title: Case C-94/02 P: Appeal brought on 16 March 2002 by Etablissements Biret et Cie SA against the judgment delivered on 11 January 2002 by the First Chamber of the Court of First Instance of the European Communities in Case T-210/00 between Etablissements Biret et Cie SA and Council of the European Union, supported by the Commission of the European Communities

text:
C 109/38               EN                     Official Journal of the European Communities                                       4.5.2002
The ‘Lotto Zero’ project is a project covered by Annex II to the         —     Infringement of Article 48 of the Rules of Procedure of
directive. The Commission takes the view that, by failing to                   the Court of First Instance: it is hardly possible to claim
ascertain whether that project required to be assessed for its                 that the matter of direct liability of the Community was
environmental effects in accordance with Articles 5 to 10 of                   totally absent from the application initiating proceedings
the directive, Italy has failed to fulfil its obligations under                and that it only appeared as a new plea in law in the
Article 4(2).                                                                  reply.
(1) OJ 1985 L 175, p. 40.
                                                                         Appeal brought on 16 March 2002 by Etablissements
Appeal brought on 16 March 2002 by Biret International                   Biret et Cie SA against the judgment delivered on 11 Janu-
SA against the judgment delivered on 11 January 2002 by                  ary 2002 by the First Chamber of the Court of First
the First Chamber of the Court of First Instance of the                  Instance of the European Communities in Case T-210/00
European Communities in Case T-174/00 between Biret                      between Etablissements Biret et Cie SA and Council of
International SA and Council of the European Union,                      the European Union, supported by the Commission of
supported by the Commission of the European Communi-                                        the European Communities
                                ties
                                                                                (Case C-94/02 P)
                         (Case C-93/02 P)
                         (2002/C 109/64)                                                            (2002/C 109/65)
An appeal against the judgment delivered on 11 January 2002              An appeal against the judgment delivered on 11 January 2002
by the First Chamber of the Court of First Instance of the               by the First Chamber of the Court of First Instance of the
European Communities in Case T-174/00 between Biret                      European Communities in Case T-210/00 between Etablisse-
International and Council of the European Union, supported               ments Biret et Cie SA and Council of the European Union,
by Commission of the European Communities, was brought                   supported by Commission of the European Communities,
before the Court of Justice of the European Communities on               was brought before the Court of Justice of the European
16 March 2002 by Biret International SA, represented by M. de            Communities on 16 March 2002 by Etablissements Biret et
Thoré and S. Rodrigues, with an address for service in                   Cie SA, represented by S. Rodrigues, with an address for
Luxembourg.                                                              service in Luxembourg.
The appellant claims that the Court should:
                                                                         The appellant claims that the Court should:
—     set aside the contested judgment delivered by the Court
      of First Instance of the European Communities on                   —     set aside the contested judgment delivered by the Court
      11 January 2002 in Case T-174/00;                                        of First Instance of the European Communities on
                                                                               11 January 2002 in Case T-210/00;
—     uphold the form of order sought by it at first instance;
      and                                                                —     uphold the form of order sought by it at first instance;
                                                                               and
—     order the defendant to pay the entire costs.
                                                                         —     order the defendant to pay the entire costs.
Pleas and main arguments
—     Infringement of Article 300(7) EC: should the question as          Pleas and main arguments
      to whether the WTO Agreements have direct effect, quod
      non, be regarded by the Court of Justice as continuing to
      condition the liability of the Community for infringement
                                                                         The pleas and main arguments are similar to those put forward
      of those Agreements, contrary to the requirements and
                                                                         in Case C-93/02 P (1).
      scope of Article 300(7) EC, the appellant requests the
      Court of Justice, after having failed to persuade the Court
      of First Instance and relying on its role of maintaining the
                                                                         (1) See p. 38 of this Official Journal.
      unity of the interpretation of Community law, to develop
      its case-law and acknowledge that all or part of the WTO
      Agreements have direct effect.


title: Case T-839/14: Order of the General Court of 30 April 2015 — Alnapharm v OHIM — Novartis (Alrexil) (Community trade mark — Opposition proceedings — Withdrawal of the opposition — No need to adjudicate)

text:
               6.7.2015

               EN

               Official Journal of the European Union

               C 221/20

         Order of the General Court of 30 April 2015 — Alnapharm v OHIM — Novartis (Alrexil)
   (Case T-839/14) (1)

   ((Community trade mark - Opposition proceedings - Withdrawal of the opposition - No need to adjudicate))
   (2015/C 221/27)
   Language of the case: English

      Parties

      Applicant: Alnapharm GmbH & Co. KG (Hamburg, Germany) (represented by: H. Heldt, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: H. O'Neill, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Novartis AG (Basel, Switzerland)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 23 October 2014 (Case R 1723/2013-4) concerning opposition proceedings between Novartis AG and Alnapharm GmbH & Co. KG.

      Operative part of the order

               1.

               There is no longer any need to adjudicate in the action.

               2.

               The applicant and the other party to the proceedings before the Board of Appeal shall bear their own costs and shall each pay half of the costs incurred by the defendant.

      (1)  OJ C 65, 23.2.2015.


title: Case T-328/16: Action brought on 23 June 2016 — Paice v EUIPO — Blackmore (DEEP PURPLE)

text:
               22.8.2016

               EN

               Official Journal of the European Union

               C 305/44

         Action brought on 23 June 2016 — Paice v EUIPO — Blackmore (DEEP PURPLE)
   (Case T-328/16)
   (2016/C 305/60)
   Language in which the application was lodged: English

      Parties

      Applicant: Ian Paice (London, United Kingdom) (represented by: M. Engelman, Barrister and J. Stephenson, Solicitor)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Richard Hugh Blackmore (New York, New York, United States)

      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 ‘DEEP PURPLE’ — Application for registration No 11 772 721

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 21 March 2016 in Case R 736/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision in any way it sees fit, namely that the trade mark be rejected in its entirety for all of the goods and services for which it was filed;

               —

               order EUIPO to pay the applicant’s costs of this appeal.

      Plea in law

               —

               Infringement of Article 8(4) of Regulation No 207/2009.


title: Case C-271/99: Action brought on 20 July 1999 by the Commission of the European Communities against the Kingdom of Belgium

