title: Judgment of the Court of 24 November 2014 in Case E-27/13 — Sævar Jón Gunnarsson v Landsbankinn hf. (Indexation of loans — Directive 87/102/EEC — Consumer credit agreements — Directive 93/13/EEC — Unfair terms — Mandatory terms)

text:
               4.6.2015

               EN

               Official Journal of the European Union

               C 183/7

         JUDGMENT OF THE COURT
   of 24 November 2014
   in Case E-27/13
   Sævar Jón Gunnarsson v Landsbankinn hf.
   (Indexation of loans — Directive 87/102/EEC — Consumer credit agreements — Directive 93/13/EEC — Unfair terms — Mandatory terms)
   (2015/C 183/08)
   In Case E-27/13, Sævar Jón Gunnarsson v Landsbankinn hf. – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice from Reykjavík District Court (Héraðsdómur Reykjavíkur) concerning the interpretation of Council Directive 87/102/EEC of 22 December 1986 on consumer credit and Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave judgment on 24 November 2014, the operative part of which is as follows:

               1.

               When a credit agreement is linked to a consumer price index, it is not compatible with Directive 87/102/EEC to calculate the total cost of the credit and the annual percentage rate of charge on the basis of 0 % inflation if the known rate of inflation at the time of the credit agreement is not 0 %. It is for the national court to assess, taking account of all the circumstances of the case, the legal consequences of and the remedies for such incorrect information, provided that the level of protection established by Directive 87/102/EEC, as interpreted by the Court, is not compromised.
               For the situation that the referring court does not consider the contractual terms on the indexation of repayment instalments of the consumer loan in question to be mandatory regulatory or statutory provisions within the meaning of Article 1(2) of Directive 93/13/EEC, the answers to the subsequent questions are as follows:

               2.

               Directive 93/13/EEC does not generally prohibit contractual terms on the indexation of loans in contracts between a supplier and a consumer. It is for the referring court to assess whether the term at issue is unfair. The assessment must take account of the Court’s interpretation of the concept of ‘unfair term’.

               3.

               Directive 93/13/EEC does not limit the discretion of an EEA State to determine, whether through legislation or by means of administrative regulation, the factors that may cause changes in a pre-determined index, such as the Icelandic consumer price index, as well as the methods for measuring those changes, provided that they are explicitly described in the contract.

               4.

               It is for the competent national court to establish whether a particular contract term has been negotiated individually within the meaning of Article 3 of Directive 93/13/EEC.

               5.

               It is for the competent national court to establish whether a contract term relating to the indexation of repayment instalments of a loan must be regarded as having been explicitly and comprehensibly described to the consumer. Such an assessment must take into account the precise wording of the relevant contract terms and all other relevant circumstances, including the circumstances set out in points (a) and (b) of the fourth question posed by the national court, as well as the national legislation on price indexation.

               6.

               Article 6(1) of Directive 93/13/EEC is to be interpreted as meaning that, where a national court considers that a given term is unfair within the meaning of Directive 93/13/EEC, that court must ensure that such a clause is not binding on the consumer provided that the contract is capable of continuing in existence without the unfair term, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible.


title: Case C-118/03: Reference for a preliminary ruling by the Arbeitsgericht Berlin by order of that Court of 30 April 2003 in the proceedings between Imtraud Junk and Rechtsanwalt Wolfgang Kühnel as the liquidator of the assets of AWO Gemeinnützige Pflegegesellschaft Südwest mbH

text:
6.9.2003               EN                         Official Journal of the European Union                                         C 213/7
Advisory Committee on Procurement and Contracts (ACPC),                   Reference for a preliminary ruling by the Arbeitsgericht
the favourable opinion of the ACPC, and the notice of contract            Berlin by order of that Court of 30 April 2003 in the
award published in the Official Journal.                                  proceedings between Imtraud Junk and Rechtsanwalt
                                                                          Wolfgang Kühnel as the liquidator of the assets of AWO
                                                                                Gemeinnützige Pflegegesellschaft Südwest mbH
By its second plea in law, the appellant submits that there is a                                   (Case C-118/03)
contradiction in the grounds of the judgment under appeal
inasmuch as the Court of First Instance formed the view that
the contract concluded between the Council and the successful                                      (2003/C 213/12)
tenderer was the decision to award the contract (paragraph 44)
but examined the Council’s letter of 11 March 2000 to
determine that the decision to award the contract was
                                                                          Reference has been made to the Court of Justice of the
adequately reasoned (paragraphs 56, 57 and 58). By way of
                                                                          European Communities by order of the Arbeitsgericht Berlin
alternative submission, the appellant criticises the Court of
                                                                          (Labour Court, Berlin) of 30 April 2003, received at the Court
First Instance for having failed to ensure compliance with the
                                                                          Registry on 7 May 2003, for a preliminary ruling in the
obligation to state reasons imposed by Article 253 EC in so
                                                                          proceedings between Imtraud Junk and Rechtsanwalt Wolf-
far as it took the view that the Council’s letter of 11 March
                                                                          gang Kühnel as the liquidator of the assets of AWO Gemeinnüt-
2000 was adequately reasoned, particularly having regard to
Article 8(1) of Directive 93/37.                                          zige Pflegegesellschaft Südwest mbH on the following ques-
                                                                          tions:
                                                                          1.    Is Council Directive 98/59/EC ( 1) of 20 July 1998 on the
                                                                                approximation of the laws of the Member States relating
By its third plea in law, the appellant contends that the Court                 to collective redundancies to be interpreted to the effect
of First Instance breached Articles 18 and 30(1) and (2) of                     that ‘redundancy’ within the meaning of Article 1(1)(a)
Directive 93/37 and the contract documents and infringed the                    thereof is to be construed as meaning the notice of
principles of equality and transparency inasmuch as it formed                   dismissal as the first act in terminating the contract of
the view that the qualitative criteria have as their main function              employment or does ‘redundancy’ mean the termination
to check that each tenderer has the competence and abilities                    of the contract of employment upon expiry of the period
required to carry out the works and that the award criteria, in                 of notice?
particular the qualitative and quantitative criteria, carry a
different weight even though that does not follow from the                2.    If ‘redundancy’ is to be construed as meaning the notice
contract documents.                                                             of dismissal, does the directive require that both the
                                                                                consultation procedure under Article 2 of the directive
                                                                                and the notification procedure under Articles 3 and 4
                                                                                thereof must have been concluded before the notices of
By its fourth plea in law, the appellant criticises the Court of                dismissal are announced?
First Instance on the ground that it distorted the appellant’s
argument in forming the view that, in regard to the three
criteria in respect of which STRABAG’s tender was superior to             (1 ) OJ L 225 of 12.08.1998, p. 16.
that of the successful tenderer, the appellant had placed in
question the Council’s assessment in its report to the ACPC,
whereas it in fact criticised the Council for having submitted
during the proceedings before the Court of First Instance
assessments which differed from those contained in that
report.
                                                                          Reference for a preliminary ruling by the Finanzgericht
                                                                          Hamburg by order of that Court of 29 April 2003 in the
                                                                          dispute between Dr Georg Friedrich Baur Jr., executor of
In support of its claim for compensation, the appellant argues            the estate of Dr Georg Friedrich Baur Sr. and Hauptzoll-
that, at the time when the contract was being awarded, the                                             amt Kiel
Council acted unlawfully in such a way as to incur non-
contractual liability. This unlawful conduct formed the basis
of significant damage incurred by STRABAG, which forfeited                                         (Case C-194/03)
the profit which it hoped to secure from performing the
contract and whose commercial image and reputation have                                            (2003/C 213/13)
suffered as a result. The appellant calculates its total damage
to be EUR 3 803 214, that is to say, 10 % of the turnover
which it might have hoped to achieve.
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Finanzgericht Ham-
                                                                          burg (Finance Court, Hamburg) of 29 April 2003, received at
                                                                          the Court Registry on 12 May 2003, for a preliminary ruling


