title: Case C-512/99: Action brought on 28 December 1999 by the Republic of Germany against the Commission of the European Communities

text:
C 79/14                EN                   Official Journal of the European Communities                                    18.3.2000
Are the provisions of Council Directive 69/335/EEC of 17 July             for the decision. Since the German Government presented
1969 concerning indirect taxes on the raising of capital (OJ,             its case on the basis of the requirements of old
English Special Edition 1969 (11), p. 412), and in particular             Article 100a(4) EC, which it was entitled to do, the
Article 6, to be interpreted as precluding a Member State from            Commission to must use old Article 100a(4) as the basis
levying capital duty on the limited partners’ contributions to a          for its decision. The fact that old Article 100a(4) EC does
limited trading partnership (KEG) when a private limited                  not lay down a period for the Commission to reply
company (GmbH) joins it as general partner, if the partnership            certainly cannot have the consequence that the Com-
capital on which duty is to be imposed had already been                   mission alone has discretion to determine the period for
subjected, before the entry into force of Directive 69/335/EEC,           replying. Here too the principle of the duty of loyal
to a duty such as that referred to in Paragraph 33, schedule              cooperation under Article 10 EC (new numbering — old
item 16(1) (b) of the Gebührengesetz (Law on Fees) 1957,                  Article 5 EC) must apply.
BGBl. 267/1957?
                                                                          Whilst on its wording old Article 100a(4) only applies to
                                                                          harmonising measures of the Council, according to its
                                                                          scheme and purpose it is also applicable by analogy to
                                                                          directives of the Commission, or at least to those which are
                                                                          issued as a consequence of votes in adaptation committees
                                                                          where the applicant Member State has been out-voted by
Action brought on 28 December 1999 by the Republic                        a qualified majority.
of Germany against the Commission of the European
                           Communities
                                                                          In the alternative: the German application should have
                         (Case C-512/99)                                  been examined under Article 95(4). The term ‘maintain’
                                                                          used therein is to be understood as also including measures
                                                                          adopted as a result of the transposition into national law
                          (2000/C 79/26)                                  of harmonising measures.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European           — Infringement of the right to a hearing and the duty to
Communities on 28 December 1999 by the Federal Republic                   cooperate in Article 10 EC. The Commission failed to
of Germany, represented by Wolf-Dieter Plessing, Minis-                   afford the German Government an opportunity to adjust
terialrat, and Dr Bettina Muttelsee-Schön, Head of Unit, Federal          its observations to a new legal basis, including sup-
Ministry of Finance, Graurheindorfer Str. 108, D-53117 Bonn.              plementing the presentation of its case as necessary, by
                                                                          granting it extra time.
The applicant claims that the Court should:
1. Definitively annul the Commission’s             decision    of      — In the alternative, misapplication of the requirements of
     26.10.1999 — K(1999)3490 final (1);                                  Article 95(5) EC:
2. Order the defendant to pay the costs.
                                                                          — the Commission is wrong to deny that there have been
                                                                              new scientific discoveries as to the carcinogenic effect
Pleas and law and main arguments                                              of certain man-made mineral fibres.
— Inappropriate legal basis: Instead of basing its decision on
     Article 95(EC) the Commission should have relied on                  — the Commission is wrong to deny that there is a
     old Article 100a(4) EC or Article 95(4) EC. The German                   problem specific to Germany. Because of its climate
     Government’s application could only be based on the                      and an environmental policy which encourages
     requirements applicable to the application. The fact that                increased use of insulation, Germany has the highest
     the German Government followed the provisions of old                     use of insulatory materials made from man-made
     Article 100a(4) EC which was applicable at the material                  mineral fibre in the EU. The number of employees
     time cannot work its detriment ex post facto.                            and home workers at risk is therefore likely to be
                                                                              significantly higher than in other Member States.
     The application of old Article 100a(4) EC is also compat-
     ible with the scheme of the Treaty. The rule is closely
     interconnected with old Article 100a(1) EC. Old                   — Error of appraisal in relation to scientific knowledge of
     Article 100a(4) EC governs the right under the Treaty a              man-made mineral fibres. Large parts of the technical
     Member State out-voted by qualified majority on the                  experts’ report do not dispute in detail the state of
     adoption of a harmonising measure to pass derogating                 scientific knowledge as described by Germany. The CSTEE
     national legislation. The link between the two provisions            Committee, on whose opinion the Commission relies,
     established by the Community legislature cannot be dis-              obviously did not have access to the scientific views on
     solved ex post facto by having recourse to a different basis         which the German Government based its application.
 ---pagebreak--- 18.3.2000               EN                       Official Journal of the European Communities                                         C 79/15