text:
2.10.1999              EN                     Official Journal of the European Communities                                          C 281/5
Reference for a preliminary ruling by the Landgericht                        — order the respondent to pay the costs of the two sets
Hamburg, by order of that court of 23 June 1999 in the                            of proceedings.
cases of Carl Kühne KG (GmbH & Co.), Rich. Hengsten-
berg GmbH & Co. and Ernst Nowka GmbH & Co. KG v
               JÜTRO Konservenfabrik GmbH                               Pleas in law and main arguments
                         (Case C-269/99)                                 The Court of First Instance, basing its decision on incorrect
                                                                         premisses, namely an erroneous characterisation and interpret-
                         (1999/C 281/08)                                 ation of certain provisions laid down in regulations, in
                                                                         particular Article 7 of Annex IX to the Staff Regulations of
Reference has been made to the Court of Justice of the                   officials, failed in the present case to penalise the unlawfulness
European Communities by order of the Landgericht Hamburg                 of non-compliance with strict time-limits, thereby disregarding
(District Court, Hamburg) of 23 June 1999, received at the               the principles of legal certainty and of the rights of the defence.
Court on 19 July 1999, for a preliminary ruling in the cases of
Carl Kühne KG (GmbH & Co.), Rich. Hengstenberg GmbH &
Co. and Ernst Nowka GmbH & Co. KG v JÜTRO Konservenfa-
brik GmbH on the following question:
Is Commission Regulation (EC) No 590/1999 (1) of 18 March
1999 supplementing, by the addition of the designation
‘Spreewälder Gurken’, the Annex to Regulation (EC)                       Action brought on 20 July 1999 by the Commission
No 1107/96 (2) on the registration of geographical indications           of the European Communities against the Kingdom of
and designations of origin under the procedure laid down in                                            Belgium
Article 17 of Regulation (EEC) No 2081/92 (3) compatible with
European Community law?                                                                            (Case C-271/99)
(1) OJ L 74 of 19.3.1999, p. 8.                                                                    (1999/C 281/10)
(2) OJ L 148 of 21.6.1996, p. 1.
(3) OJ L 208 of 24.7.1992, p. 1.                                         An action against the Kingdom of Belgium was brought before
                                                                         the Court of Justice of the European Communities on 20 July
                                                                         1999 by the Commission of the European Communities,
                                                                         represented by Gérard Berscheid, of its Legal Service, acting as
                                                                         Agent, with an address for service in Luxembourg at the office
                                                                         of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Appeal brought on 19 July 1999 by the Z against the
judgment delivered on 4 May 1999 by the First Chamber
                                                                         The Commission of the European Communities claims that
of the Court of First Instance of the European Communi-
ties in Case T-242/97 between Z and the European                         the Court should:
                            Parliament
                                                                         (1) declare that, by failing to bring into force within the
                                                                             prescribed time-limits the laws, regulations and adminis-
                        (Case C-270/99 P)
                                                                             trative measures necessary in order to comply with Council
                                                                             Directive 95/71/EC of 22 December 1995 amending the
                         (1999/C 281/09)                                     Annex to Directive 91/493/EEC laying down the health
                                                                             conditions for the production and the placing on the
An appeal against the judgment delivered on 4 May 1999 by                    market of fishery products (1), the Kingdom of Belgium has
the First Chamber of the Court of First Instance of the                      failed to fulfil its obligations under Article 2 of Directive
European Communities in Case T-242/97 between Z and the                      95/71/EC;
European Parliament was brought before the Court of Justice
of the European Communities on 19 July 1999 by Z, represent-             (2) order the Kingdom of Belgium to pay the costs.
ed by Jean-Noël Louis, of the Brussels Bar, with an address for
service in Luxembourg at offices of Fiduciaire Myson SARL,
30 Rue de Cessange.                                                      Pleas in law and main arguments
The appellant claims that the Court should:
                                                                         The mandatory nature of the provisions of the third paragraph
    declare and rule that                                                of Article 249 EC and of the first paragraph of Article 10 EC
                                                                         is such as to oblige Member States to which directives are
    — the judgment of the Court of First Instance of the                 addressed to adopt the measures necessary in order to
         European Communities (First Chamber) of 4 May 1999              implement those directives before the expiration of the
         in Case T-242/97 Z v European Parliament is to be               time-limit prescribed for so doing. The time-limit in question
         annulled;                                                       expired on 1 July 1997 but Belgium has not adopted the
                                                                         necessary measures.
    adjudicating on the case afresh, declare that
    — the decision of the Secretary-General of the Parliament            (1) OJ L 332 of 30.12.1995, p. 40.
         of 28 October 1996, imposing on the appellant the
         disciplinary measure of downgrading from grade C 1,
         step 4, to grade C 5, step 1, is to be annulled;


title: Case T-131/11: Action brought on 7 March 2011 — Ezzedine v Council

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/20

         Action brought on 7 March 2011 — Ezzedine v Council
   (Case T-131/11)
   2011/C 130/39
   Language of the case: French

      Parties

      Applicant: Ibrahim Ezzedine (Treichville, Côte d’Ivoire) (represented by: G. Collard, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that, concerning the applicant, Mr Ibrahim EZZEDINE, Council Decision 2011/71/CFSP of 31 January 2011, published on 2 February 2011 in the Official Journal of the European Union, is not justified in fact,

               —

               consequently,

                           —

                           annul Council Decision 2011/71/CFSP of 31 January 2011;

                           —

                           alternatively, order that the name of Mr Ibrahim EZZEDINE be removed from the list annexed to that decision.

      Pleas in law and main arguments

   In support of the action, the applicant puts forward two pleas in law.

               1.

               First plea in law alleging a breach of the obligation to state reasons, in so far as the grounds for including the applicant on the list of persons and entities to which the restrictive measures apply are stereotyped without any specific factual element making it possible to assess the relevance of that inclusion being mentioned.

               2.

               Second plea in law alleging a manifest error of assessment, in so far as the applicant is accused of helping to fund the illegitimate administration of L. Gbagbo, whereas the applicant is only carrying out the activity of a private businessman and is therefore simply helping to fund the Republic of Côte d’Ivoire and not a specific regime by the payment of taxes and levies.


title: Case C-394/12: Reference for a preliminary ruling from the Asylgerichtshof (Austria) lodged on 27 August 2012 — Shamso Abdullahi

text:
               10.11.2012

               EN

               Official Journal of the European Union

               C 343/8

         Reference for a preliminary ruling from the Asylgerichtshof (Austria) lodged on 27 August 2012 — Shamso Abdullahi
   (Case C-394/12)
   2012/C 343/10
   Language of the case: German

      Referring court

   Asylgerichtshof

      Parties to the main proceedings

      Appellant: Shamso Abdullahi

      Respondent: Bundesasylamt

      Questions referred

               1.

               Is Article 19 in conjunction with Article 18 of Regulation (EC) No 343/2003 (1) to be interpreted as meaning that, following the agreement of a Member State in accordance with those provisions, that Member State is the State responsible for examining the asylum application within the meaning of the introductory part of Article 16(1) of Regulation No 343/2003, or does European law oblige the national review authority where, in the course of an appeal or review procedure in accordance with Article 19(2) of Regulation (EC) No 343/2003, irrespective of that agreement, it comes to the view that another State is the Member State responsible pursuant to Chapter III of Regulation (EC) No 343/2003 (even where that State has not been requested to take charge or has not given its agreement), to determine that the other Member State is responsible for the purposes of its appeal or review procedure? In that regard, does every asylum seeker have an individual right to have his application for asylum examined by a particular Member State responsible in accordance with those responsibility criteria?

               2.

               Is Article 10(1) of Regulation (EC) No 343/2003 to be interpreted as meaning that the Member State in which a first irregular entry takes place (‘first Member State’) must accept its responsibility for examining the asylum application of a third-country national if the following situation materialises:
               A third-country national travels from a third country, entering the first Member State irregularly. He does not claim asylum there. He then departs for a third country. After less than three months, he travels from a third country to another EU Member State (‘second Member State’), which he enters irregularly. From that second Member State, he continues immediately and directly to a third Member State, where he lodges his first asylum claim. At this point, less than 12 months have elapsed since his irregular entry into the first Member State.

               3.

               Irrespective of the answer to Question 2, if the ‘first Member State’ referred to therein is a Member State whose asylum system displays systemic deficiencies equivalent to those described in the judgment of the European Court of Human Rights of 21 January 2011, M.S.S., 30.696/09, is it necessary to come to a different assessment of the Member State with primary responsibility within the meaning of Regulation (EC) No 343/2003, notwithstanding the judgment of the European Court of Justice of 21 December 2011 in Joined Cases C-411/10 and C-493/10 [NS v Secretary of State for the Home Department and ME and Others v Refugee Applications Commissioner]? In particular, can it be assumed that a stay in such a Member State cannot from the outset constitute an event establishing responsibility within the meaning of Article 10 of Regulation (EC) No 343/2003?

      (1)  Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50, p. 1)


title: Judgment of the Court (First Chamber) of  12 January 2006  in Case C-173/04 P: Deutsche SiSi-Werke GmbH & Co. Betriebs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 7(1)(b) of Regulation (EC) No 40/94 — Three-dimensional shapes of stand-up pouches for fruit drinks and fruit juices — Absolute ground for refusal — Distinctive character)

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/5

      JUDGMENT OF THE COURT

   (First Chamber)
   of 12 January 2006
   in Case C-173/04 P: Deutsche SiSi-Werke GmbH & Co. Betriebs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Appeal - Community trade mark - Article 7(1)(b) of Regulation (EC) No 40/94 - Three-dimensional shapes of stand-up pouches for fruit drinks and fruit juices - Absolute ground for refusal - Distinctive character)
   (2006/C 60/09)
   Language of the case: German
   In Case C-173/04 P: appeal under Article 56 of the Statute of the Court of Justice lodged on 6 April 2004 by Deutsche SiSi-Werke GmbH & Co. Betriebs KG, established in Eppelheim (Germany) (Lawyers: H. Eichmann, G. Barth, U. Blumenröder, C. Niklas-Falter, M. Kinkeldey, K. Brandt, A. Franke, U. Stephani, B. Allekotte, E. Pfrang, K. Lochner and B. Ertle, Rechtsanwälte), the other party to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: G. Schneider) — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, K. Lenaerts, E. Juhász and M. Ilešič (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; K.H. Sztranc, Administrator, for the Registrar, gave a judgment on 12 January 2006, in which it:

               1.

               Dismisses the appeal;

               2.

               Orders Deutsche SiSi-Werke GmbH & Co. Betriebs KG to pay the costs.

