title: Case T-549/15: Judgment of the General Court of 13 December 2016 — Guiral Broto v EUIPO — Gastro & Soul (CAFE DEL SOL) (EU trade mark — Opposition proceedings — Application for the EU figurative mark CAFE DEL SOL — Earlier national figurative mark Café del Sol — Failure to submit evidence in the language of the opposition proceedings — Articles 75 and 76 of Regulation (EC) No 207/2009 — Rules 19 and 20 of Regulation (EC) No 2868/95 — Rights of the defence)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/45

         Judgment of the General Court of 13 December 2016 — Guiral Broto v EUIPO — Gastro & Soul (CAFE DEL SOL)
   (Case T-549/15) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU figurative mark CAFE DEL SOL - Earlier national figurative mark Café del Sol - Failure to submit evidence in the language of the opposition proceedings - Articles 75 and 76 of Regulation (EC) No 207/2009 - Rules 19 and 20 of Regulation (EC) No 2868/95 - Rights of the defence))
   (2017/C 030/50)
   Language of the case: English

      Parties

      Applicant: Ramón Guiral Broto (Marbella, Spain) (represented by: J.L. de Castro Hermida, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: H. O’Neill, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO: Gastro & Soul GmbH (Hildesheim, Germany)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 16 July 2015 (Case R 1888/2014-5), relating to opposition proceedings between Mr Guiral Broto and Gastro & Soul.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 July 2015 (Case R 1888/2014-5), relating to opposition proceedings between Mr Ramón Guiral Broto and Gastro & Soul GmbH;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders EUIPO and Mr Guiral Broto each to bear their own costs.

      (1)  OJ C 381, 16.11.2015.


title: Case C-398/12: Judgment of the Court (Fourth Chamber) of 5 June 2014 (request for a preliminary ruling from the Tribunale di Fermo — Italy) — Criminal proceedings against M (Convention implementing the Schengen Agreement — Article 54 — ‘Ne bis in idem’ principle — Scope — Order made by a court of a Contracting State finding that there is no ground to refer a case to a trial court because of insufficient evidence — Possibility of reopening the criminal investigation in the case where new facts and/or evidence come to light — Concept of person whose trial has been ‘finally disposed of’  — Criminal prosecution in another Contracting State of the same person in respect of the same acts — Preclusion of further prosecution and application of the ne bis in idem principle)

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/7

         Judgment of the Court (Fourth Chamber) of 5 June 2014 (request for a preliminary ruling from the Tribunale di Fermo — Italy) — Criminal proceedings against M
   (Case C-398/12) (1)

   ((Convention implementing the Schengen Agreement - Article 54 - ‘Ne bis in idem’ principle - Scope - Order made by a court of a Contracting State finding that there is no ground to refer a case to a trial court because of insufficient evidence - Possibility of reopening the criminal investigation in the case where new facts and/or evidence come to light - Concept of person whose trial has been ‘finally disposed of’ - Criminal prosecution in another Contracting State of the same person in respect of the same acts - Preclusion of further prosecution and application of the ne bis in idem principle))
   2014/C 253/09
   Language of the case: Italian

      Referring court

   Tribunale di Fermo

      Party in the criminal proceedings in the main action

   M

      Re:

   Request for a preliminary ruling — Tribunale di Fermo — Interpretation of Article 54 of the Convention implementing the Schengen Agreement — ‘Ne bis in idem’ principle — Concept of ‘person whose trial has been finally disposed of’ — Final decision of no case to answer made by a court of a Member State

      Operative part of the judgment

   Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed in Schengen (Luxembourg) on 19 June 1990, must be interpreted as meaning that an order making a finding that there is no ground to refer a case to a trial court which precludes, in the Contracting State in which that order was made, the bringing of new criminal proceedings in respect of the same acts against the person to whom that finding applies, unless new facts and/or evidence against that person come to light, must be considered to be a final judgment, for the purposes of that article, precluding new proceedings against the same person in respect of the same acts in another Contracting State.

      (1)  OJ C 355, 17.11.2012.


title: Order of the Court of First Instance of 26 November 2003 in Case T-95/02: Michael Hohenbichler v Commission of the European Communities (Officials — Pensions — Transfer of national pension rights — Calculation of the annual contributions to be taken into account — Annual salary used as reference — Action manifestly devoid of any legal basis)

text:
C 71/28                 EN                          Official Journal of the European Union                                        20.3.2004
of these sums — the Court of First Instance (First Chamber),                1.   dismisses the action as being manifestly devoid of any legal
composed of: B. Vesterdorf, President, P. Mengozzi and                           basis;
E. Martins Ribeiro, Judges; H. Jung, Registrar, has made an
order on 4 December 2003, the operative part of which is as                 2.   orders the parties to bear their own costs.
follows:
                                                                            (1) OJ C 144 of 15.6.2002.
1.    There is no need to adjudicate on the application.
2.    Each party shall bear its own costs.
(1) OJ C 200 of 14.7.2001.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 26 November 2003
                                                                            in Case T-96/02: Hugh Mc Bryan v Commission of the
                                                                                European Communities (1)
      ORDER OF THE COURT OF FIRST INSTANCE                                  (Officials — Pensions — Transfer of national pension rights
                                                                            — Calculation of the annual contributions to be taken into
                                                                            account — Salary used as reference — Action manifestly
                      of 26 November 2003                                                       devoid of any legal basis)
in Case T-95/02: Michael Hohenbichler v Commission of                                                 (2004/C 71/53)
                 the European Communities (1)
                                                                                (Language of the case: French)
(Officials — Pensions — Transfer of national pension rights
— Calculation of the annual contributions to be taken into
account — Annual salary used as reference — Action
              manifestly devoid of any legal basis)                         In Case T-96/02: Hugh Mc Bryan, an official of the Commission
                                                                            of the European Communities, residing in Brussels (Belgium),
                                                                            represented by J.–N. Louis, lawyer, with an address for
                          (2004/C 71/52)                                    service in Luxembourg, against Commission of the European
                                                                            Communities (Agents: J. Currall and H. Tserepa-Lacombe) —
                                                                            application for annulment of the Commission’s decision of
                                                                            14 May 2001 calculating the annual contributions to be
                    (Language of the case: French)                          credited for the purpose of transfer to the Community scheme,
                                                                            under Article 11(2) of Annex VIII to the Staff Regulations, of
                                                                            national pension rights acquired by the applicant before his
                                                                            entering the service — the Court of First Instance (Third
                                                                            Chamber), composed of: J. Azizi, President, M. Jaeger and
In case T-95/02: Michael Hohenbichler, an official of the                   F. Dehousse, Judges; H. Jung, Registrar, has made an order on
Commission of the European Communities, residing in Brus-                   26 November 2003, in which it:
sels (Belgium), represented by J.–N. Louis, lawyer, with an
address for service in Luxembourg, against Commission of the
European Communities (Agents: J. Currall and H. Tserepa-                    1.   dismisses the action as being manifestly devoid of any legal
Lacombe) — application for annulment of the Commission’s                         basis;
decision of 21 May 2001 calculating the annual contributions
to be credited for the purpose of transfer to the Community                 2.   orders the parties to bear their own costs.
scheme, under Article 11(2) of Annex VIII to the Staff
Regulations, of national pension rights acquired by the appli-
cant before his entering the service — the Court of First                   (1) OJ C 131 of 1.6.2002.
Instance (Third Chamber), composed of: J. Azizi, President,
M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, has made
an order on 26 November 2003, in which it:


