title: Case T-521/11: Action brought on 3 October 2011 — Deutsche Bahn and Others v Commission

text:
               3.12.2011

               EN

               Official Journal of the European Union

               C 355/23

         Action brought on 3 October 2011 — Deutsche Bahn and Others v Commission
   (Case T-521/11)
   2011/C 355/43
   Language of the case: German

      Parties

      Applicants: Deutsche Bahn AG (Berlin, Germany), Deutsche Umschlaggesellschaft Schiene-Straße (DUSS) mbH (Bodenheim, Germany), DB Netz AG (Frankfurt am Main, Germany), DB Schenker Rail GmbH (Mainz, Germany), DB Schenker Rail Deutschland AG (Mainz, Germany) (represented by: W. Deselaers, J. Brückner and O. Mross, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission's inspection decision of 14 July 2011, notified on 26 July 2011;

               —

               Annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision;

               —

               In particular order the Commission to return all the copies of the documents made during the inspections, on pain of annulment of the future Commission decision by the General Court; and

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The applicants seek the annulment of Commission Decision C(2011) 5230 of 14 July 2011 (Case COMP/39.678 — DB I and Case COMP/39.731 — DB II), ordering, in accordance with Article 20(4) of Regulation No 1/2003, inspections of Deutsche Bahn AG and all legal persons directly or indirectly controlled by the latter, by reason of a potentially anti-competitive model of a strategic use of the infrastructure administered by companies of the DB group.
   In support of the action, the applicants rely on five pleas in law:

               1.

               First plea: infringement of the fundamental right to inviolability of one's premises by reason of lack of prior judicial authorisation.

               2.

               Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from a factual and legal point of view.

               3.

               Third plea: unlawfulness of the inspection decision, as it is based on information obtained by the Commission in infringement of defence rights.
               The information was obtained by the Commission in the course of implementing the inspection decision of 14 March 2011 in the context of a very broad inquiry (‘fishing expedition’). The information obtained when implementing the second inspection decision of 30 March 2011 was also unlawful because the decision on which that search was based also relied on the unlawfully obtained information and that information had also been obtained on the basis of an unlawful inspection decision.

               4.

               Fourth plea: infringement of defence rights by reason of a disproportionately wide and non-specific description of the subject-matter of the inspection.

               5.

               Fifth plea: infringement of the principle of proportionality.

         The Commission does not have jurisdiction over the subject-matter of the inspection and could in any event have obtained the relevant information through the competent Bundesnetzagentur [federal network agency] or by means of a simple request for information from the applicants.


title: Case C-69/07: Judgment of the Court (Eighth Chamber) of 31 January 2008 — Commission of the European Communities v Italian Republic (Failure of Member State to fulfil obligations — Directive 2003/35/EC — Environment — Public participation in respect of the drawing up of certain plans and programmes — Failure to transpose within the period prescribed)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/7

         Judgment of the Court (Eighth Chamber) of 31 January 2008 — Commission of the European Communities v Italian Republic
   (Case C-69/07) (1)

   (Failure of Member State to fulfil obligations - Directive 2003/35/EC - Environment - Public participation in respect of the drawing up of certain plans and programmes - Failure to transpose within the period prescribed)
   (2008/C 79/12)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: D. Recchia and J.-B. Laignelot, acting as Agents)

      Defendant: Italian Republic (represented by: I.M. Braguglia, Agent, and S. Fiorentino, avvocato dello Stato)
   Re:
   Failure of a Member State to fulfil obligations — Failure to implement, within the period prescribed, the provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to implement the laws, regulations and administrative provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, the Italian Republic has failed to fulfil its obligations under Article 6 of the Directive;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 82, 14.4.2007.


title: Case T-208/10: Judgment of the General Court of 7 July 2011 — Cree v OHIM (TRUEWHITE) (Community trade mark — Application for Community word mark TRUEWHITE — Absolute grounds for refusal — Article 7(1)(c) of Regulation No 207/2009 — Descriptive mark)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/18

         Judgment of the General Court of 7 July 2011 — Cree v OHIM (TRUEWHITE)
   (Case T-208/10) (1)

   (Community trade mark - Application for Community word mark TRUEWHITE - Absolute grounds for refusal - Article 7(1)(c) of Regulation No 207/2009 - Descriptive mark)
   2011/C 340/36
   Language of the case: German

      Parties

      Applicant: Cree, Inc. (Durham, North Carolina, United States) (represented by: V. Schiller, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: S. Schäffner, and subsequently by: G. Schneider, acting as Agents)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 27 January 2010 (Case R 985/2009-2) concerning registration of the sign TRUEWHITE as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Cree, Inc. to pay the costs.

      (1)  OJ C 179, 3.7.2010.


title: Case C-204/13: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 18 April 2013 — Finanzamt Saarlouis v Heinz Malburg

text:
               22.6.2013

               EN

               Official Journal of the European Union

               C 178/6

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 18 April 2013 — Finanzamt Saarlouis v Heinz Malburg
   (Case C-204/13)
   2013/C 178/11
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Defendant and appellant on a point of law: Finanzamt Saarlouis

      Applicant and respondent in the appeal on a point of law: Heinz Malburg

      Question referred

   Having regard to the principle of tax neutrality, must Article 4(1) and (2) and Article 17(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1) be interpreted as meaning that a partner in a partnership of tax advisors who acquires from the partnership a portion of its client base for the sole purpose of providing directly thereafter to a newly founded partnership of tax advisors, in which he is the principal partner, a licence to use such client base for commercial purposes and free of charge may be entitled to deduct the input tax arising from the acquisition of the client base?

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


title: Case T-82/14: Judgment of the General Court of 7 July 2016 — Copernicus-Trademarks v EUIPO — Maquet (LUCEO) (European Union trade mark — Proceedings for a declaration of invalidity — European Union word mark LUCEO — Absolute ground for refusal — Bad faith during the filing of the application for registration — Article 52(1)(b) of Regulation (EC) No 207/2009)

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/27

         Judgment of the General Court of 7 July 2016 — Copernicus-Trademarks v EUIPO — Maquet (LUCEO)
   (Case T-82/14) (1)

   ((European Union trade mark - Proceedings for a declaration of invalidity - European Union word mark LUCEO - Absolute ground for refusal - Bad faith during the filing of the application for registration - Article 52(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 305/37)
   Language of the case: German

      Parties

      Applicant: Copernicus-Trademarks Ltd (Borehamwood, United Kingdom) (represented by: F. Henkel, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Schifko, Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the Genelral Court: Maquet GmbH (Rastatt, Germany) (represented by: N. Hebeis, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 25 November 2013 (Case R 2292/2012-4) relating to invalidity proceedings between Copernicus-Trademarks and Maquet.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Copernicus-Trademarks Ltd to bear its own costs and those of the European Union Intellectual Property Office (EUIPO) and Maquet GmbH.

      (1)  OJ C 112, 14.4.2014.


title: Case T-306/00: Action brought on 21 September 2000 by Società Italia Soc. Coop. a.r.l. against Commission of the European Communities