      (1)  OJ C 156, 12.6.2004.


title: ORDER OF THE COURT OF FIRST INSTANCE of 15 December 1998 in Case T-25/98: Henri de Compte v. European Parliament (Officials - Action for annulment and compensation - Decision of the Parliament giving discharge in respect of the implementation of the budget for the financial year 1995 - Prior administrative procedure - Decision rejecting a complaint - Identification of the subject-matter and legal basis - Partial inadmissibility - Res judicata - Action manifestly and wholly unfounded in law)

text:
20.2.1999            EN                  Official Journal of the European Communities                                 C 48/25
Chamber), composed of: B. Vesterdorf, President, and J.                  ORDER OF THE COURT OF FIRST INSTANCE
Pirrung and M. Vilaras, Judges; H. Jung, Registrar, made
                                                                                of 15 December 1998
an order on 25 November 1998, the operative part of
which is as follows:                                                in   Case   T-25/98:     Henri de Compte      v. European
                                                                                Parliament (1)
1. The application is dismissed as inadmissible.                    (Officials Ð Action for annulment and compensation Ð
                                                                    Decision of the Parliament giving discharge in respect of
                                                                    the implementation of the budget for the financial year
2. The parties are to bear their own costs.                         1995 Ð Prior administrative procedure Ð Decision
                                                                    rejecting a complaint Ð Identification of the
(1) OJ C 357, 22.11.1997.                                           subject-matter and legal basis Ð Partial inadmissibility Ð
                                                                    Res judicata Ð Action manifestly and wholly unfounded
                                                                                in law)
                                                                                (1999/C 48/55)
     ORDER OF THE COURT OF FIRST INSTANCE                                          (Language of the case: French)
                    of 11 December 1998
in Case T-22/98: Scottish Soft Fruit Growers Ltd v.                 In Case T-25/98: Henri de Compte, a former official of
       Commission of the European Communities (1)                   the European Parliament, residing at Longeville-leÁs-Metz,
(Common agricultural policy Ð Raspberries intended for              represented by Henri Ferretti, of the Thionville Bar, with
processing Ð Flat-rate grant to producers' organisations            an address for service in Luxembourg at the Chambers of
Ð Recovery of sums paid Ð Act against which no action               Guy Harles, 8-10 Rue Mathias Hardt, v. European
lies Ð Legal effects Ð Application for annulment Ð                  Parliament (Agents: Evelyn Waldherr and Anders
                        Inadmissibility)                            Neergaard) Ð application, first, for annulment of
                                                                    Decision No A4-0125/97 of the European Parliament of
                        (1999/C 48/54)                              10 April 1997 giving discharge in respect of the
                                                                    implementation of the budget for the financial year 1995
                                                                    Ð Section I Ð European Parliament/Ombudsman annex
               (Language of the case: English)
                                                                    (OJ C 132, 28.4.1997, p. 148) and of the Parliament's
                                                                    decision, notified on 19 November 1997, rejecting a
In Case T-22/98: Scottish Soft Fruit Growers Ltd,                   complaint lodged by the applicant and, second, for
established at Blairgowrie, Scotland (Great Britain),               compensation for the damage suffered by the applicant by
represented by Fergus Randolph, Barrister, of the Bar of            reason of the publication of the said discharge decision
England and Wales, with an address for service in                   and as a result of a wrongful accusation concerning a loss
Luxembourg at the Chambers of Arendt and Medernach,                 of cash Ð the Court of First Instance (Fourth Chamber),
8-10 Rue Mathias Hardt v. Commission of the European                composed of: R. M. Moura Ramos, President, and V. Tiili
Communities (Agent: Xavier Lewis) Ð application for                 and P. Mengozzi, Judges; H. Jung, Registrar, made an
annulment of the decision of the Commission, expressed              order on 15 December 1998, the operative part of which
in its letter of 16 October 1997 to the Scottish Office,            is as follows:
refusing to accede to a request concerning the
interpretation and application of Council Regulation
(EEC) No 1991/92 of 13 July 1992 establishing a special             1. The application is dismissed as inadmissible, save as
scheme for raspberries intended for processing (OJ L 199,               regards the claims concerning annulment of the
18.7.1992, p. 1), and of Commission Regulation (EEC)                    accounting documents relating to the sum of BEF
No 2252/92 of 30 July 1992 laying down detailed rules                   4 136 125 and the Parliament's refusal to make
for applying that scheme (OJ L 219, 4.8.1992, p. 19) Ð                  available to the applicant all the accounting
the Court (Fifth Chamber), composed of: J. D. Cooke,                    documents explaining the reasons for which he was
President, M. R. García-Valdecasas and P. Lindh, Judges;                not issued with a final discharge.
H. Jung, Advocate-General, has given a judgment on
11 December 1998, in which it:
                                                                    2. The remainder of the application is dismissed as
1. The application is dismissed as inadmissible.                        manifestly and wholly unfounded in law.
2. The applicant shall pay its own costs and those                  3. The parties are to bear their own costs.
    incurred by the Commission.
                                                                    (1) OJ C 94, 28.3.1998.
(1) OJ C 94, 28.3.1998.


title: Case T-142/11: Action brought on 14 March 2011 — SIR v Council

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/24

         Action brought on 14 March 2011 — SIR v Council
   (Case T-142/11)
   2011/C 130/47
   Language of the case: French

      Parties

      Applicant: Société ivoirienne de raffinage (SIR) (Abidjan, Côte d’Ivoire) (represented by: M. Ceccaldi, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Decision 2011/18/CFSP and Council Regulation (EU) 25/2011 of 14 January 2011 imposing restrictive measures directed against certain persons and entities and in particular as regards the SIR;

               —

               order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant puts forward five pleas in law.

               1.

               First plea in law alleging infringement of the Charter of the United Nations, and of Articles 3(5) and (6) and 21(1) TEU and 7 TFEU, in so far as the defendant has exceeded its powers in imposing restrictive measures, the name of the applicant not being among the persons covered by United Nations Security Council Resolution 1572 (2004).

               2.

               Second plea in law alleging infringement of the principle of non-interference in a State's internal affairs, the defendant going against the sovereign decision of the Constitutional Council of the Republic of Côte d’Ivoire which declared elected president L. Gbagbo and not A. Ouattara.

               3.

               Third plea in law alleging the substantive unlawfulness of the contested measures which cannot be linked to a competence and/or to a power of the defendant.

               4.

               Fourth plea in law alleging infringement of the rights of the defence, in so far as the applicant could not have been apprised of the evidence against him and could not therefore have duly put forward his point of view in that regard.

               5.

               Fifth plea in law alleging infringement of the principle of proportionality, the consequences of the measures taken both for the applicant and for the population of Côte d’Ivoire being excessive in relation to the objective being pursued.


title: Case T-348/16: Action brought on 27 June 2016 — Aristoteleio Panepistimio Thessalonikis v European Research Council Executive Agency (ERCEA)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/39

         Action brought on 27 June 2016 — Aristoteleio Panepistimio Thessalonikis v European Research Council Executive Agency (ERCEA)
   (Case T-348/16)
   (2016/C 296/49)
   Language of the case: Greek

      Parties

      Applicant: Aristoteleio Panepistimio Thessalonikis (Thessaloniki, Greece) (represented by: V. Christianos, lawyer)

      Defendant: European Research Council Executive Agency (ERCEA) (Brussels, Belgium)

      Form of order sought

   The applicant claims that the General Court should:

               —

               Declare that the demand made by the defendant in debit note numbered 3241606289 of 26/05/2016 that the Aristoteleio Panepistimio Thessalonikis repay part of the grant which it received for the MINATRAN project, a sum of EUR 245 525.43, is unfounded, and declare that that sum constitutes eligible costs; and

               —

               order the European Research Council Executive Agency to pay the applicant’s legal costs.

      Pleas in law and main arguments

   The applicant claims that the General Court of the European Union, under Article 272 TFEU, should declare that the sum disputed by ERCEA constitutes eligible costs.
   In support of the action, the applicant argues that the costs disputed by ERCEA and, in particular, the staff costs, travel costs and indirect costs are eligible costs. That argument is supported by the evidence which the applicant submitted to ERCEA during the on-the-spot audit and in subsequent correspondence and, above all, by the comprehensive analysis of the evidence submitted.


title: Case C-327/08: Judgment of the Court (Third Chamber) of 11 June 2009 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directives 89/665/EEC and 92/13/EEC — Review procedures concerning the award of public contracts — Guarantee of effective review — Minimum period to be ensured between notification to the unsuccessful candidates and tenderers of the decision to award a contract and the signature of the contract concerned)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/21

         Judgment of the Court (Third Chamber) of 11 June 2009 — Commission of the European Communities v French Republic
   (Case C-327/08) (1)

   (Failure of a Member State to fulfil obligations - Directives 89/665/EEC and 92/13/EEC - Review procedures concerning the award of public contracts - Guarantee of effective review - Minimum period to be ensured between notification to the unsuccessful candidates and tenderers of the decision to award a contract and the signature of the contract concerned)
   2009/C 180/34
   Language of the case: French

      Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet, D. Kukovec and M. Konstantinidis, Agents)

      Defendant: French Republic (represented by: G. de Bergues and J.-Ch. Gracia, Agents)

      Re:

   Failure of a Member State to fulfil obligations — Breach of Article 2(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 92/50/EEC (OJ 1992 L 209, p. 1), and of Article 2(1) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14) — Minimum period to be ensured between notification to the candidates and tenderers of the decision to award a contract and the signature of the contract concerned

      Operative part of the judgment

   The Court hereby:

               1.

