title: Case C-138/16: Judgment of the Court (Eighth Chamber) of 16 March 2017 (request for a preliminary ruling from the Handelsgericht Wien — Austria) — Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger registrierte Genossenschaft mbH (AKM) v Zürs.net Betriebs GmbH (Reference for a preliminary ruling — Intellectual property — Copyright and related rights in the information society — Directive 2001/29/EC — Right of communication of works to the public — Article 3(1) — Exceptions and limitations — Article 5(3)(o) — Broadcast of television programmes through a local cable network — National law laying down exceptions for installations allowing access to a maximum of 500 subscribers and for the retransmission of broadcasts of the public broadcaster in national territory)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/12

         Judgment of the Court (Eighth Chamber) of 16 March 2017 (request for a preliminary ruling from the Handelsgericht Wien — Austria) — Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger registrierte Genossenschaft mbH (AKM) v Zürs.net Betriebs GmbH
   (Case C-138/16) (1)

   ((Reference for a preliminary ruling - Intellectual property - Copyright and related rights in the information society - Directive 2001/29/EC - Right of communication of works to the public - Article 3(1) - Exceptions and limitations - Article 5(3)(o) - Broadcast of television programmes through a local cable network - National law laying down exceptions for installations allowing access to a maximum of 500 subscribers and for the retransmission of broadcasts of the public broadcaster in national territory))
   (2017/C 151/16)
   Language of the case: German

      Referring court

   Handelsgericht Wien

      Parties to the main proceedings

      Applicant: Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger registrierte Genossenschaft mbH (AKM)

      Defendant: Zürs.net Betriebs GmbH

      Operative part of the judgment

   Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and Article 11bis of the Berne Convention for the Protection of Literary and Artistic Works, in the version resulting from the Paris Act of 24 July 1971, as amended on 28 September 1979, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which provides that the simultaneous, full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables on national territory, is not subject, under the exclusive right of communication to the public, to the requirement that authorisation be obtained from the author, provided that it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication, this being a matter for the national court to ascertain.
   Article 5 of Directive 2001/29, in particular paragraph 3(o) thereof, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that a broadcast made by means of a communal antenna installation, when the number of subscribers connected to the antenna is no more than 500, is not subject, under the exclusive right of communication to the public, to the requirement that authorisation be obtained from the author, and as meaning that that legislation must, therefore, be applied consistently with Article 3(1) of that directive, this being a matter for the national court to ascertain.

      (1)  OJ C 222, 20.6.2016.


title: Case C-419/11: Reference for a preliminary ruling from the Městský soud v Praze (Czech Republic) lodged on 10 August 2011 — Česká spořitelna, a.s. v Gerald Feichter

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/21

         Reference for a preliminary ruling from the Městský soud v Praze (Czech Republic) lodged on 10 August 2011 — Česká spořitelna, a.s. v Gerald Feichter
   (Case C-419/11)
   2011/C 311/36
   Language of the case: Czech

      Referring court

   Městský soud v Praze

      Parties to the main proceedings

      Applicant: Česká spořitelna, a.s.

      Defendant: Gerald Feichter

      Questions referred

               1.

               May the concept of matters concerning a contract concluded by a consumer for a purpose which can be regarded as being outside his trade or profession in Article 15(1) of Council Regulation (EC) No 44/2001 (1) be interpreted as extending also to claims under a promissory note issued in incomplete form brought by the payee against the giver of the aval for the maker of the note?

               2.

               Whether the answer to the first question is affirmative or negative, may the concept of claims relating to a contract in Article 5(1)(a) of Council Regulation (EC) No 44/2001 be interpreted in such a way that, having regard exclusively to the content of the document as such, it extends also to claims under a promissory note issued in incomplete form brought by the payee against the giver of the aval for the maker of the note?

      (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; OJ 2001 L 12, p. 1.


C 184/28                EN                       Official Journal of the European Union                                        2.8.2003
Action brought on 16 June 2003 by the Commission of the                  2.    order the Grand Duchy of Luxembourg to pay the costs.
             European Communities against Ireland
                           (Case C-256/03)                               Pleas in law and main arguments
                           (2003/C 184/49)                               The period prescribed for transposing the Directive expired on
                                                                         20 July 2002.
An action against Ireland was brought before the Court of
Justice of the European Communities on 16 June 2003 by the               (1) OJ L 181 of 20.07.2000, p. 65.
Commission of the European Communities, represented by
Messrs Xavier Lewis and Michel van Beek, acting as agents,
with an address for service in Luxembourg.
The Applicant claims that the Court should:
                                                                                Removal from the register of Case C-135/00 (1)
1)    declare that by failing to adopt the laws, regulations and
      administrative provisions necessary to comply with                                          (2003/C 184/51)
      Council Directive 1999/22/EC of 29 March 1999 relating
      to the keeping of wild animals in zoos (1) Ireland has
      failed to fulfil its obligations under the Directive and in        By order of 6 May 2003 the President of the Court of Justice
      particular its Article 9 and under the Treaty establishing         of the European Communities ordered the removal from the
      the European Community.                                            register of Case C-135/00 (Reference for a preliminary ruling
                                                                         by the Consiglio di Stato): ANAS-Ente Nazionale per le Strade,
2)    order Ireland to pay the costs.
                                                                         Lauro Cantieri Valsesia Spa v Consorzio Cooperative Costru-
                                                                         zioni.
Pleas in law and main arguments
                                                                         (1) OJ C 176 of 24.06.2000.
The period within which the directive had to be transposed
expired on 9 April 2002.
(1) OJ L 94, 09.04.1999, p. 24.
                                                                                Removal from the register of Case C-225/00 (1)
                                                                                (2003/C 184/52)
Action brought on 24 June 2003 by the Commission of                      By order of 6 May 2003 the President of the Court of Justice
the European Communities against the Grand Duchy of                      of the European Communities ordered the removal from the
                             Luxembourg                                  register of Case C-225/00 (Reference for a preliminary ruling
                                                                         by the Consiglio di Stato): Cavalleri Ottavio SpA v ANAS —
                           (Case C-273/03)                               Ente Nazionale per le Strade, Lauro Cantieri Valsesia SpA.
                           (2003/C 184/50)
                                                                         (1) OJ C 233 of 12.08.2000.
An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 24 June 2003 by the Commission of the European
Communities, represented by G. Zavvos, acting as Agent, with
an address for service in Luxembourg.                                           Removal from the register of Case C-243/00 (1)
The Commission of the European Communities claims that the                                        (2003/C 184/53)
Court should:
1.    declare that, by failing to adopt the laws, regulations or         By order of 7 May 2003 the President of the Court of Justice
      administrative provisions necessary to comply with Direc-          of the European Communities ordered the removal from the
      tive 2000/26/EC of the European Parliament and of the              register of Case C-243/00 (Reference for a preliminary ruling
      Council of 16 May 2000 on the approximation of the                 by the High Court of Justice (England & Wales), Queen's Bench
      laws of the Member States relating to insurance against            Division (Divisional Court)): The Queen v Secretary of State for
      civil liability in respect of the use of motor vehicles and        Trade and Industry, Ex parte: Trades Union Congress.
      amending Council Directives 73/239/EEC and 88/357/EEC
      (Fourth motor insurance Directive) (1) and, in any event,
      failing to communicate them to the Commission, the                 (1) OJ C 233 of 12.08.2000.
      Grand Duchy of Luxembourg has failed to fulfil its
      obligations under that directive;


title: Appeal brought on 7 December 1998 by Molkerei Großbraunshain GmbH and Bene Nahrungsmittel GmbH against the order delivered on 15 September 1998 by the Second Chamber of the Court of First Instance of the European Communities in Case T-109/97 between Molkerei Großbraunshain GmbH and Bene Nahrungsmittel GmbH, supported by Freistaat Thüringen, and the Commission of the European Communities, supported by Molkerei und Weichkäserei K.-H. Zimmermann GmbH (Case C-447/98 P)