text:
9.12.2000              EN                      Official Journal of the European Communities                                      C 355/35
—     infringement of Article 24(2) of Regulation (EEC)                   Action brought on 27 September 2000 by WorldCom Inc.
      No 4235/88 of 19 December 1988 laying down pro-                     against the Commission of the European Communities
      visions for implementing Regulation (EEC) No 2052/88
      as regards coordination of the activities of the different
      Structural Funds between themselves and with the oper-                                      (Case T-310/00)
      ations of the European Investment Bank and the other
      existing financial instruments (1). It claims in this respect                               (2000/C 355/75)
      that the irregularities discovered have not affected the
      functioning of the project or the conditions for action,
      that the project has been fully implemented and no
      objection has been made by the Commission in that                                      (Language of the case: English)
      connection and that the defendant has withdrawn the
      aid, when it has the power only to suspend or reduce aid;           An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
—     breach of the principle of proportionality.                         European Communities on 27 September 2000 by WorldCom
                                                                          Inc., Mississippi (USA), represented by K.P.E. Lasok QC, Brian
                                                                          Hartnett and Jean-Yves Art of Squire Sanders & Dempsey,
(1) OJ L 374 of 31. 12. 1988, p. 1.                                       Brussels.
                                                                          The applicant claims that the Court should:
                                                                          —     annul Article 1 of the Commission Decision C(2000)
                                                                                1693 final of 28 June 2000 in Case No COMP/M.1741
                                                                                — MCI WorldCom/Sprint; and
Action brought on 21 September 2000 by Società Italia
Soc. Coop. a.r.l. against Commission of the European                      —     order the Commission to pay the applicant’s costs.
                          Communities
                         (Case T-306/00)                                  Pleas in law and main arguments
                         (2000/C 355/74)                                  By Article 1 of the contested decision, the Commission
                                                                          declared incompatible with the common market and the
                                                                          functioning of the EEA agreement a proposed concentration
                   (Language of the case: Italian)                        between WorldCom and Sprint Corporation.
An action against the Commission of the European Communi-                 The applicant seeks the annulment of the contested decision
ties was brought before the Court of First Instance of the                on the following grounds:
European Communities on 21 September 2000 by Società
Italia Soc. Coop. a.r.l., established at S. Lazzaro di Savena,
represented by Maria Averani, Andrea Pisaneschi and Stefano               —     The proposed concentration fell outside the scope of the
Zunarelli, lawyers, with an address for service in Luxembourg                   merger regulation, because the merger thresholds were
at the Chambers of Charles Turk, 13b Avenue Guillaume.                          not satisfied when the contested decision was adopted;
                                                                          —     The Commission lacked competence to adopt the contest-
The applicant claims that the Court should:
                                                                                ed decision because, prior to its adoption, the parties had
                                                                                withdrawn their notification and their proposed remedies;
—     annul, pursuant to the second paragraph of Article 230
      EC, the Commission’s decision of 11 July 2000 (C (2000)
      1752);                                                              —     The Commission erred in defining the relevant service
                                                                                market;
—     order the Commission to pay the costs.
                                                                          —     The Commission erred in finding that the proposed
                                                                                concentration would create a dominant position;
Pleas in law and main arguments
                                                                          —     The Commission committed a series of procedural errors
                                                                                in the course of its investigation of the notified concen-
The pleas in law and main arguments are similar to those put
                                                                                tration.
forward in Case C-305/00 Conserve Italia v Commission.


title: Case C-95/10: Judgment of the Court (Third Chamber) of 17 March 2011 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Strong Segurança SA v Município de Sintra, Securitas-Serviços e Tecnologia de Segurança (Public service contracts — Directive 2004/18/EC — Article 47(2) — Direct effect — Whether applicable to the services referred to in Annex II B to that directive)

text:
               7.5.2011

               EN

               Official Journal of the European Union

               C 139/11

         Judgment of the Court (Third Chamber) of 17 March 2011 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Strong Segurança SA v Município de Sintra, Securitas-Serviços e Tecnologia de Segurança
   (Case C-95/10) (1)

   (Public service contracts - Directive 2004/18/EC - Article 47(2) - Direct effect - Whether applicable to the services referred to in Annex II B to that directive)
   2011/C 139/17
   Language of the case: Portuguese

      Referring court

   Supremo Tribunal Administrativo

      Parties to the main proceedings

      Appellant: Strong Segurança SA

      Respondents: Município de Sintra, Securitas-Serviços e Tecnologia de Segurança

      Re:

   Reference for a preliminary ruling — Supremo Tribunal Administrativo — Interpretation of Articles 21, 23, 35(4) and 47(2) of, and of Annex II B to, Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Economic and financial capacity of the tenderers — Whether an economic operator can rely on the capacities of other entities — Direct effect of a directive implemented late

      Operative part of the judgment

   Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts does not create the obligation, for Member States, to apply Article 47(2) of that directive also to contracts which have as their object services referred to in Annex II B thereto. However, that directive does not preclude Member States and, possibly, contracting authorities from providing for such application in, respectively, their legislation and the documents relating to the contract.

      (1)  OJ C 113, 1.5.2010.


title: Judgment of the Court (Sixth Chamber) of 9 October 2001 in Case C-108/99 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Divisional Court)): Commissioners of Customs & Excise v Cantor Fitzgerald International (Sixth VAT Directive — Exemption for the leasing or letting of immovable property — Meaning — Supply of services — Third party taking over a lease for consideration)

text:
8.12.2001             EN                     Official Journal of the European Communities                                             C 348/1
                                                                     I
                                                               (Information)
                                                  COURT OF JUSTICE
                                                           COURT OF JUSTICE
                JUDGMENT OF THE COURT                                    Article 13B(b) of the Sixth Council Directive of 17 May 1977
                                                                         (77/388/EEC) on the harmonisation of the laws of the Member
                                                                         States relating to turnover taxes — Common system of value added
                       (Sixth Chamber)                                   tax: uniform basis of assessment does not exempt a supply of services
                                                                         which is made by a person who does not have any interest in the
                                                                         immovable property and which consists in the acceptance, for
                                                                         consideration, of an assignment of a lease of that property from the
                      of 9 October 2001                                  lessee.
                                                                         (1) OJ C 188 of 3.7.1999.
in Case C-108/99 (reference for a preliminary ruling from
the High Court of Justice of England and Wales, Queen’s
Bench Division (Divisional Court)): Commissioners of
  Customs & Excise v Cantor Fitzgerald International (1)
                                                                                JUDGMENT OF THE COURT
(Sixth VAT Directive — Exemption for the leasing or letting                                         (Fifth Chamber)
of immovable property — Meaning — Supply of services —
                                                                                of 25 October 2001
      Third party taking over a lease for consideration)
                                                                         in Case C-112/99 (reference for a preliminary ruling from
                                                                         the Landgericht Düsseldorf): Toshiba Europe GmbH v
                       (2001/C 348/01)                                                        Katun Germany GmbH (1)
                                                                         (Comparative advertising — Marketing of spare parts and
                                                                         consumable items — References made by a supplier of non-
                  (Language of the case: English)                        original spare parts and consumable items to the product
                                                                         numbers specific to the original spare parts and consumable
                                                                            items — Directive 84/450/EEC and Directive 97/55/EC)
                                                                                (2001/C 348/02)
In Case C-108/99: reference to the Court under Article 177 of                                (Language of the case: German)
the EC Treaty (now Article 234 EC) from the High Court of
Justice of England and Wales, Queen’s Bench Division (Div-               (Provisional translation; the definitive translation will be published
isional Court) (United Kingdom) for a preliminary ruling in the                              in the European Court Reports)
proceedings pending before that court between Com-
missioners of Customs & Excise and Cantor Fitzgerald Inter-
national — on the interpretation of Article 13B(b) of the Sixth          In Case C-112/99: reference to the Court under Article 177 of
Council Directive of 17 May 1977 (77/388/EEC) on the                     the EC Treaty (now Article 234 EC) from the Landgericht
harmonisation of the laws of the Member States relating to               Düsseldorf (Regional Court, Düsseldorf) (Germany) for a
turnover taxes — Common system of value added tax: uniform               preliminary ruling in the proceedings pending before that
basis of assessment (OJ 1977 L 145, p. 1) — the Court (Sixth             court between Toshiba Europe GmbH and Katun Germany
Chamber), composed of: F. Macken, President of the Chamber,              GmbH — on the interpretation of Article 2(2a) and
N. Colneric (Rapporteur), C. Gulmann, J.-P. Puissochet and               Article 3a(1)(c) and (g) of Council Directive 84/450/EEC of
R. Schintgen, Judges; A. Tizzano, Advocate General; D. Louter-           10 September 1984 concerning misleading and comparative
man-Hubeau, Head of Division, for the Registrar, has given a             advertising (OJ 1984 L 250, p. 17), as amended by Directive
judgment on 9 October 2001, in which it has ruled:                       97/55/EC of the European Parliament and of the Council of


title: Case C-434/11: Reference for a preliminary ruling from the Tribunalul Alba (Romania) lodged on 22 August 2011 — Corpul Național al Polițiștilor, acting on behalf of its members serving with the Alba Inspectorate of Police v Ministerul Administrației și Internelor (MAI), Inspectoratul General al Poliției Române (IGPR), Inspectoratul de Poliție al Județului Alba (IPJ)

text:
               12.11.2011

               EN

               Official Journal of the European Union

               C 331/9

         Reference for a preliminary ruling from the Tribunalul Alba (Romania) lodged on 22 August 2011 — Corpul Național al Polițiștilor, acting on behalf of its members serving with the Alba Inspectorate of Police v Ministerul Administrației și Internelor (MAI), Inspectoratul General al Poliției Române (IGPR), Inspectoratul de Poliție al Județului Alba (IPJ)
   (Case C-434/11)
   2011/C 331/14
   Language of the case: Romanian

