title: Judgment of the Court of 22 December 2016 in Case E-6/16 — Fjarskipti hf. v The Icelandic Post and Telecom Administration (Provision of telecommunications services — Directive 2002/21/EC — Electronic communications network — Electronic communications service — Public communications network)

text:
               27.4.2017

               EN

               Official Journal of the European Union

               C 133/6

         JUDGMENT OF THE COURT
   of 22 December 2016
   in Case E-6/16
   Fjarskipti hf. v The Icelandic Post and Telecom Administration
   (Provision of telecommunications services — Directive 2002/21/EC — Electronic communications network — Electronic communications service — Public communications network)
   (2017/C 133/06)
   In Case E-6/16, Fjarskipti hf. v the Icelandic Post and Telecom Administration — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Reykjavík District Court (Héraðsdómur Reykjavíkur) concerning the interpretation of Article 2 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Páll Hreinsson, Judges, gave judgment on 22 December 2016, the operative part of which is as follows:

               1.

               The definition in Article 2(a) of Directive 2002/21/EC of the term ‘electronic communications network’ must be interpreted as encompassing a system allowing for the conveyance of signals written as an SMS message on a user’s end device, connected through a web browser, via the internet, to the PHP script software on a telecommunications undertaking’s web domain, which receives the signals, processes them and conveys them in turn to an SMS server in the undertaking’s communications system, which then conveys them over a network to the recipient telephone number.

               2.

               The definition in Article 2(c) of Directive 2002/21/EC of the term ‘electronic communications service’ encompasses a service that consists of the conveyance of signals which takes place on a communications network, as described in the first question, irrespective of whether a fee is collected for such a service, provided that the service is normally provided for remuneration.

               3.

               The definition in Article 2(d) of Directive 2002/21/EC of the term ‘public communications network’ must be interpreted as covering a network as described in the first question, used to provide services as described in the second question, irrespective of whether those services are made available only to the subscribers of the particular undertaking, provided that the network is used wholly or mainly for the provision of such publicly available services.


title: Case C-126/14: Judgment of the Court (Fifth Chamber) of 22 October 2015 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — ‘Sveda’ UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos (Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Article 168 — Right of deduction — Deduction of input VAT on the acquisition or production of capital goods — Recreational path directly intended for use by the public free of charge — Use of the recreational path as a means of carrying out taxed transactions)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/3

         Judgment of the Court (Fifth Chamber) of 22 October 2015 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — ‘Sveda’ UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos
   (Case C-126/14) (1)

   ((Reference for a preliminary ruling - VAT - Directive 2006/112/EC - Article 168 - Right of deduction - Deduction of input VAT on the acquisition or production of capital goods - Recreational path directly intended for use by the public free of charge - Use of the recreational path as a means of carrying out taxed transactions))
   (2015/C 414/04)
   Language of the case: Lithuanian

      Referring court

   Lietuvos vyriausiasis administracinis teismas

      Parties to the main proceedings

      Applicant:‘Sveda’ UAB

      Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

      Third party: Klaipėdos apskrities valstybinė mokesčių inspekcija

      Operative part of the judgment

   Article 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as granting, in circumstances such as those in the main proceedings, a taxable person the right to deduct the input value added tax paid for the acquisition or production of capital goods, for the purposes of a planned economic activity related to rural and recreational tourism, which are (i) directly intended for use by the public free of charge, and may (ii) enable taxed transactions to be carried out, provided that a direct and immediate link is established between the expenses associated with the input transactions and an output transaction or transactions giving rise to the right to deduct or with the taxable person’s economic activity as a whole, which is a matter for the referring court to determine on the basis of objective evidence.

      (1)  OJ C 175, 10.6.2014.


title: Case T-265/16: Action brought on 27 May 2016 — Puratos and others v Commission

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/33

         Action brought on 27 May 2016 — Puratos and others v Commission
   (Case T-265/16)
   (2016/C 279/47)
   Language of the case: English

      Parties

      Applicants: Puratos (Dilbeek, Belgium), Delta Light (Wevelgem, Belgium) and Ontex (Buggenhout, Belgium) (represented by: H. Gilliams and J. Bocken, lawyers)

      Defendant(s): European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium;

               —

               in the alternative, annul Articles 2-4 of the Decision;

               —

               in any event, annul Articles 2-4 of that Decision in so far as these Articles (a) require recovery from entities other than the entities that have been issued an ‘excess profit ruling’ as defined in the Decision and (b) require the recovery of an amount equal to the beneficiary’s tax savings, without allowing Belgium to take into account an actual upwards adjustment by another tax administration;

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the Commission decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium alleges the existence of an aid scheme.

               2.

               Second plea in law, alleging a violation of Article 107 TFUE and of the duty to state reasons and manifest error of assessment in so far as the contested decision qualifies the purported scheme as a selected measure.

               3.

               Third plea in law, alleging a violation of Article 107 TFUE and of the duty to state reasons and manifest error of assessment in so far as the contested decision asserts that the purported scheme gives rise to an advantage.

               4.

               Fourth plea in law, alleging a violation of Article 107 TFUE, infringement of legitimate expectations, manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the contested decision orders Belgium to recover aid.


title: Judgment of the Court (Sixth Chamber) 19 March 2002 in Case C-224/00: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Article 6 of the EC Treaty (now, after amendment, Article 12 EC) — Difference in treatment of persons contravening the highway code according to the place of registration of their vehicle — Proportionality)