text:
C 33/6                 EN                 Official Journal of the European Communities                                  6.2.1999
(g) Since neither of the parties to the main proceedings             geographical area under para. 5(c) of such notification the
      has raised any question of interpretation or                   Landkreise (rural districts) of Gera, Zeitz, Geithain,
      application of the Sixth VAT Directive, may the                Grimma, Wurzen, Borna and the City of Gera (or, to use
      national court, of its own motion, interpret and apply         the nomenclature arising from the redrawing of
      the provisions of that directive when giving its final         boundaries and renaming of districts pursuant to
      decision?                                                      administrative reforms in the relevant Bundesländer of
                                                                     Thüringen, Sachsen and Sachsen-Anhalt, in so far as it
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the         included the Landkreise Greiz and Muldentalkreis, parts
    harmonization of the laws of the Member States relating to       of the Kreise Leipziger Land and Burgenlandkreis and the
    turnover taxes Ð Common system of value added tax:               City of Gera).
    uniform basis of assessment Ð OJ L 145, 13.6.1977, p. 1.
                                                                     Pleas in law and main arguments adduced in support:
                                                                     The appellants plead infringement of the fourth paragraph
                                                                     of Article 173 of the EC Treaty. In their submission, the
                                                                     contested order wrongly denied that they were
Appeal brought on 7 December 1998 by Molkerei                        individually concerned by the regulation. It ignored the
Groûbraunshain GmbH and Bene Nahrungsmittel GmbH                     fact that, in the particular circumstances, the contested
against the order delivered on 15 September 1998 by                  regulation had the effect of a decision; that the plaintiffs'
the Second Chamber of the Court of First Instance                    position was not improved but worsened thereby; that
of the European Communities in Case T-109/97                         erroneous choice of the simplified registration procedure
between Molkerei Groûbraunshain GmbH and Bene                        caused guaranteed hearing rights to be truncated, which
Nahrungsmittel GmbH, supported by Freistaat Thüringen,               would otherwise have conferred standing to bring an
and the Commission of the European Communities,                      action; that the plaintiffs do not have appropriate
supported by Molkerei und Weichkäserei K.-H.                         protection by bringing national legal proceedings; and that
                      Zimmermann GmbH                                in any event no determination could be made as to the
                       (Case C-447/98 P)                             admissibility of the claim without any consideration of its
                         (1999/C 33/09)                              merits.
                                                                     (1) OJ C 378, 5.12.1998, p. 17.
An appeal against the order issued on 15 September 1998
by the Second Chamber of the Court of First Instance
of the European Communities in Case T-109/97 (1)
between Molkerei Groûbraunshain GmbH and Bene
Nahrungsmittel GmbH, supported by Freistaat Thüringen,
and the Commission of the European Communities,                      Reference for a preliminary ruling from the Tribunal de
supported by Molkerei und Weichkäserei K.-H.                         Police, Belley, by judgment of that court of 24 November
Zimmermann GmbH, was brought before the Court of                     1998 in the case of MinisteÁre Public v Jean-Pierre
Justice of the European Communities on 7 December                                               Guimont
1998 by Molkerei Groûbraunshain GmbH and Bene                                              (Case C-448/98)
Nahrungsmittel        GmbH,      represented     by    Michael
Loschelder and Thilo Klingbeil, Rechtsanwälte, Cologne,                                     (1999/C 33/10)
with an address for service in Luxembourg at the
Chambers of Marc Loesch, 11 Rue Goethe.                              Reference has been made to the Court of Justice of the
                                                                     European Communities by a judgment of the Tribunal de
The appellants claim that the Court should:                          Police (Local Criminal Court), Belley, France, of
                                                                     24 November 1998, which was received at the Court
set aside the order of the Court of First Instance and allow         Registry on 9 December 1998, for a preliminary ruling in
the appellants' original claim for the annulment of                  the case of MinisteÁre Public v Jean-Pierre Guimont on the
Commission Regulation (EC) No 123/97 of 23 January                   following question:
1997 supplementing the Annex to Commission Regulation
(EC) No 1107/96 on the registration of geographical                  On a proper construction of Articles 3(a) and 30 et seq. of
indications and designations of origin under the procedure           the Treaty establishing the European Community, as
laid down in Article 17 of Regulation (EEC) No 2081/92               amended, must the French rules enacted by Decree
in so far as, in respect of the product Altenburger                 No 88-1206 of 30 December 1988, which prohibit the
Ziegenkäse (PDO)' referred to in Part A of the Annex to              manufacture and marketing in France of a cheese without
the regulation, the notification by the Federal Republic of          rind under the designation Emmental', be regarded as
Germany of 26 January 1994, as supplemented on                       constituting a quantitative restriction or a measure having
7 August 1996, included in the designation of the relevant           equivalent effect on intra-Community trade?


title: Case T-45/03: Judgment of the Court of First Instance of 25 October 2007 — Riva Acciaio v Commission (Agreements, decisions and concerted practices — Producers of reinforcing bars — Decision establishing an infringement of Article 65 CS — Decision based on the ECSC Treaty after expiry of that treaty — Lack of competence of the Commission)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/36

         Judgment of the Court of First Instance of 25 October 2007 — Riva Acciaio v Commission
   (Case T-45/03) (1)

   (Agreements, decisions and concerted practices - Producers of reinforcing bars - Decision establishing an infringement of Article 65 CS - Decision based on the ECSC Treaty after expiry of that treaty - Lack of competence of the Commission)
   (2007/C 297/74)
   Language of the case: Italian
   Parties

      Applicant: Riva Acciaio SpA (Milan, Italy) (represented by: A. Pappalardo, M. Merola, M. Pappalardo and F. Martin, lawyers)

      Defendant: Commission of the European Communities (represented by: L. Pignataro-Nolin and A. Whelan, Agents, and P. Manzini, lawyer)
   Intervener in support of the applicant:Italian Republic (represented by: I. Braguglia and M. Fiorilli, Agents)
   Re:
   Application for annulment of Commission Decision C(2002) 5087 final of 17 December 2002, relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars).
   Operative part of the judgment
   The Court:

               1.

               Annuls Commission Decision C(2002) 5087 final of 17 December 2002 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars) with regard to Riva Acciaio SpA;

               2.

               Orders the Commission to bear its own costs and to pay those incurred by Riva Acciaio;

               3.

               Orders the Italian Republic to bear its own costs.

      (1)  OJ C 101, 26.4.2003.


title: Case T-560/10: Action brought on 10 December 2010 — Nencini v Parliament

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/17

         Action brought on 10 December 2010 — Nencini v Parliament
   (Case T-560/10)
   2011/C 38/31
   Language of the case: Italian

      Parties

      Applicant: Riccardo Nencini (Florence, Italy) (represented by: F. Bertini, lawyer)

      Defendant: European Parliament

      Form of order sought

               —

               Annul the decision of the Secretary-General of the European Parliament of 7 October 2010, addressed to Mr Riccardo Nencini, and Communication No 315653 of the Director General of the European Parliament’s Directorate-General for Finances of 13 October 2010 concerning ‘Recovery of undue payments in relation to the payment of parliamentary assistance and travel allowances — Debit note’, and of the following acts, already the subject of an earlier action pending before the Court in Case T-431/10: the decision of the Secretary-General of the European Parliament of 16 July 2010, addressed to the applicant and, in so far as necessary, any other acts prior to, related to or consequential upon the decision challenged in those proceedings; Communication No 312331 of the Director General of the European Parliament’s Directorate-General for Finances of 4 August 2010, addressed to Mr Riccardo Nencini and prior, related and consequential acts.

               —

               Annul the contested decision and refer the matter back to the Secretary-General of the European Parliament for a fair reassessment of the sum at issue.

               —

               In any event, order the defendant to pay the costs.

      Pleas in law and main arguments

   The applicant in this case is the same applicant as in Case T-431/10 Nencini v Parliament (1).
   In support of his action, the applicant puts forward pleas and arguments similar to those invoked in that case.

      (1)  OJ 2000 C 317, p. 40.


title: Case T-520/13: Action brought on 25 September 2013 — Philip Morris Benelux/Commission

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/65

         Action brought on 25 September 2013 — Philip Morris Benelux/Commission
   (Case T-520/13)
   2013/C 344/120
   Language of the case: English

      Parties

      Applicant: Philip Morris Benelux (Antwerpen, Belgium) (represented by: K. Nordlander, lawyer, and P. Harrison, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare the application admissible;

               —

               Annul the decision taken by the Secretary-General of the European Commission, dated 15 July 2013 (the ‘contested measure’), in which the Commission refused the applicant’s request for access to drafts of the Impact Assessment Report accompanying the Commission’s proposal for a revised Tobacco Products Directive; and

               —

               Order the defendant to pay the applicant’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that, by adopting the contested measure, the Commission committed a manifest error of assessment and breached Article 4(3) of the Regulation (EC) No 1049/2001 (1), by asserting and concluding that both the first and second subparagraphs of Article 4(3) of the such regulation (which are mutually exclusive) could apply simultaneously to the same set of facts at issue.

