exemption within the meaning of Articles 132, 135, 136, 371, 375, 376, 377, 378(2) or 380 to 390 of the Directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value?

               3.

               Is Article 80(1)(a) and (b) of Council Directive 2006/112 to be interpreted as meaning that, if the recipient has exercised the right to deduct in full the input tax on goods and services which are the subject of subsequent supplies between connected persons with a lower value than the open market value, and that right to deduct input tax has not been corrected under Articles 173 to 177 of the Directive, a Member State is not permitted to adopt measures whereby the taxable amount is exclusively the open market value?

               4.

               Does Article 80(1)(a) and (b) of Directive 2006/112 constitute an exhaustive list of cases representing the circumstances in which a Member State is permitted to take measures whereby the taxable amount in respect of supplies is to be the open market value of the transaction?

               5.

               Is a provision of national law such as Article 27(3)(1) of the Zakon za danak varhu dobavenata stoynost (Law on VAT) permissible in cases other than those listed in Article 80(1)(a), (b) and (c) of Directive 2006/112?

               6.

               In a case such as the present, does Article 80(1)(a) and (b) of Directive 2006/112 have direct effect, and may the domestic court apply it directly?

      (1)  OJ 2006 L 347, p. 1;


title: Case C-288/11 P: Appeal brought on 8 June 2011 by Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH against the judgment delivered by the General Court (Eighth Chanber) on 24 March 2011 in Joined Cases T-443/08 and T-455/08 Freistaat Sachsen and Others v European Commission

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/16

         Appeal brought on 8 June 2011 by Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH against the judgment delivered by the General Court (Eighth Chanber) on 24 March 2011 in Joined Cases T-443/08 and T-455/08 Freistaat Sachsen and Others v European Commission
   (Case C-288/11 P)
   2011/C 252/30
   Language of the case: German

      Parties

      Appellants: Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH (represented by: M. Núñez-Müller and J. Dammann, Rechtsanwälte)

      Other parties to the proceedings: Freistaat Sachsen, Land Sachsen-Anhalt, Federal Republic of Germany, Arbeitsgemeinschaft Deutscher Verkehrsflughäfen e.V. (ADV), European Commission

      Form of order sought

   The appellants contend that the Court should:

               —

               set aside paragraph 4 of the operative part of the contested judgment, by virtue of which the action in Case T-455/08 was dismissed as to the remainder, and the related decision on costs in paragraph 6;

               —

               give final judgment in the matter and also uphold the action in Case T-455/08 in so far as it seeks annulment of the contested decision to the extent that the European Commission finds therein that the measure adopted by Germany providing capital contributions for the construction of a new southern runway and related airport infrastructure at Leipzig Halle Airport constitutes State aid for the purposes of Article 107(1) TFEU (formerly Article 87(1) EC);

               —

               order the European Commission to pay both the costs of the appeal proceedings and — supplementing paragraph 7 of the contested operative part — the costs of the proceedings at first instance in Case T-455/08.

      Pleas in law and main arguments

   The present appeal concerns the judgment by which the General Court partially dismissed the appellants’ action for partial annulment of Commission Decision 2009/948/EC on measures by Germany to assist DHL and Leipzig Halle Airport.
   The content of the appeal is limited. The appeal does not challenge paragraph 3 of the operative part of the judgment, by which the General Court partially annulled Article 1 of the contested decision; on the contrary, only paragraph 4 is challenged, by which the General Court dismissed the ‘remainder’ of the action. The approval under Article 107(3) TFEU granted by the second half of the sentence in Article 1 of the contested decision is therefore also not challenged; on the contrary, only the classification of the financing measures at issue as aid for the purposes of Article 107(1) TFEU is challenged.
   The appellants base their appeal on the following pleas in law.
   The contested judgment infringes Article 107(1) TFEU. Contrary to the view of the General Court, Flughafen Leipzig/Halle GmbH is not an undertaking within the meaning of Article 107(1) TFEU with regard to the infrastructure measures at issue and their financing. The construction of regional airport infrastructure does not constitute an economic activity. Consequently, the aid provisions are inapplicable to the present circumstances.
   The contested judgment infringes furthermore the prohibition on retroactivity, the requirement of legal certainty and the protection of legitimate expectations. In the contested decision, the Commission applied the communication on Community guidelines on financing of airports and start-up aid to airlines departing from regional airports — which was published on 9 December 2005 — retroactively to the infrastructure measures which had been decided upon on 4 November 2004. The General Court finds that the 2005 guidelines were not applied retroactively and thereby upholds a contradictory and substantively incorrect legal position created by the Commission, in breach of the abovementioned principles. The General Court moeover fails to take account of the fact that the 1994 aviation guidelines — under which the State financing of airport infrastructure is regarded as a general measure and is therefore not subject to aid control — continued to apply.
   The contested judgment also infringes Article 1(b)(v) or Articles 17 and 18 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) because the General Court did not apply the provisions of that regulation on existing aid to the capital contributions of 4 November 2004 classified by the General Court as aid.
   The contested judgment also violates, finally, the division of powers under the TFEU. By its interpretation of the concept of ‘undertaking’ in Article 107(1) TFEU, the General Court infringes primary law, in that it subjects to aid control Member State measures which in fact are not subject to the law on aid.
   Finally, the appellants submit that the contested judgment also infringes the duty under Article 81 of the Rules of Procedure of the General Court to state reasons for judgments because the grounds of the judgment are incomplete.

      (1)  OJ 1999 L 83, p. 1.


title: Case T-559/10: Action brought on 7 December 2010 — Laboratoire Garnier v OHIM (natural beauty)

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/16

         Action brought on 7 December 2010 — Laboratoire Garnier v OHIM (natural beauty)
   (Case T-559/10)
   2011/C 38/30
   Language in which the application was lodged: English

      Parties

      Applicant: Laboratoire Garnier et Cie (Paris, France) (represented by: R. Dissmann and A. Steegmann, lawyers)

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

      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 23 September 2010 in case R 971/2010-1;

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: The figurative mark ‘natural beauty’ for goods in class 3 — Community trade mark application No 8294233

      Decision of the Examiner: Refused the application for a Community trade mark

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of articles 7(1)(b) and (c) of Council Regulation No 207/2009, according to article 65 (2) of Council Regulation No 207/2009, as the Board of Appeal wrongly came to the conclusion that these absolute grounds of refusal apply to the contested trade mark.


title: Judgment of the Court (Sixth Chamber) of  15 December 2005  in Case C-67/05: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — Community action in the field of water policy — Failure to transpose within the prescribed period)

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/17

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 15 December 2005
   in Case C-67/05: Commission of the European Communities v Federal Republic of Germany (1)

   (Failure of a Member State to fulfil obligations - Directive 2000/60/EC - Community action in the field of water policy - Failure to transpose within the prescribed period)
   (2006/C 36/32)
   Language of the case: German
   In Case C-67/05 Commission of the European Communities (Agents: U. Wölker and S. Pardo Quintillán) v Federal Republic of Germany (Agent: U. Forsthoff) — action under Article 226 EC for failure to fulfil obligations, brought on 11 February 2005 — the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, J.-P. Puissochet and A Ó Caoimh (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 15 December 2005, in which it:

               1.

               Declares that, by not adopting within the prescribed period, all of the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 82 of 02.04.2005


title: Case C-383/13: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 5 July 2013 — M.G., N.R.; other party: Staatssecretaris van Veiligheid en Justitie

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/34

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 5 July 2013 — M.G., N.R.; other party: Staatssecretaris van Veiligheid en Justitie
   (Case C-383/13)
   2013/C 260/62
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

   Appellants: M.G.
   N.R.
   Other party: Staatssecretaris van Veiligheid en Justitie

      Questions referred

               1.

               Does infringement by the national administrative authority of the general principle of respect for the rights of the defence, which is also given expression in Article 41(2) of the Charter of Fundamental Rights of the European Union, (1) in (the course of the preparation of) an extension decision within the terms of Article 15(6) of Directive 2008/115/EC (2) of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, automatically and in all cases mean that the detention must be lifted?

