title: Case C-4/12: Reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna (Italy) lodged on 2 January 2012 — Danilo Tola v Ministero della Difesa

text:
               17.3.2012

               EN

               Official Journal of the European Union

               C 80/12

         Reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna (Italy) lodged on 2 January 2012 — Danilo Tola v Ministero della Difesa
   (Case C-4/12)
   2012/C 80/17
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo per la Sardegna

      Parties to the main proceedings

      Applicant: Danilo Tola

      Defendant: Ministero della Difesa
   Following the withdrawal of the reference for a preliminary ruling on 5 January 2012, by order of 18 January 2012 the Court of Justice removed the case from the register.


title: Case C-294/12 P: Appeal brought on 11 June 2012 by You-Q BV against the judgment of the General Court (Eighth Chamber) delivered on 29 March 2012 in Case T-369/10: You-Q BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/12

         Appeal brought on 11 June 2012 by You-Q BV against the judgment of the General Court (Eighth Chamber) delivered on 29 March 2012 in Case T-369/10: You-Q BV v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-294/12 P)
   2012/C 303/22
   Language of the case: English

      Parties

      Appellant: You-Q BV (represented by: G.S.C.M. van Roeyen, advocaat)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Apple Corps Limited

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of 29 March 2011 in Case T-369/10;

               —

               uphold its application for annulment of the contested decision;

               —

               alternatively, refer the case back to the General Court for reconsideration;

               —

               order OHIM and Apple Corps Limited to pay the costs, including those incurred at first instance.

      Pleas in law and main arguments

   In its first plea in law the applicant submits that certain parts of the reproduction by the General Court of the background to the dispute, to be more specific certain parts of paragraphs 9, 12, 14, 17 and 53, are improperly established and contrary to the requirements of Article 8 (5) of Regulation No 207/2009 (1). Firstly the General Court has incorrectly held that the earlier marks on which Apple Corps relies include an earlier well known mark, since the General Court did not establish that status and moreover did not reveal which earlier mark should be regarded as a well known mark. These findings of the General Court are wrong and violate the principle of clarity. Secondly, the General Court did not properly take into account the factor ‘the nature of the goods or services for which the conflicting marks were registered, including the degree of closeness or dissimilarity between those goods or services, and the relevant section of the public’ to be applied according to the decision of the Court in Case C-252/07 Intel Corporation (2008) ECR I-8823.
   In its second plea in law the applicant submits nine complaints against the contested judgment of the General Court, all based on infringement of Article 8(5) of Regulation No 207/2009. Firstly the applicant complains about incorrect findings by the General Court in paragraphs 24, 55, 56, 57 and 58 with regard to the dissimilarity of the goods and services and with regard to the distinctiveness of the earlier marks. Secondly the applicant contests the finding in paragraph 26 of the contested judgment, in which the General Court — contrary to Article 8(5) of Regulation No 207/2009 — abstracted the protection provided for by said article from the goods or services for which the mark with a reputation is registered and from the other requirements for protection of said article (detriment to the distinctive character of the earlier mark, detriment to the repute of that mark and unfair advantage taken of the distinctive character of the repute of that mark). Thirdly, the applicant contests the finding in paragraphs 31 and 54 of the contested judgment, that the distinctive character and reputation of the earlier marks ought to have been examined in the light of the public perception of the mark applied for, since in paragraph 39 of the application of the General Court You-Q puts forward: ‘It should be noted furthermore that the Board of Appeal wrongly did not — as it should have done — define the public whose perception should be taken into account to assess the distinctiveness and the reputation of the earlier mark. According to Intel this should be consumers of the goods and services for which the earlier mark is registered.’ Fourthly, the applicant contests the finding of the General Court that the Board of Appeal has held that the relevant public in relation to whom the earlier marks have reputations consists of the public at large. Fifthly, the applicant contests the finding by the General Court that, according to You-Q, the existence of a reputation must be established by reference to the public concerned by the mark applied for, namely a specialist public and furthermore contests considerations by the General Court with regard to the relevant public, more particularly overlaps in the relevant public, which cannot be a factor for the assessment of reputation of an earlier trade mark. Sixthly, the applicant contests the findings of the General Court as to what is required to establish an enormous reputation and a very substantial reputation for the goods and services concerned. Seventhly, the applicant contests the findings of the General Court with regard to the similarity of the signs. Eighthly, the applicant contests the application by the General Court of the global assessment test, and the relevant factors included in that test, to establish the required link. Finally, the applicant contests the application and interpretation by the General Court of the requirement of Article 8(5) of Regulation No 207/2009 that unfair advantage must be taken of the distinctive character or the repute of the earlier marks.

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


title: Case C-360/04: Reference for a preliminary ruling by the Tribunale di Teramo by order of that court of 31 July 2004 in the case of criminal proceedings against Angelo Sorricchio

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/20

         Reference for a preliminary ruling by the Tribunale di Teramo by order of that court of 31 July 2004 in the case of criminal proceedings against Angelo Sorricchio
   (Case C-360/04)
   (2004/C 262/35)
   Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Teramo (Italy) of 31 July 2004 received at the Court Registry on 18 August 2004, for a preliminary ruling in the case of criminal proceedings against Angelo Sorricchio on the following questions:
   ‘May Articles 43(1) and 49 (1) of the Treaty be interpreted as allowing the Member States to derogate temporarily (6 to 12 years) from the principle of freedom of establishment and of freedom to provide series within the European Union, by:

               1)

               allocating to certain persons licences for the pursuit of certain activities involving provision of services, valid for 6 or 12 years, on the basis of a body of rules which excluded from the tender procedure certain kinds of (non-Italian) competitors;

               2)

               amending that system, after subsequently noting that it was not compatible with the principles enshrined in Articles 43 and 49 of the Treaty, so as to allow in future the participation of those persons who had been excluded;

               3)

               not revoking the licences granted on the basis of the earlier system which, as stated, infringed the principles of freedom of establishment and of free movement of services or setting up a new tender procedure pursuant to the new rules which now comply with the abovementioned principles;

               4)

               continuing, on the other hand, to pursue anyone carrying on business via a link with anyone who, despite being entitled to pursue such an activity in the Member State of origin, was excluded from the tender procedure precisely under the exclusions contained in the earlier rules, later removed’.


title: Case C-429/13 P: Judgment of the Court (Sixth Chamber) of 22 October 2014  — Kingdom of Spain v European Commission (Appeal — Cohesion fund — Reduction of financial assistance — Irregularities in the application of the public procurement legislation — Adoption of the decision by the European Commission — Failure to comply with the time-limit — Consequences)

text:
               8.12.2014

               EN

               Official Journal of the European Union

               C 439/10

         Judgment of the Court (Sixth Chamber) of 22 October 2014 — Kingdom of Spain v European Commission
   (Case C-429/13 P) (1)

   ((Appeal - Cohesion fund - Reduction of financial assistance - Irregularities in the application of the public procurement legislation - Adoption of the decision by the European Commission - Failure to comply with the time-limit - Consequences))
   (2014/C 439/13)
   Language of the case: Spanish

      Parties

      Appellant: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

      Other party to the proceedings: European Commission (represented by: B. Conte and A. Tokár, acting as Agents, assisted by J. Rivas Andrés, abogado)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the General Court of the European Union in Spain v Commission (T-384/10, EU:T:2013:277);

               2.

