title: Case C-467/15 P: Appeal brought on 3 September 2015 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 24 June 2015 in Case T-527/13 Italy v Commission

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/14

         Appeal brought on 3 September 2015 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 24 June 2015 in Case T-527/13 Italy v Commission
   (Case C-467/15 P)
   (2015/C 406/15)
   Language of the case: Italian

      Parties

      Appellant: European Commission (represented by: V. Di Bucci and P. Němečková, Agents)

      Other party to the proceedings: Italian Republic

      Form of order sought

   The Commission claims that the Court of Justice should:

               —

               set aside the judgment of the General Court (Third Chamber) of 24 June 2015, of which the Commission was notified on the same day, in Case T-527/13 Italian Republic v Commission;

               —

               dismiss the action brought at first instance and order the Italian Republic to pay the costs of both sets of proceedings.

      Pleas in law and main arguments

               1.

               The General Court unlawfully reinterpreted and reclassified the second plea in law relied on at first instance. In doing so, the General Court infringed the principle that the action is confined to the subject-matter as delimited in the application and the rule prohibiting the Court from raising of its own motion a plea relating to the substantive legality of the decision which the applicant did not raise in good time in the application.

               2.

               The General Court infringed Article 108 TFEU and Article 1 of Council Regulation (EC) No 659/1999, (1) in relation to the concepts of new and existing aid. In particular, it erred in considering that aid may be considered to be existing aid even though a condition laid down by the decision declaring that aid compatible was infringed. Accordingly, the General Court ignored the settled case-law to the effect that mere failure to comply with such conditions is sufficient for it to be found that there is new aid and, in the absence of new facts enabling a different assessment to be made, justifies a new decision declaring the aid incompatible.
               Furthermore, after correctly rejecting the claims concerning an alleged failure to give reasons, the General Court contradicted that assessment by criticising the Commission for failing to demonstrate that the breach of the condition altered the substance of the scheme adopted by the Council and, on that basis, erred in considering that it could partially annul the decision on the ground of an error of law.
               The General Court failed to take due account of the institutional balance between the Council and the Commission provided for in Article 108 TFEU. When the Council, acting unanimously, uses its authority to declare aid, exceptionally, to be compatible with the internal market but makes the declaration of compatibility subject to compliance with certain conditions, the Commission may not decide whether those conditions are in fact essential or whether their infringement may be overlooked.

               3.

               The General Court infringed Article 108 TFEU and Articles 4, 6, 7, 14 and 16 of Regulation No 659/1999 concerning the procedures applicable to new aid and misused aid.
               Having acknowledged that failure, by a Member State, to comply with the conditions imposed when the aid was approved constitutes a form of misuse of that aid, the General Court dismissed the relevance of the provisions concerning the procedure for examining misused aid on the basis that the Commission did not base its decision on those provisions and on the basis of the view that the concepts of new and misused aid are mutually exclusive. However, the provisions relating to misused aid and those relating to new aid are identical, in so far as they are relevant to the present case. The General Court therefore erred in law by partially annulling the decision on the ground of an error in the classification of the aid, which was of no legal consequence.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case C-202/02 P: Appeal brought on 31 May 2002 by (1) Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH, (2) Isoplus Fernwärmetechnik Gesellschaft mbH and (3) Isoplus Fernwärmetechnik GmbH against the judgment delivered on 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-9/99 between HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG, HFB Holding für Fernwärmtechnik Beteiligungsgesellschaft mbH, Verwaltungsgesellschaft, Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft mbH und Isoplus Fernwärmetechnik GmbH and the Commission of the European Communities