text:
C 118/12                  EN                      Official Journal of the European Communities                                           18.5.2002
                  JUDGMENT OF THE COURT                                      3.    Article 2(1) of Directive 77/388 is to be interpreted as
                                                                                meaning that the annual subscription fees of the members of a
                                                                                sports association such as that concerned in the main proceed-
                            (Fifth Chamber)                                        ings can constitute the consideration for the services provided by
                                                                                the association, even though members who do not use or do not
                                                                                regularly use the association’s facilities must still pay their
                             21 March 2002                                         annual subscription fees.
in Case C-174/00 (Reference for a preliminary ruling from                    (1) OJ C 192 of 8.7.2000.
the Hoge Raad der Nederlanden): Kennemer Golf &
     Country Club v Staatssecretaris van Financiën (1)
(Sixth VAT Directive — Article 13A(1)(m) — Exempt
transactions — Services connected with the practice of sport
               — Non-profit-making organisation)
                            (2002/C 118/17)                                                    JUDGMENT OF THE COURT
                      (Language of the case: Dutch)                                                     (Sixth Chamber)
                                                                                19 March 2002
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)
                                                                             in Case C-224/00: Commission of the European Communi-
                                                                                ties v Italian Republic (1)
In Case C-174/00: Reference to the Court under Article 177                   (Failure by a Member State to fulfil its obligations —
of the EC Treaty (now Article 234 EC) by Hoge Raad der                       Article 6 of the EC Treaty (now, after amendment, Article 12
Nederlanden (Netherlands) for a preliminary ruling in the                    EC) — Difference in treatment of persons contravening the
proceedings pending before that court between Kennemer                       highway code according to the place of registration of their
Golf & Country Club and Staatssecretaris van Financiën, on                                        vehicle — Proportionality)
the interpretation of Article 13A(1)(m) of the Sixth Council
Directive 77/388/EC of 17 May 1977 on the harmonisation
of the laws of the Member States relating to turnover taxes —                                           (2002/C 118/18)
Common system of value added tax: uniform basis of assess-
ment (OJ 1977 L 145, p. 1), the Court (Fifth Chamber),
composed of: P. Jann (Rapporteur), President of the Chamber,                                      (Language of the case: Italian)
S. von Bahr and C.W.A. Timmermans, Judges; F.G. Jacobs,
Advocate General; L. Hewlett, Administrator, for the Registrar,
has given a judgment on 21 March 2002, in which it has                       (Provisional translation; the definitive translation will be published
ruled:                                                                                in the European Court Reports)
1.    Article 13A(1)(m) of the 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               In Case C-224/00, Commission of the European Communities
      of value added tax: uniform basis of assessment is to be               (Agents: C. O’Reilly and G. Bisogni) v Italian Republic (Agent:
      interpreted as meaning that the categorisation of an organis-          U. Leanza, assisted by O. Fiumara): Application for a declar-
      ation as ‘non-profit-making’ must be based on all the organis-         ation that, by maintaining in force a legislative rule (Article 207
      ation’s activities.                                                    of the Italian highway code) providing for different and
                                                                             disproportionate treatment of offenders according to the place
                                                                             of registration of their vehicle, the Italian Republic has failed
2.    Article 13A(1)(m) of Directive 77/388 is to be interpreted as          to fulfil its obligations under Article 6 of the EC Treaty (now,
      meaning that an organisation may be categorised as ‘non-               after amendment, Article 12 EC), the Court (Sixth Chamber),
      profit-making’ even if it systematically seeks to achieve surpluses    composed of: F. Macken, President of the Chamber, N. Colner-
      which it then uses for the purposes of the provision of its            ic, R. Schintgen, V. Skouris (Rapporteur) and J.N. Cunha
      services. The first part of the optional condition set out in the      Rodrigues, Judges; C. Stix-Hackl, Advocate General; R. Grass,
      first indent of Article 13A(2)(a) of Directive 77/388 is to be         Registrar, has given a judgment on 19 March 2002, in which
      interpreted in the same way.                                           it:
 ---pagebreak--- 18.5.2002                EN                      Official Journal of the European Communities                                          C 118/13
1.    Declares that, by maintaining in force, in Article 207 of the         F. Macken and N. Colneric (Presidents of Chambers), A. La
      Italian highway code, a disproportionate difference in treatment      Pergola, J.P. Puissochet, M. Wathelet, R. Schintgen (Rapporteur)
      between offenders based on the place of registration of their         and V. Skouris, Judges; S. Alber, Advocate General; R. Grass,
      vehicles, the Italian Republic has failed to fulfil its obligations   Registrar, has given a judgment on 19 February 2002, in
      under Article 6 of the EC Treaty (now, after amendment,               which it has ruled:
      Article 12 EC);
2.    Orders the Italian Republic to pay the costs.                         The special jurisdictional rule in matters relating to a contract, laid
                                                                            down in Article 5(1) of the Convention of 27 September 1968 on
                                                                            Jurisdiction and the Enforcement of Judgments in Civil and Commer-
(1) OJ C 247 of 26.8.2000.                                                  cial Matters, as amended by the Convention of 9 October 1978 on
                                                                            the Accession of the Kingdom of Denmark, Ireland and the United
                                                                            Kingdom of Great Britain and Northern Ireland, is not applicable
                                                                            where, as in the present case, the place of performance of the
                                                                            obligation in question cannot be determined because it consists in an
                                                                            undertaking not to do something which is not subject to any
                                                                            geographical limit and is therefore characterised by a multiplicity of
                                                                            places for its performance. In such a case, jurisdiction can be
                  JUDGMENT OF THE COURT                                     determined only by application of the general criterion laid down in
                                                                            the first paragraph of Article 2 of that Convention.
                          19 February 2002
                                                                            (1) OJ C 233 of 12.8.2000.
in Case C-256/00 (Reference for a preliminary ruling from
the Cour d’appel de Bruxelles): Besix SA v Wasserreini-
gungsbau Alfred Kretzschmar GmbH & Co. KG (WAB-
AG), Planungs- und Forschungsgesellschaft Dipl. Ing.
        W. Kretzschmar GmbH & Co. KG (Plafog) (1)
(Brussels Convention — Article 5(1) — Jurisdiction in
matters relating to a contract — Place of performance of the
obligation in question — Obligation not to do something,
applicable without geographical limit — Undertakings given
by two companies not to bind themselves to other partners                                    JUDGMENT OF THE COURT
when tendering for a public contract — Application of
                              Article 2)
                                                                                (Fifth Chamber)
                           (2002/C 118/19)
                                                                                21 March 2002
                     (Language of the case: French)
                                                                            in Case C-267/00 (Reference for a preliminary ruling from
(Provisional translation; the definitive translation will be published      the High Court of Justice (England & Wales), Queen’s
                    in the European Court Reports)                          Bench Division (Crown Office)): Commissioners of Cus-
                                                                                toms and Excise v Zoological Society of London (1)
In Case C-256/00: Reference to the Court under the Protocol                 (Sixth VAT Directive — Article 13A(2)(a), second indent —
of 3 June 1971 on the interpretation by the Court of Justice of             Exempt transactions — Bodies managed and administered
the Convention of 27 September 1968 on Jurisdiction and the                                        on a voluntary basis)
Enforcement of Judgments in Civil and Commercial Matters
by the Cour d’Appel de Bruxelles (Belgium) for a preliminary
ruling in the proceedings pending before that court between
                                                                                (2002/C 118/20)
Besix SA and Wasserreinigungsbau Alfred Kretzschmar GmbH
& Co. KG (WABAG), Planungs- und Forschungsgesellschaft
Dipl. Ing. W. Kretzschmar GmbH & Co. KG (Plafog), on
the interpretation of Article 5(1) of the aforementioned                                       (Language of the case: English)
Convention of 27 September 1968 (OJ 1972 L 299, p. 32), as
amended by the Convention of 9 October 1978 on the
Accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland (OJ 1978
L 304, p. 1 and — amended version - p. 77), the Court,                      In Case C-267/00: Reference to the Court under Article 234
composed of: G.C. Rodrı́guez Iglesias, President, P. Jann,                  EC by the High Court of Justice of England and Wales, Queen’s


title: Case T-40/02: Action brought on 21 February 2002 by Banca di Roma spa against the Commission of the European Communities

text:
4.5.2002               EN                       Official Journal of the European Communities                                     C 109/59
The applicant claims that the Court should:                                European Communities on 21 February 2002 by Banca di
                                                                           Roma spa, represented by Franco Gallo and Gabriele Escalar,
(1) annul the contested decision, issued on 11 December                    lawyers.
      2001 by the Commission of the European Communities,
      on the grounds that it infringes essential procedural
      requirements and/or is unfounded, contradictory and/or               The applicant claims that the Court should:
      lacking in a statement of reasons in accordance with
      Article 253 of the EC Treaty in conjunction with                     —     primarily, annul the decision of the Commission of the
      Articles 87 and 88 and with Council Regulation                             European Communities which is contested in these
      No 659/1999;                                                               proceedings;
                                                                           —     alternatively, annul the decision of the Commission of
(2) alternatively, annul the decision in question wholly or in
                                                                                the European Communities which is contested in these
      part pursuant to the second paragraph of Article 230 of
                                                                                proceedings in so far as it requires Italy to ‘adopt all
      the EC Treaty, inasmuch as it infringes or misapplies
                                                                                necessary measures to recover the aid granted from the
      Article 87(1) or, in the further alternative, Article 87(3)(b)
                                                                                recipients thereof’;
      or (c) of the EC Treaty;
                                                                           —     order the defendant to pay the costs of these proceedings
(3) in the still further alternative, in the inconceivable event                 and all other consequential expenses.
      that the Court finds that the articles of Law No 461 of
      23 December 1998 and of Legislative Decree No 153 of
      17 May 1999, to which the contested decision relates,
      constitute a system of State aid which is incompatible               Pleas in law and main arguments
      with the common market, exempt the private benefici-
      aries of such aid from having to reimburse the same and,
      in any event, rule that the contested decision of the                The pleas in law and main arguments are the same as those
      Commission cannot have any retroactive effect, thus                  put forward in Case T-36/02 ABI v Commission.
      annulling certain parts of the contested decision on the
      grounds that the Commission failed to exercise its
      investigatory power in a reasonable way and/or failed
      to give sufficient reasons, alternatively infringed the
      principles of the protection of legitimate expectations
      and/or proportionality and/or legal certainty within the
      meaning of Article 14 of Regulation No 659/1999.
                                                                           Action brought on 21 February 2002 by Mediocredito
                                                                           Centrale spa against the Commission of the European
                                                                                Communities
Pleas in law and main arguments
                                                                                (Case T-41/02)
The pleas in law and main arguments are the same as those                                         (2002/C 109/114)
put forward in Case T-36/02 ABI v Commission.
                                                                                (Language of the case: Italian)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 21 February 2002 by Mediocredito
Action brought on 21 February 2002 by Banca di Roma                        Centrale spa, represented by Franco Gallo and Gabriele Escalar,
spa against the Commission of the European Communities                     lawyers.
                          (Case T-40/02)                                   The applicant claims that the Court should:
                        (2002/C 109/113)                                   —     primarily, annul the decision of the Commission of the
                                                                                European Communities which is contested in these
                                                                                proceedings;
                    (Language of the case: Italian)
                                                                           —     alternatively, annul the decision of the Commission of
                                                                                the European Communities which is contested in these
                                                                                proceedings in so far as it requires Italy to ‘adopt all
An action against the Commission of the European Communi-                        necessary measures to recover the aid granted from the
ties was brought before the Court of First Instance of the                       recipients thereof’;