     Even if the latest scientific position is not yet clear, it is         of the Salzburger Grundverkehrsgesetz (Salzburg Land Transfer
     legally wrong for the Commission to lay down more                      Law) of 1997 in the version published in LGBl. No. 11/1999,
     stringent requirements in respect of measures adopted by               whereby any person who wishes to acquire a building plot in
     Member States than it does in respect of itself. In any                the federal Land of Salzburg must comply with a notification
     event, in a situation of general uncertainty where, even in            or authorisation procedure in respect of the acquisition of that
     the Commission’s view, it is impossible to make any                    plot, with the consequence that one of the fundamental
     definitive statements on the danger, and the harmonising               freedoms of the acquirer of title as guaranteed by the laws of
     directive itself provides for timely re-evaluation, the Mem-           the European Union has been infringed in this case?
     ber States must have discretion as to the continuing need
     for national risk-avoidance measures. That is exactly the
     purpose of the national sovereignty exception in old
     Article 100a(4) and the same must apply to Article 95(5)
     EC.
                                                                            Reference for a preliminary ruling from the Berufungs-
(1) The Commission’s decision of 26.10.1999 on an individual                senat V of the Finanzlandesdirektion for Vienna, Niederö-
    Member State’s conditions for mineral wool communicated by              sterreich and Burgenland, by order of that court of
    Germany in derogation from Directive 97/69/EC adapting to               2 December 1999 in the case of Walter Schmid v Finan-
    technical progress for the 23rd time Council Directive 67/548/EEC           zamt for the 9th, 18th and 19th Districts in Vienna
    on the approximation of the laws, regulations and administrative
    provisions relating to the classification, packaging and labelling
                                                                                (Case C-516/99)
    of dangerous substances
                                                                                (2000/C 79/28)
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Berufungssenat V
                                                                            (Appeal Chamber V) of the Finanzlandesdirektion (Regional
                                                                            Finance Appeal Authority) for Vienna, Niederösterreich and
                                                                            Burgenland, of 2 December 1999, which was received at the
                                                                            Court Registry on 30 December 1999, for a preliminary ruling
References for a preliminary ruling by the Unabhängiger                     in the case of Walter Schmid v Finanzamt (Finance Authority)
Verwaltungssenat Salzburg by orders of that court of                        for the 9th, 18th and 19th Districts in Vienna, on the following
22 December 1999 in the appeals concerning (1) Hans                         questions:
Reisch and twenty-eight others, (2) Bürgermeister der
Landeshauptstadt Salzburg, (3) Grundverkehrsbeauftrag-                      1. Do Article 73b(1) in conjunction with Article 73d(1)(a)
ter des Landes Salzburg and (4) Grundverkehrslandes-                             and (b) and (3) of the EC Treaty (now Article 56(1) in
               kommission des Landes Salzburg                                    conjunction with Article 58(1)(a) and (b) and (3) EC)
                                                                                preclude a provision such as Paragraph 97 of the Einkom-
                                                                                mensteuergesetz (‘EStG’; Law on Income Tax) of 1988
           (Cases C-515/99 and C-519 to C-540/99)                                (BGBI 1988/400; as amended, BGBI 1996/797), which
                                                                                provides (pursuant to Paragraph 1(1)(1)(c) of the Endbe-
                            (2000/C 79/27)                                       steuerungsgesetz (Law on Final Taxation), BGBI 1993/11)
                                                                                that final taxation of dividends, interest and other earnings
                                                                                from foreign shares is excluded, and thus the rate of
Reference has been made to the Court of Justice of the                           taxation in respect of domestic shares is 25 %, whereas the
European Communities by orders of the Unabhängiger Verwal-                       rate of taxation in respect of foreign shares may be up to
tungssenat Salzburg of 22 December 1999, received at the                         50 %?
Court Registry on 30 December 1999, for preliminary rulings
in the appeals concerning (1) Hans Reisch and twenty-eight                  2. Do Article 73b(1) in conjunction with Article 73d(1)(a)
others, (2) Bürgermeister der Landeshauptstadt Salzburg, (3)                     and (b) and (3) of the EC Treaty (now Article 56(1) in
Grundverkehrsbeauftragter des Landes Salzburg and (4) Grund-                     conjunction with Article 58(1)(a) and (b) and (3) EC)
verkehrslandeskommission des Landes Salzburg on the follow-                      preclude a provision such as Paragraph 37(1) and (4) of
ing question:                                                                    the EStG of 1988 (BGBI 1988/400), which provides that
                                                                                dividends of any kind from shareholdings in domestic
                                                                                limited companies in the form of shares are subject to a
Are the provisions of Article 56 et seq. of the EC Treaty to be                  tax rate reduced to half of the average tax rate applicable
interpreted as precluding                                                        to the aggregate income, but that dividends of any kind
                                                                                from shareholdings in limited companies whose seat and
— (Cases C-519/99 to C-526/99:) the application of Para-                         place of management are in another EU Member State or
     graphs 12 to 14                                                             a non-Member State are not subject to any reduction of
                                                                                that kind?
— (Cases C-515/99 and C-527/99 to C-540/99:) the appli-
     cation of Paragraphs 12, 36 and 43