               2.

               Does that general principle of respect for the rights of the defence leave scope for a balancing of interests in which, in addition to the seriousness of the infringement of that principle and the interests of the foreign national adversely affected thereby, the interests of the Member State served by the extension of the detention measure are also taken into account?

      (1)  OJ 2000 C 364, p. 1.

      (2)  OJ 2008 L 348, p. 98.


title: Case T-436/12: Judgment of the General Court of 8 July 2015 — Deutsche Rockwool Mineralwoll v OHIM — Ceramicas del Foix (Rock & Rock) (Community trade mark — Invalidity proceedings — Community figurative mark Rock & Rock — Earlier national word marks MASTERROCK, FIXROCK, FLEXIROCK, COVERROCK and CEILROCK — Relative ground for refusal — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009)

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/30

         Judgment of the General Court of 8 July 2015 — Deutsche Rockwool Mineralwoll v OHIM — Ceramicas del Foix (Rock & Rock)
   (Case T-436/12) (1)

   ((Community trade mark - Invalidity proceedings - Community figurative mark Rock & Rock - Earlier national word marks MASTERROCK, FIXROCK, FLEXIROCK, COVERROCK and CEILROCK - Relative ground for refusal - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009))
   (2015/C 279/37)
   Language of the case: English

      Parties

      Applicant: Deutsche Rockwool Mineralwoll GmbH & Co. OHG (Gladbeck, Germany) (represented by: J. Krenzel, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: L. Rampini, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Ceramicas del Foix, SA (Barcelona, Spain) (represented by: M. Pérez Serres and R. Guerras Mazón, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 10 July 2012 (Case R 495/2011-2) concerning invalidity proceedings between Deutsche Rockwool Mineralwoll GmbH & Co. OHG and Ceramicas del Foix, SA.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Deutsche Rockwool Mineralwoll GmbH & Co. OHG to pay the costs.

      (1)  OJ C 379, 8.12.2012.


title: Case F-132/14: Action brought on 17 November 2014  — ZZ v European Parliament

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/52

         Action brought on 17 November 2014 — ZZ v European Parliament
   (Case F-132/14)
   (2015/C 034/64)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: L. Levi, lawyer)

      Defendant: European Parliament

      Subject-matter and description of the proceedings

   Annulment of the decisions taken by the European Parliament to implement the judgment of the Civil Service Tribunal of 12 December 2013 in Case F-129/12 CH v Parliament, refusing to open an administrative inquiry on the applicant’s complaint alleging harassment, to pay the applicant additional financial compensation and to grant the applicant all the benefits and ancillary benefits linked to the existence of his contract as an accredited parliamentary assistant, the termination of which was annulled by the Tribunal in its aforementioned judgment, and an application for damages in respect of the material and non-material loss allegedly incurred.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the decision of the European Parliament of 3 March 2014, in so far as it refused to open an administrative inquiry relating to the applicant’s complaint alleging harassment, and the Parliament’s decision of 2 April 2014, in so far as it refused to pay the applicant the sum of EUR 5  686, those decisions showing the measures taken by the institution intended, according to that institution, to implement the judgment of the Civil Service Tribunal of 12 December 2013, in Case F-129/12, CH v European Parliament;

               —

               annul the decision of the European Parliament dated 4 August 2014, received on 7 August 2014, rejecting the applicant’s complaint of 16 April 2014, in so for as it refused to pay the applicant the sum of EUR 5  686, to compensate him for the loss incurred as a result of the delay in obtaining an ACA badge, a professional email address and access to the European Parliament’s intranet, to open an administrative inquiry on his complaint of harassment and to compensate the applicant for the non-material harm incurred as a result of that latter refusal;

               —

               order the defendant to pay damages, fixed at EUR 1 44  000, to compensate the applicant for the material loss incurred;

               —

               order the defendant to pay damages, fixed on equitable principles at EUR 60  000, to compensate the applicant for the non-material loss incurred;

               —

               order the defendant to pay interest, fixed at the European Central Bank rate, increased by 2 points, on the aforementioned sums of EUR 5  686 and EUR 1 44  000;

               —

               order the defendant to pay all the costs.


title: Case T-441/11: Judgment of the General Court of 9 December 2014  — Peftiev v Council (Common foreign and security policy — Restrictive measures adopted against Belarus — Freezing of funds — Obligation to state reasons — Rights of the defence — Right to be heard — Error of assessment)

text:
               2.2.2015

               EN

               Official Journal of the European Union

               C 34/31

         Judgment of the General Court of 9 December 2014 — Peftiev v Council
   (Case T-441/11) (1)

   ((Common foreign and security policy - Restrictive measures adopted against Belarus - Freezing of funds - Obligation to state reasons - Rights of the defence - Right to be heard - Error of assessment))
   (2015/C 034/34)
   Language of the case: English

      Parties

      Applicant: Vladimir Peftiev (Minsk, Belarus) (represented by: V. Vaitkutė Pavan, A. Smaliukas, E. Matulionyte, T. Milašauskas, lawyers, and M. Shenk, Solicitor)

      Defendant: Council of the European Union (represented by: M. Bishop and F. Naert, acting as Agents)

      Intervener in support of the defendant: European Commission (represented by: T. Scharf and E. Paasivirta, acting as Agents)

      Re:

   Application for annulment of Council Decision 2011/357/CFSP of 20 June 2011 amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2011 L 161, p. 25), Council Regulation (EU) No 588/2011 of 20 June 2011 amending Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2011 L 161, p. 1), Council Decision 2011/666/CFSP of 10 October 2011 amending Decision 2010/639/CFSP concerning restrictive measures against Belarus (OJ 2011 L 265, p. 17), Council Implementing Regulation (EU) No 1000/2011 of 10 October 2011 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2011 L 265, p. 8), Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1), Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 307, p. 7), Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 (OJ 2013 L 288, p. 69), and Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2013 L 288, p. 1), in so far as those acts concern the applicant.

      Operative part of the judgment

   The Court:

               1)

               Annuls Council Decision 2011/357/CFSP of 20 June 2011, amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus, Council Regulation (EU) No 588/2011 of 20 June 2011 amending Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus, Council Decision 2011/666/CFSP of 10 October 2011 amending Decision 2010/639/CFSP concerning restrictive measures against Belarus, Council Implementing Regulation (EU) No 1000/2011 of 10 October 2011 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus, and Council Implementing Regulation (EU) No 1017/2012 of 6 November 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus, in so far as those acts concern Mr Vladimir Peftiev;

               2)

               Dismisses the action as being inadmissible in so far as it concerns Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642 and Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus;

               3)

               Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Peftiev;

               4)

               Orders the European Commission to bear its own costs.

      (1)  OJ C 290, 1.10.2011.


title: Case T-421/09: Action brought on 19 October 2009 — DEI v Commission

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/28

         Action brought on 19 October 2009 — DEI v Commission
   (Case T-421/09)
   2010/C 11/55
   Language of the case: Greek

