title: Case C-211/02: Action brought on 4 June 2002 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
27.7.2002               EN                   Official Journal of the European Communities                                      C 180/15
The Applicant claims that the Court should:                             The applicant claims that the Court should:
(1) declare that by failing to adopt for Gibraltar all the laws,        1.    Declare that, by failing to adopt all the laws, regulations
       regulations or administrative provisions necessary to                  and administrative provisions necessary to comply with
       comply with Council Directive 97/43/Euratom (1) of                     Directive 97/66/EC of the European Parliament and of
       30 June 1997 on health protection of individuals against               the Council of 15 December 1997 concerning the
       the dangers of ionizing radiation in relation to medical               processing of personal data and the protection of privacy
       exposure, and repealing Directive 84/466/Euratom, or in                in the telecommunications sector (1), the Grand Duchy of
       any event by failing to communicate them to the                        Luxembourg has failed to fulfil its obligations under that
       Commission, the United Kingdom has failed fully to fulfil              directive;
       its obligations under that Directive.
                                                                        2.    Order the Grand Duchy of Luxembourg to pay the costs.
(2) order the United Kingdom to pay the costs.
Pleas in law and main arguments                                         Pleas in law and main arguments
According to Article 192(1) of the Treaty, Member States shall          The period prescribed for transposition expired on 24 October
take all appropriate measures, whether general or particular,           1998 and 24 October 2000 (as regards Article 5 of the
to ensure fulfilment of the obligations arising out of this Treaty      directive), respectively.
or resulting from action taken by the institutions of the
Community.
                                                                        (1) OJ L 24 of 30.1.1998, p. 1.
The obligation on the part of the United Kingdom to take
measures in order to comply with the directive is not disputed.
Since the United Kingdom has not informed the Commission
of the provisions adopted to comply with the directive
concerned with regard to Gibraltar, and since the Commission
is in possession of no other information enabling it to conclude        Action brought on 5 June 2002 by the Commission of the
that the United Kingdom has adopted the necessary provisions,             European Communities against the Republic of Austria
it is compelled to assume that the United Kingdom has not yet
adopted such provisions and has thus failed to fulfil its
obligations under the directive.                                                                 (Case C-212/02)
                                                                                (2002/C 180/26)
(1) JO L 180 of 9.7.1997, p. 22.
                                                                        An action against the Republic of Austria was brought before
                                                                        the Court of Justice of the European Communities on 5 June
                                                                        2002 by the Commission of the European Communities,
                                                                        represented by Michel Nolin, of the Commission’s Legal
Action brought on 4 June 2002 by the Commission of the                  Service, acting as Agent, assisted by Rainer Roniger, Rechtsan-
European Communities against the Grand Duchy of                         walt, of Haarmann and Hemmelrath, Brussels, having an
                           Luxembourg                                   address for service at the office of Luis Escobar Guerrero, of
                                                                        the Commission’s Legal Service, Centre Wagner C 254.
                         (Case C-211/02)
                                                                        The applicant claims that the Court should:
                         (2002/C 180/25)
                                                                        1.    Rule that the Republic of Austria has failed to fulfil its
                                                                              obligations under the remedial Directives 89/665/EEC (1)
                                                                              and 92/13/EEC (2), in particular the obligations under
An action against the Grand Duchy of Luxembourg was                           Articles 2(1)(a) and (b) thereof, since the Land procure-
brought before the Court of Justice of the European Communi-                  ment laws of the Länder of Salzburg, Steiermark, Niederös-
ties on 4 June 2002 by the Commission of the European                         terreich and Kärnten do not ensure in all cases that the
Communities, represented by C. Schmidt, acting as Agent,                      award decision is open to review in a procedure whereby
with an address for service in Luxembourg.                                    an unsuccessful tenderer can have that decision set aside;


title: Corrigendum to the notice in the Official Journal concerning Case T-232/16 P (OJ C 63, 27.2.2017)

text:
               19.6.2017

               EN

               Official Journal of the European Union

               C 195/47

         Corrigendum to the notice in the Official Journal concerning Case T-232/16 P
   (
         Official Journal of the European Union C 63 of 27 February 2017
      )
   (2017/C 195/62)
   The notice in Case T-232/16 P, Commission v Frieberger and Vallin, should read as follows:

      Judgment of the General Court of 19 January 2017 — Commission v Frieberger and Vallin
      (Case T-232/16 P) (1)

      ((Appeal - Civil service - Officials - Pensions - Reform of the Staff Regulations - Raising of the retirement age - Decision refusing to recalculate the bonus relating to pension rights - Principle of ne ultra petita - Error in law - Obligation to state reasons))
      (2017/C 063/39)
      Language of the case: French

         Parties

         Appellant: European Commission (represented by: G. Berscheid and G. Gattinara, acting as Agents)

         Other parties to the proceedings: Jürgen Frieberger (Woluwe-Saint-Lambert, Belgium) and Benjamin Vallin (Saint-Gilles, Belgium) (represented by: J.-N. Louis and N. de Montigny, lawyers)

         Re:

      Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 2 March 2016, Frieberger and Vallin v Commission (F-3/15, EU:F:2016:26), seeking to have that judgment set aside.

         Operative part of the judgment

      The General Court:

                  1.

                  Sets aside the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 2 March 2016, Frieberger and Vallin v Commission (F-3/15);

                  2.

                  Dismisses the action brought by Mr Jürgen Frieberger and Mr Benjamin Vallin before the Civil Service Tribunal in Case F-3/15;

                  3.

                  Orders each party to bear its own costs relating to the appeal proceedings;

                  4.

                  Orders Mr Frieberger and Mr Vallin to pay the costs of the proceedings before the Civil Service Tribunal, including the costs incurred by the European Commission;

                  5.

                  Orders the European Parliament and the Council of the European Union to bear their own costs in relation both to the proceedings before the Civil Service Tribunal and to the present proceedings.

      (1)  OJ C 243, 4.7.2016.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 19 November 1998 in Case T-147/97 Champion Stationery Mfg Co. Ltd and Others v. Council of the European Union (Anti-dumping duties - Administrative procedure - Final disclosure - Modification of anti-dumping duties - Rights of defence) (1999/C 1/23)

text:
C 1/12               EN                  Official Journal of the European Communities                                 4.1.1999
                                                   COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                             JUDGMENT OF THE COURT OF FIRST INSTANCE
                    of 19 November 1998                                                 of 25 November 1998
in Case T-147/97 Champion Stationery Mfg Co. Ltd and                in Case T-222/97: Alfons Steffens v. Council of the
        Others v. Council of the European Union (1)                 European Union and Commission of the European
                                                                                Communities (1)
(Anti-dumping duties Ð Administrative procedure Ð
Final disclosure Ð Modification of anti-dumping duties Ð            (Action for damages Ð Non-contractual liability Ð Milk
                      Rights of defence)                            Ð Additional levy Ð Reference quantity Ð Producers
                                                                    having entered into non-marketing or conversion
                        (1999/C 1/23)                               undertakings Ð Compensation Ð Regulation (EEC)
                                                                                No 2187/93 Ð Limitation period)
                                                                                (1999/C 1/24)
               (Language of the case: English)
In Case T-147/97: Champion Stationery Mfg Co. Ltd, a                              (Language of the case: German)
company established in Hong Kong, People's Republic of
China, Sun Kwong Metal Manufacturer Co. Ltd, a
company established in Hong Kong, People's Republic of
China, and US Ring Binder Corporation, a company                    In Case T-222/97: Alfons Steffens, residing af Aschendorf
established in New Bedford, Massachussetts, United States           (Germany), represented by Walter Remmers, Willy Meyer
of America, represented by Richard Luff, of the Brussels            and Angelika Kleymann, Rechtsanwälte, Papenburg, with
Bar, with an address for service in Luxembourg at the               an address for service in Luxembourg at the Chambers of
Chambers of Loesch and Wolter, 11 Rue Goethe, against               Turk and Prum, 13a Avenue Guillaume, against Council
Council of the European Union (Agents: Antonio Tanca                of the European Union (Agent: Jan-Peter Hix, assisted by
and Eva Karlsson, assisted by Hans-Jürgen Rabe and                  Hans-Jürgen      Rabe     and   Marco     NuÂnÄez   Müller,
Georg M. Berrisch, Rechtsanwälte, Hamburg and                       Rechtsanwälte, Hamburg and Brussels) and Commission
Brussels), supported by Commission of the European                  of the European Communities (Agent: Dierk Booû,
Communities (Agents: Viktor Kreuschitz and Nicholas                 assisted by Hans-Jürgen Rabe and Marco NuÂnÄez Müller,
Khan), Koloman Handler GesmbH, established in Vienna                Rechtsanwälte, Hamburg and Brussels) Ð application for
(Austria), and Robert Krause GmbH & Co. KG,                         compensation for the damage allegedly suffered by the
established in Espelkamp, Germany, represented by Rainer            applicant as a result of his having been prevented from
M. Bierwagen, Rechtsanwalt, Berlin and Brussels,                    marketing milk pursuant to Council Regulation (EEC)
interveners Ð application for annulment of Council                  No 857/84 of 31 March 1984 adopting general rules for
Regulation (EC) No 119/97 of 20 January 1997 imposing               the application of the levy referred to in Article 5(c) of
definitive anti-dumping duties on imports of certain ring           Regulation (EEC) No 804/68 in the milk and milk
binder mechanisms originating in Malaysia and the                   products sector (OJ L 90, 1.4.1984, p. 13), as
People's Republic of China and collecting definitively the          supplemented      by Commission        Regulation (EEC)
provisional duties imposed (OJ L 22, 24.1.1997, p. 1) in            No 1371/84 (OJ L 132, 18.5.1984, p. 11) Ð the Court of
so far as it concerns the applicants Ð the Court of First           First Instance (First Chamber), composed of: B.
Instance (Fourth Chamber, Extended Composition),                    Vesterdorf, President, R. M. Moura Ramos and P.
composed of: P. Lindh, President, R. García-Valdecasas, K.          Mengozzi, Judges; A. Mair, Administrator, for the
Lenaerts, J. D. Cooke, and M. Jaeger, Judges; J. Palacio            Registrar, has given a judgment on 25 November 1998, in
GonzaÂlez, Administrator, for the Registrar, has given a            which it:
judgment on 19 November 1998, in which it:
                                                                    1. Dismisses the application;
1. Dismisses the application;
                                                                    2. Orders the applicant to pay the costs.
2. Orders each of the parties to bear their own costs.
(1) OJ C 199, 28.6.1997.                                            (1) OJ C 318, 18.10.1997.