title: Case C-542/11: Judgment of the Court (Fifth Chamber) of 27 June 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v Codirex Expeditie BV (Community Customs Code — Regulation (EEC) No 2913/92 — Goods in temporary storage — Non-Community goods — External Community transit procedure — Point at which a customs-approved treatment or use is assigned — Acceptance of the customs declaration — Release of the goods — Customs debt)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/14

         Judgment of the Court (Fifth Chamber) of 27 June 2013 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v Codirex Expeditie BV
   (Case C-542/11) (1)

   (Community Customs Code - Regulation (EEC) No 2913/92 - Goods in temporary storage - Non-Community goods - External Community transit procedure - Point at which a customs-approved treatment or use is assigned - Acceptance of the customs declaration - Release of the goods - Customs debt)
   2013/C 225/22
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: Staatssecretaris van Financiën

      Respondent: Codirex Expeditie BV

      Re:

   Request for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 50 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Goods in temporary storage having been declared for placing under the external Community transit procedure — Point at which a customs-approved treatment or use is assigned

      Operative part of the judgment

   Articles 50, 67 and 73 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as meaning that the point at which non-Community goods, covered by a customs declaration accepted by the customs authorities for placing under the external Community transit procedure and having the status of goods in temporary storage, are placed under that customs procedure and thereby assigned a customs-approved treatment or use is the moment at which they are released.

      (1)  OJ C 25, 28.1.2012.


title: Case C-54/11: Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 7 February 2011 — JPMorgan Chase Bank N.A., Frankfurt Branch, J.P. Morgan Securities Limited v Berliner Verkehrsbetriebe (BVG) Anstalt des öffentlichen Rechts

text:
               16.4.2011

               EN

               Official Journal of the European Union

               C 120/4

         Reference for a preliminary ruling from Supreme Court of the United Kingdom made on 7 February 2011 — JPMorgan Chase Bank N.A., Frankfurt Branch, J.P. Morgan Securities Limited v Berliner Verkehrsbetriebe (BVG) Anstalt des öffentlichen Rechts
   (Case C-54/11)
   2011/C 120/07
   Language of the case: English

      Referring court

   Supreme Court of the United Kingdom

      Parties to the main proceedings

      Applicants: JPMorgan Chase Bank N.A., Frankfurt Branch, J.P. Morgan Securities Limited

      Defendant: Berliner Verkehrsbetriebe (BVG) Anstalt des öffentlichen Rechts

      Questions referred

               1.