      Parties

      Applicant: Dimosia Epikhirisi Ilektrismou A.E. (Public Power Corporation) (Athens, Greece) (represented by: P. Anestis, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul the decision;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   On 5 March 2008 the Commission adopted Decision C(2008) 824 on the granting or maintaining in force by the Hellenic Republic of rights in favour of Dimosia Epikhirisi Ilektrismou A.E. for the extraction of lignite, by which the Commission found that the Hellenic Republic had infringed Article 86(1) EC, in conjunction with Article 82 EC, to the extent that it granted and maintained preferential rights in favour of the applicant for the exploitation of lignite in Greece, thereby creating inequality of opportunity between economic operators as regards access to primary fuels for the generation of electricity and enabling the applicant to maintain or reinforce its dominant position on the Greek wholesale electricity market.
   The applicant challenged that decision by bringing an action for annulment before the Court of First Instance of the European Communities, which was registered as Case T-169/08 and is pending.
   The present action is for annulment, pursuant to the fourth paragraph of Article 230 EC, of Commission Decision C(2009) 6244 of 4 August 2009 (‘the contested decision’) ‘establishing the specific measures to correct the anti-competitive effects of the infringement identified in the Commission Decision of 5 March 2008 on the granting or maintaining in force by the Hellenic Republic of rights in favour of Public Power Corporation S.A. for extraction of lignite’.
   Under the first plea for annulment, the applicant submits that the Commission erred in law and manifestly misappraised the facts because (i) it defined the relevant markets incorrectly, failing to take into account that in respect of the generation of electricity extracted lignite also faces competition from other fuels, such as natural gas, which constitute substitutes for lignite and, therefore, belong to the same market and (ii) it assessed incorrectly the geographical extent of the lignite supply market in Greece for the generation of electricity; therefore, the market for lignite supply extends to the broader region of the Balkans.
   Under the second plea for annulment, the applicant contends that the contested decision is vitiated by an error of law and manifest misappraisal of the facts in relation to the need to impose corrective measures. First, the Commission erred because it did not take account, when determining the corrective measures, of the legal arguments and the factual material that is included in the administrative procedure and in the annulment proceedings concerning the decision of March 2008. Second, the Commission incorrectly rejected the important new information submitted by DEI regarding the further opening of the wholesale electricity supply market, because it allegedly did not amount to significant new facts. Third, the contested decision is based on an incorrect calculation of the quantities of lignite that must be given to competitors in order to correct the alleged infringement.
   Under the third plea for annulment, the applicant submits that the contested decision does not comply with the rules regarding the stating of reasons, but simply repeats in summary form some of the applicant’s arguments during the administrative procedure without, however, answering them. Similarly, the ground in the decision relating to the geographical extent of the lignite market does not enable the addressee of the decision to understand the defendant’s final conclusions on that point. Lastly, in the applicant’s submission, the decision does not state reasons as to why 40 % is considered to be the necessary proportion of known exploitable lignite reserves that must be made available to competitors of DEI.
   Finally, under the fourth plea for annulment, the applicant maintains that the contested decision infringes the principles of freedom of contract and of proportionality. In so far as the decision prohibits persons who will in the future acquire by tender procedures exploitation rights in respect of the deposits in the areas of Drama, Elassona, Vegora and Vevi from selling quantities of extracted lignite to DEI, it automatically restricts excessively the contractual freedom both of the applicant and of the third parties. Furthermore, in view of significant developments that demonstrate the gradual opening of the Greek electricity market, the exclusion of DEI from tender procedures for the grant of all new lignite rights and the unjustified restriction of its business activity constitute unnecessary measures and are disproportionate to the alleged infringement.


title: Case C-383/09: Judgment of the Court (Fourth Chamber) of 9 June 2011 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Habitats Directive — Inadequacy of measures taken to protect the species Cricetus cricetus (European hamster) — Deterioration of habitats)

text:
               30.7.2011

               EN

               Official Journal of the European Union

               C 226/3

         Judgment of the Court (Fourth Chamber) of 9 June 2011 — European Commission v French Republic
   (Case C-383/09) (1)

   (Failure of a Member State to fulfil obligations - Habitats Directive - Inadequacy of measures taken to protect the species Cricetus cricetus (European hamster) - Deterioration of habitats)
   2011/C 226/04
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: O. Beynet and D. Recchia, Agents)

      Defendant: French Republic (represented by: G. de Bergues and S. Menez, Agents)

      Re:

   Failure of a Member State to fulfil its obligations — Failure to take the measures necessary to comply with Article 12(1)(d) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora de (OJ 1992 L 206, p. 7) — Inadequacy of measures taken to protect the species Cricetus cricetus (European Hamster) — Deterioration of habitats

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to establish a programme of measures to ensure strict protection of the European hamster (Cricetus cricetus), the French Republic has failed to fulfil its obligations under Article 12(1)(d) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2006/105/EC of 20 November 2006;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 312, 19.12.2009.


title: Case C-234/17: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 May 2017 — XC and Others

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/27

         Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 4 May 2017 — XC and Others
   (Case C-234/17)
   (2017/C 239/33)
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicants: XC, YB, ZA

      Question referred

   Is EU law, in particular Article 4(3) TEU in conjunction with the principles of equivalence and effectiveness inferred from it, to be interpreted as requiring the Oberster Gerichtshof (Supreme Court, Austria), upon application by the person concerned, to review a final decision delivered by a criminal court with respect to an alleged infringement of EU law (in this case, Article 50 of the Charter of Fundamental Rights of the European Union and Article 54 of the Convention implementing the Schengen Agreement), where national law (Paragraph 363a of the Strafprozeßordnung (Austrian Code of Criminal Procedure)) provides for such a review only with respect to an alleged violation of the European Convention on Human Rights and Fundamental Freedoms or one of the protocols thereto?


title: Case C-472/09 P: Appeal brought on 26 November 2009 by Territorio Histórico de Álava — Diputación Foral de Álava against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava — Diputación Foral de Álava and Comunidad Autónoma del País Vasco — Gobierno Vasco and Others v Commission of the European Communities

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/12

         Appeal brought on 26 November 2009 by Territorio Histórico de Álava — Diputación Foral de Álava against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava — Diputación Foral de Álava and Comunidad Autónoma del País Vasco — Gobierno Vasco and Others v Commission of the European Communities
   (Case C-472/09 P)
   2010/C 37/14
   Language of the case: Spanish

      Parties

      Appellant: Territorio Histórico de Álava — Diputación Foral de Álava (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

      Other parties to the proceedings: Comunidad Autónoma del País Vasco — Goberierno Vasco, Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya, Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa, Confederación Empresarial Vasca (Confebask), Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámera Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, Commission of the European Communities and Comunidad Autónoma de la Rioja

      Form of order sought

               —

               declare the appeal to be admissible and well founded;

               —

               set aside the judgment under appeal;

               —

               grant the form of order sought at first instance, that is the alternative claim to annul Article 3 of the contested decision;

               —

               alternatively, refer the case back to the Court of First Instance and, order it to examine the evidence rejected;

               —

               order the Commission to pay the costs of the proceedings at first instance and on appeal and the intervener, the Comunidad Autónoma de la Rioja, to pay the costs of the proceedings at first instance.

      Pleas in law and main arguments

               1.

               The CFI erred in law by holding, in this case, that there are no exceptional circumstances which give rise to a legitimate expectation that the tax measure at issue is lawful, so as to preclude an order to recover the aid in accordance with Article 14(1) of Regulation No 659/1999 (1) which relates to the principle of the protection of legitimate expectations. The CFI distorted the issues in the case and infringed the rule that the parties should be heard. It also misinterpreted the case-law concerning the duty to give reasons for a decision. The Court of First Instance erred in law by failing to comply with the procedural rules relating to the assessment of evidence by disregarding the substantive content of documents submitted for the purposes of the written procedure.
               Neither the formal difference between the tax measure at issue and the measure which is the subject of Decision 93/337 (2), nor the fact that the Commission could have justified the selectivity criterion on information other than that which is explicitly mentioned in Decision 93/337, nor the finding of incompatibility in Decision 93/337, constitute sufficient reasons in law for the CFI not to determine whether there existed an exceptional circumstance that by itself or in combination with other circumstances in this case could preclude the Commission from ordering the recovery of the aid to which the contested decision relates.
               By holding that the measures at issue in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 are not analogous to the tax measure at issue for technical tax reasons and the because of amount of the subsidy, the CFI has distorted the issues between the parties, has disregarded the rule that the parties should be heard and has clearly misinterpreted the case-law specifically relating to the duty to state reasons.
               The CFI erred in law by holding that the Commission's position with respect to the tax exemption and/or the 1993 tax credit — which, as is clear from the from the pleadings, has not been assessed by the CFI, contrary to the Rules of Procedure — does not constitute an exceptional circumstance which could have justified some kind of legitimate expectation that the tax measure was lawful which would have precluded the recovery of the aid under Article 14(1) of Regulation on the ground that it would be contrary to the principle of the protection of legitimate expectations.