title: Action brought on 7 April 1997 by Léon Rappe against the Commission of the European Communities (Case T-96/97)

text:
No C 166/26            EN                Official Journal of the European Communities                                   31 . 5 . 97
by Nicolas Lhoëst, of the Brussels Bar, with an address for         — annul, in so far as may be necessary, the decision
service in Luxembourg at the offices of Fiduciaire Myson                 adopted by the Commission on 27 December 1996
Sari, 30 Rue de Cessange .                                               expressly rejecting the applicant's complaint,
The applicant claims that the Court should:                         — order the defendant to pay all the costs.
— annul the Commission's decision of 21 June 1996                   Pleas in law and main arguments adduced in support:
    rejecting the applicant's request that it give
    consideration to the possible application of Article 31         The pleas in law and main arguments are the same as in
    ( 2 ) of the Staff Regulations,                                 Case T- 16/97 (').
                                                                    (') OJ No C 74, 8 . 3 . 1997, p . 27.
— annul, in so far as may be necessary, the decision
    adopted by the Commission on 27 December 1996
    expressly rejecting the applicant's complaint,
— order the defendant to pay all the costs .
                                                                    Action brought on 7 April 1997 by Daniel Callebaut
Pleas in law and main arguments adduced in support:                    against the Commission of the European Communities
                                                                                ( Case T-97/97)
The pleas in law and main arguments are the same as in                                         ( 97/C 166/56 )
Case T-16/97 H.
                                                                                (Language of the case: French)
H OJ No C 74, 8 . 3 . 1997, p . 27.
                                                                    An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 7 April 1997
                                                                    by Daniel Callebaut, residing at Mondorf-les-Bains
                                                                    ( Luxembourg ), represented by Nicolas Lhoëst, of the
Action brought on 7 April 1997 by Leon Rappe against                Brussels Bar, with an address for service in Luxembourg at
        the Commission of the European Communities                  the offices of Fiduciaire Myson Sari , 30 Rue de Cessange.
                         (Case T-96/97)
                                                                    The applicant claims that the Court should:
                          97/C 166/55
                                                                    — annul the Commission 's decision of 20 June 1996
                 (Language of the case: French)
                                                                         rejecting the applicant's request that it give
                                                                         consideration to the possible application of Article 31
An action against the Commission of the European                         ( 2 ) of the Staff Regulations,
Communities was brought before the Court of First
Instance of the European Communities on 7 April 1997                — annul, in so far as may be necessary, the decision
by Leon Rappe, residing at Hoegaarden ( Belgium),                        adopted by the Commission on 27 December 1996
represented by Nicolas Lhoëst, of the Brussels Bar, with an              expressly rejecting the applicant's complaint,
address for service in Luxembourg at the offices of
Fiduciaire Myson Sari, 30 Rue de Cessange.                          — order the defendant to pay all the costs .
The applicant claims that the Court should:                         Pleas in law and main arguments adduced in support:
— annul the Commission's decision of 18 June 1996                   The pleas in law and main arguments are the same as in
    rejecting the applicant's request that it give                  Case T- 16/97 ( M.
    consideration to the possible application of Article 31
    (2 ) of the Staff Regulations,                                  H OJ No C 74, 8 . 3 . 1997, p . 27 .


title: Case C-133/09: Judgment of the Court (Fourth Chamber) of 30 September 2010 (reference for a preliminary ruling from the Fövárosi Bíróság — Republic of Hungary) — József Uzonyi v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve (Agriculture — Common agricultural policy — Support schemes — Regulation (EC) No 1782/2003 — Article 143ba — Separate sugar payment — Grant — Decision of the new Member States — Conditions — Objective and non-discriminatory criteria)

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/9

         Judgment of the Court (Fourth Chamber) of 30 September 2010 (reference for a preliminary ruling from the Fövárosi Bíróság — Republic of Hungary) — József Uzonyi v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve
   (Case C-133/09) (1)

   (Agriculture - Common agricultural policy - Support schemes - Regulation (EC) No 1782/2003 - Article 143ba - Separate sugar payment - Grant - Decision of the new Member States - Conditions - Objective and non-discriminatory criteria)
   2010/C 317/16
   Language of the case: Hungarian

      Referring court

   Fövárosi Bíróság

      Parties to the main proceedings

      Applicant: József Uzonyi

      Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

      Re:

   Reference for a preliminary ruling — Fővárosi Bíróság — Interpretation of Article 143ba(1) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 — Obligation on Member States to grant a separate sugar payment on the basis of objective and non-discriminatory criteria — National legislation reserving that payment to producers holding a supply contract for sugar beet concluded directly with a sugar refinery

      Operative part of the judgment

   Article 143ba(1) of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, as amended by Council Regulation (EC) No 319/2006 of 20 February 2006, must be interpreted as precluding national provisions such as those at issue in the main proceedings which exclude from entitlement to a separate sugar payment a farmer not having delivery rights who delivers sugar beet to a sugar manufacturer through an integrátor which does have such rights, although those provisions grant a separate payment to a farmer having delivery rights who delivers sugar beet direct to a sugar manufacturer, and to a farmer not having delivery rights who is a member of a producer group which does have delivery rights and who delivers sugar beet to a sugar manufacturer through that group.

      (1)  OJ C 153, 4.7.2009.


title: Case T-9/13: Action brought on 8 January 2013 — National Iranian Gas Company v Council

text:
               16.3.2013

               EN

               Official Journal of the European Union

               C 79/23

         Action brought on 8 January 2013 — National Iranian Gas Company v Council
   (Case T-9/13)
   2013/C 79/41
   Language of the case: French

      Parties

      Applicant: The National Iranian Gas Company (Tehran, Iran) (represented by: E. Glaser and S. Perrotet, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Article 1(8) of Council Decision 2012/635/CFSP of 15 October 2012 in so far as it has amended Article 20(c) of Decision 2010/413/CFSP;

               —

               Annul Council Decision 2012/635/CFSP of 15 October 2012 in so far as it includes NIGC in the list of entities to which the measures freezing funds referred to in Annex II to Decision 2010/413/CFSP are to apply;

               —

               Annul also Council Implementing Regulation No 945/2012 of 15 October 2012 in so far as it includes NIGC in the list of entities to which the measures freezing funds in Annex IX to Regulation No 267/2012 are to apply;

               —

               Declare that Regulation No 267/2012, Decision 2010/413/CFSP, as amended by Decisions 2012/35/CFSP and 2012/635/CFSP in their provisions inserting then amending Article 20(c) of Decision 2010/413/CFSP and adding the applicant to the list in Annex II does not apply to NIGC;

               —

               And, in the alternative, should Article 1(8) of Council Decision 2012/635/CFSP of 15 October 2012, in so far as it has amended Article 20(c) of Decision 2010/413/CFSP, not be annulled, declare that it does not apply to the National Iranian Gas Company;

               —

               Order the Council to pay all the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging the inapplicability of Article 20(1)(c) of Decision 2010/413/CFSP (1) as inserted and amended by Decisions 2012/35/CFSP (2) and 2012/635/CFSP, (3) and the unlawfulness of Article 1(8) of Decision 2012/635/CFSP amending Article 20(1)(c) of Decision 2010/413/CFSP, those decisions being based on imprecise and indeterminate notions, contrary to the right to property and to the principle of proportionality.

               2.