               Annuls Commission Decision C(2010) 4147 of 30 June 2010, reducing the assistance granted from the Cohesion Fund to the following (groups of) projects: ‘Water supply to settlements in the Guadiana basin: Andévalo area’ (2000.ES.16.C.PE.133), ‘Drainage and water treatment in the Guadalquivir basin: Guadaira, Aljarafe and the areas of natural protection of the Guadalquivir’ (2000.ES.16.C.PE.066) and ‘Water supply to multi-municipal systems in the provinces of Granada and Malaga’ (2002.ES.16.C.PE.061);

               3.

               Orders the European Commission to pay the costs of the Kingdom of Spain and to bear its own costs of both the proceedings at first instance and of the present appeal proceedings.

      (1)  OJ C 260, 7.9.2013.


title: Case C-553/08 P: Order of the Court (Eighth Chamber) of 2 December 2009 — Powerserv Personalservice GmbH, formerly Manpower Personalservice GmbH v Office for Harmonisation in the Internal Market (Trade marks and Designs), Manpower Inc. (Appeal — Community trade mark — Regulation (EC) No 40/94 — Articles 7(1)(c) and 51(1) and (2) — Invalidity proceedings — Cross Appeal — Community word mark MANPOWER — Absolute grounds for refusal — Descriptive character — Distinctive character acquired through use)

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/14

         Order of the Court (Eighth Chamber) of 2 December 2009 — Powerserv Personalservice GmbH, formerly Manpower Personalservice GmbH v Office for Harmonisation in the Internal Market (Trade marks and Designs), Manpower Inc.
   (Case C-553/08 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Articles 7(1)(c) and 51(1) and (2) - Invalidity proceedings - Cross Appeal - Community word mark MANPOWER - Absolute grounds for refusal - Descriptive character - Distinctive character acquired through use)
   2010/C 51/22
   Language of the case: German

      Parties

      Appellant: Powerserv Personalservice GmbH, formerly Manpower Personalservice GmbH (represented by: B. Kuchar, Rechtsanwältin)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade marks and Designs) (represented by: G. Schneider, Agent), and Manpower Inc. (represented by: A. Bryson, Barrister and V. Marsland, Solicitor)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 15 October 2008 in Case T-405/05 Powerserv Personalservice v OHIM and Manpower by which the Court of First Instance dismissed the action for annulment brought by the appellant against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 22 July 2005 dismissing the appeal against the decision of the Cancellation Division refusing the application for a declaration of invalidity in respect of Community word mark ‘MANPOWER’ for goods in Classes 9, 16, 35, 41 and 42 — Incorrect assessment of the distinctive character of the mark — Failure to reassess the evidence relating to the acquisition of distinctive character through use, after extending the relevant public by comparison with the contested decision of the Board of Appeal

      Operative part of the order

               1.

               The main appeal brought by Powerserv Personalservice GmbH is dismissed.

               2.

               The cross appeal brought by Manpower Inc. is dismissed.

               3.

               Powerserv Personalservice GmbH is ordered to pay the costs.

      (1)  OJ C 69, 21.3.2009.


               7.7.2007

               EN

               Official Journal of the European Union

               C 155/1

         (2007/C 155/01)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 140, 23.6.2007

   Past publications

      OJ C 129, 9.6.2007

      OJ C 117, 26.5.2007

      OJ C 96, 28.4.2007

      OJ C 95, 28.4.2007

      OJ C 82, 14.4.2007

      OJ C 69, 24.3.2007

   These texts are available on:

               EUR-Lex: http://eur-lex.europa.eu


title: Case T-312/10: Action brought on 28 July 2010 — ELE.SI.A v Commission

text:
               25.9.2010

               EN

               Official Journal of the European Union

               C 260/21

         Action brought on 28 July 2010 — ELE.SI.A v Commission
   (Case T-312/10)
   ()
   2010/C 260/29
   Language of the case: Italian

      Parties

      Applicant: Elettronica e sistemi per automazione (ELE.SI.A) SpA (Giudonia Montecelio, Italy) (represented by: S. Bariatti, P. Tomassi and P. Caprile, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               confirm and declare that ELESIA has properly complied with its contractual obligations;

               —

               confirm and declare that, by failing to pay the amount due in respect of ELESIA’s activities and by requesting repayment of the amount already paid, the Commission has breached its contractual obligations;

               —

               accordingly, order the Commission to pay Euro 83 627,68, plus interest, in respect of the costs incurred by ELESIA for the purposes of the Project and which have not yet been reimbursed by the Commission;

               —

               accordingly, annul, revoke — if necessary, through the issuance of corresponding credit notes — or in any event declare unlawful the debit notes by which the Commission has requested repayment from ELESIA, and award damages accordingly;

               —

               in any event, order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   The consortium, of which the applicant company in this case is coordinator, entered into a contract with the Commission for the realisation of the project ‘I-Way, Intelligent co-operative system in cars for road safety’, financed by funds allocated within the context of the ‘Sixth Framework Programme for Technological Research and Development’.
   As it formed the view that serious irregularities had been committed during the realisation of the project in question, the European Commission decided to rescind the contract.
   The applicant maintains, first, that the Commission’s conduct is in total breach of the relevant contractual provisions and of the applicable principles of law, such as those of equity, proportionality and good administration. Second, the applicant contends that, after it had correctly carried out all of its contractual obligations for almost the entire 36-month period provided for under the contract, the Commission has no intention of recognising any amount as due, on the basis, moreover, of an audit which is irregular in several respects, and notwithstanding the fact that the applicant cooperated fully in good faith throughout the contractual period and even thereafter.
   In support of its contentions, the applicant submits, specifically, that it correctly and consistently carried out its contractual obligations, whereas, by contrast, the Commission breached Articles II.1.11, II.16.1, II.16.2 and II.29 of the General Contractual Conditions, as well as the applicant’s rights of defence and the provisions contained in Regulation No 2185/96. (1)

      (1)  Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292 of 15.11.1996, p. 2).


title: Case C-473/14: Judgment of the Court (Ninth Chamber) of 10 September 2015 (request for a preliminary ruling from the Simvoulio tis Epikratias — Greece) — Dimos Kropias Attikis v Ipourgos Perivallontos, Energias kai Klimatikis Allagis (Reference for a preliminary ruling — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Protection regime in respect of the Mount Hymettus area — Modification procedure — Applicability of the directive — Master plan and environmental protection programme for the greater Athens area)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/18

         Judgment of the Court (Ninth Chamber) of 10 September 2015 (request for a preliminary ruling from the Simvoulio tis Epikratias — Greece) — Dimos Kropias Attikis v Ipourgos Perivallontos, Energias kai Klimatikis Allagis
   (Case C-473/14) (1)

   ((Reference for a preliminary ruling - Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Protection regime in respect of the Mount Hymettus area - Modification procedure - Applicability of the directive - Master plan and environmental protection programme for the greater Athens area))
   (2015/C 363/21)
   Language of the case: Greek

      Referring court

   Simvoulio tis Epikratias

      Parties to the main proceedings

      Applicant: Dimos Kropias Attikis

      Defendant: Ipourgos Perivallontos, Energias kai Klimatikis Allagis

      Operative part of the judgment

   Articles 2(a) and 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment must be interpreted as meaning that the adoption of a measure containing a plan or programme relating to town and country planning and land use falling within the scope of Directive 2001/42 that modifies an existing plan or programme may not be exempted from the obligation to carry out an environmental assessment under that directive on the ground that that measure is intended to give more specific expression to and implement a master plan established by a hierarchically superior measure that has not itself been the subject of such an environmental assessment.

