title: Judgment of the Court (Sixth Chamber) of 13 April 2000 in Case C-274/98: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — Directive 91/676/EEC)

text:
24.6.2000                EN                      Official Journal of the European Communities                                          C 176/3
                  JUDGMENT OF THE COURT                                     Appeal brought on 16 February 2000 against the judg-
                                                                            ment delivered on 23 November 1999 by the Third
                                                                            Chamber of the Court of First Instance of the European
                          (Sixth Chamber)                                   Communities in Case T-173/98 between Unión de
                                                                            Pequeños Agricultores and Council of the European
                                                                                Union
                          of 13 April 2000
                                                                                (Case C-50/00 P)
in Case C-274/98: Commission of the European Communi-
                    ties v Kingdom of Spain (1)                                                      (2000/C 176/05)
                                                                            An appeal against the judgment delivered on 23 November
(Failure by a Member State to fulfil its obligations —                      1999 by the Third Chamber of the Court of First Instance of
                       Directive 91/676/EEC)                                the European Communities in Case T-173/98 between Unión
                                                                            de Pequeños Agricultores and Council of the European was
                                                                            brought before the Court of Justice of the European Communi-
                           (2000/C 176/04)                                  ties on 16 February 2000 by the Unión de Pequeños Agricul-
                                                                            tores, represented by Javier Ledesma Bartret and José Jiménez
                                                                            Laiglesia Oñate, with an address for service in Luxembourg
                                                                            care of Concepción Llaser Moyano, 22 Rue Wenkelhiel,
                    (Language of the case: Spanish)                         L-5680 Dalheim.
                                                                            The appellant claims that the Court should:
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                          1. Set aside the order of the Court of First Instance of
                                                                                23 November 1999 in Case T-173/98;
In Case C-274/98: Commission of the European Communities                    2. Pursuant to Article 55 of the Statute of the Court of Justice
(Agents: E. Gippini Fournier and F. de Sousa Fialho) v Kingdom                   of the EC declare admissible the main action brought on
of Spain (Agent: M. López-Monı́s Gallego) — application for a                   20 October 1998 by the appellant and refer the case back
declaration that by failing to establish action programmes                       to the Court of First Instance for judgment on the merits
pursuant to Article 5 of Council Directive 91/676/EEC of                         of the case.
12 December 1991 concerning the protection of waters
against pollution caused by nitrates from agricultural sources
(OJ 1991 L 375, p. 1; corrigendum to the Spanish version in
OJ 1993 L 92, p. 51), the Kingdom of Spain has failed to fulfil             Pleas in law and main arguments
its obligations under the EC Treaty — the Court (Sixth
Chamber), composed of: J.C. Moitinho de Almeida, President
of the Chamber, R. Schintgen, G. Hirsch, V. Skouris and                     Irregular procedure and breach of Community law:
F. Macken (Rapporteur), Judges; G. Cosmas, Advocate General;
R. Grass, Registrar, has given a judgment on 13 April 2000, in
which it:                                                                   — the order misunderstands and misinterprets the arguments
                                                                                submitted by the appellant in so far as it relies on the
                                                                                fundamental right to effective judicial protection. There
1. Declares that by not establishing the action programmes referred              was no justification for infringing the appellant’s funda-
    to in Article 5 of Council Directive 91/676/EEC of 12 December               mental right to effective judicial protection as a result of
    1991 concerning the protection of waters against pollution                   declaring its action inadmissible despite the ‘non-existence’
    caused by nitrates from agricultural sources the Kingdom of                  of an internal remedy, whereas, in the instant case, the
    Spain has failed to fulfil its obligations under the directive;              finding of inadmissibility in the appellant’s view does not
                                                                                meet the requirement of ‘effectiveness’ required by the
                                                                                fundamental right relied upon.
2. Orders the Kingdom of Spain to pay the costs.
                                                                            — the grounds for the order are inadequate as regards
                                                                                the appellant’s line of reasoning so far as concerns its
                                                                                fundamental right to effective judicial protection, and it
(1) OJ C 278 of 5.9.1998.                                                        again misunderstands the arguments put forward by the
                                                                                appellant.
                                                                            — the grounds of the order are contradictory with regard to
                                                                                the consideration of the principle of right to a fair hearing.


title: Case C-57/06 P: Appeal brought on  2 February 2006  by Elisabetta Righini against the judgment of the Court of First Instance (Fifth Chamber) of  15 November 2005  in Case T-145/04 Elisabetta Righini v Commission of the European Communities

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/11

         Appeal brought on 2 February 2006 by Elisabetta Righini against the judgment of the Court of First Instance (Fifth Chamber) of 15 November 2005 in Case T-145/04 Elisabetta Righini v Commission of the European Communities
   (Case C-57/06 P)
   (2006/C 74/20)
   Language of the case: French
   An appeal against the judgment of the Court of First Instance (Fifth Chamber) of 15 November 2005 in Case T-145/04 Elisabetta Righini v Commission of the European Communities was brought before the Court of Justice of the European Communities on 2 February 2006 by Elisabetta Righini, represented by Eric Boigelot, avocat.
   The applicant claims that the Court should:

               (1)

               declare the appeal admissible and well founded and, consequently

               (2)

               annul the judgment of the Court of First Instance of the European Communities in Case T-145/04 Righini v Commission delivered on 15 November 2005,

               (3)

               itself give judgment in the case and, upholding the appellant's initial application in Case T-145/04:

                           —

                           annul the Commission's decisions to classify the appellant on her entry into service in Grade A*8/3 (ex A7/3), whether as a member of the temporary staff or as a probationary official, which were notified to her on 27 May 2003 and 30 June 2003;

                           —

                           annul the express decision of 21 January 2004, notified on 23 January 2004, rejecting the appellant's complaint registered on 14 August 2003 under the reference R/485/03;

                           —

                           in any event, order the respondent to pay the costs.

         Pleas in law and main arguments
   The pleas in law of the appeal, pursuant to Article 58 of the Statute of the Court of Justice, allege a breach of Community law and procedural irregularities before the Court of First Instance infringing the appellant's interests.
   The appellant challenges the judgment under appeal in so far as it rejects the plea alleging infringement of Article 31(2) of the Staff Regulations, the 1983 decision, the administrative guide and a manifest error of assessment and is, in that regard, flawed by errors of law, by an erroneous and inconsistent statement of reasons and a distortion of the evidence in the file.


title: Judgment of the Court (Second Chamber) of 17 March 2005 in Case C-91/03: Kingdom of Spain v Council of the European Union (Conservation and exploitation of fisheries resources — Regulation (EC) No 2371/2002)

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/4

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 17 March 2005
   in Case C-91/03: Kingdom of Spain v Council of the European Union (1)

   (Conservation and exploitation of fisheries resources - Regulation (EC) No 2371/2002)
   (2005/C 132/07)
   Language of the case: Spanish
   In Case C-91/03, action for annulment under Article 230 EC, brought on 28 February 2003, Kingdom of Spain (Agent: N. Díaz Abad) v Council of the European Union (Agents: J. Carbery, F. Florindo Gijón and M. Balta), supported by the Commission of the European Communities (Agents: T. van Rijn and S. Pardo Quintillàn), and the French Republic (Agents: G. de Bergues and A. Colomb) — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen, P. Kūris (Rapporteur) and J. Klučka, Judges; A. Tizzano, Advocate General; K. Sztranc, Administrator, for the Registrar, has given a judgment on 17 March 2005, in which it:

               1.

               Dismisses the action;

               2.

               Orders the Kingdom of Spain to bear its own costs and those incurred by the Council of the European Union;

               3.

               Orders the French Republic and the Commission of the European Communities to bear their own costs.