text:
C 202/2                 EN                      Official Journal of the European Communities                                        24.8.2002
The appellant claims that the Court should:                                      It is not denied that the wording of Article 15(2) of
                                                                                Regulation No 17 does not contain an express limit on
—     Amend Article 3 of Commission Decision 1999/60/EC                          turnover within the EU. However, an understanding of
      of 21 October 1998 relating to a proceeding under                          the meaning of that relevant turnover has taken form
      [former] Article 85 of the EC Treaty (Case No IV/35.691/                   over the course of the years to such a degree that this
      E-4: — Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) in                  understanding has assumed the character of a customary
      such a way as to reduce the fine of ECU 1 475 000 im-                      practice which cannot, in the absence of additional
      posed on the appellant;                                                    factors, be amended with retroactive effect.
—     In the alternative, in relation to the first head of claim: set      —     Formal error: even though the Court of Justice might
      aside the judgment of the Court of First Instance and                      uphold the Court of First Instance’s acceptance of the
      remit the case for further consideration of the question                   manner in which the Commission applied the guidelines,
      of the level of the fine;                                                  the Court of First Instance erred in failing to accept that
                                                                                application of those guidelines with retroactive effect
—     Order the Commission to pay the costs incurred by                          amounts to an infringement of the audi alteram partem
      Dansk Rørindustri A/S in the proceedings before the two                    principle inasmuch as the appellant did not have any
      Community Courts.                                                          opportunity to state its views on this amended practice.
                                                                           (1) OJ 1999 C 100, p. 19.
Pleas in law and main arguments                                            (2) First Council Regulation implementing Articles 85 and 86 of the
                                                                               Treaty, OJ English Special Edition 1959-1962, p. 87.
Misconstruction of the law, consisting in an endorsement of                (3) Commission Information of January 1998 on Guidelines on the
                                                                               Method of setting Fines imposed pursuant to Article 15(2) of
the Commission’s setting of the fine, by which the Court of                    Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998
First Instance                                                                 C 9, p. 3).
—     set aside Regulation No 17 (2) in conjunction with the
      generally applicable principles of proportionality and
      equality by imposing on Dansk Rørindustri a fine which,
      by virtue of its relative amount, is disproportionate to the
      infringement committed;
                                                                           Appeal brought on 31 May 2002 by (1) Isoplus Fernwär-
—     set aside Regulation No 17 in conjunction with the                   metechnik Vertriebsgesellschaft mbH, (2) Isoplus
      general principle of protection of legitimate expectations           Fernwärmetechnik Gesellschaft mbH and (3) Isoplus
      by applying principles governing the imposition of                   Fernwärmetechnik GmbH against the judgment delivered
      fines (3) which were substantially altered in relation to the        on 20 March 2002 by the Fourth Chamber of the Court
      principles in force at the time of the unlawful conduct              of First Instance of the European Communities in Case
      and when the case was brought: it is not in accordance               T-9/99 between HFB Holding für Fernwärmetechnik
      with the purpose behind the Treaty and Regulation No 17              Beteiligungsgesellschaft mbH & Co. KG, HFB Holding für
      to apply guidelines on the level of fines that are drafted           Fernwärmtechnik Beteiligungsgesellschaft mbH, Verwal-
      in such a way that the intended and mandatory gradation              tungsgesellschaft, Isoplus Fernwärmetechnik Vertriebs-
      has no value or meaning whatsoever for small undertak-               gesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
      ings. This, in the first place, gives rise to blatant and            mbH und Isoplus Fernwärmetechnik GmbH and the
      unreasonable discrimination against smaller undertakings                       Commission of the European Communities
      and, second, has the result that the intended and manda-
      tory gradation according to, inter alia, degree of guilt and                                 (Case C-202/02 P)
      passage of time no longer serves any purpose and is
      rendered subordinate to a determination calculated in an                                      (2002/C 202/03)
      entirely automatic manner.
      The fact that the Court of First Instance reduced the factor
      for the duration of the infringement without that having             An appeal against the judgment delivered on 20 March 2002
      any significance whatsoever demonstrates that a gra-                 by the Fourth Chamber of the Court of First Instance of the
      dation of the fine imposed on Dansk Rørindustri in line              European Communities in Case T-9/99 between HFB Holding
      with the scope of the infringement did not and cannot                für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG,
      take place if the guidelines are applied schematically               HFB Holding für Fernwärmtechnik Beteiligungsgesellschaft
      without any account whatever being taken of the size of              mbH, Verwaltungsgesellschaft, Isoplus Fernwärmetechnik Ver-
      the undertaking.                                                     triebsgesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
                                                                           mbH und Isoplus Fernwärmetechnik GmbH and the Com-
      It is grotesque that ABB, as the instigator, had its fine            mission of the European Communities was brought before the
      reduced as a result of cooperation consisting to a large             Court of Justice of the European Communities on 31 May
      extent in implicating the other cartel participants and              2002 by Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH,
      exaggerating their participation, where several of the               Isoplus Fernwärmetechnik Gesellschaft mbH and Isoplus
      other undertakings involved at ABB’s instigation and                 Fernwärmetechnik GmbH, represented by P. Krömer and
      retained in the cartel were forced after the Cartel case to          F. Nusterer, Rechtsanwälte, with an address for service in
      withdraw from the market.                                            Luxembourg.
 ---pagebreak--- 24.8.2002               EN                    Official Journal of the European Communities                                         C 202/3
The appellant claims that the Court should:                              —      Procedural errors:
                                                                                —    In regard to the applications for evidence to be
1.    Set aside the judgment of the Fourth Chamber of the                            taken: the Court of First Instance omitted to hear
      Court of First Instance of the European Communities of                         the evidence of witnesses named by the applicants
      20 March 2002 in Case T-9/99 (application for annul-                           in connection with statements in certain paragraphs
      ment of Commission Decision 1999/60/EC of 21 Octo-                             of the application. In the present case — if the legal
      ber 1998 relating to a proceeding under Article 85 of the                      view is taken that there were no applications in due
      EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe                         form for the taking of evidence, which is denied, in
      Cartel) (OJ 1999 L 24, p. 1) or, in the alternative,                           the correct exercise of its discretion the Court of
      reduction of the fine imposed on the applicants (appel-                        First Instance was at any rate obliged of its own
      lants) in Articles 2, 3 and 4 of the operative part of the                     motion to hear the witness evidence of the persons
      decision) and annul in its entirety Decision 1999/60/                          named
      EC of 21 October 1998 adopted by the Commission
      (respondent) relating to a proceeding under Article 85 of                 —    The grounds on which the judgment appealed
      the EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated                          against is based contain as to certain points on
      Pipe Cartel) (OJ 1999 L 24, p. 1);                                             findings which conflict with the documents before
                                                                                the Court.
2.    In the event, set aside the judgment of the Fourth
      Chamber of the Court of First Instance of the European
      Communities of 20 March 2002 in Case T-9/99 (appli-
      cation for annulment of Commission Decision 1999/60/
      EC of 21 October 1998 relating to a proceeding under               Appeal brought on 3 June 2002 by KE KELIT Kunst-
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —              stoffwerke Gesellschaft m.b.H against the judgment deliv-
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in             ered on 20 March 2002 by the Fourth Chamber of the
      the alternative, reduction of the fine imposed on the              Court of First Instance of the European Communities
      applicants (appellants) in Articles 2, 3 and 4 of the              in Case T-17/99 between KE KELIT Kunststoffwerke
      operative part of the decision) and refer the present case         Gesellschaft m.b.H and the Commission of the European
      back to the Court of First Instance for further proceedings                                   Communities
      and a fresh judgment;                                                                      (Case C-205/02 P)
3.    In the event, set aside the judgment of the Fourth                                          (2002/C 202/04)
      Chamber of the Court of First Instance of the European
      Communities of 20 March 2002 in Case T-9/99 (appli-                An appeal against the judgment delivered on 20 March 2002
      cation for annulment of Commission Decision 1999/60/               by the Fourth Chamber of the Court of First Instance of the
      EC of 21 October 1998 relating to a proceeding under
                                                                         European Communities in Case T-17/99 between KE KELIT
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —              Kunststoffwerke Gesellschaft m.b.H and the Commission of
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in the         the European Communities (1) was brought before the Court
      alternative, for reduction of the fine imposed on the
                                                                         of Justice of the European Communities on 3 June 2002 by
      applicants (appellants) in Article 2 of the operative part         KE KELIT Kunststoffwerke Gesellschaft m.b.H, represented by
      of the decision) and reduce the amount of the fine(s)              Dr Walter Löbl, of Grassner Lenz Thewanger & Partners in
      imposed on the ‘Henss/Isoplus-group’ or the appellants
                                                                         Linz, with an address for service in Luxembourg at the
      in Articles 3(d) and 5(d) of Commission Decision 1999/             Chambers of Linklaters Loesch.
      60/EC of 21 October 1998 relating to a proceeding under
      Article 85 of the EC Treaty (Case No IV/35.691/E-4: —
                                                                         The appellant claims that the Court should:
      Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1);
                                                                         Annul the judgment of the Court of First Instance of the
4.    Order the Commission of the European Communities —                 European Communities of 20 March 2002, served on
      respondent — to pay the costs including the costs of the           26 March 2002, in Case T-17/99 KE KELIT Kunststoffwerke
      appeal proceedings.                                                Gesellschaft m.b.H v Commission of the European Communi-
                                                                         ties (application for annulment of Commission Decision 1999/
                                                                         60/EC of 21 October 1998 relating to a proceeding under
                                                                         Article 85 of the EC Treaty (Case No IV/35.691/E-4: — Pre-
                                                                         Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) or, in the alternative,
Pleas and main arguments                                                 reduction of the fine imposed on the applicant in that
                                                                         decision), in so far as it concerns the appellant (applicant);
—     Infringement of Community law: The appellants maintain             in the event,
      their submissions in connection with the objection of
      illegality of the guidelines on the method of setting fines        —      Set aside that judgment and refer the case back to the
      imposed pursuant to Article 15(2) of Regulation No 17,                    Court of First Instance for resumption of proceedings;
      on infringement of the right to be heard in connection             in the event,
      with application of the guidelines, on infringement of
      Article 15(2) of Regulation No 17 and on infringement              —      reduce the fine imposed on KE KELIT Kunststoffwerke
      of Article 81 EC.                                                         Gesellschaft m.b.H,


               30.4.2004

               EN

               Official Journal of the European Union

               C 106/89

         Removal from the register of Case T-184/03 (1)

   (2004/C 106/179)

      (Language of the case: Spanish)

   By order of 2 March 2004, the President of the Fourth Chamber of the Court of First Instance of the European Communities has ordered the removal from the register of Case T-184/03: Metrovacesa, S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      (1)  OJ C 184 of 2.8.2003.


title: Case C-513/15: Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas lodged on 25 September 2015 in the administrative proceedings for review of legality between Agrodetalė UAB and Lietuvos Respublikos žemės ūkio ministerija

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/20

         Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas lodged on 25 September 2015 in the administrative proceedings for review of legality between Agrodetalė UAB and Lietuvos Respublikos žemės ūkio ministerija
   (Case C-513/15)
   (2015/C 414/25)
   Language of the case: Lithuanian

      Referring court

   Lietuvos vyriausiasis administracinis teismas

      Parties to the main proceedings

      Interested parties: Agrodetalė UAB, Lietuvos Respublikos žemės ūkio ministerija

      Questions referred

               1.

               Do the provisions of Directive 2003/37/EC (1) of the European Parliament and of the Council of 26 May 2003 on type-approval of agricultural or forestry tractors, their trailers and interchangeable towed machinery, together with their systems, components and separate technical units and repealing Directive 74/150/EEC apply to the supply to the EU market and registration of used or second-hand vehicles manufactured outside the European Union or can Member States regulate the registration of such vehicles in a Member State by special national rules and impose requirements applicable to such registration (for example, the obligation to comply with the requirements of Directive 2003/37/EC)?

               2.

               Can Article 23(1)(b) of Directive 2003/37/EC of the European Parliament and of the Council of 26 May 2003 on type-approval of agricultural or forestry tractors, their trailers and interchangeable towed machinery, together with their systems, components and separate technical units and repealing Directive 74/150/EEC, read in conjunction with Article 2(q) thereof, be interpreted as laying down that the provisions of the directive are applicable to machinery in categories Tl, T2 and T3 manufactured after 1 July 2009?