      (1)  OJ C 7, 12.1.2015.


title: JUDGMENT OF THE COURT of 14 December 1995 in Case C-312/93 (reference for a preliminary ruling from the Cour d'Appel, Brussels): Peterbroeck, Van Campenhout & Cie SCS v. Belgian State (Power of a national court to consider of its own motion the question whether national law is compatible with Community law)

text:
2 . 3 . 96            EN                  Official Journal of the European Communities                                    No C 64/ 1
                                                                  I
                                                           (Information)
                                              COURT OF JUSTICE
                                                        COURT OF JUSTICE
               JUDGMENT OF THE COURT                                 Community law when the latter provision has not been
                     of 14 December 1995                             invoked by the litigant within a certain period.
in Case C-3 12/93 (reference for a preliminary ruling from           (') OJ No C 189 , 13 . 7 . 1993 .
the Cour d'Appel, Brussels ): Peterbroeck, Van Campenhout
                 & Cie SCS v. Belgian State (')
(Power ofa national court to consider ofits own motion the
question whether national law is compatible with
                        Community law)
                                                                                JUDGMENT OF THE COURT
                          ( 96/C 64/01 )
                                                                                of 14 December 1995
                                                                     in Case C-3 17/93 (reference for a preliminary ruling
                (Language of the case: French)                       from the Sozialgericht Hannover): Inge Nolte v.
                                                                               Landesversicherungsanstalt Hannover ( 1 )
                                                                     (Equal treatment for men and women in matters of social
(Provisional translation; the definitive translation will be         security — Article 4 (1) ofDirective 79/7/EEC — Exclusion
          published in the European Court Reports)                   of minor employment from compulsory invalidity and
                                                                                old-age insurance)
                                                                                ( 96/C 64/02 )
In Case C-3 12/93 : reference to the Court under Article 177
of the EC Treaty from the Cour d'Appel, Brussels for a                             (Language of the case: German)
preliminary ruling in the proceedings pending before that
court between Peterbroeck, Van Campenhout & Cie SCS                  (Provisional translation; the definitive translation will be
and Belgian State — on the interpretation of Community                       published in the European Court Reports)
law concerning the power of a national court to consider of
its own motion the question whether national law is                  In Case C-3 17/93 : reference to the Court under Article 177
compatible with Community law — the Court, composed                  of the EC Treaty from the Sozialgericht ( Social Court )
of: G. C. Rodriguez Iglesias, President, C. N. Kakouris, D.          Hannover, for a preliminary ruling in the proceedings
A. O. Edward, J. -P. Puissochet and G. Hirsch ( Presidents           pending before that court between Inge Nolte and
of Chambers ), G. F. Mancini ( Rapporteur ), F. A.                   Landesversicherungsanstalt Hannover — on the
Schockweiler, J. C. Moitinho de Almeida, P. J. G. Kapteyn,           interpretation of Article 4 ( 1 ) of Council Directive 79/7/EEC
C. Gulmann, J. L. Murray, P. Jann and H. Ragnemalm,                  of 19 December 1978 on the progressive implementation of
Judges; F. G. Jacobs, Advocate-General; R. Grass, Registrar,         the principle of equal treatment for men and women in
and H. A. Rühl , Principal Administrator, has given a                matters of social security ( OJ No L 6 , 1979 , p. 24 ) — the
judgment on 14 December 1995 , in which it rules :                   Court, composed of: G. C. Rodriguez Iglesias, President,
                                                                     C. N. Kakouris ( Rapporteur ), D. A. O. Edward and G.
                                                                     Hirsch ( Presidents of Chambers ), F. A. Schockweiler, J. C.
Community law precludes application of a domestic                    Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray, P.
procedural rule whose effect, in procedural circumstances            Jann, H. Ragnemalm and L. Sevón, Judges; P. Leger,
such as those in question in the main proceedings, is to             Advocate-General, D. Louterman-Hubeau, Principal
prevent the national court, seised of a matter falling within        Administrator, for the Registrar, gave a judgment on
its jurisdiction, from considering of its own motion whether          14 December 1995 , the operative part of which is as
a measure of domestic law is compatible with a provision of          follows :


title: Case T-326/99: Action brought on 19 November 1999 by Nancy Fern Olivieri against the Commission of the European Communities and the European Agency for the Evaluation of Medicinal Products