               2.

               Second plea in law, alleging that, by adopting the contested measure, the Commission breached Article 4(3)(1) of Regulation (EC) No 1049/2001 by concluding that the narrow and limited exception set out in that subparagraph justified its refusal to grant disclosure of any of the requested documents.

               3.

               Third plea in law, alleging that, by adopting the contested measure, the Commission breached Article 4(3)(2) of Regulation (EC) No 1049/2001, because the requested documents do not have the status of opinions and thus are not covered by the exception in Article 4(3)(2) of the regulation in question. Further, (i) disclosure of the requested documents would not undermine the Commission’s decision-making process; and (ii) there is an overriding public interest in disclosure of the requested documents.

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


title: Case C-338/06: Judgment of the Court (First Chamber) of 18 December 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Second Directive 77/91/EEC — Articles 29 and 42 — Public limited liability companies — Capital increase — Right to pre-emptive subscription for shares and for bonds convertible into shares — Withdrawal — Protection of shareholders — Equal treatment)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/4

         Judgment of the Court (First Chamber) of 18 December 2008 — Commission of the European Communities v Kingdom of Spain
   (Case C-338/06) (1)

   (Failure of a Member State to fulfil obligations - Second Directive 77/91/EEC - Articles 29 and 42 - Public limited liability companies - Capital increase - Right to pre-emptive subscription for shares and for bonds convertible into shares - Withdrawal - Protection of shareholders - Equal treatment)
   (2009/C 44/05)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: G. Braun and R. Vidal Puig, Agents)

      Defendant: Kingdom of Spain (represented by: F. Díez Moreno, Agent)

      Interveners in support of the defendant: Republic of Poland (represented by: E. Ośniecka-Tamecka, Agent), Republic of Finland (represented by: J. Heliskoski, Agent), United Kingdom of Great Britain and Northern Ireland (represented by: V. Jackson, Agent, assisted by J. Stratford, Barrister)
   Re:
   Failure by a Member State to fulfil obligations — Infringement of Articles 29 and 42 of Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1) — Failure to protect minority shareholders
   Operative part of the judgment
   The Court:

               1)

               Declares that the Kingdom of Spain:

                           —

                           by granting the right to pre-emptive subscription of shares in the event of a capital increase by consideration in cash, not only to shareholders, but also to holders of bonds convertible into shares;

                           —

                           by granting the right to pre-emptive subscription rights for bonds convertible into shares not only to shareholders, but also to holders of bonds convertible into shares pertaining to earlier issues; and

                           —

                           by failing to provide that the shareholders' meeting may decide to withdraw pre-emptive subscription rights for bonds convertible into shares;

                     has failed to fulfil its obligations under Article 29 of Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article [48] of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent;

               2)

               Dismisses the action as to the remainder;

               3)

               Orders the Kingdom of Spain to pay three quarters of all the costs. The Commission of the European Communities is ordered to pay a quarter of the costs;

               4)

               Orders the Republic of Poland, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

      (1)  OJ C 261, 28.10.2006.


title: Case T-34/17: Action brought on 20 January 2017 — Skyleader v EUIPO — Sky International (SKYLEADER)

text:
               13.3.2017

               EN

               Official Journal of the European Union

               C 78/37

         Action brought on 20 January 2017 — Skyleader v EUIPO — Sky International (SKYLEADER)
   (Case T-34/17)
   (2017/C 078/51)
   Language in which the application was lodged: English

      Parties

      Applicant: Skyleader a.s. (Ústí nad Labem, Czech Republic) (represented by: K. Malmstedt, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Sky International AG (Zug, Switzerland)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU figurative mark containing the word element ‘SKYLEADER’ — EU trade mark No 6 347 827

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 21 Novembre 2016 in Case R 805/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision No 11084 C of the Cancellation Division and the contested decision;

               —

               order EUIPO and Sky International to pay the costs of the proceedings both before the General Court and EUIPO.

      Pleas in law

               —

               Infringement of EU law and of substantial procedural measures of EU law;

               —

               Infringement of principles of good and sound administration;

               —

               Infringement of Rule 45(5) of Regulation No 2868/95.


title: Case C-4/03: Reference for a preliminary ruling by the Oberlandesgericht Düsseldorf by order of that Court of 5 December 2002 in the case of GAT, Gesellschaft für Antriebstechnik mbH & Co. KG against LuK Lamellen und Kupplungsbau Beteiligungs KG

text:
C 55/14                EN                       Official Journal of the European Union                                         8.3.2003
broadcast of un-used Eurovision rights’, when such a ground             Action brought on 7 January 2003 by the Hellenic
was not argued before it. By so doing, the Court of First               Republic against the Community of the European Com-
Instance deprived the EBU of its right, as a party to the                                           munities
proceedings, to refute the points accepted by the Court. By
thus challenging a relatively marginal but no less essential
aspect such as the sub-licensing scheme rather than the                                           (Case C-5/03)
Eurovision system itself or the substance of the sub-licensing
scheme introduced at the behest of the Commission, the Court
of First Instance in fact requires the EBU to adjust that scheme                                 (2003/C 55/24)
in order to grant access to non-members to rights which the
latter have not asked for nor, doubtless, wish to ask for.
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought on 7 January 2003 by the Hellenic Republic,
                                                                        represented by Stilianis Xharitakis and Eleni Svolopoulou,
                                                                        members of the State legal service, with an address for service
                                                                        in Luxembourg at the Greek embassy, 27 Rue Marie-Adélaïde.
Reference for a preliminary ruling by the Oberlandesge-
richt Düsseldorf by order of that Court of 5 December                   The applicant claims that the Court should:
2002 in the case of GAT, Gesellschaft für Antriebstechnik
mbH & Co. KG against LuK Lamellen und Kupplungsbau
                        Beteiligungs KG                                 —     Annul, or amend, Decision E/2002/4127 concerning
                                                                              the exclusion from Community financing of certain
                                                                              expenditure incurred by the Member States within the
                          (Case C-4/03)                                       context of the EAGGF — Guarantee section.
                         (2003/C 55/23)
                                                                        Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht                  The financial corrections called in question by the Hellenic
Düsseldorf (Higher Regional Court Düsseldorf) of 5 December             Republic concern fruit and vegetables and financing for beef
2002, received at the Court Registry on 6 January 2003, for a           cattle and goats and sheep.
preliminary ruling in the case of GAT, Gesellschaft für
Antriebstechnik mbH & Co. KG against LuK Lamellen und
Kupplungsbau Beteiligungs KG on the following question:
                                                                        As regards fruit and vegetables, the Hellenic Republic maintains
                                                                        that the 2 % correction imposed for the years 1997 to 2001
                                                                        concern non-existent or wholly isolated infringements of the
Is Article 16(4) of the Convention on Jurisdiction and the              Community rules and must be annulled for being adopted
Enforcement of Judgments in Civil and Commercial Matters                (a) on the basis of an erroneous interpretation and a misappli-
(‘the Brussels Convention’) to be interpreted as meaning that           cation of the provisions of Regulation No 729/70, as amended;
the exclusive jurisdiction conferred by that provision on the           (b) on the basis of inadequate reasoning; (c) following a
courts of the Contracting State in which the deposit or                 misappraisal of the factual circumstances; (d) on the basis of a
registration of a patent has been applied for, has taken place          manifest infringement of the limits of its margin of discretion,
or is under the terms of an international convention deemed             and (e) of the principle of proportionality.
to have taken place only applies if proceedings (with erga
omnes effect) are brought to declare the patent invalid or are
proceedings deemed to be concerned with the validity of
patents within the meaning of the aforementioned provision              As regards financing for beefcattle and goats and sheep, the
where the defendant in a patent infringement action or the              applicant maintains that the Commission did not provide
claimant in a declaratory action to establish that a patent is          adequate evidence of the degree of risk to which, in its
not infringed pleads that the patent is invalid or a nullity and        estimation, EAGGF Funds were exposed so as to ensure that
that there is also no patent infringement for that reason,              the amount of the corrections proposed was commensurate
irrespective of whether the court seised of the proceedings             with that risk. In its view the financial corrections in the
considers the plea to be substantiated or unsubstantiated and           amount of 10 % or 5 % imposed in those sectors should be set
of when the plea is raised during the course of the proceedings.        aside or else reduced to 2 %.


title: Case C-154/16: Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 15 March 2016 — VAS ‘Latvijas dzelzceļš’ v Valsts ieņēmumu dienests

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/14

         Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 15 March 2016 — VAS ‘Latvijas dzelzceļš’ v Valsts ieņēmumu dienests
   (Case C-154/16)
   (2016/C 191/18)
   Language of the case: Latvian

      Referring court

   Augstākā tiesa

      Parties to the main proceedings

      Applicant: VAS ‘Latvijas dzelzceļš’

      Defendant: Valsts ieņēmumu dienests

      Questions referred

               1.