               2.

               The CFI erred in law by failing to comply with Article 14(1) of Regulation No 659/1999 with respect to the principle of proportionality that precludes the recovery of investment aid which does not exceed the limit for regional aid.
               The CFI has breached the general principle of proportionality by not finding that the Commission breached that principle by demanding the recovery of all the amounts granted in accordance with the tax credit of 45 % of the investments rather than only the amounts which exceeded the maximum limit for regional aid in the Basque Country.

               3.

               The CFI erred in law by failing to comply with the procedural rules regarding the assessment of evidence and by deciding not to require disclosure of the evidence requested by the applicant with respect to certain Commission documents that, in the light of the arguments used by the CFI in order to dismiss the applicant's application, are essential to the defence of its interests. The CFI also infringed the right to a fair trial, the principle of equality of arms and the rights of defence.
               The CFI, by failing to order the disclosure of the evidence requested, has infringed the fundamental right to a fair trial to which the applicant is entitled, by refusing to assess evidence which is essential to the applicant's case thereby infringing its rights of defence, since its application was dismissed on the ground that it had not proved what it specifically sought to establish with the evidence which was not produced: if not the Commission's final position with respect to the complaint of 1994 against the tax rules of 1993 (including a tax credit), which are measures which are essentially the same as the contested measure, which rejected that complaint, then at least the attitude of the Commission which would constitute an exceptional circumstance in so far as its conduct gave rise to a legitimate expectation that the 1993 tax measures were lawful, which led to the adoption of the contested tax measure.

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

      (2)  Commission Decision of 10 May 1993 concerning a scheme of tax concessions for investment in the Basque country (OJ 1993 L 134, p. 25).


title: Case T-564/14: Action brought on 28 July 2014 — Ahmed Mohamed Saleh Baeshen v OHIM

text:
               27.10.2014

               EN

               Official Journal of the European Union

               C 380/15

         Action brought on 28 July 2014 — Ahmed Mohamed Saleh Baeshen v OHIM
   (Case T-564/14)
   2014/C 380/20
   Language of the case: English

      Parties

      Applicant: Ahmed Mohamed Saleh Baeshen & Co. (Jeddah, Saudi Arabia) (represented by: M. Vanhegan, Barrister)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 May 2014 given in Case R 687/2014-2;

               —

               Order the defendant to bear the costs of proceedings.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which an application for revocation has been made: The word mark ‘TEAVANA’ for services in Class 35 — Community trade mark No 4 0 98  588

      Proprietor of the Community trade mark: The other party to the proceedings before the Board of Appeal, Teavana Corporation

      Party applying for revocation of the Community trade mark: The applicant

      Decision of the Cancellation Division: Revoked the CTM proprietor’s right in respect of Community trade mark No 4 0 98  588 in its entirety

      Decision of the Board of Appeal: Rejected the appeal as inadmissible

      Pleas in law: Infringement of Articles 51(1)(a), 59 and 75 CTMR.


title: Case T-352/05: Judgment of the General Court of 28 September 2011 — Greece v Commission (EAGGF — Guarantee section — Expenditure excluded from Community financing — Specific measures for certain agricultural products in favour of the minor islands of the Aegean Sea — Fruit and vegetables — Raw tobacco — Goat and sheepmeat — Non-compliance with the payment deadlines — Proportionality — Increase in the flat-rate correction for recurrent weaknesses)

text:
               12.11.2011

               EN

               Official Journal of the European Union

               C 331/16

         Judgment of the General Court of 28 September 2011 — Greece v Commission
   (Case T-352/05) (1)

   (EAGGF - Guarantee section - Expenditure excluded from Community financing - Specific measures for certain agricultural products in favour of the minor islands of the Aegean Sea - Fruit and vegetables - Raw tobacco - Goat and sheepmeat - Non-compliance with the payment deadlines - Proportionality - Increase in the flat-rate correction for recurrent weaknesses)
   2011/C 331/27
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented initially by: G. Kanellopoulos and S. Charitaki, later by: I Chalkias and S. Papaïoannou, Agents)

      Defendant: European Commission (represented by: H. Tserepa-Lacombe and L. Visaggio, Agents, assisted by N. Korogiannakis, lawyer)

      Re:

   Annulment of Commission Decision 2005/579/EC of 20 July 2005 disallowing from Community financing certain expenditure incurred by the Member States under the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section (OJ 2005 L 199, p. 84) in so far as it excludes certain expenditure carried out by the Hellenic Republic in the context of Specific measures for certain agricultural products in favour of the minor islands of the Aegean Sea and in the fruit and vegetables, raw tobacco and goat and sheepmeat sectors.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 296, 26.11.2005.


title: Judgment of the Court (Fourth Chamber) of 14 July 2005 in Case C-142/04: Reference for a preliminary ruling from the Symvoulio tis Epikrateias in Maria Aslanidou v Ypourgos Ygeias & Pronoias (Directive 92/51/EEC — Workers — Recognition of diplomas — Occupational therapist)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/18

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 14 July 2005
   in Case C-142/04: Reference for a preliminary ruling from the Symvoulio tis Epikrateias in Maria Aslanidou v Ypourgos Ygeias & Pronoias (1)

   (Directive 92/51/EEC - Workers - Recognition of diplomas - Occupational therapist)
   (2005/C 217/35)
   Language of the case: Greek
   In Case C-142/04: reference for a preliminary ruling under Article 234 EC from the Symvoulio tis Epikrateias (Greece), made by decision of 30 December 2003, received at the Court on 17 March 2004, in the proceedings between Maria Aslanidou and Ypourgos Ygeias & Pronoias — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, N. Colneric and K. Schiemann (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 14 July 2005, in which it ruled:
   Where national measures transposing 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 have not been adopted within the period prescribed in Article 17 thereof, a national of a Member State may rely on Article 3(a) of that directive in order to obtain, in the host Member State, authorisation to pursue a regulated profession such as that of occupational therapist.
   That possibility may not be made dependent on official recognition of the qualifications of the person concerned by the competent national authorities.
   The compensatory measures referred to in Article 4(1) of Directive 92/51 may be imposed on the person concerned only in so far as they are provided for in the national legislation in force at the time of processing the application in question.

      (1)  OJ C 106 of 30.04.2004.


title: Case C-560/14: Reference for a preliminary ruling from the Supreme Court (Ireland) made on 5 December 2014 — MM v Minister for Justice and Equality, Ireland and the Attorney General

text:
               9.3.2015

               EN

               Official Journal of the European Union

               C 81/5

         Reference for a preliminary ruling from the Supreme Court (Ireland) made on 5 December 2014 — MM v Minister for Justice and Equality, Ireland and the Attorney General
   (Case C-560/14)
   (2015/C 081/06)
   Language of the case: English

      Referring court

   Supreme Court, Ireland

      Parties to the main proceedings

      Applicant: MM

      Defendant: Minister for Justice and Equality, Ireland and the Attorney General

      Question referred

               1.

               Does the ‘right to be heard’ in European Union law require that an applicant for subsidiary protection, made pursuant to Council Directive 2004/83/EC (1), be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, respectively?