      (1)  OJ 2003 L 171, p. 1.


title: Case T-430/03: Order of the Court of First Instance of 20 December 2007 — Dascalu v Commission (Staff cases — Officials — Interlocutory judgment — No need to adjudicate)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/38

         Order of the Court of First Instance of 20 December 2007 — Dascalu v Commission
   (Case T-430/03) (1)

   (Staff cases - Officials - Interlocutory judgment - No need to adjudicate)
   (2008/C 64/61)
   Language of the case: French
   Parties

      Applicant: Iosif Dascalu (Kraainem, Belgium) (represented by: N. Lhoëst, lawyer)

      Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and L. Lozano Palacios, originally, and subsequently by C. Berardis-Kayser and H. Krämer, Agents)
   Re:
   First, application for annulment of the Commission's decisions of 23 December 2002 and 14 April 2003 altering the applicant's classification in grade, in so far as they fix his classification in step on recruitment in step 1 of Grade A6, and fix 5 October 1995 as the date on which the decisions were to have pecuniary effect, and did not re-establish the applicant's career grade and, in so far as necessary, an application for annulment of the decisions rejecting the applicant's complaints and, second, an application for compensation for the damage allegedly caused by those decisions
   Operative part of the order

               1.

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

               2.

               The Commission shall pay all the costs.

      (1)  OJ C 47, 21.2.2004.


title: Case T-199/07: Order of the Court of First Instance of 23 September 2008 — Cementownia Odra v Commission (Action for annulment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 — Decision by the Commission not to raise objections subject to certain conditions — Competence of Member States in the individual allocation of emission allowances — Lack of direct concern — Inadmissibility)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/38

         Order of the Court of First Instance of 23 September 2008 — Cementownia ‘Odra’ v Commission
   (Case T-199/07) (1)

   (Action for annulment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - National allocation plan in respect of emission allowances for Poland for the period from 2008 to 2012 - Decision by the Commission not to raise objections subject to certain conditions - Competence of Member States in the individual allocation of emission allowances - Lack of direct concern - Inadmissibility)
   (2008/C 301/65)
   Language of the case: Polish
   Parties

      Applicant: Cementownia ‘Odra’ S.A. (Opole, Poland) (represented by: P.K. Rosiak and F. Puel, lawyers)

      Defendant: Commission of the European Communities (represented by: U. Wölker and K. Herrmann, Agents)
   Re:
   APPLICATION for annulment of Commission Decision C(2007) 1295 final of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Republic of Poland for the period from 2008 to 2012 in accordance with Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Cementownia ‘Odra’ S.A. shall bear its own costs and pay those incurred by the Commission.

      (1)  OJ C 170, 21.7.2007.


title: Case T-288/08: Judgment of the General Court of 15 March 2012 — Cadila Healthcare v OHIM — Novartis (ZYDUS) (Community trade mark — Opposition proceedings — Application for the Community word mark ZYDUS — Earlier Community word mark ZIMBUS — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               28.4.2012

               EN

               Official Journal of the European Union

               C 126/11

         Judgment of the General Court of 15 March 2012 — Cadila Healthcare v OHIM — Novartis (ZYDUS)
   (Case T-288/08) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark ZYDUS - Earlier Community word mark ZIMBUS - Relative ground for refusal - Likelihood of confusion - Similarity of the goods - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2012/C 126/22
   Language of the case: English

      Parties

      Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented by: S. Bailey, F. Potin, and A. Juaristi, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Novartis AG (Basle, Switzerland) (represented by: N. Hebeis, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 7 May 2008 (Case R 1092/2007-2), relating to opposition proceedings between Novartis AG and Cadila Healthcare Ltd.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application for a ruling that there is no need to adjudicate;

               2.

               Dismisses the action;

               3.

               Orders Cadila Healthcare Ltd to pay the costs.

      (1)  OJ C 247, 27.9.2008.


title: Case C-473/07: Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 25 October 2007 — Association Nationale pour la Protection des Eaux et Rivières — TOS, Association OABA v Ministère de l'écologie, du développement et de l'aménagement durables — Intervener: Association France Nature Environnement

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/22

         Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 25 October 2007 — Association Nationale pour la Protection des Eaux et Rivières — TOS, Association OABA v Ministère de l'écologie, du développement et de l'aménagement durables — Intervener: Association France Nature Environnement
   (Case C-473/07)
   (2008/C 22/42)
   Language of the case: French
   Referring court
   Conseil d'Etat
   Parties to the main proceedings

      Applicants: Association Nationale pour la Protection des Eaux et Rivières — TOS, Association OABA

      Defendant: Ministère de l'écologie, du développement et de l'aménagement durables
   Questions referred
   Must paragraph 6.6(a) of Annex I to Directive 96/61/EC (1), which applies to installations for the intensive rearing of poultry with more than 40 000 places, be interpreted:

               1.

               as including within its scope quails, partridges and pigeons; and, if so,

               2.

               as authorising a mechanism for calculating authorisation thresholds on the basis of a system of ‘animal-equivalents’, which gives weighting to the number of animals per place according to species so that account may be taken of the amount of nitrogen actually excreted by the various species?

      (1)  Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26).


title: Reference for a preliminary ruling by the High Court of Justice, Chancery Division, Patents Court, by orders of that court of 13 July 1995, in the case of Merck & Co. Inc. and others against Primecrown Ltd and others (Case C-267/95)