      Referring court

   Tribunalul Alba

      Parties to the main proceedings

      Applicant: Corpul Național al Polițiștilor, acting on behalf of its members serving with the Alba Inspectorate of Police

      Defendants: Ministerul Administrației și Internelor (MAI), Inspectoratul General al Poliției Române (IGPR), Inspectoratul de Poliție al Județului Alba (IPJ)

      Question referred

   Must the provisions of Articles 17(1), 20 and 21(1) of the Charter of Fundamental Rights of the European Union be interpreted as precluding reductions in remuneration such as those imposed by the Romanian State under Law No 118/2010 and Law No 285/2010?


title: Case C-247/12: Reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 21 May 2012 — Meliha Veli Mustafa v Direktor na fond ‘Garantirani vzemania na rabotnitsite i sluzhitelnite’ kam Natsionalnia osiguritelen institut

text:
               4.8.2012

               EN

               Official Journal of the European Union

               C 235/7

         Reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 21 May 2012 — Meliha Veli Mustafa v Direktor na fond ‘Garantirani vzemania na rabotnitsite i sluzhitelnite’ kam Natsionalnia osiguritelen institut
   (Case C-247/12)
   2012/C 235/14
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad

      Parties to the main proceedings

      Applicant: Meliha Veli Mustafa

      Defendant: Direktor na fond ‘Garantirani vzemania na rabotnitsite i sluzhitelnite’ kam Natsionalnia osiguritelen institut

      Questions referred

               1.

               In the light of Recital 5 of the preamble to Directive 2002/74/EC, (1) is Article 2(1) of Council Directive 80/987/EEC (2) of 20 October 1980 on the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, to be interpreted as meaning that it requires the Member States to provide guarantees for employees’ claims in insolvency proceedings at every stage of those proceedings until the declaration of insolvency, and not only at the opening of those proceedings?

               2.

               Is Article 2(1) of Directive 80/987, as amended by Directive 2002/74, infringed by a provision of national law which enables the guarantee institution to satisfy employees’ outstanding claims arising from employment relationships only in so far as those claims arise before the date of the registration of the decision to open the insolvency proceedings, if, by that decision, the activity of the employing company is not terminated and the company is not declared insolvent?

               3.

               If the answers to the previous questions are in the affirmative: Is Article 2(1) of Directive 80/987, as amended by Directive 2002/74, directly applicable, and can it be applied directly by national courts?

               4.

               If the answers to the previous questions are in the affirmative: In the absence of specific national rules on the period within which a request can be made for the guarantee institution to satisfy employees’ claims arising before the date of the registration of the decision declaring the employer insolvent (and terminating his activity), may the period of 30 days laid down in national law for the exercise of that right be applied in other cases, in accordance with the principle of effectiveness, the period being deemed to begin on the date on which the decision on the declaration of insolvency is entered in the register of companies?

      (1)  Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, OJ L 270, p. 10.

      (2)  Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, OJ 1980 L 283, p. 23.


title: Case C-3/17: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 3 January 2017 — Sporting Odds Limited v Nemzeti Adó- és Vámhivatal Központi Irányítása

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/16

         Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 3 January 2017 — Sporting Odds Limited v Nemzeti Adó- és Vámhivatal Központi Irányítása
   (Case C-3/17)
   (2017/C 112/25)
   Language of the case: Hungarian

      Referring court

   Fővárosi Közigazgatási és Munkaügyi Bíróság

      Parties to the main proceedings

      Applicant: Sporting Odds Limited

      Defendant: Nemzeti Adó- és Vámhivatal Központi Irányítása

      Questions referred

               1.

               Must Article 56 of the Treaty on the Functioning of the European Union (‘TFEU’), the prohibition of discrimination and the requirement that the restriction of gambling activities by the Member States be carried out consistently and systematically — a legal objective which the Member State justifies essentially by reference to the fight against compulsive gambling and the protection of consumers — be interpreted as meaning that the national State monopoly over online and offline sports betting and betting on horse-racing is contrary to those rules if, in addition, in the Member State, since the reorganisation of the market carried out by the latter, private service providers with physical casinos operated under a concession may organise — both online and offline — other games of chance (casino games, card games, slot machines, online casino games, online card games) which entail a considerable risk of addiction?

               2.

               Must Article 56 TFEU, the prohibition of discrimination and the requirement that the restriction of gambling activities by the Member States be carried out consistently and systematically be interpreted as meaning that that article is infringed and that requirement is not fulfilled if it is determined that the reorganisation of the market, on the grounds of combating compulsive gambling and pursuing the statutory objective of protecting consumers, has, since the market reorganisation carried out by the Member State, effectively had as its consequence, or given rise to, a continuous increase in the number of casinos, the annual tax on the casinos’ games of chance, the national budget forecast of revenue from casino concession fees, the amount of gambling chips bought by players and the amount of money needed to be entitled to play slot machines?

               3.

               Must Article 56 TFEU, the prohibition of discrimination and the requirement that the restriction of gambling activities by the Member States be carried out consistently and systematically be interpreted as meaning that that article is infringed and that requirement is not fulfilled if it is determined that the establishment of a national State monopoly and the authorised organisation of games of chance by private service providers, essentially on the grounds of combating compulsive gambling and pursuing the statutory objective of protecting consumers, have, in addition, the economic policy objective of obtaining increased net revenue from gambling and generating an exceptionally high level of revenue from the casinos market in the least amount of time possible, with the aim of financing other budgetary expenses and State public services?

               4.

               Must Article 56 TFEU, the prohibition of discrimination and the requirement that the restriction of gambling activities by the Member States be carried out consistently and systematically be interpreted as meaning that that article is infringed and that requirement is not fulfilled, and that there is an unjustified discrimination between the service providers, if it is determined that the Member State, invoking the same public policy ground, reserves certain online gambling services for the national State monopoly whilst it allows access to other gambling services by granting an increasing number of concessions?

               5.

               Must Article 56 TFEU and the prohibition of discrimination be interpreted as precluding a situation in which only service providers with physical casinos (and a concession) in Hungary may obtain a licence to offer online casino games, since service providers which do not have a physical casino in Hungary (including service providers with a physical casino in another Member State) cannot access the licence to offer online casino games?

               6.

               Must Article 56 TFEU and the prohibition of discrimination be interpreted as precluding a situation in which the Member State — through the possible initiation of a tender procedure in order to award concessions for physical casinos and through the possibility, for those with the status of trustworthy operators of games of chance, of submitting an offer [to contract] in order to obtain a concession in respect of a physical casino — provides the theoretical possibility that any service provider that fulfils the legal requirements, including a service provider established in another Member State, may obtain a concession to operate a physical casino and, once in possession of that concession, a licence to operate an online casino, but, in reality, the Member State in question does not initiate any public and transparent tender procedure to award concessions, and the service provider does not, in practice, have the possibility of submitting an offer [to contract], and, nevertheless, the authorities of the Member State declare that the service provider acted illegally by providing the service without a licence and impose an administrative penalty on it?

               7.

               Must Article 56 TFEU, the prohibition of discrimination and the requirement that the authorisation procedure be transparent, objective and public be interpreted as meaning that the Member State is precluded from establishing a system of awarding concessions in respect of certain gambling services while, at the same time, the body that decides on concessions may also, rather than initiating a tender procedure to award the concessions, conclude concession contracts with certain persons considered to be trustworthy operators of games of chance, instead of giving all the service providers the possibility of participating in the tender procedure under the same conditions, by initiating a single tender procedure?

               8.

               In the event that the answer to the seventh question is in the negative, and a Member State may validly establish a plurality of procedures for the award of the same concession: must the Member State ensure, under Article 56 TFEU, the equivalence of those procedures, in the interests of the effectiveness of EU law on fundamental freedoms, taking into account the requirement that the authorisation procedure be transparent, objective and public and the requirement of equal treatment?

               9.

               Are the answers to the sixth to eighth questions affected by the fact that in neither case is judicial review or any other effective remedy against the decision awarding the concession available?

               10.