title: Action brought on 16 May 1997 by the European Parliament against the Council of the European Union (Case C-189/97)

text:
No C 212/ 18          EN                   Official Journal of the European Communities                                   12 . 7 . 97
of the European Communities in Case T-35/96 between                   The applicant claims that the Court should:
L. B. Rasmussen and the Commission of the European
Communities was brought before the Court of Justice of                — annul Council Regulation ( EC ) No 408/97 of
the European Communities on 15 May 1997 by L. B.                          24 February 1997 on the conclusion of an Agreement
Rasmussen, represented by Carlo Revoldini, of the                         on cooperation in the sea fisheries sector between the
Luxembourg Bar, with an address for service in                            European Community and the Islamic Republic of
Luxembourg at the Chambers of the latter, 180 Route de                    Mauritania and laying down provisions for its
Longwy.                                                                   implementation (*),
The appellant claims that the Court should:                           — order the Council to pay the costs .
                                                                      Pleas in law and main arguments adduced in support:
— set aside the judgment of the Court of First Instance of
     18 March 1997 in Case T-35/96 (') in its entirety,               — Infringement of Article 228 of the EC Treaty: the
     including the ruling on costs,                                       Council could not conclude the agreement with
                                                                          Mauritania without first seeking and obtaining the
— annul the Commission's decision to annul the vacancy                    European Parliament's assent in accordance with the
     notice procedure for post COM/116/94,                                second subparagraph of Article 228 ( 3 ) of the EC
                                                                          Treaty. The agreement in question has important
                                                                          budgetary implications on account of the fact that the
— annul the decision to reserve the post at issue in that                 financial compensation provided for Mauritania alone
     vacancy notice for nationals of new Member States,                   amounts     to  a   share   in excess  of 20 %    of the
     and to publish a notice of Open Competition COM/A/                   appropriations under budget heading B7-8 0 0
     929 ( Head of Unit V.F.3 ),                                          ( International fisheries agreements ) provided for each
                                                                          financial year concerned hitherto .
— order the Commission to pay compensation for non                   — Breach of essential procedural requirements
     material damage,                                                     (consultation procedure not in compliance with the
                                                                          Treaty and no statement of reasons regarding the
— order the Commission to pay the costs.                                  Commission 's proposed amendment of the legal basis ).
                                                                      O OJ No L 62, 4 . 3 . 1997, p. 1 .
Pleas in law and main arguments adduced in support:
Infringement of Articles 4, 5 , 7, 25 , 27, 29 and 45 of the
Staff Regulations, the principle of non-retroactivity, and of
the obligation to have due regard for the welfare of
officials, and misuse of powers, in that the Court of First           Reference for a preliminary ruling from the Tribunal de
Instance gave faulty and insufficient reasoning in support            Première Instance de Namur by judgment of that court of
of provisions of the contested judgment and failed to reply           14 May 1997 in the case of Christelle Deliège v. ASBL
to arguments and pleas in law of the parties.                         Ligue Francophone de Judo et Disciplines Associées, ASBL
                                                                                Ligue Belge de Judo and François Pacquée
                                                                                ( Case C-191/97)
 n OJ No C 131 , 26 . 4 . 1997, p . 14 .
                                                                                ( 97/C 212/33 )
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by a judgment of the Tribunal de
                                                                      Premiere Instance de Namur ( Court of First Instance,
Action brought on 16 May 1997 by the European                         Namur) of 14 May 1997, which was received at the Court
   Parliament against the Council of the European Union               Registry on 20 May 1997, for a preliminary ruling in the
                                                                      case of Christelle Deliege v. ASBL Ligue Francophone de
                         ( Case C-189/97 )
                                                                      Judo et Disciplines Associees, ASBL Ligue Beige de Judo
                           ( 97/C 212/32 )                            and Francois Pacquee on the following question :
                                                                      Whether or not it is contrary to the Treaty of Rome, in
 An action against the Council of the European Union was              particular Articles 59, 85 and 86 of the Treaty, to require
 brought before the Court of Justice of the European                  a professional or semi-professional athlete or a person
 Communities on 16 May 1997 by the European                           aspiring to professional or semi-professional activity to be
 Parliament, represented by Gregorio Garzon Clariana,                 authorized by his federation in order to be able to
 Jurisconsult, C. Pennera, Head of its Legal Service, and H.          compete in an international competition in which national
 Kriick, also of its Legal Service, acting as Agents, with an         teams are not taking part.
 address for service in Luxembourg at the European
 Parliament, Mail and Registry Service, Batiment Tour.


title: Case T-266/04: Action brought on 1 July 2004 by the Kingdom of Spain v the Commission of the European Communities

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/36

         Action brought on 1 July 2004 by the Kingdom of Spain v the Commission of the European Communities
   (Case T-266/04)
   (2004/C 217/65)
   Language of the case: Spain
   An action against the Commission of the European Communities was brought before the Court of First Instance on 1 July 2004 by the Kingdom of Spain, with an address for service at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais, Luxembourg, represented by Fernando Díez Moreno, lawyer, acting as Agent.
   The applicant claims that the Court should:

               —

               Annul the Commission decision of 29 April 2004 as regards, in respect of Spain, the exclusion from financial compensation for withdrawal of fruit and vegetables (EUR 5 253 604.00); and the exclusion in respect of the arable crops sector and cattle premiums, with the exception of the sum relating to the 2000/2001 marketing year in La Rioja, in the arable crops sector (EUR 1 659 053.00), and

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The contested decision, in so far as it affects the applicant, involves four exclusions: (a) financial compensation for withdrawals of fruit and vegetables; (b) aid for the processing of lemons; (c) supplies of foodstuffs deriving from intervention stocks, intended for distribution to persons most in need; and (d) arable crops and cattle premiums. The present action relates only to the exclusion from financial compensation relating to withdrawals of fruit and vegetables (EUR 5 253 601, because of allegedly defective controls in Murcia and Valencia), and to the exclusion applied in relation to arable crops and cattle premiums, with the exception of the sum corresponding to the marketing year 2000/2001 in La Rioja in respect of arable crops, as a result of which the sum of which the exclusion is considered inappropriate in that sector is EUR 1 659 053.
   In support of its claims, Spain relies on the following legal grounds:

               —

               Financial compensation for withdrawals of fruit and vegetables
               Under this heading, Spain states that, although the Spanish authorities, as a result of a misinterpretation, did not inspect 100 % percent of the products withdrawn, they adopted the measures needed to adjust the procedure immediately after being advised of the error by the European Court of Auditors. In the applicant's view, it is not logical to penalise Spain for a misinterpretation of the legislation, which was rectified as soon as notice was given, in view of the fact, first, that the Spanish authorities were diligent in rectifying the problem detected by the Court of Auditors and, second, on-the-spot controls were carried out on a large percentage of products, in addition to the regulation checks.