title: Case F-83/15: Action brought on 28 May 2015 — ZZ v European GNSS Agency

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/60

         Action brought on 28 May 2015 — ZZ v European GNSS Agency
   (Case F-83/15)
   (2015/C 279/76)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: T. Bontinck and A. Guillerme, lawyers)

      Defendant: European GNSS Agency

      Subject-matter and description of the proceedings

   The annulment of the appraisal report relating to the applicant’s probationary period and the subsequent decision of the defendant’s executive director to dismiss him at the end of his probationary period.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the appraisal report relating to the applicant’s probationary period and, consequently;

               —

               annul the decision of 15 October 2014 dismissing the applicant at the end of his probationary period, confirmed by the decision of 30 October 2014;

               —

               order the European GNSS Agency to pay the costs.


title: Case F-68/07: Action brought on 6 July 2007 — Gering v Europol

text:
               20.10.2007

               EN

               Official Journal of the European Union

               C 247/42

         Action brought on 6 July 2007 — Gering v Europol
   (Case F-68/07)
   (2007/C 247/69)
   Language of the case: Dutch
   Parties

      Applicant: Radolf Gering (The Hague, Netherlands) (represented by: P. de Casparis, lawyer)

      Defendant: European Police Office (Europol)
   Form of order sought

               —

               annul the complaints decision of 5 April 2007, sent on 10 April 2007, and, so far as is necessary, the contract of 24 April 2007 also, in so far as it concerns classification.

               —

               order Europol:

                           —

                           primarily: to pay the applicant, as from 1 August 2003, a salary corresponding to Grade 4.2 or, if the Tribunal considers it necessary, a salary corresponding to Grade 4.1;

                           —

                           in the alternative: to pay the applicant, as from 1 August 2003, a salary corresponding to Grade 4.6, as from 1 August 2005, a salary corresponding to Grade 4.8 and, as from 1 August 2007, a salary corresponding to Grade 4.9;

               —

               order Europol to pay the costs.

         Pleas in law and main arguments
   The applicant challenges in particular the Europol decision of 5 April 2007 and the addendum of 24 April 2007 to his recruitment contract inasmuch as those acts classified him in Grade 4, step 2, with effect from 1 December 2004 and not with effect from 1 August 2003, which was the date of his recruitment.
   The applicant submits that Europol should have respected the principle of equality in remunerating and classifying the members of its staff. According to Europol, the decision to classify the applicant in a higher grade as from 1 December 2004, and not as from 1 August 2003, is justified by the fact that it was as from 1 December 2004 only that the applicant started performing activities of a similar importance to those of heads of unit classified in Grade 4 and involving similar responsibilities. The applicant challenges that argument and submits that Europol has failed to explain how his tasks and responsibilities in the period from 1 August 2003 to 1 December 2004 differed from those of other heads of units. Furthermore, Europol has not established the facts and circumstances to show that the applicant's activities were less intense and/or included fewer responsibilities than those of other heads of unit.


20150731031616772015/C 270/152162015CJC27020150817EN01ENINFO_JUDICIAL20150512131422Case C-216/15: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 12 May 2015 — Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH
 ---documentbreak--- C2702015EN1320120150512EN0015132142Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 12 May 2015 — Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH
   (Case C-216/15)2015/C 270/15Language of the case: German
      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Applicant: Betriebsrat der Ruhrlandklinik gGmbH

      Defendant: Ruhrlandklinik gGmbH

      Question referred

   Does Article 1(1) and (2) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (
         1
      ) apply to the assignment of a member of an association to another undertaking for the performance of work under that undertaking’s functional and organisational instructions if, upon joining the association, the member undertook to make his full working capacity available also to third parties, for which he receives a monthly remuneration from the association, the calculation of which is determined by the usual criteria for the particular activity, and the association receives, in return for the assignment, compensation for the personnel costs of the association member and a flat-rate administrative charge?
   (
         1
      )	OJ 2008 L 327, p. 9.


20150731049616802015/C 270/232862015CJC27020150817EN01ENINFO_JUDICIAL20150612181921Case C-286/15: Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 12 June 2015 — SIA ‘Latvijas propāna gāze’ v Valsts ieņēmumu dienests
 ---documentbreak--- C2702015EN1810120150612EN0023181192Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 12 June 2015 — SIA ‘Latvijas propāna gāze’ v Valsts ieņēmumu dienests
   (Case C-286/15)2015/C 270/23Language of the case: Latvian
      Referring court

   Augstākā tiesa

      Parties to the main proceedings

      Applicant: SIA ‘Latvijas propāna gāze’

      Defendant: Valsts ieņēmumu dienests

      Questions referred

            1)

            Must the general interpretative rules 2(b) and 3(b), in Commission Regulation (EC) No 1031/2008 (
                  1
               ) of 19 September 2008, amending Annex I to Regulation No 2658/87, and in Commission Regulation (EC) No 948/2009 (
                  2
               ) of 30 September 2009, amending Annex I to Regulation No 2658/87, be interpreted as meaning that if the essential character of the goods (liquefied petroleum gas) is determined by all the components of the gas mixture together and no component of that mixture may be identified separately as the factor giving that gas its essential character, it must be presumed that the factor which gives the goods their essential character within the meaning of the general interpretative rule 3(b) is that substance which is present in the greatest proportion in the mixture?

            2)

            Does it follow from Article 218(1)(d) of Commission Regulation (EEC) No 2454/93 (
                  3
               ) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code that the declarant of the goods (liquefied petroleum gas) is under an obligation to indicate precisely the percentage amount of the substances present in the greatest quantity in the mixture?

            3)

            If the declarant of the goods has failed to indicate precisely the percentage amount of the substances present in the greatest quantity in the mixture, is it the EU Combined Nomenclature code 2711 19 00, applied by the declarant of the goods in the present case, or code 2711 12 97, applied by the Valsts ieņēmumu dienests, that must be applied to a gas of which 0,32 % is the sum of methane, ethane and ethylene, 58,32 % the sum of propane and propylene and no more than 39,99 % the sum of butane and butylene?

      (
         1
      )	Commission Regulation (EC) No 1031/2008 of 19 September 2008 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2008 L 291, p. 1).
   (
         2
      )	Commission Regulation (EC) No 948/2009 of 30 September 2009 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2009 L 287, p. 1).
   (
         3
      )	OJ 1993 L 253, p. 1.


title: Case C-298/09: Order of the Court of 16 June 2010 (reference for a preliminary ruling from the Fővárosi Bíróság Gazdasági Kollégiuma (Republic of Hungary)) — RANI Slovakia s.r.o. v Hankook Tire Magyarország Kft (First subparagraph of Article 104(3) of the Rules of Procedure — Accession to the European Union — Freedom to provide services — Directive 96/71/EC — Posting of workers in the framework of the provision of services — Temporary employment undertaking — Requirement to have a head office in the territory of the Member State in which the services are supplied)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/14

      Order of the Court of 16 June 2010 (reference for a preliminary ruling from the Fővárosi Bíróság Gazdasági Kollégiuma (Republic of Hungary)) — RANI Slovakia s.r.o. v Hankook Tire Magyarország Kft
      (Case C-298/09) (1)

      (First subparagraph of Article 104(3) of the Rules of Procedure - Accession to the European Union - Freedom to provide services - Directive 96/71/EC - Posting of workers in the framework of the provision of services - Temporary employment undertaking - Requirement to have a head office in the territory of the Member State in which the services are supplied)
      (2010/C 288/22)
      Language of the case: Hungarian

         Referring court

      Fővárosi Bíróság Gazdasági Kollégiuma (Republic of Hungary)

         Parties to the main proceedings

         Applicant: RANI Slovakia s.r.o.