               Declares that, by adopting and maintaining in force Article 1441-1 of the new Code of Civil Procedure, as amended by Article 48-1o of Decree No 2005-1308 of 20 October 2005 concerning contracts awarded by the contracting authorities referred to in Article 4 of Order No 2005-649 of 6 June 2005 on contracts awarded by certain public bodies or private persons not subject to the Public Procurement Code, in so far as that provision imposes on the contracting authority or entity a ten-day period within which to respond to a formal challenge — the bringing of any precontractual proceedings before that response being precluded — and where that period does not have the effect of suspending the period which must be ensured between the notification to the unsuccessful candidates and tenderers of the decision to award the contract and the signature of that contract, the French Republic has failed to fulfil its obligations under Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors;

               2.

               Dismisses the remainder of the action;

               3.

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

      (1)  OJ C 285, 8.11.2008.


title: Case T-189/07: Judgment of the Court of First Instance of 3 June 2009 — Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE) (Community trade mark — Invalidity proceedings — Community word mark FLUGBÖRSE — Material date for the examination of an absolute ground for invalidity — Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 52(1)(a) of Regulation (EC) No 207/2009)

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/10

         Judgment of the Court of First Instance of 3 June 2009 — Frosch Touristik v OHIM — DSR touristik (FLUGBÖRSE)
   (Case T-189/07) (1)

   (Community trade mark - Invalidity proceedings - Community word mark FLUGBÖRSE - Material date for the examination of an absolute ground for invalidity - Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 52(1)(a) of Regulation (EC) No 207/2009)
   2009/C 167/20
   Language of the case: German

      Parties

      Applicant: Frosch Touristik GmbH (Munich, Germany) (represented by: H. Lauf and T. Raab, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: DSR touristik GmbH (Karlsruhe, Germany)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 22 March 2007 (Case R 1084/2004-4), relating to invalidity proceedings between DSR touristik GmbH and Frosch Touristik GmbH

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 March 2007 (Case R 1084/2004-4).

               2.

               Orders OHIM to pay the costs.

      (1)  OJ C 183, 4.8.2007.


title: Case C-525/13: Request for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 3 October 2013 — Vlaams Gewest v Heidi Van Den Broeck

text:
               21.12.2013

               EN

               Official Journal of the European Union

               C 377/6

         Request for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 3 October 2013 — Vlaams Gewest v Heidi Van Den Broeck
   (Case C-525/13)
   2013/C 377/12
   Language of the case: Dutch

      Referring court

   Hof van Cassatie van België

      Parties to the main proceedings

      Appellant: Vlaams Gewest

      Respondent: Heidi Van Den Broeck

      Question referred

   Must the first paragraph of Article 33 of Commission Regulation (EC) No 2419/2001 (1) of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 be interpreted as meaning that the refusal, for the calendar year in question, to grant ‘the aid to which the farmer would have been entitled pursuant to Article 31(2) … under the aid scheme concerned’, refers to the aid payable in implementation of ‘the aid scheme concerned’, as referred to in Article 1(1) of Council Regulation (EEC) No 3508/92 (2) of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes, so that it is not only the aid for the ‘crop group concerned’ which must be refused, but the entire aid payable in implementation of one of the aid schemes referred to in that provision, of which the crop group concerned forms part?

      (1)  OJ 2001 L 327, p. 11.

      (2)  OJ 1992 L 355, p. 1.


title: Case T-457/09: Judgment of the General Court of 17 July 2014  — Westfälisch-Lippischer Sparkassen- und Giroverband v Commission (State aid — Restructuring of WestLB — Aid to remedy a serious disturbance in the economy of a Member State — Article 87(3)(b) EC — Decision declaring the aid compatible with the common market under certain conditions — Action for annulment — Individual concern — Legal interest in bringing proceedings — Admissibility — Collegiality — Obligation to state reasons — Guidelines on State aid for rescuing and restructuring firms in difficulty — Proportionality — Principle of non-discrimination — Article 295 EC — Article 7(4) of Regulation (EC) No 659/1999)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/26

         Judgment of the General Court of 17 July 2014 — Westfälisch-Lippischer Sparkassen- und Giroverband v Commission
   (Case T-457/09) (1)

   ((State aid - Restructuring of WestLB - Aid to remedy a serious disturbance in the economy of a Member State - Article 87(3)(b) EC - Decision declaring the aid compatible with the common market under certain conditions - Action for annulment - Individual concern - Legal interest in bringing proceedings - Admissibility - Collegiality - Obligation to state reasons - Guidelines on State aid for rescuing and restructuring firms in difficulty - Proportionality - Principle of non-discrimination - Article 295 EC - Article 7(4) of Regulation (EC) No 659/1999))
   2014/C 292/31
   Language of the case: German

      Parties

      Applicant: Westfälisch-Lippischer Sparkassen- und Giroverband (Münster, Germany) (represented initially by A. Rosenfeld and I. Liebach, and subsequently by A. Rosenfeld and O. Corzilius, lawyers)

      Defendant: European Commission (represented initially by L. Flynn, K. Gross and B. Martenczuk, and subsequently by L. Flynn, B. Martenczuk and T. Maxian Rusche, acting as Agents)

      Re:

   Action for the annulment of Commission Decision 2009/971/EC of 12 May 2009 on State aid C 43/2008 (ex N 390/2008) which Germany proposes to grant towards the restructuring of WestLB AG (OJ 2009 L 345, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Rejects the Commission’s request for a declaration that there is no need to adjudicate;

               2.

               Dismisses the action;

               3.

               Orders Westfälisch-Lippischer Sparkassen- und Giroverband to bear its own costs and to pay those incurred by the Commission, including the costs relating to the interim proceedings.

      (1)  OJ C 11, 16.1.2010.


title: Case C-196/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 13 April 2017 — Kathrin Meyer v TUIfly GmbH

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/8

         Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 13 April 2017 — Kathrin Meyer v TUIfly GmbH
   (Case C-196/17)
   (2017/C 231/10)
   Language of the case: German

      Referring court

   Amtsgericht Hannover

      Parties to the main proceedings

      Applicant: Kathrin Meyer

      Defendant: TUIfly GmbH

      Questions referred

               1.

               Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

               2.

               In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

               3.

               In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

               4.

               In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

      (1)  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, OJ 2004 L 46, p. 1.


title: Case T-306/02: Action brought on 27 September 2002 by Renaud Denuit against Commission of the European Communities