      (1)  OJ C 135 of 07.06.2003.


title: Case C-150/99: Reference for a preliminary ruling from the Svea Hovrätt, by order of that court of 26 March 1999, in the case of the State against Stockholm Aktiebolag and Stockholm Lindöpark against the State

text:
3.7.1999                  EN                   Official Journal of the European Communities                                        C 188/21
3. If Question 2 is answered in the affirmative, is the free              Action brought on 23 April 1999 by the Commission of
     movement of capital under Article 73b(l) of the EC Treaty                     the European Communities against Ireland
     ancillary to the other freedoms under the EC Treaty (e.g.
     freedom of establishment and freedom to provide services),
     so that the acquisition of land in a State of which an EU                                      (Case C-151/99)
     citizen is not a national which cannot be based on other
     freedoms under the EC Treaty also cannot be carried out                                        (1999/C 188/47)
     in reliance on the free movement of capital?
                                                                          An action against Ireland was brought before the Court of
(1) OJ 1990 L 180, p. 26.                                                 Justice of the European Communities on 23 April 1999 by the
(2) OJ 1988 L 178, p. 5.                                                  Commission of the European Communities, represented by
                                                                          Frank Benyon, Legal Adviser, acting as agent, with an address
                                                                          for service in Luxembourg at the office of Carlos Gómez de la
                                                                          Cruz, member of the legal Service of the Commission, Centre
                                                                          Wagner, Kirchberg.
                                                                          The Applicant claims that the Court should:
                                                                          1) declare that by failing to notify the laws, regulations or
Reference for a preliminary ruling from the Svea Hovrätt,                     administrative provisions necessary to comply with
by order of that court of 26 March 1999, in the case of                       Council Directive 95/18/EC of 19 June 1995 concerning
the State against Stockholm Aktiebolag and Stockholm                          the licensing of railway undertakings (1), or by failing to
                     Lindöpark against the State                              adopt the measures necessary to comply with it, Ireland
                                                                              has failed to fulfil its obligations under that Directive;
                           (Case C-150/99)
                                                                          2) order Ireland to pay the costs.
                           (1999/C 188/46)
                                                                          Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities, by order of the Svea Hovrätt of
23 April 1999, for a preliminary ruling in the case of the                Article 189 of the EC Treaty, under which a directive shall be
State against Stockholm Aktiebolag and Stockholm Lindöpark                binding, as to the result to be achieved, upon each Member
against the State on the following questions:                             State, carries by implication an obligation on the Member
                                                                          States to observe the period for compliance laid down in the
1. Do Articles 13A(l)(m) and 13B(b) (1) of the Sixth VAT                  directive. That period expired on 27 June 1997 without Ireland
     Directive preclude national provisions providing for a               having enacted the provisions necessary to comply with the
     general exemption from VAT for the supply of sports                  directive referred to in the conclusions of the Commission.
     facilities, as laid down in the second paragraph of Article 2
     of Chapter 3 of the Mervärdesskattelagen (1994:200), in
     the version in force before 1 January 1997?                          (1) OJ L 143, 27.06.95, p. 70.
2. Does Article 13, in combination with Articles 2, 6 and 17
     of the Sixth VAT Directive, confer on individuals rights on
     which they can rely as against Member States before a
     national court?
3. In the event that the first two questions are answered in
     the affirmative:
                                                                          Action brought on 23 April 1999 by the Commission of
                                                                                the European Communities against Ireland
     Does the implementation and application of the exemption
     provided for in the second paragraph of Article 2 of
     Chapter 3 of the Mervärdesskattelagen (1994:200) entail                                        (Case C-152/99)
     such a serious (clear) infringement of Community law that
     it can render a Member State liable in damages?
                                                                                (1999/C 188/48)
(1) Sixth Council Directive (77/388/EEC) of 17 May 1977 on the            An action against Ireland was brought before the Court of
    harmonisation of the laws of the Member States relating to            Justice of the European Communities on 23 April 1999 by the
    turnover taxes — Common system of value added tax: uniform            Commission of the European Communities, represented by
    basis of assessment (OJ 1977 L 145, p. 1).
                                                                          Frank Benyon, Legal Adviser, acting as agent, with an address
                                                                          for service in Luxembourg at the office of Carlos Gómez de la
                                                                          Cruz, member of the legal Service of the Commission, Centre
                                                                          Wagner, Kirchberg.


title: Cases C-138/01 and C-139/01: Reference for a preliminary ruling by the Oberster Gerichtshof der Republik Österreich, by orders of 28 February and 14 February 2001 in the cases of Christa Neukomm against Österreichischer Rundfunk and Josef Lauermann against Österreichischer Rundfunk