               Second plea in law, alleging an irregularity in procedure and the Council’s lack of powers to act alone under Article 215 TFEU.

               3.

               Third plea in law, alleging infringement of the duty to state reasons, since the Council took as its basis vague and imprecise factors which cannot be verified.

               4.

               Fourth plea in law, alleging infringement of the applicant’s fundamental rights, since the applicant is deprived of its right to effective judicial protection and of its right to property, since the contested decision is vitiated by insufficient reasoning which does not enable the applicant effectively to defend itself or the Court to carry out a review. The applicant submits that it has not had access to documents in its file before the Council.

               5.

               Fifth plea in law, alleging a lack of evidence against the applicant, since the Council has taken as its basis mere allegations.

               6.

               Sixth plea in law, alleging an error of law, since the Council deduced from the fact that the applicant was a public undertaking that it gave financial support to the Iranian Government.

               7.

               Seventh plea in law, alleging material inaccuracies in the facts, since the applicant is not a company held and managed by the State and the applicant has not given financial support to the Iranian Government.

               8.

               Eighth plea in law, alleging a manifest error of assessment and infringement of the principle of proportionality, since the restrictions on the applicant’s right to property and its right to exercise an economic activity are disproportionate having regard to the objective pursued. The applicant submits that the freezing of its funds does not meet the objective pursued since it is not involved in the implementation of the nuclear programme of which the Iranian Government is accused.

               9.

               Ninth plea in law, alleging a lack of legal basis for Implementing Regulation No 945/2012. (4)

               10.

               Tenth plea in law, alleging that Implementing Regulation No 945/2012 is vitiated by lack of powers and a lack of reasoning.

      (1)  Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), as corrected.

      (2)  Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 19, p. 22), as corrected.

      (3)  Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58).

      (4)  Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16).


title: Case C-399/05: Judgment of the Court (Third Chamber) of 18 July 2007 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 93/38/EC — Procurement in the water, energy, transport and telecommunications sectors — Construction and bringing into operation of a thermal power station — Conditions of admission to the tendering procedure)

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/5

         Judgment of the Court (Third Chamber) of 18 July 2007 — Commission of the European Communities v Hellenic Republic
   (Case C-399/05) (1)

   (Failure of a Member State to fulfil obligations - Directive 93/38/EC - Procurement in the water, energy, transport and telecommunications sectors - Construction and bringing into operation of a thermal power station - Conditions of admission to the tendering procedure)
   (2007/C 211/08)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: M. Patakia and X. Lewis, acting as Agents)

      Defendant: Hellenic Republic (represented by: D. Tsagkaraki and V. Christianos, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Article 4(2) of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84) — Admission of the tenders of two companies not meeting the conditions of the notice to tender or of the specification — Construction and bringing into operation of a thermal power station at Lavrio
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Commission of the European Communities to pay the costs.

      (1)  OJ C 22, 28.1.2006.


title: Case C-242/00: Action brought on 16 June 2000 by the Federal Republic of Germany against the Commission of the European Communities

text:
C 247/20                EN                      Official Journal of the European Communities                                        26.8.2000
The Court of First Instance based its conclusions on the extent            2.    order the defendant to pay the costs.
of the rights of a complainant on a misapplication of the BAT
& Reynolds case, and Matra Hachette v. Commission. The
Court should have focussed on the fact that the Commission,
having granted access to the file, failed to give Kish sufficient
time to comment on documents in its file, contrary to the
principles set out in Guérin Automobiles v. Commission. As a
                                                                           Pleas in law and main arguments
result, the Court is in breach of Community law.
Third ground: incorrect application of Article 253 of the EC
                                                                           —     Infringement of Article 87(3) and Article 3(1)(g) of the
Treaty, and misinterpretation of the evidence before the Court
                                                                                EC Treaty, the principle of equal treatment and the
in the judgment.
                                                                                principle of proportionality.
In concluding that the contested decision was adequately
reasoned pursuant to Article 253 (ex Article 190) of the
Treaty, the Court misinterpreted the facts as established at the                 —     In the context of its investigation into the potential
oral hearing. Pursuant to established case law, the extent of the                      amount of development aid to disadvantaged econ-
obligation to state reasons is a question of law reviewable by                         omic areas based on existing regional disparities
the Court of Justice on appeal.                                                        within Article 87(3)(c) of the EC Treaty, the Com-
                                                                                mission established, on the basis of income and
                                                                                unemployment levels, the extent to which areas
                                                                                are disadvantaged measured against the overall
(1) EEC Council Regulation No. 17 of 6 February 1962, First Regu-                      economic situation in each Member State. For
    lation implementing Articles 85 and 86 of the Treaty, OJ 013,                      Germany, it calculated that 23,4 % of the population
    21.2.1962, p. 204 (OJ, English Special Edition 1959-1962, p. 87).                  live in areas where the economic situation is so bad
                                                                                compared to the economic situation in Germany as
                                                                                a whole that aid under Article 87(3)(c) of the EC
                                                                                Treaty is in principle justified. Germany applied for
                                                                                aid under Article 87(3)(c) of the EC Treaty in respect
                                                                                of areas whose size exactly reflects the figure of
                                                                                23,4 % of the German population calculated by the
                                                                                Commission. The Commission’s curtailing of the
                                                                                parameters of the areas eligible for aid to just 17,6 %
                                                                                of the German population is not based on sufficient
                                                                                grounds nor is it justifiable on the basis that trading
Action brought on 16 June 2000 by the Federal Republic                                 conditions would otherwise be affected to an extent
of Germany against the Commission of the European                                      contrary to the common interest. Germany’s rela-
                           Communities                                                 tively strong economic situation is in any event
                                                                                already taken account of, because regions in rela-
                                                                                tively strong countries economically have to show a
                         (Case C-242/00)                                               bigger divergence from national averages (unem-
                                                                                ployment, per capita GDP measured according to
                                                                                purchasing power standard) than regions in econ-
                         (2000/C 247/27)                                               omically weaker countries, in order to be considered
                                                                                for the method of apportionment. In fact the
                                                                                Commission’s approach even has the result that
An action against the Commission of the European Communi-
                                                                                Ireland and Portugal, for example, may grant
ties was brought before the Court of Justice of the European
                                                                                regional aid to areas where income levels are clearly
Communities on 16 June 2000 by the Federal Republic of
                                                                                above the national average, thereby further magnify-
Germany represented by Wolf-Dieter Plessing, Ministerialrat in
                                                                                ing national disparities.
the Federal Ministry for Finances, Graurheindorfer Str. 108,
D-53117 Bonn and Dr Rainer M. Bierwagen of Kemmler Rapp
Böhlke & Crosby, Brussels.
                                                                                —     The Commission treated similar facts differently in
                                                                                determining the maximum amount of regional
The applicant claims that the Court should:
                                                                                assistance for the Member States. That is because the
                                                                                Commission, using an objective method, increases
1.     declare the Commission’s decision of 14 March 2000,                             the basic maxima arrived at in respect of some
       K(2000)809 final (1) null and void in so far as proposed                        Member States, but significantly reduces them in
       regional aid notified for Germany for areas within the                          respect of other Member States. The Commission
       meaning of Article 87(3)(c) of the EC Treaty is found to                        therefore affords the favoured Member States oppor-
       be incompatible with the common market on the basis                             tunities to grant aid in amounts which go beyond
       of the figure of 23,4 % of the German population;                               actual regional-political commercial needs. On the
 ---pagebreak--- 26.8.2000               EN                    Official Journal of the European Communities                                     C 247/21
            other hand, Member States are not supposed to be             Reference for a preliminary ruling by the High Court
            able to take account of the regional-political trading       of Justice (England & Wales), Queen’s Bench Division
            needs established by the Commission itself using the         (Divisional Court), by order of that court of 23 May 2000,
            objective standard of regional disparities in those          in the case of The Queen against Secretary of State for
            Member States. Such ‘corrections’ also mean that                Trade and Industry, Ex parte: Trades Union Congress
            the level of the population in the region eligible for
            aid exceeds the target percentage level laid down by
                                                                                (Case C-243/00)
            the Commission of 42,7 % of the Community
            population. In any event, the fact that the Com-
            mission allows some Member States to have bigger                                      (2000/C 247/28)
            regions eligible for aid than is necessary having
            regard to the actual size of regional disparities in
            those Member States cannot constitute an objective           Reference has been made to the Court of Justice of the
            reason for reducing the size of the German regions           European Communities by an order of the High Court of
            eligible for aid.                                            Justice (England & Wales), Queen’s Bench Division (Divisional
                                                                         Court) of 23 May 2000, which was received at the Court
                                                                         Registry on 19 June 2000, for a preliminary ruling in the case
                                                                         of The Queen against Secretary of State for Trade and Industry,
      —     Germany does not challenge the Commission’s                  Ex parte: Trades Union Congress, on the following question:
            chosen goal to devolve decisions on the size of the
            regional aid areas to the Member States. However,
            the measures taken by the Commission to achieve              ‘Whether Directive 96/34/EC (1) (as extended to the United
            that goal are both unnecessary and wholly dispro-            Kingdom by Directive 97/75/EC) (2), and the Framework
            portionate. Reducing the size of regions of Germany          Agreement of 14 December 1995 to which it gave effect,
            eligible for aid is not the least restrictive possible       required Member States to confer the right to parental leave in
            measure to attain the objective of reducing the              relation to children under the specified age born or adopted
            size of those regions eligible for aid within the            before the date on which the Directive was given effect in the
            Community as a whole. For example, the Com-                  national law of Member States or only to children born or
            mission could have omitted to adopt ‘correction              adopted on or after that date.’
            measures’, or structured them in such a way that the
            increase in the overall population of the region
            eligible for aid was less. The Commission could also,        (1) Council Directive 96/34/EC of 3 June 1996 on the framework
            to even out the ‘corrections’, have applied the same             agreement on parental leave concluded by UNICE, CEEP and the
            reductions in all Member States, that is, including              ETUC (OJ L 145, 19.06.96, p. 4).
                                                                         (2) OJ L 10, 16.01.98, p. 24.
            those for whom the ‘corrections’ work in their
            favour.
—     Infringement of essential procedural requirements. The
      Commission does not give sufficient reasons for reducing
      the size of the German regions eligible for aid as such or
      the effect of applying dissimilar treatment to Community
      trade and competition.                                             Reference for a preliminary ruling by the Bundesgerichts-
                                                                         hof by order of that court of 11 May 2000 in the case of
                                                                         van Doren + Q. GmbH against lifestyle sports + sports-
      Nor do the ‘Guidelines on National Regional Aid’ publi-                 wear Handelsgesellschaft mbH and Michael Orth
      shed by the Commission in Official Journal C 74 of
      10 March 1998 contain any reasons for the Com-
      mission’s subsequent decision. Even if they did, Germany                                    (Case C-244/00)
      could not have challenged those guidelines of its own
      motion.                                                                                (2000/C 247/29)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Federal Court of Justice
(1) The Commission’s decision of 14 March 2000 redefining the
                                                                         of 11 May 2000, received at the Court Registry on 19 June
    borders of areas eligible for aid for the purpose of the Com-        2000, for a preliminary ruling in the case of van Doren + Q.
    munity’s project entitled ‘Improvement of regional economic          GmbH v lifestyle sports + sportswear Handelsgesellschaft mbH
    structures’ in Germany for the period 1 January 2000 to              on the following question:
    31 December 2003 — West Germany and Berlin.
                                                                         Are Articles 28 and 30 EC to be interpreted as meaning that
                                                                         they permit the application of national legislation under which
                                                                         an infringer against whom proceedings are brought on the
                                                                         basis of a trade mark for marketing original goods, and who
                                                                         claims that the trade-mark right has been exhausted within the