               Must Article 56 TFEU, the sincere cooperation clause in Article 4(3) of the Treaty on European Union (‘TEU’) and the institutional and procedural autonomy of the Member States, in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights (‘the Charter’), as well as the right to effective judicial review mechanisms and the rights of defence laid down in those provisions, be interpreted as meaning that, in examining the requirements of EU law deriving from the case-law of the Court of Justice, and the necessity and proportionality of the restriction adopted by the Member State in question, the national court ruling on the dispute may order and carry out of its own motion the examination and the taking of evidence, even if this is not provided for under the national procedural legislation of the Member State?

               11.

               Must Article 56 TFEU, in conjunction with Articles 47 and 48 of the Charter, as well as the right to effective judicial review mechanisms and the rights of defence laid down in those provisions, be interpreted as meaning that in examining the requirements of EU law deriving from the case-law of the Court of Justice, and the necessity and proportionality of the restriction adopted by the Member State in question, the national court ruling on the dispute cannot place the burden of proof on the service providers affected by the restriction, but that rather it is for the Member State — and, in particular, for the State authority that adopts the contested decision in question — to justify and demonstrate the compliance with EU law, as well as the necessity and proportionality of the national legislation, and that failure to do so has, by itself, the consequence that the national legislation breaches EU law?

               12.

               Must Article 56 TFEU be interpreted, in the light also of the right to a fair procedure under Article 41(1), the right to be heard under Article 41(2)(a), and of the obligation to give reasons under 41(2)(c) of the Charter, as well as the sincere cooperation clause laid down in Article 4(3) TEU, and the institutional and procedural autonomy of the Member States, as meaning that those requirements are not fulfilled if the competent authority of the Member State does not notify the operator of games of chance of the initiation of administrative penalty proceedings in accordance with national law, and does not subsequently, in the course of the administrative proceedings, obtain that operator’s views on the compliance of the Member State’s legislation with EU law, and — without explaining in detail, in the reasons stated for the decision, that compliance and the evidence supporting it — imposes, in a single-instance procedure, a penalty classified as administrative under national law?

               13.

               In the light of Article 56 TFEU, Article 41(1) and (2)(a) and (c) of the Charter and Articles 47 and 48 thereof, as well as the right to effective judicial review mechanisms and the rights of the defence that those provisions entail, are the requirements laid down in those provisions fulfilled if the operator of games of chance may question the compatibility of the national legislation with EU law for the first time only before the national court?

               14.

               May Article 56 TFEU and the obligation for the Member States to justify and state reasons for the restriction of the free movement of services be interpreted as meaning that the Member State has not fulfilled that obligation if the relevant impact assessment on which the public policy objectives of the restriction are based was not available at either the time it adopted the restriction or at the time of the examination?

               15.

               Having regard to the framework laid down by the law for setting the amount of the administrative penalty that may be imposed, the nature of the activity penalised by the penalty, and, in particular, the extent to which the activity affects public policy and public security, as well as the punitive purpose of the penalty, may the administrative penalty in question be regarded as being ‘of a criminal nature’, for the purpose of Articles 47 and 48 of the Charter? Does this influence the answers to be given to the eleventh to fourteenth questions?

               16.

               Must Article 56 TFEU be interpreted as meaning that if, by virtue of the answers given to the foregoing questions, the court ruling on the dispute declares the legislation and its application unlawful, must it also declare that the penalty based on the national legislation that does not comply with Article 56 TFEU infringes EU law?


title: Judgment of the Court (Second Chamber) of 7 October 2004 in Case C-153/01: Kingdom of Spain v Commission of the European Communities (EAGGF — Clearance of accounts — Financial years 1996 to 1998 — Decision 2001/137/EC)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/1

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 7 October 2004
   in Case C-153/01: Kingdom of Spain v Commission of the European Communities (1)

   (EAGGF - Clearance of accounts - Financial years 1996 to 1998 - Decision 2001/137/EC)
   (2004/C 300/01)
   Language of the case: Spanish
   In Case C-153/01: action for partial annulment under Article 230 EC, brought on 9 April 2001, by Kingdom of Spain (Agent: S. Ortiz Vaamonde) against Commission of the European Communities (Agent: S. Pardo Quintillán) — the Court (Second Chamber), composed of: C. W. A. Timmermans, President of the Chamber, C. Gulmann, J. N. Cunha Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, has given a judgment on 7 October 2004, in which it:

               1.

               Annuls Commission Decision 2001/137/EC of 5 February 2001 excluding from community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) in so far as it applies to the Kingdom of Spain a financial correction corresponding to the sum of 2 426 259 870 ESP in respect of interest due under the additional milk levy scheme;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Kingdom of Spain to pay four fifths of the costs;

               4.

               Orders the Commission of the European Communities to pay one fifth of the costs.

      (1)  OJ C 186 of 30.6.2001.


title: Case T-592/15: Action brought on 12 October 2015 — Novartis v OHIM — SK Chemicals (Representation of a patch)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/35

         Action brought on 12 October 2015 — Novartis v OHIM — SK Chemicals (Representation of a patch)
   (Case T-592/15)
   (2015/C 414/46)
   Language in which the application was lodged: English

      Parties

      Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Douglas, lawyer)

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

      Other party to the proceedings before the Board of Appeal: SK Chemicals GmbH (Eschborn, Germany)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark (Representation of a patch) — Application for registration No 11 293 362

      Procedure before OHIM: Cancellation proceedings

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 7 August 2015 in Case R 2342/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision.

      Pleas in law

               —

               Infringement of Article 7(1)(e)(ii) of Regulation No 207/2009;

               —

               Infringement of the principle of fair trial by the Board of Appeal of OHIM.


title: Case C-452/13: Request for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 12 August 2013 — Germanwings GmbH v Ronny Henning

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/14

         Request for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 12 August 2013 — Germanwings GmbH v Ronny Henning
   (Case C-452/13)
   2013/C 325/25
   Language of the case: German

      Referring court

   Landesgericht Salzburg

      Parties to the main proceedings

      Applicant: Germanwings GmbH

      Defendant: Ronny Henning

      Question referred

   What time is relevant for the term ‘time of arrival’ used in Articles 2, 5, 6 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91: (1)

               (a)

               the time that the aircraft lands on the runway (‘touchdown’);

               (b)

               the time that the aircraft reaches its parking position and the parking brakes are engaged or the chocks have been applied (‘in-block time’);

               (c)

               the time that the aircraft door is opened;

               (d)

               a time defined by the parties in the context of party autonomy.

      (1)  OJ 2004 L 46, p. 1.


title: Case T-433/14: Action brought on 13 June 2014  — Superficies de Alimentación v Commission

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/58

         Action brought on 13 June 2014 — Superficies de Alimentación v Commission
   (Case T-433/14)
   2014/C 253/79
   Language of the case: Spanish

      Parties

      Applicant: Superficies de Alimentación, SA (Barcelona, Spain) (represented by: A. López Gómez, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               in the alternative, annul the decision categorising the measures which together constitute the ‘Spanish Tax Lease System’ (‘STLS’) as new State aid that is incompatible with the internal market;

               —

               in the alternative, annul Articles 1 and 4 of the contested decision, which identify the investors in the Economic Interest Groupings (EIGs) as the only beneficiaries of the alleged aid and, consequently, as solely liable for its recovery;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it orders recovery of the alleged aid in breach of general principles of EU law;

               —

               in the alternative, annul Article 4 of the contested decision, in so far as it makes a determination as to the lawfulness of private contracts between the investors and other entities, in full or in such a way as to limit the bar on passing on the burden of recovery to the profitability of the operations; and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The pleas in law and main arguments are those raised in Case T-401/14 Duro Felguera SA v Commission.


title: Case C-434/04: Reference for a preliminary ruling by the Korkein oikeus by order of that court of 6 October 2004 in the case of Jan-Erik Anders Ahokainen and Mati Leppik against Virallinen syttäjä

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/35

         Reference for a preliminary ruling by the Korkein oikeus by order of that court of 6 October 2004 in the case of Jan-Erik Anders Ahokainen and Mati Leppik against Virallinen syttäjä
   (Case C-434/04)
   (2004/C 300/66)
   Reference has been made to the Court of Justice of the European Communities by order of the Korkein oikeus (Supreme Court) (Finland)) of 6 October 2004, which was received at the Court Registry on 11 October 2004, for a preliminary ruling in the case of Jan-Erik Anders Ahokainen and Mati Leppik against Virallinen syttäjä (Public Prosecutor).
   The Korkein oikeus asks the Court of Justice to give a preliminary ruling on the following questions:

               1.