         Defendant: Hankook Tire Magyarország Kft

         Re:

      Reference for a preliminary ruling Fővárosi Bíróság — Interpretation of Article 3(c) EC, of Articles 49, 52 and 54 EC, and of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1) — National legislation restricting the undertaking of the activity of temporary employment undertakings to those undertakings established in national territory

         Operative part of the order

                  1.

                  Articles 49 EC to 54 EC cannot be interpreted as meaning that a Member State’s legislation concerning the activity of temporary employment undertakings, in force at the time of accession of that State to the European Union, remains valid so long as the Council of the European Union has not adopted a programme or directives for the purpose of implementing those provisions, with a view to laying down the conditions for liberalisation of the category of supply of services in question.

                  2.

                  Neither the 19th recital in the preamble to Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, nor Article 1(4) thereof can be interpreted as meaning that a Member State may reserve the exercise of the activity of temporary employment undertaking to only those undertakings having their head office in the territory of that Member State or treat them more favourably with regard to authorisation of the activity in question than undertakings established in another Member State.

                  3.

                  Articles 49 EC to 54 EC must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which reserves the exercise of the activity of temporary employment undertaking to undertakings which have their head office in the territory of that Member State.

         (1)  OJ C 267, 7.11.2009.


title: Case C-610/15: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 18 November 2015 — Stichting Brein, Other parties: Ziggo BV and XS4ALL Internet BV

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/13

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 18 November 2015 — Stichting Brein, Other parties: Ziggo BV and XS4ALL Internet BV
   (Case C-610/15)
   (2016/C 048/21)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Stichting Brein

      Other parties: Ziggo BV, XS4ALL Internet BV

      Questions referred

               1.

               Is there a communication to the public within the meaning of Article 3(1) of the Copyright Directive (1) by the operator of a website, if no protected works are available on that website, but a system exist … by means of which metadata on protected works which is present on the users’ computers is indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof?

               2.

               If the answer to Question (1) is negative:
               Do Article 8(3) of the Copyright Directive and Article 11 of the Enforcement Directive (2) offer any scope for obtaining an injunction against an intermediary as referred to in those provisions, if that intermediary facilitates the infringing acts of third parties in the way referred to in Question 1?

      (1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

      (2)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).


title: Case C-588/11 P: Order of the Court of 18 September 2012 — Omnicare Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Astellas Pharma GmbH (Appeal — Community trade mark — Application for registration of the word sign ‘OMNICARE’ — Opposition — Decision of the Board of Appeal rejecting the application — Action — Judgment of the General Court dismissing that action — Withdrawal of the opposition — Appeal — No need to adjudicate)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/12

         Order of the Court of 18 September 2012 — Omnicare Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Astellas Pharma GmbH
   (Case C-588/11 P) (1)

   (Appeal - Community trade mark - Application for registration of the word sign ‘OMNICARE’ - Opposition - Decision of the Board of Appeal rejecting the application - Action - Judgment of the General Court dismissing that action - Withdrawal of the opposition - Appeal - No need to adjudicate)
   2012/C 379/20
   Language of the case: English

      Parties

      Appellant: Omnicare Inc. (represented by: M. Edenborough, QC)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: J. Crespo Carrillo, acting as Agent), Astellas Pharma GmbH (represented by: M.L. Polo Carreño, abogada)

      Re:

   Appeal brought against the judgment of the General Court (First Chamber) of 9 September 2011 in Case T-290/09 Omnicare v OHIM — Astellas Pharma (OMNICARE) in which the General Court dismissed an action, brought by the applicant for the word mark ‘OMNICARE’ for services in Class 42, for the annulment of Decision R 402/2008-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 14 May 2009 annulling the Opposition Division’s decision rejecting the opposition brought by the proprietor of the national mark ‘OMNICARE’ for services in Classes 35, 41 and 42 — Interpretation and application of Article 8(1)(b) of Regulation No 207/2009 — Notion of genuine use of an earlier mark — Mark used for services provided free of charge

      Operative part of the order

               1.

               There is no need to adjudicate on the appeal brought by Omnicare Inc.

               2.

               Omnicare Inc. shall pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) in the course of the present proceedings and the proceedings for interim measures.

               3.

               Omnicare Inc. and Astellas Pharma GmbH shall each bear their own costs.

      (1)  OJ C 25, 28.1.2012.


title: Case C-74/02: Action brought on 5 March 2002 by the Commission of the European Communities against the Federal Republic of Germany

text:
20.4.2002              EN                   Official Journal of the European Communities                                           C 97/9
Action brought on 5 March 2002 by the Commission of                    Action brought on 13 March 2002 by the Commission of
the European Communities against the Federal Republic                   the European Communities against the French Republic
                           of Germany
                                                                                (Case C-85/02)
                         (Case C-74/02)
                                                                                (2002/C 97/18)
                         (2002/C 97/17)
                                                                       An action against the French Republic was brought before the
                                                                       Court of Justice of the European Communities on 13 March
                                                                       2002 by the Commission of the European Communities,
An action against the Federal Republic of Germany was                  represented by M. Wolfcarius, acting as Agent, with an address
brought before the Court of Justice of the European Communi-           for service in Luxembourg.
ties on 5 March 2002 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal Adviser
in the Legal Service of the Commission of the European                 The Commission of the European Communities claims that
Communities, with an address for service in Luxembourg at              the Court should:
the office of Luis Escobar Guerrero, of the Commission’s Legal         (1) declare that, by failing to adopt the laws, regulations and
Service, C 254, Wagner Centre, Kirchberg.                                    administrative measures necessary in order to transpose
                                                                             point 12 in Annex II to Directive 91/439/EC of 29 July
                                                                             1991 (1), or at any rate by failing to notify those measures
The applicant claims that the Court should:
                                                                             to the Commission, the French Republic has failed to
                                                                             fulfil its obligations under that directive;
(1) declare that, by failing to adopt the laws, regulations and
      administrative measures necessary in order to comply             (2) order the French Republic to pay the costs.
      with Directive 1999/94/EC of the European Parliament
      and of the Council of 13 December 1999 relating to the
      availability of consumer information on fuel economy             Pleas in law and main arguments
      and CO2 emissions in respect of the marketing of new
      passenger cars (1), or at any rate to notify the same to
                                                                       The pleas in law and main arguments are similar to those
      the Commission, the Federal Republic of Germany has
                                                                       advanced in Case C-74/02; the time-limit for transposition
      infringed its obligations under Article 12(1) of that
                                                                       expired on 1 July 1996.
      directive;
(2) order the Federal Republic of Germany to pay the costs.            (1) Council Directive 91/439/EEC of 29 July 1991 on driving licences
                                                                           (OJ 1991 L 237, p. 1).
Pleas in law and main arguments
The mandatory nature of directives pursuant to the third                      Removal from the register of Case C-318/01 (1)
paragraph of Article 249 EC and the first paragraph of
Article 10 EC is such as to require Member States to whom                                         (2002/C 97/19)
directives are addressed to transpose the provisions thereof
into national law so as to give full practical effect to them
before the expiry of the time-limit for transposition. The time-       By order of 22 October 2001 the President of the Court of
limit prescribed in Article 12 of the directive expired on             Justice of the European Communities ordered the removal
18 January 2001.                                                       from the register of Case C-318/01 (Reference for a preliminary
                                                                       ruling by the Commissione Tributaria Provinciale di Roma):
                                                                       Informatica e Telecomunicazioni I & T SpA v Direzione
(1) OJ 2000 L 12, p. 16.                                               Regionale delle Entrate per il Lazio.
                                                                       (1) OJ C 303 of 27.10.2001.


title: Case T-83/08: Action brought on 19 February 2008 — Denki Kagaku Kogyo and Denka Chemicals v Commission

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/35

         Action brought on 19 February 2008 — Denki Kagaku Kogyo and Denka Chemicals v Commission
   (Case T-83/08)
   (2008/C 107/60)
   Language of the case: English
   Parties

      Applicants: Denki Kagaku Kogyo K.K. (Tokyo, Japan) and Denka Chemicals GmbH (Düsseldorf, Germany) (represented by: G. Van Gerven, T. Franchoo and D. Fessenko, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               To annul Articles 1, 2 and 3 of Commission Decision C(2007) 5910 final of 5 December 2007 in Case COMP/F/38.629 — Chloroprene Rubber;