title: Case C-147/15: Judgment of the Court (Fourth Chamber) of 28 July 2016 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Città Metropolitana di Bari, formerly Provincia di Bari v Edilizia Mastrodonato Srl (Reference for a preliminary ruling — Protection of the environment — Waste management — Directive 2006/21/EC — Article 10(2) — Backfilling of excavation voids using waste other than extractive waste — Landfill or recovery of such waste)

text:
               26.9.2016

               EN

               Official Journal of the European Union

               C 350/7

         Judgment of the Court (Fourth Chamber) of 28 July 2016 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Città Metropolitana di Bari, formerly Provincia di Bari v Edilizia Mastrodonato Srl
   (Case C-147/15) (1)

   ((Reference for a preliminary ruling - Protection of the environment - Waste management - Directive 2006/21/EC - Article 10(2) - Backfilling of excavation voids using waste other than extractive waste - Landfill or recovery of such waste))
   (2016/C 350/08)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Città Metropolitana di Bari, formerly Provincia di Bari

      Defendant: Edilizia Mastrodonato Srl

      Operative part of the judgment

   Article 10(2) of Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC must be interpreted as not having the effect of making an operation entailing the backfilling of a quarry using waste other than extractive waste subject to the requirements of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, where that operation amounts to a recovery of waste, which is a matter to be determined by the national court.

      (1)  OJ C 205, 22.6.2015.


title: Case T-208/04: Action brought on 7 June 2004 by Dominique Hardy against the Council of the European Union and the Commission of the European Communities

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/25

         Action brought on 7 June 2004 by Dominique Hardy against the Council of the European Union and the Commission of the European Communities
   (Case T-208/04)
   (2004/C 239/56)
   Language of the case: French
   An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 June 2004 by Dominique Hardy, whose place of business is in Coudeville-plage (France), represented by Jean-François Péricaud, lawyer.
   The applicant claims that the Court should:

               hold that the European Community has become liable to her by the adoption, and then application, to the detriment of ship's agents (agents maritimes), of Article 5 of the Community Customs Code in an unlawful manner;

               alternatively, hold that the European Community has become liable to her by the adoption, even if lawful, and then application of Article 5 of the Community Customs Code, having caused her to suffer an abnormal and special loss;

               order the Council and the Commission jointly and severally to pay to her damages of EUR 60 510 or, alternatively, of EUR 47 829 together with interest in both cases at the legal rate from the date on which the present action was brought;

               order the Council and the Commission jointly and severally to pay the costs.

         Pleas in law and main arguments
   The applicant states that, following the commencement by the Commission of a Treaty infringement procedure against the French State, France has, in order to bring French law into line with Article 5 of Regulation No 2913/92 (1), repealed the monopoly held by ship's agents, of whom the applicant is one, to deal with the customs authorities. According to the applicant, the withdrawal of that monopoly follows directly from the application of Article 5 of Regulation No 2913/92 and is therefore directly attributable to the European Community.
   The applicant's main submission is that the adoption of Article 5 of Regulation No 2913/92 constitutes an unlawful act for which the Community is liable.
   Firstly, the applicant claims that that article fails to have regard to the derogatory provisions of Article 45 of the EC Treaty to the extent that the profession of ship's agent, by application of customs legislation, is involved in the exercise of public authority.
   The applicant then alleges a breach of the principles of legal certainty and the protection of legitimate expectations. The applicant claims, on one hand, that Article 5 of Regulation No 2913/92 refers to the concept of ‘representation at customs’ which is different from that of ‘dealing with the customs authorities’, the latter being essentially carried out by ship's agents. An interpretation by analogy of that article would, according to the applicant, be contrary to the principle of legal certainty. On the other hand, the applicant alleges a violation of her legitimate expectations, arising from the absence of any transitional measure and from the fact that French ship's agents were the only ones in the Community to be constantly excluded from the earlier liberalisation measures.
   Furthermore, the applicant alleges a breach, constituted by the absence of transitional measures, of the principles of equality and proportionality. Finally, the applicant alleges a breach of the right to respect of property in that the abolition of the monopoly renders the office of ship's agent non-transferable and entirely worthless.
   The applicant claims, in the alternative, that the Community is liable on a no-fault basis given the abnormal and special nature of the loss suffered. According to the applicant, the harm is abnormal in that the loss of the economic value of the office and of the profit margin exceeds normal economic risks and is special in that ship's agents constitute a clearly distinct category of traders.