text:
23 . 9 . 95            EN                 Official Journal of the European Communities                                    No C 248/ 11
Fer and the Commission of the European Communities was               Bundessozialgericht ( Federal Social Court) of 20 June 1995 ,
brought before the Court of Justice of the European                  which was received at the Court Registry on 8 August 1995 ,
Communities on 4 August 1995 by the Commission of the                for a preliminary ruling in the case of Pascual Merino Garcia
European Communities, represented by Bernd Langeheine,               v. Bundesanstalt fur Arbeit, Kindergeldkasse, on the
of the Legal Service, and Gerard de Bergues, a national              following questions :
official on secondment to the Commission, acting as agents,
with an address for service in Luxembourg at the office of           1 . is subsection I C of Annex I to Regulation ( EEC ) No
Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.                        1408/71 (^ compatible with the EC Treaty, in particular
                                                                          Article 48 ( 2 ) thereof, in so far as it leads to a situation
The appellant claims that the Court should :                              where workers with children resident outside Germany
                                                                          have no right to child allowance in respect of full
— set aside the judgment of the Court of First Instance of
                                                                          calendar months included within a lengthy period of
     6 June 1995 ,
                                                                          unpaid leave but such workers with children resident in
— dismiss the action brought before the Court of First                    Germany do have that right ?
     Instance by the Union Internationale des Chemins de
     Fer, or alternatively refer it back to the Court of First       2 . if subsection I C of Annex I to Regulation ( EEC ) No
     Instance ,                                                           1408/71 is invalid , is the consequence thereof that an
                                                                          'employed person' within the meaning of Article 73 of
— order the respondent to pay the costs incurred by the                   Regulation ( EEC ) No 1408/71 is any person who has
     Commission both in the proceedings before the Court                  been given unpaid leave of absence by his employer on
     of First Instance and in those before the Court of                   the basis of a voluntary agreement, or are there
     Justice .                                                            restrictions in that respect ( e.g. as regards the duration
                                                                          of the leave of absence )?
Pleas in law and main arguments adduced in support:
The Commission considers that the Court of First Instance            (>) OJ No L 149 , 5 . 7 . 1971 , p . 2 .
committed a threefold error of law in ruling:
— first, that Regulation (EEC ) No 1017/68 also applies
     to agreements, decisions and concerted practices
     concerning activities which are 'related to', and               Reference for a preliminary ruling by the High Court of
     ' indispensable for', the provision of transport services,      Justice, Chancery Division, Patents Court, by orders of that
     when that Regulation covers, apart from specific                court of 13 July 1995 , in the case of Merck & Co. Inc. and
     agreements which are restrictively listed and irrelevant                    others against Primecrown Ltd and others
     to the present case , only agreements, decisions and                                      Case C-267/95
     concerted practices which directly concern the provision
     of transport,                                                                              ( 95/C 248/24 )
— second , that leaflet No 130 of the Union Internationale           Reference has been made to the Court of Justice of the
     des Chemins de Fer covers both the supply of transport          European Communities by orders of the High Court of
     and transport rates within the meaning of Regulation            Justice, Chancery Division, Patents Court, of 13 July 1995 ,
      ( EEC ) No 1017/68 , when the contested provisions             which were received at the Court Registry on 8 August
     thereof restrict competition not on the transport market         1995 , for a preliminary ruling in the case of Merck & Co .
     but on the market for the distribution of tickets,              Inc . and others against Primecrown Ltd and others, on the
— lastly, that by offering railway tickets for sale on behalf        following questions :
     of railway companies, travel agencies perform
      ' operations of providers of services ancillary to              1.    that the provisions and effect of Article 47 of the
     transport' within the meaning of Article 1 of Regulation               Spanish Treaty of Accession to the European
      ( EEC ) No 1017/68 , when travel agents do not fall within            Communities will continue to apply to
      the professional category of providers of services                    pharmaceutical products
      ancillary to transport and the Regulation applies in any
                                                                      1.1   imported from Spain; or
      event only to the operations of such providers of
      ancillary services which are directly related to the            1.2   first marketed in Spain
      provision of transport.
                                                                            until
                                                                             ( a ) 7 October 1995 ; or
Reference for a preliminary ruling from the Bundes                          ( b ) 31 December 1995 , or
 sozialgericht, by order of that court of 20 June 1995 , in the              ( c ) 7 October 1996 , or
 case of Pascual Merino Garcia against Bundesanstalt fur
                     Arbeit, Kindergeldkasse                                 ( d ) 31 December 1996 , or
                        ( Case C-266/95 )                                    ( e ) the end of the third year after the particular
                          ( 95/C 248/23 )                                           pharmaceutical , protected by a product patent in
                                                                                one or more Member State(s ) of the European
 Reference has been made to the Court of Justice                                    Union and which was previously unpatentable in
 of the European Communities by an order of the                                     Spain, has become patentable in Spain
 ---pagebreak--- No C 248/12           EN                Official Journal of the European Communities                                        23 . 9 . 95
    stating which of such dates is applicable with regard to                     and continue to supply sufficient quantities to
    such acts;                                                                   satisfy the needs of domestic patients; and/or
                                                                           (c ) that country's legislation grants to its authorities,
2.  that the provisions and effect of Article 209 of the                         and its authorities exercise, the right to fix the
    Portuguese Treaty of Accession of the European                               sale price of the Pharmaceutical in that country
    Communities will continue to apply to                                        and legislation prohibits the sale of the
    pharmaceutical products                                                      Pharmaceutical at any other price; and/or
2.1 imported from Portugal; or                                             ( d ) the price of the Pharmaceutical in that country
                                                                                has been fixed by its authorities at a level at which
2.2 first marketed in Portugal;                                                  substantial exports of the Pharmaceutical from
    until
                                                                                such country to the Member State are anticipated
                                                                                with the result that the economic value of the
    ( a ) 1 January 1995 ; or                                                    Patent would be significantly eroded and research
                                                                                and development for future pharmaceuticals
    ( b ) 31 December 1995 ; or                                                  planned by the Proprietor significantly
                                                                                undermined, contrary to the rationale underlying
    ( c ) 1 June 1998 ; or                                                       the recent introduction by the EC Council of the
    ( d ) 31 December 1998 ; or
                                                                                Supplementary Protection Certificate .
    ( e ) the end of the third year after the particular
            pharmaceutical, protected by a product patent in
            one or more Member State(s ) of the European
            Union and which was previously unpatentable in
            Portugal , has become patentable in Portugal
                                                                   Reference for a preliminary ruling from the Bundesverwal
    stating which of such dates is applicable with regard to       tungsgericht, by order of that court of 30 March 1995 , in the
    such acts;                                                     case      of   the   Bundesanstalt    fur Landwirtschaft         und
                                                                            Ernahrung v. Deutsches Milch-Kontor GmbH
3.  after the expiration of Article 47 ( and/or Article 209 ,                                ( Case C-2 72/95 )
     as appropriate ), in a case where :
                                                                                ( 95/C 248/25 )
3.1  an undertaking is the proprietor (the 'Proprietor') of a
     patent ( the 'Patent') in one or more Member States of        Reference has been made to the Court of Justice of the
     the European Communities ( the 'Member State') for a          European Communities by an order of the Bundesverwal
     pharmaceutical product ( the 'Pharmaceutical');               tungsgericht ( Federal Administrative Court) of 30 March
                                                                   1995 , which was received at the Court Registry on
3.2  the Pharmaceutical was first put on the market in a           11 August 1995 , for a preliminary ruling in the case of the
     country by the Proprietor after that country's                Bundesanstalt fur Landwirtschaft und Ernahrung v.
     accession to the EC but at a time when the                    Deutsches Milch-Kontor GmbH on the following
     Pharmaceutical could not be protected by a product            questions :
     patent in that country;
                                                                    1 . is the first subparagraph of Article 2 ( 4 ) of Regulation
3.3  a third party imports the Pharmaceutical from that                 ( EEC ) No 1624/76 ( ] ), as amended by Article 1 of
     country into the Member State;                                     Regulation (EEC) No 1726/79 (2), to be interpreted as
                                                                        meaning that, where skimmed-milk powder produced in
3.4  and the patent legislation in the Member State granted             Germany is exported by lorry to Italy for use in the
     the proprietor of the Patent the right to oppose by legal          manufacture of compound feedingstuffs, the competent
     action the importation of the Pharmaceutical from                  authority is required to take a sample from each lorry
     that country                                                       load and have it analyzed in order to be able to issue the
                                                                        certificate referred to in the provision ?
     do the rules set forth in the EC Treaty concerning the
     free movement of goods prevent the Proprietor from             2 . if question 1 should be answered in the negative, what
     availing himself of the right referred to in paragraph             criteria are to be drawn from Article 2 ( 1 ) ( a ) of
     3.4 above, in particular if:                                       Regulation ( EEC ) No 1624/76, as amended by Article 1
      ( a ) the Proprietor had and continues to have a legal            of Regulation ( EEC ) No 1726/79 in conjunction with
                                                                        Article 10 of Regulation ( EEC ) No 1725/79 ( 3 ) for the
            and/or ethical obligation to market and to
            continue marketing the Pharmaceutical in that               purpose of determining the frequency with which
                                                                        samples must and may be taken in the case of
            country; and/or
                                                                         skimmed-milk powder exported by lorry to Italy ?
      ( b ) that country's and/or EC legislation effectively
            requires that, once the Pharmaceutical is put on        3 . is it compatible with the prohibition of charges having
            the market in that country, the Proprietor supply            an effect equivalent to customs duties ( Articles 9 , 12 and


title: Case T-139/08: Action brought on 11 April 2008 — Loufrani v OHIM (half-smiley)

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/34

         Action brought on 11 April 2008 — Loufrani v OHIM (half-smiley)
   (Case T-139/08)
   (2008/C 142/62)
   Language of the case: English
   Parties

      Applicant: Franklin Loufrani (London, United Kingdom) (represented by: A. Deutsch, 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 7 February 2008 in case R 0958/2007-4); and

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The figurative mark ‘half-smiley’ for goods in classes 14, 18 and 25 — application No 893 580

      Decision of the examiner: Refusal of the application for all goods

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the mark acquired the minimum degree of distinctiveness required to be registered.