      (1)  Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, p. 12.


title: Case T-12/06: Action brought on  19 January 2006  — Deltafina v Commission

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/49

         Action brought on 19 January 2006 — Deltafina v Commission
   (Case T-12/06)
   (2006/C 60/91)
   Language of the case: Italian
   Parties

      Applicant: Deltafina (Rome, Italy) (represented by: F. Di Gianni, R. Jacchia, A. Terranova, I. van Bael and J. F. Bellis)

      Defendant: European Commission
   Form of order sought
   The applicant claims that the Court should:

               —

               annul the fine or, in the alternative, reduce the fine imposed on it pursuant to Article 2 of the Decision;

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant in the present case seeks the annulment of the fine of EUR 30 million imposed on it pursuant to Article 2 of the contested Decision, which is the same as that in issue in Case T-11/06 Romana Tabacchi v Commission, on the ground that the Commission unlawfully deprived it of the immunity from fines which was granted pursuant to point 8(b) of the Commission Notice of 2002 on immunity from fines and reduction of fines in cartel cases (1).
   It should be explained in this respect that the defendant revoked the conditional immunity granted to the applicant because of the latter's announcement, made during a meeting of the Governing Board of the Associazione Professionale Trasformatori Tabacchi Italiani (Italian Professional Association of Tobacco Processors), that it had made a request for favourable treatment to the Commission.
   In support of its claims, the applicant pleads:

               —

               that it informed the Commission in advance that it would be impossible for it not to reveal that it had submitted the request for favourable treatment;

               —

               that the Commission had accepted that it was impossible for Deltafina not to reveal that it had submitted a request for favourable treatment;

               —

               that the Commission officials did not inform Deltafina that its announcement that it had submitted a request for favourable treatment would entail the loss of conditional immunity;

               —

               that Deltafina did not submit its own request for favourable treatment in concert with its principal competitors; and

               —

               that Deltafina's disclosure that it had submitted a request for favourable treatment in no way prejudiced the Commission's investigation.

         As regards the reduction of the fine, the applicant submits that:

               —

               The basic amount of the fine imposed by the Commission is clearly excessive and disproportionate, having regard to the modest value of the market concerned, Deltafina's reduced turnover and the fact that the breach did not have any impact on the market;

               —

               The Commission erroneously attributed Deltafina's conduct to its parent company;

               —

               The reduction of the fine and the assessment of mitigating circumstances do not adequately reflect the specific facts of the case, in the light, in particular, of the new interpretative practices under the 2002 Notice.

      (1)  OJ C 45, 19.2.2002, p. 3.


title: Case T-672/14: Action brought on 19 September 2014  — August Wolff and Remedia v Commission

text:
               8.12.2014

               EN

               Official Journal of the European Union

               C 439/31

         Action brought on 19 September 2014 — August Wolff and Remedia v Commission
   (Case T-672/14)
   (2014/C 439/42)
   Language of the case: German

      Parties

      Applicants: Dr. August Wolff GmbH & Co. KG Arzneimittel (Bielefeld, Germany), Remedia d.o.o. (Zagreb, Croatia) (represented by: P. Klappich, C. Schmidt and P. Arbeiter, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claims that the Court should:

               —

               annul Commission Implementing Decision C(2014) 6030 final of 19 August 2014 concerning, in the framework of Article 31 of Directive 2001/83/EC of the European Parliament and of the Council, the marketing authorisations for high concentration of estradiol containing human medicinal products for topical use in so far as it requires Member States to comply with the obligations imposed in the implementing decision for the medicinal products listed in Annex I to the implementing decision and those not listed with 0,01 % estradiol by weight for topical use, with the exception of the restriction that the medicinal products named in Annex I to the implementing decision with 0,01 % estradiol by weight for topical use may be administered only intravaginally;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: Infringement of Article 31 et seq. of Directive 2001/83/EC (1)

                           —

                           It is submitted in this connection that the contested implementing decision is based on a procedure which was initiated and conducted in a procedurally unlawful manner. In this regard, the applicants state inter alia that, contrary to the first sentence of the first paragraph of Article 31 of Directive 2001/83/EC, the procedure was initiated not before, but only after a decision on a request for renewal of the medicinal product was made and that, in addition, there was no specific case of Union interest. Furthermore, with regard to the first applicant, the initiation of the procedure entails a circumvention of the rules existing in the Member State of Germany on the renewal of medicinal products.

                           —

                           Furthermore, the applicants argue that the appropriate Scientific Risk Assessment Committee was not involved in the procedure and that, in addition, a biased member was appointed as rapporteur in the Scientific Committee on Medicinal Products involved in the procedure.

                           —

                           In addition, the first applicant claims that it was not properly consulted on an essential aspect within the framework of the expert opinion review procedure.

               2.

               Second plea in law: Infringement of the first sentence of Article 116 and the first sentence of Article 126 of Directive 2001/83/EC

                           —

                           In this context, the applicants submit that the implementing decision is based on an incorrect assessment of the benefit-risk balance of the medicinal product. In particular, it disregards the fact that, over a more than 45-year market presence, no reports of serious risks arising from the use of the medicinal product with 0,01 % estradiol by weight had been submitted to the first applicant.

                           —

                           In addition, the Commission — which in this respect bears the burden of presentation and proof — did not put forward any new scientific data and information from which a new risk arising from the use of the medicinal product emerges.

               3.

               Third plea in law: Infringement of the principles of proportionality and equal treatment

                           —

                           In respect of the third plea, the applicants argue that the warnings in the product information, which are provided for in the implementing decision, the further restrictions included in the marketing authorisation for the medicinal product and the obligations based thereon are disproportionate and infringe the principle of equal treatment. In particular, a restriction on the period of use whilst at the same time precluding repeated use of the medicinal product, in addition to the proposed amendments to the product information, is disproportionate. In any event, instead of restricting the period of use — whilst at the same time precluding repeated use — and the obligations based thereon, a less stringent means of examining the alleged safety concerns would have been to order the carrying out of a study.

      (1)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).


title: Case C-127/02: Reference for a preliminary ruling by the Raad van State by judgment of that Court of 27 March 2002 in the case of Landelĳke Vereniging tot Behoud van de Waddenzee, also acting on behalf of Nederlandse Vereniging tot Bescherming van Vogels against Staatssecretaris van Landbouw, Natuurbeheer en Visserĳ