      (1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).


title: Case T-475/15: Action brought on 12 August 2015 — L’Oréal v OHIm — LR Health & Beauty Systems (LR)

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/35

         Action brought on 12 August 2015 — L’Oréal v OHIm — LR Health & Beauty Systems (LR)
   (Case T-475/15)
   (2015/C 328/32)
   Language in which the application was lodged: English

      Parties

      Applicant: L’Oréal (Paris, France) (represented by: R. Dissmann, lawyer)

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

      Other party to the proceedings before the Board of Appeal: LR Health & Beauty Systems GmbH (Ahlen, Germany)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word elements ‘LR’ — Community trade mark No 11 047 578

      Procedure before OHIM: Proceedings for a declaration of invalidity

      Contested decision: Decision of the First Board of Appeal of OHIM of 21 May 2015 in Case R 1143/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               partly annul the contested decision as far as the Board of Appeal rejects under point 2 the Plaintiff’s request for proof of use of the Intervener’s earlier trademarks as belated;

               —

               order OHIM to pay the costs of the proceedings before the court as well as the appeal proceedings before the Board of Appeal.

      Plea in law

               —

               Infringement of Article 57(2), (3) of Regulation No 207/2009 in connection with Rule 40 of Regulation No 2868/95.


title: Case C-375/12: Judgment of the Court (Fifth Chamber) of 13 March 2014 (request for a preliminary ruling from the Tribunal administratif de Grenoble — France) — Margaretha Bouanich v Direction départementale des finances publiques de la Drôme (Reference for a preliminary ruling  — Article 63 TFEU  — Free movement of capital  — Article 49 TFEU  — Freedom of establishment  — Tax on income of natural persons  — Mechanism capping direct taxes by reference to income  — Bilateral tax agreement for avoidance of double taxation  — Taxation of dividends distributed by a company established in another Member State and already subject to a withholding tax  — Failure to take into account or partial taking into account of the tax paid in the other Member State for the calculation of the tax cap  — Article 65 TFEU  — Restriction  — Justification)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/5

         Judgment of the Court (Fifth Chamber) of 13 March 2014 (request for a preliminary ruling from the Tribunal administratif de Grenoble — France) — Margaretha Bouanich v Direction départementale des finances publiques de la Drôme
   (Case C-375/12) (1)

   ((Reference for a preliminary ruling - Article 63 TFEU - Free movement of capital - Article 49 TFEU - Freedom of establishment - Tax on income of natural persons - Mechanism capping direct taxes by reference to income - Bilateral tax agreement for avoidance of double taxation - Taxation of dividends distributed by a company established in another Member State and already subject to a withholding tax - Failure to take into account or partial taking into account of the tax paid in the other Member State for the calculation of the tax cap - Article 65 TFEU - Restriction - Justification))
   2014/C 135/05
   Language of the case: French

      Referring court

   Tribunal administratif de Grenoble

      Parties to the main proceedings

      Applicant: Margaretha Bouanich

      Defendant: Direction départementale des finances publiques de la Drôme

      Re:

   Request for a preliminary ruling — Tribunal administratif de Grenoble — Interpretation of Articles 49, 63 and 65 TFEU — National legislation on personal income tax imposing a cap on the proportion of direct tax payable by a taxpayer — Mechanism known as the ‘bouclier fiscal’ (tax shield) — Bilateral tax convention — Taxation of dividends distributed by a company established in another Member State and already subject to a withholding tax — Sums deducted at source partially taken into account for the calculation of the tax cap — Justification of such legislation on the grounds of the cohesion of the tax system, a balanced allocation of taxing powers between the Member States, or any other overriding reason in the public interest.

      Operative part of the judgment

   Articles 49 TFEU, 63 TFEU and 65 TFEU must be interpreted as precluding legislation of a Member State under which, where a resident of that Member State who is a shareholder of a company established in another Member State receives dividends taxed in the two Member States and the double taxation is regulated by the imputation in the Member State of residence of a tax credit of an amount corresponding to the tax paid in the State of the distributing company, a mechanism capping various direct taxes at a certain percentage of income received during a year does not take into account, or takes only partially into account, the tax paid in the State of the distributing company.

      (1)  OJ C 319, 20.10.2012.


title: Case C-207/07: Action brought on 19 April 2007 — Commission of the European Communities v Kingdom of Spain

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/15

         Action brought on 19 April 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-207/07)
   (2007/C 140/24)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: H. Støvlbæk and R. Vidal Puig, acting as Agents)

      Defendant: Kingdom of Spain
   Form of order sought

               —

               declare that, by adopting the first indent of the second paragraph of the single article of Royal Decree-Law 4/2006 of 24 February 2006, amending the fourteenth function of the National Energy Commission provided for in Supplementary Provision No 11, part 3, point 1 of Law 34/1998 of 7 October 1998 on the hydrocarbon sector, in order to make the acquisition of certain shareholdings in undertakings which carry on certain regulated activities in the energy sector and the acquisition of the assets necessary to carry on such activities subject to the prior approval of the National Energy Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 56 EC and 43 EC;

               —

               order Kingdom of Spain to pay the costs.

         Pleas in law and main arguments

               1.

               The Spanish legislation which is the subject of these proceedings makes the following transactions subject to the prior approval of the National Energy Commission (‘the NEC’):

                           —

                           the acquisition of a shareholding in an undertaking which carries on itself or through other undertakings belonging to the same group certain activities in the energy sector, where that shareholding exceeds 10 %, or any other percentage giving a significant influence over that undertaking;

                           —

                           the acquisition of the assets necessary to carry on such activities.

               2.

               The Commission takes the view that the provision in question is incompatible with Article 56 of the EC Treaty for the following reasons:

                           —

                           the acquisition of shares in undertakings which carry on activities in the energy sector or the assets necessary to carry on such activities are ‘movements of capital’ within the meaning of Article 56 EC;

                           —

                           the requirement of prior approval by the NEC constitutes a ‘restriction’ on the free movement of capital prohibited in principle by Article 56 EC; and

                           —

                           that restriction is not justified under the EC Treaty.

               3.

               In particular, the Commission takes the view that the legislation at issue is not justified by the objective of safeguarding the energy supply for the following reasons:

                           —

                           the contested measure is not an appropriate means of safeguarding the energy supply, there being other more suitable means of doing so;

                           —

                           in any event, the contested measure is disproportionate, since prior approval is not limited to either certain specific aspects of the management of the undertaking in which a shareholding has been acquired or the management of the assets;

                           —

                           the power of the NEC to withhold the approval or to make it subject to conditions is not governed by criteria which are objective and sufficiently precise, so as to be amenable to effective review by the courts.