text:
C 323/36               EN                       Official Journal of the European Communities                                    21.12.2002
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                               The applicant claims that the Court should:
                            INSTANCE
                                                                           —     annul the decision of 26 November 2001 of the Secretary
                     of 27 September 2002                                        General of the Commission, David O’Sullivan, to assign
                                                                                the applicant as adviser ad personam in the SG/F/1 Unit
                                                                                ‘Institutional development of the Union and Governance’
in Case T-236/02 R: Luigi Marcuccio v Commission of the
                                                                                and that of 19 February 2002 to assign him, following
                    European Communities
                                                                                the reorganisation of the Secretariat General of the
                                                                                Commission, to SG/TF/AU 2;
(Proceedings for interim relief — Officials — Decision to
                 reassign — Urgency — None)
                                                                           —     annul the decisions of the Commission rejecting his
                                                                                application for the post of A 3 heads of unit in SG/B/2
                         (2002/C 323/59)                                         ‘Openness, access to documents, relations with civil
                                                                                society’ and appointing another person to that post;
                   (Language of the case: Italian)
                                                                           —     order the defendant to pay the costs.
In Case T-236/02 R: Luigi Marcuccio, an official of the
Commission of the European Communities, residing in Tricase,
Italy, represented by L. Garofalo, lawyer, against Commission
of the European Communities (Agents: C. Berardis-Kayser and                Pleas in law and main arguments
A. Dal Ferro) — application for an order (1) staying execution
of the decision reassigning an A 7/A 6 post, and its holder
Mr Luigi Marcuccio, in the Directorate-General for Develop-
ment, Delegation of the Commission to Luanda, Angola, to                   The applicant, an official in Grade A 4 at the Commission,
the Directorate-General for Development in Brussels and (2)                claims that it was unlawful for him not to have been appointed,
immediately reassigning Mr Marcuccio to the duties for which               as a priority, to the first vacant post as head of unit for which
he was previously responsible in the delegation — the President            he was qualified. Furthermore, the applicant was unlawfully
of the Court of First Instance made an order on 27 September               assigned, as adviser ad personam, to Unit SG/f.1 and, sub-
2002, in which he:                                                         sequently, to Unit SG/TF-AU 2. He claims that the duties
                                                                           carried out at present by the him since the adoption of the
                                                                           contested decisions do no correspond to the duties usually
1.    Dismissed the application for interim relief;                        carried out by an official in Grade A 4.
2.    Ordered that costs be reserved.
                                                                           In support of his claim he alleges:
                                                                           —     breach of redeployment procedure;
                                                                           —     breach of the procedure for filling vacant posts at middle-
Action brought on 27 September 2002 by Renaud Denuit                             management level;
    against Commission of the European Communities
                                                                           —     breach of the principle that officials should have reason-
                         (Case T-306/02)                                         able career prospects;
                         (2002/C 323/60)
                                                                           —     infringement of Article 45 of the Staff Regulations;
                   (Language of the case: French)
                                                                           —     manifest error of assessment;
                                                                           —     breach of the obligation to state the reasons on which
An action against the Commission of the European Communi-                        decisions are based.
ties was brought before the Court of First Instance of the
European Communities on 27 September 2002 by Renaud
Denuit, residing in Brussels, represented by Albert Coolen,
Jean-Noël Louis and Etienne Marchal, avocats.


title: Case T-37/03: Action brought on 4 February 2003 by Open Mobile Alliance Ltd. against the Office for Harmonization in the Internal Market

text:
C 83/24               EN                          Official Journal of the European Union                                         5.4.2003
The applicant claims that the Court should:                               The applicant claims that the Court should:
—     annul the Commission’s decision rejecting the applicant’s           —     annul the decision of the Second Board of Appeal of
      candidature and refusing to admit him to the written                      OHIM of 18 November 2002 in file R 803/2001-2;
      procedure in open competition EUR/A/166/01, as noti-
      fied to him by decision of the appointing authority of              —     uphold, therefore, the applicant’s opposition to regis-
      8 April 2002;                                                             tration of the trade mark ‘CARPO’, and
—     in the alternative, order compensation for non-material             —     order the defendant to pay the costs.
      damage provisionally estimated at EUR 2 500;
—     order the defendant to pay the costs.
                                                                          Pleas in law and main arguments
                                                                          Applicant for the Com-        Basf Aktiengegesellschaft
Pleas in law and main arguments                                           munity trade mark:
                                                                          The Community trade           Word mark ‘CARPO’ for products
The applicant in the present case challenges the decision                 mark concerned:               in class 5 (fungicides, herbicides,
refusing to allow him to take part in the tests in competition                                          insecticides and pesticides).
EUR/A/166/01, held for the purpose of constituting a reserve
for recruitment of A7/A6 administrators in the area of                    Proprietor of the right to    Applicant.
auditing, on the ground that the qualifications and diplomas              the trade mark or sign
produced by the applicant did not satisfy the conditions laid             asserted by way of oppo-
down in point III.B.2 of the notice of competition. The                   sition in the opposition
Selection Board considered that the applicant’s qualifications of         proceedings:
‘Ragioniere e Perito Commerciale’ and ‘Revisore Commerciale’
could not be regarded as equivalent to the qualification of               Trade mark or sign            Spanish word mark ‘HARPO Z’
‘Dottore Commercialista’.                                                 asserted by way of oppo-      for products in Class 5 (prep-
                                                                          sition in the opposition      arations for destroying vermin,
                                                                          proceedings:                  fungicides, herbicides).
In support of his claims, the applicant alleges failure to comply
with of the notice of competition and infringement of the duty            Decision of the Oppo-         Opposition rejected.
to state reasons, and alleges that there was in the circumstances         sition Division:
of the case a manifest error of assessment. Specifically, he
argues that the Selection Board erred in its assessment of his            Decision of the Board of      Action dismissed.
qualifications, diplomas, professional activity and training              Appeal:
periods in auditing which in fact enable him to claim a
professional qualification of equivalent level.                           Grounds of claim:             Misapplication of Article 8(1)(b)
                                                                                of Regulation (EC) No 40/94 (like-
                                                                                lihood of confusion)
Action brought on 31 January 2003 by Aventis Cropscien-
ce S.A. against Office for the Harmonisation of the                       Action brought on 4 February 2003 by Open Mobile
     Internal Market (trade marks and designs) (OHIM)
                                                                          Alliance Ltd. against the Office for Harmonization in the
                                                                                Internal Market
                         (Case T-35/03)
                                                                                (Case T-37/03)
                         (2003/C 83/53)
                                                                                (2003/C 83/54)
                  (Language of the case: Spanish)
                                                                                (Language of the case: English)
An action against the Office for Harmonisation in the Internal
Market (trade marks and designs (OHIM) was brought before                 An action against the Office for Harmonization in the Internal
the Court of First Instance of the European Communities on                Market was brought before the Court of First Instance of the
31 January 2003 by Aventis Cropscience S.A., the registered               European Communities on 4 February 2003 by Open Mobile
office of which is in Lyon (France), represented by Enrique               Alliance Ltd., Reading, United Kingdom, represented by Ms
Armijo Chávarri.                                                          Alexandra Dellmeier, Attorney at Law.
 ---pagebreak--- 5.4.2003               EN                        Official Journal of the European Union                                           C 83/25
The applicant claims that the Court should:                              The applicant furthermore invokes a violation of Rule 52(2) of
                                                                         Regulation 2868/95 ( 1) and an infringement of the right to
—     cancel the decision of the Third Board of Appeal of                good administration and the right to an effective remedy and
      20 November 2002;                                                  a fair trial as incorporated in articles 41 and 47 of the Charter
                                                                         of Fundamental Rights. The applicant states that no written
                                                                         communication was attached as required by Rule 52(2).
—     reassign the application No 1131739 for the figurative
      mark ‘W@P’ to the original filing date of 8 April 1999;
                                                                         The applicant finally submits that the defendant made a
—     as an auxiliary request it is asked for that the application       statement and not a decision so that the time-limit of two
      No 1131739, the figurative mark ‘W@P’, be reassigned               months indicated in Rule 52(2) of Regulation 2868/95 is not
      the application date of 13 October 1999, the date given            applicable.
      to the application for the word mark ‘WAP FORUM’ with
      the No 1131705 which was also filed for on 8 April
      1999;
                                                                         (1 ) Commission Regulation (EC) No 2868/95 of 13 December
                                                                              1995 implementing Council Regulation (EC) No 40/94 on the
—     as an auxiliary request it is asked for that the application            Community trade mark (OJ L 303, p. 1).
      No 1131739, the figurative mark ‘W@P’, be reassigned
      the application date of 21 December 1999;
—     as an auxiliary request it is asked for reinstatement
      according to article 78 of Council Regulation 40/94;
Pleas in law and main arguments                                          Action brought on 4 February 2003 by Merck Sharp &
                                                                         Dohme Limited and 19 other applicants against the
                                                                         Commission of the European Communities and the Euro-
                                                                         pean Agency for the Evaluation of Medicinal Products
The applicant applied on 8 April 1999 for the registration of
                                                                                (‘EMEA’)
the figurative mark ‘W@P’ for goods and services in classes 35,
41 and 42 (application No 1131739). The then representatives
of the applicant requested that the filing fee be deducted from                                    (Case T-41/03)
their deposit account.
                                                                                (2003/C 83/55)
The defendant informed the applicant that the filing fee had to
be paid within a time-limit of one month. Later, the defendant
informed the applicant that since the application fee had not                                (Language of the case: English)
been paid, the application would have, as its filing date,
the date on which all flaws had been remedied. The then
representatives of the applicant requested again that the fee be
deducted from their deposit account.
                                                                         An action against the Commission of the European Communi-
                                                                         ties and the European Agency for the Evaluation of Medicinal
                                                                         Products (‘EMEA’) was brought before the Court of First
The defendant informed the applicant on 5 September 2000                 Instance of the European Communities on 4 February 2003 by
that the application would have 17 March 2000 as its filing              Merck Sharp & Dohme Limited, Hoddeston, United Kingdom,
date because this was the date actual payment by cheque was              Merck Sharp & Dohme BV, Haarlem, Netherlands, Laboratoires
received. The applicant was furthermore informed that the                Merck Sharp & Dohme-Chibret, Paris, France, MSD Sharp &
deposit account did not have sufficient funds to debit the fee.          Dohme GmbH, Haar, Germany, Merck Sharp & Dohme (Italia)
                                                                         SpA., Rome, Italy, Merck Sharp & Dohme, LDA. Paço de
                                                                         Arcos, Portugal, Merck Sharp & Dohme de Espana S.A.,
The applicant contested this decision before the board of                Madrid, Spain, Merck Sharp & Dohme Ges.m.b.H., Wien,
appeal on 23 January 2001. The Board of Appeal decided that              Austria, Merck & Co. Inc., Whitehouse Station, USA, Dieck-
the appeal was out of time and declared it inadmissible.                 mann Arzneimittel GmbH, Haar, Germany, Neopharmed SpA,
                                                                         Rome, Italy, Istituto Gentili SpA., Pisa, Italy, Laboratórios
                                                                         Químico-Farmacêuticos Chibret, LDA., Paço de Arcos, Portu-
In support of its present application, the applicant submits             gal, Laboratoires Sanofi, Synthelabo France, Paris, France,
that the defendant has breached an obligation it has as a public         Boehringer Ingelheim Pharma GmbH & Co.KG, Ingelheim,
authority to keep track of its bookkeeping and an infringement           Germany, VIANEX S.A., Nea Erythrea, Greece, Sigma-Tau
of Article 41 of the Charter of Fundamental Rights, namely               Industrie Farmaceutiche Riunite SpA., Rome, Italy, Mediola-
the right to good administration. According to the applicant,            num SpA., Milano, Italy, BIOHORM S.A. (Groupo Uriach),
the defendant has the responsibility to notify within a reason-          Barcelona, Spain, and LACER S.A., Barcelona, Spain, represent-
able period of time any inconsistencies.                                 ed by Dr Georg M. Berrisch and Mr Peter Bogaert, Lawyers.