title: Case T-335/99: Action brought on 26 November 1999 by Henkel KGaA against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
4.3.2000              EN                     Official Journal of the European Communities                                        C 63/27
Action brought on 24 November 1999 by Paul Jestädt                      Action brought on 26 November 1999 by Henkel KGaA
against the Council of the European Union and the                       against the Office for Harmonisation in the Internal
         Commission of the European Communities                                       Market (Trade Marks and Designs)
                        (Case T-332/99)
                                                                                (Case T-335/99)
                         (2000/C 63/53)
                                                                                (2000/C 63/54)
                  (Language of the case: German)
An action against the Council of the European Union and the                               (Language of the case: German)
Commission of the European Communities was brought
before the Court of First Instance of the European Communities
                                                                        An action against the Office for Harmonisation in the Internal
on 24 November 1999 by Paul Jestädt, of Grossenlüder
                                                                        Market (Trade Marks and Designs) was brought before the
(Federal Republic of Germany), represented by Rainer Seimetz,
                                                                        Court of First Instance of the European Communities on
Rechtsanwalt, of Wälchtersbach (Federal Republic of Ger-
                                                                        26 November 1999 by Henkel KGaA, of Düsseldorf (Germ-
many), with an address for service in Luxembourg at the
                                                                        any), represented by Holger Friedrich Wissel and Christian
Chambers of François Jacques, 51 Rue Albert ler.
                                                                        Osterrieth, Rechtsanwälte, of Messrs Pünder, Volhard, Weber
                                                                        & Axter, Düsseldorf (Germany), with an address for service in
The applicant claims that the Court should:                             Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue.
(a) order the defendants to pay to him DM 67 522,36 together
    with interest from 1 July 1985;                                     The applicant claims that the Court should:
(b) order the defendants to pay the costs.
                                                                        (1) annul the decision adopted on 21 September 1999 by the
                                                                            Third Board of Appeal of the Office for Harmonisation in
                                                                            the Internal Market in the appeal proceedings (R
Pleas in law and main arguments
                                                                            70/1999-3) concerning Community trade mark regis-
                                                                            tration application No 716 831;
The applicant is a milk producer in Germany. He claims
damages in a sum equivalent to certain rates of compensation,
specified in detail, which he alleges to have been unlawfully           (2) order the Office for Harmonisation in the Internal Market
withheld from him in respect of the period from 1 July 1985                 to pay the costs.
to 1 March 1993. He bases his claim on the argument that he
has been prevented, on account of the unlawful failure to take
so-called ‘SLOM III’ farmers into account in the Community              Pleas in law and main arguments
milk quota rules, from producing milk following the expiry of
the non-marketing period relating to the leased land taken
over by him. By analogy with the judgment of the Court of               The trade mark con-           Three-dimensional mark using
First Instance of the European Communities in Joined Cases              cerned:                       the colours white and red —
T-195/94 and T-202/94, a compensation offer has been made                                             application No 716 381
to the applicant in respect of the period from 9 February 1993.
The European Commission has rejected any claims in excess
of that, relying on the limitation provision contained in               Goods or service con-         Class 3, washing and dish-wash-
Article 43 of the EC Statute of the Court of Justice of the             cerned:                       ing detergent in tablet form
European Communities.
                                                                        Decision        contested     Refusal of registration by the
                                                                        before the Board of           examiner
By the present action, the applicant is contesting the determi-
                                                                        Appeal:
nation of the commencement of the compensation period. He
maintains that he could not have filed his claims at an earlier
point in time, since an application made in that regard would           Grounds of claim:             — Infringement of Article 7(1)(b)
not have been certain of success. It was not until a decision —                                           of Regulation (EC) No 40/94
contested by the applicant — had been delivered by the
                                                                                — Misuse        of    discretionary
Verwaltungsgericht Kassel that he could assume that he was
                                                                                powers
entitled to a SLOM III reference quantity. Following the
delivery of that decision, he lodged his claims without delay.                                        — Infringement of procedural
Consequently, his action cannot be opposed on the ground of                                               law
his having previously refrained from filing an application on
account of its having no prospect of success.


title: Case T-600/15: Action brought on 22 October 2015 — PAN Europe e.a. v Commission

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/20

         Action brought on 22 October 2015 — PAN Europe e.a. v Commission
   (Case T-600/15)
   (2016/C 059/23)
   Language of the case: English

      Parties

      Applicants: Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium), Bee Life European Beekeeping Coordination (Bee Life) (Louvain-la-Neuve, Belgium), Unione nazionale associazioni apicoltori italiani (Unaapi) (Castel San Pietro Terme, Italy) (represented by: B. Kloostra, lawyer, A. van den Biesen, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the Commission Implementing Regulation (EU) No 2015/1295 (1); and

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on three pleas in law.

               1.

               First plea in law, alleging that the Commission acted in breach of Articles 4 and 6 of Regulation (EC) No 1107/2009 (2) and Annex I and Annex II to Regulation (EC) No 1107/2009 when adopting the contested regulation and approving the putting on the market of sulfoxaflor.

                           —

                           The Commission acted in breach of Article 4 of Regulation (EC) No 1107/2009 and/or did not apply correctly the requirements regarding the approval of active substances as laid down in Regulation (EC) No 1107/2009;

                           —

                           The Commission also acted in breach of Article 4 in combination with Article 6(f) of Regulation (EC) No 1107/2009 and of point 1.1 and 2.2 of Annex II to the Regulation and/or did not apply correctly the requirements regarding the approval of active substances as laid down in Regulation (EC) No 1107/2009; and

                           —

                           The Commission acted in breach of Article 4 and Article 6(i) of Regulation (EC) No 1107/2009 and/or did not apply correctly the requirements regarding the approval of active substances as laid down in Regulation (EC) No 1107/2009.

               2.

               Second plea in law, alleging that the contested regulation breaches beekeepers’ right to property and their right to conduct a business as laid down in the Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (3).

               3.

               Third plea in law, alleging that the Commission acted in breach of the principle of good administration, consistency of decision-making and the duty of care, with the adoption of the contested regulation.

      (1)  Commission Implementing Regulation (EU) No 2015/1295 of 27 July 2015 approving the active substance sulfoxaflor, 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 L 199, p. 8).

      (2)  Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ L 309, p. 1).

      (3)  Charter of Fundamental Rights of the European Union (OJ 2000, C 326, p. 1).


title: Case T-575/13: Order of the General Court of 2 April 2014  — Lesaffre et Compagnie v OHIM — Louis Baking Company (BAKING CENTER BY TECHNOLINE)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/53

         Order of the General Court of 2 April 2014 — Lesaffre et Compagnie v OHIM — Louis Baking Company (BAKING CENTER BY TECHNOLINE)
   (Case T-575/13) (1)

   2014/C 175/75
   Language of the case: French
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 31, 1. 2. 2014.


title: Case C-577/10: Judgment of the Court (Fourth Chamber) of 19 December 2012 — European Commission v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Article 56 TFEU — Freedom to provide services — National legislation which imposes a prior declaration requirement on self-employed service providers established in other Member States — Criminal penalties — Obstacle to freedom to provide services — Objectively justified distinction — Overriding requirements in the public interest — Prevention of fraud — Protection against unfair competition — Protection of self-employed workers — Proportionality)

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/2

         Judgment of the Court (Fourth Chamber) of 19 December 2012 — European Commission v Kingdom of Belgium
   (Case C-577/10) (1)

   (Failure of a Member State to fulfil obligations - Article 56 TFEU - Freedom to provide services - National legislation which imposes a prior declaration requirement on self-employed service providers established in other Member States - Criminal penalties - Obstacle to freedom to provide services - Objectively justified distinction - Overriding requirements in the public interest - Prevention of fraud - Protection against unfair competition - Protection of self-employed workers - Proportionality)
   2013/C 46/03
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: E. Traversa, C. Vrignon and J.-P. Keppenne, acting as Agents)

      Defendant: Kingdom of Belgium (represented by: M. Jacobs and C. Pochet, acting as Agents, and by S. Rodrigues, avocat)

      Intervener: Kingdom of Denmark (represented by: C. Vang, S. Juul Jørgensen and V. Pasternak Jørgensen, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 56 TFEU — National legislation which imposes a prior notification requirement on independent service providers established in other Member States (the ‘Limosa’ declaration) — Restriction on the freedom to provide services — Discriminatory nature of the restriction — Lack of justification and proportionality

      Operative part of the judgment

   The Court:

               1.

               Declares that, by adopting Articles 137(8), 138, third indent, 153 and 157(3) of the Programme Law (I) of 27 December 2006, in the version in force since 1 April 2007, namely by imposing a prior declaration requirement on self-employed service providers established in Member States other than the Kingdom of Belgium in respect of their activity in Belgium, the Kingdom of Belgium has failed to fulfil its obligations under Article 56 TFEU;

               2.

               Orders the Kingdom of Belgium to pay the costs;

               3.

               Orders the Kingdom of Denmark to bear its own costs.