text:
19.2.2000               EN                     Official Journal of the European Communities                                        C 47/33
     failed to observe the principle of the investor operating in         — order the Commission to pay the applicant’s costs.
     a market economy in considering that the actions of
     Itainvest could not be compared to the conduct of a private
     undertaking since the return on profit was negative from
     the beginning. According to the applicants, that error of            Pleas in law and main arguments
     assessment also concerns the guarantees offered by Itainv-
     est for the performance of individual contracts, as well as
     injections of capital into INMA itself;
                                                                          The applicant in the present case is one of the world’s
                                                                          leading scientists involved in research and clinical trials on
— breach of the obligation to provide a statement of reasons              thalassaemia and its treatment. She has engaged in the
     when adopting the relevant Community measures. In                    principal clinical trials for Ferriprox-Deferiprone (hereinafter
     particular, the Commission did not consider whether at               ‘deferiprone’). According to her, these trials indicate that the
     the time when the decision to give the guarantees to and             drug may have significant adverse effects on human health.
     inject capital into INMA was adopted there were any valid            She claims that, as a result of the contested decision granting a
     economic or financial reasons to justify Itainvest’s course          marketing authorisation for deferiprone, there is a risk of
     of action. The defendant further failed to examine individu-         severe damage to health as well as damaging consequences to
     ally the steps taken and assess their nature in the context          her own professional reputation.
     of the economic situation reigning at the material time,
     preferring instead to rely on mere assumptions.
                                                                          The applicant contends that, contrary to the conclusions of
(1) OJ 1990 L 380, p. 27.                                                 the European Agency for the Evaluation of Medicinal Products
(2) OJ 1998 L 121, p. 1.                                                  (EMEA) and the Commission:
                                                                          — the safety of deferiprone depends first and foremost upon
                                                                              its effectiveness: if it is not effective at removing excess
                                                                              iron from the bodies of patients with thalassaemia, the
                                                                              patients who take it will be at risk of iron overload and
                                                                              premature death from iron-induced cardiac and liver
                                                                              dysfunction;
Action brought on 19 November 1999 by Nancy Fern
Olivieri against the Commission of the European Com-
                                                                          — there is evidence to suggest that deferiprone is toxic to the
munities and the European Agency for the Evaluation of
                                                                              heart and liver and that its use carries considerable dangers
                        Medicinal Products
                                                                              with regard to hepatic fibrosis and the development and
                                                                              progression of cardiac disease;
                          (Case T-326/99)
                                                                          — Further human trials of deferiprone should await the
                           (2000/C 47/58)                                     results of animal toxicity testing.
                    (Language of the case: English)                       The applicant submits that the contested decision and the
                                                                          revised opinion of the EMEA are unlawful because:
An action against the Commission of the European Communi-
ties and the European Agency for the Evaluation of Medicinal              — the Commission and the EMEA committed errors of law,
Products was brought before the Court of First Instance of the                namely by failing to verify material facts in breach of
European Communities on 19 November 1999 by Nancy Fern                        Articles 7 and 11 of Regulation No 2309/93, after they
Olivieri, represented by Philippe Sands and Rebecca Haynes,                   had received evidence from the applicant that Apotex’s
Barristers, with an address for service in Luxembourg at the                  application for a marketing authorisation contained inac-
Chambers of Nathan & Noesen, 18 rue des Glacis, L-1628.                       curate and incomplete information on material issues;
The applicant claims that the Court should:
                                                                          — the Commission and the EMEA committed manifest errors
                                                                              in their assessment of the application for a marketing
— annul in its entirety the Commission’s decision of                          authorisation, which included
     25 August granting marketing authorisation for the med-
     icinal product for human use known as Ferriprox-
     Deferiprone;                                                             — errors of fact and
— annul in its entirety the revised opinion of the European
     Agency for the Evaluation of Medicinal Products dated                    — errors of law by failing to consider information relevant
     23 June 1999;                                                                 to the application;
 ---pagebreak--- C 47/34               EN                      Official Journal of the European Communities                                      19.2.2000
— the Commission and the EMEA committed further errors                   Pleas in law and main arguments
    of law, namely by relying upon ‘exceptional circumstances’
    to justify authorisation of deferiprone pursuant to                  The applicant, a political organisation within the European
    Article 13 of Regulation No 2309/93, when there were no              Parliament, states that on 19 July 1999 the constitution of the
    such ‘exceptional circumstances’ within the meaning of               ‘Groupe Technique des Députés Indépendants (TDI) — Groupe
    Article 13;                                                          mixte’ was communicated to the President of the Parliament,
                                                                         in accordance with Rule 29 of the Parliament’s Rules of
— The Commission and the EMEA failed to take account of,                 Procedure. At the plenary sitting on 20 July all the political
    and properly apply, the principle of proportionality as well         groups opposed the creation of that mixed group. The
    as the precautionary principle.                                      Committee on Constitutional Affairs and the Rules of Pro-
                                                                         cedure was therefore called upon to furnish an opinion on the
                                                                         conformity of that new group with Rule 29(1) of the Rules of
                                                                         Procedure. It proposed an interpretation to the effect that it is
                                                                         not possible, within the meaning of that rule, to accept the
                                                                         constitution of a group which openly denies possessing any
                                                                         political character and the existence of any political affinities
                                                                         between its members. On 14 September 1999 the matter was
                                                                         submitted to a vote of the Parliament, which, by a simple
                                                                         majority, adopted the interpretation proposed by the Com-
Action brought on 19 November 1999 by the Front                          mittee. It is that decision of the Parliament which is contested
         National against the European Parliament                        in the present case.
                        (Case T-327/99)                                  The decision likewise forms the subject-matter of other actions
                                                                         brought by Members of the European Parliament in Cases
                                                                         T-222/99, T-222/99 R (1) and T-329/99.
                         (2000/C 47/59)
                                                                         In support of its action, the applicant pleads as follows:
                   (Language of the case: French)                        Illegality as to form
An action against the European Parliament was brought before             — The nature of the contested measure is such that it amounts
                                                                             to more than a mere interpretation and constitutes a
the Court of First Instance of the European Communities on
                                                                             retroactive decision dissolving a political group. However,
19 November 1999 by the Front National, having its seat at
Saint-Cloud (France), represented by Alain Nivière, of the Lyon              at no time during any previous period of its existence as a
                                                                             legislative body has the European Parliament ever exercised
Bar, 155 Rue Vendôme, Lyon.
                                                                             the slightest control over the existence of political diver-
                                                                             gences within groups.
The applicant claims that the Court should:
                                                                         — The plenary sitting of the Parliament did not vote on
                                                                             the entire text of the opinion of the Committee on
— annul the decision of the European Parliament dated
                                                                             Constitutional Affairs; in particular, it did not deal with
    14 September 1999 announcing the dissolution of the                      matters contained in the specific part of the decision
    Groupe Technique des Députés Indépendants;                               relating to the dissolution of the TDI Group.
— reinstate the Parliamentary members of that group, restor-             — The refusal to allow any spokesperson to speak on behalf
    ing to them all their rights and prerogatives, both material             of the group concerned at the plenary sitting violated the
    and non-material, with effect from 19 July 1999, the date                principles of the right to a fair hearing and the audi alteram
    on which it was declared that their group was constituted;               partem rule.
— order the reinstatement in their careers of the persons                Illegality as to substance
    placed at the disposal of the group, in such a way that
    those persons may be restored to the position which they             — Rule 29 of the Parliament’s Rules of Procedure was
    should have occupied in indexing terms, in accordance                    wrongly applied, inasmuch as that rule does not lay down
    with the grades and steps applicable to them as assistants,              any special procedure concerning the recognition of a
    technical staff and secretaries of a Parliamentary group;                group. Consequently, the constitution of a group cannot
                                                                             be subjected to any scrutiny regarding the substance of
                                                                             political affinities.
— order the payment of the various allowances paid to
    political groups pursuant to the rules applicable to all             — The principle of equality has been infringed, in that to
    other political groups, with effect from the date of the                 accord the status of a non-affiliated Member of the
    declaration made by the Groupe Technique des Députés                     European Parliament is discriminatory by comparison with
    Indépendants, namely 19 July 1999;                                       that of a member of an officially declared political group.
                                                                             Such a distinction does not exist to the same extent under
— order the European Parliament to pay the costs.                            the parliamentary laws of the Member States.


title: Case T-265/12: Action brought on 12 June 2012 — Schenker v Commission

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/27

         Action brought on 12 June 2012 — Schenker v Commission
   (Case T-265/12)
   2012/C 243/49
   Language of the case: English

      Parties

      Applicant: Schenker Ltd (Feltham, United Kingdom) (represented by: F. Montag and B. Kacholdt, lawyers, D. Colgan and T. Morgan, Solicitors)

      Defendant: European Commission

      Form of order sought

               —

               Annul Article 1(1)(a) of the Decision of the European Commission of 28 March 2012 relating to proceedings under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case COMP/39.462-Freight Forwarding);

               —

               Annul in total or, in the alternative, reduce the fine set out in Article 2(1)(a) of the contested decision; and

               —

               Order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission infringed the applicant’s rights of defence, the principles of a fair trial and sound administration by not terminating its investigation upon receipt of notice that evidence submitted by Cleary Gottlieb Steen & Hamilton LLP on behalf of Deutsche Post AG was tainted by a series of breaches of law.

               2.

               Second plea in law, alleging that the Commission exceeded its competence by adopting the contested decision although it was barred from doing so under Council Regulation No 141/1962 (1).

               3.

               Third plea in law, alleging that the Commission breached Article 101(1) TFEU and Articles 4 and 7 of Council Regulation No 1/2003 (2) by holding that the appreciable effect on interstate trade criterion was fulfilled.

               4.

               Fourth plea in law, alleging that the Commission breached Articles 101(1) and 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union, Articles 4, 7 and 23(2) of Council Regulation No 1/2003 and the principles of personal liability and sound administration in holding the applicant liable for the conduct of BAX Global Ltd. (UK) and by fining solely the applicant for that conduct although BAX Global Ltd. (UK) had been a subsidiary belonging to another undertaking headed by The Brink’s Company during the entire period of the conduct defined in Article 1(1)(a) of the contested decision.

               5.

               Fifth plea in law, alleging that the Commission breached Articles 23 and 27 of Council Regulation No 1/2003, the applicant’s rights of defence, the 2006 Fining Guidelines (3), the principle that the punishment must fit the offence as well as the principles of sound administration, nulla poena sine culpa and proportionality and it committed a manifest error of assessment in determining the amount of the fine on the basis of turnover exceeding the maximum theoretical amount that could have been generated by the conduct defined in Article 1(1)(a) of the contested decision.

               6.

               Sixth plea in law, alleging that the Commission breached Article 23 of Council Regulation No 1/2003, the Leniency Notice (4) as well as the principle of equal treatment and committed a manifest error of assessment in determining the applicant’s fine reduction rate.

               7.

               Seventh plea in law, alleging that the Commission breached Article 23 of Council Regulation No 1/2003, the principle of equal treatment and committed a manifest error of assessment by refusing to initiate settlement talks under the Settlement Notice (5).