               —

               alternatively, to substantially reduce the fine imposed on the applicants pursuant to Article 2 of that decision;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   By means of their application the applicants seek the annulment of Commission Decision C(2007) 5910 final of 5 December 2007 (Case COMP/F/38.629 — Chloroprene Rubber) relating to a proceeding under Article 81 EC and Article 53 EEA insofar as the Commission found that the applicants infringed Article 81 EC and that it imposed a fine on them requesting them to bring the alleged infringement to an end immediately.
   In support of their claims, the applicants put forward six pleas in law:
   On the basis of their first and second pleas, the applicants submit, first, that the Commission has made a manifest error of assessment in finding that the applicants participated in an infringement of Article 81 EC, since it has neither proved that the applicants shared a common objective with the other chloroprene producers in order to form a cartel, nor did it prove that the applicants participated in a concerted practice.
   Second, the applicants claim that the Commission infringed their rights of defence and violated Article 253 EC and the principle of sound administration in that it did not provide access to Bayer's pleadings made during the in camera hearing.
   On the basis of their third, fourth, fifth and sixth pleas, the applicants request the Court to reduce significantly the fine imposed by the Commission on the basis of Article 2 of the contested decision.
   Namely, by their third plea, the applicants submit that the Commission has violated principles of legal certainty and non-retroactivity by calculating the fine on the basis of the 2006 Fining Guidelines instead of applying the 1998 Fining Guidelines.
   By their fourth plea, the applicants contend that the Commission made a manifest error of assessment in relation to the calculation of the value of sales in determining the basic amount of the fine. Further, according to the applicants, the Commission allegedly breached the principle of proportionality in that the applicants were punished twice.
   By their fifth plea, the applicants claim that the Commission made a manifest error of assessment regarding the duration of the cartel.
   Finally, by the sixth plea, it is submitted that the Commission committed a manifest error of assessment and violated Article 253 EC and the principles of proportionality and equal treatment in that it failed to reduce the fine imposed on the applicants on account of mitigating circumstances.


title: Case C-122/09: Judgment of the Court (Fourth Chamber) of 22 April 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Enosi Efopliston Aktoploïas and Others v Ipourgos Emporikis Naftilias, Ipourgos Aigaiou (Maritime transport — Maritime cabotage — Regulation (EEC) No 3577/92 — Temporary exemption from the implementation of that regulation — Obligation on Member States to refrain from adopting, before expiry of the period of exemption, provisions liable seriously to compromise the application of that regulation)

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/12

      Judgment of the Court (Fourth Chamber) of 22 April 2010 (reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece)) — Enosi Efopliston Aktoploïas and Others v Ipourgos Emporikis Naftilias, Ipourgos Aigaiou
      (Case C-122/09) (1)

      (Maritime transport - Maritime cabotage - Regulation (EEC) No 3577/92 - Temporary exemption from the implementation of that regulation - Obligation on Member States to refrain from adopting, before expiry of the period of exemption, provisions liable seriously to compromise the application of that regulation)
      (2010/C 161/17)
      Language of the case: Greek

         Referring court

      Simvoulio tis Epikratias

         Parties to the main proceedings

         Applicants: Enosi Efopliston Aktoploïas, ANEK, Minoïkes Grammes, N.E. Lesvou, Blue Star Ferries

         Defendants: Ipourgos Emporikis Naftilias, Ipourgos Aigaiou

         Re:

      Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Articles 1, 2, 4 and 6(3) of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7) — Temporary exemption from implementation of the regulation — Obligation on Member States not to adopt, before the period of exemption expires, provisions liable to compromise the full and complete application of the regulation — Right of individuals to rely on the regulation to challenge the validity of national provisions having such an effect

         Operative part of the judgment

      Assuming that the Greek legislature was required, for the duration of the exemption in Greece from implementation of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), to refrain from adopting provisions liable seriously to compromise the full and effective application of the regulation from 1 January 2004, the date on which that period of exemption expired, such full and effective application is not seriously compromised simply because in 2001 the Greek legislature adopted provisions contrary to the regulation which are exhaustive and permanent in nature and do not lay down that they cease to apply from 1 January 2004.

         (1)  OJ C 141, 20.6.2009.


title: Case T-878/16: Action brought on 9 December 2016 — Karelia v EUIPO (KARELIA)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/52

         Action brought on 9 December 2016 — Karelia v EUIPO (KARELIA)
   (Case T-878/16)
   (2017/C 038/67)
   Language of the case: English

      Parties

      Applicant: Ino Karelia (Kalamata, Greece) (represented by: M. Karpathakis, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘KARELIA’ — Application for registration No 964 502

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 19 September 2016 in Case R 1562/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(c) and (b) of Regulation No 207/2009.


title: Case C-114/05: Judgment of the Court (Sixth Chamber) of  9 March 2006  (reference for a preliminary ruling from the Conseil d'État (France)) — Ministre de l'Économie, des Finances et de l'Industrie v Gillan Beach Ltd (VAT — Place of taxable transactions — Fiscal connection — Services provided in connection with boat shows)

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/25

         Judgment of the Court (Sixth Chamber) of 9 March 2006 (reference for a preliminary ruling from the Conseil d'État (France)) — Ministre de l'Économie, des Finances et de l'Industrie v Gillan Beach Ltd
   (Case C-114/05) (1)

   (VAT - Place of taxable transactions - Fiscal connection - Services provided in connection with boat shows)
   (2006/C 131/45)
   Language of the case: French
   Referring court
   Conseil d'État (France)
   Parties to the main proceedings

      Applicant: Ministre de l'Économie, des Finances et de l'Industrie

      Defendant: Gillan Beach Ltd
   Re:
   Reference for a preliminary ruling — Counseil d'Etat (France) — Interpretation of Article 9(2) of the Sixth Council Directive 77/388 of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Determination of relevant place for tax purposes — Supply of services carried out in relation to boat shows.
   Operative part of the judgment
   The first indent of Article 9(2)(c) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that an inclusive service provided by an organiser to exhibitors at a fair or in an exhibition hall falls within the category of services referred to in that provision.

      (1)  OJ C 115,14.05.2005.


title: Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-375/02: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Environment — Waste management — Castelliri waste disposal site — Directive 75/442/EEC of 18 March 1991 as amended by Directive 91/156/EEC — Articles 4 and 8)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/5

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 9 September 2004
   in Case C-375/02: Commission of the European Communities v Italian Republic (1)

   (Failure by a Member State to fulfil its obligations - Environment - Waste management - Castelliri waste disposal site - Directive 75/442/EEC of 18 March 1991 as amended by Directive 91/156/EEC - Articles 4 and 8)
   (2004/C 262/10)
   Language of the case: Italian
   In Case C-375/02: Commission of the European Communities (Agents: M. Konstantinidis and R. Amorosi) v Italian Republic (Agent: I.M. Braguglia, assisted by M. Fiorilli) — action for failure to fulfil obligations under Article 226 EC brought on 18 October 2002 — the Court (Fifth Chamber), composed of: C. Gulmann, President of Chamber, S. von Bahr and R. Silva de Lapuerta (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 7 September 2004, the operative part of which is as follows:

               1.

               By failing to adopt the measures necessary to ensure that the waste deposited in the Castelliri waste disposal site (Frosinone) (Italy) is recovered or eliminated without endangering human health and without using processes or methods which could harm the environment, and by failing to adopt the measures necessary to ensure that any holder of waste at that site has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B to Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156 of 18 March 1991, or recovers or disposes of it himself, the Italian Republic has failed to fulfil its obligations under Articles 4 and 8 of that directive.

               2.

               The Italian Republic is ordered to pay the costs.

      (1)  OJ C 305 of 7.12.2002.