               Is Article 28 EC to be interpreted as precluding legislation of a Member State under which non-denatured ethyl alcohol of over 80 % (spirits) may be imported only by a person who has obtained a licence to do so?

               2.

               If the above question is answered in the affirmative, is the licence system to be regarded as permitted under Article 30 EC?


title: Case T-373/05: Action brought on  26 September 2005  — the Italian Republic v the Commission

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/37

         Action brought on 26 September 2005 — the Italian Republic v the Commission
   (Case T-373/05)
   (2005/C 296/74)
   Language of the case: Italian
   Parties

      Applicant(s): the Italian Republic (represented by: Paolo Gentili, Avvocato dello Stato)

      Defendant(s): the Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:
   annul Commission decision C(2005)2756 of 20 July 2005 insofar as it imposes an overall adjustment on the tobacco aid scheme operated by the Italian Republic amounting to 5 % of the expenditure declared in 2001 and 2002 for the 2000 harvest and order the Commission to pay the costs of the proceedings.
   Pleas in law and main arguments
   The Italian government has brought an action before the Court of First Instance of the European Communities challenging Commission Decision C(2005) 2756 of 20 July 2005, notification of which was given on that date, insofar as it makes an overall financial adjustment to the tobacco aid scheme amounting to 5 % of the expenditure declared in 2001 and 2002 for the marketing year 2000.
   In support of its action the Italian government argues:

               1)

               that Decision C(2005) 2756 of 20 July 2005 contains an inadequate statement of reasons in relation to Article 253 of the Treaty and that the Commission has misused its powers by distorting the facts in that the contested decision makes an overall adjustment to the aid granted for tobacco production in the marketing year 2000 without providing an appropriately detailed statement of reasons as to the rules allegedly infringed or indeed any factual grounds that could justify the decision;

               2)

               that Article 7(4) of Regulation (EC) No 1258/1999 (1) was infringed and misapplied in that the decision to make an overall adjustment to the aid granted for tobacco production in the marketing year 2000 lacks the detailed statement of grounds which is a necessary requirement of that provision.

      (1)  Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ L 160, 26/6/1999, p. 103).


title: Action brought on 25 January 1996 by the European Parliament against the Council of the European Union (Case C-22/96)

text:
30 . 3 . 96             EN                 Official Journal of the European Communities                                        No C 95/7
    — infringement of the principle of equal treatment and            Pleas in law and main arguments adduced in support:
         non-discrimination : by generally imposing the
         opening up of the alternative networks to operators          — the aim and the content of the contested act are part of
         who exploit them in very different national systems,             Title XII of the EC Treaty and Article 129d ( inasmuch as
         benefitting some and adversely affecting others as
                                                                          it is a procedural article ) is the only appropriate legal
         a result of being incompatible with the duty of
                                                                          basis . On the one hand, despite the procedural and
         non-discrimination and of equal treatment required,
                                                                          terminological changes made to the Commission's
         not only of the Member States, but also of the                   proposal, there are numerous 'policy' elements which
         Community institutions . This defect of the Directive            justify recourse to Article 129d ( 1 ). On the other, there
         is even more serious inasmuch as since the legal
                                                                          are also a number of 'interoperability' aspects ( second
         system governing the activity of cable television                indent of Article 129c ( 1 ) as basic Article ) which justify
         operators in Portugal is liberal as regards the issuing          of themselves recourse to Article 129d ( 3 ). Finally, since
         of licences, it magnifies the impact of liberalization,
                                                                          projects of common interest have been clearly identified,
         when in fact it would be desirable, having regard
                                                                          the Community contribution falls within the scope of
         to the comparative underdevelopment of the                       the third indent of Article 129c ( 1 ) and the correct legal
         Portuguese national network, that the effect of the              basis is in this case also Article 1 29d ( 3 ) . Given that there
         measure should be felt gradually and over time .
                                                                          are specific legal bases in the Treaty, Article 235 of the
                                                                          EC Treaty is not at all relevant,
— Misuse of powers : Directive 95/5 1/EC does not seem to
     be intended to promote fairness in greater competition
    with regard to the leasing of networks and,                       — in the alternative, lack of competence, misuse of powers
    consequently, to the liberalized telecommunications                   as regards Article 2 ( 2 ) of the contested Decision :
     services . Rather, it advances in a concealed manner the             that provision gives the contested Decision an
     total liberalization of the infrastructures and places in a          unascertainable scope, constitutes an arrogation of
     privileged position those cable television operators who             competence by the Council and, above all, is tantamount
     are already established in some of the Member States                 to disregarding ab initio the rights of Parliament to
     where they are not subject to any competition .                      intervene in the legislative process .
H OJ No L 256 , 26 . 10 . 19 95 , p . 49 .                            0 ) Decision 95/468/EC, published in OJ No L 269 , 11 . 11 . 1995 ,
                                                                          p. 23 .
  Action brought on 25 January 1996 by the European
  Parliament against the Council of the European Union
                         ( Case C-22/96 )                             Action brought on 26 January 1996 by the Commission of
                                                                       the European Communities against the French Republic
                           ( 96/C 95/ 10 )
                                                                                ( Case C-23/96 )
                                                                                ( 96/C 95/ 11 )
An action against the Council of the European Union was
brought before the Court of Justice of the European
Communities on 25 January 1996 by the European                        An action against the French Republic was brought before
Parliament, represented by Johann Schoo and Jose Luis                 the Court of Justice of the European Communities on
Rufas Quintana, action as Agents, with an address for                 26 January 1996 by the Commission of the European
service in Luxembourg at the General Secretariat of the               Communities, represented by Michel Nolin and Jean
Parliament, Batiment Tour, Kirchberg.                                 Francis Pasquier, acting as Agents, with an address for
                                                                      service in Luxembourg at the office of Carlos Gomez de la
                                                                      Cruz, of its Legal Service, Wagner Centre , Kirchberg.
The applicant claims that the Court should :
— annul, pursuant to Article 173 of the EC Treaty, the                The applicant claims that the Court should :
    Decision of the Council of 6 November 1995 on a
     Community contribution for telematic interchange of
     data between administrations in the Community                    — declare that, by failing to adopt and bring into force
     ( IDA )( 1 ),                                                        within the prescribed period the laws, regulations
                                                                          or administrative provisions necessary to comply
                                                                          with Commission Directive 91 /507/EEC ( J ) modifying
— annul, in any event, also pursuant to Article 173 of the                the Annex to Council Directive 75/318/EEC ( 2 ) on the
     EC Treaty, Article 2 ( 2 ) of that Decision,                         approximation of the laws of Member States relating
                                                                          to analytical , pharmacotoxicological and clinical
— order the defendant to pay the costs .                                  standards and protocols in respect of the testing of


title: Case C-442/09: Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 13 November 2009 — Karl Heinz Bablok, Stefan Egeter, Josef Stegmeier, Karlhans Müller, Barbara Klimesch v Freistaat Bayern — Intervening parties: Monsanto Technology Llc., Monsanto Agrar Deutschland GmbH, Monsanto Europa S.A./N.V.

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/28

         Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 13 November 2009 — Karl Heinz Bablok, Stefan Egeter, Josef Stegmeier, Karlhans Müller, Barbara Klimesch v Freistaat Bayern — Intervening parties: Monsanto Technology Llc., Monsanto Agrar Deutschland GmbH, Monsanto Europa S.A./N.V.
   (Case C-442/09)
   2010/C 24/51
   Language of the case: German

      Referring court

   Bayerischer Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicants: Karl Heinz Bablok, Stefan Egeter, Josef Stegmeier, Karlhans Müller, Barbara Klimesch

      Defendant: Freistaat Bayern

      Intervening parties: Mansanto Technology Llc., Monsanto Agrar Deutschland GmbH, Monsanto Europe SA/NV

      Questions referred

               1.

               Must the term ‘genetically modified organism’ or ‘GMO’ defined in point 5 of Article 2 of Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (1) be interpreted as meaning that it includes also material from genetically modified plants (in this case, pollen from the genetically modified MON 810 strain of maize) which although containing genetically modified DNA and genetically modified proteins (in this case, Bt toxin) at the time of entering a food (in this case, honey) or designation for use as a food/food supplement does not possess (or no longer possesses) a specific and individual capacity to reproduce?