               Must Article 203(1) of Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code be interpreted as meaning that it is applicable provided that the complete cargo is not presented at the customs office of destination of the external transit procedure, even if it is proved that the goods have been destroyed and irretrievably lost?

               2.

               If the reply to the first question is in the negative, may sufficient proof of the destruction of the goods and, consequently, the fact that the goods are excluded from entering the economic channels of the Member State, justify application of Article 204(1)(a) and Article 206 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, so that the amount of the goods destroyed during external transit is not included in the calculation of the customs debt?

               3.

               If Article 203(1), Article 204(1)(a) and Article 206 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code may be interpreted as meaning that customs duty on importation is payable on the amount of goods destroyed during external transit, may Article 2 (1)(d), Article 70 and Article 71 of Council Directive 2006/112/EC (2) of 28 November 2006 on the common system of value added tax be interpreted as meaning that value added tax must be paid together with import duties, even if actual entry of the goods into the economic channels of the Member State is excluded?

               4.

               Must Article 96 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code be interpreted as meaning that the principal is always responsible for payment of that customs debt, as stated in the external transit procedure, irrespective of whether the carrier has fulfilled its obligations under Article 96(2)?

               5.

               Must Article 94(1), Article 96(1) and Article 213 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code be interpreted as meaning that the Customs Authority of the Member State is required to declare jointly and severally liable all those persons who, in the specific circumstances, may be regarded as responsible for the customs debt together with the principal, in accordance with the provisions of the Customs Code?

               6.

               If the reply to the previous question is in the affirmative and if the laws of the Member State link the obligation to pay value added tax on importation of goods, in general, to the procedure under which goods may be released for free circulation, are Articles 201, 202 and 205 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to be interpreted as meaning that the Member State is required to declare jointly and severally liable for payment of value added tax all those persons who, in the specific circumstances, may be regarded as liable for the customs debt under Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code?

               7.

               If the reply to questions 5 or 6 is in the affirmative, may Article 96(1) and Article 213 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, and Articles 201, 202 and 205 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax be interpreted as meaning that if the customs authority of the Member State has, because of error, failed to hold any of the persons responsible together with the principal jointly and severally liable for the customs debt, this fact alone may justify releasing the principal from liability for the customs debt?

      (1)  OJ 1992 L 302, p. 1.

      (2)  OJ 2006 L 347, p. 1.


title: Joined Cases T-292/14 and T-293/14: Judgment of the General Court of 7 October 2015 — Cyprus v OHIM (XAΛΛOYMI and HALLOUMI) (Community trade mark — Applications for Community word marks XAΛΛOYMI and HALLOUMI — Absolute ground for refusal — Lack of distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/52

         Judgment of the General Court of 7 October 2015 — Cyprus v OHIM (XAΛΛOYMI and HALLOUMI)
   (Joined Cases T-292/14 and T-293/14) (1)

   ((Community trade mark - Applications for Community word marks XAΛΛOYMI and HALLOUMI - Absolute ground for refusal - Lack of distinctive character - Descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))
   (2015/C 398/65)
   Language of the case: English

      Parties

      Applicant: Republic of Cyprus (represented by: S. Malynicz, Barrister, and V. Marsland, Solicitor)

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

      Re:

   Two actions brought against two decisions of the Fourth Board of Appeal of OHIM of 19 February 2014 (Case R 1849/2013-4 and Case R 1503/2013-4), concerning applications for registration of the word sign XAΛΛOYMI and the word sign HALLOUMI, respectively, as Community trade marks.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Republic of Cyprus to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

      (1)  OJ C 245, 28.7.2014.


title: Case C-613/15: Request for a preliminary ruling from the Juzgado de Primera Instancia No 5 de Alcobendas (Spain) lodged on 20 November 2015 — Ibercaja Banco S.A.U. v José Cortés González

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/17

         Request for a preliminary ruling from the Juzgado de Primera Instancia No 5 de Alcobendas (Spain) lodged on 20 November 2015 — Ibercaja Banco S.A.U. v José Cortés González
   (Case C-613/15)
   (2016/C 048/23)
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia No 5 de Alcobendas

      Parties to the main proceedings

      Applicant: Ibercaja Banco S.A.U.

      Defendant: José Cortés González

      Questions referred

               1.

               Do Articles 3(1), 4(1), 6(1) and 7(1) of Directive 93/13/EEC of 5 April 1993 (1) preclude a provision of national law, such as Article 114 of the Law on Mortgages, under which the national court, when assessing the unfairness of a term fixing default interest, may examine only whether the agreed interest rate exceeds three times the statutory interest rate and may take account of no other circumstances?

               2.

               Do Articles 3(1), 4(1), 6(1) and 7(1) of Directive 93/13 preclude a provision of national law, such as Article 693 LEC, which allows a claim to be made for accelerated repayment of the total amount of the loan on the grounds of failure to pay three monthly instalments, without account being taken of other factors such as the duration or amount of the loan or any other relevant matters, and which also makes the possibility of avoiding the effects of such accelerated repayment dependent on the will of the creditor except in cases in which the mortgage is secured on the mortgagor’s permanent residence?

               3.

               Is the Fourth Transitional Provision of Law 1/1203 contrary to the line of decided cases following Cofidis? (2)

      (1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

      (2)  Case C-473/00 EU:C:2002:705.


title: Case C-361/06: Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 4 September 2006 — Feinchemie Schwebda GmbH and Bayer CropScience AG v College voor de Toelating van Bestrijdingsmiddelen; other party to the proceedings: Agrichem B.V.

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/23

         Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 4 September 2006 — Feinchemie Schwebda GmbH and Bayer CropScience AG v College voor de Toelating van Bestrijdingsmiddelen; other party to the proceedings: Agrichem B.V.
   (Case C-361/06)
   (2006/C 294/40)
   Language of the case: Dutch
   Referring court
   College van Beroep voor het Bedrijfsleven
   Parties to the main proceedings

      Applicants: Feinchemie Schwebda GmbH and Bayer CropScience AG

      Defendant: College voor de Toelating van Bestrijdingsmiddelen

      Other party to the proceedings: Agrichem B.V.
   Question referred
   Must Article 4(1) of Directive 2002/37/EC (1)be interpreted as meaning that that provision does not require Member States to terminate the authorisation of a plant protection product containing ethofumesate before 1 September 2003 on the ground that the authorisation holder does not have, or have access to, a dossier satisfying the conditions set out in Annex II to Directive 91/414/EEC? (2)

      (1)  Commission Directive 2002/37/EC of 3 May 2002 amending Council Directive 91/414/EEC to include ethofumesate as an active substance (OJ 2002 L 117, p. 10).

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


title: Case T-196/17: Action brought on 27 March 2017 — Naftogaz of Ukraine v Commission

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/45

         Action brought on 27 March 2017 — Naftogaz of Ukraine v Commission
   (Case T-196/17)
   (2017/C 151/58)
   Language of the case: English

      Parties

      Applicant: NJSC Naftogaz of Ukraine (Kiev, Ukraine) (represented by: D. Mjaaland, A. Haga, P. Grzejszczak, and M. Krakowiak, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission Decision C(2016) 6950 of 28 October 2016 on review of the exemption of the Ostseepipeline-Anbindungsleitung from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC; and

               —

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

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the 2016 Commission Decision is null and void for lack of competence

                           —

                           Article 36(9) of Directive 2009/73/EC does not confer competence on the Commission to approve a decision of a regulatory authority amending an exemption granted pursuant to Article 36(1) which it has previously approved.