      (1)  Council Regulation No 141 of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291).

      (2)  Council Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

      (3)  Guidelines on the method of setting fines imposed pursuant to Art. 23(2)(a) of Reg. 1/2003 (OJ 2006 C 210, p. 2).

      (4)  Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 11).

      (5)  Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Art. 7 and Art. 23 of Reg. 1/2003 in cartel cases (OJ 2008 C 167, p. 1).


title: Order of the Court of First Instance of 15 October 1999 in Case T-94/96 (92): Martin Hagleitner v Commission of the European Communities (Taxation of costs)

text:
C 6/22                  EN                     Official Journal of the European Communities                                         8.1.2000
      ORDER OF THE COURT OF FIRST INSTANCE                                Commission of the European Communities (Agents: Ulrich
                                                                          Wolker and Xavier Lewis) — application for annulment of the
                       of 15 October 1999                                 Commission decision of 30 March 1999 refusing a request
                                                                          from the applicant for information and for the Commission to
                                                                          be held liable — the Court of First Instance (Third Chamber),
in Case T-94/96 (92): Martin Hagleitner v Commission of                   composed of K. Lenaerts, President, J. Azizi and M. Jaeger,
                 the European Communities (1)                             Judges; H. Jung, Registrar, made an order on 27 October 1999,
                                                                          the operative part of which is as follows:
                        (Taxation of costs)
                                                                          1. There is no need to reach a decision on the third form of order
                                                                              sought in the application, to the effect that the Commission
                           (2000/C 6/38)
                                                                              should be ordered to provide the applicant with the information
                                                                              requested.
                   (Language of the case: German)
                                                                          2. The application for annulment is dismissed as inadmissible.
In Case T-94/96 (92): Martin Hagleitner, residing in Vienna,              3. The claim for damages is dismissed as inadmissible.
represented by Harald Svoboda, Rechtsanwalt, Vienna, with an
address for service in Luxembourg at the Chambers of Alex                 4. The applicant shall bear his own costs, together with those
Schmitt, 62 Avenue Guillaume, v Commission of the European                    incurred by the Commission.
Communities (Agents: Julian Currall and Bertrand Wägenbaur)
— application for taxation of the costs payable by the
defendant to the applicant pursuant to the judgment of the                (1) OJ C 226 of 7.8.1999.
Court of First Instance of 15 September 1998 — the Court of
First Instance (Second Chamber), composed of: A. Potocki,
President, and C.W. Bellamy and A.W.H. Meij, Judges; H. Jung,
Registrar, made an order on 15 October 1999, the operative
part of which is as follows:
The total amount of the costs to be reimbursed by the Commission to             ORDER OF THE COURT OF FIRST INSTANCE
the applicant is fixed in the sum of 9 500 euro, together with any
VAT payable on the fees of the applicant’s lawyer.                                               of 20 October 1999
(1) OJ C 247 of 24.8.1996.                                                in Case T-154/99 Stadtsportverband Neuss e.V. v Com-
                                                                                mission of the European Communities (1)
                                                                          (Action for annulment — Withdrawal of the contested
                                                                                measure — No need to adjudicate)
                                                                                (2000/C 6/40)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: German)
                       of 27 October 1999
                                                                          In Case T-154/99: Stadtsportverband Neuss e.V., established in
in Case T-106/99: Karl L. Meyer v Commission of the                       Neuss (Germany), represented by Heinz Günther Hüsch,
                    European Communities (1)                              Rechtsanwalt, Neuss, v Commission of the European Com-
                                                                          munities (Agents: Karen Banks and Klaus Wiedner) — appli-
                                                                          cation for annulment of the Commission decision of 6 April
(Inadmissibility — Actionable measure — Access to docu-
                                                                          1999 ordering repayment of financial aid granted to the
ments of the institutions — Difference between information
                                                                          applicant — the Court of First Instance (Fourth Chamber),
                          and documents)
                                                                          composed of: V. Tiili, President, R.M. Moura Ramos and
                                                                          P. Mengozzi, Judges; H. Jung, Registrar, has made an order on
                           (2000/C 6/39)                                  20 October 1999, the operative part of which is as follows:
                                                                          1. It is unnecessary to adjudicate in the present action;
                    (Language of the case: French)
                                                                          2. The Commission shall bear the costs.
In Case T-106/99: Karl L. Meyer, residing at Uturoa, Raiatea
(French Polynesia), represented by Jean-Dominique des Arcis,              (1) OJ C 265 of 18.9.1999.
of the Papeete Bar, with an address for service in Luxembourg
at the office of Horst Pakowski, Ambassador of the Federal
Republic of Germany, 20-22 Avenue Emile Reuter, against


title: Case T-38/00: Action brought on 24 February 2000 by Virginia Joaquim Matos against Council of the European Union

text:
C 122/40               EN                     Official Journal of the European Communities                                     29.4.2000
— infringement of Articles 4 and 27 to 29 of the Staff                   — order the defendant to give all due legal effect to the
    Regulations;                                                             reestablishment of the rights of the applicant;
— a mistake of law consisting in the absence of any objective            — otherwise, order the defendant to make good both the
    justification for using the date of 2 October 1997 as a                  material and non-material damage suffered, provisionally
    criterion for taking into consideration the persons working              evaluated at EUR 1, together with default interest as from
    in the Schengen Secretariat for the purposes of their being              1 May 1999;
    integrated into the General Secretariat of the Council;
                                                                         — order the defendant to pay all the costs.
— breach of the principle of non-discrimination;
— infringement of Article 7 of the Staff Regulations and of              Pleas in law and main arguments
    the interest of the service.
                                                                         The applicant passed competition LA/365 of the Council with
                                                                         a view to the setting-up of a list for the recruitment of
As regards the annulment of the individual decisions, the                Portuguese mother-tongue translators. She challenges the
applicant pleads:                                                        decisions to appoint four former agents of the Schengen
                                                                         Secretariat to LA 7 posts in the Portuguese division of the
— breach of the principle of legitimate expectations;                    Council’s Language Service. Those appointments imply a
                                                                         decision to refuse to take into account the applicant’s candi-
— breach of the principle of having regard for the welfare of            dature and constitute individual measures implementing
    officials and of the principle of sound management.                  Decision 1999/307/EC. In her application, the applicant
                                                                         alleges the unlawfulness of the decision and of the individual
                                                                         decisions taken by the Council.
                                                                         The arguments put forward by the applicant are similar to
                                                                         those put forward in Case T-37/00.
Action brought on 24 February 2000 by Virginia Joaquim
       Matos against Council of the European Union
                         (Case T-38/00)
                                                                         Action brought on 28 February 2000 by Javier Martinez
                                                                         Lara and Milva Urbán Penón against the Council of the
                        (2000/C 122/61)                                                         European Union
                                                                                (Case T-43/00)
                   (Language of the case: French)
                                                                                (2000/C 122/62)
An action against Council of the European Union was brought
before the Court of First Instance of the European Communities
on 24 February 2000 by Virgı́nia Joaquim Matos, residing in                                (Language of the case: French)
Montijo, Portugal, represented by Georges Vandersanden and
Laure Levi, of the Brussels Bar, with an address for service in
Luxembourg at Société de Gestion Fiduciaire SARL, 2-4 Rue                An action against the Council of the European Union was
Beck.                                                                    brought before the Court of First Instance of the European
                                                                         Communities on 28 February 2000 by Javier Martinez Lara
                                                                         and Milva Urbán Penón, residing at Brussels, represented by
The applicant claims that the Court should:                              Jean-Noël Louis, Greta-Françoise Parmentier and Véronique
                                                                         Peere, of the Brussels Bar, with an address for service in
— annul decision 1999/307 of the Council of 1 May 1999                   Luxembourg at the offices of the Société de Gestion Fiduciaire
    laying down the detailed arrangements for the integration            SARL, 2-4 Rue Beck.
    of the Schengen secretariat into the General Secretariat of
    the Council;                                                         The applicants claim that the Court should:
— annul the decisions to appoint four persons to LA 7 posts              — annul the decision of the appointing authority of 28 July
    in the Portuguese Division of the Council’s Language                     1999 to reject the applicants’ application to define Compe-
    Service;                                                                 tition B/260 as a ‘non-specialised’ competition concerning
                                                                             passage from one category to another for the purpose of
— annul the subsequent implied decisions not to appoint the                  drawing up a reserve list of administrative assistants of
    applicant to one of those posts;                                         Grade B5;