               —

               Arable crops and cattle premiums
               Under this heading, Spain states that, pursuant to Article 7(4) of Regulation (EC) No 1258/99, in conjunction with Article 5(2) of Regulation (EEC) 729/70, all Basque Country expenditure relating to the 1998/1999 marketing year and the 1999/2000 marketing year should have been excluded from the financial correction, the payments in relation thereto having been made prior to 31 January 1999 and 31 January 2000 respectively. The same applies to La Rioja.
               Secondly, it is not readily apparent that, with regard to cattle premiums, the requirement of notification under Article 8 of Regulation (EEC) No 1663/95 was fulfilled.
               According to the Kingdom of Spain, the payments in respect of cattle premiums for the years 1998,1999 and 2000 had already been audited and dealt with under the 2000/2011 investigation. As regards the 1998,1999 and 2000 applications for the Basque Country, and the 1998 and 2000 applications for la Rioja, the Commission applied a financial correction without taking account of the fact that, when carrying out the abovementioned investigation, its staff had concluded that no financial correction was necessary as regards the abovementioned applications. Consequently, the aim now pursued by the 2000/2011 investigation is to reopen a case which had already been closed, with a different team from the EAGGF dealing with the same applications for 1998 to 2000, which have already been analysed, and even dealing with the same aspect of the application of penalties, and reaching different conclusions regarding the scope of the exclusion from financing.


title: Case T-498/09 P: Order of the General Court of 24 September 2010 — Kerstens v Commission (Appeal — Civil service — Officials — Promotion — 2005 promotion year — Award of priority points — Burden of proof — Rights of the defence — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/32

         Order of the General Court of 24 September 2010 — Kerstens v Commission
   (Case T-498/09 P) (1)

   (Appeal - Civil service - Officials - Promotion - 2005 promotion year - Award of priority points - Burden of proof - Rights of the defence - Appeal in part manifestly inadmissible and in part manifestly unfounded)
   2010/C 317/59
   Language of the case: French

      Parties

      Appellant: Petrus Kerstens (Overijse, Belgium) (represented by: C. Mourato, lawyer)

      Other party to the proceedings: European Commission (represented by: C. Berardis-Kayser and G. Berscheid, acting as Agents, and B. Wägenbaur, lawyer)

      Re:

   Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 September 2009 in Case F-102/07 Kerstens v Commission ECR-SC I-A-1-0000 and I-A-2-0000, seeking the setting aside of that judgment.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Petrus Kerstens is ordered to bear his own costs and to pay those incurred by the European Commission in the appeal proceedings.

      (1)  OJ C 51, 27.2.2010.


title: Judgment of the Court of 16 May 2000 in Case C-87/99 (reference for a preliminary ruling from the Tribunal Administratif, Luxembourg): Patrick Zurstrassen v Administration des Contributions Directes (Article 48 of the EC Treaty (now, after amendment, Article 39 EC) — Equal treatment — Income tax — Separate residence of spouses — Joint assessment to tax for married couples)

text:
C 233/4                  EN                     Official Journal of the European Communities                                             12.8.2000
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           of 16 May 2000                                                            (Sixth Chamber)
in Case C-87/99 (reference for a preliminary ruling from
                                                                                of 18 May 2000
the Tribunal Administratif, Luxembourg): Patrick
Zurstrassen v Administration des Contributions Direc-
                                                                           in Case C-107/97 (reference for a preliminary ruling
                                tes (1)                                    from the Tribunal de Grande Instance, Grasse): criminal
(Article 48 of the EC Treaty (now, after amendment, Artic-                 proceedings against Max Rombi and Arkopharma SA, the
le 39 EC) — Equal treatment — Income tax — Separate                                             party liable at civil law (1)
residence of spouses — Joint assessment to tax for married
                                                                           (Food supplements — Directive 89/398/EEC — Transposi-
                               couples)                                    tion — Conditions — Retention of previous national legisla-
                                                                                tion — Additive — L-Carnitine)
                           (2000/C 233/07)                                                            (2000/C 233/08)
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published                          (Language of the case: French)
                    in the European Court Reports)
In Case C-87/99, reference to the Court under Article 177 of               (Provisional translation: the definitive translation will be published
the EC Treaty (now Article 234 EC) by the Tribunal Admi-                                       in the European Court Reports)
nistratif (Administrative Court), Luxembourg, for a preliminary
ruling in the proceedings pending before that court between:
Patrick Zurstrassen and Administration des Contributions                   In Case C-107/97: reference to the Court under Article 177 of
Directes — on the interpretation of Article 48 of the EC Treaty            the EC Treaty (now Article 234 EC) from the Tribunal
(now, after amendment, Article 39 EC) and Article 1 of                     de Grande Instance (Regional Court), Grasse, France, for a
Regulation (EEC) No 1612/68 of the Council of 15 October                   preliminary ruling in the criminal proceedings pending before
1968 on freedom of movement for workers within the                         that court against Max Rombi and Arkopharma SA, the party
Community (OJ, English Special Edition 1968 (II), p. 475) —                liable at civil law, and as third parties the Union Fédérale des
the Court, composed of: J.C. Moitinho de Almeida, President                Consommateurs ‘Que choisir’ and the Organisation Générale
of the Third and Sixth Chambers, acting for the President,                 des Consommateurs (Orgeco) Union Départementale 06 —
D.A.O. Edward, L. Sevón and R. Schintgen, Presidents of                   on the interpretation of Council Directive 89/398/EEC of
Chambers, P.J.G. Kapteyn, C. Gulmann, G. Hirsch, H. Ragne-                 3 May 1989 on the approximation of the laws of the Member
malm, M. Wathelet (Rapporteur), V. Skouris and F. Macken,                  States relating to foodstuffs intended for particular nutritional
Judges; D. Ruiz-Jarabo Colomer, Advocate General; D. Louter-               uses (OJ 1989 L 186, p. 27) — the Court (Sixth Chamber),
man-Hubeau, Principal Administrator, for the Registrar, has                composed of: R. Schintgen, President of the Second Chamber,
                                                                           acting for the President of the Sixth Chamber, G. Hirsch
                                                                           (Rapporteur) and H. Ragnemalm, Judges; N. Fennelly, Advoca-
given a judgment on 16 May 2000, in which it ruled:                        te General; D. Louterman-Hubeau, Principal Administrator, for
Article 48(2) of the EC Treaty (now, after amendment, Article 39(2)        the Registrar, has given a judgment on 18 May 2000, in which
EC) and Article 7(2) of Regulation (EEC) No 1612/68 of the                 it has ruled:
Council of 15 October 1968 on freedom of movement for workers
within the Community preclude the application of national rules
under which, as regards income tax, the joint assessment to tax of         1.    Article 1(2) of Directive 89/398/EEC of 3 May 1989 on the
spouses who are not separated either de facto or by virtue of a judicial         approximation of the laws of the Member States relating to
decision is conditional on their both being resident on national                 foodstuffs intended for particular nutritional uses must be
territory and that tax advantage is denied to a worker who is resident           interpreted as meaning that food supplements such as those at
in that State, where he/she receives almost the entire income of the             issue in the main proceedings, which contain L-carnitine in
                                                                                high doses and which are marketed on the basis that they are
household, and whose spouse is resident in another Member State.                 suitable for a particular nutritional purpose, fall within the
                                                                                scope of the Directive unless the national court establishes that
                                                                                they are not suitable for the nutritional purposes that the
                                                                                manufacturer claims they are or that they do not fulfil the
                                                                                particular nutritional requirements of one of the categories of
(1) OJ C 160 of 5.6.1999.                                                        persons referred to in Article 1(2)(b)(i) and (ii) of the Directive.


title: Case C-221/11: Reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany) lodged on 11 May 2011 — Leyla Ecem Demirkan v Federal Republic of Germany

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/15

         Reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany) lodged on 11 May 2011 — Leyla Ecem Demirkan v Federal Republic of Germany
   (Case C-221/11)
   2011/C 232/25
   Language of the case: German

      Referring court

   Oberverwaltungsgericht Berlin-Brandenburg

      Parties to the main proceedings

      Applicant: Leyla Ecem Demirkan

      Defendant: Federal Republic of Germany

      Questions referred

               1.

               Does the passive freedom to provide services also fall within the scope of the concept of freedom to provide services within the meaning of Article 41(1) of the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey of 23 November 1970 (1) (Additional Protocol)?

               2.