text:
C 156/4                EN                    Official Journal of the European Communities                                     29.6.2002
Reference for a preliminary ruling by the Oberverwal-                   The applicant claims that the Court should:
tungsgericht für das Land Nordrhein-Westfalen by order
of that Court of 14 March 2002 in the case of Kohlpharma
                                                                        —     Declare that, by allowing the approval of a project in the
         GmbH against Federal Republic of Germany
                                                                              tourist sector which included construction of housing,
                                                                              hotels and golf clubs in the Ponta do Abano area, without
                         (Case C-112/02)                                      an appropriate assessment of its environmental impact,
                                                                              the Portuguese Republic failed to fulfil its obligations
                                                                              under Article 2(1) of Council Directive 85/337/EEC(1) of
                         (2002/C 156/07)                                      27 June 1985 on the assessment of the effects of certain
                                                                              public and private projects on the environment;
Reference has been made to the Court of Justice of the                  —     Order the Portuguese Republic to pay the costs.
European Communities by order of the Oberverwaltungs-
gericht für das Land Nordrhein-Westfalen (Higher Administrat-
ive Court of North Rhine-Westphalia) of 14 March 2002,
received at the Court Registry on 27 March 2002, for a                  Pleas in law and main arguments
preliminary ruling in the case of Kohlpharma GmbH against
Federal Republic of Germany on the following question:
Is it justified under Article 30 EC or other Community law for          The Commission takes the view that the correct transposition
the competent German authority to obstruct the parallel                 of Article 2(1) and Article 4(2) of Directive 85/337/EEC cannot
import of a medicinal product by refusing authorisation under           be relied upon by the Portuguese Republic in order to exempt
the simplified procedure, contrary to Article 28 EC, although           from the assessment obligation provided for in Article 2(1) a
on the one hand it accepts that the medicinal product to be             specific project which, as in the case of the project relating to
imported (Jumex), authorised for Chiese Farmaceutici S.p.A. in          work carried out in the area of Ponta do Abano, although
Italy, is as regards the medically active ingredient (Selegilinhy-      falling within the scope of Annex II to that directive, is likely
drochloride) identical to the medicinal product (Movergan)              to have a significant impact on the environment by virtue of
produced by the German authorisation holder Orion Pharma                their nature, size or location.
GmbH, the medically active ingredient of which is delivered to
the Italian firm by the manufacturer, located in Hungary, on
the basis of a licensing agreement but to the German firm
solely on the basis of a supply agreement with Orion Corp.              (1) OJ 1985 L 175, p. 40.
Finland, either directly or via Finland, if on the other hand the
German authority does not give, as regards the medically
active ingredient or the excipients, which the authorities
consider to differ both qualitatively and quantitatively in the
present case, reasons to show that the two medicinal products
are not identical, and in particular are not manufactured
according to the same formulation and using the same active
ingredient or that they have the same therapeutic effects?
                                                                        Reference for a preliminary ruling by the Raad van State
                                                                        by judgment of that Court of 27 March 2002 in the case
                                                                        of Landelijke Vereniging tot Behoud van de Waddenzee,
                                                                        also acting on behalf of Nederlandse Vereniging tot
                                                                        Bescherming van Vogels against Staatssecretaris van Land-
                                                                                bouw, Natuurbeheer en Visserij
Action brought on 27 March 2002 by the Commission
of the European Communities against the Portuguese                                              (Case C-127/02)
                             Republic
                                                                                (2002/C 156/09)
                         (Case C-117/02)
                         (2002/C 156/08)
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of the Raad van State
                                                                        (Council of State) of 27 March 2002, received at the Court
An action against the Portuguese Republic was brought before            Registry on 8 April 2002, for a preliminary ruling in the case
the Court of Justice of the European Communities on 27 March            of Landelijke Vereniging tot Behoud van de Waddenzee, also
2002 by the Commission of the European Communities,                     acting on behalf of Nederlandse Vereniging tot Bescherming
represented by António Caeiros, acting as Agent, with an               van Vogels against Staatssecretaris van Landbouw, Natuur-
address for service in Luxembourg.                                      beheer en Visserij on the following questions:
 ---pagebreak--- 29.6.2002            EN                      Official Journal of the European Communities                                          C 156/5
1.   a.  Are the words ‘plan or project’ in Article 6(3) of                   b.   On the basis of which criteria must it be determined
         the habitats directive (1) to be interpreted as also                      whether or not a plan or project within the meaning
         covering an activity which has already been carried                       of Article 6(3) of the habitats directive not directly
         on for many years but for which an authorisation is                       connected with or necessary to the management of
         in principle granted each year for a limited period,                      the site is likely to have a significant effect thereon,
         with a fresh assessment being carried out on each                         either individually or in combination with other
         occasion as to whether, and if so in which sections                       plans or projects?
         of the area, the activity may be carried on?
                                                                        4.    a.   When Article 6 of the habits directive is applied, on
     b.  If the answer to question 1a is in the negative, must                     the basis of which criteria must it be determined
         the relevant activity be regarded as a ‘plan or project’                  whether or not there are ‘appropriate steps’ within
         if the intensity of this activity has increased over the                  the meaning of Article 6(2) or an ‘appropriate
         years or an increase in it is made possible by the                        assessment’, within the meaning of Article 6(3),
         authorisations?                                                           in connection with the certainty required before
                                                                                agreeing to a plan or project?
2.   a.  If it follows from the answer to question 1 that
         there is a ‘plan or project’ within the meaning of                   b.   Do the terms ‘appropriate steps’ or ‘appropriate
         Article 6(3) of the habitats directive, is Article 6(3)                   assessment’ have independent meaning or, in
         of the habitats directive to be regarded as a special                     assessing these terms, is account also to be taken of
         application of the rules in Article 6(2) or as a                          Article 174(2) EC and in particular the precautionary
         provision with a separate, independent purpose in                         principle referred to therein?
         the sense that, for example:
                                                                              c.   If account must be taken of the precautionary
         (i)   Article 6(2) relates to existing use and                            principle referred to in Article 174(2) EC, does that
               Article 6(3) relates to new plans or projects, or                   mean that a particular activity, such as the cockle-
                                                                                fishing in question, can be authorised where there is
                                                                                no obvious doubt as to the absence of a possible
                                                                                significant effect or is that permissible only where
                                                                                there is no doubt as to the absence of such an effect
         (ii) Article 6(2) relates to management measures                          or where the absence can be ascertained?
               and Article 6(3) to other decisions, or
                                                                        5.    Do Article 6(2) or Article 6(3) of the habitats directive
         (iii) Article 6(3) relates to plans or projects and                  have direct effect in the sense that individuals may rely
               Article 6(2) to other activities?                              on them in national courts and those courts must provide
                                                                              the protection afforded to individuals by the direct effect
                                                                              of Community law, as was held inter alia in Case C-312/
                                                                              93 Peterbroeck (cited above)?
     b.  If Article 6(3) of the habitats directive is to be
         regarded as a special application of the rules in
         Article 6(2), can the two subparagraphs be appli-
         cable cumulatively?
                                                                        (1) Council Directive 92/43/EEC of 21 May 1992 on the conservation
3.   a.  Is Article 6(3) of the habitats directive to be interpret-         of natural habitats and of wild fauna and flora (OJ L 206 of
         ed as meaning that there is a ‘plan or project’ once a             22.7.1992, p. 7).
         particular activity is likely to have an effect on the
         site concerned (and an ‘appropriate assessment’ must
         then be carried out to ascertain whether or not the
         effect is ‘significant’) or does this provision mean
         that an ‘appropriate assessment’ has to be carried
         out only where there is a (sufficient) likelihood that
         a ‘plan or project’ will have a significant effect?


title: Joined Cases C-101/11 P and C-102/11 P: Judgment of the Court (Sixth Chamber) of 18 October 2012 — Herbert Neuman, Andoni Galdeano del Sel, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v José Manuel Baena Grupo, SA (Appeals — Community design — Regulation (EC) No 6/2002 — Articles 6, 25(1)(b) and (e), and 61 — Registered Community design or model representing a seated figure — Earlier Community figurative mark — Different overall impression — Degree of freedom of the designer — Informed user — Scope of judicial review — No statement of reasons)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/7

         Judgment of the Court (Sixth Chamber) of 18 October 2012 — Herbert Neuman, Andoni Galdeano del Sel, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v José Manuel Baena Grupo, SA
   (Joined Cases C-101/11 P and C-102/11 P) (1)

   (Appeals - Community design - Regulation (EC) No 6/2002 - Articles 6, 25(1)(b) and (e), and 61 - Registered Community design or model representing a seated figure - Earlier Community figurative mark - Different overall impression - Degree of freedom of the designer - Informed user - Scope of judicial review - No statement of reasons)
   2012/C 379/11
   Language of the case: Spanish

      Parties

      Appellants: Herbert Neuman, Andoni Galdeano del Sel (represented by: S. Miguez Pereira, abogada), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (represented by J. Crespo Carrillo and A. Folliard-Monguiral, acting as Agents)

      Other party to the proceedings: José Manuel Baena Grupo (represented by: A. Canela Giménez, abogado)

      Re:

   Appeal brought against the judgment of the General Court (Seventh Chamber) of 16 December 2010 — Case T-513/09 Baena Grupo v OHIM — Neuman and Galdeano del Sel (seated figure), by which the General Court annulled the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 October 2009 (Case R 1323/2008-3)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeals;

               2.

               Orders Mr Neuman and Mr Galdeano del Sel to bear their own costs and to pay those incurred by José Manuel Baena Grupo, SA in relation to the appeal in Case C-101/11 P;

               3.

               Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to bear its own costs and to pay those incurred by José Manuel Baena Grupo, SA in relation to the appeal in Case C-102/11 P.

      (1)  OJ C 130, 30.4.2011.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/34

         Removal from the register of Case C-305/02 (1)

   (2004/C 94/87)
   By order of 28 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-305/02: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

      (1)  OJ C 247 of 12.10.2002.


title: Case C-497/09: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 December 2009 — Finanzamt Burgdorf v Manfred Bog

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/21

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 December 2009 — Finanzamt Burgdorf v Manfred Bog
   (Case C-497/09)
   2010/C 63/34
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Finanzamt Burgdorf

      Defendant: Manfred Bog

      Questions referred

               1.