title: Case C-240/07: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 16 May 2007 — Sony Music Entertainment (Germany) GmbH v Falcon Neue Medien Vertrieb GmbH

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/13

         Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 16 May 2007 — Sony Music Entertainment (Germany) GmbH v Falcon Neue Medien Vertrieb GmbH
   (Case C-240/07)
   (2007/C 170/23)
   Language of the case: German
   Referring court
   Bundesgerichtshof
   Parties to the main proceedings

      Appellant: Sony Music Entertainment (Germany) GmbH

      Respondent: Falcon Neue Medien Vertrieb GmbH
   Questions referred

               1.

               Does the term of protection granted by Directive 2006/116/EC (1) of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (Directive 2006/116) under the conditions set out in Article 10(2) thereof apply also in the case of subject-matter that has not at any time been protected in the Member State in which protection is sought?

               2.

               If Question 1 is to be answered in the affirmative:

                           (a)

                           Do national provisions governing the protection of rightholders who are not Community nationals constitute national provisions within the meaning of Article 10(2) of Directive 2006/116?

                           (b)

                           Does the term of protection granted pursuant to Article 10(2) of Directive 2006/116 also apply to subject-matter that, on the date specified in Article 10(1) of that directive, fulfilled the criteria set out in Council Directive 92/100/EEC (2) of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, but whose rightholder is not a Community national?

      (1)  OJ L 372, p. 12.

      (2)  OJ L 346, p. 61.


title: Action brought on 19 October 1998 by Kingdom of the Netherlands against European Parliament and Council of the European Union (Case C-377/98)

text:
5.12.98               EN                Official Journal of the European Communities                                  C 378/13
    and services in respect of products which at present do        Ð Breach of Article 190 of the EC Treaty: The preamble
    not yet even cross frontiers to an appreciable extent is           to the contested directive contains no statement, or no
    manifestly not necessary for purposes of the internal              adequate statement, of reasons for essential normative
    market.                                                            provisions. It obscures the real main purpose of the
                                                                       directive (protection of health) and does not express
                                                                       the true considerations and motives of the Community
Ð (In the alternative) Breach of the principle of                      institutions which adopted it. It contains no
    subsidiarity: Most tobacco advertising products                    indications whatever as to the observance of
    (posters etc.) are only used nationally and perceived              proportionality and subsidiarity.
    locally, and the few tobacco advertising products
    which are also exported (print media) are not subject
    to any appreciable hindrances in the Member States             (1) OJ L 213, 30.7.1998, p. 9.
    which have prohibitions of tobacco advertising. With
    regard to the internal market there is therefore no
    need for intervention by the Community legislature.
    Since after the directive has been transposed the
    internal market for tobacco advertising products and
    tobacco advertising services' which currently exists at
                                                                   Action brought on 19 October 1998 by Kingdom of the
    least embryonically will be deprived of its legal
                                                                   Netherlands against European Parliament and Council of
    foundation and thereby abolished completely,
                                                                                the European Union
    regulation by the Member States is also better' with
    regard to the Treaty objective of the internal market.                                (Case C-377/98)
                                                                                (98/C 378/23)
Ð Infringement of fundamental rights:
                                                                   An action against the European Parliament and the
    Ð Commercial advertising (Article 10 of the
                                                                   Council of the European Union was brought before the
        European Convention on Human Rights): If Ð as
                                                                   Court of Justice of the European Communities on
        in the present case Ð the freedom of tobacco
                                                                   19 October 1998 by the Kingdom of the Netherlands,
        manufacturers and the tobacco advertising
                                                                   represented by Marc Fierstra and Ivo van der Steen,
        industry to express their opinion on tobacco
        consumption is severely restricted by a measure            Assistant Legal Advisers in the Ministry of Foreign
                                                                   Affairs, The Hague, acting as Agents.
        which is neither appropriate nor necessary for
        achieving the legislative aim (improvement of the
        internal market), Article 10 of the Convention is          The applicant claims that the Court should:
        violated. With respect also to the purported
        subsidiary aim of the directive, namely the
        protection of health, a total prohibition of tobacco       1. declare Directive 98/44/EC of the               European
        advertising cannot be justified in view of freedom             Parliament and of the Council (1) void; and
        of expression.
                                                                   2. order the defendant to pay the costs.
    Ð Right to property and freedom to carry on an
        occupation: The prohibition of tobacco advertising
        is a serious interference with the right to property       Pleas in law and main arguments adduced in support:
        and freedom to carry on an occupation of
        producers of tobacco advertising products and
        providers of tobacco advertising services, going as        Ð Incorrect legal basis: Directive 98/44/EC is not
        far as forced abandonment of the entire business in            primarily directed towards the harmonisation of
        the case of specialist undertakings. Also affected,            national patent law principles and moreover goes
        however, is the right to property and freedom to               further than such harmonisation by creating new
        carry on an occupation of tobacco manufacturers,               patent rights of Community origin. Specifically, a
        whose      essential   instrument    of    aggressive          patent is created over living products of
        competition is taken away from them by the                     biotechnological processes and the Directive also
        prohibition of advertising.                                    regulates the scope of that patent protection in a
                                                                       manner which differs from current patent law.
                                                                       Recital 15 in the preamble to the Directive is wrong in
Ð Breach of Articles 30 and 36 of the EC Treaty: A                     stating that no prohibition exists in national patent
    restriction of the free movement of goods with the                 law or the European Patent Convention which
    political aim of protection of health can be justified             precludes a priori the patentability of biological
    only if the need for that restriction has been                     matter; in any event, that statement is not valid for the
    scientifically proved. There is no such proof in the               Netherlands.
    present case, nor is it even attempted in the grounds of
    the contested directive. Nor has the Community
    legislature demonstrated that less drastic measures                Article 100a of the EC Treaty should therefore not
    would not be equally suitable for achieving the health             have been chosen as the legal basis but rather Ð if
    policy objective.                                                  it were really thought necessary to regulate
 ---pagebreak--- C 378/14            EN                  Official Journal of the European Communities                                         5.12.98
   biotechnological inventions in order to achieve, in the                   the human body patentable. Such treatment of
   framework of the common market, one of the                                living human material as an object is unacceptable
   objectives of the Community Ð Article 235. A                              in the context of human dignity.
   procedure in which a qualified majority is sufficient
   was thus wrongly chosen for the adoption of Directive                Ð Violation of patients' right to self-determination:
   98/44/EC, when a procedure for which a unanimous                          Not the slightest provision is made as regards
   vote is prescribed was appropriate.                                       possible recipients of biotechnologically treated
                                                                             material, or at least material which has been
                                                                             obtained through the application of biotechnology.
Ð Infringement of the second paragraph of Article 3(b)                       This means that a patient may be treated with
   of the EC Treaty (the principle of subsidiarity) or,                      such material without his knowledge Ð and thus
   in the alternative, of the combined provisions of                         without his consent Ð even where, had he been
   Articles 3(b) and 190 of the EC Treaty: The patent                        made aware of it, he would have refused such
   laws of the Member States are almost completely                           treatment.
   harmonised following alignment with the European
   Patent Convention. The clarification of the protection
   of biotechnological inventions which is, according to           Ð Infringement of Article 100(a) taken together with
                                                                        Article 189b(2), of the EC Treaty: The activities of
   recital 4 in its preamble, the aim of Directive 98/44/
   EC should therefore ensue from the implementation of                 the Commission are governed by the principle of
   the European Patent Convention. It is thus an aim                    collegiality. The Commission's proposal, which was an
   eminently suitable for being achieved by the Member                  indispensable prerequisite for the contested Directive,
   States. Indeed, such an approach is preferable in view               should have been drawn up by the college of
                                                                        commissioners in the definitive text in which it was
   of the fact that the European Patent Convention
   applies also in States other than the Member States of               submitted to the European Parliament and the
   the European Union. Nor, thus, is it established that                Council, because it is an essential part of the
                                                                        Community legislative process. In view of the general
   this matter concerns a Community objective which, by
   reason of the scale or effects of the abovementioned                 scope of the measure adopted by the European
   action, can be better achieved by the Community, or                  Parliament and the Council on the basis of that
   in any event it is not clear from the statement of                   proposal, the text should also have been available for
   reasons for the contested measure that this is so.                   consideration by all the members of the college in all
                                                                        the official languages at the time when the
                                                                        Commission took its decision.
Ð Breach of the principle of legal certainty: The
   Netherlands Government takes the view that it is                (1) Directive 98/44/EC of the European Parliament and of the
   only to a limited extent that Directive 98/44/EC                    Council of 6 July 1998 on the legal protection of
   removes any uncertainty regarding the patenting of                  biotechnological inventions (OJ L 213, 30.7.1998, p. 13).
   biotechnological inventions, whereas it gives rise at the
   same time to new uncertainties.
Ð Breach of obligations under international law:
                                                                     Action brought on 21 October 1998 by the Commission
   Ð Notwithstanding Article 1(2) of Directive 98/44/                    of the European Communities against Kingdom of
       EC, Member States are denied the opportunity of                                          Belgium
       choosing whether or not to make use of the                                          (Case C-378/98)
       possibility of an exclusion under Article 27(3)(b)
       fo the TRIPS Agreement.                                                               (98/C 378/24)
   Ð Directive 98/44/EC was not drawn up in                        An action against the Kingdom of Belgium was brought
       accordance with the provisions of Article 2 of the          before the Court of Justice of the European Communities
       Agreement on Technical Barriers to Trade, or in             on 21 October 1998 by the Commission of the European
       any event it is not apparent from the statement of          Communities, represented by GeÂrard Rozet, Legal Adviser,
       reasons for the Directive that this was so.                 acting as Agent, with an address for service in
                                                                   Luxembourg at the office of Carlos Gómez de la Cruz,
   Ð Infringement of the European Patent Convention.               Wagner Centre, Kirchberg.
   Ð Infringement of the Convention on Biological                  The Commission of the European Communities claims
       Diversity.                                                  that the Court should:
                                                                   Ð declare that, by failing to adopt within the period
Ð Breach of fundamental rights:                                         prescribed the measures necessary to recover from the
                                                                        beneficiary undertakings the aid provided for under
   Ð Violation of human dignity: The human body is                      Maribel II/III scheme which was declared unlawful
       the bearer of human dignity. Under Directive 98/                 and incompatible with the common market by the
       44/EC, it will be possible to make isolated parts of             Commission's Decision of 4 December 1996, notified