               2.

               If Question 1 is answered in the negative:

                           (a)

                           Does it suffice, at any rate for foods which within the meaning of point 10 of Article 2 of Regulation (EC) No 1829/2003 are deemed to be ‘produced from GMOs’, that the food contains material from genetically modified plants which previously possessed a specific and individual capacity to reproduce?

                           (b)

                           If that is answered in the affirmative:

                     Must the term ‘produced from GMOs’ within the meaning of point 10 of Article 2 and Article 3(1)(c) of Regulation (EC) No 1829/2003 be interpreted as meaning that in relation to GMOs no deliberate and targeted production process is required and the unintentional and adventitious contamination of food (in this case, honey or pollen as a food supplement) by (former) GMOs is also covered?

               3.

               If either Question 1 or Question 2 is answered in the affirmative:
               Must Article 3(1) and Article 4(2) of Regulation (EC) No 1829/2003 be interpreted as meaning that any contamination of food of animal origin, such as honey, through genetically modified material lawfully present in the environment triggers the obligation for such to be authorised and supervised or can thresholds applicable elsewhere (for example, under Article 12(2) of the Regulation) apply mutatis mutandis?

      (1)  OJ 2003 L 268, p. 1


title: Joined Cases C-379/08 and C-380/08: Judgment of the Court (Grand Chamber) of 9 March 2010 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Sicilia (Italy)) — Raffineri Mediterranee SpA (ERG) (C-379/08), Polimeri Europa SpA, Syndial SpA v Ministero dello Sviluppo economico, Ministero della Salute, Ministero Ambiente e Tutela del Territorio e del Mare, Ministero delle Infrastrutture, Ministero dei Trasporti, Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Regione Siciliana, Assessorato regionale Territorio ed Ambiente (Sicilia), Assessorato regionale Industria (Sicilia), Prefettura di Siracusa, Istituto superiore di Sanità, Commissario Delegato per Emergenza Rifiuti e Tutela Acque (Sicilia), Vice Commissario Delegato per Emergenza Rifiuti e Tutela Acque (Sicilia), Agenzia Protezione Ambiente e Servizi tecnici (APAT), Agenzia regionale Protezione Ambiente (ARPA Sicilia), Istituto centrale Ricerca scientifica e tecnologica applicata al Mare, Subcommissario per la Bonifica dei Siti contaminati, Provincia regionale di Siracusa, Consorzio ASI Sicilia orientale Zona Sud, Comune di Siracusa, Comune di Augusta, Comune di Melilli, Comune di Priolo Gargallo, Azienda Unità sanitaria locale No 8, Sviluppo Italia Aree Produttive SpA, Invitalia (Agenzia nazionale per l’attrazione degli investimenti e lo sviluppo d’impresa) SpA, formerly Sviluppo Italia SpA, ENI SpA (C-380/08) v Ministero Ambiente e Tutela del Territorio e del Mare, Ministero dello Sviluppo economico, Ministero della Salute, Regione siciliana, Istituto superiore di Sanità, Agenzia per la Protezione dell’Ambiente e per i Servizi tecnici, Commissario delegato per l’Emergenza rifiuti e la Tutela delle Acque ( Polluter pays principle — Directive 2004/35/EC ﾔ Environmental liability — Applicability ratione temporis — Pollution occurring before the date laid down for implementation of that directive and continuing after that date — Remedial measures — Duty to consult the undertakings concerned — Annexe II)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/10

         Judgment of the Court (Grand Chamber) of 9 March 2010 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Sicilia (Italy)) — Raffineri Mediterranee SpA (ERG) (C-379/08), Polimeri Europa SpA, Syndial SpA v Ministero dello Sviluppo economico, Ministero della Salute, Ministero Ambiente e Tutela del Territorio e del Mare, Ministero delle Infrastrutture, Ministero dei Trasporti, Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Regione Siciliana, Assessorato regionale Territorio ed Ambiente (Sicilia), Assessorato regionale Industria (Sicilia), Prefettura di Siracusa, Istituto superiore di Sanità, Commissario Delegato per Emergenza Rifiuti e Tutela Acque (Sicilia), Vice Commissario Delegato per Emergenza Rifiuti e Tutela Acque (Sicilia), Agenzia Protezione Ambiente e Servizi tecnici (APAT), Agenzia regionale Protezione Ambiente (ARPA Sicilia), Istituto centrale Ricerca scientifica e tecnologica applicata al Mare, Subcommissario per la Bonifica dei Siti contaminati, Provincia regionale di Siracusa, Consorzio ASI Sicilia orientale Zona Sud, Comune di Siracusa, Comune di Augusta, Comune di Melilli, Comune di Priolo Gargallo, Azienda Unità sanitaria locale No 8, Sviluppo Italia Aree Produttive SpA, Invitalia (Agenzia nazionale per l’attrazione degli investimenti e lo sviluppo d’impresa) SpA, formerly Sviluppo Italia SpA, ENI SpA (C-380/08) v Ministero Ambiente e Tutela del Territorio e del Mare, Ministero dello Sviluppo economico, Ministero della Salute, Regione siciliana, Istituto superiore di Sanità, Agenzia per la Protezione dell’Ambiente e per i Servizi tecnici, Commissario delegato per l’Emergenza rifiuti e la Tutela delle Acque
   (Joined Cases C-379/08 and C-380/08) (1)

   (‘Polluter pays’ principle - Directive 2004/35/EC - Environmental liability - Applicability ratione temporis - Pollution occurring before the date laid down for implementation of that directive and continuing after that date - Remedial measures - Duty to consult the undertakings concerned - Annexe II)
   2010/C 113/13
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale della Sicilia

      Parties to the main proceedings

      Applicants: Raffineri Mediterranee SpA (ERG) (C-379/08), Polimeri Europa SpA, Syndial SpA (C-379/08), ENI SpA (C-380/08)

      Defendants: Ministero dello Sviluppo economico, Ministero della Salute, Ministero Ambiente e Tutela del Territorio e del Mare, Ministero delle Infrastrutture, Ministero dei Trasporti, Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Regione Siciliana, Assessorato regionale Territorio ed Ambiente (Sicilia), Assessorato regionale Industria (Sicilia), Prefettura di Siracusa, Istituto superiore di Sanità, Commissario Delegato per Emergenza Rifiuti e Tutela Acque (Sicilia), Vice Commissario Delegato per Emergenza Rifiuti e Tutela Acque (Sicilia), Agenzia Protezione Ambiente e Servizi tecnici (APAT), Agenzia regionale Protezione Ambiente (ARPA Sicilia), Istituto centrale Ricerca scientifica e tecnologica applicata al Mare, Subcommissario per la Bonifica dei Siti contaminati, Provincia regionale di Siracusa, Consorzio ASI Sicilia orientale Zona Sud, Comune di Siracusa, Comune di Augusta, Comune di Melilli, Comune di Priolo Gargallo, Azienda Unità sanitaria locale No 8, Sviluppo Italia Aree Produttive SpA, Invitalia (Agenzia nazionale per l’attrazione degli investimenti e lo sviluppo d’impresa) SpA, formerly Sviluppo Italia SpA

      Intervening parties: ENI Divisione Exploration and Production SpA, ENI SpA, Edison SPA (C-379/08), Invitalia (Agenzia nazionale per l’attrazione degli investimenti e lo sviluppo d’impresa) SpA, formerly Sviluppo Italia SpA (C-380/08)

      Re:

   Reference for a preliminary ruling — Tribunale amministrativo regionale della Sicilia (Italy) — Interpretation of Article 7 of and Annex II to Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 142, p. 56) — Remedial measures — Works on the environmental matrices — National legislation which allows the authorities to require, without assessing the site-specific conditions, that actions be taken which are different from and go further than those originally chosen at the conclusion of an appropriate investigation carried out an a consultative basis which have already been approved and put into effect and are being implemented — Priolo Site of National Interest

      Operative part of the judgment

               1.