text:
16.6.2001              EN                    Official Journal of the European Communities                                       C 173/25
           mean exclusively the European Community’s own                Reference for a preliminary ruling by the Employment
           legislation? Or may national legislation too, such as        Tribunal (Leeds), by order of that court of 12 January
           certain provisions of the Kaivoslaki and the Jätease-        2001, in the case of 1) Mr P. Breckon 2) Mr M. Barrett
           tus in force in Finland, be ‘other legislation’ within                against Secretary of State for Employment
           the meaning of the Waste Directive?
                                                                                (Case C-137/01)
      (b) If ‘other legislation’ means also national legislation,
           does that mean exclusively national legislation
           which was already in force at the time of entry into                                  (2001/C 173/42)
           force of the Waste Directive 91/156/EEC or also
           that only enacted afterwards?
                                                                        Reference has been made to the Court of Justice of the
      (c)  If ‘other legislation’ means also national legislation,      European Communities by an order of the Employment
           do fundamental European Community provisions                 Tribunal (Leeds) of 12 January 2001, which was received at
           relating to environmental protection or the prin-            the Court Registry on 27 March 2001, for a preliminary ruling
           ciples of the Waste Directive set requirements for           in the case of 1) Mr P. Breckon 2) Mr M. Barrett against
           national legislation concerning the level of environ-        Secretary of State for Employment, on the following question:
           mental protection as a condition for disapplying
           the rules of the Waste Directive? What sort of
                                                                        ‘Are the requirements of Directive 80/987 (1) fully satisfied by
           requirements could those be?
                                                                        rules of national law which may result in a claim relating to
                                                                        holiday pay against the Guarantee Institution being dismissed
(1) OJ L 194 of 25.7.1975, p. 39.
                                                                        owing to unforeseen delay in bringing about a state of
(2) OJ L 78 of 26.3.1991, p. 32.                                        insolvency in the employer, which delay was caused by the
                                                                        employer?’
                                                                        (1) 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 L 283, 28.10.1980, p. 23).
Reference for a preliminary ruling by the Tribunale di
Bologna by order of that court of 20 February 2001 in
the case of Condominio ‘Facchini Orsini’ against Kone
                          Ascensori SpA
                         (Case C-129/01)
                         (2001/C 173/41)                                Reference for a preliminary ruling by the Oberster
                                                                        Gerichtshof der Republik Österreich, by orders of
                                                                        28 February and 14 February 2001 in the cases of Christa
Reference has been made to the Court of Justice of the                  Neukomm against Österreichischer Rundfunk and Josef
European Communities by order of the Tribunale di Bologna                      Lauermann against Österreichischer Rundfunk
of 20 February 2001, received at the Court Registry on
21 March 2001, for a preliminary ruling in the case of
Condominio ‘Facchini Orsini’ against Kone Ascensori SpA on                              (Cases C-138/01 and C-139/01)
the following question:
                                                                                (2001/C 173/43)
‘For the purposes of application of the provisions contained in
Council Directive 93/13/EEC (1) of 5 April 1993 on unfair
terms in consumer contracts published in Official Journal               Reference has been made to the Court of Justice of the
1993 L 95, can the co-ownership of buildings referred to in             European Communities by orders of the Oberster Gerichtshof
Articles 1117-1139 of the Civil Code be regarded as a                   der Republik Österreich of 28 February and 14 February 2001,
consumer where the individual owners are natural persons or             received at the Court Registry on 27 March 2001, for a
are acting for purposes outside their trade, business or                preliminary ruling in the cases of Christa Neukomm against
profession?’                                                            Österreichischer Rundfunk and Josef Lauermann against Öster-
                                                                        reichischer Rundfunk on the following questions:
(1) OJ L 95 of 21.4.1993, p. 29.                                        1.    Are the provisions of Community law, in particular those
                                                                              on data protection (Articles 1, 2, 6, 7 and 22 of Directive
                                                                              95/46/EC (1) in conjunction with Article 6 (formerly
                                                                              Article F) of the Treaty on European Union and Article 8
 ---pagebreak--- C 173/26                EN                   Official Journal of the European Communities                                      16.6.2001
      of the ECHR), to be interpreted as precluding national                  (b) in the case of undertakings declared in a state of ‘crisi
      rules which require a public broadcasting corporation, as                     aziendale’ (economic crisis), they do not provide, for
      a legal entity, to communicate, and a State body to collect                   the transfer of the workforce and of the debts arising
      and pass on, data on income for the purpose of publishing                     from an employment contract or relationship from
      the names and income of employees of a broadcasting                           the transferor to the transferee,
      corporation governed by public law?
                                                                              the Italian Republic has failed to fulfil its obligations
                                                                              under Council Directive 77/187/EEC (1) of 14 February
2.    If the Court of Justice of the European Communities rules               1977 on the approximation of the laws of the Member
      that the answer to the above question is in the affirmative:            States relating to the safeguarding of employees’ rights in
      Are the provisions precluding national rules of the kind                the event of transfers of undertakings, businesses or parts
      described above directly applicable, in the sense that a                of businesses, and in particular Articles 3 and 4 thereof;
      corporation obliged to disclose data may rely on them to
      prevent the application of conflicting national rules,
      and may not therefore raise, as against the employees             —     Order the Italian Republic to pay the costs.
      concerned by the disclosure, the fact that it is bound to
      comply with national rules?
                                                                        Pleas in law and main arguments
(1) OJ 1995 L 281, p. 31.                                               Article 47(5) and (6) of Law No 428 of 1990 provides for the
                                                                        non-application of the rules laid down by Directive 77/187, in
                                                                        the following circumstances:
                                                                        (a)   the undertaking concerned falls into one of the following
                                                                              categories:
                                                                              —     undertaking or production unit in respect of which
                                                                                the Comitato Interministeriale per la Politica Indus-
                                                                                triale (Inter-ministerial committee on industrial pol-
                                                                                icy — CIPI) has declared a state of economic crisis
                                                                                in terms of Law No 675 of 1977;
Action brought on 29 March 2001 by the Commission of
  the European Communities against the Italian Republic                       —     undertaking in bankruptcy;
                                                                              —     undertaking which has been the subject of a deed of
                          (Case C-145/01)                                           arrangement involving the transfer of goods;
                                                                              —     undertaking whose liquidation has been made
                          (2001/C 173/44)                                           public;
                                                                              —     undertaking under extraordinary liquidation;
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 29 March
2001 by the Commission of the European Communities,                     (b) an agreement has been concluded between workers’
represented by Antonio Aresu, acting as Agent.                                representatives and the employers, with regard to changes
                                                                              to working conditions or maintaining partial employ-
                                                                              ment.
The applicant claims that the Court should:
                                                                        The Commission takes the view that Italy lawfully disapplied
                                                                        Directive 77/187 in respect of undertakings declared bankrupt
—     Declare that, by failing maintaining in force the provisions      and those in liquidation. On the other hand, the derogation
      in Article 47(5) and (6) of Law No 428 of 29 December             for deeds of arrangement, extraordinary liquidation and the
      1990, in so far as they:                                          declaration of a state of economic crisis appear to be clearly
                                                                        contrary to Community law and the case-law of the Court of
                                                                        Justice.
      (a)   provided for the non-application of the automatic
            transfer of all employment contracts or relationships
            from the transferor to the transferee, in the case of       Directive 77/187 makes no provision for exemption from the
            undertakings which have been the subject of a deed          full effect of its provisions in respect of undertakings which
            of arrangement involving the transfer of goods or in        have been the subject of a deed of arrangement involving the
            cases of undertakings under extraordinary liqui-            transfer of goods or which are subject to extraordinary
            dation, where the undertakings themselves continue          administration, despite the Italian authorities views to the
            to carry on business after transfer;                        contrary.


title: Case T-283/04: Judgment of the Court of First Instance of 17 January 2007 — Georgia-Pacific v OHIM (embossed motif) (Community trade mark — Three-dimensional mark — Embossed motif — Refusal of registration — Distinctiveness — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/26

         Judgment of the Court of First Instance of 17 January 2007 — Georgia-Pacific v OHIM (embossed motif)
   (Case T-283/04) (1)

   (Community trade mark - Three-dimensional mark - Embossed motif - Refusal of registration - Distinctiveness - Article 7(1)(b) of Regulation (EC) No 40/94)
   (2007/C 56/51)
   Language of the case: French
   Parties

      Applicant: Georgia-Pacific Sàrl (represented by: R. Delorey, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Rassat, Agent)
   Re:
   Action brought against the decision of the first Board of Appeal of OHIM of 11 May 2004 (Case R 493/2003-1) regarding registration of a three-dimensional mark consisting of an embossed motif.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant, Georgia-Pacific Sàrl, to pay the costs.

      (1)  OJ C 262, 23.10.2004.


title: Order of the Court (Fourth Chamber) of 7 December 2004 in Case C-521/03 P: Internationaler Hilfsfonds eV v Commission of the European Communities (Appeal — Admissibility of the action — Whether the action is out of time — Fifth paragraph of Article 230 EC — Merely confirmatory decision — Categorisation)

text:
               30.4.2005

               EN

               Official Journal of the European Union

               C 106/11

      ORDER OF THE COURT

   (Fourth Chamber)
   of 7 December 2004
   in Case C-521/03 P: Internationaler Hilfsfonds eV v Commission of the European Communities (1)

   (Appeal - Admissibility of the action - Whether the action is out of time - Fifth paragraph of Article 230 EC - Merely confirmatory decision - Categorisation)
   (2005/C 106/21)
   Language of the case: English
   In Case C-521/03 P: appeal under Article 56 of the Statute of the Court of Justice, lodged on 15 December 2003 by Internationaler Hilfsfonds eV (lawyer: H. Kaltenecker), the other party to the proceedings being the Commission of the European Communities (Agents: M. Wilderspin and S. Fries) — the Court (Fourth Chamber), composed of J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, N. Colneric and K. Schiemann (Rapporteur), Judges; L.A. Geelhoed, Advocate General: R. Grass, Registrar, made an order on 7 December 2004, the operative part of which is as follows:

               1.

               The appeal is dismissed.

               2.

               The appellant shall bear the costs.

      (1)  OJ C 59 of 06.03.2004.


title: Case T-474/07: Action brought on 21 December 2007 — Commission v CAE Consulting

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/28

         Action brought on 21 December 2007 — Commission v CAE Consulting
   (Case T-474/07)
   (2008/C 79/56)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: A.-M. Rouchaud-Joët, S. Lejeune, acting as Agents, and O. Prost, avocat)

      Defendant: CAE Consulting GmbH (Sexau, Germany)
   Form of order sought

               —

               declare the Commission's application to be admissible and well founded and, in accordance with it,

               —

               order the defendant to pay to the Commission the sum of EUR 25 574 in capital, together with the sum of EUR 10 189,31 by way of default interest until 31 December 2007, and, from 1 January 2008 onwards until all sums have been paid, to pay EUR 3,67 for each day of delay, with this interest to be capitalised from 31 May 2001 onwards;

               —

               order the defendant to pay all costs.