title: Judgment of the Court (Second Chamber) 17 January 2002 in Case C-394/00: Commission of the European Communities v Ireland (Failure of a Member State to fulfil its obligations — Directive 96/82/EC — Failure to transpose within the prescribed period)

text:
C 84/28                 EN                      Official Journal of the European Communities                                               6.4.2002
regional reference amounts for producers of soya beans, rape               obligations under the said directives — the Court (First
seed, colza seed and sunflower seed for the 1992/93 marketing              Chamber), composed of: P. Jann, President of the Chamber,
year (OJ 1993 L 56, p. 18), the Court (Second Chamber),                    L. Sevón (Rapporteur) and M. Wathelet, Judges; D. Ruiz-Jarabo
composed of: N. Colneric, President of the Chamber,                        Colomer, Advocate General; R. Grass, Registrar, has given a
R. Schintgen (Rapporteur) and V. Skouris, Judges, Advocate                 judgment on 11 December 2001, in which it:
General: C. Stix-Hackl, Registrar: R. Grass, has given a judg-
ment on 7 February 2002, in which it has ruled:
                                                                           1.    Declares that, by failing to forward to the Commission, for the
                                                                                period from 1995 to 1997, the report required under Article 18
Consideration of the questions submitted has disclosed no factor of              of Council Directive 75/439/EEC of 16 June 1975 on the
such a kind as to affect the validity of Commission Regulation (EEC)             disposal of waste oils, as amended by Council Directive
No 525/93 of 8 March 1993 establishing the value of the final                    91/692/EEC of 23 December 1991 standardising and ration-
regional reference amounts for producers of soya beans, rape seed,               alising reports on the implementation of certain Directives
colza seed and sunflower seed for the 1992/93 marketing year.                    relating to the environment, within the period fixed by that
                                                                                provision, the Italian Republic has failed to fulfil its obligations
                                                                                under that directive;
(1) OJ C 316 of 4.11.2000.
                                                                           2.    Orders the Italian Republic to pay the costs.
                                                                           (1) OJ C 355 of 9.12.2000.
                 JUDGMENT OF THE COURT
                          (First Chamber)
                       of 11 December 2001
                                                                                JUDGMENT OF THE COURT
in Case C-376/00: Commission of the European Communi-
                     ties v Italian Republic (1)                                                    (Second Chamber)
(Failure of a Member State to fulfil obligations — Directives                                         17 January 2002
75/439/EEC and 75/442/EEC — National reports on
  implementation — Failure to forward to the Commission)                   in Case C-394/00: Commission of the European Communi-
                                                                                ties v Ireland (1)
                           (2002/C 84/45)
                                                                           (Failure of a Member State to fulfil its obligations —
                    (Language of the case: Italian)                        Directive 96/82/EC — Failure to transpose within the
                                                                                prescribed period)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                                      (2002/C 84/46)
                                                                                (Language of the case: English)
In Case C-376/00: Commission of the European Communities
(Agents: H. Støvlbaek and R. Amorosi) v Italian Republic                   (Provisional translation; the definitive translation will be published
(Agent: U. Leanza, assisted by M. Fiorilli) — application for a                                in the European Court Reports)
declaration that, by failing to forward to the Commission, for
the period from 1995 to 1997, the reports required under
Article 18 of Council Directive 75/439/EEC of 16 June 1975
on the disposal of waste oils (OJ 1975 L 194, p. 23), as                   In Case C-394/00, Commission of the European Communities
amended by Council Directive 91/692/EEC of 23 December                     (Agent:G. zur Hausen) v Ireland (Agent:D. O’Hagan): appli-
1991 standardising and rationalising reports on the implemen-              cation for a declaration that, by failing to adopt the laws,
tation of certain Directives relating to the environment (OJ               regulations and administrative provisions necessary to comply
1991 L 377, p. 48), and under Article 12 of Council Directive              with Council Directive 96/82/EC of 9 December 1996 on
75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39),                the control of major-accident hazards involving dangerous
as amended by Directive 91/692/EEC, within the periods fixed               substances (OJ 1997 L 10, p. 13) or, in any event, by failing to
by those provisions, the Italian Republic has failed to fulfil its         notify the Commission of those provisions, Ireland has failed
 ---pagebreak--- 6.4.2002                 EN                        Official Journal of the European Communities                                             C 84/29
to fulfil its obligations under that directive, the Court (Second             composed of: N. Colneric, President of the Chamber,
Chamber), composed of: N. Colneric, President of the Chamber,                 R. Schintgen (Rapporteur) and V. Skouris, Judges, Advocate
R. Schintgen (Rapporteur) and V. Skouris, Judges, Advocate                    General: D. Ruiz-Jarabo Colomer, Registrar: R. Grass, has given
General: D. Ruiz-Jarabo Colomer, Registrar: R. Grass, has given               a judgment on 17 January 2002, in which it:
a judgment on 17 January 2002, in which it:
                                                                              1.    Declares that by failing to adopt, within the prescribed period,
1.    Declares that, by failing to adopt within the period prescribed               all the laws, regulations and administrative provisions necessary
      the laws, regulations and administrative provisions necessary to              to comply with Council Directive 96/82/EC of 9 December
      comply with Council Directive 96/82/EC of 9 December 1996                     1996 on the control of major-accident hazards involving
      on the control of major-accident hazards involving dangerous                  dangerous substances, the Kingdom of Belgium has failed to
      substances, Ireland has failed to fulfil its obligations under that           fulfil its obligations under that directive;
      directive;
                                                                              2.    Orders the Kingdom of Belgium to pay the costs.
2.    Orders Ireland to pay the costs.
                                                                              (1) OJ C 28 of 27.1.2001.
(1) OJ C 355 of 9.12.2000.
                                                                                JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT                                                                   15 January 2002
                         (Second Chamber)                                     in Case C-196/01: Commission of the European Communi-
                                                                                ties v Grand Duchy of Luxembourg (1)
                          17 January 2002
                                                                              (Failure by a Member State to fulfil its obligations —
in Case C-423/00: Commission of the European Communi-                         Environment — Directive 75/442/EEC — Decision 94/3/EC
                  ties v Kingdom of Belgium (1)                                                  — European Waste Catalogue)
(Failure of a Member State to fulfil its obligations —                                                     (2002/C 84/48)
Directive 96/82/EC — Failure to implement within the
                          prescribed period)                                                         (Language of the case: French)
                           (2002/C 84/47)                                     (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published        In Case C-196/01, Commission of the European Communities
                    in the European Court Reports)                            (Agents: H. Støvlbaek and J. Adda) v Grand Duchy of
                                                                              Luxembourg (Agents: N. Mackel, and, subsequently, J. Faltz):
                                                                              application for a declaration that the Grand Duchy of Luxem-
                                                                              bourg has failed to fulfil its obligations under Article 1(a) of
In Case C-423/00, Commission of the European Communities                      Council Directive 75/442/EEC of 15 July 1975 on waste (OJ
(Agent: G. zur Hausen) v Kingdom of Belgium (Agent:                           1975 L 194, p. 39), as amended by Council Directive
C. Pochet): application for a declaration that, by failing to                 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32),
adopt all the laws, regulations and administrative provisions                 and Commission Decision 94/3/EC of 20 December 1993
necessary to comply with Council Directive 96/82/EC of                        establishing a list of wastes pursuant to Article 1(a) of Directive
9 December 1996 on the control of major-accident hazards                      75/442 (OJ 1994 L 5, p. 15), the Court (First Chamber),
involving dangerous substances (OJ 1997 L 10, p. 13) and, in                  composed of: P. Jann, President of the Chamber, L. Sevón
any event, by failing to notify the Commission of those                       (Rapporteur) and M. Wathelet, Judges, Advocate General:
provisions, the Kingdom of Belgium has failed to fulfil its                   P. Léger, Registrar: R. Grass, has given a judgment on
obligations under that directive, the Court (Second Chamber),                 15 January 2002, in which it:


title: Case C-208/12: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/11

         Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 30 April 2012 — Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)
   (Case C-208/12)
   2012/C 227/16
   Language of the case: Dutch

      Referring court

   Rechtbank van eerste aanleg te Brussel

      Parties to the main proceedings

   Applicant: Essent Belgium NV
   Defendant: Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG)
   Other Party:

               Vlaamse Gewest

               Vlaamse Gemeenschap

      Questions referred

               1.