20150731018616702015/C 270/162342015CJC27020150817EN01ENINFO_JUDICIAL20150521141411Case C-234/15: Request for a preliminary ruling from the Curtea de Apel Constanţa (Romania) lodged on 21 May 2015 — SC Doris Spedition SRL v Direcția Generală Regională a Finanțelor Publice Galați
 ---documentbreak--- C2702015EN1410120150521EN0016141141Request for a preliminary ruling from the Curtea de Apel Constanţa (Romania) lodged on 21 May 2015 — SC Doris Spedition SRL v Direcția Generală Regională a Finanțelor Publice Galați
   (Case C-234/15)2015/C 270/16Language of the case: Romanian
      Referring court

   Curtea de Apel Constanţa

      Parties to the main proceedings

      Appellant: SC Doris Spedition SRL

      Respondent: Direcția Generală Regională a Finanțelor Publice Galați — Administrația Județeană a Finanțelor Publice Constanța — Serviciul fiscal orăşenesc Hârşova

      Third party acting as guarantor: Administrația Fondului pentru Mediu Bucureşti

      Question referred

   Does Article 110 TFEU preclude the creation, under Article 4(a) of Law No 9/2012, of an obligation to pay a tax on pollutant emissions from second-hand motor vehicles originating in the European Union when the acquisition of ownership of a motor vehicle is registered with the competent authorities under Romanian law by its first owner in Romania and a registration certificate and registration number are issued, a tax which also applies in the event of transfers of ownership of domestic motor vehicles with the exception of cases in which that tax, or a similar tax, has already been paid?


title: Joined Cases C-337/12 P to C-340/12 P: Judgment of the Court (Seventh Chamber) of 6 March 2014  — Pi-Design AG, Bodum France SAS, Bodum Logistics A/S v Yoshida Metal Industry Co. Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Registration of signs consisting of a surface with black dots — Declaration of invalidity — Regulation (EC) No 40/94 — Article 7(1)(e)(ii) — Distortion of the evidence)

text:
               28.4.2014

               EN

               Official Journal of the European Union

               C 129/2

         Judgment of the Court (Seventh Chamber) of 6 March 2014 — Pi-Design AG, Bodum France SAS, Bodum Logistics A/S v Yoshida Metal Industry Co. Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Joined Cases C-337/12 P to C-340/12 P) (1)

   ((Appeal - Community trade mark - Registration of signs consisting of a surface with black dots - Declaration of invalidity - Regulation (EC) No 40/94 - Article 7(1)(e)(ii) - Distortion of the evidence))
   2014/C 129/02
   Language of the case: English

      Parties

      Appellants: Pi-Design AG, Bodum France SAS, Bodum Logistics A/S (represented by: H. Pernez, avocat)

      Other parties to the proceedings: Yoshida Metal Industry Co. Ltd (represented by: S. Verea, K. Muraro and M. Balestriero, avvocati), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Re:

   Appeals brought against the judgments of the General Court (Fourth Chamber) of 8 May 2012 in Cases T-331/10 and T-461/10 Yoshida Metal Industry v OHIM — Pi-Design and Others, by which that court annulled Decisions R 1235/2008-1 and R 1237/2008-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 20 May 2010 which annulled the decisions of the Cancellation Division rejecting the applications for declarations of invalidity brought by Pi-Design, Bodum France and Bodum Logistics A/S in respect of figurative marks representing a triangular surface with black dots (T-331/10) and a surface with black dots (T-416/10), for goods in Classes 8 and 21 — Interpretation of Article 7(1)(e)(ii) of Regulation (EC) No 207/2009 on the Community trade mark — Sign which consists exclusively of the shape of goods which is necessary to obtain a technical result.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgments of the General Court of the European Union of 8 May 2012 in Case T-331/10 Yoshida Metal Industry v OHIM — PiDesign and Others (Representation of a triangular surface with black dots) and Case T-416/10 Yoshida Metal Industry v OHIM — Pi-Design and Others (Representation of a surface with black dots);

               2.

               Refers the cases back to the General Court of the European Union;

               3.

               Reserves the costs.

      (1)  OJ C 295, 29.9.2012.


title: Reference for a preliminary ruling from the Handelsgericht Wien by order of that court of 24 March 1997 in the case of Pfeiffer Großhandel GmbH v. Löwa Warenhandel GmbH (Case C-255/97)

text:
C 271 /8             1 EN 1               Official Journal of the European Communities                                    6 . 9 . 97
    — breach of the principle of proportionality: if, in             2.  Is it relevant that in Austria most nurseries are State
         observance of the Commission's interim measure,                 run or State-aided ?
         Portugal were to take the step of suspending
         immediately the State's guarantee, the creditor
         banks could demand immediate payment by the
         State of EPAC 's credit — which would thus be
         rendered insolvent and consequently have to be
         wound up — or directly from the Portuguese State            Reference for a preliminary ruling from the
         on the basis of its contractual responsibility.             Handelsgericht Wien by order of that court of 24 March
                                                                     1997 in the case of Pfeiffer Großhandel GmbH v. Löwa
                                                                                Warenhandel GmbH
         The measure which the Commission seeks to
         impose is, therefore, manifestly fundamental and                                   ( Case C-255/97)
         inappropriate and absolutely disproportionate to                                     ( 97/C 271/11 )
         any damage — which the Commission did not
         even attempt to identify — which might arise from
         the State's maintaining the guarantee until the final       Reference has been made to the Court of Justice of the
         decision,                                                   European Communities by an order of the Handelsgericht
                                                                     Wien ( Commercial Court, Vienna ) of 24 March 1997,
                                                                     which was received at the Court Registry on 14 July 1997,
    — failure of the Commission to provide figures for its           for a preliminary ruling in the case of Pfeiffer Großhandel
         accounting: the mere granting of the State                  GmbH v. Löwa Warenhandel GmbH on the following
         guarantee does not constitute aid since the                 question:
         guarantee cannot be described as aid inasmuch as
          EPAC is not due payment of amounts owed by                 Is Article 30 or Article 52 et seq. of the EC Treaty to be
         way of capital or interest from the State acting as         interpreted as precluding the application of national
         guarantor on behalf of a debtor undertaking, nor            provisions which require that in the case of trade marks or
         would it be sufficient that EPAC's claim against            designations of undertakings which are liable to be
          Silopor, for which the State is liable, were satisfied     confused the one with earlier priority is to be protected,
          for EPAC to be able to dispense entirely with the          and hence prohibit an undertaking from using, in three
          State's guarantee and completely recover its               provinces of Austria, a trade mark or designation under
          financial equilibrium .                                    which companies in the same group lawfully operate in
                                                                     other Member States ?
Reference for a preliminary ruling from the Landesgericht            Reference for a preliminary ruling by the Tribunal de
Linz by order of that court of 24 October 1996 in the case           Commerce, Brussels, by judgment of that court of 7 July
of Gabriele Gruber v. Silhouette International Schmied               1997 in the case of Procureur du Roi v. Déménagements-
                       GmbH & Co KG .                                Manutention       Transport SA, abbreviated       as     D.M.
                        ( Case C-249/97)                                                         Transport
                                                                                ( Case C-256/97)
                           97/C 271 / 10
                                                                                ( 97/C 271 /12 )
Reference has been made to the Court of Justice of the               Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht                European Communities by judgment of the Tribunal de
Linz ( Labour and Social Court) of 24 October 1996,                  Commerce ( Commercial Court), Brussels of 7 July 1997,
which was received at the Court Registry on 8 July 1997,             received at the Court Registry on 15 July 1997, for a
for a preliminary ruling in the case of Gabriele Gruber v.           preliminary ruling in the case of Procureur du Roi against
Silhouette International Schmied GmbH & Co KG on the                 Déménagements-Manutention Transport SA, abbreviated
following questions :                                                as D.M. Transport, on the following questions:
                                                                     1 . Is Article 92 of the Treaty to be interpreted as
1 . Is it compatible with Article 119 of the EC Treaty                   meaning that measures in the form of payment
    that, owing to lack of child-care facilities,                        facilities granted by a public body such as the ONSS
    predominantly women have to terminate their                          enabling a commercial company to retain over a
    employment in order to look after their children and                 period of at least eight years a proportion of the sums
    these women, despite fulfilment of additional                        collected from staff and to use those sums in support
    conditions ( longer service ), receive no more than half             of its commercial activities, when that undertaking is
    of the compensation payable upon termination of                      unable to obtain funding under normal market
    employment for the actual length of their service                    conditions or to increase its capital, are to be
     ( Paragraph 23a ( 3 ) of the Angestelltengesetz ) whilst            considered State aid within the meaning of that
    men keep the full compensation period ?                               article ?