         Pleas in law and main arguments
   By this action, the applicant requests that the defendant be ordered to repay the balance of the advance disbursed to it by the Community, together with default interest, following its failure to perform the part of the cost reimbursement contract EP No 26970 concluded with the consortium of which it was a member, concerning the project ‘Neutral Archiving of EDA Data (ARCHIVE)’, implemented within the framework of the Fourth European Strategic Programme for Research and Development in Information Technologies (ESPRIT) (1994-1998).


title: Case T-125/13: Action brought on 4 March 2013 — Italy v Commission

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/44

         Action brought on 4 March 2013 — Italy v Commission
   (Case T-125/13)
   2013/C 114/67
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Palmieri and S. Fiorentino, avvocati dello Stato)

      Defendant: European Commission

      Forms of order sought

   The applicant claims that the Court should:

               —

               annul Commission Decision C(2012) 9448 final of 19 December 2012, notified on 20 December 2012, relating to the capital injections provided by SEA SpA in favour of SEA Handling SpA;

               —

               order the Commission to pay the costs

      Pleas in law and main arguments

   By the present action, the Italian Republic contests the Commission decision declaring that the measures put in place by SEA SpA, the concession-holder responsible for the management of Milan Malpensa and Milan Linate airports, in favour of SEA Handling SpA, the company responsible for the operation of groundhandling services at those airports — measures which, in essence, consist in repeated capital injections to set off operating losses — constitutes State aid incompatible with the internal market.
   In support of the action, the Italian Republic relies on four pleas in law.

               1.

               First plea in law: breach of the principles of good administration and legal certainty.

                           —

                           It is submitted in that regard that the contested decision, which also gives rise rise to a legitimate expectation on the part of the aid recipients concerning the legality of the measures, was adopted in breach of the principles of good administration and legal certainty, both because of the excessive duration of the whole procedure, in particular the preliminary investigation, and because of the doubts arising in relation to the findings and approaches adopted by the Commission in the course of that procedure.

               2.

               Second plea in law: breach of essential procedural requirements, in the form of breach of the right to be heard and failure to undertake adequate preliminary inquiries.

                           —

                           It is submitted in that regard that the contested decision was adopted in breach of the parties’ right to be heard and the rights of the defence, as a result of the fact that the Commission extended the scope of the examination to cover a period falling outside the scope of the decision opening a formal investigation.

               3.

               Third plea in law: infringement of Article 107 TFEU and Article 108(3) TFEU and erroneous reconstruction of the facts, as well as failure to state adequate reasons for imputing the measures at issue to the public authorities.

                           —

                           According to the Italian Republic, the contested decision errs in finding the measures at issue to be imputable to the public authorities and fails, in any event, to provide adequate evidence or sufficient reasoning on that point.

               4.

               Third plea in law: infringement of Article 107 TFEU and Article 108(3) TFEU and erroneous reconstruction of the facts, as well as failure to state adequate reasons for imputing the measures at issue to the public authorities.

                           —

                           It is submitted in that regard that the contested decision errs in finding that SEA’s conduct was not that of a prudent trader in a market economy and fails, in any event, to provide adequate evidence or sufficient reasoning on that point.


11 . 11 . 95          EN                   Official Journal of the European Communities                                No C 299/ 19
The applicant submits that the Council 's refusal violates the               Removal from the register of Case T- 112/92 ( ] )
fundamental rights of access to the European Union                                                  ( 95 /C 299/33 )
Institutions ' documents, as well as the principle of
protection of legitimate expectations and Articles 4(1 ) and                          (Language of the case: English )
4 ( 2 ) of Council Decision 93/73 1 /EC inasmuch as it
wrongfully applies the criteria for refusal laid down in said         By order of 11 July 1995 the President of the Fourth
provisions . It considers furthermore that the Council 's             Chamber of the Court of First Instance of the European
refusal should be annulled on the ground of its failure to            Communities ordered the removal from the register of Case
state reasons for the refusal .
                                                                      T- 1 1 2/92 : John Cooney v. Commission of the European
                                                                      Comm unities .
                                                                      (') Q | No C : 34 , 6 . 2 . 1 993 .
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                    of 28 September 1995                                     Removal from the register of Case T-425/93 (')
in Case T-95 /94 : Chambre Syndicale Nationale des                                                  ( 95 /C 299/34 )
Entreprises de Transport de Fonds et Valeurs ( Sytraval ) and
Brink's France SARL v. Commission of the European                                     (Language of the case: English )
                       Communities ( ' )
(State aid — Complaint by a competitor — Failure to initiate          By order of 9 August 1995 the President of the First
the investigation procedure — Right to a fair hearing —               Chamber ( extended composition ) of the Court of First
                    Action for annulment)                             Instance of the European Communities ordered the removal
                          ( 95 /C 299/32 )                            from the register of Case T-425/93 : David Wilcox v.
                                                                      Council of the European Union and Commission of the
                                                                      European Communities .
                (Language of the case: French)
                                                                      (') OJ No C : 2.38 , 2 . 9 . 1993 .
In Case T-95/94 : Chambre Syndicale Nationale des
Entreprises de Transport de Fonds et Valeurs ( Sytraval ) and
Brink 's France SARL, represented by Jean-Michel Payre, of
the Paris Bar, with an address for service in Luxembourg
at the Chambers of Aloyse May, 31 Grande-Rue , v.                            Removal from the register of Case T-430/93 ( )
Commission of the European Communities ( agents : Michel                                            ( 95 /C 299/35 )
Nolin and Ben Smulders ), supported by the French Republic
( agents : Catherine de Salins and Jean-Marc Belorgey ) —                              (Language of the case: Erench)
application for the annulment of the Commission decision
of 31 December 1993 rejecting the applicants ' request for a          By order of 11 August 1995 the President of the First
declaration by the Commission that the French Republic                Chamber ( extended composition ) of the Court of First
has infringed Articles 92 and 93 of the Treaty by granting            Instance of the European Communities ordered the removal
aid to Securipost SA — the Court of First Instance                    from the register of Case T-430/93 : Jean Trelhu v. Council
( Fourth Chamber, extended composition ), composed of                 of the European Union and Commission of the European
K. Lenaerts , President, and R. Schintgen , C. P. Briet,              Communities .
R. Garcia-Valdecasas and P. Lindh, Judges; H. Jung,
Registrar, has given a judgment on 28 September 1995 , in             (') OJ No C 54 , 25 . 5 . 1993 .
which it :
 1 . annuls the Commission decision of 31 December 1993
     rejecting the applicants ' request for a declaration by the
     Commission that the French Republic has infringed                                   Removal from the register of
     Articles 92 and 93 of the Treaty by granting aid to                         Joined Cases T-436/93 to T -441 /93 (')
     Securipost;                                                                                ( 95 /C 299/36 )
2 . orders the Commission to bear its own costs and to pay                             (Language of the case: English)
     the costs of the applicants;
                                                                      By order of 12 July 1995 the President of the Fourth
 3 . orders the Erench Republic to bear its own costs .               Chamber ( extended composition ) of the Court of First
                                                                      Instance of the European Communities ordered the removal
 (') O J No C 103 , 11.4 . 1994 .
                                                                      from the register of Joined Cases T-436/93 to T-441 /93 :
                                                                      British Petroleum Company pic , Barclays Bank pic , Flanson
                                                                      pic , Lucas Industries Public Limited Company , Mars UK
                                                                       Limited , Mars G.B. Limited , Intercontinental Trading


title: Case C-417/06 P: Appeal brought on 12 October 2006 by the Italian Republic against the judgment delivered by the Court of First Instance (Fourth Chamber) on 13 July 2006 in Case T-225/04 Italian Republic v Commission of the European Communities

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/7

         Appeal brought on 12 October 2006 by the Italian Republic against the judgment delivered by the Court of First Instance (Fourth Chamber) on 13 July 2006 in Case T-225/04 Italian Republic v Commission of the European Communities
   (Case C-417/06 P)
   (2006/C 310/13)
   Language of the case: Italian
   Parties

      Appellant: Italian Republic (represented by: I.M. Braguglia, Agent, and D. Del Gaizo, avvocato dello Stato)

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

               —

               Annul the judgment of the Court of First Instance (Fourth Chamber) of 13 July 2006 in Case T-225/04 dismissing the action brought by the Italian Republic against the Commission for annulment of Commission Decision No C (2003) 3971 final of 26 November 2003 establishing indicative allocations between the Member States of the commitment appropriations under Community initiatives for the period 1994-1999;

               —

               grant the form of order sought at first instance in full pursuant to Article 113 of the Rules of Procedure of the Court of First Instance of the European Communities, as amended, and annul the Commission Decision;

               —

               order the Commission to pay the costs of the proceedings and the costs in the proceedings before the Court of First Instance.