               Is a national rule, such as that embodied in the Flemish Decreet van 17 juli 2000 houdende de organisatie van de elektriciteitsmarkt (Decree of 17 July 2000 on the organisation of the market in electricity), as implemented by the Besluit (Decision) of the Flemish Government of 5 March 2004, as amended by the Besluit of the Flemish Government of 25 February 2005 on the promotion of the generation of electricity from renewable energy sources, where

                           —

                           an obligation is imposed on the suppliers of electricity to final customers connected to the distribution network or the transmission network, to submit a certain number of green certificates annually to the Regulatory Authority (Article 23 of the aforementioned Decreet);

                           —

                           an administrative fine is imposed by the Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt (VREG) on the suppliers of electricity to final customers connected to the distribution network or the transmission network when the supplier has not submitted a sufficient number of green certificates to fulfil a quota obligation which has been imposed in respect of green certificates (Article 37(2) of the aforementioned Decreet);

                           —

                           it is expressly provided that guarantees of origin from other countries may be submitted under certain conditions in order to fulfil the quota obligation (Article 15c(2) of the Besluit of the Flemish Government of 5 March 2004, as applicable in this case);

                           —

                           the Regulatory Authority cannot or will not take into account any guarantees of origin originating from Norway and that being in the absence of implementing measures on the part of the Flemish Government, which has acknowledged the equality or equivalence of those certificates (Article 25 of the aforementioned Decreet and Article 15c(2) of the Besluit of 5 March 2004), without that equality or equivalence being investigated by the Regulatory Authority in concrete terms;

                           —

                           in fact, during the whole time that the Decreet of 17 July 2000 was in force, only certificates for the production of green energy generated in the Flemish Region were taken into account when ascertaining whether the quota obligation had been fulfilled, whereas for the suppliers of electricity to final customers connected to the distribution network or transmission network there was no possibility whatsoever of demonstrating that the guarantees of origin from other Member States of the European Union met the condition of the existence of equal or equivalent guarantees regarding the granting of such certificates,

                     compatible with Article 11 of the EEA Agreement and/or Article 13 of the EEA Agreement?’

               2.

               Is a national rule as referred to in subquestion 1 above compatible with Article 5 of the then Directive 2001/77/EC (1) of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (in so far as relevant to the EEA)?

               3.

               Is a national rule as referred to in subquestion 1 above compatible with the principle of equal treatment and the prohibition of discrimination as embodied inter alia in Article 14 of the EEA Agreement and Article 3 of the then Directive 2003/54/EC (2) of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (in so far as relevant to the EEA)?

      (1)  OJ 2001 L 283, p. 33.

      (2)  OJ 2003 L 176, p. 37.


title: Case C-398/07 P: Appeal brought on 28 August 2007 by Waterford Wedgwood plc against the judgment of the Court of First Instance (Second Chamber) delivered on 12 June 2007 in Case T-105/05: Assembled Investments (Proprietary) Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/12

         Appeal brought on 28 August 2007 by Waterford Wedgwood plc against the judgment of the Court of First Instance (Second Chamber) delivered on 12 June 2007 in Case T-105/05: Assembled Investments (Proprietary) Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-398/07 P)
   (2007/C 283/20)
   Language of the case: English
   Parties

      Appellant: Waterford Wedgwood plc (represented by: J. Pagenberg, Rechtsanwalt)

      Other parties to the proceedings: Assembled Investments (Proprietary) Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   Form of order sought
   The appellant claims that the Court should:

               —

               annul the Judgment of the Court of First Instance of 12 June 2007 in Case T-105/05

               —

               refer the case back to the Court of First Instance

               —

               order OHIM and Assembled Investments to bear the costs of the proceedings before the Court of Justice.

         Pleas in law and main arguments
   The Appellant claims that the Court of First Instance violated Article 8(1)(b) of the Community Trade Mark Regulation (1) in that it applied erroneous legal criteria in determining that the conflicting goods are not similar.
   The Appellant further claims that the Court of First Instance violated Article 8(1)(b) of the Community Trade Mark Regulation by holding, in paragraph 34 of its judgment, contrary to the Board of Appeal, that consumers would not consider the respective goods to be similar, without any evidentiary basis for this finding, which is thus based on a distortion of the facts.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ L 11, p. 1).


title: Case C-48/16: Request for a preliminary ruling from the Okresný súd Dunajská Streda (Slovak Republic) lodged on 27 January 2016 — ERGO Poisťovňa, a.s. v Alžbeta Barlíková

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/14

         Request for a preliminary ruling from the Okresný súd Dunajská Streda (Slovak Republic) lodged on 27 January 2016 — ERGO Poisťovňa, a.s. v Alžbeta Barlíková
   (Case C-48/16)
   (2016/C 136/19)
   Language of the case: Slovak

      Referring court

   Okresný súd Dunajská Streda

      Parties to the main proceedings

      Applicant: ERGO Poisťovňa, a.s.

      Defendant: Alžbeta Barlíková

      Questions referred

               1.

               Must the expression ‘the contract between the third party and the principal will not be executed’ in Article 11 of Council Directive 86/653/EEC of 18 December 1986 (1) on the coordination of the laws of the Member States relating to self-employed commercial agents (‘Directive 86/653’) be interpreted as meaning:

                           (a)

                           complete non-execution of the contract, that is, neither the principal nor the third party even partly performs what is provided for in the contract, or

                           (b)

                           even partial non-execution of the contract, that is, the volume of transactions envisaged is not achieved, for example, or the contract will not last for the time envisaged?

               2.

               If the interpretation in indent (b) of Question 1 is correct, must Article 11(2) of Directive 86/653 be interpreted as meaning that a provision in a contract for commercial agency under which the agent is obliged to return a proportionate part of his commission if the contract between the principal and the third party is not executed to the extent envisaged, or to the extent defined by the contract for commercial agency, is not a derogation to the detriment of the agent?

               3.

               In the cases concerned in the main proceedings, when assessing whether ‘the principal is to blame’ within the meaning of the second indent of Article 11(1) of Directive 86/653,

                           (a)

                           may only legal reasons leading directly to termination of the contract be considered (for example, the contract ceases as a result of the non-performance of an obligation under it by the third party), or

                           (b)

                           may it also be considered whether those legal reasons were not the result of the conduct of the principal in the legal relationship with that third party which induced the third party to lose confidence in the principal and consequently to breach an obligation under the contract with the principal?

      (1)  OJ 1986 L 382, p. 17.


title: Case T-746/15: Order of the General Court of 9 November 2016 — Biofa v Commission (Action for annulment — Plant protection products — Implementing Regulation (EU) 2015/2069 — Approval of the basic substance sodium hydrogen carbonate — Lack of direct concern — Inadmissibility)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/37

         Order of the General Court of 9 November 2016 — Biofa v Commission
   (Case T-746/15) (1)

   ((Action for annulment - Plant protection products - Implementing Regulation (EU) 2015/2069 - Approval of the basic substance sodium hydrogen carbonate - Lack of direct concern - Inadmissibility))
   (2017/C 006/46)
   Language of the case: German

      Parties

      Applicant: Biofa AG (Münsingen, Germany) (represented by: C. Stallberg and S. Knoblich, and subsequently by C. Stallberg, lawyers)

      Defendant: European Commission (represented by: P. Ondrůšek, G. von Rintelen and F. Moro, acting as Agents)

      Re:

   Application under Article 263 TFEU for the annulment of Commission Implementing Regulation (EU) 2015/2069 of 17 November 2015 approving the basic substance sodium hydrogen carbonate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the annex to Commission Implementing Regulation (EU) No 540/2011 (OJ 2015 L 301, p. 42).

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               There is no need to adjudicate on the application to intervene of the Kingdom of Denmark.

               3.

               Biofa AG shall pay the costs, including those relating to the proceedings for interim measures.

               4.

               The Kingdom of Denmark shall bear its own costs relating to the application to intervene.