title: Action brought on 7 December 1998 by Vasilios Boukouvalas against the European Parliament (Case T-193/98)

text:
20.2.1999            EN                Official Journal of the European Communities                                   C 48/27
The applicant's fourth plea is that the treatment reserved        Action brought on 7 December 1998 by Vasilios
to good-faith brand diversification advertising is                       Boukouvalas against the European Parliament
disproportionate. In view of the fact that advertising for                             (Case T-193/98)
tobacco products is granted a milder treatment, the
treatment of good-faith brand diversification advertising is                            (1999/C 48/59)
also discriminatory.
                                                                                (Language of the case: Greek)
The applicant's fifth plea is that the advertising ban
enacted by the Directive infringes its right to freedom of
speech and in particular cannot be justified under                An action against the European Parliament was brought
Article 10(2) of the European Convention on Human                 before the Court of First Instance of the European
Rights.                                                           Communities on 7 December 1998 by Vasilios
                                                                  Boukouvalas, an official of the European Parliament,
The applicant's sixth plea is that the Directive deprives         resident in Brussels, represented by Professor Kharis
holders of trade-mark rights of the substance of their            Tagaras, of the Thessaloniki Bar, with an address for
rights and thus infringes the fundamental rights to               service in Luxembourg at the Office of VeÂronique
property and of freedom of trade, as well as the Paris            Duhaubois, 139 Rue Schetzel, L-2518.
Convention and the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS).
                                                                  The applicant claims that the Court should:
                                                                  Ð find the action admissible;
Action brought on 23 October 1998 by Alma Media                   Ð hold to be unlawful and annul (a) the implied refusal
Group Advertising SA & Co and Others against the                      of the defendant's staff to pay, in respect of the
European Parliament and the Council of the European                   applicant's father and mother, the allowance for
                           Union                                      persons treated as if they were dependent children,
                                                                      during the period from 1 August 1997 to 31 July
                      (Case T-176/98)                                 1998, notwithstanding the decision of the
                       (1999/C 48/58)                                 Secretary-General of 28 January 1998 and (b)
                                                                      Decision No 26039 of 9 September 1998, of the
                                                                      defendant finding that the applicant is not entitled to
               (Language of the case: English)
                                                                      the above allowance;
An action against the European Parliament and the
Council of the European Union was brought before the              Ð order the defendant to pay that allowance to the
Court of First Instance of the European Communities on                applicant for the abovementioned period, together
23 October 1998 by Alma Media Group Advertising SA &                  with interest for late payment at 8 % from the date
Co and Others, represented by Helen Papaconstantinou,                 upon which each monthly payment became due;
Eric Morgan de Rivery and Jacques Derenne, with an
address for service in Luxembourg at the Chambers of
Bonn & Schmitt, 7 Val Ste Croix.                                  Ð order the defendant to pay the applicant's legal costs,
                                                                      and to so order even if the action is dismissed, because
                                                                      there are exceptional circumstances within the
The applicants claim that the Court should:                           meaning of the first subparagraph of Article 87(3) of
                                                                      the Rules of Procedure, in particular circumstances of
Ð annul Directive 98/43/EC of the European Parliament                 personal impecuniosity, as set out in the main body of
    and of the Council of 6 July 1998 on the                          the application.
    approximation of the laws, regulations and
    administrative provisions of the Member States
    relating to the advertising and sponsorship of tobacco        Pleas in law and main arguments adduced in support
    products published (OJ L 213, 30.7.1998, p. 9), and
                                                                  Infringement of Article 90 of the Staff
Ð order the European Parliament and the Council of the            Regulations and of the principles of the
    European Union to pay the costs.                              protection of legitimate expectations and of
                                                                  proper administration
Pleas in law and main arguments adduced in support
                                                                  According to the applicant, any favourable reply by the
The grounds of the present application and its main               appointing authority to an official's administrative
arguments are those raised in Case T-172/98 Salamander            complaint must be binding on that body and, in any
v. Parliament and Council.                                        event, the subsequent revocation or amendment of the
                                                                  reply cannot retroactively deprive the official of the rights
                                                                  which flowed from it.
 ---pagebreak--- C 48/28              EN                Official Journal of the European Communities                                  20.2.1999
Infringement of the internal rules regarding                      The Commission sought to justify its refusal to
competence and functioning of the European                        communicate the information at issue by relying on the
Parliament                                                        Code of conduct concerning public access to Commission
                                                                  documents and Article 7(1) and Article 9(3) of Council
                                                                  Directive 93/36/EEC of 14 June 1993 coordinating
Infringement of Article 2(4) of Annex VII to                      procedures for the award of public supply contracts.
the Staff Regulations and of the general
implementing provisions, as well as of
Annex V to the Staff Regulations                                  The applicant pleads in that regard breaches of the
                                                                  obligation to provide a statement of reasons and of the
                                                                  principles of equality and proportionality, as well as abuse
The applicant considers that the effect of the contested          of process and/or misuse of powers.
decision is a refusal to pay the allowance because the
calculation under Articles 5 to 9 of the general provisions
implementing the Staff Regulations was applied
incorrectly, as was Article 10 thereof. In particular, the
calculation made under Articles 5 to 9 should be annulled,
first, because the statement of reasons is inadequate and,
secondly, because the calculation is wrong in law and in          Action brought on 11 December 1998 by Eduardo PenÄa
fact. In the alternative, should that calculation be              Abizanda and Others v. Commission of the European
considered to be correct the applicant pleads that                                         Communities
Article 10 of the general implementing provisions should
                                                                                (Case T-196/98)
have been applied.
                                                                                (1999/C 48/61)
                                                                                (Language of the case: Spanish)
                                                                  An action against the Commission of the European
Action brought on 9 December 1998 by Scan Office
                                                                  Communities was brought before the Court of First
Design S.A. against the Commission of the European
                                                                  Instance on 11 December 1998 by Eduardo PenÄa
                        Communities
                                                                  Abizanda and Others, residing in Belgium and
                      (Case T-194/98)                             Luxembourg, represented by Antonio Creus Carreras and
                                                                  BegonÄa Uriarte Valiente, of the Barcelona and Madrid
                       (1999/C 48/60)
                                                                  Bars respectively, with an address for service in Brussels at
                                                                  78 Avenue d'Auderghem.
               (Language of the case: French)
                                                                  The applicants claim that the Court of First Instance
An action against the Commission of the European                  should:
Communities was brought before the Court of First
Instance of the European Communities on 9 December
1998 by Scan Office Design S.A., the registered office of         Ð annul the implied Commission decision contained in
which is in Brussels, represented by Benoît Mertens, of the           the letter from the Director General of Personnel of
Brussels Bar, and Denis Philippe, of the Luxembourg Bar,              9 September 1998;
with an address for service in Luxembourg at the latter's
Chambers, 47 Grand-Rue.                                           Ð order the Commission to pay the costs.
The applicant claims that the Court should:                       Pleas in law and main arguments adduced in support
Ð annul the contested decision;                                   The annulment is sought of the letter from the
                                                                  Commission Director General of Personnel of 9 September
                                                                  1998 indicating the defendant's approval of the content of
Ð order the defendant to pay the costs.
                                                                  the draft Royal Decree on the transfer of rights under
                                                                  public social security schemes to the social security scheme
Pleas in law and main arguments adduced in support                for officials of the European Communities. That approval
                                                                  will entail the adoption in the near future of legislation by
                                                                  the Spanish Government, which, in the applicants'
The Commission refused the applicant's request for                opinion, will only partially bring to an end the persistent
communication of certain information concerning the bid           infringement by the Kingdom of Spain of the provisions of
made by the successful tenderer (Frezza Belgium S.A.) in          the Staff Regulations concerning transfer to the
the context of an invitation to tender for the supply of          Community pension scheme of the rights acquired by
office furniture, in which the applicant had also                 Community officials and other servants under national
participated.                                                     schemes.


title: Action brought on 11 February 1998 by the Commission of the European Communities against the Federal Republic of Germany (Case C-32/98)