               When identifying, for the purposes of Articles 22(2) and 25 of the Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (1) (the ‘Brussels I Regulation’) what proceedings have as their object and with what they are principally concerned, should the national court only have regard to the claims made by the claimant(s) or should it also have regard to any defences or arguments raised by the defendants?

               2.

               If a party raises an issue in proceedings which falls within the subject matter of Article 22(2) of the Brussels I Regulation, such as an issue as to the validity of the decision of an organ of a company or other legal person, does it necessarily follow that that issue forms the object of the proceedings and that the proceedings are principally concerned with that issue if that issue may be potentially dispositive of the proceedings, irrespective of the nature and number of other issues raised in the proceedings and of whether all or some of those issues are also potentially dispositive?

               3.

               If the answer to question (2) above is negative, is the national court required, in order to identify the object of the proceedings and the issue with which the proceedings are principally concerned, to consider the proceedings overall and form an overall judgment of their object and what they are principally concerned with; and if not, what test should the national court apply to identify these matters?

      (1)  OJ L 12, p. 1


8.4.2000               EN                    Official Journal of the European Communities                                    C 102/31
— Nullity of the decision setting up the OLAF and of                           Removal from the register of Case T-219/94 (1)
     Regulation No 1073/1999:
     The applicants raise the objection, pursuant to Article 241                                (2000/C 102/62)
     EC, that the legal acts on which the contested decision is
     based are null and void. Both the Commission Decision of
     28 April 1999 establishing the OLAF (1) and Regulation                               (Language of the case: German)
     (EC) No 1073/1999 of the European Parliament and of
     the Council of 25 May 1999 concerning investigations               By order of 27 January 2000, the President of the Fourth
     conducted by the European Anti-Fraud Office (OLAF) (2)             Chamber, Extended Composition, of the Court of First Instance
     are invalid.                                                       of the European Communities has ordered the removal from
                                                                        the register of Case T-219/94, Hans-Henrich Fürstenwerth v
The Commission based the decision establishing the OLAF on              Commission of the European Communities.
Article 162 of the EC Treaty (now Article 218 EC), hence on a
provision designed to regulate the internal organisational
power, namely the Rules of Procedure. However, it is not                (1) OJ C 218 of 6.8.1994.
possible on that basis to set up a body which is in reality legally
separate from the organisational power of the Commission.
Moreover, in adopting its decision establishing the OLAF, the
Commission unlawfully relinquished part of the supervisory
powers conferred on it by Article 211 EC. In addition, it
delegated to the OLAF powers which it does not possess.
                                                                               Removal from the register of Case T-206/95 (1)
Finally, the regulation based on the decision is likewise founded
on an insufficient legal basis, since Article 280 EC merely                                     (2000/C 102/63)
concerns the combatting of fraud within the Member States. It
does not therefore cover the Community institutions. In
addition, the OLAF’s investigatory powers go beyond any                                   (Language of the case: German)
powers that could conceivably be needed in order to investigate
criminal offences committed within the Parliament.
                                                                        By order of 27 January 2000 the President of the Fourth
                                                                        Chamber of the Court of First Instance of the European
(1) OJ 1999 L 136, p. 20.                                               Communities has ordered the removal from the register of
(2) OJ 1999 L 136, p. 1.                                                Case T-206/95: Josef Gierse v Council of the European Union
                                                                        and Commission of the European Communities.
                                                                        (1) OJ C 351 of 30.12.1995.
Partial Removal from the register in Joined Cases
                     T-530/93 and Others (1)
                         (2000/C 102/61)
                                                                               Removal from the register of Case T-15/98 (1)
                   (Language of the case: Dutch)
                                                                                (2000/C 102/64)
By order of 24 January 2000, the President of the Fourth
Chamber, Extended Composition, of the Court of First Instance
of the European Communities has ordered the removal from
the register of M.A.M. Nijenhuis and J.I.M. and W. Spikker                                 (Language of the case: French)
from the list of applicants in Case T-533/93 — Joined Cases
T-530/93 and Others, R. Bathoorn and Others v Council                   By order of 19 January 2000, the President of the First
of the European Union and Commission of the European                    Chamber of the Court of First Instance of the European
Communities.                                                            Communities has ordered the removal from the register of
                                                                        Case T-15/98, Centre d’Action Culturelle du Sart-Tilman a.s.b.l.
                                                                        v Commission of the European Communities.
(1) OJ C 334 of 9.12.1993, C 27 of 28.1.1994, C 43 of 12.2.1994,
    C 59 of 26.2.1994, C 90 of 26.3.1994, C 103 of 11.4.1994,
    C 120 of 30.4.1994, C 132 of 14.5.1994, C 233 of 20.8.1994          (1) OJ C 94 of 28.3.1998.
    and C 370 of 24.12.1994.