                           —

                           Alternatively, if the Commission has competence to approve such a decision, it only has such competence in limited situations, such as where there has been a material change of circumstances since the date of its previous approval decision. If the position were otherwise the principle of legal certainty would be undermined. The Commission was not entitled to adopt the Decision in the circumstances of the present case.

               2.

               Second plea in law, alleging breach of Article 36(1) of Directive 2009/73/EC

                           —

                           Alternatively, if the Commission was competent to adopt the Decision in principle, it could only lawfully do so if the criteria in Article 36(1) of Directive 2009/73 EC were fulfilled.

                           —

                           The Decision has been adopted in breach of Article 36(1) (a). The Decision will not enhance competition in gas supply and will not enhance security of supply in Central and Eastern European countries of the EU and the Energy Community.

                           —

                           The Decision has been adopted in breach of Article 36(1) (b). There is no investment risk since the relevant pipeline has been in operation since July 2011.

                           —

                           The Decision has been adopted in Breach of Article 36(1) (e). The Decision is detrimental to competition, and to the effective functioning of the internal market in the EU and the Energy Community, as it is liable to increase the dominant position enjoyed by PJSC Gazprom and its affiliates in the relevant geographic market and to contribute to the portioning of the internal market along national lines.

               3.

               Third plea in law, alleging failure to give reasons

                           —

                           In breach of Article 296 of the TFEU, the Decision does not provide sufficient statement of reasons or evidence supporting the Commission’s conclusions

               4.

               Fourth plea in law, alleging breach of Article 216(2) of the TFEU

                           —

                           According to Article 216(2) of the TFEU, international agreements concluded by the European Union are binding upon the institutions of the Union.

                           —

                           In breach of Article 6 of the Treaty Establishing the Energy Community, the Decision is liable to destabilise the regulatory and market framework stimulating investment in gas networks, reduce security of supply and block the development of competition. In breach of Article 18 of the Energy Community Treaty, the Decision enables Gazprom to abuse its dominant position in the relevant market.

                           —

                           In breach of Article 6(1) of the Energy Charter Treaty, the Decision has a detrimental effect on competition in the energy sector. In breach of Article 10 (1) of the Energy Charter, the Decision grants Gazprom as an investor preferential treatment and has an adverse effect on Naftogaz’s investments in the Ukrainian gas transport system.

                           —

                           In breach of Article 274 of the Association Agreement between the EU and Ukraine, the Decision was adopted without consulting or cooperating with Ukraine.


title: Case C-163/11: Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 4 April 2011 — Annex Customs BVBA v Belgische Staat and KBC Bank NV

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/11

         Reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen (Belgium) lodged on 4 April 2011 — Annex Customs BVBA v Belgische Staat and KBC Bank NV
   (Case C-163/11)
   2011/C 179/21
   Language of the case: Dutch

      Referring court

   Rechtbank van eerste aanleg te Antwerpen

      Parties to the main proceedings

   Applicant: Annex Customs BVBA
   Defendants:

               Belgische Staat

               KBC Bank NV

      Questions referred

               1.

               Should Article 450c(1)(b) of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as added by Article 1, point 53, of Commission Regulation (EC) No 2787/2000 (2) of 15 December 2000, be interpreted as meaning that the notification referred to therein is only enforceable if it states the precise amounts that could possibly be claimed from the guarantor?

               2.

               Should Article 450c(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as added by Article 1, point 53, of Commission Regulation (EC) No 2787/2000 of 15 December 2000, be interpreted as meaning that the guarantor who, after having received a notification as referred to in Article 450c(1)(a) within three years of the date of acceptance of the transit declaration, receives a notification in which other amounts are mentioned than the amounts which are later claimed from him, is released from his obligations?

      (1)  OJ 1993 L 253, p. 1.

      (2)  Commission Regulation (EC) No 2787/2000 of 15 December 2000 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (Text with EEA relevance) (OJ 1993 L 330, p. 1).


title: Case T-332/04: Judgment of the Court of First Instance of 12 March 2008 — Sebirán v OHIM — El Coto de Rioja (Coto D'Arcis) (Community trade mark — Opposition proceedings — Application for Community figurative mark Coto D'Arcis — Earlier Community word marks EL COTO and COTO DE IMAZ — Relative ground for refusal — Likelihood of confusion — No damage to reputation — Article 8(1)(b) and (5) of Regulation (EC) No 40/94)

text:
               26.4.2008

               EN

               Official Journal of the European Union

               C 107/23

         Judgment of the Court of First Instance of 12 March 2008 — Sebirán v OHIM — El Coto de Rioja (Coto D'Arcis)
   (Case T-332/04) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark Coto D'Arcis - Earlier Community word marks EL COTO and COTO DE IMAZ - Relative ground for refusal - Likelihood of confusion - No damage to reputation - Article 8(1)(b) and (5) of Regulation (EC) No 40/94)
   (2008/C 107/38)
   Language of the case: Spanish
   Parties

      Applicant: Sebirán SL (Requena, Spain) (represented by: A. Calderón Chavero and T. Villate Consonni, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Laporta Insa, agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: El Coto de Rioja SA (Oyón, Spain) (represented initially by M.E. López Camba, then by M.E. López Camba and J. Grimau Muñoz, lawyers)
   Re:
   Action brought against the decision of the Second Board of Appeal of OHIM of 15 June 2004 (Case R 550/2003-2) concerning opposition proceedings between El Coto de Rioja SA and Sebirán SL.
   Operative part of the judgment
   The Court:

               1.

               dismisses the action;

               2.

               dismisses the application of El Coto de Rioja SA for the partial annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) of 15 June 2004 (Case R 550/2003-2);

               3.

               orders Sebirán SL to pay its own costs and those of OHIM and one half of the costs of El Coto de Rioja SA;

               4.

               orders El Coto de Rioja SA to bear one half of its own costs.

      (1)  OJ C 284, 20.11.2004.


title: Case C-395/03: Action brought on 19 September 2003 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
C 264/26              EN                           Official Journal of the European Union                                       1.11.2003
Action brought on 19 September 2003 by the Com-                                  Removal from the register of Case C-214/02 (1)
mission of the European Communities against the
                  Kingdom of the Netherlands                                                      (2003/C 264/45)
                        (Case C-395/03)                                    By order of 26 March 2003 the President of the Court of
                                                                           Justice of the European Communities ordered the removal
                        (2003/C 264/44)                                    from the register of Case C-214/02 (Reference for a preliminary
                                                                           ruling by the Unabhängiger Verwaltungssenat des Landes
                                                                           Vorarlberg): Gerhard Lintschinger.
An action against the Kingdom of the Netherlands was brought               (1) OJ C 180 of 27.7.2002.
before the Court of Justice of the European Communities on
19 September 2003 by the Commission of the European
Communities, represented by W. Wils and K. Banks, acting as
Agents.
                                                                                Removal from the register of Case C-219/02 (1)
The applicant claims that the Court should:                                                       (2003/C 264/46)
1.    Declare that, by failing to adopt the laws, regulations and          By order of 26 June 2003 the President of the Court of Justice
      administrative provisions necessary to give effect to                of the European Communities ordered the removal from the
      Directive 98/44/EC (1) of the European Parliament and of             register of Case C-219/02: Commission of the European
      the Council of 6 July 1998 on the legal protection of                Communities v Hellenic Republic.
      biotechnological inventions, or in any event by failing to
      inform the Commission of those provisions, the Kingdom
      of the Netherlands has failed to fulfil its obligations under        (1) OJ C 191 of 10.8.2002.
      that directive;
2.    Order the Kingdom of the Netherlands to pay the costs.
                                                                           Removal from the register of Joined Cases C-242/02 and
                                                                                C-243/02 (1)
Pleas in law and main arguments                                                                   (2003/C 264/47)
The period within which the directive had to be transposed                 By order of 26 March 2003 the President of the Court of
expired on 30 July 2000.                                                   Justice of the European Communities ordered the removal
                                                                           from the register of Joined Cases C-214/02 and C-243/02
                                                                           (Reference for a preliminary ruling by the Unabhängiger
(1) OJ L 213 of 30.7.1998, p. 13.                                          Verwaltungssenat des Salzburg): Manfred Hückel.
                                                                           (1) OJ C 247 of 12.10.2002.


title: Case T-278/13: Judgment of the General Court of 30 January 2015  — Now Wireless v OHIM — STARBUCKS (HK) (now) (Community trade mark — Revocation proceedings — Community figurative mark now — Genuine use of the mark — Article 51(1)(a) and Article 51(2) of Regulation (EC) No 207/2009)

text:
               16.3.2015

               EN

               Official Journal of the European Union

               C 89/19

         Judgment of the General Court of 30 January 2015 — Now Wireless v OHIM — STARBUCKS (HK) (now)
   (Case T-278/13) (1)

   ((Community trade mark - Revocation proceedings - Community figurative mark now - Genuine use of the mark - Article 51(1)(a) and Article 51(2) of Regulation (EC) No 207/2009))
   (2015/C 089/20)
   Language of the case: English

      Parties

      Applicant: Now Wireless Ltd (Guildford, United Kingdom) (represented by: T. Alkin, Barrister)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Starbucks (HK) Ltd (Hong Kong, China) (represented by: P. Kavanagh, Solicitor)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 7 March 2013 (Case R 234/2012-2), concerning revocation proceedings between Now Wireless Ltd and Starbucks (HK) Ltd.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Now Wireless Ltd to pay the costs.