               In the event that the first question is answered in the affirmative: does the protection of the passive freedom to provide services under the law on the Association Agreement, specifically pursuant to Article 41(1) of the Additional Protocol, also extend to Turkish nationals, who — like the claimant — do not wish to enter the Federal Republic of Germany in order to receive a specific service, but for the purposes of visiting relatives for a stay of up to three months and rely on the mere possibility of receiving services in the Federal territory?

      (1)  OJ 1972, L 293, p. 4 (no official translation published in English).


title: Judgment of the Court of First Instance of 24 April 2001 in Case T-159/98: Ivan Torre and Others v Commission of the European Communities (Officials — Competition — Irregularity in the manner in which the tests were conducted, such as to distort the results — Legal interest in bringing proceedings)

text:
C 227/16                EN                      Official Journal of the European Communities                                         11.8.2001
                                                          COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 24 April 2001
                          of 24 April 2001
                                                                           in Case T-37/99: Ugo Miranda v Commission of the
                                                                                European Communities (1)
in Case T-159/98: Ivan Torre and Others v Commission                       (Officials — Resettlement allowance — Meaning of resi-
               of the European Communities (1)                                                              dence)
                                                                                (2001/C 227/30)
(Officials — Competition — Irregularity in the manner in
which the tests were conducted, such as to distort the results
           — Legal interest in bringing proceedings)                                           (Language of the case: Italian)
                                                                           In Case T-37/99: Ugo Miranda, an official of the Commission
                                                                           of the European Communities, residing in Brussels, represented
                          (2001/C 227/29)                                  by L. Radicati di Brozolo, lawyer, with an address for service
                                                                           in Luxembourg, against Commission of the European Commu-
                                                                           nities (Agents: G. Valsesia and A. Dal Ferro) — application for
                                                                           annulment of the decision of the Commission of 7 May 1998,
                                                                           relating to the recovery of the resettlement allowance paid to
                    (Language of the case: French)                         the applicant by virtue of Article 6 of Annex VII to the Staff
                                                                           Regulations — the Court of First Instance (Single Judge:
                                                                           P. Mengozzi); J. Palacio González, Administrator, for the
                                                                           Registrar, gave a judgment on 24 April 2001, in which it:
In Case T-159/98: Ivan Torre, residing in Brussels, Donatella
Ineichen, residing in Brussels, Allessandro Cavallaro, residing            1.    dismisses the application;
in Rome, represented by M.-A. Lucas, avocat, with an address
for service in Luxembourg, v Commission of the European                    2.    orders each of the parties to bear their own costs.
Communities (Agents: J. Currall and C. Berardis-Kayser) —
application for annulment, first, of the decisions of the
selection board in competition EUR/A/123 awarding the                      (1) OJ C 121 of 1.5.99.
applicants a mark eliminating them from the initial pre-
selection test and, second, of the subsequent steps taken in
that competition, in so far as may be necessary in order to
restore the applicants’ rights — the Court of First Instance
(Fourth Chamber), composed of: P. Mengozzi, President,
and V. Tiili and R.M. Moura Ramos, Judges; G. Herzig,
Administrator, for the Registrar, has given a judgment on                      JUDGMENT OF THE COURT OF FIRST INSTANCE
24 April 2001, in which it:
                                                                                of 28 March 2001
1.    Declares that there is no longer any need to adjudicate on the
      present action in so far as concerns Mr Torre and Mr Cavallaro;      in Case T-144/99 Institute of Professional Representatives
                                                                           before the European Patent Office v Commission of the
                                                                                European Communities (1)
2.    Dismisses the action in so far as concerns Ms Ineichen;
                                                                           (Competition — Article 85 of the EC Treaty (now
3.    Orders the Commission to pay the costs.                              Article 81 EC) — Professional code of conduct — Ban on
                                                                                comparative advertising — Supply of services)
                                                                                (2001/C 227/31)
(1) OJ C 378 of 5.12.1998.
                                                                                (Language of the case: French)
                                                                           In Case T-144/99, Institute of Professional Representatives
                                                                           before the European Patent Office, established in Munich


title: Case C-473/11: Action brought on 16 September 2011 — European Commission v Kingdom of the Netherlands

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/13

         Action brought on 16 September 2011 — European Commission v Kingdom of the Netherlands
   (Case C-473/11)
   2011/C 347/19
   Language of the case: Dutch

      Parties

      Applicant: European Commission (represented by: L. Lozano Palacios and W. Roels, acting as Agents)

      Defendant: Kingdom of the Netherlands

      Form of order sought

               —

               Declare that, by applying a special VAT scheme for travel agents as provided for in resolution No B71/2260 of March 1971, the Kingdom of the Netherlands has failed to fulfil its obligations under Articles 43, 96, 98 and 306 to 310 of the VAT Directive (1);

               —

               order the Kingdom of the Netherlands to pay the costs.

      Pleas in law and main arguments

   The Commission takes the view that the Netherlands has failed to implement the special VAT scheme for travel agents. This is apparent from Decision No B71/2260 of 22 March 1971, as last amended, which clearly conflicts with the special scheme for travel agents provided for in Articles 306 to 310 of the VAT Directive.

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Case C-461/16 P: Appeal brought on 12 August 2016 by Moreda-Riviere Trefilerías, S.A. against the judgment of the General Court (Sixth Chamber) delivered on 2 June 2016 in Joined Cases T-426/10 to T-429/16 and T-438/12 to T-441/12, Moreda-Riviere Trefilerías and Others v Commission

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/19

         Appeal brought on 12 August 2016 by Moreda-Riviere Trefilerías, S.A. against the judgment of the General Court (Sixth Chamber) delivered on 2 June 2016 in Joined Cases T-426/10 to T-429/16 and T-438/12 to T-441/12, Moreda-Riviere Trefilerías and Others v Commission
   (Case C-461/16 P)
   (2016/C 392/23)
   Language of the case: Spanish

      Parties

      Appellant: Moreda-Riviere Trefilerías, S.A. (represented by: F. González Díaz, A. Tresandi Blanco and V. Romero Algarra, lawyers)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of 2 June 2016 in Cases T-426/10 to T-429/10 and, in particular, in Case T-426/10, Moreda-Riviere Trefilerías v Commission;

               —

               order the Commission to pay the costs incurred in both the present proceedings and the proceedings before the General Court.

      Grounds of appeal and main arguments

   On MRT’s status as successor:

               1.

               The General Court erred in law by applying an incorrect legal standard when assessing the issue of corporate succession and, in particular, MRT’s status as the successor of Trenzas y Cables.

               2.

               The General Court erred in law in the legal characterisation of the facts by holding MRT, as the alleged successor of Trenzas y Cables, liable for the latter’s conduct between 10 January 1993 and 19 October 1996.

               3.

               The General Court committed an error of law consisting in a failure to state reasons, by dismissing the appellant’s allegations regarding double penalisation.

         On the additional evidence:

               4.

               The General Court, in addition to committing an error of law by failing to apply the appropriate legal standard, also failed to state reasons in that it did not explain why the sworn statements of the managing directors of Trenzas y Cables relied on by MRT were insufficient.

               5.

               The General Court mischaracterised the facts, namely the impressions of competitors, in finding that those impressions constituted an additional indication, and were therefore legally relevant, in demonstrating the existence of an economic unit comprised of Trenzas y Cables PSC, GSW and the other companies owned by the latter. The General Court also committed an error of law by distorting the facts and the evidence relating to the perception of the competitors.

               6.

               The General Court mischaracterised the facts, namely the overlaps of staff between Trenzas y Cables, GSW and the companies owned by the latter, in finding that those overlaps constituted an additional indication, and were therefore legally relevant, in demonstrating that the companies owned by GSW were not autonomous with regard to their parent company.

               7.

               The General Court committed an error in law in its characterisation of certain facts, namely the meeting held between Trenzas y Cables and a competitor, by treating that meeting as an additional indication in order to demonstrate that Trenzas y Cables, to which MRT allegedly succeeded, quad non, formed part of an economic unit, of which GSW was the parent company.

         On the evidence adduced in order to rebut the presumption:

               8.