               12.6.2004

               EN

               Official Journal of the European Union

               C 156/1

         Taking of the oath by new Members of the Court
   (2004/C 156/01)
   Following their appointment as Judges of the Court of Justice of the European Communities by decision of the Governments of the Member States of the European Communities of 1 May 2004, (1)

               —

               Mr Kūris, Mr Arestis, Mr Borg-Barthet, Mr Malenovský and Mr Levits
               (for the period from 1 May 2004 to 6 October 2006) and

               —

               Mr Makarczyk, Mr Juhász, Mr Ilešič, Mr Klučka and Mr Lõhmus,
               (for the period from 1 May 2004 to 6 October 2009)

         took the oath before the Court on 11 May 2004.

      (1)  OJ L 169 of 1.5.2004, p. 22.


title: Case T-33/15: Judgment of the General Court of 18 March 2016 — Grupo Bimbo v OHIM (BIMBO) (Community trade mark — Application for Community word mark BIMBO — Absolute grounds for refusal — Absence of distinctive character — Descriptive character — Article 7(1)(b) and (c) and 7(3) of Regulation (EC) No 207/2009)

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/38

         Judgment of the General Court of 18 March 2016 — Grupo Bimbo v OHIM (BIMBO)
   (Case T-33/15) (1)

   ((Community trade mark - Application for Community word mark BIMBO - Absolute grounds for refusal - Absence of distinctive character - Descriptive character - Article 7(1)(b) and (c) and 7(3) of Regulation (EC) No 207/2009))
   (2016/C 156/50)
   Language of the case: Spanish

      Parties

      Applicant: Grupo Bimbo, SAB de CV (Mexico City, Mexico) (represented by: N. Fernández Fernández-Pacheco, lawyer)

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

      Re:

   Action for annulment of the decision of the Second Board of Appeal of OHIM of 19 November 2014 (Case R 251/2014-2) concerning an application for registration of the word sign BIMBO as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Grupo Bimbo, SAB de CV to pay the costs.

      (1)  OJ C 89, 16.3.2015.


title: Case T-215/15: Judgment of the General Court of 7 July 2017 — Azarov v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Retention of the applicant’s name on the list — Duty to state reasons — Rights of defence — Right to property — Right to conduct a business — Proportionality — Misuse of power — Principle of sound administration — Manifest error of assessment)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/32

         Judgment of the General Court of 7 July 2017 — Azarov v Council
   (Case T-215/15) (1)

   ((Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Retention of the applicant’s name on the list - Duty to state reasons - Rights of defence - Right to property - Right to conduct a business - Proportionality - Misuse of power - Principle of sound administration - Manifest error of assessment))
   (2017/C 277/47)
   Language of the case: German

      Parties

      Applicant: Mykola Yanovych Azarov (Kiev, Ukraine) (represented by: G. Lansky and A. Egger, lawyers)

      Defendant: Council of the European Union (represented by: J.-P. Hix and F. Naert, acting as Agents)

      Re:

   Application under Article 263 TFEU for annulment of Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 25) and of Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 1), in so far as those acts maintain the applicant’s name on the list of persons covered by the restrictive measures at issue.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Mykola Yanovych Azarov to pay the costs.