         The Commission considers that the legislation at issue also constitutes a restriction on the right to establishment contrary to Article 43 EC which, for the reasons already mentioned in relation to Article 56 EC, are not justified by the objective of safeguarding energy resources.


title: Order of the Court (Second Chamber) of 11 December 2001 in Case C-301/00 P: Karl L. Meyer v Commission of the European Communities (PTOM — Project financed by the EDF — Action for damages — Legitimate expectations — Commission duty to monitor)

text:
1.6.2002                EN                      Official Journal of the European Communities                                              C 131/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                    ORDER OF THE COURT                                                           ORDER OF THE COURT
                        (Second Chamber)                                                             (Fourth Chamber)
                      of 11 December 2001                                                          of 13 December 2001
in Case C-301/00 P: Karl L. Meyer v Commission of the                        in Case C-61/01 P: Francis Panichelli v European Parlia-
                   European Communities (1)                                                                ment (1)
(PTOM — Project financed by the EDF — Action for                             (Officials — Temporary agent — Lack of promotion —
damages — Legitimate expectations — Commission duty to                       Reassessment of post — Drawing up of staff reports —
                              monitor)                                       Termination of contract — Appeal manifestly inadmissible
                                                                                and manifestly unfounded)
                          (2002/C 131/01)
                                                                                (2002/C 131/02)
                    (Language of the case: French)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case 301/00 P: Karl L. Meyer, residing at Uturoa (Island of
Raiatea, French Polynesia), represented by J.-D. des Arcis,
                                                                             In Case 61/01 P: Francis Panichelli, residing in Wezembeek-
avocat, — appeal against the judgment of the Court of First
                                                                             Oppem (Belgium), represented by E. Boigelot, lawyer — appeal
Instance of the European Communities, Third Chamber, of
                                                                             against the judgment of the Court of First Instance of the
27 June 2000 in Case T-72/99 Meyer v Commission [2000]
                                                                             European Communities, Second Chamber, of 13 December
ECR II-2521, seeking to have that judgment set aside, the other
                                                                             2000 in Joined Cases T-130/98 and T-131/98 Panichelli v
party to the proceedings being Commission of the European
                                                                             Parliament [2000] ECR-SC I-A-287, II-1311, seeking to have
Communities (Agent: X. Lewis) — the Court, composed of
                                                                             that judgment set aside, the other party to the proceedings
N. Colneric (Rapporteur), President of Chamber, R. Schintgen
                                                                             being European Parliament (Agents: J. F. de Wachter and
and V. Skouris, Judges; A. Tizzano, Advocate General; R. Grass,
                                                                             D. Moore) — the Court, composed of S. von Bahr (Rapporteur),
Registrar, made an order on 11 December 2001, the operative
                                                                             President of Chamber, D.A.O. Edward and A. La Pergola,
part of which is as follows:
                                                                             Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar,
                                                                             made an order on 13 December 2001, the operative part of
1.    The appeal is dismissed.                                               which is as follows:
2.    Mr Meyer shall bear the costs.
                                                                             1.    The appeal brought by Mr Panichelli and the cross-appeal
                                                                                brought by the European Parliament are dismissed.
(1) OJ C 273 of 23.9.2000.
                                                                             2.    Mr Panichelli and the European Parliament shall bear their
                                                                                own costs.


title: Case C-389/16 P: Appeal brought on 12 July 2016 by BSH Hausgeräte GmbH, anciennement BSH Bosch und Siemens Hausgeräte GmbH against the judgment of the General Court (Ninth Chamber) delivered on 12 May 2016 in Case T-749/14: Chung-Yuan Chang v EUIPO — BSH Hausgeräte (AROMA)

text:
               13.3.2017

               EN

               Official Journal of the European Union

               C 78/6

         Appeal brought on 12 July 2016 by BSH Hausgeräte GmbH, anciennement BSH Bosch und Siemens Hausgeräte GmbH against the judgment of the General Court (Ninth Chamber) delivered on 12 May 2016 in Case T-749/14: Chung-Yuan Chang v EUIPO — BSH Hausgeräte (AROMA)
   (Case C-389/16 P)
   (2017/C 078/09)
   Language of the case: English

      Parties

      Appellant: BSH Hausgeräte GmbH, anciennement BSH Bosch und Siemens Hausgeräte GmbH (represented by: S. Biagosch, Rechtsanwalt)

      Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Peter Chung-Yuan Chang
   By order of 15 November 2016 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.


title: Case C-147/12: Reference for a preliminary ruling from the Hovrätten för Nedre Norrland (Court of Appeal for Southern Norrland) (Sweden) lodged on 26 March 2012 — ÖFAB, Östergötlands Fastigheter AB v Frank Koot, Evergreen Investments B.V.

text:
               26.5.2012

               EN

               Official Journal of the European Union

               C 151/25

         Reference for a preliminary ruling from the Hovrätten för Nedre Norrland (Court of Appeal for Southern Norrland) (Sweden) lodged on 26 March 2012 — ÖFAB, Östergötlands Fastigheter AB v Frank Koot, Evergreen Investments B.V.
   (Case C-147/12)
   2012/C 151/40
   Language of the case: Swedish

      Referring court

   Hovrätten för Nedre Norrland (Court of Appeal for Southern Norrland)

      Parties to the main proceedings

   Applicants: ÖFAB, Östergötlands Fastigheter AB
   Defendants:

               1.

               Frank Koot

               2.

               Evergreen Investments B.V.

      Questions referred

               1.

               Are Articles 5(1) and 5(3) of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted in such a way that they constitute a comprehensive derogation from the main rule of Article 2 in compensation disputes?

               2.

               Is the term ‘matters relating to tort, delict or quasi-delict’ in Article 5(3) of the Regulation to be interpreted in such a way that the provision covers the action of a creditor against a director of a company if the action seeks to hold the director liable for the company’s debts where the director has failed to make formal arrangements to monitor the company’s financial situation and instead has continued to operate the company and has burdened it with further debts?

               3.

               Is the term ‘matters relating to tort, delict or quasi-delict’ in Article 5(3) of the Regulation to be interpreted in such a way that the provision covers an action of a creditor against the owner of a company if the action seeks to make the owner liable for the company’s debts when the shareholder continues to conduct business despite the fact that the business is undercapitalised and the company is obliged to go into liquidation?

               4.

               Is the term ‘matters relating to tort, delict or quasi-delict’ in Article 5(3) of the Regulation to be interpreted in such a way that it covers the action of a creditor against the owner of a company who has undertaken to discharge a company’s debts?

               5.

               If the answer to question 3 is in the affirmative, is any harm arising deemed to have occurred in the Netherlands or in Sweden, if the director is domiciled in the Netherlands and the breaches of the board’s obligations relate to a Swedish company?

               6.

               If the answer to questions 4 or 5 is in the affirmative, is any harm arising deemed to have occurred in the Netherlands or in Sweden if the owner is domiciled in the Netherlands and the company is Swedish?

               7.

               If Articles 5(1) or 5(3) of the Regulation are applicable in any of the situations described, is it of any relevance to the application of those articles if a claim has been transferred from the original creditor to another person?

      (1)  OJ 2001 L 12, p. 1.


title: Case T-22/16: Action brought on 25 January 2016 — Comprojecto-Projectos e Construções and Others v ECB

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/37

         Action brought on 25 January 2016 — Comprojecto-Projectos e Construções and Others v ECB
   (Case T-22/16)
   (2016/C 106/43)
   Language of the case: Portuguese

      Parties

      Applicants: Comprojecto-Projectos e Construções, Lda (Lisbon, Portugal), Julião Maria Gomes de Azevedo (Lisbon), Paulo Eduardo Matos Gomes de Azevedo (Lisbon) and Isabel Maria Matos Gomes de Azevedo (Lisbon) (represented by: M.A. Ribeiro, lawyer)

      Defendant: European Central Bank

      Form of order sought

   The applicants claim that the General Court should:

               —

               Declare, pursuant to Article 265 TFEU, that the European Central Bank, by failing to pursue the complaint presented by the applicants on 27 November 2015, unjustifiably abstained from giving a decision, despite having been requested to do.