               The General Court erred in law in assessing the evidence, and in any event, infringed its obligations as regards judicial review, by rejecting the appellant’s argument that it did not form part of an economic unit comprised of Trenzas y Cables, GSW and the companies owned by the latter, without even assessing the evidence adduced in order to rebut the alleged presumption of decisive influence.

               9.

               The General Court committed an error of law consisting in infringing the appellant’s rights of defence by finding that, inasmuch as the Commission based its assessment of the appellant’s ability to pay on facts adduced and known by the latter, the Commission had respected the appellant’s right to be heard.

               10.

               The General Court erred in law in the assessment of the evidence and, in any event, did not exercise its powers of judicial review in accordance with law. In addition, the General Court erred in law by failing to fulfil its duty to state reasons. Lastly, and in any event, the General Court erred in law by distorting the facts and the evidence relating to the possibility of the appellant obtaining external financing.

               11.

               The General Court erred in law in assessing the evidence, and in any event, failed to fulfil its duty to exercise its powers of unlimited jurisdiction, by considering that the appellant had not provided the Commission with the information necessary to evaluate the assets of its shareholders. In addition, the General Court failed to state reasons since it did not explain why the Deloitte reports relied on by the appellant lacked evidential value.


title: Case T-669/13 P: Appeal brought on 17 December 2013 by the European Commission against the judgment of the Civil Service Tribunal of 7 October 2013 in Case F-97/12 Thomé v Commission

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/40

         Appeal brought on 17 December 2013 by the European Commission against the judgment of the Civil Service Tribunal of 7 October 2013 in Case F-97/12 Thomé v Commission
   (Case T-669/13 P)
   2014/C 52/76
   Language of the case: French

      Parties

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

      Other party to the proceedings: Florence Thomé (Brussels, Belgium)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               set aside the judgment of the Civil Service Tribunal of 7 October 2013 in Case F-97/12 Thomé v Commission;

               —

               dismiss the action brought by Ms Thomé in Case F-97/12 as inadmissible, or, in any event, as unfounded;

               —

               reserve the costs.

      Grounds of appeal and main arguments

   In support of the appeal, the appellant relies on five grounds of appeal.

               1.

               First ground of appeal, alleging infringement of the concept of an act adversely affecting an official. The Commission claims, first, that an act already annulled by the appointing authority in a complaints procedure is not open to being annulled in an action before a Court and, second, that a decision granting a claim of the person concerned cannot be qualified as an act adversely affecting an official (concerning paragraphs 28 to 37 of the judgment under appeal).

               2.

               Second ground of appeal, alleging, first, an error in law in the definition of the extent of the power of review of the appointing authority and of the Civil Service Tribunal with regard to the decisions of selection boards, and the Civil Service Tribunal’s power of judicial review and, second, a clear distortion of the subject-matter of the proceedings and a breach of the adversarial principle (concerning paragraphs 50 to 52 of the judgment under appeal). The Commission submits that the Civil Service Tribunal applied an erroneous test of judicial review to the decisions before it, namely decisions of the appointing authority, thus exceeding the limits of its judicial review.

               3.

               Third ground of appeal, alleging breach of the rules of law relating to the assessment of the existence of a university degree in accordance with the notice of competition (concerning paragraphs 56 to 58 of the judgment under appeal). The Commission claims that the Civil Service Tribunal erred in law by taking the professional value of a degree for its academic value and by considering that a non-official degree, such as a document issued by a private educational institution and not recognised for its academic value, must be taken into consideration by the appointing authority.

               4.

               Fourth ground of appeal, alleging breach of the obligation to state reasons in that the Civil Service Tribunal did not explain how, at the date of submission of her application, the degree of the applicant at first instance had complied with the condition laid down in the notice of competition, when that compliance had only been established subsequently, during the complaints procedure (concerning paragraphs 56, 57 and 60 to 64 of the judgment under appeal).

               5.

               Fifth ground of appeal, alleging errors in law in that the Civil Service Tribunal considered that the applicant at first instance had lost a chance of being recruited and must be compensated (concerning paragraph 74 of the judgment under appeal).


title: Case T-227/17: Action brought on 19 April 2017 — Falmouth University v Commission

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/29

         Action brought on 19 April 2017 — Falmouth University v Commission
   (Case T-227/17)
   (2017/C 221/42)
   Language of the case: English

      Parties

      Applicant: Falmouth University (Falmouth, United Kingdom) (represented by: V. Sloane, Barrister, F. Harmel, lawyer and T. Kotsonis, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission finding in relation to ERDF Programming Period 2007-2013, that irregularities had occurred in the operation ‘Enhancing the Creative Knowledge Base of Cornwall’ and that a flat-rate financial correction of 25 % was required;

               —

               order the European Commission to bear its own costs and to pay those incurred by the applicant.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission erroneously found that the selection criteria were in breach of Article 44(2) of Directive 2004/18/EC (1).

               2.

               Second plea in law, alleging that the Commission was not entitled to rely on the three additional alleged irregularities.

               3.

               Third plea in law, alleging that in any event, the Commission erroneously found there were three additional alleged irregularities.

               4.

               Fourth plea in law, alleging that the Commission has acted manifestly irrationally and disproportionately in deciding that the amount of the financial correction is 25 %.

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, 2004, p. 114)


title: Case T-288/13 P: Order of the General Court of 26 May 2014  — AK v Commission (Appeal — Civil service — Officials — Reports procedure — Career development report — Appraisal for the years 2001/2002, 2003, 2004, 2005 and 2008 — Delay in drawing up career development reports — Non-material damage — Loss of opportunity for promotion — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/59

         Order of the General Court of 26 May 2014 — AK v Commission
   (Case T-288/13 P) (1)

   ((Appeal - Civil service - Officials - Reports procedure - Career development report - Appraisal for the years 2001/2002, 2003, 2004, 2005 and 2008 - Delay in drawing up career development reports - Non-material damage - Loss of opportunity for promotion - Appeal in part manifestly inadmissible and in part manifestly unfounded))
   2014/C 315/99
   Language of the case: French

      Parties

      Appellant: AK (Esbo, Finland) (represented by: originally by D. de Abreu Caldas, S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, then by D. de Abreu and J.-N. Louis, lawyers)

      Other party to the proceedings: European Commission (represented by: G. Berscheid and C.Berardis-Kayser, Agents and B. Wägenbauer, lawyer)

      Re:

   Appeal against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 13 March 2013 in Case F-91/10 AK v Commission [2013] ECR II-0000 seeking the annulment of that judgment.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               AK is ordered to bear her own costs and to pay those incurred by the European Commission in the present proceedings.

      (1)  OJ C 233, 10.8.2013.


title: Case C-570/13: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 6 November 2013 — Karoline Gruber

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/5

         Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 6 November 2013 — Karoline Gruber
   (Case C-570/13)
   2014/C 24/09
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Karoline Gruber

      Defendant: Unabhängiger Verwaltungssenat für Kärnten

      Mitbeteiligte Partei: EMA Beratungs- und Handels GmbH

      Weitere Partei: Bundesminister für Wirtschaft, Familie und Jugend

      Questions referred

               1.

               Does European Union law, in particular Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (Directive 2011/92), (1) in particular Article 11 thereof, preclude a provision of national law under which a decision finding that a particular project does not require an environmental impact assessment is also binding on neighbours who did not have the status of parties in the previous proceedings for a declaratory decision and can be relied on as against them in subsequent development consent proceedings even though they have the opportunity to raise their objections to the project in those consent proceedings (the objection in the main proceedings being that the effects of the project will pose a risk to the appellant’s life, health or property or represent an unreasonable nuisance to her in the form of smell, noise, smoke, dust, vibration or otherwise)?
               If Question 1 is answered in the affirmative:

               2.

               Does European Union law, in particular Directive 2011/92, if applied directly, require that the binding effect referred to in Question 1 be invalidated?