      (1)  OJ C 221, 6.7.2015.


title: Case T-438/11: Action brought on 12 August 2011 — BelTechExport v Council

text:
               1.10.2011

               EN

               Official Journal of the European Union

               C 290/15

         Action brought on 12 August 2011 — BelTechExport v Council
   (Case T-438/11)
   2011/C 290/21
   Language of the case: English

      Parties

      Applicant: BelTechExport ZAO (Minsk, Belarus) (represented by: V. Vaitkute Pavan, A. Smaliukas and E. Matulionyte, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Regulation (EU) No 588/2011 of 20 June 2011 amending Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2011 L 161, p. 1), to the extent that it concerns the applicant;

               —

               Annul Council Decision 2011/357/CFSP of 20 June 2011 amending Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus (OJ 2011 L 161, p. 25), to the extent that it concerns the applicant; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the defendant breached the obligation to provide adequate reasoning for inclusion of the applicant in the lists of the persons to whom restrictive measures apply.

               2.

               Second plea in law, alleging that the defendant infringed the right of defence and the right to a fair hearing provided for in Article 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as:

                           —

                           at no time it provided for the communication of detailed reasons for the inclusion of the applicant in the lists of persons subject to the restrictive measures; and

                           —

                           it did not provide the applicant with the possibility to effectively exercise its’ rights of defence, in particular the right to be heard and the right to the benefit of a procedure allowing it to effectively request its removal from the lists of persons covered by the restrictive measures.

               3.

               Third plea in law, alleging that the defendant committed manifest errors of assessment in that it held in the contested measures that the applicant is the largest export/import company of defence products in Belarus, hence it is in some way linked to or associated with the violations of electoral standards and of human rights or crackdown on civil society in Belarus.

               4.

               Fourth plea in law, alleging that the defendant infringed fundamental right to property provided for in Article 17 of the Charter of Fundamental Rights of the European Union and Article 1 of the Protocol No 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in an unjustified and disproportionate manner without compelling evidence.

               5.

               Fifth plea in law, alleging that the defendant infringes the principle of proportionality in that it imposed a disproportionate restriction on the fundamental rights of the applicant without providing adequate procedural guarantees and compelling evidence.


title: Case C-349/16: Judgment of the Court (Eighth Chamber) of 15 June 2017 (request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel — Belgium) — T.KUP SAS v Belgische Staat (Reference for a preliminary ruling — Dumping — Regulation (EC) No 1472/2006 — Imports of certain footwear with uppers of leather originating in China and Vietnam — Validity of Implementing Regulation (EU) No 1294/2009 — Expiry review of anti-dumping measures — Unrelated importers — Sampling — European Union interest)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/17

         Judgment of the Court (Eighth Chamber) of 15 June 2017 (request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel — Belgium) — T.KUP SAS v Belgische Staat
   (Case C-349/16) (1)

   ((Reference for a preliminary ruling - Dumping - Regulation (EC) No 1472/2006 - Imports of certain footwear with uppers of leather originating in China and Vietnam - Validity of Implementing Regulation (EU) No 1294/2009 - Expiry review of anti-dumping measures - Unrelated importers - Sampling - European Union interest))
   (2017/C 277/23)
   Language of the case: Dutch

      Referring court

   Nederlandstalige rechtbank van eerste aanleg Brussel

      Parties to the main proceedings

      Applicant: T.KUP SAS

      Defendant: Belgische Staat

      Operative part of the judgment

   The examination of the questions referred has disclosed nothing capable of affecting the validity of Council Implementing Regulation (EU) No 1294/2009 of 22 December 2009 imposing a definitive anti-dumping duty on imports of certain footwear with uppers of leather originating in Vietnam and originating in the People's Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao SAR, whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96.