         Pleas in law and main arguments

               1.

               infringement of the law by reason of misstatement of the legal basis, inconsistent application and misapplication of rules and inadequate statement of grounds in relation to the first part of the first plea in the action before the Court of First Instance (paragraphs 70, 71, 72, 73, 75, 76 and 77 of the judgment);

               2.

               infringement of the law by reason of inadequate and contradictory statement of grounds in relation to the second part of the first plea in the action before the Court of First Instance (paragraphs 91, 92, 93, 94 and 95 of the judgment);

               3.

               infringement of the law by reason of the lack of legal basis and inadequate and contradictory statement of grounds in relation to the first part of second plea in the action before the Court of First Instance (paragraphs 110 — 123 of the judgment);

               4.

               infringement of the law by reason of inadequate and contradictory statement of grounds in relation to the second, third and fourth parts of the second plea in the action before the Court of First Instance (paragraphs 147, 148, 149, 151, 153, 154 and 155 of the judgment).


title: Case T-24/17: Action brought on 17 January 2017 — LA Superquimica v EUIPO — D-Tack (D-TACK)

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/30

         Action brought on 17 January 2017 — LA Superquimica v EUIPO — D-Tack (D-TACK)
   (Case T-24/17)
   (2017/C 086/39)
   Language in which the application was lodged: English

      Parties

      Applicant: LA Superquimica, SA (Barcelona, Spain) (represented by: A. Canela Giménez, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: D-Tack GmbH (Hüttlingen, Germany)

      Details of the proceedings before EUIPO

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

      Trade mark at issue: EU word mark ‘D-TACK’ — Application for registration No 9 650 847

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 15 November 2016 in Case R 1983/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the EUIPO decision dated 15/11/2016;

               —

               order EUIPO and those whose oppose this request to pay the costs.

      Pleas in law

               —

               The Board of Appeal failed to consider Sitadex extracts concerning Spanish trade mark registration Nos: 2515958, 2516679, 2542249, 2591412 and 2668711 submitted by the applicant;

               —

               The Board of Appeal failed to consider the proof of use submitted by the applicant.


title: Case C-523/15 P: Appeal brought on 30 September 2015 by Westfälische Drahtindustrie GmbH and Others against the judgment of the General Court (Sixth Chamber) delivered on 15 July 2015 in Case T-393/10 Westfälische Drahtindustrie GmbH and Others v European Commission

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/21

         Appeal brought on 30 September 2015 by Westfälische Drahtindustrie GmbH and Others against the judgment of the General Court (Sixth Chamber) delivered on 15 July 2015 in Case T-393/10 Westfälische Drahtindustrie GmbH and Others v European Commission
   (Case C-523/15 P)
   (2015/C 389/23)
   Language of the case: German

      Parties

      Appellants: Westfälische Drahtindustrie GmbH, Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG, Pampus Industriebeteiligungen GmbH & Co. KG (represented by: C. Stadler, Rechtsanwalt)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellants claim that the Court should:

               1.

               set aside the judgment under appeal, in so far as it affects the appellants;

               2.

               in the alternative, set aside the judgment under appeal in its entirety and annul point 8 of Article 2 of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38.344 — Prestressing Steel), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and by Commission Decision C(2011) 2269 final of 4 April 2011, and the letter dated 14 February 2011 from the Director-General of the Directorate-General for Competition, in so far as they affect the appellants;
               in the alternative, reduce the amount of the fine imposed on the appellants in point 8 of Article 2 of the abovementioned Commission decision;

               3.

               in the alternative to the heads of claim appearing in points 1 and 2, refer the case back to the General Court for a ruling;

               4.

               order the defendant at first instance to pay the costs in relation to the whole dispute.

      Pleas in law and main arguments

   The appeal is directed against the judgment of 15 July 2015 delivered by the Sixth Chamber of the General Court of the European Union.
   Westfälische Drahtindustrie GmbH, Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG and Pampus Industriebeteiligungen GmbH & Co. KG invoke the following grounds in support of their appeal:
   First, the General Court infringed Article 261 TFEU and Article 31 of Regulation No 1/2003, (1) the system of the allocation of powers and of institutional balance and the need to ensure effective legal protection, since it disregarded the limits of the unlimited jurisdiction conferred upon it and did not examine the contested Commission decision in the case, but rather reached its own independent decision imposing a fine. As a result of this, it assumed the role of the administration and deprived the appellants of the possibility of opposing materially inaccurate findings of fact, since rights of appeal available against decisions of the General Court are limited to points of law.
   Secondly, the judgment under appeal infringed Article 261 TFEU and Article 31 of Regulation No 1/2003 in so far as the General Court misconstrued the relevant date for assessing the factual and legal situation and in so far as, in the — moreover incorrect, as mentioned above — exercise of its unlimited jurisdiction, it took into account the legal and factual situation at the time of its decision, or facts which occurred between 2011 and 2013, therefore after the adoption of the contested Commission decision. The position of the General Court is not justified by the decisions which it cites ‘to that effect’; rather, it is clear from the decision-making practice of the European courts that additional information (i) can be taken into account only in favour of the undertakings concerned and (ii) only if it was already available at the time of the Commission decision.
   Thirdly, by infringing the principle of proportionality and the equal treatment requirement, the General Court infringed the appellants’ fundamental rights. By not taking into account the principle set out in point 35 of the Guidelines on fines, according to which undertakings which depend on a payment of the fine by instalments must, as a rule, be able to pay that fine in a period of three to five years, the General Court imposed an inappropriate fine on the appellants, which could at best pay that fine only at the end of an extremely long period. In addition, in the context of its analysis of the equal treatment requirement, for the purposes of applying the principles developed on the basis of point 35 of the Guidelines on fines and for the purposes of determining the relevant date, the General Court failed to have regard to the comparability of the situations at issue.
   Lastly, in the judgment under appeal, the General Court also infringed the appellants’ fundamental procedural right to the provision of effective legal protection because, in the exercise of its unlimited jurisdiction, it took refuge behind the calculations of the fine used by the Commission and the facts presented by the parties. This cannot satisfy the full and complete review which is required of a neutral court for the purposes of providing effective legal protection against Commission decisions imposing a fine.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty; OJ 2003 L 1, p. 1.


title: Case T-566/11: Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Coffee service set with grooves)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/26

         Action brought on 31 October 2011 — Viejo Valle v OHIM — Etablissements Coquet (Coffee service set with grooves)
   (Case T-566/11)
   2012/C 32/55
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Viejo Valle, SA (L'Olleria, Spain) (represented by: I. Temiño Ceniceros, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Etablissements Coquet SA (Saint Léonard de Noblat, France)

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare the present action, together with its annexes, admissible;

               —

               annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 July 2011, in Case R 1054/2010-3;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Design in respect of which a declaration of invalidity has been sought: Design No 384.912-0001, representing a decorated service set; a coffee cup and saucer.

      Proprietor of the Community design: the applicant.