      (1)  OJ C 72, 5.3.2011.


title: Case T-317/99: Action brought on 11 November 1999 by Franz Lemaître against the Commission of the European Communities

text:
C 47/32               EN                       Official Journal of the European Communities                                           19.2.2000
Action brought on 11 November 1999 by Franz Lemaître                      Industrie Navali Meccaniche Affini, SpA (in liquidation) and
  against the Commission of the European Communities                      Itainvest SPA, represented by Antonio Tizzano, Gian Michele
                                                                          Roberti and Francesco Sciaudone, of the Naples Bar, with an
                        (Case T-317/99)                                   address for service at 36 Place du Grand Sablon, Brussels.
                         (2000/C 47/56)                                   The applicant claims that the Court should:
                                                                          — annul Commission decision C(1999) 2532 final of 20 July
                   (Language of the case: French)                              1999;
An action against the Commission of the European Communi-                 — order the Commission of the European Communities to
ties was brought before the Court of First Instance of the                     pay the costs.
European Communities on 11 November 1999 by Franz
Lemaître resident in Céroux-Mousty, Belgium, represented by
Georges Vandersanden, of the Brussels Bar, with an address
for service in Luxembourg at Société de Gestion Fiduciaire                Pleas in law and main arguments
SARL, 2-4 Rue Beck.
                                                                          The applicants in the present case seek the annulment of
The applicant claims that the Court should:                               Commission decision C(1999) 2532 final of 20 July 1999
                                                                          concerning aid granted by Italy to the INMA shipyard through
— annul the Commission’s decisions dated 16 February 1999,                Itainvest (formerly GEPI) public holding company, notified by
    12 March 1999 and 24 March 1999, respectively refusing                the Italian Government to the Commission on 3 September
    to award him the expatriation and installation allowances             1999.
    and determining his place of origin at the time of his
    recruitment to be Luxembourg;
                                                                          By that decision the Commission declared unlawful the action
— order the defendant to pay all the costs.                               of the public group Itainvest in respect of:
                                                                          — guarantees for the construction of vessels for ‘Corsica
Pleas in law and main arguments                                                Ferries’, ‘Pugliola’, ‘Tirrenia’ and ‘Stolt Nielsen’; and
The action concerns, first, the defendant’s refusal to award the          — compensation to the tune of LIT 120,4 thousand million
applicant the expatriation allowance and, secondly, its refusal                for losses made by the INMA shipyard in 1997-1998.
to award him the installation allowance. In support of his
claims the applicant argues that his habitual residence was
outside Belgium when he entered the Commission’s service in               The Commission came to that conclusion on the basis of the
Brussels and that he was therefore entitled to the expatriation           following:
allowance. It follows that it was also appropriate to award him
the installation allowance.                                               — guarantees for construction of the vessels should have
                                                                               been set, in accordance with Article 4(4) of Directive
                                                                               90/684/EEC and Article 3(1) of Regulation (EC)
                                                                               No 1540/98, below the ceiling for aid for individual
                                                                               contracts under Article 4(1) of the directive, expressed as a
                                                                               percentage of the annual turnover of the recipient of the
                                                                               aid itself;
Action brought on 15 November 1999 by INMA, Industrie                     — cover for loss constitutes operating aid which, according
Navali Meccaniche Affini, SpA (in liquidation) and Itain-                      to Article 5 of Directive 90/684/EEC, should also be below
vest SPA against Commission of the European Communi-                           that ceiling. In the absence therefore of a restructuring
                               ties                                            plan, operating aid in the form of loss compensation
                                                                               is also incompatible with Article 5 of Regulation (EC)
                        (Case T-323/99)                                        No 1540/98 and cannot be considered to be rescue aid
                                                                               under Community law.
                         (2000/C 47/57)
                                                                          In support of their claims, the applicants allege:
                   (Language of the case: Italian)                        — infringement of Article 7 of the EC Treaty, of Article 1(d)
                                                                               of Directive 90/684/EEC of 21 December 1990 on aid to
An action against the Commission of the European Communi-                      shipbuilding (1), and of Article 2(1) and (2) of Regulation
ties was brought before the Court of First Instance of the                     1540/98 on aid to shipbuilding (2). The applicants are of
European Communities on 15 November 1999 by INMA,                              the view in this regard in particular that the defendant


title: Case F-119/05: Action brought on  13 December 2005  — Gesner v OHIM

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/34

         Action brought on 13 December 2005 — Gesner v OHIM
   (Case F-119/05)
   (2006/C 96/53)
   Language of the case: Spanish
   Parties

      Applicant: Charlotte Gesner (Kildedalsvej, Denmark) (represented by: J. Vazquez Vazquez and C. Amo Quiñones, lawyers)

      Defendant: Office for Harmonisation in the Internal Market
   Form of order sought
   The applicant claims that the Court should:

               —

               order that the decision adopted by the Office for Harmonisation in the Internal Market (OHIM) of 2 September 2005 be annulled, to the extent that it dismisses the applicant's complaint of 10 May 2005 against its decision of 21 April 2005 refusing to appoint an invalidity committee.

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, a temporary agent of OHIM until 15 April 2005, has suffered from a slipped disc and various conditions of her spinal column since 2003. Despite having surgery and undergoing medical treatment and physiotherapy, the applicant's acute back pain did not stop and the fact that she spent long periods sitting caused her condition to deteriorate, with the result that she was on sick leave for several months.
   On 11 March 2005 the applicant requested OHIM to appoint an invalidity committee in order to establish her incapacity to perform her duties and grant her an invalidity allowance.
   OHIM refused her application on two grounds. First, Article 59 of the Staff Regulations should be interpreted as meaning that the decision to convene an invalidity committee is a matter for the appointing authority. Second, since the applicant has been on sick leave for only 294 days in the last three years she has not completed the period prescribed in Article 59(4) of the Staff Regulations.
   In her application, the applicant puts forward four main pleas. First, she argues that the appointing authority cannot arrogate to itself the power to convene an invalidity committee. If that were the case the appointing authority could determine in a pre-emptive, subjective and arbitrary manner whether the agent or official was sufficiently incapacitated for him to be summoned before that committee.
   In her second plea, the applicant states that the reasoning of the contested decision is incorrect. The application of the time-limits provided for in Article 59(4) of the Staff Regulations hinders access to an invalidity allowance by officials or agents who have not fulfilled that criterion, but who may be incapacitated as a result of accidents or illnesses which manifest themselves more quickly.
   In her third plea the applicant claims that the provisions applicable to the appointment of an invalidity committee need not be limited to Article 59 of the Staff Regulations, but include provisions which fall within the legal framework governing access to invalidity allowances, namely Articles 31 to 33 of the Conditions of Employment for Other Servants of the European Communities, Article 9 of the Staff Regulations, and Annex VIII thereto.
   In her final plea, the applicant argues that the contested decision infringes the principles of non-discrimination and equal treatment. OHIM prevents its staff from convening an invalidity committee although that possibility appears to be available to all other Community personnel. Moreover, as regards agents of OHIM having contracts of less than three years, it would be difficult for them to gain access to an invalidity allowance however incapacitated they were, because they could never satisfy the criterion laid down in Article 59(4) of the Staff Regulations.


title: Case F-82/06: Action brought on 21 July 2006 — Duyster v Commission

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/44

         Action brought on 21 July 2006 — Duyster v Commission
   (Case F-82/06)
   (2006/C 281/79)
   Language of the case: Dutch
   Parties

      Applicant: Tineke Duyster (Oetrange, Luxembourg) (represented by: W.H.A.M. van de Muijsenbergh, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Tribunal should

               —

               declare the action admissible or, in the alternative, admissible in part;

               —

               annul that part of the Appointing Authority's decision of 11 May 2006 which concerns complaint R/91/06 or, in the alternative, annul the decision in part;

               —

               order the defendant to pay the costs;

               —

               in addition to the foregoing, the applicant seeks the same forms of order as she has already sought in Case F-18/06 (1).

         Pleas in law and main arguments
   In Cases F-51/05 (2) and F-18/06, the applicant has already challenged the fact that the Commission first granted her parental leave from 1 November 2004 to 30 April 2005 and, then, by letter of 17 November 2005, set the date of the start of her parental leave at 8 November 2004.
   Having doubts as to the legal characterisation of that final letter, the applicant challenged it on 13 February 2006, simultaneously by means of a complaint and a legal action (F-18/06). The Commission, first, raised a plea of inadmissibility in that action and, second, declared the complaint to be inadmissible by decision of 11 May 2006.
   In this case, the applicant submits that the effect of the above is that there is no legal remedy against the decision contained in the letter of 17 November 2005 and that no compensation can be awarded as regards the statements of the Appointing Authority contained in it. That infringes, inter alia, the Staff Regulations and the legal principles common to the Member States and the Communities.
   In support of her action against the decision of inadmissibility, the applicant pleads, inter alia: (i) that the decision was based on incorrect evidence; (ii) the infringement of the content and the purpose of Article 90 of the Staff Regulations; (iii) the existence of contradictions; (iv) that the decision lacked clarity and was negligent; (v) the infringement of the content and purpose of Articles 24 and 25 of the Staff Regulations; (vi) the situation of uncertainty created by the Commission regarding the legal characterisation of the letter of 17 November 2005; (viii) the infringement of the principles of proportionality, the protection of legitimate expectations, equal treatment and legal certainty and the infringement of the principle that interests must be weighed against one another, failure to comply with the employer's duty to provide information, infringement of the right to a legal remedy, infringement of the principle of legality and the principle of sound administration; (ix) the lack of evidence for the Appointing Authority's statement that the content of the request made by the applicant is already included in Case F-51/05.
   As regards the substance of the case, the applicant puts forward very similar pleas to those which she put forward in Case F-18/06.