      (1)  OJ C 59, 15.2.2016.


title: Case C-277/10: Judgment of the Court (Third Chamber) of 9 February 2012 (reference for a preliminary ruling from the Handelsgericht Wien — Austria) — Martin Luksan v Petrus van der Let (Reference for a preliminary ruling — Approximation of laws — Intellectual property — Copyright and related rights — Directives 93/83/EEC, 2001/29/EC, 2006/115/EC and 2006/116/EC — Sharing of the rights to exploit a cinematographic work, by contract, between the principal director and the producer of the work — National legislation allotting those rights, exclusively and by operation of law, to the film producer — Possibility of departing from that rule by an agreement between the parties — Subsequent rights to remuneration)

text:
               17.3.2012

               EN

               Official Journal of the European Union

               C 80/4

         Judgment of the Court (Third Chamber) of 9 February 2012 (reference for a preliminary ruling from the Handelsgericht Wien — Austria) — Martin Luksan v Petrus van der Let
   (Case C-277/10) (1)

   (Reference for a preliminary ruling - Approximation of laws - Intellectual property - Copyright and related rights - Directives 93/83/EEC, 2001/29/EC, 2006/115/EC and 2006/116/EC - Sharing of the rights to exploit a cinematographic work, by contract, between the principal director and the producer of the work - National legislation allotting those rights, exclusively and by operation of law, to the film producer - Possibility of departing from that rule by an agreement between the parties - Subsequent rights to remuneration)
   2012/C 80/05
   Language of the case: German

      Referring court

   Handelsgericht Wien

      Parties to the main proceedings

      Applicant: Martin Luksan

      Defendant: Petrus van der Let

      Re:

   Reference for a preliminary ruling — Handelsgericht Wien — Interpretation of Article 2(2), (5) and (6) and Article 4 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), of Articles 1(5) and 2 of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15), of Articles 2, 3 and 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) and of Article 2(1) of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (OJ 2006 L 372, p. 12) — Sharing of the rights to exploit a cinematographic work, by contract, between the author and the producer of the work — National legislation allotting all those rights to the producer

      Operative part of the judgment

               1.

               Articles 1 and 2 of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, and Articles 2 and 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society in conjunction with Articles 2 and 3 of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and with Article 2 of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights, must be interpreted as meaning that rights to exploit a cinematographic work such as those at issue in the main proceedings (reproduction right, satellite broadcasting right and any other right of communication to the public through the making available to the public) vest by operation of law, directly and originally, in the principal director. Consequently, those provisions must be interpreted as precluding national legislation which allocates those exploitation rights by operation of law exclusively to the producer of the work in question.

               2.

               European Union law must be interpreted as allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of rights to exploit the cinematographic work such as those at issue in the main proceedings (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public), provided that such a presumption is not an irrebuttable one precluding the principal director of that work from agreeing otherwise.

               3.

               European Union law must be interpreted as meaning that, in his capacity as author of a cinematographic work, the principal director thereof must be entitled, by operation of law, directly and originally, to the right to the fair compensation provided for in Article 5(2)(b) of Directive 2001/29 under the ‘private copying’ exception.

               4.

               European Union law must be interpreted as not allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of the right to fair compensation vesting in the principal director of that work, whether that presumption is couched in irrebuttable terms or may be departed from.

      (1)  OJ C 246, 11.9.2010.


title: Case T-280/06: Order of the Court of First Instance of 11 September 2008 — Italian Republic v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/63

         Order of the Court of First Instance of 11 September 2008 — Italian Republic v Commission
   (Case T-280/06) (1)

   (2008/C 301/116)

      Language of the case: Italian

   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 294, 2.12.2006.


title: Case C-336/02: Reference for a preliminary ruling by the Landgericht Düsseldorf by order of that Court of 17 September 2002 in the proceedings between Saatgut-Treuhandverwaltungs-GmbH and Brangewitz GmbH

text:
C 289/12                EN                     Official Journal of the European Communities                                     23.11.2002
      enables the relevant class of persons to distinguish the            at the Court Registry on 23 September 2002, for a preliminary
      services in question from services of another business              ruling in the proceedings between Saatgut-Treuhandverwal-
      source. Instead the Court based its view that the sign in           tungs-GmbH and Brangewitz GmbH on the following ques-
      question fell within the scope of Article 7(1)(b) of the            tions concerning the interpretation of Article 14(3), sixth
      Regulation on the fact that it did not satisfy criteria for         indent, of Council Regulation (EC) No 2100/94 (1) of 27 July
      protection governed by other provisions. It interprets              1994 on Community Plant variety rights (OJ 1994 L 227,
      Article 7(1)(b) as a catch-all provision for cases in which         p. 1) in conjunction with Article 9 of Commission Regulation
      the trade marks applied for, despite having descriptive             (EC) No 1768/95 ( 2) of 24 July 1995:
      character, do not fall within the scope of the grounds
      for rejecting protection under Article 7(1)(c) of the               1.     Are the abovementioned provisions to be interpreted as
      Regulation.                                                                meaning that the holder of a variety protected under
                                                                                Regulation No 2100/94 can request the supplier of
      The splitting by the Court of the trade mark ‘SAT.2’ into                  processing services or the processor to provide the
      its component parts does not reflect the view and
                                                                                information specified in those provisions, regardless of
      approach adopted by consumers. The distinctive charac-                     whether there is any evidence that the supplier of
      ter or lack of distinctive character of the trade mark must                processsing services has supplied a processing service in
      to some degree be apparent ‘at first sight’.                               respect of the protected variety concerned or that the
                                                                                processor has processed the protected variety concerned?
(in the alternative)                                                      2.     If there must be evidence for the factual situation referred
                                                                                to in Question 1:
—     Infringement of the principle of equal treatment: it may
                                                                                Must the supplier of processing services or processor
      be correct that a person cannot rely on a failure to apply
                                                                                provide information pursuant to Article 14(3), sixth
      the law which has benefitted another person. In the
                                                                                indent, of Regulation No 2100/94 in conjunction with
      present case, however, the appellant did not point to
                                                                                Article 9 of Regulation No 1768/95 with regard to all the
      wrongly-decided isolated cases, but to the Office’s clearly
                                                                                farmers to whom he has supplied the processing service
      recognisable general practice of allowing in principle
                                                                                in respect of the protected variety concerned and/or for
      applications for registration of trademarks consisting of a
                                                                                whom he has carried out the processing of the protected
      combination of numbers and descriptive indications/
                                                                                variety concerned, or only with regard to those farmers
      abbreviations. The appellant refers in this connection in
                                                                                in respect of whom the holder has evidence that the
      particular to the trademarks ‘T-SAT’ (00 918 409), ‘One
                                                                                supplier of processing services has supplied processing
      Tel’ (001 096 312, 000 983 973, 001 105 089), ‘MEDIA
                                                                                services in respect of the protected variety concerned
      4’ (001 179 530, ‘CAR ONE’ (000 707 430), ‘D1’ (000
                                                                                and/or the processor has carried out the processing of the
      920 157) and ‘B-MAIL’ (000 896 399).
                                                                                protected variety concerned?
( 1) OJ 2002 C 202, p. 23.
                                                                          (1 ) OJ L 227, p. 1.
( 2) OJ 2001 C 4, p. 5.
                                                                          (2 ) OJ L 173, p. 14.
Reference for a preliminary ruling by the Landgericht                     Action brought on 24 September 2002 by Commission
Düsseldorf by order of that Court of 17 September 2002                       of the European Communities against French Republic
in the proceedings between Saatgut-Treuhandverwal-
             tungs-GmbH and Brangewitz GmbH
                                                                                (Case C-340/02)
                         (Case C-336/02)
                                                                                (2002/C 289/21)
                         (2002/C 289/20)
                                                                          An action against the French Republic was brought before the
                                                                          Court of Justice of the European Communities on 24 Septem-
Reference has been made to the Court of Justice of the                    ber 2002 by the Commission of the European Communities,
European Communities by order of the Landgericht Düsseldorf               represented by M. Nolin, acting as Agent, with an address for
(Regional Court, Düsseldorf) of 17 September 2002, received               service in Luxembourg.


title: Judgment of the Court of First Instance of 28 September 2004 in Case T-216/03: Mario Paulo Tenreiro v Commission of the European Communities (Officials — Mobility — Refusal of promotion — Consideration of comparative merits)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/40

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 28 September 2004
   in Case T-216/03: Mario Paulo Tenreiro v Commission of the European Communities (1)

   (Officials - Mobility - Refusal of promotion - Consideration of comparative merits)
   (2004/C 300/78)
   Language of the case: French
   In Case T-216/03: Mario Paulo Tenreiro, an official of the Commission of the European Communities, residing in Kraainem (Belgium), represented by G. Vandersanden, lawyer, against Commission of the European Communities (Agents: A. Bordes and L Lozano Palacios, with an address for service in Luxembourg) — application for, in substance, annulment of the Commission's decision, published on 14 August 2002, establishing the list of officials promoted to grade A4 in the 2002 procedure, in so far as it does not contain the applicant's name, the Court of First Instance (Single Judge: M. Pirrung); D. Christensen, Administrator, for the Registrar, gave a judgment on 28 September 2004, in which it:

               1.