      Applicant for the declaration of invalidity of the Community design: Etablissements Coquet SA.

      Grounds for the application for a declaration of invalidity: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002, since the Community design constitutes an unauthorised use of a work protected by the copyright legislation of a Member State.

      Decision of the Cancellation Division: upheld the application for a declaration of invalidity.

      Decision of the Board of Appeal: dismissed the action.

      Pleas in law: Infringement of Article 25(1)(f) of Regulation (EC) No 6/2002 and Article 28(1)(b)(iii) of Regulation No 2245/2002, since the defendant has not sufficiently documented the protected work on which the application for a declaration of invalidity is based, nor provided details of its proprietorship, nor its object.


title: Judgment of the Court (Fifth Chamber) of 4 December 2003 in Case C-92/02 (Reference for a preliminary ruling from the Arbeidsrechtbank van het Arrondissement Tongeren): Nina Kristiansen v Rĳksdienst voor Arbeidsvoorziening (Social security — National system of unemployment benefits laying down a rule against overlapping of benefits as regards certain income — Unemployment benefits for former members of the temporary staff of the European Communities — Freedom of movement for workers — National scheme of unemployment insurance — Classification of post-graduate occupation — Occupation of trainee fellowship student — Different classification in other Member States of the EEA — Discrimination)

text:
C 21/6                   EN                              Official Journal of the European Union                                             24.1.2004
bourg) for a preliminary ruling in the proceedings pending                                        JUDGMENT OF THE COURT
before that court between Zita Modes Sàrl and Administration
de l’enregistrement et des domaines, on the interpretation of
Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May                                                (Fifth Chamber)
1977 on the harmonisation of the laws of the Member States
relating to turnover taxes — Common system of value added                                                of 4 December 2003
tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as
amended by Council Directive 95/7/EC of 10 April 1995
amending Directive 77/388/EEC and introducing new simplifi-                      in Case C-92/02 (Reference for a preliminary ruling from
cation measures with regard to value added tax — scope of                        the Arbeidsrechtbank van het Arrondissement Tonge-
certain exemptions and practical arrangements for                                ren): Nina Kristiansen v Rijksdienst voor Arbeidsvoor-
implementing them (OJ 1995 L 102, p. 18), the Court (Fifth                                                      ziening (1)
Chamber), composed of: P. Jann, acting for the President of
the Fifth Chamber, D. A. O. Edward and S. von Bahr                               (Social security — National system of unemployment ben-
(Rapporteur), Judges; F. G. Jacobs, Advocate General; R. Grass,                  efits laying down a rule against overlapping of benefits as
Registrar, has given a judgment on 27 November 2003, in                          regards certain income — Unemployment benefits for former
which it has ruled:                                                              members of the temporary staff of the European Communi-
                                                                                ties — Freedom of movement for workers — National
                                                                                scheme of unemployment insurance — Classification of post-
                                                                                graduate occupation — Occupation of trainee fellowship
1.    Article 5(8) of Sixth Council Directive 77/388/EEC of 17 May               student — Different classification in other Member States
      1977 on the harmonisation of the laws of the Member States                                   of the EEA — Discrimination)
      relating to turnover taxes — Common system of value added
      tax: uniform basis of assessment, as amended by Council                                                (2004/C 21/11)
      Directive 95/7/EC of 10 April 1995 amending Directive 77/
      388/EEC and introducing new simplification measures with
      regard to value added tax — scope of certain exemptions                                         (Language of the case: Dutch)
      and practical arrangements for implementing them, must be
      interpreted as meaning that when a Member State has made
      use of the option in the first sentence of that paragraph to               (Provisional translation; the definitive translation will be published
      consider that for the purposes of value added tax no supply of                                 in the European Court Reports)
      goods has taken place in the event of a transfer of a totality of
      assets, that no-supply rule applies — without prejudice to use
      of the possibility of restricting its application in the circum-
      stances laid down in the second sentence of the same paragraph             In Case C-92/02, Reference to the Court under Article 234 EC
      — to any transfer of a business or an independent part of an               by the Arbeidsrechtbank van het Arrondissement Tongeren
      undertaking, including tangible elements and, as the case                  (Belgium) for a preliminary ruling in the proceedings pending
      may be, intangible elements which, together, constitute an                 before that court between Nina Kristiansen and Rijksdienst
      undertaking or a part of an undertaking capable of carrying on             voor Arbeisdvoorziening, on the interpretation of Regulation
      an independent economic activity. The transferee must however              (EEC) No 1408/71 of the Council of 14 June 1971 on the
      intend to operate the business or the part of the undertaking              application of social security schemes to employed persons, to
      transferred and not simply to immediately liquidate the activity           self-employed persons and to members of their families
      concerned and sell the stock, if any.                                      moving within the Community, as amended and updated by
                                                                                Council Regulation (EC) No 118/97 of 2 December 1996 (OJ
                                                                                1997 L 28, p. 1), and of Regulation (EEC) No 1612/68 of the
                                                                                Council of 15 October 1968 on freedom of movement for
2.    When a Member State has made use of the option in the first                workers within the Community (OJ, English Special Edition
      sentence of Article 5(8) of Sixth Directive 77/388, as amended             1968 (II), p. 475), the Court (Fifth Chamber), composed of:
      by Directive 95/7, to consider that for the purposes of value              C. W. A. Timmermans, acting for the President of the Fifth
      added tax no supply of goods has taken place in the event of a             Chamber, D. A. O. Edward and A. La Pergola (Rapporteur),
      transfer of a totality of assets, the restriction by a Member State        Judges; S. Alber, Advocate General; R. Grass, Registrar, has
      of the application of that no-supply rule to transfers of a totality       given a judgment on 4 December 2003, in which it has ruled:
      of assets where the transferee holds the authorisation for pursuit
      of the economic activity which that totality enables to be carried
      on infringes that provision.                                               1.    The second subparagraph of Article 28a(1) of the Conditions
                                                                                of Employment of Other Servants of the European Communities
                                                                                means that the relationship between the Community system of
                                                                                unemployment benefits and those of the Member States is a
                                                                                complementary one, which cannot be disregarded by a Member
(1) OJ C 44 of 16.2.2002.                                                              State in the application of its system of unemployment benefits
                                                                                and, specifically, of a rule against the overlapping of benefits
                                                                                under that system, to a former member of the temporary
                                                                                staff who resides in that Member State and is entitled to
                                                                                unemployment benefits paid under the Conditions of Employ-
                                                                                ment of Other Servants of the European Communities.
 ---pagebreak--- 24.1.2004                 EN                         Official Journal of the European Union                                                  C 21/7
2.    The principle of non-discrimination laid down by Article 7(4)          Republic of Austria, the Republic of Finland and the Kingdom
      of Regulation (EEC) No 1612/68 of the Council of 15 October            of Sweden (OJ 1997 C 15, p. 1), the Court, composed
      1968 on freedom of movement for workers within the                     of: V. Skouris, President, P. Jann, C. W. A. Timmermans,
      Community does not preclude a person carrying on an activity           C. Gulmann, J. N. Cunha Rodrigues and A. Rosas (Presidents
      as a post-graduate student, such as the person in the main             of Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
      proceedings, from being deemed, in a Member State, to be a             R. Schintgen (Rapporteur), F. Macken, N. Colneric and S. von
      trainee fellowship student who is not entitled to any rights           Bahr, Judges; P. Léger, Advocate General; M.-F. Contet, Princi-
      under the national system of unemployment benefits, even               pal Administrator, for the Registrar, has given a judgment on
      though in other Member States a person carrying on similar             9 December 2003, in which it has ruled:
      activities is deemed to be carrying on an occupational activity
      and is entitled to benefits under the unemployment benefits
      system.
                                                                             1.   A national court may, under the Protocol of 3 June 1971 on
(1) OJ C 118 of 18.5.2002.                                                        the interpretation by the Court of Justice of the Convention of
                                                                                27 September 1968 on Jurisdiction and the Enforcement of
                                                                                Judgments in Civil and Commercial Matters, as amended by
                                                                                the Convention of 9 October 1978 on the accession of the
                                                                                Kingdom of Denmark, Ireland and the United Kingdom of
                                                                                Great Britain and Northern Ireland, by the Convention of
                                                                                25 October 1982 on the accession of the Hellenic Republic, by
                   JUDGMENT OF THE COURT                                          the Convention of 26 May 1989 on the accession of the
                                                                                Kingdom of Spain and the Portuguese Republic and by the
                                                                                Convention of 29 November 1996 on the accession of the
                         of 9 December 2003                                       Republic of Austria, the Republic of Finland and the Kingdom
                                                                                of Sweden, refer to the Court of Justice a request for interpret-
in Case C-116/02 (Reference for a preliminary ruling from                         ation of the Brussels Convention, even where it relies on the
the Oberlandesgericht Innsbruck): Erich Gasser GmbH v                             submissions of a party to the main proceedings of which it has
                             MISAT Srl (1)                                        not yet examined the merits, provided that it considers, having
                                                                                regard to the particular circumstances of the case, that a
                                                                                preliminary ruling is necessary to enable it to give judgment
(Brussels Convention — Article 21 — Lis pendens —
                                                                                and that the questions on which it seeks a ruling from the Court
Article 17 — Agreement conferring jurisdiction — Obli-
                                                                                are relevant. It is nevertheless incumbent on the national court
gation to stay proceedings of court second seised designated
                                                                                to provide the Court of Justice with factual and legal information
in an agreement conferring jurisdiction — Excessive duration
                                                                                enabling it to give a useful interpretation of the Convention and
of proceedings before courts in the Member State of the court
                                                                                to explain why it considers that a reply to its questions is
                              first seised)
                                                                                necessary to enable it to give judgment.
                            (2004/C 21/12)
                     (Language of the case: German)                          2.   Article 21 of the Brussels Convention must be interpreted as
                                                                                meaning that a court second seised whose jurisdiction has been
                                                                                claimed under an agreement conferring jurisdiction must
(Provisional translation; the definitive translation will be published            nevertheless stay proceedings until the court first seised has
                     in the European Court Reports)                               declared that it has no jurisdiction.
In Case C-116/02: Reference to the Court under the Protocol
                                                                             3.   Article 21 of the Brussels Convention must be interpreted as
of 3 June 1971 on the interpretation by the Court of Justice of
                                                                                meaning that it cannot be derogated from where, in general,
the Convention of 27 September 1968 on Jurisdiction and the
                                                                                the duration of proceedings before the courts of the Contracting
Enforcement of Judgments in Civil and Commercial Matters
                                                                                State in which the court first seised is established is excessively
by the Oberlandesgericht Innsbruck (Austria) for a preliminary
                                                                                long.
ruling in the proceedings pending before that court between
Erich Gasser GmbH and MISAT Srl, on the interpretation of
Article 21 of the abovementioned Convention of 27 September
1968, as amended by the Convention of 9 October 1978 on
the accession of the Kingdom of Denmark, Ireland and the
United Kingdom of Great Britain and Northern Ireland (OJ                     (1) OJ C 144 of 15.6.2002.
1978 L 304, p. 1, and — amended text — p. 77), by the
Convention of 25 October 1982 on the accession of the
Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of
26 May 1989 on the accession of the Kingdom of Spain and
the Portuguese Republic (OJ 1989 L 285, p. 1) and by the
Convention of 29 November 1996 on the accession of the