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 201, 7.8.2004

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/46

         (2004/C 228/110)
   Last publication of the Court of Justice in the
         Official Journal of the European Union

      OJ C 201, 7.8.2004

   Past publications

      OJ C 190, 24.7.2004

      OJ C 179, 10.7.2004

      OJ C 168, 26.6.2004

      OJ C 156, 12.6.2004

      OJ C 146, 29.5.2004

      OJ C 106, 30.4.2004

   These texts are available on:

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

               CELEX:http://europa.eu.int/celex


title: Case F-1/07 R: Order of the President of the Civil Service Tribunal of 13 March 2007 — Chassagne v Commission (Application for interim measures — Application for suspension of operation — Urgency — None)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/57

         Order of the President of the Civil Service Tribunal of 13 March 2007 — Chassagne v Commission
   (Case F-1/07 R)
   (Application for interim measures - Application for suspension of operation - Urgency - None)
   (2007/C 95/114)
   Language of the case: French
   Parties

      Applicant: Olivier Chassagne (Brussels, Belgium) (represented by: Y. Minatchy, lawyer)

      Defendant: Commission of the European Communities (represented by: J. Currall and V. Joris, Agents)
   Re:
   First, application for annulment of the list of Commission temporary staff promoted during the 2006 procedure in so far as it does not include the applicant and, secondly, an application for damages
   Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 6 July 1995 in Case C-62/93 (reference for a preliminary ruling from the Dioikitiko Protodikeio Athinas): BP Supergas Anonimos Etairia Geniki Emporiki-Viomichaniki kai Antiprossopeion v. Greek State (Interpretation of Articles 11, 17 and 27 of the Sixth VAT Directive - Greek system for the taxation of petroleum products - Taxable amount - Right to deduct - Exemption)