               Does the sale of dishes or meals prepared for immediate consumption constitute a supply of goods within the meaning of Article 5 of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes?

               2.

               Does the answer to Question 1 depend on whether additional service elements are supplied (the provision of facilities for consumption)?

               3.

               In the event that Question 1 is answered in the affirmative: is the term ‘foodstuffs for human consumption’ in Category 1 of Annex H to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes to be interpreted as covering only ‘take away’ foodstuffs as typically sold in the grocery business, or does it also cover dishes and meals which have been prepared by boiling, grilling, roasting, baking or other means for immediate consumption?

      (1)  OJ 1977 L 145, p. 1.


title: Joined Cases C-373/06 P, C-379/06 P and C-382/06 P: Judgment of the Court (First Chamber) of 17 April 2008 — Thomas Flaherty (C-373/06 P), Larry Murphy (C-379/06 P), Ocean Trawlers Ltd (C-382/06 P) v Ireland, Commission of the European Communities (Appeal — Resource conservation measures — Restructuring of the fisheries sector — Requests to increase the tonnage objectives of the multiannual guidance programme MAGP IV — Dismissal of application)

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/5

         Judgment of the Court (First Chamber) of 17 April 2008 — Thomas Flaherty (C-373/06 P), Larry Murphy (C-379/06 P), Ocean Trawlers Ltd (C-382/06 P) v Ireland, Commission of the European Communities
   (Joined Cases C-373/06 P, C-379/06 P and C-382/06 P) (1)

   (Appeal - Resource conservation measures - Restructuring of the fisheries sector - Requests to increase the tonnage objectives of the multiannual guidance programme ‘MAGP IV’ - Dismissal of application)
   (2008/C 142/06)
   Language of the case: English
   Parties

      Appellants: Thomas Flaherty (C-373/06 P), Larry Murphy (C-379/06 P), Ocean Trawlers Ltd (C-382/06 P) (represented by: D. Barry, Solicitor, and A. Collins SC (C-373/06 P, C-379/06 P and C-382/06 P), and additionally by P. Gallagher SC (C-379/06 P)

      Other parties to the proceedings: Ireland, Commission of the European Communities (represented by: B. Doherty and M. van Heezik, Agents)
   Re:
   Appeal brought against the judgment of the Court of First Instance (First Chamber) of 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission annulling Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall (notified under document number C(2003) 1113) (OJ 2003 L 90, p. 48), but dismissing the applications lodged by the appellants as inadmissible — Persons (who are not) individually concerned by the annulled decision
   Operative part of the judgment
   The Court:

               1.

               Sets aside the judgment of the Court of First Instance of the European Communities of 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission (i) in so far as it dismissed as inadmissible the applications of Mr Flaherty, Mr Murphy and Ocean Trawlers Ltd for annulment of Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall, and (ii) in so far as it ordered the appellants to bear their own costs;

               2.

               Annuls Decision 2003/245 in so far as it applies to the vessels of Mr Flaherty, Mr Murphy and Ocean Trawlers Ltd;

               3.

               Orders the Commission of the European Communities to pay the costs incurred by Mr Flaherty, Mr Murphy and Ocean Trawlers Ltd in respect of both the proceedings at first instance and the present appeals.

      (1)  OJ C 281, 18.11.2006.

      OJ C 294, 2.12.2006.


title: Case C-488/09: Judgment of the Court (First Chamber) of 22 December 2010 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Asociación de Transporte Internacional por Carretera (ASTIC) v Administración General del Estado (TIR Convention — Community Customs Code — Transport carried out under cover of a TIR carnet — Guaranteeing association — Irregular unloading — Determination of the place of the offence — Recovery of import duties)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/9

         Judgment of the Court (First Chamber) of 22 December 2010 (reference for a preliminary ruling from the Tribunal Supremo — Spain) — Asociación de Transporte Internacional por Carretera (ASTIC) v Administración General del Estado
   (Case C-488/09) (1)

   (TIR Convention - Community Customs Code - Transport carried out under cover of a TIR carnet - Guaranteeing association - Irregular unloading - Determination of the place of the offence - Recovery of import duties)
   2011/C 63/16
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicant: Asociación de Transporte Internacional por Carretera (ASTIC)

      Defendant: Administración General del Estado

      Re:

   Reference for a preliminary ruling — Tribunal Supremo — Interpretation of Article 221(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and Arts 454(3) and 455 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1) — Transport carried out under cover of a TIR carnet — Offences or irregularities — Place — Procedure — Post-clearance recovery of import or export duties

      Operative part of the judgment

               1.

               Articles 454 and 455 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code are to be interpreted as meaning that, where the presumption that competence to recover a customs debt lies with the Member State on whose territory an offence committed in the course of a TIR transport operation was detected is rebutted following a judgment establishing that that offence was committed on the territory of another Member State, the customs authorities of the latter Member State become competent to recover that debt, provided that the facts giving rise to the offence became the subject of legal proceedings within two years of the date on which the guaranteeing association for the territory on which the offence was detected was notified thereof;

               2.

               Article 455(1) of Regulation No 2454/93, read in conjunction with Article 11(1) of the Customs Convention on the international transport of goods under cover of TIR carnets, signed at Geneva on 14 November 1975, is to be interpreted as meaning that, in circumstances such as those of the case before the referring court, a guaranteeing association cannot rely on the limitation period provided for in those provisions where the customs authorities of the Member State for whose territory it is responsible notify it, within a period of one year from the date on which those authorities were informed of an enforceable judgment identifying them as competent, of the facts which gave rise to the customs debt for which it is liable up to the amount that it guarantees.

      (1)  OJ C 63, 13.03.2010.


title: Case T-330/11: Action brought on 15 June 2011 — MasterCard and Others v Commission

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/34

         Action brought on 15 June 2011 — MasterCard and Others v Commission
   (Case T-330/11)
   2011/C 238/59
   Language of the case: English

      Parties

      Applicants: MasterCard, Inc. (Wilmington, United States), MasterCard International, Inc. (Wilmington, United States) and MasterCard Europe SPRL (Waterloo, Belgium) (represented by: B. Amory, V. Brophy and S. McInnes, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Declare the application admissible;

               —

               Annul, in its entirety, the Commission’s negative decision based on the exception in Article 4(3), first subparagraph, of 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);

               —

               Declare the Commission’s interpretation of Article 8 of Regulation (EC) No 1049/2001 to be unfounded in law; and

               —

               Order the Commission to pay the costs of the proceedings, including the costs of the applicants.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission breached Articles 4(3) and 8(1) of Regulation (EC) No 1049/2001, as:

                           —

                           The Commission has not established that the conditions of Article 4(3), first subparagraph, of Regulation (EC) No 1049/2001 are fulfilled;

                           —

                           The elements relied on by the Commission are factually inaccurate; and

                           —

                           There is an overriding public interest in the disclosure of the documents provided by EIM Business and Policy Research in the framework of the study on ‘Costs and benefits to merchants of accepting different payment methods’ (COMP/2009/D1/020)

               2.