      (1)  OJ 2012 L 26, p. 1.


title: Case C-45/11 P: Order of the Court (Fifth Chamber) of 7 December 2011 — Deutsche Bahn AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Application for registration of a Community trade mark consisting of a horizontal combination of the colours grey and red — Absolute grounds for refusal — Lack of distinctive character — Regulation (EC) No 207/2009 — Article 7(1)(b))

text:
               14.4.2012

               EN

               Official Journal of the European Union

               C 109/3

         Order of the Court (Fifth Chamber) of 7 December 2011 — Deutsche Bahn AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-45/11 P) (1)

   (Appeal - Community trade mark - Application for registration of a Community trade mark consisting of a horizontal combination of the colours grey and red - Absolute grounds for refusal - Lack of distinctive character - Regulation (EC) No 207/2009 - Article 7(1)(b))
   2012/C 109/05
   Language of the case: German

      Parties

      Appellant: Deutsche Bahn AG (represented by: Schmidt-Hern, Rechtsanwalt)

      Other party/parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

      Re:

   Appeal against the judgment of the General Court (Eighth Chamber) of 11 November 2010 in Case T-404/09 Deutsche Bahn v OHIM, by which that court dismissed the action for annulment of the decision of the First Board of Appeal of OHIM of 23 July 2009 dismissing the appeal against the examiner’s decision refusing to register a colour sign consisting of a combination of the colours grey and red as a Community trade mark for certain services in Class 39 — Distinctive character of a sign which is a combination of colours

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Deutsche Bahn AG is ordered to pay the costs.

      (1)  OJ C 130, 30.4.2011.


title: Judgment of the Court of First Instance of 25 September 2002 in Joined Cases T-201/00 and T-384/00: Agnès Ajour and others v Commission of the European Communities (Officials — Remuneration — Weighting for Ireland — Cost of living in Dublin — Articles 64 and 65 of the Staff Regulations)

text:
C 305/20                EN                        Official Journal of the European Communities                                      7.12.2002
                                                           COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 25 September 2002
                      of 26 September 2002
                                                                             in Joined Cases T-201/00 and T-384/00: Agnès Ajour and
in Case T-199/99: Sgaravatti Mediterranea Srl v Com-                            others v Commission of the European Communities (1)
           mission of the European Communities (1)
                                                                             (Officials — Remuneration — Weighting for Ireland —
                                                                             Cost of living in Dublin — Articles 64 and 65 of the Staff
(EAGGF — Cancellation of financial assistance —                                                           Regulations)
Article 24 of Regulation (EEC) No 4253/88 — Prior hearing
of the beneficiary — Appropriate examination of the case by
the Commission — Rights of the defence — Manifest error                                                 (2002/C 305/43)
of assessment — Statement of reasons — Principle of
protection of legitimate expectations — Principle of legality
           of penalties — Principle of proportionality)                                           (Language of the case: French)
                          (2002/C 305/42)
                                                                             In Joined Cases T-201/00 and T-384/00: Agnès Ajour, residing
                                                                             in Dublin, and 128 other officials and agents of the Com-
                                                                             mission of the European Communities, represented by
                    (Language of the case: Italian)
                                                                             J.-N. Louis and V. Peere, avocats, with an address for service in
                                                                             Luxembourg, against Commission of the European Communi-
                                                                             ties (Agent: J. Currall), supported by Council of the European
                                                                             Union (Agents A. Pilette and F. Anton) — application for the
                                                                             annulment of the decisions of the Commission drawing up the
                                                                             pay slips of the applicants in respect of September and
In Case T-199/99, Sgaravatti Mediterranea Srl, established in                December 1999 and of the decisions of the Commission
Capoterra (Italy), represented by M. Merola and P.A.M. Ferrari,              drawing up, pursuant to Council Regulation (EC, ECSC,
lawyers, with an address for service in Luxembourg, v Com-                   Euratom) No 2700/1999 of 17 December 1999 adjusting
mission of the European Communities (Agents: initially                       with effect from 1 July 1999 the remuneration and pensions
F.P. Ruggeri Laderchi, J. Guerra Fernández, L. Visaggio, and                 of officials and other servants of the European Communities
M. Moretto, and, subsequently, C. Cattabriga and M. Moretto):                and the weightings applied thereto (OJ 1999 L 327, p. 1), back
Application for annulment of Commission Decision C(1999)                     pay for the applicants in respect of the period from 15 May to
1502 of 4 June 1999 cancelling financial assistance previously               31 December 1999 and the pays slips drawn up in respect of
granted to the applicant by the European Agricultural Guid-                  the applicant since January 2000 — the Court of First Instance
ance and Guarantee Fund, Guidance Section (EAGGF Guidance                    (Second Chamber), composed of R.M. Moura Ramos, President,
Section), the Court of First Instance (Fifth Chamber), composed              J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator,
of: J.D. Cooke, President, R. García-Valdecasas and P. Lindh,                for the Registrar, gave a judgment on 25 September 2002, the
Judges; J. Palacio González, Administrator, for the Registrar,               operative part of which is as follows:
has given a judgment on 26 September 2002, in which it:
                                                                             1.     There is no need to adjudicate on Case T-201/00 with regard
1.     Dismisses the action;                                                        to Mr Kienersberger and his dependants.
                                                                             2.     The applications are dismissed.
2.     Orders the applicant to pay all the costs.
                                                                             3.     The parties shall bear their own costs.
( 1) OJ C 333 of 20.11.1999.
                                                                             (1 ) OJ C 285 of 7.10.2000 and OJ C 45 of 10.2.2001.


title: Case T-349/10: Action brought on 26 August 2010 — Milux v OHMI (OVUMCONTROL)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/53

      Action brought on 26 August 2010 — Milux v OHMI (OVUMCONTROL)
      (Case T-349/10)
      ()
      (2010/C 288/98)
      Language of the case: English

         Parties

         Applicant: Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

         Form of order sought

                  —

                  Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 June 2010 in case R 1436/2009-4;

                  —

                  Order the defendant to pay the costs.

         Pleas in law and main arguments

         Community trade mark concerned: The word mark ‘OVUMCONTROL’ for goods and services in classes 9, 10 and 44

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

         Decision of the Board of Appeal: Dismissed the appeal

         Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts in this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.


title: Judgment of the Court of 23 November 1999 in Joined Cases C-369/96 and C-376/96 (reference for a preliminary ruling from the Tribunal Correctionnel de Huy): Criminal proceedings against Jean-Claude Arblade, Arblade & Fils SARL, as the party civilly liable (C-369/96), and Bernard Leloup, Serge Leloup, Sofrage SARL, as the party civilly liable (C-376/96) (Freedom to provide services — Temporary deployment of workers for the purposes of performing a contract — Restrictions)