text:
2 . 9 . 95            1 HN                   Official Journal of the European Communities                                 No C 229/9
2 . declares that the effects ofthe annulled Directive shall be                       JUDGMENT OF THE COURT
       preserved until the Council has adopted new legislation                                  ( Sixth Chamber)
       in the matter;
                                                                                of 6 July 1995
                                                                        in Case C-62/93 ( reference for a preliminary ruling from the
3 . orders the Council to pay the costs;                                Dioikitiko Protodikeio Athinas ): BP Supergas Anonimos
                                                                        Etairia Geniki Emporiki-Viomichaniki kai Antiprossopeion
4 . orders the Federal Republic of Germany and the United                                      v. Greek State (*)
       Kingdom of Great Britain and Northern Ireland to bear            (Interpretation ofArticles 11, 17 and 27 of the Sixth VAT
       their own costs.                                                 Directive — Greek system for the taxation of petroleum
                                                                        products — Taxable amount — Right to deduct —
H OJ No C 59 , 26 . 2 . 1994 .                                                                       Exemption)
(2 ) OJ No L 279 , 12 . 11 . 1993 , p . 32 .                                                       ( 95 /C 229/ 17 )
                                                                                (Language of the case: Greek)
                                                                        (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
                JUDGMENT OF THE COURT
                         ( Fourth Chamber)                              In Case C-62/93 : reference to the Court under Article 177 of
                            of 5 July 1995                              the EC Treaty by the Dioikitiko Protodikeio Athinas for a
                                                                        preliminary ruling in the proceedings pending before that
in Case C-46/94 ( reference for a preliminary ruling from
                                                                        court between BP Supergas Anonimos Etairia Geniki
the Tribunal de Police, Bordeaux ( France ): Criminal
                                                                        Emporiki-Viomichaniki kai Antiprosopeion and the Greek
             proceedings against Michele Voisine ( J )                  State on the interpretation of Article 11 , 17 and 27 of the
(Description of wines — Definition of 'labelling' — Affixing            Sixth Council Directive 77/388/EEC of 17 May 1977 on the
       of decoration unconnected with the wine marketed)                harmonization of the laws of the Member States relating to
                            ( 95/C 229/16 )                             turnover taxes — Common system of value added tax:
                                                                        uniform basis of assessment ( 2 ) — the Court ( Sixth
                                                                        Chamber) composed of: F. A. Schockweiler, President of the
                  (Language of the case: French)                        Chamber, G. F. Mancini ( Rapporteur), J. L. Murray and
                                                                        G. Hirsch, Judges; Advocate-General : F. G. Jacobs;
(Provisional translation; the definitive translation will be            Registrar: H. A. Rühl, Principal Administrator, has given a
            published in the European Court Reports)                    judgment on 6 July 1995 , in which it rules :
In Case C-46/94 : reference to the Court under Article 177 of            1 . Articles 2, 11 and 17 of the Sixth Council Directive
the EC Treaty from the Tribunal de Police, Bordeaux                          77/388/EEC of 17 May 1977, on the harmonization of
( France ), for a preliminary ruling in the criminal                         the laws of the Member States relating to turnover taxes
proceedings pending before that court against Michele                        — Common system of value added tax: uniform basis of
Voisine on the interpretation of Council Regulation ( EEC )                  assessment, must be interpreted as precluding national
No 2392/89 of 24 July 1989 laying down general rules for                     rules which make the importation offinished petroleum
the description and presentation of wines and grape                          products subject to VAT calculated on the basis of a
musts (2 ) — the Court ( Fourth Chamber ), composed of:                      basic price different from that provided for in Article 1 1
P. J. G. Kapteyn, President of the Chamber, C. N. Kakouris                   of that Directive and which, by exempting traders in the
and J. L. Murray ( Rapporteur), Judges; M. B. Elmer,                         petroleum sector from the obligation to submit returns,
Advocate-General; L. Hewlett, Administrator, for the                         deprive them ofthe right to deduct VAT charged directly
Registrar, gave a judgment on 5 July 1995 , the operative                    on transactions relating to inputs;
part of which is as follows:
                                                                         2 . the provisions of the Sixth Directive, in particular
 The definition of 'labelling' in Article 38 (1 ) of Council                 Articles 13 to 17 thereof, are to be interpreted as
 Regulation (EEC) No 2392/89 of24 July 1 989 laying down                     precluding an exemption from VAT on services in
general rules for the description and presentation of wines                  respect of the transport and storage of petroleum
 and grape musts covers decoration or advertising which is                   products that are unconnected with the transport of
 unconnected with the wine concerned.                                        those products from a first destination to another
                                                                             named destination;
 (') OJ No C 90, 26 . 3 . 1994 .
 ( 2 ) OJ No L 232, 9 . 8 . 1989 , p . 13 .                              3 . the provisions of Article 11A (1 ) and B (1 ) and (2) and
                                                                             of Article 17 (1 ) and (2) of the Sixth Directive confer
                                                                             rights on individuals on which they may rely before a
                                                                             national court;
 ---pagebreak--- No C 229/10             EN                   Official Journal of the European Communities                                       2 . 9 . 95
4. a taxable person may claim, with retroactive effect from             (b) on the ground that the new presentation gives the
      the date on which the national legislation contrary to the               impression to the consumer that the volume and the
      Sixth Directive came into force, a refund of VAT paid                    weight of the product have been considerably
      without being due, by following the procedural rules                     increased.
      laid down by the domestic legal system of the Member
      State concerned, provided that those rules are not less
      favourable than those relating to similar, domestic               ( ] ) OJ No C 43 , 12 . 2 . 1994 .
      actions nor framed in a way such as to render virtually
      impossible the exercise of rights conferred by
      Community law.
(') OJ No C 124, 6 . 5 . 1993 .
( 2 ) OJ No L 145 , 13 . 6 . 1977, p . 1 .
                                                                                ORDER OF THE COURT
                                                                                ( First Chamber )
                                                                                of 28 June 1995
                                                                        in Case C-258/94 P: Paulo Branco v. Court of Auditors of
                                                                                the European Communities ( 1 )
                JUDGMENT OF THE COURT                                                    (Appeal manifestly inadmissible)
                          (Fifth Chamber)                                                             95/C 229/ 19
                            of 6 July 1995
in Case C-470/93 ( reference for a preliminary ruling from
the Landgericht Köln ): Verein gegen Unwesen in Handel                                  (Language of the case: Portuguese)
           und Gewerbe Köln eV v. Mars GmbH ( 1 )
 (Free movement of goods — Measures having an effect
equivalent to quantitative restrictions — Presentation of a              (Provisional translation; the definitive translation will be
product likely to restrict freedom to fix retail prices and                        published in the European Court Reports)
                     mislead the consumer)
                             ( 95/C 229/18 )
                                                                         In Case C-25 8/94 P : Paulo Branco, an official of the Court of
                                                                         Auditors of the European Communities, and subsequently
                 (Language of the case: German)                          of the Commission of the European Communities, resident
                                                                         in Brussels, represented by Raoul Wagener and David
                                                                         M. Travessa Mendes, both of the Luxembourg Bar, 6-12,
 In Case C-470/93 : reference to the Court under Article 177             Place d'Armes, Luxembourg — appeal against the order of
 of the EC Treaty by the Landgericht Koln ( Germany ) for a              the Court of First Instance of the European Communities of
 preliminary ruling in the proceedings pending before that               20 July 1994 in CaseT-45/93 between Paulo Branco and the
 court between Verein gegen Unwesen in Handel und                         Court of Auditors of the European Communities ([ 1994]
 Gewerbe Koln eV v. Mars GmbH — on the interpretation of                 ECR-SC 11-641 ), seeking to have that order set aside, the
 Article 30 of the EC Treaty, the Court ( Fifth Chamber ),               other party to the proceedings being the Court of Auditors
 composed of: C. Gulmann ( Rapporteur ), President of the                 of the European Communities ( Agents : Jean-Marie Stenier
 Chamber, P. Jann, J. C. Moitinho de Almeida, D. A. O.                    and Jan Inghelram ) — the Court ( First Chamber ), composed
 Edward and L. Sevon, Judges; P. Leger, Advocate-General;                 of: P. Jann , President of the Chamber ( Rapporteur ), D. A. O.
 H. A. Riihl , Principal Administrator, has given a judgment              Edward and L. Sevon, Judges; A. M. La Pergola,
 on 6 July 1995 , in which it rules :                                     Advocate-General; R. Grass, Registrar , made an order on
                                                                          28 June 1995 , the operative part of which is as follows :
 Article 30 ofthe EC Treaty is to be interpreted as precluding
 a national measure from prohibiting the importation and                  1 . the appeal is dismissed;
 marketing of a product lawfully marketed in another
 Member State, the quantity of which was increased during a
 short publicity campaign and the wrapping of which bears                 2 . the appellant is ordered to pay the costs.
  the marking '+ 10% ':
                                                                          (') OJ No C 331 , 26 . 11 . 1994 .
  (a) on the ground that that presentation may induce the
        consumer into thinking that the price of the goods
        offered is the same as that at which the goods had
        previously been sold in their old presentation;


title: Case C-577/08: Reference for a preliminary ruling from the Arbeidshof te Antwerpen, Afdeling Hasselt (Belgium) lodged on 29 December 2008 — Rijksdienst voor pensioenen v E. Brouwer

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/16

         Reference for a preliminary ruling from the Arbeidshof te Antwerpen, Afdeling Hasselt (Belgium) lodged on 29 December 2008 — Rijksdienst voor pensioenen v E. Brouwer
   (Case C-577/08)
   (2009/C 55/25)
   Language of the case: Dutch
   Referring court
   Arbeidshof te Antwerpen, Afdeling Hasselt
   Parties to the main proceedings

      Applicant: Rijksdienst voor pensioenen

      Defendant: E. Brouwer
   Question referred
   Are the Royal Decrees of 1.12.1969, 18.6.1970, 8.6.1971, 14.9.1972, 31.7.1973, 12.7.1974, 13.2.1975, 28.11.1975, 26.11.1976, 26.9.1977, 31.7.1978, 31.8.1979, 2.12.1980, 13.1.1982, 14.3.1983, 11.1.1984, 30.11.1984, 24.1.1986, 30.12.1986, 6.1.1988, 2.12.1988, 30.11.1989, 10.12.1990, 1.6.1993, 8.12.1993, 19.12.1994 and 10.10.1995 enacted pursuant to Article 25 of the Royal Decree of 21 December 1967 laying down general rules for the retirement and survivor's pension for employed persons (Koninklijk Besluit tot vaststelling van het algemeen reglement betreffende het rust- en overleveringspensioen voor werknemers) — which establish lower notional and/or flat-rate daily wages for the calculation of a retirement pension for female frontier workers than for male frontier workers — in accordance with Article 4(1) of Directive 79/7/EEC (1) on the progressive implementation of the principle of equal treatment for men and women in matters of social security?

      (1)  Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).