title: Case T-139/01: Action brought on 19 June 2001 by Comafrica SpA and Dole Fresh Fruit Europe Ltd. & Co. against the Commission of the European Communities

text:
C 245/26               EN                     Official Journal of the European Communities                                        1.9.2001
The dispute between the parties concerns the question of the             Pleas in law and main arguments
costs which the applicant must bear, in accordance with
Article 6 of Regulation (EC) No 1135/1999, in its capacity as
a party awarded a contract for the procurement of agricultural           The applicant contests the abovementioned recovery decision
products.                                                                of the Commission demanding partial repayment of a total
                                                                         sum of EUR 20 000 transferred to the applicant in the
                                                                         context of the Eurathlon programme, in the amount of
The applicant argues that Article 6 of Regulation (EC)                   DEM 31 911,11, on the ground of impermissible profit.
No 1135/1999 does not oblige the party awarded the procure-
ment contract to draw up the transport documents for the
delivery of the goods to Russia by the party awarded the                 The applicant submits that the conditions for a demand for
transport contract, or to bear the costs thereof. All costs arising      repayment of the subsidy given, agreed between the parties
from the transport side of the tender were the responsibility of         when the subsidy was granted, are not met. In particular, the
the party awarded the transport contract. It was impossible for          final accounts for the project do not show a profit, so that the
the procurer to supply appropriate transport documents.                  demand for repayment is unlawful. The defendant might at
                                                                         most be entitled to a proportionate share of 18,4 % of the
                                                                         surplus. It is, however, demanding payment of the entire
In the alternative, the applicant bases its claim on failure by          (incorrectly calculated) surplus.
the Commission to fulfil its precontractual duty of providing
information. As the interpretation of the provision in dispute,
and thus the scope of the contractual obligation, was not                Moreover, the applicant relies on limitation of the defendant’s
clearly formulated, the Commission should have informed the              claims. It submits that the ISO 1994 event took place in 1994,
applicant on the point. Failure to provide such information              and any claims for repayment arose in that year. The notice to
caused loss to the applicant.                                            pay dates from 9 April 2001, however, and was therefore
                                                                         made at least six years in law after the alleged debt arose.
(1) In accordance with Council Regulation (EC) No 2802/98 of
    17 December 1998 on a programme to supply agricultural
    products to the Russian Federation (OJ 1998 L 349, p. 12) and
    Commission Regulation (EC) No 111/1999 of 18 January 1999
    laying down general rules for the application of Council Regu-
    lation (EC) No 2802/98 on a programme to supply agricultural
    products to the Russian Federation (OJ 1999 L 14, p. 3).             Action brought on 19 June 2001 by Comafrica SpA
(2) OJ 1999 L 135, p. 85.                                                and Dole Fresh Fruit Europe Ltd. & Co. against the
(3) OJ 1999 L 242, p. 13.                                                         Commission of the European Communities
                                                                                (Case T-139/01)
                                                                                (2001/C 245/43)
Action brought on 19 June 2001 by Stadtsportverband
Neuss e.V. against Commission of the European Com-                                          (Language of the case: English)
                             munities
                                                                         An action against the Commission of the European Communi-
                         (Case T-137/01)                                 ties was brought before the Court of First Instance of the
                                                                         European Communities on 19 June 2001 by Comafrica SpA,
                         (2001/C 245/42)                                 Genoa, Italy, and Dole Fresh Fruit Europe Ltd. & Co., Ham-
                                                                         burg, Germany, represented by Bernard O’Connor and Philip
                                                                         Bastos G. Martin of O’Connor and Company, Brussels
                   (Language of the case: German)                        (Belgium).
An action against the Commission of the European Communi-                The applicant claims that the Court should:
ties was brought before the Court of First Instance of the
European Communities on 19 June 2001 by Stadtsportver-                   —     declare the application admissible;
band Neuss e.V. of Neuss, Germany, represented by Heinz
Günther Hüsch, lawyer.                                                   —     declare void, pursuant to Articles 230 and 231 EC,
                                                                               Commission Regulation (EC) No 896/2001 in so far as it
                                                                               affects the applicants, or in the alternative to declare the
The applicant claims that the Court should:                                    said regulation void erga omnes;
—      Annul the recovery decision of the European Commission            —     declare void, pursuant to Articles 230 and 231 EC,
       of 9 April 2001, account number 3240302372;                             Commission Regulation (EC) No 1121/2001 in so far as
                                                                               it affects the applicants, alternatively, to declare the said
—      Order the defendant to pay the costs.                                   regulation void erga omnes;
 ---pagebreak--- 1.9.2001                EN                     Official Journal of the European Communities                                      C 245/27
—     order the Commission, pursuant to Articles 235 and the                    Commission has exceeded the powers granted to it by
      second paragraph of 288 EC, to make good the damage                       the Council to manage the banana Common Market
      caused to the applicants by the wrongful adoption of                      Organisation lawfully in accordance with good adminis-
      either or both Regulation No 896/2001 and Regulation                      trative practice.
      No 1121/2001, and to pay compensatory interest on all
      sums found to be due, such interest to run from the date            —     The Commission has infringed the applicants’ right to
      on which the damage materialised;                                         have their full entitlement to licences respected, and has
                                                                                allowed certain operators to gain inappropriate rights.
—     make any orders which the Court considers necessary
      and in particular, pursuant to Article 65 of the Rules of           (1) OJ L 126 of 8.5.01, p. 6.
      Procedure of the Court of First Instance, to request the            (2) OJ L 153 of 8.6.01, p. 12.
      Commission to provide figures concerning the actual
      licence usage for 1994, 1995, 1996; and
—     order the Commission to pay the costs of the proceedings.
                                                                          Action brought on 18 June 2001 by Paul Doyle against
                                                                                Commission of the European Communities
Pleas in law and main arguments
                                                                                (Case T-140/01)
The present application concerns two regulations:                                                  (2001/C 245/44)
—     Commission Regulation (EC) No 896/2001 of 7 May                                        (Language of the case: French)
      2001 laying down detailed rules for applying Council
      Regulation (EEC) No 404/93 as regards the arrangements
      for importing bananas into the Community (1); and                   An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 18 June 2001 by Paul Doyle,
—     Commission Regulation (EC) No 1121/2001 of 7 June                   residing in Brussels, represented by Jean-Noël Louis and
      2001 fixing the adjustment coefficients to be applied to            Véronique Peere, lawyers.
      each traditional operator’s reference quantity under the
      tariff quotas for imports of bananas (2).
                                                                          The applicant claims that the Court should:
                                                                          —     annul the decision of the Commission to limit to
The applicants submit that:                                                     EUR 1 880 .10 the amount transferable to the United
                                                                                Kingdom with effect from October 2000;
—     The method which the Commission has adopted in
      Article 4(1) of Regulation No 896/2001 for calculating              —     order the defendant to pay the costs.
      operator reference quantities is illegal, inasmuch as it
      fixes those quantities by reference to total figures which
      the Commission must know to be substantially incorrect.
                                                                          Pleas in law and main arguments
      In addition, Regulation No 896/2001 precludes the
      correction of reference quantities either by the Com-
      mission itself or by the Member States acting as its agents.        The applicant, an Irish national, has lived for several years in
                                                                          the United Kingdom, having been assigned to a post in
                                                                          Brussels. He challenges the Commission’s decision to limit the
—     Regulation No 1121/2001 fixes the Applicant’s
                                                                          amount transferable to the United Kingdom to 19 % of his net
      entitlement to licences for the second half of 2001 and
                                                                          salary. In support of his application, the applicant alleges
      was adopted on the basis of Article 5 of Regulation
                                                                          infringement of Article 17 of Annex VII to the Staff Regulations
      No 896/2001. As to what is claimed to be the incorrect
                                                                          and invalidity of the general provisions implementing it.
      reference quantities adopted on the basis of Article 4 of
                                                                          According to the applicant, the Commission was required to
      Regulation No 896/2001, an essential element in the
                                                                          transfer a higher rate on account of the regular expenditure
      calculation of the adjustment coefficient, the adjustment
                                                                          which he continues to incur in the United Kingdom and in
      coefficient itself is incorrect and illegal.
                                                                          respect of his dependent children who are pursuing their
                                                                          studies there.
—     In adopting both these Regulations, on the basis of facts
      that the Commission must know to be incorrect, the