text:
C 94/14                EN                 Official Journal of the European Communities                                     28.3.98
München (Finance Court, Munich) of 22 January 1998,                  1 July 1995 and Germany has not yet taken the necesssary
which was received at the Court Registry on 9 February               measures.
1998, for a preliminary ruling in the case of Peter Luksch
v. Hauptzollamt Weiden on the following questions:                   (1) OJ L 135, 31.5.1994, p. 5.
1. Is Article 1 of Commission Regulation (EC) No 1395/
    94 (1) of 17 June 1994 to be interpreted as meaning
    that a countervailing charge is to be levied on sour
    cherries which have deteriorated through the
    formation of mould and incipient fermentation to such
    an extent that the only economic use to which they               Action brought on 12 February 1998 by the Commission
    can be put is distillation?                                           of the European Communities against the Federal
                                                                                Republic of Germany
    If Question 1 is answered in the affirmative:                                           (Case C-33/98)
2. Is Annex I of Regulation (EC) No 2658/87 (2), in the                                       (98/C 94/30)
    version in Regulation (EEC) No 2551/93 (3) of
    10 August 1993, in particular Note 1 to Chapter 8 of
    the Combined Nomenclature, to be interpreted as                  An action against the Federal Republic of Germany was
    meaning that the goods described in Question 1 are to            brought before the Court of Justice of the European
    be classified under subheading 0809 20 20 or                     Communities on 12 February 1998 by the Commission of
    0809 20 60?                                                      the European Communities, represented by Maria Patakia
                                                                     and Dr Frank Paul, of its Legal Service, with an address
(1) OJ L 152, 18.6.1994, p. 31.                                      for service in Luxembourg at the office of Carlos Gómez
(2) OJ L 256, 7.9.1987, p. 1.                                        de la Cruz, of its Legal Service, Wagner Centre, Kirchberg.
(3) OJ L 241, 27.9.1993, p. 1.
                                                                     The applicant claims that the Court should:
                                                                     Ð declare that, by the statement of the Deutsche Bundes-
                                                                         bank (1) that (a) only leading banks' established in
Action brought on 11 February 1998 by the Commission                     Germany may act as leading bank for foreign German
     of the European Communities against the Federal                     mark issues in Germany and (b) foreign German mark
                      Republic of Germany                                issues by credit institutions not established in Germany
                         (Case C-32/98)                                  must have a maturity of at least two years, the Federal
                                                                         Republic of Germany has failed to fulfil its obligations
                          (98/C 94/29)
                                                                         under Council Directive 88/361/EEC (2) and, from
                                                                         1 January 1994, under Article 73b of the EC Treaty
An action against the Federal Republic of Germany was                    and under Article 59 of the EC Treaty and Council
brought before the Court of Justice of the European                      Directive 89/646/EEC (3),
Communities on 11 February 1998 by the Commission of
the European Communities, represented by Christina
Tufvesson and Dr Frank Paul, of its Legal Service, with an           Ð order the Federal Republic of Germany to pay the
address for service in Luxembourg at the office of Carlos                costs.
Gómez de la Cruz, of its Legal Service, Wagner Centre,
Kirchberg.
                                                                     Pleas in law and main arguments adduced in support:
The applicant claims that the Court should:
                                                                     In the Commission's view, it is not decisive whether the
Ð declare that, by failing to adopt within the prescribed            statement is legally binding, since participants in the
    period the measures necessary to comply with                     market must in view of the Bundesbank's authority be
    Directive 94/19/EC of the European Parliament and of             concerned to comply with statements even if formally they
    the Council of 30 May 1994 on deposit-guarantee                  are not legally binding. Specifically,
    schemes (1), the Federal Republic of Germany has
    failed to fulfil its obligations under the EC Treaty,
                                                                     Ð the second sentence of point 1(1) of the statement
                                                                         infringes the principle of freedom to provide services
Ð order the Federal Republic of Germany to pay the
                                                                         (Article 59 of the EC Treaty), Article 18(1) of Council
    costs.
                                                                         Directive 89/646/EEC in conjunction with point 8 of
                                                                         the Annex thereto, and the principle of the free
Pleas in law and main arguments adduced in support:                      movement of capital (Article 73b of the EC Treaty), in
                                                                         so far at its effect is to exclude foreign credit
The pleas in law and main arguments correspond to those                  institutions from lead management for foreign German
in Case C-18/98; the period for transposition expired on                 mark bonds unless they act through a German branch,


title: Judgment of the Court (Fifth Chamber) of 15 November 2001 in Case C-49/00: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Incomplete transposition of Directive 89/391/EEC — Safety and health of workers)

text:
C 17/6                  EN                      Official Journal of the European Communities                                          19.1.2002
                 JUDGMENT OF THE COURT                                     1.    Declares that,
                                                                                —     by failing to require employers to evaluate all health and
                          (Fifth Chamber)                                              safety risks in the work place;
                                                                                —     by allowing employers to decide whether or not to enlist
                      of 15 November 2001                                              external services for the adoption of protective and
                                                                                preventive measures when the skills available within the
                                                                                undertaking are insufficient, and
in Case C-49/00: Commission of the European Communi-
                                                                                —     by failing to define the capabilities and aptitudes which
                     ties v Italian Republic (1)
                                                                                the persons responsible for protective and preventive
                                                                                measures against occupational risks to workers’ health
                                                                                and safety must possess,
(Failure by a Member State to fulfil its obligations —
Incomplete transposition of Directive 89/391/EEC — Safety                        the Italian Republic has failed to fulfil its obligations under
                       and health of workers)                                    Articles 6(3) (a) and 7(3), (5) and (8) of Council Directive
                                                                                89/391/EEC of 12 June 1989 on the introduction of measures
                                                                                to encourage improvements in the safety and health of workers
                           (2002/C 17/08)                                        at work.
                                                                           2.    Orders the Italian Republic to pay the costs.
                    (Language of the case: Italian)
                                                                           (1) OJ C 135 of 13.5.2000.
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                                JUDGMENT OF THE COURT
In Case C-49/00: Commission of the European Communities
(Agents: E. Traversa and N. Yerrell) v Italian Republic (Agent:                                       (Sixth Chamber)
U. Leanza, assisted by D. Del Gaizo) — application for a
declaration that:
                                                                                of 22 November 2001
—     by failing to require employers to evaluate all health and           in Case C-53/00 (reference for a preliminary ruling from
      safety risks in the work place,                                      the Tribunal des affaires de sécurité sociale de Créteil):
                                                                           Ferring SA v Agence centrale des organismes de sécurité
                                                                                sociale (ACOSS) (1)
—     by allowing employers to decide whether or not to enlist
      external services for the adoption of protective and                 (State aid — Tax benefit granted to certain undertakings —
      preventive measures when the skills available within the                                    Wholesale distributors)
      undertaking are insufficient, and
                                                                                (2002/C 17/09)
—     by failing to define the capabilities and aptitudes which
      the persons responsible for protective and preventive                                     (Language of the case: French)
      measures against occupational risks to workers’ health
      and safety must possess,                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
the Italian Republic has failed to fulfil its obligations under
Articles 6(3)(a) and 7(3), (5) and (8) of Council Directive
89/391/EEC of 12 June 1989 on the introduction of measures                 In Case C-53/00: reference to the Court under Article 234 EC
to encourage improvements in the safety and health of workers              from the Tribunal des affaires de sécurité sociale de Créteil
at work (OJ 1989 L 183, p. 1) — the Court (Fifth Chamber),                 (France) for a preliminary ruling in the proceedings pending
composed of: S. von Bahr (Rapporteur), President of the Fourth             before that court between Ferring SA and Agence centrale des
Chamber, acting for the President of the Fifth Chamber,                    organismes de sécurité sociale (ACOSS) — on the interpret-
D.A.O. Edward, A. La Pergola, L. Sevón and M. Wathelet,                   ation of Article 59 of the EC Treaty (now, after amendment,
Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar,              Article 49 EC), Article 90(2) of the EC Treaty (now Article 86(2)
has given a judgment on 15 November 2001, in which it:                     EC) and Article 92 of the EC Treaty (now, after amendment,


               30.6.2005

               EN

               Official Journal of the European Union

               C 159/29

         Request for an Advisory Opinion from the EFTA Court by Fürstlicher Landrichter by decision of that court of 13 December 2004 in the case of Paolo Piazza v Paul Schurte AG

   (Case E-10/04)
   (2005/C 159/11)
   A request has been made to the EFTA Court by decision of 13 December 2004 of Fürstlicher Landrichter (Princely Court of Justice), Vaduz, Liechtenstein, which was received at the Court Registry on 31 December 2004, for an Advisory Opinion in the case of Paolo Piazza v Paul Schurte AG, on the following question:
   Is a provision such as that contained in Section 56(2) of the Liechtenstein Zivilprozessordnung (Code of Civil Procedure) compatible with EEA law, in particular with the freedom to provide services under Article 36 of the EEA Agreement and the freedom of movement of capital under Article 40 thereof? If such a provision is justifiable, is it also proportionate?


title: Case C-192/04: Reference for a preliminary ruling by the Cour de cassation (France), 1ère chambre civile, by order of that court of 17 February 2004, in the case of Société Lagardère Active Broadcast, as assignee from Europe 1 communication SA, against Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leisungsschutzrechten MBG, SARL (GVL), intervener: Compagnie européenne de radiodiffusion et de télévision Europe 1 SA (CERT)

text:
               12.6.2004

               EN

               Official Journal of the European Union

               C 156/8

         Reference for a preliminary ruling by the Cour de cassation (France), 1ère chambre civile, by order of that court of 17 February 2004, in the case of Société Lagardère Active Broadcast, as assignee from Europe 1 communication SA, against Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leisungsschutzrechten MBG, SARL (GVL), intervener: Compagnie européenne de radiodiffusion et de télévision Europe 1 SA (CERT)
   (Case C-192/04)
   (2004/C 156/17)
   Reference has been made to the Court of Justice of the European Communities by order of the Cour de cassation (France), 1ère chambre civile, of 17 February 2004, received at the Court Registry on 26 April 2004, for a preliminary ruling in the case of Société Lagardère Active Broadcast, as assignee from Europe 1 communication SA, against Société pour la perception de la rémunération équitable (SPRE) and Gesellschaft zur Verwertung von Leisungsschutzrechten MBG, SARL (GVL), intervener: Compagnie européenne de radiodiffusion et de télévision Europe 1 SA (CERT), on the following questions:

               1.

               Where a broadcasting company transmitting from the territory of one Member State uses, in order to extend the transmission of its programmes to a part of its national audience, a transmitter situated nearby on the territory of another Member State, of which its majority-held subsidiary is the licence holder, does the legislation of the latter State govern the single equitable fee which is required by Article 8(2) of Directive 92/100/EEC of 19 November 1992 (1) and Article 4 of Directive 93/83 of 27 September 1993 (2) and payable in respect of the phonograms published for commercial purposes included in the programmes retransmitted?