               —

               In the alternative, annul, pursuant to Articles 263 and 264 TFEU, the decision of the European Central Bank.

               —

               Order the European Central Bank, pursuant to Articles 340 TFEU and 41(3) of the Charter of Fundamental Rights of the European Union, to compensate the applicants in the amount of EUR 4 199 780,43, together with interest on late payments at the statutory rate until actual payment.

               —

               Order the European Central Bank to pay the costs, in accordance with Article 134(1) of the Rules of Procedure.

      Pleas in law and main arguments

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

               1.

               Unfounded refusal, by omission and failure to take a decision, of the request made to the European Central Bank to take action on the basis of a complaint submitted by the applicants on 27 November 2015, related to certain unlawful and unfounded acts carried out by the Banco de Portugal.

               2.

               Lack of impartiality, transparency, integrity, competence, efficiency and responsibility, breach of the principle of equality before the law (infringement of Article 20 of the Charter of Fundamental Rights).

               3.

               Infringement of essential procedural requirements, infringement of the Treaties and of rules of law relating to their application, misuse of powers.

               4.

               Favourable treatment and protection of IC Millenium/Bcp regarding the use of the financial system for money laundering and non-compliance with European Union obligations concerning the free movement of capital.

               5.

               Infringement of Article 11(3) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (‘Unfair Commercial Practices Directive’).


title: Case F-136/14: Order of the Civil Service Tribunal (1st Chamber) of 7 December 2015 — Probst v Commission (Civil service — Remuneration — Expatriation allowance — Article 4 of Annex VII to the Staff Regulations — Former parliamentary assistant — Commission’s decision to grant the expatriation allowance to former parliamentary assistants as of the date of publication of the information given to staff — Judgments annulling a measure — Substantial new facts — Limited temporal effect — Res judicata — Administrative decisions which have become final — Equal treatment)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/100

         Order of the Civil Service Tribunal (1st Chamber) of 7 December 2015 — Probst v Commission
   (Case F-136/14) (1)

   ((Civil service - Remuneration - Expatriation allowance - Article 4 of Annex VII to the Staff Regulations - Former parliamentary assistant - Commission’s decision to grant the expatriation allowance to former parliamentary assistants as of the date of publication of the information given to staff - Judgments annulling a measure - Substantial new facts - Limited temporal effect - Res judicata - Administrative decisions which have become final - Equal treatment))
   (2016/C 048/115)
   Language of the case: French

      Parties

      Applicant: Norbert Probst (Genval, Belgium) (represented by: D. de Abreu Caldas, lawyer)

      Defendant: European Commission (represented by: initially J. Currall and T.S. Bohr, Agents, and subsequently T.S. Bohr, Agent)

      Re:

   Application by the applicant for annulment of the Commission’s decision granting him, with retrospective effect, the expatriation allowance, in so far as the retrospective effect extends merely to 1 September 2013, and the applicant claims that the Commission should grant him that allowance as of his recruitment by the Commission on 1 July 1999.

      Operative part of the order

               1.

               The action is dismissed as manifestly unfounded.

               2.

               Mr Probst shall bear his own costs and is ordered to pay the costs incurred by the European Commission.

      (1)  OJ C 34, 2.2.2015, p. 54.


title: Case C-65/13: Action brought on 7 February 2013 — European Parliament v European Commission

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/17

         Action brought on 7 February 2013 — European Parliament v European Commission
   (Case C-65/13)
   2013/C 108/36
   Language of the case: French

      Parties

      Applicant: European Parliament (represented by: A. Tamás and J. Rodrigues, acting as Agents)

      Defendant: European Commission

      Form of order sought

               —

               Annul Commission Implementing Decision [2012/733/EU] of 26 November 2013 implementing Regulation (EU) No 492/2011 of the European Parliament and of the Council as regards the clearance of vacancies and applications for employment and the re-establishment of EURES;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   In support of its action for annulment, the European Parliament raises a single plea in law, alleging infringement of Article 38 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union. (1) By adopting the contested decision, the Commission has misused the powers conferred upon it by the European Union legislature.
   Article 38 of that regulation confers only implementing powers on the Commission, the limits of which are set out in Article 291 TFEU. In the view of the Parliament, that article must be interpreted as meaning that it precludes the adoption of acts of general application which supplement certain non-essential elements of the legislative act. Only legislative acts or delegated acts within the meaning of Article 290 TFEU may supplement non-essential elements of a basic act.
   The act adopted by the Commission, being an implementing act within the meaning of Article 291 TFEU, also supplements certain non-essential elements of Regulation (EU) No 492/2011. Accordingly, the Parliament submits that, if it is necessary to supplement non-essential elements of Regulation (EU) No 492/2011, the Commission, in the absence of powers to adopt delegated acts within the meaning of Article 290 TFEU, ought to have made a proposal to the legislature supplementing or amending the basic act.

      (1)  Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).


title: Case C-40/12 P: Appeal brought on 27 January 2012 by Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH, against the judgment of the General Court (Fourth Chamber) delivered on 16 November 2011 in Case T-79/06, Sachsa Verpackung v Commission

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/17

         Appeal brought on 27 January 2012 by Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH, against the judgment of the General Court (Fourth Chamber) delivered on 16 November 2011 in Case T-79/06, Sachsa Verpackung v Commission
   (Case C-40/12 P)
   2012/C 89/27
   Language of the case: French

      Parties

      Appellant: Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH (represented by: F. Puel and L. François-Martin, avocats)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside the judgment of 16 November 2011 delivered by the Fourth Chamber of the General Court of the European Union in Case T-79/06 … and refer the case back to the General Court for judgment as may be required by the Court, including judgment on the financial consequences for the appellant of the time in excess of a reasonable period which has expired;

               —

               reduce the amount of the fine to take account of the financial consequences for the appellant of the time in excess of a reasonable period which has expired;

               —

               order the defendant to pay the costs of both sets of proceedings.

      Grounds of appeal and main arguments

   The appellant relies on four grounds in support of its appeal.
   By its first ground, the appellant submits that the General Court erred in law by failing to draw the conclusions from the entry into force of the [amended provisions] of the Treaty on European Union on 1 December 2009, and in particular of [amended] Article 6 thereof, which confers the same legal value on the Charter of Fundamental Rights of the European Union as the Treaties.
   By its second ground, the appellant submits that the General court failed to provide sufficient grounds for its decision with regard to the application of Article 23(2) of Regulation No 1/2003 (1) or of Article 15 of Regulation No 17. (2)

   By its third ground, the appellant submits that the General Court has failed to exercise its powers of review and has failed properly to review the grounds and the reasoning of the Commission concerning the impact of the practice on the market.
   By its fourth ground, the appellant submits, in the alternative, that the General Court has failed to comply with the procedure, by breaching the principle of the right to fair legal process within a reasonable period enshrined in Article 6 ECHR and the principle of effective judicial protection. That ground leads the appellant to seek to have the judgment under appeal set aside and, in the alternative, to reduce the amount of the fine to take account of the financial consequences for the appellant of the time in excess of a reasonable period which has elapsed.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).