      (1)  OJ C 207, 20.7.2013.


title: Case C-416/04 P: Appeal brought on 29 September 2004 by The Sunrider Corporation against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in case T-203/02 between The Sunrider Corporation and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of OHIM being Juan Espadafor Caba

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/29

         Appeal brought on 29 September 2004 by The Sunrider Corporation against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in case T-203/02 (1) between The Sunrider Corporation and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of OHIM being Juan Espadafor Caba
   (Case C-416/04 P)
   (2004/C 300/55)
   An appeal against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in case T-203/02 between The Sunrider Corporation and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of OHIM being Juan Espadafor Caba, was brought before the Court of Justice of the European Communities on 29 September 2004 by The Sunrider Corporation, established in Torrance, California (United States), represented by A. Kockläuner, lawyer.
   The Appellant claims that the Court should:

               1.

               set aside in whole the decision of the Court of First Instance dated 8 July 2004 in case T-203/02 (‘the contested decision’);

               2.

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (‘OHIM’) to pay the costs of the proceedings before the Court of Justice;

               3.

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market dated 8 April 2002 in case R 1046/2000-1;

               4.

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (‘OHIM’) to pay the costs of the proceedings before the Court of First Instance and OHIM.

         Pleas in law and main arguments:
   The Appellant submits that the judgment of the Court of First Instance should be annulled on the following grounds:

      Infringement of Article 43 Sections 2, 3 CTMR in Conjunction with Article 15 Section 3 CTMR (Unwarranted Use)

   The Court of First Instance misinterpreted Article 43 Sections 2, 3 CTMR in conjunction with Article 15 Section 3 CTMR inasmuch as it wrongly took into account the use of the trademark made by a third party.
   In this respect, the Court of First Instance misinterpreted the apportionment of the burden of proof given in Article 15 Sections 1, 3 CTMR. Further, the Court of First Instance took into account non conclusive (implicit) statements and evidence produced by the opponent. Moreover, the Court of First Instance relied on presumptions instead of solid evidence. Finally, the Court of First Instance would have had to examine whether or not, in the light of all the relevant matters of fact and in law, a new decision with the same operative part as the decision under appeal could lawfully be adopted at the time of the decision of the Court of First Instance.

      Infringement of Article 43 Section 2 CTMR: Non-Satisfactory Proof of Opposing Trademark

   Further, the Court of First Instance infringed Article 43 Section 2 CTMR inasmuch as it misinterpreted the notion of genuine use within the meaning of Article 43 Section 2 CTMR.
   In particular, the Court of First Instance did not consider reasonably that:

               —

               the opponent submitted only three invoices for the year 1996, representing a total value of no more than 3,476.00 EUR;

               —

               the opponent submitted for 1997 only two invoices, representing a total value of no more than 1,306.00 EUR;

               —

               the goods at issue were low-cost goods and thus, goods of mass production and mass consumption;

               —

               these goods were relatively easy to sell;

               —

               the goods at issue were sold at best to one single customer;

         and that therefore the opposing Trademark ES 372 221‘VITAFRUT’ had not been put to genuine use within the meaning of Article 43 Section 2, 3 CTMR, because its use was sporadic, occasional, minimal and not present in a substantial part of the territory where it was protected.

      Infringement of Article 8 Section 1 Subsection b) CTMR

   Further, the trademarks to be compared are not confusingly similar with regard to the goods ‘herbal and vitamin beverages’ for which the applied for Trademark No. 156 422‘VITAFRUIT’ seeks protection. In particular, the goods ‘herbal and vitamin beverages’ on the one hand and ‘fruit juice concentrate’ on the other hand are only remotely similar because they possess only few points of contact.
   This is based on the fact that the goods to be compared differ with regard to their product qualities, their raw materials, and the circumstances of their production, namely the machinery, the know-how and the production facilities which are necessary for the manufacturing of the goods in question. Further, the goods to be compared differ in respect of the way in which they are used, their functional qualities and the way in which they are distributed. Therefore, the possible common characteristics of the goods in question are outweighed by their differences.

      (1)  OJ C 233, 28.09.2002, p. 26.


title: Order of the Court of First Instance of 7 June 2002 in Case T-290/01: Land Brandenburg v Commission of the European Communities (Action for annulment — No need to adjudicate)

text:
C 202/28                EN                       Official Journal of the European Communities                                          24.8.2002
1.    The application is dismissed as inadmissible.                                ORDER OF THE COURT OF FIRST INSTANCE
2.    The applicant is ordered to pay the costs.
                                                                                of 29 May 2002
(1) OJ C 212 of 28.7.01.
                                                                            in Case T-21/02: Giuseppe Atzeni and Others v Com-
                                                                                mission of the European Communities (1)
                                                                            (Action for annulment — Commission Decision 97/612/EC
                                                                            — State aid — Agricultural sector — Time-limits for
                                                                                bringing proceedings — Time-bar — Inadmissibility)
       ORDER OF THE COURT OF FIRST INSTANCE                                                           (2002/C 202/46)
                           of 7 June 2002
                                                                                (Language of the case: Italian)
in Case T-290/01: Land Brandenburg v Commission of the
                   European Communities (1)
        (Action for annulment — No need to adjudicate)                      In Case T-21/02: Giuseppe Atzeni, residing at Serdiana (Italy),
                                                                            and Others, represented by G. Dore and F. Ciulli, lawyers,
                                                                            v Commission of the European Communities (Agents: D. Tri-
                          (2002/C 202/45)                                   antafyllou and V. Di Bucci) — application, principally, for
                                                                            annulment of Commission Decision 97/612/EC of 16 April
                                                                            1997 on aid granted by the Region of Sardinia, Italy, in the
                   (Language of the case: German)                           agriculture sector (OJ 1997 L 248, p. 27), alternatively for
                                                                            partial annulment of that decision to the extent that it provides
                                                                            for repayment of the aid granted — the Court of First Instance
                                                                            (Fifth Chamber, Extended Composition), composed of:
                                                                            J.D. Cooke, President, and R. Garcı́a-Valdecasas, P. Lindh,
In Case T-290/01: Land Brandenburg, represented by the                      N.J. Forwood and H. Legal, Judges; H. Jung, Registrar, made an
Ministry of Agriculture, Environment and Land Management,                   order on 29 May 2002, the operative part of which is as
Potsdam (Germany), represented by G. Schohe and T. Masing,                  follows:
lawyers, with an address for service in Luxembourg, against
Commission of the European Communities (Agents: G. zur
Hausen and M. Núñez-Müllers) — application for annulment
of the decision of the Commission contained in order for                    1.    The action is dismissed as inadmissible.
recovery No 3240305411 of 13 September 2001 — the Court
of First Instance (Fifth Chamber), composed of J.D. Cooke,
President, R. Garcı́a-Valdecasas and P. Lindh, Judges; H. Jung,             2.    There is no need to rule on the Council’s application for leave to
Registrar, made an order on 7 June 2002, the operative part of                    intervene.
which is as follows:
                                                                            3.    The applicants are to bear their own costs and to pay the costs
1.    There is no need to adjudicate on the present action.                       of the Commission, including those relating to the procedure
                                                                                for interim measures.
2.    The Commission shall bear the costs.
                                                                            (1) OJ C 118 of 18.5.2002.
( 1) OJ 2002 C 44.


title: Case C-86/06: Action brought on  13 February 2006  by the Commission of the European Communities against the Hellenic Republic

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/14

         Action brought on 13 February 2006 by the Commission of the European Communities against the Hellenic Republic
   (Case C-86/06)
   (2006/C 74/28)
   Language of the case: Greek
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 13 February 2006 by the Commission of the European Communities, represented by Amparo Alcover San Pedro and Minas Konstantinidis, of its Legal Service, acting as Agents, with an address for service in Luxembourg.
   The Commission claims that the Court should:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2003/73/EC (1) of 24 July 2003 amending Annex III to Directive 1999/94/EC, and in any event by failing to inform the Commission thereof, the Hellenic Republic has failed to fulfil its obligations under that directive;

               2.