      (1)  OJ C 154, 1.7.2006.

      (2)  OJ C 217, 3.9.2005 (case initially registered before the Court of First Instance of the European Communities under number T-249/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).


title: Case T-103/01: Action brought on 5 May 2001 by Michael Cwik against the Commission of the European Communities

text:
11.8.2001             EN                      Official Journal of the European Communities                                         C 227/23
Action brought on 5 May 2001 by Michael Cwik against                     Action brought on 14 May 2001 by Claudia Oberhauser
       the Commission of the European Communities                        against the Office for Harmonisation in the Internal
                                                                                Market (Trade Marks and Designs)
                        (Case T-103/01)
                                                                                (Case T-104/01)
                        (2001/C 227/44)
                                                                                (2001/C 227/45)
                   (Language of the case: French)
                                                                         (Language of the case to be determined in accordance with Article
An action against the Commission of the European Communi-
                                                                           131(2) of the Rules of Procedure Application drafted in German)
ties was brought before the Court of First Instance of the
European Communities on 5 May 2001 by Michael Cwik,
residing at Tervuren (Belgium), represented by Nicolas Lhoëst,           An action against the Office for Harmonisation in the Internal
avocat, with an address for service in Luxembourg.                       Market (Trade Marks and Designs) was brought before the
                                                                         Court of First Instance of the European Communities on
The applicant claims that the Court should:                              14 May 2001 by Claudia Oberhauser, residing in Munich
                                                                         (Germany), represented by Markus Graf, Rechtsanwalt.
—     annul the Commission’s decision of 13 June 2000                    Additional party before the Board of Appeal: Petit Liberto,
      transferring the applicant from the Information, Publi-            S.A., Gerona (Spain).
      cations and Economic Documentation Unit [subsequently
      renamed the Euro and EMU Unit (DG ECFIN-04)] to the
      General Coordination, Human Resources and Adminis-                 The applicant claims that the Court should:
      tration Unit [subsequently renamed, in March 2000,
      the Coordination, Human Resources, Information and                 —     set aside the decision of the Second Board of Appeal of
      Administration Unit (DG ECFIN-01)];                                      the Office for Harmonisation in the Internal Market of
                                                                               28 February 2001 in Case R 757/1999-2;
—     in so far as may be necessary, annul the implicit decision
      of the Commission rejecting the complaint submitted by             —     order the defendant to pay the costs of these proceedings,
      the applicant on 26 September 2000;                                      and order the intervener to pay the costs of the proceed-
                                                                               ings before the Office for Harmonisation in the Internal
—     order the defendant to pay the sum of EUR 25 000 by                      Market.
      way of compensation for non-material damage;
—     order the defendant to pay all the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         Applicant for regis-           The applicant.
                                                                         tration of a Community
The applicant maintains that, by not responding to the                   trade mark:
complaint made by him against his transfer, the Commission
failed to discharge its obligation to provide a statement of             Trade mark for which           The word mark ‘Fifties’ for goods
reasons for any decision adversely affecting an official, as laid        registration sought:           in Class 25 (Jeans — Items of
down in Article 25(2) of the Staff Regulations. He also pleads                                          clothing) — Application No
misuse of powers. According to the applicant, the Commission                                            490003.
exerted real pressure on him, by denying him access to the
information necessary in order to enable him to perform his
                                                                         Owner of the mark put          Petit Liberto, S.A.
information and communication tasks, with a view to isolating
                                                                         forward as grounds for
him and harassing him. The applicant further argues that his
                                                                         refusal under the oppo-
functions as an economic and monetary specialist did not
                                                                         sition procedure:
correspond to the work which he was given to do following
his transfer to the ECFIN-01 unit. Lastly, the applicant claims
that, when deciding on his situation, the Commission failed to           Trade mark put forward         The registered Spanish word and
comply with its obligation to have regard to the interests               as grounds for refusal:        pictorial mark ‘miss fifties’
and welfare of officials, inasmuch as it did not take into                                              (No 1,723,310) for goods in
consideration the interests of the service or the interests of the                                      Class 25.
applicant. According to the applicant, that situation resulted
from a bad personal relationship existing for several years              Decision of the Oppo-          Refusal of the application.
between him and his hierarchical superiors.                              sition Division:
                                                                         Decision of the Board of       Dismissal of the applicant’s com-
                                                                         Appeal:                        plaint.


title: ORDER OF THE COURT OF FIRST INSTANCE of 10 November 1995 in Case T-554/93: A. T. E. Saint, C. Murray and M. Craig v. Council of the European Union and Commission of the European Communities (Removal from the register)