               Dismisses the application;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 200 of 23.8.2003.


title: Case T-443/04: Order of the Court of First Instance of 11 September 2008 — Italy v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/61

         Order of the Court of First Instance of 11 September 2008 — Italy v Commission
   (Case T-443/04) (1)

   (2008/C 301/103)

      Language of the case: Italian

   The President of the Court of First Instance (Second Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 19, 22.1.2005.


title: Case F-2/10 RENV: Order of the Civil Service Tribunal of 6 December 2013 — Marcuccio v Commission

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/30

         Order of the Civil Service Tribunal of 6 December 2013 — Marcuccio v Commission
   (Case F-2/10 RENV)
   2014/C 39/56
   Language of the case: Italian
   The President of the First Chamber has ordered that the case be removed from the register.


title: Case T-279/12: Judgment of the General Court of 15 January 2014 — SICOM v Commission (Arbitration clause — Food aid — Supply of colza oil to Guinea — Non-performance of the contract — Limitation period)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/34

         Judgment of the General Court of 15 January 2014 — SICOM v Commission
   (Case T-279/12) (1)

   (Arbitration clause - Food aid - Supply of colza oil to Guinea - Non-performance of the contract - Limitation period)
   2014/C 52/63
   Language of the case: Italian

      Parties

      Applicant: SICOM Srl — Società industriale per il confezionamento degli olii meridionale (Cercola, Italy) (represented by: R. Manzi, lawyer)

      Defendant: European Commission (represented by: S. Bartelt and F. Moro, acting as Agents)

      Re:

   Application under an arbitration clause seeking an order that the Commission pay the applicant a sum corresponding to penalties imposed in relation to quantities not delivered and delays in supply, deducted by the Commission from the final amount paid to the applicant for the delivery of refined colza oil for the benefit of the Republic of Guinea, in the context of a food aid operation carried out pursuant to Commission Regulation (EC) No 664/2001 of 2 April 2001 on the supply of vegetable oil as food aid (OJ 2001 L 93, p. 3).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders SICOM Srl — Società industriale per il confezionamento degli olii meridionale to pay the costs.

      (1)  OJ C 243, 11.8.2012.


title: Case T-25/11: Action brought on 17 January 2011 — Germans Boada v OHIM (Shape of a ceramics cutter)

text:
               12.3.2011

               EN

               Official Journal of the European Union

               C 80/23

         Action brought on 17 January 2011 — Germans Boada v OHIM (Shape of a ceramics cutter)
   (Case T-25/11)
   2011/C 80/45
   Language of the case: Spanish

      Parties

      Applicant: Germans Boada (Rubí, Spain) (represented by J. Carbonell Callicó, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               alter the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 October 2010, in Case R 771/2010-1, in accordance with Article 65(3) CTMR and on grounds of infringement of the principle of equal treatment and infringement of Article 7(1)(b) and (3) CTMR, and register three-dimensional trade mark 7.317.911;

               —

               in the alternative and solely in the event that the first claim does not succeed, annul the decision of the First Board of Appeal of OHIM of 28 October 2010, in Case R 771/2010-1, on the ground of infringement of Articles 75 and 76 CTMR;

               —

               order OHIM to pay the costs, in accordance with Article 87(2) CTMR.

      Pleas in law and main arguments

      Community trade mark concerned: Three-dimensional trade mark in the shape of a ceramics cutter, for goods in Class 8

      Decision of the Examiner: Application refused

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009, (1) since the mark applied for has distinctive character, and of Article 7(3) of Regulation (EC) No 207/2009, on the ground that it has been shown that the mark concerned has acquired distinctiveness through use. Infringement of the principle of equal treatment and of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, since OHIM should have taken into account only the facts and evidence submitted by the parties in due time. Infringement of Articles 75 and 76 of Regulation (EC) No 207/2009, on the ground that OHIM failed to take into account facts and evidence submitted by the applicant in due form and in due time.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case C-130/12: Order of the President of the Court of 14 November 2012 — European Commission v Portuguese Republic

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/19

         Order of the President of the Court of 14 November 2012 — European Commission v Portuguese Republic
   (Case C-130/12) (1)

   2013/C 108/46
   Language of the case: Portuguese
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 133, 5.5.2012.


title: Case C-276/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 18 May 2017 — Michael Siegberg v TUIfly GmbH

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/34

         Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 18 May 2017 — Michael Siegberg v TUIfly GmbH
   (Case C-276/17)
   (2017/C 239/42)
   Language of the case: German

      Referring court

   Amtsgericht Hannover

      Parties to the main proceedings

      Applicant: Michael Siegberg

      Defendant: TUIfly GmbH

      Questions referred

               1.

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

               2.

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

               3.

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

               4.

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

      (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJ 2004 L 46, p. 1.


title: Case T-29/09: Order of the General Court of 11 November 2010 — Easycamp v OHIM — Oase Outdoors (EASYCAMP)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/57

         Order of the General Court of 11 November 2010 — Easycamp v OHIM — Oase Outdoors (EASYCAMP)
   (Case T-29/09) (1)

   ()
   2011/C 30/102
   Language of the case: English
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 69, 21.3.2009.


title: Judgment of the Court (First Chamber) of 17 March 2005 in Case C-170/03 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Staatssecretaris van Financiën v J.H.M. Feron (Regulation (EEC) No 918/83 — Relief from customs duties — Meaning of ‘personal property’ and ‘possession’ — Motor vehicle made available to a person by his employer)

text:
               28.5.2005

               EN

               Official Journal of the European Union

               C 132/7

      JUDGMENT OF THE COURT

   (First Chamber)
   of 17 March 2005
   in Case C-170/03 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Staatssecretaris van Financiën v J.H.M. Feron (1)

   (Regulation (EEC) No 918/83 - Relief from customs duties - Meaning of ‘personal property’ and ‘possession’ - Motor vehicle made available to a person by his employer)
   (2005/C 132/13)
   Language of the case: Dutch
   In Case C-170/03: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 11 April 2003, received at the Court on 14 April 2003, in the proceedings pending before that court between Staatssecretaris van Financiën and J.H.M. Feron — the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas, K. Lenaerts, S. von Bahr (Rapporteur) and K. Schiemann, Judges; M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 17 March 2005, the operative part of which is as follows:
   A car such as that at issue in the main proceedings is to be regarded as personal property within the meaning of Article 1(2)(c) of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty and thus eligible for relief from import duty under Articles 2 and 3 of the regulation.

      (1)  OJ C 146 of 21.06.2003.


title: Case T-522/11: Judgment of the General Court of 18 June 2013 — Otero González v OHIM — Apli-Agipa (APLI-AGIPA) (Community trade mark — Opposition proceedings — Application for the Community word mark APLI-AGIPA — Earlier national word mark AGIPA — Relative ground for refusal — Likelihood of confusion — Comparison of the goods — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/73

         Judgment of the General Court of 18 June 2013 — Otero González v OHIM — Apli-Agipa (APLI-AGIPA)
   (Case T-522/11) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark APLI-AGIPA - Earlier national word mark AGIPA - Relative ground for refusal - Likelihood of confusion - Comparison of the goods - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 225/160
   Language of the case: Spanish

      Parties

      Applicant: José Luis Otero González (Barcelona, Spain) (represented by: S. Correa, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: V. Melgar, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Apli-Agipa SAS (Dormans, France) (represented by: E. Sugrañes Coca, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 13 July 2011 (Case R 1454/2010-2), relating to opposition proceedings between Mr José Luis Otero González and Apli-Agipa SAS

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 13 July 2011 (Case R 1454/2010-2) relating to opposition proceedings between Mr José Luis Otero González and Apli-Agipa SAS in so far as it upholds Apli-Agipa’s appeal and grants it registration of the Community word mark AGIPA in respect of the ‘photographs; adhesives for stationery or household purposes; paint brushes; office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers’ type; printing blocks’ in Class 16 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders OHIM to bear its own costs and to pay those incurred by Mr Otero González;

               4.

               Orders Apli-Agipa to bear its own costs.

      (1)  OJ C 13, 14.1.2012.