               Articles 7 and 11(4) of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, in conjunction with Annex II to the directive, must be interpreted as permitting the competent authority to alter substantially measures for remedying environmental damage which were chosen at the conclusion of a procedure carried out on a consultative basis with the operators concerned and which have already implemented or begun to be put into effect. However, in order to adopt such a decision, that authority:

                           —

                           is required to give the operators on whom such measures are imposed the opportunity to be heard, except where the urgency of the environmental situation requires immediate action on the part of the competent authority;

                           —

                           is also required to invite, inter alia, the persons on whose land those measures are to be carried out to submit their observations and to take them into account; and

                           —

                           must take account of the criteria set out in Section 1.3.1. of Annex II to Directive 2004/35 and state in its decision the grounds on which its choice is based, and, where appropriate, the grounds which justify the fact that there was no need for a detailed examination in the light of those criteria or that it was not possible to carry out such an examination due, for example, to the urgency of the environmental situation.

               2.

               In circumstances such as those in the main proceedings, Directive 2004/35 does not preclude national legislation which permits the competent authority to make the exercise by operators at whom environmental recovery measures are directed of the right to use their land subject to the condition that they carry out the works required by the authority, even though that land is not affected by those measures because it has already been decontaminated or has never been polluted. However, such a measure must be justified by the objective of preventing a deterioration of the environmental situation in the area in which those measures are implemented or, pursuant to the precautionary principle, by the objective of preventing the occurrence or resurgence of further environmental damage on the land belonging to the operators which is adjacent to the whole shoreline at which those remedial measures are directed.

      (1)  OJ C 301, 22.11.2008.


title: Case T-380/16: Order of the General Court of 8 March 2017 — Popescu v Romania (Manifest lack of jurisdiction)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/45

         Order of the General Court of 8 March 2017 — Popescu v Romania
   (Case T-380/16)
   ((Manifest lack of jurisdiction))
   (2017/C 144/62)
   Language of the case: Romanian

      Parties

      Applicant: Doina Popescu (Slatina, Romania) (represented by: M. Ispas, lawyer)

      Defendant: Romania

      Re:

   Application seeking to obtain, first, the conviction of several Romanian national authorities for alleged criminal acts and, second, compensation for the damage allegedly suffered by the applicant.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Ms Doina Popescu shall bear her own costs.


title: Case T-309/10: Judgment of the General Court of 21 January 2014 — Klein v Commission (Non-contractual liability — Medical devices — Articles 8 and 18 of Directive 93/42/EEC — Failure of the Commission to act following notification of a decision prohibiting placing on the market — Sufficiently serious breach of a legal rule conferring rights on individuals)

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/8

         Judgment of the General Court of 21 January 2014 — Klein v Commission
   (Case T-309/10) (1)

   (Non-contractual liability - Medical devices - Articles 8 and 18 of Directive 93/42/EEC - Failure of the Commission to act following notification of a decision prohibiting placing on the market - Sufficiently serious breach of a legal rule conferring rights on individuals)
   2014/C 61/12
   Language of the case: German

      Parties

      Applicant: Christoph Klein (Großgmain, Austria) (represented by: D. Schneider-Addae-Mensah, lawyer)

      Defendant: European Commission (represented by: A. Sipos and G. von Rintelen, acting as Agents, assisted by C. Winkler, lawyer)

      Intervener in support of the defendant: Federal Republic of Germany (represented initially by T. Henze and N. Graf Vitzthum, and subsequently by T. Henze and J. Möller, acting as Agents)

      Re:

   Action for damages, on the basis of the combined provisions of Article 268 TFEU and the second paragraph of Article 340 TFEU, seeking compensation for the injury allegedly suffered by the applicant as a result of the Commission’s breach of its obligations under Article 8 of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Christoph Klein to bear his own costs and to pay those incurred by the European Commission;

               3.

               Orders the Federal Republic of Germany to bear its own costs.

      (1)  OJ C 347, 26.11.2011.


title: Case T-179/06: Judgment of the Court of First Instance of 3 June 2009 — Commission v Burie Onderzoek en advies (Arbitration clause — Contracts concluded under the RACE II programme and a specific programme in the field of telematic applications of common interest — Repayment of part of the advances paid — Jurisdiction of the Court of First Instance — Partial inadmissibility — Principle of sound administration — Counterclaim)

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/9

         Judgment of the Court of First Instance of 3 June 2009 — Commission v Burie Onderzoek en advies
   (Case T-179/06) (1)

   (Arbitration clause - Contracts concluded under the RACE II programme and a specific programme in the field of telematic applications of common interest - Repayment of part of the advances paid - Jurisdiction of the Court of First Instance - Partial inadmissibility - Principle of sound administration - Counterclaim)
   2009/C 167/19
   Language of the case: Dutch

      Parties

      Applicant: Commission of the European Communities (represented initially by A. Weimar and L. Escobar Guerrero, and subsequently by W. Roels, Agents, assisted by W. Rupert)

      Defendant: Burie Onderzoek en Advies BV (Nijeholtpade, Netherlands) (represented by: I. van den Berge and A. Appelman, lawyers)

      Re:

   Application pursuant to an arbitration clause within the meaning of Article 238 EC seeking an order that Burie Onderzoek en Advies BV repay part of the advances paid by the European Community, together with default interest, in implementation of two financing contracts in the field of advanced communications technologies in Europe and of telematic applications.

      Operative part of the judgment

   The Court:

               1.

               Dismisses as inadmissible the action concerning the repayment of advances paid by the Commission under the Barbara (Broad Range of Community Based Telematics Applications in Rural Areas) contract with reference number ‘Project R 2022’ in so far as that action is directed against Burie Onderzoek en Advies BV, on the ground that it is clear that the Court of First Instance has no jurisdiction to take cognisance of the action;

               2.

               Orders Burie Onderzoek en Advies, under the Telepromise (Telematics to Provide for Missing Services) contract with reference number ‘Project UR 1028’, to pay the Commission the principal sum of EUR 109 535,62 plus default interest at the applicable statutory rate in the Netherlands from 31 August 2001 until full payment of the debt;

               3.

               Dismisses the counterclaim of Burie Onderzoek en Advies;

               4.

               Orders each party to bear its own costs.

      (1)  OJ C 224, 16.9.2006.


title: Case C-343/00: Action brought on 18 September 2000 by the Commission of the European Communities against the French Republic