text:
No C 16/ 12            EN               Official Journal of the European Communities                                        20 . 1 . 96
2 , orders the parties to bear their own costs.                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 7 December 1995
f 1 ) OJ No C 90, 26 . 3 . 1994 .                                  in Joined Cases T-544/93 and T-566/93 : Giovanni Battista
                                                                   Abello and Others and Gerhard Riesch v. Commission of
                                                                                the European Communities f 1 )
                                                                   (Officials — Pay slips — Weightings — Council Regulations
                                                                   (EEC/Euratom/ECSC) No 3761/92, (EEC/Euratom/ECSC)
                                                                   No 3765/92 and (EEC/Euratom/ECSC) No 3766/92 —
                                                                                Objection of illegality)
                                                                                ( 96/C 16/27)
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: Italian)
                    of 30 November 1995
in Case T-507/93 : Paulo Branco v. Court of Auditors of the        In Joined Cases T-544/93 and T-566/93 : Giovanni Battista
                  European Communities (*)                         Abello and the other officials and servants of the
(Officials — List of officials eligible for promotion —            Commission of the European Communities listed in the
 Transfer to another institution — Act adversely affecting an      Annex to the judgment, and Gerhard Riesch, an official of
official — Legal interest in bringing proceedings — Claim          the Commission of the European Communities, represented
                 for damages — Inadmissible)                       by Michele Tamburini and Franco Colussi, of the Milan Bar,
                            96/C 16/26
                                                                   with an address for service in Luxembourg at 36 rue de
                                                                   Wiltz, v. Commission of the European Communities
                                                                   ( Agent: Gianluigi Valsesia ), supported by the Council of the
                                                                   European Union ( Agent: Anna Lo Monaco ) — application,
             (Language of the case: Portuguese)                    first, for the annulment of the applicants' pay slips for
                                                                   December 1992 and January 1993 , inasmuch as they were
                                                                   drawn up in accordance with the weightings resulting
In Case T-507/93 : Paulo Branco, an official of the                from the application of Council Regulations
Commission of the European Communities, formerly an                ( EEC/Euratom/ECSC ) No 3761 /92, ( EEC/Euratom/ECSC )
official of the Court of Auditors of the European                  No 3765/92 and ( EEC/Euratom/ECSC ) No 3766/92 ( OJ No
Communities, residing in Brussels, represented initially by        L 383 , pp . 1 , 9 and 11 ), and, by way of objection, a
Dieter Grozinger de Rosnay and David M. Travessa                   declaration that the Regulations in question are illegal, and,
Mendes, and subsequently by Raoul Wagener and David M.             second, for compensation for the damage allegedly suffered
Travessa Mendes, of the Luxembourg Bar, with an address            by the applicants as a result of the application of the
for service in Luxembourg at the latter's Chambers, 6-12           contested weightings — the Court of First Instance ( Fourth
Place d'Armes, v. Court of Auditors of the European                Chamber), composed of: K. Lenaerts, President, and R.
Communities (Agents : initially Jean-Marie Steiner and Jan         Schintgen and R. Garria-Valdecasas, Judges; H. Jung,
Inghelram and subsequently Jan Inghelram and Isabel Jalles )       Registrar, gave a judgment on 7 December 1995 , in
— application, first, for the annulment of the promotion           which it :
procedure of the Court of Auditors for 1993 , inasmuch as
the applicant was excluded therefrom, and, second, for
compensation for the non-material damage allegedly                 1 , dismisses the application;
suffered by the applicant as a result of breaches of duty
allegedly committed by the administration of the defendant         2 , orders the parties to bear their own costs.
institution in the context of the promotion procedures for
1992 and 1993 — the Court of First Instance ( First                (!) OJ No C 325 , 9 . 12 . 1993 and OJ No C 1 , 4 . 1 . 1994 .
Chamber ), composed of: H. Kirschner, acting for the
President, and A. Kalogeropoulos and V. Tiili, Judges;
J. Palacio Gonzalez, Registrar, gave a judgment on
30 November 1 995 , in which it:
                                                                       ORDER OF THE COURT OF FIRST INSTANCE
1 , dismisses the application as inadmissible;                                         of 10 November 1995
                                                                   in Case T-554/93 : A. T. E. Saint, C. Murray and M. Craig v.
                                                                   Council of the European Union and Commission of the
2 , orders the parties to bear their own costs, including the                         European Communities ( x )
      costs relating to the proceedings for interim
      measures .
                                                                                (Removal from the register)
                                                                                ( 96/C 16/28 )
(!) OJ No C 282 , 20 . 10 . 1993 .                                                (Language of the case: English)
                                                                   In Case T-554/93 : A. T. E. Saint, C. Murray and M. Craig
                                                                   (United Kingdom and Ireland ), represented by E. H.
 ---pagebreak--- 20 . 1 . 96           EN                Official Journal of the European Communities                                No C 16/13
Pijnacker Hordijk, of the Amsterdam Bar, and H. J.                 Luxembourg at the Chambers of Arendt & Medernach,
Bronkhorst, advocate with a right of audience before the           8-10 rue Mathias Hardt, and European Community
Supreme Court of the Netherlands, instructed by Burges             Shipowners' Associations, having its head office in Brussels,
Salmon, Solicitors, with an address for service in                 represented by Denis Waelbroeck, of the Brussels Bar, with
Luxembourg at the Chambers of Luc Frieden, 62 Avenue               an address for service in Luxembourg at the Chambers of
Guillaume, v. Council of the European Union ( Agents: A.           Ernest Arendt, 8-10 rue Mathias Hardt v. Commission of
Brautigam and M. Bishop ) and Commission of the                    the European Communities ( Agents : B. Langeheine and R.
European Communities ( Agents: G. Rozet and C. Docksey )           Lyal ), supported by Freight Transport Association Ltd,
— application for annulment of Articles 8 ( 2 ) ( a ) and 14 ( 4 ) having its head office in Tunbridge Wells, United Kingdom,
of Council Regulation ( EEC ) No 2187/93 of 22 July 1993           Association des utilisateurs de transport de fret, having its
providing for an offer of compensation to certain producers        head office in Paris, and European Council of Transport
of milk and milk products temporarily prevented from               Users ASBL, having its head office in Brussels, represented
carrying on their trade — the President of the First Chamber       by Mark Clough, Barrister, of the Bar of England and Wales,
( extended composition ) of the Court of First Instance made       with an address for service in Luxembourg at the Chambers
an order on 10 November 1 995 , the operative part of which        of Aloyse May, 31 Grand-Rue — application for an order
is as follows :                                                    preventing an anticipated decision of the Commission —
                                                                   withdrawing from the applicants their immunity from fines
1 , the name of M. Craig is removed from the list of               in respect of practices prohibited, pursuant to Article 85 of
     applicants in Case T-554/93;                                  the EC Treaty, by a Commission decision operation of
                                                                   which has been suspended under Article 185 of the EC
                                                                   Treaty, and continuing within the framework of a new
2 , the parties are ordered to bear their own costs.               agreement notified to the Commission — from entering into
                                                                   effect as long as the Court of First Instance has not given
(M OJ No C 338 , 15 . 12 . 1993 .                                  final judgment on an application for its annulment the
                                                                   President of the Court of First Instance made an order on
                                                                   22 November 1995 , the operative part of which is as
                                                                   follows :
                                                                   1 . the application for interim measures is dismissed;
                ORDER OF THE PRESIDENT
          OF THE COURT OF FIRST INSTANCE                           2 , costs are reserved.
                    of 22 November 1995
in Case T-3 95/94 R II: Atlantic Container Line AB and
   Others v. Commission of the European Communities
                         ( 96/C 16/29 )
                                                                       ORDER OF THE COURT OF FIRST INSTANCE
                (Language of the case: English)                                        of 13 November 1995
                                                                   in Case T-126/95 : Dumez v. Commission of the European
In Case T-3 95/94 R II, Atlantic Container Line AB,                                       Communities ( 1 )
established in Gothenburg, Sweden, Cho Yang Shipping               (Refusal by the Commission to initiate Treaty infringement
Company Ltd, established in Seoul, DSR-Senator Lines               proceedings — Action for annulment — Action for
GmbH, established in Bremen, Germany, Hapag Lloyd AG,                      declaration of failure to act — Inadmissible)
established in Hamburg, Germany, MSC Mediterranean                                          ( 96/C 16/30 )
Shipping Company SA, established in Geneva, Switzerland,
A. P. Møller-Mærsk Line, established in Copenhagen,
Nedlloyd Lijnen BV, established in Rotterdam, the                                 (Language of the case: French)
Netherlands, Neptune Orient Lines Ltd ( NOL ), established
in Singapore, Nippon Yusen Kaisha (NYK Line ),                     In Case T-126/95 : Dumez, established at Nanterre ( France ),
established in Tokyo, Orient Overseas Container Line (UK )         represented by Alexandre Carnelutti and Jean-Pierre
Ltd, established in Levington, United Kingdom, P & O               Spitzer, of the Paris Bar, v. Commission of the European
Containers Ltd, established in London, Polish Ocean Lines,         Communities ( Agent: Henrik van Lier ) — application,
established in Gdynia, Poland, Sea-Land Service Inc.,              primarily, for the annulment of the decision of the
established in Jersey City, New Jersey, United States of           Commission of 29 March 1995 not to initiate proceedings
America , Tecomar SA de CV, established in Mexico DF, and          against the Hellenic Republic for infringement of
Transportación Maritima Mexicana SA, established in                Community law with respect to the award of the public
Mexico DF, represented by John Pheasant, Nicholas                  contract for the new Athens airport on the Spata site,
Bromfield and Suyong Kim, Solicitors, with an address for          alternatively, for a declaration that the Commission has
service in Luxembourg at the Chambers of Loesch &                  failed to act — the Court of First Instance (Third Chamber ),
Wolter, 11 rue Goethe, supported by Japanese Shipowners'           composed of C. P. Briët, President, and B. Vesterdorf and A.
Association, having its head office in Tokyo, represented by       Potocki, Judges; H. Jung, Registrar, made an order on
Nicholas J. Forwood QC, of the Bar of England and Wales,            13 November 1995 , the operative part of which is as
and Philip Ruttley, Solicitor, with an address for service in      follows :


title: Case C-103/11 P: Judgment of the Court (First Chamber) of 18 April 2013 — European Commission v Systran SA, Systran Luxembourg SA (Appeals — Articles 225(1) EC, 235 EC and 288, second paragraph, EC — Action in non-contractual liability against the European Community — Assessment of the non-contractual character of the dispute — Jurisdiction of the Community Courts)

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/2

         Judgment of the Court (First Chamber) of 18 April 2013 — European Commission v Systran SA, Systran Luxembourg SA
   (Case C-103/11 P) (1)

   (Appeals - Articles 225(1) EC, 235 EC and 288, second paragraph, EC - Action in non-contractual liability against the European Community - Assessment of the non-contractual character of the dispute - Jurisdiction of the Community Courts)
   2013/C 164/03
   Language of the case: French

      Parties

      Appellant: European Commission (represented by: T. van Rijn, E. Montaguti and J. Samnadda, acting as Agents, assisted by A. Berenboom, avocaat, and M. Isgour, avocat)

      Other parties to the proceedings: Systran SA, Systran Luxembourg SA (represented by: J.-P. Spitzer and E. De Boissieu, avocats)

      Re:

   Appeal against the judgment of the General Court (Third Chamber) of 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission, concerning an action for damages in respect of the damage allegedly suffered by the applicants at first instance as a result of unlawful conduct which occurred following a Commission invitation to tender concerning the maintenance and linguistic strengthening of its system of automatic translation — Erroneous assessment and contradictions concerning the non-contractual nature of the dispute — Infringement of the rights of the defence — Disregard of the rules concerning the taking of evidence — Manifest error of assessment regarding the sufficiently serious nature of the breach constituted by the Commission’s supposed fault — Failure to state reasons

      Operative part of the judgment

   The Court:

               1.

               Annuls the judgment of the General Court of the European Union of 16 December 2010 in Case T-19/07 Systran and Systran Luxembourg v Commission;

               2.

               Dismisses the action of Systran SA and Systran Luxembourg SA in Case T-19/07;

               3.

               Orders Systran SA and Systran Luxembourg SA to pay the costs incurred by the European Commission before the Court of Justice of the European Union and the General Court of the European Union.