text:
19.2.2000                EN                     Official Journal of the European Communities                                                C 47/9
                  JUDGMENT OF THE COURT                                        pay, in respect of each worker deployed, employers’ contributions
                                                                               to schemes such as the Belgian ‘timbres-intempéries’ and
                                                                               ‘timbres-fidélité’ schemes, and to issue to each of such workers an
                       of 23 November 1999                                     individual record, where the undertaking in question is already
                                                                               subject, in the Member State in which it is established, to
                                                                               obligations which are essentially comparable, as regards their
in Joined Cases C-369/96 and C-376/96 (reference for a                         objective of safeguarding the interests of workers, and which
preliminary ruling from the Tribunal Correctionnel de                          relate to the same workers and the same periods of activity.
Huy): Criminal proceedings against Jean-Claude Arblade,
Arblade & Fils SARL, as the party civilly liable (C-369/96),
and Bernard Leloup, Serge Leloup, Sofrage SARL, as the                     3. Articles 59 and 60 of the Treaty preclude the imposition by a
                 party civilly liable (C-376/96) (1)                           Member State on an undertaking established in another Member
                                                                               State, and temporarily carrying out work in the first State, of an
                                                                               obligation — even if laid down in public-order legislation — to
(Freedom to provide services — Temporary deployment of                         draw up social or labour documents such as labour rules, a
workers for the purposes of performing a contract —                            special staff register and an individual account for each worker in
                            Restrictions)                                      the form prescribed by the rules of the first State, where the social
                                                                               protection of workers which may justify those requirements is
                           (2000/C 47/15)                                      already safeguarded by the production of social and labour
                                                                               documents kept by the undertaking in question in accordance
                                                                               with the rules applying in the Member State in which it is
                                                                               established.
                     (Language of the case: French)
                                                                               That is the position where, as regards the keeping of social and
                                                                               labour documents, the undertaking is already subject, in the
(Provisional translation; the definitive translation will be published         Member State in which it is established, to obligations which are
                    in the European Court Reports)                             comparable, as regards their objective of safeguarding the interests
                                                                               of workers, to those imposed by the legislation of the host
                                                                               Member State, and which relate to the same workers and the
In Joined Cases C-369/96 and C-376/96: reference to the                        same periods of activity.
Court under Article 177 of the EC Treaty (now Article 234
EC) from the Tribunal Correctionnel de Huy (Huy Criminal
Court) (Belgium) for a preliminary ruling in the criminal                  4. Articles 59 and 60 of the Treaty do not preclude the imposition
proceedings pending before that court against Jean-Claude                      by a Member State on an undertaking established in another
Arblade, Arblade & Fils SARL, as the party civilly liable                      Member State, and temporarily carrying out work in the first
(C-369/96), and Bernard Leloup, Serge Leloup, Sofrage SARL,                    State, of an obligation to keep social and labour documents
as the party civilly liable (C-376/96) — on the interpretation                 available, throughout the period of activity within the territory of
of Articles 59 of the EC Treaty (now, after amendment,                         the first Member State, on site or in an accessible and clearly
Article 49 EC) and 60 of the EC Treaty (now Article 50 EC) —                   identified place within the territory of that State, where such a
the Court, composed of: G.C. Rodrı́guez Iglesias, President,                   measure is necessary in order to enable it effectively to monitor
J.C. Moitinho de Almeida, D.A.O. Edward (Rapporteur) and                       compliance with legislation of that State which is justified by the
R. Schintgen (Presidents of Chambers), J.-P. Puissochet,                       need to safeguard the social protection of workers.
G. Hirsch, P. Jann, H. Ragnemalm and M. Wathelet, Judges;
D. Ruiz-Jarabo Colomer, Advocate General; D. Louterman-
Hubeau, Principal Administrator, for the Registrar, has given a            5. Articles 59 and 60 of the Treaty preclude the imposition by a
judgment on 23 November 1999, in which it has ruled:                           Member State on an undertaking established in another Member
                                                                               State, and temporarily carrying out work in the first State, of an
1. Articles 59 of the EC Treaty (now, after amendment, Article 49              obligation — even if laid down in public-order legislation — to
     EC) and 60 of the EC Treaty (now Article 50 EC) do not                    retain, for a period of five years after the undertaking in question
     preclude the imposition by a Member State on an undertaking               has ceased to employ workers in the first Member State, of social
     established in another Member State, and temporarily carrying             documents such as a staff register and individual accounts, at the
     out work in the first State, of an obligation to pay the workers          address within that Member State of a natural person who holds
     deployed by it the minimum remuneration fixed by the collective           those documents as an agent or servant.
     labour agreement applicable in the first Member State, provided
     that the provisions in question are sufficiently precise and
     accessible that they do not render it impossible or excessively
     difficult in practice for such an employer to determine the           (1) OJ C 9 of 11.1.1997.
     obligations with which he is required to comply.                          OJ C 40 of 8.2.1997.
2. Articles 59 and 60 of the Treaty preclude the imposition by a
     Member State on an undertaking established in another Member
     State, and temporarily carrying out work in the first State, of an
     obligation — even if laid down in public-order legislation — to


title: Case T-42/05: Action brought on 31 January 2005 by Rhiannon Williams against the Commission of the European Communities

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/34

         Action brought on 31 January 2005 by Rhiannon Williams against the Commission of the European Communities
   (Case T-42/05)
   (2005/C 93/65)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 31 January 2005 by Rhiannon Williams, residing in Brussels (Belgium), represented by S. Crosby and C. Bryant Solicitors.
   The applicant claims that the Court should:

               —

               annul the decision of the Commission of 19 November 2004 to refuse to give access to the documents which, although not identified in the contested decision, must be presumed to exist;

               —

               annul the decision of the Commission of 19 November 2004 to refuse to give access to all or any of documents 9, 16, 17, 27, 29, 32, 33, 34 and 46, as identified in the contested decision;

               —

               order the defendant to pay the applicant's costs.

         Pleas in law and main arguments
   The applicant is a doctoral research fellow and is carrying out a project on the impact of globalisation on Community environment and development cooperation law and policy. For this, the applicant has asked for access to documents in order to review the background to recent legislation about genetically modified organisms (GMO). Following the request of the applicant, access to only part of the documents was granted.
   In support of her application, the applicant submits an infringement of Article 8 of Regulation No 1049/2001 (1) and a failure to state reasons in accordance with Article 253 EC. According to the applicant, the Commission has given an incomplete reply to the request for access and did not identify all the documents included within its scope. The applicant claims that other documents exist, for which no reasons for refusal of access have been given and no exceptions have been invoked.
   The applicant furthermore submits that the Commission erred in law and misapplied the exception under the second paragraph of Article 4(3) and the third indent of Article 4(1)(a) of Regulation No 1049/2001. The applicant also submits that the Commission failed to state reasons and erred in considering that disclosure would seriously undermine the decision making process, that there is no overriding public interest in disclosure of the documents and that the documents in question would weaken the Commission's position before the WTO panel on the de facto moratorium on the approval and marketing of biotech products.
   The applicant also submits an infringement of the principle of proportionality and a failure to state reasons in not considering partial access to the documents.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, p. 43).


title: Case T-277/04: Action brought on 9 July 2004 by Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/41

         Action brought on 9 July 2004 by Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-277/04)
   (2004/C 300/82)
   Language of the case to be determined in accordance with Article 131(2) of the Rules of Procedure — Language in which the application is drafted: German.
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 9 July 2004 by Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG, whose registered office is in Bremen (Germany), represented by U. Sander, lawyer.
   The other party before the Board of Appeal was Johnson's Veterinary Products Limited, Sutton Coldfield (United Kingdom).
   The applicant claims that the Court should:

               —

               annul the decision of the First Board of Appeal of 27 April 2004 in Case R 560/2003-1;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:

               Applicant for the Community trade mark:

               Johnson's Veterinary Products Limited

               Community trade mark applied for:

               The word mark ‘VITACOAT’ for goods in Classes 3, 5 and 21 (shampoos, conditioners, preparations for the hair and skin, deodorants, preparations for killing mites, lice, fleas and other parasites, all for animals, as well as brushes and combs for animals)

               Proprietor of the mark or sign asserted by way of opposition:

               The applicant

               Mark or sign asserted by way of opposition:

               The German word mark ‘VITAKRAFT’

               Decision of the Opposition Division:

               Rejection of the notice of opposition

               Decision of the Appeal Board:

               Dismissal of the applicant's appeal

               Pleas in law:

                           —

                           infringement of Article 8(1)(b) of Regulation (EC) No 40/94;

                           —

                           incorrect assessment of the original distinctive character of the mark asserted by way of opposition and of its enhanced distinctive character arising from the use which has been made of it;

                           —

                           incorrect assessment of the impact of the fact that the marks at issue are identical as regards the first part – ‘VITA’;

                           —

                           incorrect assessment of the aural and conceptual similarity of the marks at issue;

                           —

                           failure to take into consideration the fact that the goods concerned are largely identical.


29.6.2002              EN                     Official Journal of the European Communities                                   C 156/39
       Removal from the register of Case T-34/01 (1)                            Removal from the register of Case T-37/01 (1)
                        (2002/C 156/72)                                                          (2002/C 156/73)
                   (Language of the Case: French)                                          (Language of the Case: English)
By order of 15 April 2002 the President of the Fourth Chamber
of the Court of First Instance of the European Communities               By order of 14 March 2002 the President of the Second
ordered the removal from the register of Case T-34/01: Anna              Chamber of the Court of First Instance of the European
Maria Roccato v Commission of the European Communities.                  Communities ordered the removal from the register of Case
                                                                         T-37/01: Takeda Chemical Industries Ltd v Office for Harmon-
                                                                         isation in the Internal Market (Trade Marks and Designs).
(1) OJ C 108 of 7.4.2001.
                                                                         (1) OJ C 150 of 19.5.2001.