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposing the directive into national law expired on 25 July 2004.

      (1)  OJ L 186 of 25.07.2003, p. 34.


title: Order of the Court of First Instance of 1 April 2003 in Case T-15/01: Stefano Benini v Commission of the European Communities (Contract as a member of the temporary staff — Admissibility — Act adversely affecting an official — Compliance with time-limits under the Staff Regulations — Second renewal of a contract as a member of the temporary staff — Articles 2(d), 8 and 47 of the CEOS)

text:
C 135/30                EN                          Official Journal of the European Union                                         7.6.2003
       ORDER OF THE COURT OF FIRST INSTANCE                                        ORDER OF THE COURT OF FIRST INSTANCE
                          of 1 April 2003                                                              of 1 April 2003
in Case T-14/01: Fiorenzo Rizzello v Commission of the                      in Case T-15/01: Stefano Benini v Commission of the
                   European Communities ( 1)                                                    European Communities ( 1)
(Contract as a member of the temporary staff — Admissi-                     (Contract as a member of the temporary staff — Admissi-
bility — Act adversely affecting an official — Compliance                   bility — Act adversely affecting an official — Compliance
with time-limits under the Staff Regulations — Second                       with time-limits under the Staff Regulations — Second
renewal of a contract as a member of the temporary staff —                  renewal of a contract as a member of the temporary staff —
             Articles 2(d), 8 and 47 of the CEOS)                                         Articles 2(d), 8 and 47 of the CEOS)
                          (2003/C 135/48)                                                              (2003/C 135/49)
                    (Language of the case: Italian)                                              (Language of the case: Italian)
In Case T-14/01: Fiorenzo Rizzello, a former member of                      In Case T-15/01: Stefano Benini, a former member of the
the temporary staff of the Commission of the European                       temporary staff of the Commission of the European Communi-
Communities, residing in Varano Borghi (Italy), represented by              ties, residing in Besozzo (Italy), represented by B. Nascimbene
B. Nascimbene and M. Condinanzi, lawyers, with an address for               and M. Condinanzi, lawyers, with an address for service in
service in Luxembourg, against Commission of the European                   Luxembourg, against Commission of the European Communi-
Communities (Agents: F. Clotuche-Duvieusart and A. Dal                      ties (Agents: F. Clotuche-Duvieusart and A. Dal Ferro) —
Ferro) — application for annulment of the decision of                       application for annulment of the decision of 28 September
28 September 2000 by which the authority empowered to                       2000 by which the authority empowered to conclude contracts
conclude contracts of employment rejected the complaint                     of employment rejected the complaint lodged by the applicant
lodged by the applicant seeking a declaration that the employ-              seeking a declaration that the employment relationship which
ment relationship which bound him to the Commission was a                   bound him to the Commission was a relationship of indefinite
relationship of indefinite period under a contract as a member              period under a contract as a member of the temporary staff
of the temporary staff pursuant to Article 2(d) of the Con-                 pursuant to Article 2(d) of the Conditions of Employment of
ditions of Employment of other Servants, renewed on more                    other Servants, renewed on more than one occasion with the
than one occasion with the effects referred to in the last                  effects referred to in the last paragraph of Article 8 of those
paragraph of Article 8 of those conditions — the Court of First             conditions — the Court of First Instance (Fifth Chamber),
Instance (Fifth Chamber), composed of R. García-Valdecasas,                 composed of R. García-Valdecasas, President of the Chamber,
President of the Chamber, P. Lindh and J.D. Cooke, Judges;                  P. Lindh and J.D. Cooke, Judges; H. Jung, Registrar, made an
H. Jung, Registrar, made an order on 1 April 2003, the                      order on 1 April 2003, the operative part of which is as
operative part of which is as follows:                                      follows:
1.    The action is dismissed as inadmissible.                              1.     The action is dismissed as inadmissible.
2.    The parties are to bear their own costs.                              2.     The parties are to bear their own costs.
( 1) OJ 2001 C 95.                                                          (1 ) OJ 2001 C 95.


title: Case C-59/07: Judgment of the Court (Fifth Chamber) of 15 November 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2003/109/EC — Status of third-country nationals who are long-term residents — Failure to transpose within the prescribed period)

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/4

         Judgment of the Court (Fifth Chamber) of 15 November 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-59/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2003/109/EC - Status of third-country nationals who are long-term residents - Failure to transpose within the prescribed period)
   (2008/C 8/07)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: M. Condou-Durande and A. Alcover San Pedro, Agents)

      Defendant: Kingdom of Spain (represented by: F. Díez Moreno, Agent)
   Re:
   Failure of the Member State to fulfil obligations — Failure to adopt, within the prescribed period, the provisions necessary to comply with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 69, 24.3.2007.


title: Appeal brought on 22 December 1997 by IPK München GmbH against the judgment delivered on 15 October 1997 by the First Chamber of the Court of First Instance of the European Communities in Case T-331/94 between IPK München GmbH and the Commission of the European Communities (Case C-433/97 P)