      (1)  OJ C 145, 14.5.2011.


title: Case C-438/04: Judgment of the Court (Second Chamber) of 13 July 2006 (reference for a preliminary ruling from the Cour d'appel de Bruxelles — Belgium) — Mobistar SA v Institut belge des services postaux et des télécommunications (IBPT) (Telecommunications sector — Universal service and users' rights — Telephone number portability — Set-up costs for the provision of number portability for mobile phones — Article 30(2) of Directive 2002/22/EC (Universal Service Directive) — Pricing for interconnection related to the provision of number portability — Price orientation by reference to costs — Regulatory power of national regulatory authorities — Article 4(1) of Directive 2002/21/EC (Framework Directive) — Effective legal protection — Protection of confidential information)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/7

         Judgment of the Court (Second Chamber) of 13 July 2006 (reference for a preliminary ruling from the Cour d'appel de Bruxelles — Belgium) — Mobistar SA v Institut belge des services postaux et des télécommunications (IBPT)
   (Case C-438/04) (1)

   (Telecommunications sector - Universal service and users' rights - Telephone number portability - Set-up costs for the provision of number portability for mobile phones - Article 30(2) of Directive 2002/22/EC (Universal Service Directive) - Pricing for interconnection related to the provision of number portability - Price orientation by reference to costs - Regulatory power of national regulatory authorities - Article 4(1) of Directive 2002/21/EC (Framework Directive) - Effective legal protection - Protection of confidential information)
   (2006/C 224/12)
   Language of the case: French
   Referring court
   Cour d'appel de Bruxelles
   Parties to the main proceedings

      Applicant: Mobistar SA

      Defendant: Institut belge des services postaux et des télécommunications (IBPT)

      Intervening parties: Belgacom Mobile SA, Base SA,
   Re:
   Request for a preliminary ruling — Cour d'appel de Bruxelles (Court of Appeal, Brussels) — Interpretation of Article 30 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Portability of telephone numbers — Cost-oriented pricing for interconnection related to the provision of number portability and the allocation of the costs between operators — Interpretation of Article 4 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) — Right of appeal against a decision of the national regulatory authority — Inclusion of confidential information in the information to be at the disposal of the body hearing the appeal
   Operative part of the judgment

               1.

               Pricing for interconnection related to the provision of number portability, as referred to in Article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), concerns the traffic costs of numbers ported and the set-up costs incurred by mobile telephone operators to implement requests for number porting.

               2.

               Article 30(2) of Directive 2002/22 does not preclude the adoption of a national measure laying down the specific method to be used in calculating costs and which fixes in advance and on the basis of an abstract model of the costs maximum prices which may be charged by the donor operator to the recipient operator as set-up costs, provided that the prices are fixed on the basis of the costs in such a way that consumers are not dissuaded from making use of the facility of portability.

               3.

               Article 4 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that the body responsible for hearing an appeal against a decision of the national regulatory authority must have at its disposal all the information necessary in order to decide on the merits of the appeal, including, if necessary, confidential information which that authority has taken into account in reaching the decision which is the subject of the appeal. However, that body must guarantee the confidentiality of the information in question whilst complying with the requirements of effective legal protection and ensuring protection of the rights of defence of the parties to the dispute.

      (1)  OJ C 6, 8.1.2005.


title: Case T-360/06: Action brought on 5 December 2006 — Heijmans v Commission

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/26

         Action brought on 5 December 2006 — Heijmans v Commission
   (Case T-360/06)
   (2007/C 20/39)
   Language of the case: Dutch
   Parties

      Claimant: Heijmans NV (represented by: M.F.A.M. Smeets and A.M. van den Oord, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul in whole or in part the decision addressed to the claimant;

               —

               set aside or reduce the fine imposed on the claimant;

               —

               order the Commission to pay the costs of the present proceedings.

         Pleas in law and main arguments
   The claimant is challenging the Commission's decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL), whereby a fine was imposed on the claimant for breach of Article 81 EC.
   The claimant first submits that there has been a breach of Article 81 EC and of Articles 2, 7 and 23(3) of Regulation No 1/2003. According to the claimant, the Commission has not proved that the claimant is a unitary organisation of natural persons and of material and immaterial assets which acted contrary to Article 81 EC by regulating the fixing of bitumen prices in the Netherlands. Furthermore, the claimant contends, there is no basis in law on which the claimant can be held principally liable and that determination of liability is unreasonable.
   In support of its action, the claimant also relies on the similar pleas and arguments submitted by the claimant in Case T-358/06 Wegenbouwmaatschappij J. Heijmans B.V. v Commission.


title: Case F-92/05: Judgment of the Civil Service Tribunal (First Chamber) of 16 January 2007 — Genette v Commission (Officials — Pensions — Pension rights acquired before entry into the service of the Communities — Transfer to Community scheme — Withdrawal of the application to transfer in order to rely on new more favourable provisions)

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/46

         Judgment of the Civil Service Tribunal (First Chamber) of 16 January 2007 — Genette v Commission
   (Case F-92/05) (1)

   (Officials - Pensions - Pension rights acquired before entry into the service of the Communities - Transfer to Community scheme - Withdrawal of the application to transfer in order to rely on new more favourable provisions)
   (2007/C 42/79)
   Language of the case: French
   Parties

      Applicant: Emmanuel Genette (Gorze, France) (represented by: M.-A Lucas, lawyer)

      Defendant: Commission of the European Communities (represented by: V. Joris and D. Martin, Agents)

      Intervener in support of the defendant: Kingdom of Belgium (represented by: L. Van den Broeck, Agent)
   Re:
   Annulment of the Commission decision refusing to withdraw the applicant's application relating to the transfer of his pension rights acquired in Belgium in order to bring a fresh claim on the basis of new and more favourable provisions.
   Operative part of the judgment
   The Tribunal:

               1.

               Annuls the decision of the Commission of the European Communities of 25 January 2005.

               2.

               Orders the Commission of the European Communities to bears its own costs and to pay the costs of Mr Genette.

               3.

               Orders the Kingdom of Belgium to bear its own costs.

      (1)  OJ C 315 of 10.12.2005, p. 14 (case originally registered at the Court of First Instance under number T-361/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).


title: Case F-27/09: Judgment of the Civil Service Tribunal (First Chamber) of 29 June 2010 — Hanschmann v European Police Office (Europol) (Staff case — Europol employees — Non-renewal of a contract — Contract of indefinite duration — Article 6 of the Staff Regulations applicable to Europol employees — Principle of respect for the rights of the defence)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/67

      Judgment of the Civil Service Tribunal (First Chamber) of 29 June 2010 — Hanschmann v European Police Office (Europol)
      (Case F-27/09) (1)

      (Staff case - Europol employees - Non-renewal of a contract - Contract of indefinite duration - Article 6 of the Staff Regulations applicable to Europol employees - Principle of respect for the rights of the defence)
      (2010/C 288/124)
      Language of the case: Dutch

         Parties

         Applicant: Ingo Hanschmann (The Hague, Netherlands) (represented initially by P. de Casparis, lawyer, then by W. J. Dammingh and N. D. Dane, lawyers)

         Defendant: European Police Office (Europol) (represented by- D. Neumann and D. El Khoury, agents, and by B. Wägenbaur and R. Van der Hout, lawyers)

         Re:

      Annulment of the decision of 12 June 2008 informing the applicant that it was impossible to offer him a permanent post, and the decision of 7 January 2009 rejecting the complaint brought against the first decision.

         Operative part of the judgment

      The Tribunal:

                  1.

                  annuls the decision of 12 June 2008 by which the European Police Office (Europol) refused to offer to Mr Hanschmann a contract of indefinite duration;

                  2.

                  orders Europol to pay the costs.

         (1)  OJ C 167, of 18.07.09., p 25


title: Case C-514/16: Request for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 3 October 2016 — Isabel Maria Pinheiro Vieira Rodrigues v José Manuel Proença Salvador and Others

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/12

         Request for a preliminary ruling from the Tribunal da Relação de Guimarães (Portugal) lodged on 3 October 2016 — Isabel Maria Pinheiro Vieira Rodrigues v José Manuel Proença Salvador and Others
   (Case C-514/16)
   (2016/C 475/18)
   Language of the case: Portuguese

      Referring court

   Tribunal da Relação de Guimarães

      Parties to the main proceedings

      Appellant: Isabel Maria Pinheiro Vieira Rodrigues

      Respondents: José Manuel Proença Salvador, Crédito Agrícola Seguros — Companhia de Seguros de Ramos Reais, SA, Jorge Oliveira Pinto

      Questions referred

               1.

               Does the obligation, laid down in Article 3(1) of First Council Directive 72/166/EEC (1) of 24 April 1972, to have insurance in respect of the use of vehicles normally based in the territory of a Member State apply to the use of vehicles, in any place, be it public or private, solely in cases in which the vehicles are moving, or also in cases in which they are stationary but with the engine running?

               2.