title: Case C-375/01: Action brought on 27 September 2001 by the Commission of the European Communities against Ireland

text:
C 348/12                EN                    Official Journal of the European Communities                                    8.12.2001
(Federal Social Court) of 2 August 2001, received at the Court           The Commission claims that the Court should:
Registry on 25 September 2001, for a preliminary ruling in
the case of Nadi Sahin against Bundesanstalt für Arbeit (Federal         —     declare that, by failing to adopt and to notify to the
Labour Office) on the following question:                                      Commission, within the time-limit laid down, the laws,
                                                                               regulations and administrative provisions necessary to
1.     Is Article 41(1) of the Additional Protocol of 23 Novem-                comply fully with Council Directive 98/81/EC (1) of
       ber 1970 to the Agreement establishing an Association                   26 October 1998 amending Directive 90/219/EEC on
       between the European Economic Community and Turkey                      the contained use of genetically modified micro-organ-
       to be interpreted as meaning:                                           isms, the Hellenic Republic has failed to fulfil its obli-
                                                                               gations under the EC Treaty;
       (a)  that a Turkish worker is entitled to plead a restriction
            on the freedom to provide services which is contrary         —     order the Hellenic Republic to pay the costs.
            to the Additional Protocol and, if so,
       (b) that there is also a restriction on the freedom to
            provide services where a Member State of the                 Pleas in law and main arguments
            Community abolishes an existing work permit
            exemption for Turkish drivers engaged in inter-
            national haulage who are employed by a (Turkish)             In accordance with the third paragraph of Article 249 of the
            employer with its seat in Turkey?                            Treaty establishing the European Community, directives are
                                                                         binding, as to the result to be achieved, upon each Member
                                                                         State to which they are addressed.
2.     Does such a restriction concern exclusively the freedom
       to provide services or does it also or solely concern
       conditions of access to employment within the meaning
       of Article 13 of Decision No 1/80 of the Association              Under the first paragraph of Article 10 of the Treaty, Member
       Council of 19 September 1980 on the development                   States are to take all appropriate measures, whether general or
       of the Association between the European Economic                  particular, to ensure fulfilment of the obligations arising out
       Community and Turkey?                                             of the Treaty or resulting from action taken by the institutions
                                                                         of the Community.
3.     Is Article 13 of Decision No 1/80 of the Association
       Council of 19 September 1980 on the development                   It is not disputed by the Hellenic Republic that it must adopt
       of the Association between the European Economic                  measures to comply with the abovementioned directive.
       Community and Turkey also to be applied to Turkish
       employees of an employer with its seat in Turkey who,
       as long-distance lorry drivers engaged in international           The Commission records that until now the Hellenic Republic
       haulage, regularly pass through a Member State of the             has not adopted the appropriate measures for the full incorpor-
       Community without belonging to the (legitimate) labour            ation of the Directive at issue into Greek law.
       force of that Member State?
                                                                         (1) OJ L 330, 5.12.1998, p. 13.
Action brought on 26 September 2001 by the Com-
mission of the European Communities against the Hellen-
                            ic Republic                                  Action brought on 27 September 2001 by the Com-
                                                                            mission of the European Communities against Ireland
                         (Case C-371/01)
                                                                                (Case C-375/01)
                         (2001/C 348/21)
                                                                                (2001/C 348/22)
An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 26 Sep-              An action against Ireland was brought before the Court of
tember 2001 by the Commission of the European Communi-                   Justice of the European Communities on 27 September 2001
ties, represented by Götz zur Hausen, Legal Adviser, and Panos           by the Commission of the European Communities, represented
Panagiotopoulos, a national civil servant on secondment to its           by Richard Wainwright, acting as agent, with an address for
Legal Service.                                                           service in Luxembourg.
 ---pagebreak--- 8.12.2001                EN                   Official Journal of the European Communities                                       C 348/13
The Applicant requests that the Court should:                                  79/409/EEC (1) and subsequent amendments thereto and
                                                                               other migratory species which regularly return to Italy,
                                                                               and by failing to send to the Commission all the
—     declare that by failing to adopt the laws, regulations
                                                                               appropriate information relevant to most of the special
      or administrative provisions necessary to comply with                    protection areas classified by it, the Italian Republic has
      Council Directive 97/43/Euratom of 30 June 1997 laying                   failed to fulfil its obligations under Article 4(1), (2) and
      down provisions concerning health protection of individ-
                                                                               (3) of that Directive.
      uals against the dangers of ionising radiation in relation
      to medical exposure, and repealing Directive
      84/466/Euratom (1) or in any event by failing to com-
                                                                         —     Order the Italian Republic to pay the costs.
      municate them to the Commission, Ireland has failed to
      fulfil its obligations under that Directive,
—     order Ireland to pay the costs.
                                                                         Pleas in law and main argument
Pleas in law and main argument
                                                                         In spite of the efforts made by the Italian authorities to
Article 249 EC under which a directive shall be binding as to            fulfil their obligations under Article 4 of the Directive,
the result to be achieved, upon each Member State, carries by            the Commission finds that the classification of the special
implication an obligation on the Member States to observe the            protection areas (SPA) still does not meet the requirements of
period for compliance laid down in the Directive. That period            that provision, either in so far as concerns the species of birds
expired on 13 May 2000 without Ireland having enacted the                mentioned in Annex 1 to the Directive or in so far as concerns
provisions necessary to comply with the Directive referred to            the other species of migratory birds which return regularly.
in the conclusions of the Commission.
(1) OJ L 180, 9.7.1997, p. 22.                                           In view of the present number and surface of the SPAs in Italy,
                                                                         it is clear that many bird species listed in Annex I to the
                                                                         Directive and many other migratory species are not adequately
                                                                         protected. Another factor which shows the inadequacy of the
                                                                         classification of the SPAs carried out by the Italian authorities
                                                                         is the fact that a large number of internationally important
                                                                         wetlands have not been designated. Moreover, a comparison
                                                                         between the number of ‘Important bird areas’ (IBA) and the
                                                                         number of IBAs partly or wholly covered by SPAs, so far as
Action brought on 2 October 2001 by the Commission                       certain autonomous regions and provinces are concerned,
of the European Communities against the Italian Republic                 shows that, notwithstanding that the situation has improved
                                                                         for a number of regions, there remain some substantial aspects
                                                                         in which they fall short, in particular in respect of some
                          (Case C-378/01)                                regions which are extremely important for wild birds.
                          (2001/C 348/23)
                                                                         Finally, the information sent by Italy to the Commission is in
                                                                         many ways inadequate. In particular, the ornithological data is
                                                                         often inadequate inasmuch as it is both incomplete and
An action against the Italian Republic was brought before the
                                                                         inaccurate. Those deficiencies infringe Article 4(3) of the
Court of Justice of the European Communities on 2 October
                                                                         Directive and prevent the Commission from being able to
2001 by the Commission of the European Communities,
                                                                         carry out its coordinating role in order to ensure that the
represented by Gregorio Valero Jordana and Roberto Amorosi,
                                                                         SPAs form a coherent whole which meets the protection
acting as Agents.
                                                                         requirements of the affected species.
The applicant claims that the Court should:
                                                                         (1) OJ 1979 L 103 of 25.4.1979, p. 1.
—     Declare that, by failing adequately to classify as special
      protection areas the most suitable zones, in terms of
      number and surface area, for the protection of those
      species mentioned in Annex I to Council Directive