text:
C 55/20               EN                  Official Journal of the European Communities                                   20.2.98
Pleas in law and main arguments adduced in support:                  Directive (in conjunction with Annex F, No 26) and the
                                                                     different ways in which gold is treated for tax purposes in
                                                                     certain Member States lead to distortions of competition.
Article 189 of the EC Treaty, under which a Directive                Consequently, the Commission submitted, as long ago as
shall be binding, as to the result to be achieved, upon each         28 October 1992, a proposal for a Directive relating to
Member State, carries by implication an obligation on the            special arrangements applicable to gold, which provides
Member States to observe the period for compliance laid              for the general exemption from tax of transactions in
down in the Directive. That period expired on                        respect of what is known as investment gold and for the
31 December 1995 without Ireland having enacted the                  repeal of the abovementioned transitional rules; but no
provisions necessary to comply with the Directive referred           Directive in those terms has to date been adopted by the
to in the conclusions of the Commission.                             Council. However, the issue in the present case is not
                                                                     whether the tax exemption in question has or has not
(1) OJ L 319, 12.12.1994, p. 20.                                     proved to be necessary in order to protect the German
                                                                     gold market but rather the fact that that tax exemption
                                                                     does not constitute a means of preventing the effects of
                                                                     existing distortions of competition on the national market
                                                                     for which provision is made by the sixth Directive.
Action brought on 22 December 1997 by the Commission                 Lastly, the Federal Republic of Germany wrongly relies on
of the European Communities against the Federal                      the declaration of the Council and the Commission on
                    Republic of Germany                              Article 1(1)(e) of Council Directive 72/77/EEC on the
                       (Case C-432/97)                               approximation of VAT rates. That declaration must be
                                                                     read in conjunction with the provision to which it relates,
                          (98/C 55/38)                               namely Article 12(3)(e) of the sixth Directive. The third
                                                                     and fourth sentences of that provision require the Member
                                                                     States from 1 January 1993 to take all necessary measures
An action against the Federal Republic of Germany was                to combat fraud in the field of the taxation of transactions
brought before the Court of Justice of the European                  in a respect of gold (including, in particular, a system
Communities on 22 December 1997 by the Commission                    giving the buyer the right to deduct tax). That provision
of the European Communities, represented by Enrico                   affords no basis for the conferral on the Member States of
Traversa, of its Legal Service, and Andreas Buschmann, a             any more extensive powers. According to the case-law of
national expert on secondment to its Legal Service, with             the Court of Justice, however, a declaration cannot be
an address for service in Luxembourg at the office of                invoked for the purposes of interpreting a provision of
Carlos Gómez de la Cruz, of its Legal Service, Wagner                Community law where the content of the declaration does
Centre C 254, Kirchberg.                                             not find expression in the provision in question and thus
                                                                     has no legal significance.
The applicant claims that the Court should:
                                                                     (1) OJ L 145, 13.6.1977, p. 1.
Ð declare that, by exempting from value added tax
    transactions in gold bars, gold coins ranking as legal
    tender and unprocessed gold and the negotiation of
    such transactions, the Federal Republic of Germany
    has failed to fulfil its obligations pursuant to Articles 2
    and 28a(1)(a) of the sixth Council Directive 77/388/             Appeal brought on 22 December 1997 by IPK München
    EEC of 17 May 1977 on the harmonisation of the                   GmbH against the judgment delivered on 15 October
    laws of the Member States relating to turnover taxes             1997 by the First Chamber of the Court of First Instance
    Ð common systems of value added tax: uniform basis               of the European Communities in Case T-331/94 between
    of assessment (1), as most recently amended,                     IPK München GmbH and the Commission of the
                                                                                European Communities
Ð order the Federal Republic of Germany to pay the                                         (Case C-433/97 P)
    costs.
                                                                                (98/C 55/39)
Pleas in law and main arguments adduced in support:
                                                                     An appeal against the judgment delivered on 15 October
The sixth Directive affords no basis for the exemption               1997 by the First Chamber of the Court of First Instance
provision introduced by the Federal Republic of Germany,             of the European Communities in Case T-331/94 between
with effect from 1 January 1993, as paragraph 4(8)(K) of             IPK München GmbH and the Commission of the
the Umsatzsteuergesetz (Law on turnover taxes).                      European Communities was brought before the Court of
                                                                     Justice of the European Communities on 22 December
                                                                     1997 by IPK München GmbH, represented by Hans-
The Commission is conscious of the fact that the                     Joachim Prieû, Rechtsanwalt, 13 place des Barricades,
transitional rules contained in Article 28(3)(b) of the sixth        B-1000 Brussels.
 ---pagebreak--- 20.2.98               EN                Official Journal of the European Communities                                   C 55/21
The appellant claims that the Court should:                        Reference for a preliminary ruling by the French Cour de
                                                                   Cassation, by judgment of that court of 9 December 1997,
1. set aside the judgment delivered on 15 October 1997             in the case of GIE Groupe Concorde, Uni Europe, La
    by the Court of First Instance of the European                 PreÂservatrice FoncieÁre IARD, La Baloise, ReÂunion
    Communities in Case T-331/94 (1) and annul the                 EuropeÂenne, Allianz, British and Foreign Marine
    respondent's decision of 3 August 1994 refusing                Insurance Co. Ltd and Camat against the Master of the
    payment of the second instalment of the aid granted to         vessel Suhadiwarno Panjan', P. T. Perusahan Pelayaran
    the applicant by letter of 4 August 1992,                      Trikoria Lloyd', Pro Ligne Ltd, Sveriges Angarts Assurans
                                                                        Forening, Somaba and Agence maritime Borghans
2. alternatively:                                                                        (Case C-440/97)
    set aside the judgment of the Court of First Instance                                  (98/C 55/40)
    referred to in (1) above and refer the case back to the
    Court of First Instance,
                                                                   Reference has been made to the Court of Justice of the
3. order the respondent to pay the costs.
                                                                   European Communities by a judgment of the French Cour
                                                                   de Cassation of 9 December 1997, which was received at
Pleas in law and main arguments adduced in support:
                                                                   the Court Registry on 29 December 1997, for a
                                                                   preliminary ruling in the case of GIE Groupe Concorde
Ð Complaints regarding procedural matters
                                                                   and Others v. The Master of the vessel Suhadiwarno
    Ð failure to comply with the obligation imposed by             Panjan' and Others, on the following question:
        Article 190 of the EC Treaty to provide a
        statement of reasons,
                                                                   With a view to the application of Article 5(1) of the
    Ð breach of the duty to investigate the matter and             Brussels Convention of 27 September 1968 on jurisdiction
        infringement of the rules concerning the burden of         and the enforcement of judgments in civil and commercial
        proof and the degree of proof.                             matters, must the place where the obligation at issue was
                                                                   or must be fulfilled, within the meaning of that provision,
Ð Infringements of substantive Community law                       be determined in accordance with the law which governs
                                                                   the obligation at issue or should national courts determine
    Ð the contested judgment is based on a presumption             the place of performance of the obligation by seeking to
        of fact which, as is apparent from the documents           establish, having regard to the nature of the relationship
        in the case, is incorrect,                                 creating the obligation and the circumstances of the case,
                                                                   the place where performance actually took place or should
    Ð in upholding a deadline for submission of the final
                                                                   have taken place, without having to refer to the law
        report which did not reflect the delay caused by
                                                                   which, under the rules on conflict of laws, governs the
        the Commission to the commencement of the
                                                                   obligation at issue?
        project, the Court of First Instance failed to
        observe the principle patere legem quam ipse
        fecisti and disregarded the prohibition of acts
        constituting an abuse of law,
    Ð breach of the prohibition imposed by the principle
        venire contra factum proprium, alternatively of the
        principle of estoppel: the Court of First Instance         Reference      for   a    preliminary    ruling   by    the
        wrongly assessed as irrelevant in law statements           Arbeidsrechtbank Brugge, Afdeling Oostende, by
        made by the official then responsible for the              judgment of that court of 22 December 1997 in the case
        matter in the course of discussions with the                    of Jozef Van Coile and Rijksdienst voor Pensioenen
        applicant, despite the fact that those statements
                                                                                (Case C-442/97)
        were reflected in the minutes prepared by the
        Commission,                                                                        (98/C 55/41)
    Ð breach of the principle of proportionality: the
        Court of First Instance failed to give sufficient
        weight to the disparity between the gravity of the         Reference has been made to the Court of Justice of the
        alleged infringement and the conditions laid down          European       Communities      by    judgment     of   the
        in the Decision granting the aid and between the           Arbeidsrechtbank Brugge (Labour Court, Bruges), Ostend
        circumstances of the case (illegal intervention by         Division, of 22 December 1997, which was received at the
        the Commission and unlawful shortening of the              Court Registry on 30 December 1997, for a preliminary
        period for completion of the project) and the              ruling in the case of Jozef Van Coile and Rijksdienst voor
        penalty imposed by the Commission, namely non-             Pensioenen (National Pensions Office) on the following
        payment of 40 % of the total amount of the aid.            question:
(1) OJ C 387, 20.12.1997, p. 14.
                                                                   Article 32b(5) of the Royal Decree of 21 December 1967
                                                                   laying down general rules concerning retirement and


title: Case T-277/15: Action brought on 13 May 2015 — Permapore v OHIM — José Joaquim Oliveira II - Jardins & Afins (Terraway)

text:
               27.7.2015

               EN

               Official Journal of the European Union

               C 245/42

         Action brought on 13 May 2015 — Permapore v OHIM — José Joaquim Oliveira II - Jardins & Afins (Terraway)
   (Case T-277/15)
   (2015/C 245/51)
   Language in which the application was lodged: Portuguese

      Parties

      Applicant: Permapore Ltd (Nenagh, Tipperary, Ireland) (represented by: J. Sales, lawyer)

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

      Other party to the proceedings before the Board of Appeal: José Joaquim Oliveira II — Jardins & Afins Lda (Grijó, Portugal)

      Details of the proceedings before OHIM

      Applicant: Applicant

      Trade mark at issue: Community figurative mark including the word element ‘Terraway’ — Application for registration No 11 988 301

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 5 March 2015 in Case R 2496/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               Set aside the decision of the Board of Appeal of OHIM and substitute it with one which makes a ruling or which orders that a ruling be made — at length — on the substantive/material issues, and not just the issue of whether the court fee was paid in good time;

      Pleas in law

               —

               The applicant claims that he paid the fee for appeal, provided for in Article 60 of Regulation No 207/2009, on 20 November 2014;

               —

               In terms of the substance of the case, the applicant alleges infringement of Article 52(1)(a) and (b), Article 7(1)(g) and the last part of Article 54(2) of Regulation No 207/2009.