               Does the aforementioned concept of use of vehicles, within the meaning of Article 3(1) of First Directive 72/166, encompass an agricultural tractor, which was stationary on a flat mud track on a farm and was being used, as was usual, in the performance of agricultural work (herbicide spraying in a vineyard), with the engine running to drive the pump in the drum containing the herbicide, and which, in those circumstances, as the result of a landslip caused by the combination of the following factors:

                           —

                           the weight of the tractor,

                           —

                           the vibration produced by the tractor’s engine and by the spraying device mounted on the back of the tractor,

                           —

                           heavy rain,

                     fell downwards hitting four workers who were carrying out the same task on the lower terraces, causing the death of a worker who was supporting the hose that was being used for spraying?

               3.

               If questions 1 and 2 are answered in the affirmative, does this interpretation of the concept of ‘use of vehicles’ in Article 3(1) of First Directive 72/166 preclude a rule of national law (Article 4(4) of Decreto-Lei No 291/2007 de 21 de agosto (Decree-Law No 291/2007 of 21 August 2007)) which excludes the obligation to have insurance laid down in Article 3(1) in cases in which vehicles are used for purely agricultural or industrial purposes?

      (1)  Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360).


title: Case T-69/14: Action brought on 27 January 2014 — UAB MELT WATER v OHIM (MELT WATER Original)

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/48

         Action brought on 27 January 2014 — UAB MELT WATER v OHIM (MELT WATER Original)
   (Case T-69/14)
   2014/C 112/62
   Language in which the application was lodged: Lithuanian

      Parties

      Applicant: Research and Production Company MELT WATER UAB (Klaipėda, Lithuania) (represented by V. Viešūnaitė, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               set aside the decision of the Fifth Board of Appeal of OHIM of 26 November 2013 in Case R 494/2013-5 and order OHIM to register, as a Community trade mark, the mark ‘MELT WATER Original’ in respect of which the applicant, Research and Production Company MELT WATER UAB, has sought registration (application No 01 078 2068);

               —

               award costs in favour of the applicant, Research and Production Company MELT WATER UAB;

               —

               order the defendant, OHIM, to produce the file concerning the action relating to that application for registration of a Community trade mark (application No 010 782 068).

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant.

      Community trade mark in respect of which registration is sought: a light-blue figurative mark containing the word elements ‘MELT WATER Original’, for goods in Class 32 — application No 010 782 068 for registration of a Community trade mark.

      Decision of the Examiner: application rejected.

      Decision of the Board of Appeal: appeal dismissed.

      Pleas in law: Article 7(1)(c) and 7(1)(b) of Council Regulation (EC) No 207/2009, together with the related case-law of the European Union Courts.


title: Case C-223/11: Action brought on 13 May 2011 — European Commission v Portuguese Republic

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/16

         Action brought on 13 May 2011 — European Commission v Portuguese Republic
   (Case C-223/11)
   2011/C 211/30
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by P. Guerra e Andrade and I. Hadjiyannis, Agents)

      Defendant: Portuguese Republic

      Form of order sought

   The Commission claims that the Court should:

               1.

               Declare that:

                           —

                           by failing to publish national and international plans for the management of river basins, the Portuguese State has failed to fulfil its obligations under Article 13(6), in conjunction with Article 13(1) and (2), of Directive 2000/60/EC; (1)

                           —

                           by failing to publish and make available for comments to the public, including users, draft copies of the river basin management plans, the Portuguese State has failed to fulfil its obligations under Article 14(1)(c) of Directive 2000/60/EC;

                           —

                           by failing to send to the Commission copies of the plans for river basin management, the Portuguese State has failed to fulfil its obligations under Article 15(1) of Directive 2000/60/EC;

               2.

               Order the Portuguese Republic to pay the costs.

      Pleas in law and main arguments

         Article 13 of Directive 2000/60/EC

   Article 13(6), in conjunction with Article 13(1) and (2), of Directive 2000/60/EC, provides that the river basin management plans of every river basin district, whether national or international, falling entirely within the European Union must be published by 22 December 2009 at the latest.
   The Commission has not been notified, nor is it aware, that any such plans have been published, so far as Portugal is concerned.

         Article 14 of Directive 2000/60/EC

   As the Directive makes clear, public participation is considered essential to the pursuit of the Directive’s objectives.
   The Commission has not been notified, nor is it aware, that any draft river basin management plans whatsoever have been published or made available for comments to the public, including users.

         Article 15 of Directive 2000/60/EC

   The Commission has received from the Portuguese State no copies of plans for river basin management or of those for national or international river basin districts.

      (1)  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1).


title: Case C-344/12: Judgment of the Court (Eighth Chamber) of 17 October 2013 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — State aid — Aid granted by the Italian Republic for the benefit of Alcoa Trasformazioni — Commission Decision 2010/460/EC declaring that aid to be incompatible and ordering its recovery — Failure to implement within the prescribed period)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/18

         Judgment of the Court (Eighth Chamber) of 17 October 2013 — European Commission v Italian Republic
   (Case C-344/12) (1)

   (Failure of a Member State to fulfil obligations - State aid - Aid granted by the Italian Republic for the benefit of Alcoa Trasformazioni - Commission Decision 2010/460/EC declaring that aid to be incompatible and ordering its recovery - Failure to implement within the prescribed period)
   2013/C 367/30
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: G. Conte and D. Grespan, acting as Agents)

      Defendant: Italian Republic (represented by: G. Palmieri, acting as Agent, and C. Gerardis, avvocato dello Stato)

      Re:

   Failure of a Member State to fulfil obligations — Failure to have adopted the necessary measures to comply with Articles 2, 3 and 4 of Commission Decision C(2009) 8112 final of 19 November 2009, concerning State aids C 38/A/2004 (ex NN 58/2004) and C 36/B/2006 (ex NN 38/2006), implemented by the Italian Republic for Alcoa Trasformazioni srl, and infringement of Article 288 TFEU

      Operative part of the judgment

   The Court:

               1.

               Declares that, by not adopting within the prescribed period all the measures necessary to recover from the beneficiary of the State aid declared to be unlawful and incompatible with the common market under Article 1 of Commission Decision 2010/460/EC of 19 November 2009 concerning State aids Nos C 38/A/2004 (ex NN 58/2004) and C 36/B/2006 (ex NN 38/2006) implemented by Italy for Alcoa Trasformazioni, the Italian Republic has failed to fulfil its obligations under Articles 2, 3 and 4 of that decision

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 287, 22.9.2012


title: Case C-239/07: Judgment of the Court (Third Chamber) of 9 October 2008 (reference for a preliminary ruling from the Lietuvos Respublikos Konstitucinis Teismas (Republic of Lithuania)) — Proceedings for review of the constitutionality of legislation brought by Julius Sabatauskas and Others (Internal market in electricity — Directive 2003/54/EC — Article 20 — Transmission and distribution systems — Third party access — Obligations of Member States — Open access of third parties to electricity transmission and distribution systems)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/8

         Judgment of the Court (Third Chamber) of 9 October 2008 (reference for a preliminary ruling from the Lietuvos Respublikos Konstitucinis Teismas (Republic of Lithuania)) — Proceedings for review of the constitutionality of legislation brought by Julius Sabatauskas and Others
   (Case C-239/07) (1)

   (Internal market in electricity - Directive 2003/54/EC - Article 20 - Transmission and distribution systems - Third party access - Obligations of Member States - Open access of third parties to electricity transmission and distribution systems)
   (2008/C 301/15)
   Language of the case: Lithuanian
   Referring court
   Lietuvos Respublikos Konstitucinis Teismas
   Parties in the main proceedings
   Julius Sabatauskas and Others
   Re:
   Reference for a preliminary ruling — Lietuvos respublikos konstitucinis teismas — Interpretation of Article 20 of Directive 2003/54/EC 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 — Statements made with regards to decommissioning and waste management activities (OJ 2003 L 176, p. 37) — Compatibility with the directive of national legislation permitting consumers to have access to the electricity transmission system only after refusal by the distribution system operator to grant access to a distribution system.
   Operative part of the judgment

               1.

               Article 20 of Directive 2003/54/EC 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 is to be interpreted as defining the Member States' obligations only in respect of the access and not the connection of third parties to the electricity transmission and distribution systems and as not laying down that the system of network access that the Member States are required to establish must allow an eligible customer to choose, at his discretion, the type of system to which he wishes to connect.

               2.

               Article 20 must also be interpreted as not precluding national legislation which lays down that an eligible customer's equipment may be connected to a transmission system only where the distribution system operator refuses, on account of established technical or operating requirements, to connect to its system the equipment of the eligible customer which is on the territory included in its licence. It is, however, for national courts to verify that the implementation and application of that access system takes place in accordance with objective and non discriminatory criteria between the users of the transmission and distribution systems.