      (2)  Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition, 1959-1962, p. 87).


title: Case C-356/06: Order of the President of the Court of 11 May 2007 — Commission of the European Communities v Republic of Austria

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/29

         Order of the President of the Court of 11 May 2007 — Commission of the European Communities v Republic of Austria
   (Case C-356/06) (1)

   (2007/C 183/52)

      Language of the case: German

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

      (1)  OJ C 249, 14.10.2006.


title: Reference for a preliminary ruling from the Pretura Circondariale di Roma, Sezione Distaccata di Tivoli, by orders of that court of 26 October 1994 (C-135/95) and 27 February 1995 (C-140/95 and C-141/95) in criminal proceedings pending before it against Francesco Segna and Others, Cesare Cervetti and Mario Gasbarri (Cases C-135/95, C-140/95 and C-141/95)

text:
No C 159/20           EN                  Official Journal of the European Communities                                   24 . 6 . 95
Reference for a preliminary ruling from the Pretura                        Removal from the register of Case C-328/93 ( )
Circondariale di Biella by order of that court of 30 March                                      ( 95/C 159/41 )
1995 in the case of USSL 47 di Biella v. Istituto Nazionale
per l'Assicurazione contro gli Infortuni sul Lavoro ( Inail )
                                                                     By order of 7 April 1995 the President of the Court of Justice
                       ( Case C-134/95 )                             of the European Communities ordered the removal from the
                         ( 95/C 159/39 )                             register of Case C-328/93 ( reference for a preliminary ruling
                                                                     from the Arbeitsgericht Munchen ): Carla Baeskow v.
Reference has been made to the Court of Justice of the               Lebenshilfe für geistig Behinderte eV, Stadt- und Landkreis
European Communities by order of the Pretura                         Munchen .
Circondariale ( District Magistrate's Court), Biella, of
30 March 1995 , which was received at the Court Registry
on 24 April 1995 , for a preliminary ruling in the case of           (M OJ No C 205 , 29 . 7. 1993 .
USSL 47 di Biella v. Istituto Nazionale per l'Assicurazione
contro gli Infortuni sul Lavoro (Inail ) on the following
questions :
Is Article 1(1 ) of Law No 1369 of 23 October 1960, read in
conjunction with Article 11 ( 1 ) of Law No 264 of
29 October 1949 , compatible with the Community
principles laid down in Articles 48 , 49 , 54 and 90 of the EC              Removal from the register of Case C-402/93 ( )
Treaty and do those principles have direct effect, with the                                        95/C 159/42 )
result that the Italian legislation has to be set aside ?
                                                                     By order of 3 April 1995 the President of the Court of Justice
                                                                     of the European Communities ordered the removal from the
                                                                     register of Case C-402/93 ( reference for a preliminary ruling
Reference for a preliminary ruling from the Pretura                  from the Arbeitsgericht Hamburg): Jutta Neumann v. Freie
Circondariale di Roma, Sezione Distaccata di Tivoli, by              und Hansestadt Hamburg.
orders of that court of 26 October 1994 (C-135/95 ) and
27 February 1995 ( C-140/95 and C-141/95 ) in criminal               (^ OJ No C 286 , 22 . 10 . 1993 .
proceedings pending before it against Francesco Segna and
        Others, Cesare Cervetti and Mario Gasbarri
         (Cases C-135/95 , C-140/95 and C-141 /95 )
                          ( 95/C 159/40 )
References have been made to the Court of Justice of the
European Communities by orders of the Pretura
Circondariale di Roma , Sezione Distaccata di Tivoli ( Rome                 Removal from the register of Case C-229/94 H
District Magistrates' Court, Tivoli Division ) of 26 October
                                                                                ( 95/C 159/43 )
1994 ( C-135/95 ) and 27 February 1995 ( C-140/95 and
C-141 /95 ), which were received at the Court Registry on
24 April 1995 and 4 May 1995 respectively, for a                      By order of 5 May 1995 the President of the Court of Justice
preliminary ruling in criminal proceedings pending before it         of the European Communities ordered the removal from the
against Francesco Segna and Others, Cesare Cervetti and              register of Case C-229/34 ( reference for a preliminary ruling
Mario Gasbarri on questions identical with those referred in          from the High Court ( Queen's Bench Division)): The Queen
Cases C-112/95 , C-119/95 and C-123/95 ( M.                           v . Secretary of State for the Home Department, ex parte:
                                                                      Gerard Adams ).
(M OJ No C 137, 3 . 6 . 1995 .
                                                                      (') OJ No C 275 , 1 . 10 . 1994 .


title: Case C-356/15: Action brought on 13 July 2015 — European Commission v Kingdom of Belgium

text:
               14.9.2015

               EN

               Official Journal of the European Union

               C 302/25

         Action brought on 13 July 2015 — European Commission v Kingdom of Belgium
   (Case C-356/15)
   (2015/C 302/32)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: D. Martin, acting as Agent)

      Defendant: Kingdom of Belgium

      Form of order sought

               —

               Declare that by adopting Articles 23 and 24 of the programme law of 27 December 2012, the Kingdom of Belgium has failed to fulfil its obligations under Articles 11, 12 and 76(6) of Regulation (EC) No 883/2004 (1) of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, Article 5 of Regulation (EC) No 987/2009 (2) of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 and Decision Al of the Administrative Commission for the Coordination of Social Security Systems (3).

               —

               order the Kingdom of Belgium to pay the costs.

      Pleas in law and main arguments

   With the adoption of Articles 23 and 24 of the programme law of 27 December 2012, the Commission considers that the Kingdom of Belgium has infringed Articles 11, 12 and 76 of Regulation (EC) No 883/2004 and Article 5 of Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004, and Decision Al of the Administrative Commission for the Coordination of Social Security Systems by failing to recognise the binding nature of a document issued by the Member State of origin of a posted worker attesting that he is subject to the social security legislation of that Member State.

      (1)  OJ 2004 L 166, p. 1.

      (2)  OJ 2009 L 284, p. 1.

      (3)  OJ C 106 of 24.4.2010, p. 1.


title: Case C-589/13: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 19 November 2013 — F.E. Familienprivatstiftung Eisenstadt

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/3

      Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 19 November 2013 — F.E. Familienprivatstiftung Eisenstadt
      (Case C-589/13)
      (2014/C 71/05)
      Language of the case: German

         Referring court

      Verwaltungsgerichtshof

         Parties to the main proceedings

         Applicant: F.E. Familienprivatstiftung Eisenstadt

         Defendant authority: Unabhängiger Finanzsenat, Außenstelle Wien

         Question referred

      Is Article 56 EC (now Article 63 TFEU) to be interpreted as precluding a system for the taxation of the investment income and earnings from the disposal of holdings of an Austrian private foundation in the case where that system provides for a tax charge to be imposed on the foundation in the form of an ‘interim tax’ in order to ensure once-only national taxation only in the case where, on the basis of a double taxation convention, the recipient of donations from the private foundation is granted relief from the tax on capital gains which in principle is chargeable on donations?


title: Case C-494/10: Order of the President of the First Chamber of the Court of 7 May 2012 (Reference for a preliminary ruling from the Landgericht Essen — Germany) — Dr Biner Bähr in his capacity as liquidator in respect of the assets of Hertie GmbH v HIDD Hamburg-Bramfeld B.V.1

text:
               7.7.2012

               EN

               Official Journal of the European Union

               C 200/10

         Order of the President of the First Chamber of the Court of 7 May 2012 (Reference for a preliminary ruling from the Landgericht Essen — Germany) — Dr Biner Bähr in his capacity as liquidator in respect of the assets of Hertie GmbH v HIDD Hamburg-Bramfeld B.V.1
   (Case C-494/10) (1)

   2012/C 200/19
   Language of the case: German
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 30, 29.1.2011.