               2.

               If so, is the original broadcasting company entitled to deduct the sums paid by its subsidiary from the fee claimed from it in respect of all the transmissions received on the national territory?

      (1)  Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights relating to copyright in the field of intellectual property (OJ 1992 L 346, p. 61).

      (2)  Council Directive 93/83/EEC of 27 September 1993 on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).


title: Joined Cases C-376/15 P and C-377/15 P: Judgment of the Court (Fourth Chamber) of 5 April 2017 — Changshu City Standard Parts Factory, Ningbo Jinding Fastener Co. Ltd v Council of the European Union, European Commission, European Industrial Fasteners Institute AISBL (EIFI) (Appeal — Dumping — Implementing Regulation (EU) No 924/2012 — Imports of certain iron or steel fasteners originating in the People’s Republic of China — Regulation (EC) No 1225/2009 — Article 2(10) and (11) — Exclusion of certain export transactions for the purposes of calculating the dumping margin — Fair comparison between the export price and the normal value in the case of imports from a non-market economy country)

text:
               29.5.2017

               EN

               Official Journal of the European Union

               C 168/8

         Judgment of the Court (Fourth Chamber) of 5 April 2017 — Changshu City Standard Parts Factory, Ningbo Jinding Fastener Co. Ltd v Council of the European Union, European Commission, European Industrial Fasteners Institute AISBL (EIFI)
   (Joined Cases C-376/15 P and C-377/15 P) (1)

   ((Appeal - Dumping - Implementing Regulation (EU) No 924/2012 - Imports of certain iron or steel fasteners originating in the People’s Republic of China - Regulation (EC) No 1225/2009 - Article 2(10) and (11) - Exclusion of certain export transactions for the purposes of calculating the dumping margin - Fair comparison between the export price and the normal value in the case of imports from a non-market economy country))
   (2017/C 168/09)
   Language of the case: English

      Parties

      Appellants: Changshu City Standard Parts Factory, Ningbo Jinding Fastener Co. Ltd, (represented by: R. Antonini and E. Monard, avocats)

      Other parties to the proceedings: Council of the European Union (represented by: B. Driessen and S. Boelaert, Agents, and by N. Tuominen, avocat), European Commission (represented by T. Maxian Rusche and M. França, Agents), European Industrial Fasteners Institute AISBL (EIFI)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the General Court of the European Union of 29 April 2015, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council (T-558/12 and T-559/12, EU:T:2015:237);

               2.

               Annuls Council Implementing Regulation (EU) No 924/2012 of 4 October 2012 amending Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China, in so far as it relates to Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co. Ltd;

               3.

               Dismisses the appeal in Case C-377/15 P;

               4.

               Orders the Council of the European Union to bear its own costs and to pay those incurred by Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co. Ltd in relation to the proceedings at first instance in Cases T-558/12 and T-559/12 as well as those relating to the appeal proceedings in Case C-376/15 P;

               5.

               Orders Changshu City Standard Parts Factory and Ningbo Jinding Fastener Co. Ltd to bear their own costs and to pay those incurred by the Council of the European Union in relation to the appeal proceedings in Case C-377/15 P;

               6.

               Orders the European Commission to bear its own costs relating to the proceedings at first instance in Cases T-558/12 and T-559/12 as well as those relating to the appeal proceedings in Cases C-376/15 P and C-377/15 P.

      (1)  OJ C 381, 16.11.2015.


title: Case T-347/14 INTP: Order of the General Court of 19 July 2017 — Yanukovych v Council (Procedure — Interpretation of an order)

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/25

         Order of the General Court of 19 July 2017 — Yanukovych v Council
   (Case T-347/14 INTP) (1)

   ((Procedure - Interpretation of an order))
   (2017/C 347/33)
   Language of the case: English

      Parties

      Applicant: Olga Stanislavivna Yanukovych, as heir of Viktor Viktorovych Yanukovych (Kiev, Ukraine) (represented by T. Beazley QC)

      Defendant: Council of the European Union (represented by J.-P. Hix and P. Mahnič Bruni, acting as Agents)

      Intervener in support of the defendant: European Commission (represented initially by S. Bartelt and D. Gauci, and subsequently by E. Paasivirta and J. Norris-Usher, acting as Agents)

      Re:

   Application for interpretation of the order of 12 July 2016, Yanukovych v Council (T-347/14, EU:T:2016:433).

      Operative part of the order

               1.

               Point 3 of the operative part of order of 12 July 2016, Yanukovych v Council (T-347/14), must be interpreted as meaning that, as regards the claim for annulment made in the application, it covers both costs incurred by Mr Viktor Viktorovych Yanukovych and those incurred by Mrs Olga Stanislavivna Yanukovych, as heir of Mr Viktorovych Yanukovych.

               2.

               Mrs Stanislavivna Yanukovych, as heir of Mr Viktorovych Yanukovych, on the one hand, and the Council of the European Union, on the other hand, shall each bear their own costs relating to the interpretation proceedings.

               3.

               The European Commission shall bear its own costs.

               4.

               The original of this order shall be annexed to the original of the order interpreted, in the margin of which reference shall be made to this order.

      (1)  OJ C 253, 4.8.2014.


title: Case T-125/04: Order of the Court of First Instance of 12 September 2008 — Rousseaux v Commission (Staff case — Officials — Interlocutory judgment — No need to adjudicate)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/34

         Order of the Court of First Instance of 12 September 2008 — Rousseaux v Commission
   (Case T-125/04) (1)

   (Staff case - Officials - Interlocutory judgment - No need to adjudicate)
   (2008/C 301/56)
   Language of the case: French
   Parties

      Applicant: Patrick Rousseaux (Brussels, Belgium) (represented by: N. Lhoëst, lawyer)

      Defendant: Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents, assisted by B. Wägenbaur, lawyer)
   Re:
   First, application for annulment of the Commission's decision of 14 April 2003 altering the applicant's classification in grade, in so far as it fixes his classification in step on recruitment in step 2 of Grade A6, fixes 5 October 1995 as the date on which the decision was to have pecuniary effect and did not re-establish the applicant's career grade, and an application for annulment of the decision rejecting the applicant's complaint and, second, an application for compensation for the damage allegedly caused by that decision.
   Operative part of the order

               1.

               There is no longer any need to adjudicate on this action.

               2.

               The Commission shall pay all the costs.

      (1)  OJ C 118, 30.4.2004.


title: Case C-211/10 PPU: Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Doris Povse v Mauro Alpago (Judicial cooperation in civil matters — Matrimonial matters and matters of parental responsibility — Regulation (EC) No 2201/2003 — Unlawful removal of a child — Provisional measures relating to ‘right to take parental decisions’ — Rights of custody — Judgment ordering the return of the child — Enforcement — Jurisdiction — Urgent preliminary ruling procedure)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/16

         Judgment of the Court (Third Chamber) of 1 July 2010 (reference for a preliminary ruling from the Oberster Gerichtshof — Austria) — Doris Povse v Mauro Alpago
   (Case C-211/10 PPU) (1)

   (Judicial cooperation in civil matters - Matrimonial matters and matters of parental responsibility - Regulation (EC) No 2201/2003 - Unlawful removal of a child - Provisional measures relating to ‘right to take parental decisions’ - Rights of custody - Judgment ordering the return of the child - Enforcement - Jurisdiction - Urgent preliminary ruling procedure)
   2010/C 234/23
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Appellant: Doris Povse

      Respondent: Mauro Alpago

      Re:

   Reference for a preliminary ruling — Oberster Gerichtshof — Interpretation of Articles 10(b)(iv), 11(8), 42(2) and 47(2) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) — Child abduction — Jurisdiction of courts or tribunals of a Member State to order the return of the child to that State in circumstances where the child has resided more than one year in another Member State and where the courts of the first State have, after the abduction, provisionally awarded custody of the child to the parent who abducted the child — Whether possible to refuse, in the interests of the child, enforcement of the decision ordering the child’s return to the first Member State

      Operative part of the judgment

               1.

               Article 10(b)(iv) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that a provisional measure does not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of that provision, and cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed.

               2.

               Article 11(8) of Regulation No 2201/2003 must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child.

               3.

               The second subparagraph of Article 47(2) of Regulation No 2201/2003 must be interpreted as meaning that a judgment delivered subsequently by a court in the Member State of enforcement which awards provisional rights of custody and is deemed to be enforceable under the law of that State cannot preclude enforcement of a certified judgment delivered previously by the court which has jurisdiction in the Member State of origin and ordering the return of the child.

               4.

               Enforcement of a certified judgment cannot be refused in the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change must be pleaded before the court which has jurisdiction in the Member State of origin, which should also hear any application to suspend enforcement of its judgment.

      (1)  OJ C 179, 3.7.2010.