      (1)  OJ C 170, 21.7.2007.


title: Case C-319/14: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 3 July 2014  — B&S Global Transit Center BV; other party: Staatssecretaris van Financiën

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/39

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 3 July 2014 — B&S Global Transit Center BV; other party: Staatssecretaris van Financiën
   (Case C-319/14)
   2014/C 315/63
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant in cassation: B&S Global Transit Center BV

      Other party: Staatssecretaris van Financiën

      Questions referred

               1.

               Must Articles 203 and 204 of the Community Customs Code, (1) read in conjunction with Article 859 (in particular paragraph 6) of [the Regulation implementing the Community Customs Code], (2) be interpreted as meaning that, where the external Community customs transit procedure has not ended, but documents have in fact been produced which make it possible to assume that the goods have left the customs territory of the European Union, the fact that that procedure has not ended does not lead to the incurring of a customs debt by reason of a removal of the goods from customs supervision within the meaning of Article 203 of the Community Customs Code but, in principle, to the incurring of a customs debt on the basis of Article 204 of the Community Customs Code?

               2.

               Must Article 859(6) of Regulation No 2454/93 be interpreted as meaning that that provision concerns exclusively the non-performance of (one of) the obligations associated with the (re)exportation of goods as set out in Articles 182 and 183 of the Community Customs Code? Alternatively, should the clause ‘without completion of the necessary formalities’ be taken to mean that the ‘necessary formalities’ also include the formalities that must be completed prior to the (re)exportation in order to bring to an end the customs procedure under which the goods have been placed?

               3.

               If the answer to Question 2 is in the affirmative, must the third indent of Article 859 of Regulation No 2454/93 be interpreted as meaning that the fact that the formalities referred to in Question 2 have not been completed does not, in a situation such as that in the present case — in which, on the basis of documentation, it has been shown that the goods left the customs territory of the European Union subsequent to transit within the European Union — preclude the condition that ‘all the formalities necessary to regularise the situation of the goods are subsequently carried out’ from being deemed to have been satisfied?

      (1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

      (2)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).


title: Case T-113/09: Action brought on 19 March 2009 — PromoCell bioscience alive v OHIM (SupplementPack)

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/16

         Action brought on 19 March 2009 — PromoCell bioscience alive v OHIM (SupplementPack)
   (Case T-113/09)
   2009/C 129/28
   Language in which the application was lodged: German

      Parties

      Applicant: PromoCell bioscience alive GmbH Biomedizinische Produkte (Heidelberg, Germany) (represented by K. Mende, 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 15 January 2009 in Case R 996/2008-4;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘SupplementPack’ for goods and services in Classes 1, 3, 5, 41 and 42 (Application No 5 433 883)

      Decision of the Examiner: rejection of the application

      Decision of the Board of Appeal: dismissal of the appeal

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation (EC) No 40/94 as the mark applied for has the requisite distinctive character and its availability does not have to be preserved


title: Case C-307/01: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court of 6 June 2001, in the case of 1) Dr Peter L. d'Ambrumenil, 2) Dispute Resolution Services Ltd against Commissioners of Customs and Excise

text:
C 317/10               EN                    Official Journal of the European Communities                                    10.11.2001
4.   The Confédération belge du commerce et de la réparation                  (f)  the preparation of Medical Reports
     automobile et des secteurs connexes ASBL (Federauto) is ordered
     to bear its own costs.                                                        (i)   following the examinations referred to in (e)
                                                                                and
                                                                                (ii) based on medical notes but without conducting
(1) OJ C 316 of 4.11.2000.                                                               a medical examination,
                                                                              (g)  medical examinations conducted with a view to the
                                                                                preparation of expert Medical Reports regarding
                                                                                professional medical negligence for individuals con-
                                                                                templating litigation, and
                                                                              (h) the preparation of Medical Reports
                                                                                (i)   following the examinations referred to in (g)
Reference for a preliminary ruling by the VAT and Duties                                 and
Tribunals, London Tribunal Centre, by direction of that
court of 6 June 2001, in the case of 1) Dr Peter L.                                (ii) based on medical notes but without conducting
d’Ambrumenil, 2) Dispute Resolution Services Ltd against                                 a medical examination?
           Commissioners of Customs and Excise
                                                                        (1) OJ L 145 of 13.6.1977, p. 1.
                         (Case C-307/01)
                         (2001/C 317/17)
Reference has been made to the Court of Justice of the                  Reference for a preliminary ruling by the Bundesverga-
European Communities by a direction of the VAT and Duties               beamt (Austria) by order of 11 July 2001 in the case of
Tribunals, London Tribunal Centre, of 6 June 2001, which was            (1) Siemens AG Österreich; (2) ARGE Telekom & Partner
received at the Court Registry on 6 August 2001, for a                  v Hauptverband der österreichischen Sozialversiche-
preliminary ruling in the case of 1) Dr Peter L. d’Ambrumenil,            rungsträger; intervening party: EDS/ORGA consortium
2) Dispute Resolution Services Ltd against Commissioners of
Customs and Excise, on the following questions:                                                 (Case C-314/01)
1.   Is article 13A(1)(c) of Directive 77/388/EEC (1) of 17 May                                 (2001/C 317/18)
     1977 on the harmonisation of the laws of the Member
     States relating to turnover taxes to be interpreted as             Reference has been made to the Court of Justice of the
     covering the following activities when performed in the            European Communities by order of 11 July 2001 by the
     exercise of the medical profession as defined by the               Bundesvergabeamt (Austrian Federal Procurement Office),
     Member State:                                                      which was received at the Court Registry on 9 August 2001,
                                                                        for a preliminary ruling in the case of (1) Siemens AG
                                                                        Österreich; (2) ARGE Telekom & Partner v Hauptverband der
     (a)   conducting medical examinations of individuals for           österreichischen Sozialversicherungsträger; intervening party:
           employers or insurance companies.                            EDS/ORGA consortium, on the following questions:
     (b) the taking of blood or other bodily samples to test            1.    Is Council Directive 89/665/EEC (1) of 21 December
           for the presence of viruses, infections or other                   1989 on the coordination of the laws, regulations and
           diseases on behalf of employers or insurers,                       administrative provisions relating to the application of
                                                                              review procedures to the award of public supply and
                                                                              public works contracts, and in particular Article 2(1)(b)
     (c)   certification of medical fitness, for example, as to               thereof, if necessary in conjunction with Article 2(7)
           fitness to travel,                                                 thereof, to be interpreted as meaning that the legal effect
                                                                              of a decision taken by a national review body within the
     (d) giving certificates as to a person’s medical condition               meaning of Article 2(8) of Directive 89/665 relating to
           for purposes such as entitlement to a War Pension,                 the setting aside of a contracting authority’s decision not
                                                                              to cancel a contract award procedure is that if national
                                                                              law does not provide any basis for the effective and
     (e)   medical examinations conducted with a view to the                  compulsory enforcement of the review body’s decision
           preparation of expert Medical Reports regarding                    against the contracting authority, the contract award
           issues of liability and the quantification of damages              procedure is automatically terminated by the national
           for individuals contemplating personal injury liti-                review body’s decision, without the need for any further
           gation,                                                            act by the contracting authority?


title: Case C-577/11: Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 21 November 2011 — DKV Belgium v Association belge des consommateurs test-achats ASBL

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/14

         Reference for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 21 November 2011 — DKV Belgium v Association belge des consommateurs test-achats ASBL
   (Case C-577/11)
   2012/C 32/25
   Language of the case: French

      Referring court

   Cour d’appel de Bruxelles

      Parties to the main proceedings

      Applicant: DKV Belgium

      Defendant: Association belge des consommateurs Test-Achats ASBL

      Question referred

   Should [the second paragraph of] Article 29 and Article 39(3) of Directive 92/49/EEC (1), [the third subparagraph of] Article 8(3) of Directive 73/239/EEC (2), and Articles 49 and 56 TFEU be interpreted as prohibiting the Member States from providing, with regard to health insurance contracts not linked to professional activity, provisions under which the premium, the excess payable and the benefit can be adapted, on the annual date of the premium, only:

               —

               on the basis of the consumer price index;

               —

               on the basis of one or more specific indices, to the costs of the services covered by private health insurance contracts [known as a ‘medical index’], if and in so far as the changes in that or those indices exceed that in the consumer price index;

               —

               with authorisation from an administrative authority, responsible for the supervision of insurance undertakings, upon a request of the insurance undertaking concerned, where that authority finds that the application of the premium rate of that undertaking, notwithstanding the adaptations calculated on the basis of the indices referred to in the paragraphs above, gives rise to, or is likely to give rise to losses, thereby enabling it to take measures in order to balance its premium rates, which may include an amendment to the conditions of cover?

      (1)  Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1).

      (2)  First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3).