title: Case T-470/07: Action brought on 19 December 2007 — Dow Agrosciences BV and Others v Commission

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/41

         Action brought on 19 December 2007 — Dow Agrosciences BV and Others v Commission
   (Case T-470/07)
   (2008/C 64/67)
   Language of the case: English
   Parties

      Applicants: Dow Agrosciences BV (Rotterdam, Netherlands), Dow AgroSciences Ltd (Hitchin, United Kingdom), Dow AgroSciences SAS (Mougins, France), Dow AgroSciences Export SAS (Mougins, France), Dow AgroSciences Italia Srl (Milan, Italy), Dow AgroSciences Iberica SA (Madrid, Spain), Dow AgroSciences Vertriebsgesellschaft mbH (Neusiedl am See, Austria), Dow AgroSciences LLC (Indianapolis, United States) (represented by: K. Van Maldegem, C. Mereu, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               To order the annulment of Commission Decision 2007/619/EC;

               —

               to order the defendant to pay all costs and expenses in these proceedings.

         Pleas in law and main arguments
   The applicants seek the annulment of Commission Decision 2007/619/EC of 20 September 2007 concerning the non-inclusion of 1,3-dichloropropene in Annex I to Council Directive 91/414/EEC (1) (‘Directive 91/414’) and the withdrawal of authorisations for plant protection products containing that substance.
   According to the applicants, the contested decision is unlawful because of the following reasons:

               (a)

               it infringes essential procedural requirements, as it is based on a report from the European Food Safety Authority (‘EFSA’) that allegedly infringes Article 8(7) of Commission Regulation 451/2000 (2); as the defendant infringed Article 8(8) of the above-mentioned regulation and as the contested decision fails to comply with the applicable legislative procedure, infringing thus, Articles 5 EC, 7 EC and Article 5 of Decision 1999/468 (3);

               (b)

               it contains manifest errors of appreciation because it decides on the non-inclusion of 1,3-dichloropropene in Annex I to Council Directive 91/414/EEC without it being established that the substance poses an unacceptable risk to human health or the environment and does not meet the requirements of Article 5(1) and 5(2) of Directive 91/414 for inclusion in Annex I;

               c)

               it breaches general principles of Community law and, in particular, (i) the principles of legal certainty and legitimate expectations, (ii) the principle of proportionality, (iii) the principle of equal treatment, (iv) the principle of sound administration, and (v) the applicants' right to defence and right to a fair hearing;

               (d)

               it infringes the EC Treaty and the rule of law related to its application, and in particular, (i) Article 13 of Directive 91/414, as well as (ii) Article 95 EC and Articles 4 and 5 of the above-mentioned directive.

         The applicants also raise a plea of illegality pursuant to Article 241 EC against Article 20 of Commission Regulation 1490/2002 (4) which, according to their allegations, substantially altered their legal rights of expectations through the amendment of Regulation 451/2000 so as to provide mandatory involvement of EFSA in the review of the substance concerned.

      (1)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ L 230, p. 1).

      (2)  Commission Regulation (EC) No 451/2000 of 28 February 2000 laying down the detailed rules for the implementation of the second and third stages of the work programme referred to in Article 8(2) of Council Directive 91/414/EEC (OJ L 55, p. 25).

      (3)  Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ L 184, p. 23).

      (4)  Commission Regulation (EC) No 1490/2002 of 14 August 2002 laying down further detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC and amending Regulation (EC) No 451/2000 (Text with EEA relevance) (OJ L 224, p. 23).


title: Case T-511/15: Action brought on 28 August 2015 — Fontem Holdings 4 v OHIM (BLU ECIGS)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/42

         Action brought on 28 August 2015 — Fontem Holdings 4 v OHIM (BLU ECIGS)
   (Case T-511/15)
   (2015/C 363/51)
   Language of the case: English

      Parties

      Applicant: Fontem Holdings 4 BV (Amsterdam, Netherlands) (represented by: A. Poulter, Solicitor)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community word mark ‘BLU ECIGS’ — Application for registration No 12 579 603

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 29 June 2015 in Case R 2697/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               annul the decision of the Examiner dated 22 August 2014 for application No 12 579 603;

               —

               accept the application No 12 579 603 for registration.

      Plea in law

               —

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


title: Case C-531/08: Order of the President of the Court of 4 September 2009 — Commission of the European Communities v Portuguese Republic

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/20

         Order of the President of the Court of 4 September 2009 — Commission of the European Communities v Portuguese Republic
   (Case C-531/08) (1)

   2010/C 11/36

      Language of the case: Portuguese

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

      (1)  OJ C 19, 24.1.2009.


title: Case T-411/15: Action brought on 28 July 2015 — Gappol Marzena Porczyńska v OHIM — GAP (ITM) (GAPPoL)

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/14

         Action brought on 28 July 2015 — Gappol Marzena Porczyńska v OHIM — GAP (ITM) (GAPPoL)
   (Case T-411/15)
   (2015/C 328/13)
   Language in which the application was lodged: Polish

      Parties

      Applicant: PP Gappol Marzena Porczyńska (Łódź, Poland) (represented by: J. Gwiazdowska, lawyer)

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

      Other party to the proceedings before the Board of Appeal: GAP (ITM), Inc. (San Francisco, United States of America)

      Details of the proceedings before OHIM

      Applicant for the Community trade mark: The applicant

      Trade mark at issue: Community figurative mark containing the word element ‘GAPPoL’ — Application No 8 346 165

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 13 May 2015 in Case R 686/2013-1

      Form of order sought

   The applicant claims that the Court should:

               —

               set aside the contested decision;

               —

               give a final decision by amending the decision of the Board of Appeal by rejecting the opposition also in regard to the goods in Classes 20 and 25;

               —

               order OHIM to pay the costs of the proceedings.

      Pleas in law

               —

               Infringement of Articles 59 and 64(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) (‘Regulation No 207/2009’);

               —

               Infringement of Article 75 of Regulation No 207/2009 and of Rule 50(2)(h) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) (‘Regulation No 2868/95’);

               —

               Infringement of Article 76 of Regulation No 207/2009 and of Rule 50(2)(g) of Regulation No 2868/95;

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009;

               —

               Infringement of Articles 8(5) and 9(1)(c) of Regulation No 207/2009.