               Second plea in law, alleging that the Commission committed an error of law by breaching Article 8(1) and (2) of Regulation (EC) No 1049/2001, as well as Article 2 of the Annex to the Commission’s Decision amending its Rules of Procedure (OJ 2010 L 55, p. 60), as:

                           —

                           The Commission illegally reinitiated the timing for review; and

                           —

                           The Commission illegally extended the timing for review by 15 working days.


title: Case T-19/12: Judgment of the General Court of 14 May 2013 — Fabryka Łożysk Tocznych-Kraśnik v OHIM — Impexmetal (IKFŁT KRAŚNIK) (Community trade mark — Opposition proceedings — Application for Community figurative mark IKFŁT KRAŚNIK — Earlier Community figurative mark FŁT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               22.6.2013

               EN

               Official Journal of the European Union

               C 178/10

         Judgment of the General Court of 14 May 2013 — Fabryka Łożysk Tocznych-Kraśnik v OHIM — Impexmetal (IKFŁT KRAŚNIK)
   (Case T-19/12) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark IKFŁT KRAŚNIK - Earlier Community figurative mark FŁT - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 178/17
   Language of the case: Polish

      Parties

      Applicant: Fabryka Łożysk Tocznych-Kraśnik S.A. (Kraśnik, Poland) (represented by: J. Sieklucki, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: D. Walicka, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Impexmetal S.A. (Warsaw, Poland) (represented by: W. Trybowski and K. Pyszków, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 27 October 2011 (Case R 2475/2010-1) concerning opposition proceedings between Impexmetal S.A. and Fabryka Łożysk Tocznych-Kraśnik S.A.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Fabryka Łożysk Tocznych-Kraśnik S.A to pay the costs.

      (1)  OJ C 109, 14.4.2012.


title: NOTICE OF OPEN COMPETITION

text:
No C 170/ 8      [ EN |             Official Journal of the European Communities                             6 . 7 . 95
                                                           III
                                                         (Notices)
                                EUROPEAN PARLIAMENT
                                       COURT OF JUSTICE
                                          NOTICE OF OPEN COMPETITION
                                                     (95 /C 170 /08)
            The Court of Justice of the European Communities and the General-Secretariat of the
            European Parliament are publishing in Official Journal of the European Communities No
            C 170 A of 6 July 1995 the following open competition :
            English edition
            EUR/C/64 (English-language typists)
            To obtain a copy of this Official Journal please apply to the Personnel Division of the Court of
            Justice of the European Communities, L-2925 Luxembourg.
            Closing date for application : 11 September 1995


title: Case T-625/14: Action brought on 18 August 2014 — Wm. Wrigley Jr. v OHIM (Device of a sphere)

text:
               6.10.2014

               EN

               Official Journal of the European Union

               C 351/28

         Action brought on 18 August 2014 — Wm. Wrigley Jr. v OHIM (Device of a sphere)
   (Case T-625/14)
   2014/C 351/37
   Language of the case: English

      Parties

      Applicant: Wm. Wrigley Jr. Company (Wilmington, United States) (represented by: M. Kinkeldey, S. Brandstätter and C. Schmitt, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 June 2014 given in Case R 168/2014-5.

      Pleas in law and main arguments

      Community trade mark concerned: The figurative mark representing a device of a sphere for goods in classes 3, 21 and 30 — Community trade mark application No 1 1 7 37  541

      Decision of the Examiner: Partially rejected the CTM application

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) CTMR.


title: Case T-84/08: Judgment of the General Court of 7 April 2011 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT) (Community trade mark — Opposition proceedings — Application for Community word mark COMIT — Earlier national figurative mark Comet — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Article 8(3) of Regulation (EC) No 216/96)

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/19

         Judgment of the General Court of 7 April 2011 — Intesa Sanpaolo v OHIM — MIP Metro (COMIT)
   (Case T-84/08) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark COMIT - Earlier national figurative mark Comet - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) - Article 8(3) of Regulation (EC) No 216/96)
   2011/C 152/33
   Language of the case: English

      Parties

      Applicant: Intesa Sanpaolo SpA (Turin, Italy) (represented by: A. Perani and P. Pozzi, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by R. Kaase, J.-C. Plate and M. Berger, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 December 2007 (Case R 138/2006-4), concerning opposition proceedings between MIP Metro Group Intellectual Property GmbH & Co. KG and Intesa Sanpaolo SpA.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 19 December 2007 (Case R 138/2006-4) to the extent that it dismisses the claim made by Intesa Sanpaolo SpA in respect of the goods in Class 16;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders OHIM to bear its own costs, together with half of the costs incurred by Intesa Sanpaolo;

               4.

               Orders MIP Metro Group Intellectual Property GmbH & Co. KG to bear its own costs.

      (1)  OJ C 116, 9.5.2008.


title: Case T-431/13: Action brought on 19 August 2013 — Métropole Gestion v OHIM — Metropol (METROPOL)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/57

         Action brought on 19 August 2013 — Métropole Gestion v OHIM — Metropol (METROPOL)
   (Case T-431/13)
   2013/C 344/103
   Language in which the application was lodged: French

      Parties

      Applicant: Métropole Gestion (Paris, France) (represented by: M.-A. Roux Steinkühler, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Metropol Investment Financial Company Ltd (Moscow, Russia)

      Form of order sought

               —

               Declare the action admissible and well-founded, and, as a consequence;

               —

               Annul in part the contested decision, in that it refused to declare the invalidity of the Community trade mark at issue based on the marks Nos 02 3 167 081, No 02 3 167 084 and No 794 040, and the other unregistered signs;

               —

               Uphold the contested decision, in that it declared the invalidity in part of mark No 3 590 981 on the basis of the earlier mark No 02 3 143 685;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘METROPOL’ for the goods and services in Classes 9, 35, 36 and 42 — Community trade mark No 3 590 981

      Proprietor of the Community trade mark: Metropol Investment Financial Company Ltd

      Applicant for the declaration of invalidity of the Community trade mark: The applicant

      Grounds for the application for a declaration of invalidity: National word mark ‘METROPOLE’ and national and international figurative marks ‘METROPOLE gestion’ for the services in Class 36

      Decision of the Cancellation Division: The application is rejected in part

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 53(1)(a) and of Article 8(1)(b) of Regulation No 207/2009.


title: Case T-323/11: Action brought on 21 June 2011 — UCP Backus y Johnston v OHIM (Shape of a bottle)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/36

         Action brought on 21 June 2011 — UCP Backus y Johnston v OHIM (Shape of a bottle)
   (Case T-323/11)
   2011/C 252/82
   Language of the case: Spanish

      Parties

      Applicant: Unión de Cervecerías Peruanas Backus y Johnston SAA (Lima, Peru) (represented by E. Armijo Chávarri, lawyer)

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

      Form of order sought

               —

               Declare the action against the Decision of the Second Board of Appeal of the Office of 23 March 2011 in Case R 2238/2010-2 to be brought in due form and time, and

               —

               Following the appropriate procedural steps, give judgment annulling the abovementioned decision and expressly order the Office to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: Three-dimensional trade mark consisting in the shape of a bottle (application No 8.592.081) for goods in Class 32 (‘beer’)

      Decision of the Examiner: Application refused.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: Incorrect interpretation and application of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark.


title: Case F-101/14: Action brought on 6 October 2014  — ZZ v OHIM

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/50

         Action brought on 6 October 2014 — ZZ v OHIM
   (Case F-101/14)
   (2015/C 007/60)
   Language of the case: German

      Parties

      Applicant: ZZ (represented by: Heinrich Tettenborn, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (OHIM)

      Subject-matter and description of the proceedings

   Action for annulment of the defendant’s decision to apply to the competitions OHIM/AD/01/13 and OHIM/AST/02/13 the clause contained in the applicant’s contract of employment, which provides for the termination of the applicant’s contract of employment in the event that she is not included in the reserve list of the next open competition organised by EPSO for her function group with the specialisation ‘industrial property’, and claim for compensation in respect of the non-material damage caused to her.

      Form of order sought

               —

               Annul OHIM’s decision, of which the applicant was informed by OHIM’s letter of 28 November 2003, to apply to competitions OHIM/AD/01/13 and OHIM/AST/02/13, the notices for which were published on 31 October 2013, the clause contained in Article 5 of the applicant’s contract of employment, which provides for the termination of the applicant’s contract of employment in the event that she is not included in the reserve list of the next open competition organised by EPSO for her function group with the specialisation ‘industrial property’;

               —

               Order OHIM to pay the applicant compensation of an appropriate amount, to be left to the discretion of the Court, in respect of the non-material damage caused to her by the decision of OHIM referred to in the first head of claim, and

               —

               Order OHIM to pay the costs.