text:
25.11.2000              EN                      Official Journal of the European Communities                                      C 335/35
c)     failure to comply with the duties of loyal co-operation,            Pleas in law and main arguments
       legal certainty and good administration;
                                                                           —     Error of law, in that the Court of First Instance exceeded
d)     breach of legitimate expectations.                                        the limits of its power of review and in so doing gave an
                                                                                incorrect and unduly restrictive interpretation of the
                                                                                second paragraph of Article 17 of the Staff Regulations
(1) Commission Decision of 5 July 2000 excluding from Community                  of Officials: the fact that an official does not act in a
    financing certain expenditure incurred by the Member States under
                                                                                ‘managerial’ capacity is clearly not decisive and is not to
    the Guarantee Section of the European Agricultural Guidance and
    Guarantee Fund (EAGGF) (OJ L 180, 19.07.2000, p. 49).                        be found as a condition in the second paragraph of
(2) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on                Article 17 of the Staff Regulations. Likewise, the insti-
    the financing of the common agricultural policy [OJ L 94,                    tution must be in a position to control the points of view
    28.04.70, p. 13 (SE SERI 70(1) p. 218)].                                     adopted by its officials, especially where they conflict
(3) on the financing of the common agricultural policy (OJ L 160,                with those expressed at the time, or where the official
    26.06.1999, p. 103).                                                         expresses his views on matters in respect of which it is
(4) Council Regulation (EEC) No 2080/92 of 30 June 1992 instituting              the Commission’s express intention to adopt a ‘neutral’
    a Community aid scheme for forestry measures in agriculture (OJ              policy. Last, it is difficult to see how a point of view
    L 215, 30.07.92, p. 96).                                                     addressed to an audience of ‘specialists’ is by nature less
                                                                                damaging to the institution than if it were expressed in
                                                                                other circumstances.
                                                                           —     Lack of reasoning.
Appeal brought on 15 September 2000 by the Com-
mission of the European Communities against the judg-
ment delivered on 14 July 2000 by the Fourth Chamber
of the Court of First Instance of the European Communi-
ties in Case T-82/99 between Michael Cwik and the
          Commission of the European Communities
                                                                           Action brought on 18 September 2000 by the Com-
                         (Case C-340/00 P)                                 mission of the European Communities against the French
                                                                                Republic
                          (2000/C 335/60)
                                                                                (Case C-343/00)
An appeal against the judgment delivered on 14 July 2000 by
the Fourth Chamber of the Court of First Instance of the
                                                                                (2000/C 335/61)
European Communities in Case T-82/99 between Michael
Cwik and the Commission of the European Communities
was brought before the Court of Justice of the European                    An action against the French Republic was brought before the
Communities on 15 September 2000 by the Commission of                      Court of Justice of the European Communities on 18 Septem-
the European Communities, represented by J. Currall, Legal                 ber 2000 by the Commission of the European Communities,
Adviser, acting as Agent, and Denis Waelbroeck, of the Brussels            represented by Gérard Berscheid, of its Legal Service, acting as
Bar, with an address for service in Luxembourg at the office of            Agent, with an address for service in Luxembourg at the office
C. Gómez de la Cruz, of the Legal Service, Wagner Centre,                 of Carlos Gómez de la Cruz, also of the Commission’s Legal
Kirchberg.                                                                 Service, Wagner Centre, Kirchberg.
The appellant claims that the Court should:
                                                                           The applicant claims that the Court should:
—      declare the appeal admissible and well founded;
                                                                           —     Declare that, by failing to bring into force, within the
—      set aside the judgment delivered by the Fourth Chamber                    prescribed period, the laws, regulations and administrat-
       of the Court of First Instance on 14 July 2000 in Case                    ive provisions needed in order to comply with Com-
       T-82/99 Michael Cwik v European Commission;                               mission Directive 98/87/EC of 13 November 1998
                                                                                amending Council Directive 79/373/EEC on the market-
—      accordingly, dismiss the applicant’s action in that case or,              ing of compound feedingstuffs (1), the French Republic
       in the alternative, refer the case back to the Court of First             has failed to fulfil its obligations under Article 2 of
       Instance;                                                                 Directive 98/87/EC;
—      order the applicant to bear his own costs.                          —     Order the French Republic to pay the costs.
 ---pagebreak--- C 335/36              EN                    Official Journal of the European Communities                                   25.11.2000
Pleas in law and main arguments                                              law in finding that the AECC had not committed a
                                                                             manifest error of assessment or misused its powers by
The pleas in law and main arguments correspond to those in                   not considering the applicant’s application and in not
Case C-335/00 (2); the period for transposition laid down by                 declaring that the contested decision was manifestly
Article 2 of the Directive expired on 30 June 1999.                          vitiated by an inadequate statement of reasons.
(1) OJ L 318, 27.11.1998, p. 43.                                       —     Error in law: the Court of First Instance committed an
(2) OJ C ...                                                                 error in law by considering that the applicant had not
                                                                             lodged within the time-limits a complaint against the
                                                                             decision not to renew his contract as a temporary
                                                                             member of staff beyond 30 June 1998. A definitive and
                                                                             unambiguous decision to that effect is not to be found in
                                                                             the letter from the Director of CEDEFOP of 25 May 1998
                                                                             but in the letter of 3 June 1998 which is based on a
Appeal brought on 18 September 2000 by Michel Hend-                          reexamination of the applicant’s legal situation in the
rickx against the judgment delivered on 13 July 2000 by                      light of a new fact, namely the report of the chairperson
the Fifth Chamber of the Court of First Instance of the                      of the selection committee.
European Communities in Case T-87/99 between Michel
Hendrickx and European Centre for the Development of
                      Vocational Training
                       (Case C-344/00 P)
                        (2000/C 335/62)
An appeal against the judgment delivered on 13 July 2000 by
the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-87/99 between Michel
Hendrickx and European Centre for the Development of
Vocational Training (CEDEFOP) was brought before the Court
of Justice of the European Communities on 18 September                 Appeal brought on 19 September 2000 by the Fédération
2000 by Michel Hendrickx, represented by Jean-Nöel Louis and           Nationale d’Agriculture Biologique des Régions de France
Véronique Peere, with an address for service in Luxembourg at          (FNAB), the Syndicat Européen des Transformateurs de
the offices of Société de Gestion Fiduciaire s.à.r.l., 13 Avenue       Distributeurs de Produits de l’Agriculture Biologique
du Bois.                                                               (SETRAB) and Sàrl Est Distribution Biogam against the
                                                                       order delivered on 11 July 2000 by the Court of First
The appellant claims that the Court should:                            Instance (Third Chamber) in Case T-268/99 between
                                                                       the Fédération Nationale d’Agriculture Biologique des
—     annul the decision by CEDEFOP rejecting the applicant’s          Régions de France (FNAB), the Syndicat Européen des
      application for the post of Head of General Support              Transformateurs et Distributeurs de Produits de l’Agricul-
      Services (Administration);                                       ture Biologique and Sàrl Est Distribution Biogam and the
                                                                                Council of the European Union
—     annul the decision not to renew the applicant’s contract
      as a member of the temporary staff contract beyond
      30 June 1998;
                                                                                (Case C-345/00 P)
—     order the defendant to pay the costs.
Pleas and main arguments                                                                        (2000/C 335/63)
—     Error in law: the Court of First Instance committed an
      error in law by considering that the authority empowered
      to conclude contracts of employment (AECC) had not               An appeal against the order delivered on 11 July 2000 by the
      committed a manifest error of assessment or misused its          Third Chamber of the Court of First Instance of the European
      powers by not considering the applicant for the post of          Communities was brought before the Court of Justice of
      Head of General Support Services (Administration) on             the European Communities on 19 September 2000 by the
      the ground that he ‘... has not obtained the minimum             Fédération Nationale d’Agriculture Biologique des Régions de
      requisite number of points’. The Court committed an              France (FNAB), the Syndicat Européen des Transformateurs et
      error of assessment by not verifying the lawfulness of the       Distributeurs de Produits de l’Agriculture Biologique (SETRAB)
      work of the selection committee and, in particular, of the       and Sàrl Est Distribution Biogam, represented by Dirk Leer-
      decision to set a minimum of 70 % of the points in               makers, of the Brussels and Luxembourg Bars, and Catriona
      the view of the binding nature of vacancy/competition            Hatton, Solicitor, with an address for service in Luxembourg
      notices. In those circumstances, it committed an error in        at 5 Place du Théâtre.


title: Case C-403/06 P: Appeal brought on 27 September 2006 by Chafiq Ayadi against the judgment of the Court of First Instance (Second Chamber) delivered on 12 July 2006 in Case T-253/02: Chafiq Ayadi v Council of the European Union

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/32

         Appeal brought on 27 September 2006 by Chafiq Ayadi against the judgment of the Court of First Instance (Second Chamber) delivered on 12 July 2006 in Case T-253/02: Chafiq Ayadi v Council of the European Union
   (Case C-403/06 P)
   (2006/C 294/56)
   Language of the case: English
   Parties

      Appellant: Chafiq Ayadi (represented by: H. Miller, Solicitor and S. Cox, Barrister)

      Other parties to the proceedings: Council of the European Union, United Kingdom of Great Britain and Northern Ireland, Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should order that:

               —

               the decision of the Court of First Instance is set aside, in whole;

               —

               it is declared that Articles 2 and 4 and Annex 1 of Council Regulation (EC) No 881/2002 (1) are invalid insofar as they are of direct and individual concern to the Appellant;

               —

               the Council pay the Appellant's costs of this appeal and of the proceedings before the Court of First Instance.

         Pleas in law and main arguments
   The appellant submits that the Court of First Instance erred in law in:

               a)

               failing to hold that Article 308 EC, in conjunction with Articles 60 EC and 301 EC, did not confer power on the Council to make the impugned provisions;

               b)

               failing to hold that the making of the impugned powers infringed the fundamental principle of subsidiarity and/or Article 5 EC second paragraph;

               c)

               failing to hold that an essential procedureal requirement has been infringed in the making of the impugned provisions, namely the requirement that the Council state adequate reasons why the measures considered necessary cannot be determined by individual Member States.

               d)

               holding that decisions of the Security Council of the United Nations ('UNSC') which call upon Member States of the United Nations are binding on the Member States and/or upon the Community;

               e)

               holding that the Community courts can only annul a Community measure implementing a UNSC decision by reference to the standard of ius cogens and in failing to hold that it can annul such a measure in order to protect human rights recognised in the legal order of the United Nations;

               f)

               failing to hold that the impugned parts of Regulation 881/2002 infringe the Appellant's human rights.

      (1)  Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan
   OJ L 139, p. 9