title: Case C-168/11: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 6 April 2011 — Dr Manfred Beker and Christa Beker v Finanzamt Heilbronn

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/10

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 6 April 2011 — Dr Manfred Beker and Christa Beker v Finanzamt Heilbronn
   (Case C-168/11)
   2011/C 211/18
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicants: Dr Manfred Beker and Christa Beker

      Defendant: Finanzamt Heilbronn

      Question referred

   Does Article 56 EC preclude a rule in a Member State by which — in accordance with treaties concluded in order to avoid double taxation — in the case of taxpayers with unlimited tax liability whose foreign revenue is liable to tax corresponding to national (German) income tax in the State in which the revenue originates, the foreign tax is offset against national (German) income tax levied on revenue from that State in such a way that the national (German) income tax resulting from assessment of the revenue to be taxed — including foreign revenue — is apportioned in the proportion that that foreign revenue bears to total revenue — and hence without taking into account special expenditure or extraordinary costs as costs relating to personal life style and personal and family circumstances?


title: Case T-290/12: Action brought on 29 June 2012 — Poland v Commission

text:
               18.8.2012

               EN

               Official Journal of the European Union

               C 250/18

         Action brought on 29 June 2012 — Poland v Commission
   (Case T-290/12)
   2012/C 250/34
   Language of the case: Polish

      Parties

      Applicant: Republic of Poland (represented by: B. Majczyna and M. Szpunar, Agents)

      Defendant: European Commission

      Form of order sought

               —

               Annul Article 1(2), (3), (4), (6), (12) and (13), Annexes I and II, and Article 2(1) to (3), in conjunction with Article 3, of Commission Implementing Regulation (EU) No 302/2012 of 4 April 2012 amending Implementing Regulation (EU) No 543/2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (OJ L 99 of 5.4.2012, p. 21);

               —

               Order the European Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of its action, the applicant relies on four pleas in law.

               1.

               First plea in law:

                           —

                           infringement of the principles of legal certainty and of the protection of legitimate expectations;

               2.

               Second plea in law:

                           —

                           infringement of the principle of proportionality;

               3.

               Third plea in law:

                           —

                           breach of Article 296 TFEU by virtue of the inadequate reasons given for the contested provisions;

               4.

               Fourth plea in law:

                           —

                           infringement of the principles of solidarity and of loyal cooperation.


title: Case C-384/10: Reference for a preliminary ruling from the Hof van Cassatie van België, lodged on 29 July 2010 — Jan Voogsgeerd v Navimer SA

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/14

         Reference for a preliminary ruling from the Hof van Cassatie van België, lodged on 29 July 2010 — Jan Voogsgeerd v Navimer SA
   (Case C-384/10)
   ()
   2010/C 317/26
   Language of the case: Dutch

      Referring court

   Hof van Cassatie van België

      Parties to the main proceedings

      Appellant: Jan Voogsgeerd

      Respondent: Navimer SA

      Questions referred

               1.

               Must the country in which the place of business is situated through which an employee was engaged, within the meaning of Article 6(2)(b) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, (1) be taken to mean the country in which the place of business of the employer is situated through which, according to the contract of employment, the employee was engaged, or the country in which the place of business of the employer is situated with which the employee is connected for his actual employment, even though that employee does not habitually carry out his work in any one country?

               2.

               Must the place to which an employee who does not habitually carry out his work in any one country is obliged to report and where he receives administrative briefings, as well as instructions for the performance of his work, be deemed to be the place of actual employment within the meaning of the first question?

               3.

               Must the place of business with which the employee is connected for his actual employment within the meaning of the first question satisfy certain formal requirements such as, inter alia, the possession of legal personality, or does the existence of a de facto place of business suffice for that purpose?

               4.

               Can the place of business of another company, with which the corporate employer is connected, serve as the place of business within the meaning of the third question, even though the authority of the employer has not been transferred to that other company?

      (1)  OJ 1980 L 266, p. 1.


title: Case C-415/13 P: Order of the President of the Court of 22 May 2014  — Fabryka Łożysk Tocznych-Kraśnik S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Impexmetal S.A.

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/19

         Order of the President of the Court of 22 May 2014 — Fabryka Łożysk Tocznych-Kraśnik S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Impexmetal S.A.
   (Case C-415/13 P) (1)

   2014/C 261/32
   Language of the case: Polish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 274, 21.9.2013.


title: Case C-573/14: Request for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 11 December 2014  — Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/36

         Request for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 11 December 2014 — Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani
   (Case C-573/14)
   (2015/C 046/43)
   Language of the case: French

      Referring court

   Conseil d’Etat

      Parties to the main proceedings

      Applicant: Commissaire général aux réfugiés et aux apatrides

      Defendant: Mostafa Lounani

      Questions referred

               1)

               Is Article 12(2)(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (1) to be interpreted as necessarily implying that, for the exclusion clause provided for therein to be applied, the asylum seeker must have been convicted of one of the terrorist offences referred to in Article 1(1) of Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (2), which was transposed in Belgium by the Law of 19 December 2003 on terrorist offences?

               2)

               If the first question is answered in the negative, can acts such as those referred to in point 5.9.2 of the judgment under appeal (judgment No 96.933 of the Conseil du contentieux des étrangers), given on 12 February 2013, which were imputed to Mostafa Lounani by the judgment of the Tribunal correctionnel de Bruxelles of 16 February 2006 and resulted in his being convicted of participation in a terrorist organisation, be considered to be acts contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(c) of Directive 2004/83/EC?

               3)

               For the purposes of considering the exclusion, on the grounds of his participation in a terrorist organisation, of a person seeking international protection, is the judgment convicting him of being a leading member of a terrorist organisation, which finds that the person seeking international protection has not committed, attempted to commit or threatened to commit a terrorist act, sufficient for a finding of the existence of an act of participation or instigation within the meaning of Article 12(3) of Directive 2004/83/EC imputable to that person, or is it necessary for an individual examination of the facts of the case to be made and participation demonstrated in the commission of a terrorist offence or instigation of a terrorist offence as defined in Article 1 of Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism?

               4)

               For the purposes of considering the exclusion, on the grounds of his participation in a terrorist organisation of a person seeking international protection, possibly as a leading member, must the act of instigation or participation referred to in Article 12(3) of Directive 2004/83/EC relate to the commission of a terrorist offence as defined in Article 1 of Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, or may it relate to participation in a terrorist group as referred to in Article 2 of that framework decision?

               5)

               So far as terrorism is concerned, is the exclusion from international protection provided for in Article 12(2)(c) of Directive 2004/83/EC possible when there has been no commission or instigation of, or participation in, a violent act of a particularly cruel nature as referred to in Article 1 of Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism?

      (1)  OJ 2004 L 304, p. 12.

      (2)  OJ 2002 L 164, p. 3.


title: Case T-75/12: Action brought on 16 February 2012 — Nu Air Polska v Commission

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/28

         Action brought on 16 February 2012 — Nu Air Polska v Commission
   (Case T-75/12)
   2012/C 118/48
   Language of the case: English

      Parties

      Applicant: Nu Air Polska sp. z o.o. (Warszawa, Poland) (represented by: R. MacLean, Solicitor)

      Defendant: European Commission

      Form of order sought

               —

               Declare the application admissible;

               —

               Partially annul Article 1 of Commission Decision K(2011) 8826, Article 1 of Commission Decision C(2011) 8803 and Article 1 of Commission Decision K(2011) 8801, all three decisions being dated 6 December 2011, insofar as they only grant a partial refund of the anti-dumping duties paid by the applicant and unlawfully retain additional amounts of refunds of anti-dumping duties legitimately due to the applicant;

               —

               Order maintenance in force of the contested decisions until the European Commission has adopted measures necessary to comply with any judgment of the Court; and

               —

               Order the defendant to pay the legal costs and expenses of the procedure.

      Pleas in law and main arguments

   In support of the action, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging that the defendant committed a manifest error of assessment in applying an appropriate and reasonable unrelated EU importer profit margin, thereby failing to establish a reliable export price for the purpose of calculating the correct anti-dumping refund amount leading to infringements of Articles 2(9) and 18(3) of Council Regulation (EC) No 1225/2009. (1)

               2.

               Second plea in law, alleging that the defendant committed a manifest error of assessment by deducting anti-dumping duties as a cost in the calculation of the export price thereby failing to establish a reliable dumping margin for the purpose of calculating the correct anti-dumping refund amount and in doing so violated Articles 2(9), 2(11) and 11(10) of Council Regulation (EC) No 1225/2009.

               3.

               Third plea in law, alleging that the defendant failed to inform it of the necessary requirements for satisfying Article 11(10) of Council Regulation (EC) No 1225/2009 in a prompt and adequate manner thereby committing violations of the rights of defence enshrined in EU general law as well as the principle of sound administration also established in EU general law and also Article 41 of the Charter of Fundamental Rights of the European Union.

      (1)  Council Regulation (EC) 1225/2009 on Protection Against Dumped Imports From Countries not Members of the European Community, OJ 2009 L 343, p. 51.


title: Case C-408/12 P: Judgment of the Court (Second Chamber) of 4 September 2014 — YKK Corp., YKK Holding Europe BV, YKK Stocko Fasteners GmbH v European Commission (Appeal — Agreements, decisions and concerted practices — Markets for zip fasteners and other fasteners and for attaching machines — Successive responsibilities — Legal upper limit of the fine — Article 23(2) of Regulation No 1/2003 — Concept of ‘undertaking’ — Personal responsibility — Principle of proportionality — Deterrence multiplier)

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/5

      Judgment of the Court (Second Chamber) of 4 September 2014 — YKK Corp., YKK Holding Europe BV, YKK Stocko Fasteners GmbH v European Commission
      (Case C-408/12 P) (1)

      ((Appeal - Agreements, decisions and concerted practices - Markets for zip fasteners and other fasteners and for attaching machines - Successive responsibilities - Legal upper limit of the fine - Article 23(2) of Regulation No 1/2003 - Concept of ‘undertaking’ - Personal responsibility - Principle of proportionality - Deterrence multiplier))
      (2014/C 395/05)
      Language of the case: English

         Parties

         Appellants: YKK Cor., YKK Holding Europe BV, YKK Stocko Fasteners GmbH (represented by: D. Arts, W. Devroe, E. Winter and F. Miotto, avocats)

         Other party to the proceedings: European Commission (represented by: A. Bouquet and R. Sauer, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Sets asides the judgment of the General Court of the European Union in YKK and Others v Commission (EU:T:2012:322), as regards the application, for the purposes of determining the maximum amount of the fine, in the context of the cooperation in the Baseler-Wuppertaler and Amsterdamer circles on the market for metal and plastic fasteners and attaching machines, of a 10 % upper limit calculated on the basis of the YKK group turnover in the year preceding the adoption of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article [81 EC] (Case COMP/39.168 — PO/Hard haberdashery: fasteners), as regards the period of the infringement for which YKK Stocko Fasteners GmbH was held to be solely responsible;

                  2.

                  Dismisses the appeal for the remainder;

                  3.

                  Annuls Article 2(2) of Commission Decision C(2007) 4257 final in so far as it concerns the calculation of the fine for which YKK Stocko Fasteners GmbH was held to be solely liable in the framework of the cooperation in the Baseler-Wuppertal and Amsterdamer circles;

                  4.

                  Orders the fine imposed on YKK Stocko Fasteners GmbH for the infringement for which it is exclusively liable, in the framework of the cooperation in the Baseler-Wuppertaler and Amsterdamer circles, to be fixed at EUR 2 792 800;

                  5.

                  Orders YKK Corporation, YKK Holding Europe BV and YKK Stocko Fasteners GmbH to bear their own costs and pay three quarters of the costs of the European Commission relating both to the proceedings at first instance and to the appeal proceedings;

                  6.

                  Orders the European Commission to bear one quarter of its own costs relating both to the proceedings at first instance and to the appeal.

         (1)  OJ C 343, 10.11.2012.