      (1)  OJ C 335, 12.9.2016.


title: Case C-116/08: Reference for a preliminary ruling from the Hof van Cassatie (Belgium) lodged on 17 March 2008 — C. Meerts v Proost NV

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/24

         Reference for a preliminary ruling from the Hof van Cassatie (Belgium) lodged on 17 March 2008 — C. Meerts v Proost NV
   (Case C-116/08)
   (2008/C 128/43)
   Language of the case: Dutch
   Referring court
   Hof van Cassatie van België
   Parties to the main proceedings

      Appellant: C. Meerts

      Respondent: Proost NV
   Question referred
   Are clauses 2.4, 2.5, 2.6 and 2.7 of the framework agreement on parental leave concluded on 14 December 1995 by the general cross-industry organisations UNICE, CEEP and the ETUC which is annexed to Council Directive 96/34/EC (1) of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC to be interpreted as meaning that, where an employer unilaterally terminates an employment contract without urgent cause or without compliance with the statutory period of notice at a time when the worker is availing himself of arrangements for reduced working hours, the payment in lieu of notice that is due to the worker must be determined by reference to the base salary calculated as if the worker had not reduced his working hours as a form of parental leave in accordance with clause [2].3(a) of the framework agreement?

      (1)  OJ 1996 L 145, p. 4.


title: Case C-4/06 P: Appeal brought on  4 January 2006  by J. Ouariachi against the order of the Court of First Instance (Fifth Chamber) of  26 October 2005  in Case T-124/04: J. Ouariachi v Commission of the European Communities

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/20

         Appeal brought on 4 January 2006 by J. Ouariachi against the order of the Court of First Instance (Fifth Chamber) of 26 October 2005 in Case T-124/04: J. Ouariachi v Commission of the European Communities
   (Case C-4/06 P)
   (2006/C 48/38)
   Language of the case: French
   An appeal against the order of the Court of First Instance (Fifth Chamber) of 26 October 2005 in Case T-124/04 J. Ouariachi v Commission of the European Communities was brought before the Court of Justice of the European Communities on 4 January 2006 by J. Ouariachi, Rabat (Morocco), represented by L. Dupong, avocat.
   The appellant claims that the Court should:

               —

               annul the contested decision and, in so doing:

                           —

                           order all measures of inquiry necessary to establish the falsification by Mr Louis Charles of certain documents, his general conduct in connection with the abduction of the appellant's children and the connection between the falsification and the issue of visas to the appellant's children by the Sudanese authorities which made their abduction possible, including;

                           —

                           Mr Louis Charles' personal appearance before the Court;

                           —

                           a request that information be provided by the European Union Delegation in Khartoum;

                           —

                           a request for production of the file lodged by Mrs Ronda with the Sudanese Consulate in Rabat in order to obtain a visa for herself and her children;

                           —

                           all other measures necessary to establish the facts;

               —

               declare that the application is admissible and well-founded;

               —

               order the respondent to pay the appellant a total lump sum indemnity of EUR 100 000 by way of compensation for the damage suffered by him;

               —

               order the respondent to pay all the costs.

         Pleas in law and main arguments
   The appellant, who has dual Spanish and Moroccan nationality, seeks compensation for damage (assessed at EUR 100 000) caused by Mr. L. Charles, former expert with the European Union Delegation in Khartoum (Sudan), as a result of unlawful acts committed in the performance of his duties and, especially, the production of false documents: a false official invitation from the European Union Delegation in Khartoum enabling the appellant's ex-wife and children to be issued with a visa by the Sudanese Consulate in Rabat (Morocco), which was instrumental in the international abduction of the appellant's children.
   The appellant considers that the Court of First Instance was wrong in declaring his claim for compensation inadmissible without first ordering that measures of inquiry be taken and without clarifying:

               —

               the wrongful nature of Mr. Charles' conduct, and

               —

               the direct link between that wrongful conduct and the fact that the Sudanese authorities were deceived into issuing a visa to children without the authority of their father (the appellant).


title: Case T-45/07: Judgment of the General Court of 13 July 2011 — Unipetrol v Commission (Competition — Agreements, decisions and concerted practices — Market in butadiene rubber and emulsion styrene butadiene rubber — Decision finding an infringement of Article 81 EC — Participation in the cartel — Imputability of the offending conduct — Fines)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/42

         Judgment of the General Court of 13 July 2011 — Unipetrol v Commission
   (Case T-45/07) (1)

   (Competition - Agreements, decisions and concerted practices - Market in butadiene rubber and emulsion styrene butadiene rubber - Decision finding an infringement of Article 81 EC - Participation in the cartel - Imputability of the offending conduct - Fines)
   2011/C 269/93
   Language of the case: English

      Parties

      Applicant: Unipetrol a.s. (Prague, Czech Republic) (represented by: J. Matějček and I. Janda, lawyers)

      Defendant: European Commission (represented initially by: M. Kellerbauer, V. Bottka and O. Weber, and subsequently by M. Kellerbauer, V. Bottka and V. Di Bucci, Agents)

      Re:

   Application for annulment, so far as Unipetrol a.s. is concerned, of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber) or, in the alternative, for the exercise of the General Court’s unlimited jurisdiction.

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber) in so far as it concerns Unipetrol a.s.;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 82, 14.4.2007.


title: Judgment of the Court (Fifth Chamber) of 22 March 2001 in Case C-17/99: French Republic v Commission of the European Communities (State aid — Rescue and restructuring aid — Procedure for the examination of State aid — Failure to order a Member State to disclose the requisite information)

text:
14.7.2001               EN                      Official Journal of the European Communities                                               C 200/3
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                          (Fifth Chamber)
                                                                                of 22 March 2001
                         of 22 March 2001
                                                                           in Case C-261/99: Commission of the European Communi-
                                                                                ties v French Republic (1)
in Case C-17/99: French Republic v Commission of the
                   European Communities (1)
                                                                           (Failure of a State to fulfil obligations — State aid incompat-
                                                                           ible with the common market — Recovery — No absolute
                                                                                impossibility of implementation)
(State aid — Rescue and restructuring aid — Procedure for
the examination of State aid — Failure to order a Member
          State to disclose the requisite information)                                                 (2001/C 200/04)
                          (2001/C 200/03)
                                                                                (Language of the case: French)
                    (Language of the case: French)                         (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                                                                           In Case C-261/99: Commission of the European Communities
(Provisional translation; the definitive translation will be published     (Agent: G. Rozet) v French Republic (Agents: K. Rispal-
                   in the European Court Reports)                          Bellanger and F. Million) — application for a declaration that,
                                                                           by not adopting within the prescribed period the measures
                                                                           needed to recover from the recipients thereof aid declared
                                                                           unlawful and incompatible with the common market by
In Case C-17/99: French Republic (Agents: K. Rispal-Bellanger              Commission Decision 1999/378/EC of 4 November 1998 on
and F. Million) v Commission of the European Communities                   aid granted by France to Nouvelle Filature Lainière de Roubaix
(Agent: G. Rozet) — application for annulment of Commission                (OJ 1999 L 145, p. 18), the French Republic has failed to fulfil
Decision 1999/378/EC of 4 November 1998 on aid granted                     its obligations under the fourth paragraph of Article 189 of
by France to Nouvelle Filature Lainière de Roubaix (OJ 1999                the EC Treaty (now the fourth paragraph of Article 249 EC)
L 145, p. 18) — the Court (Fifth Chamber), composed                        and under Articles 4 and 5 of that decision — the Court (Fifth
of: A. La Pergola, President of the Chamber, M. Wathelet                   Chamber), composed of: A. La Pergola, President of the
(Rapporteur), L. Sevón, S. von Bahr and C.W.A. Timmermans,                Chamber, M. Wathelet (Rapporteur), P. Jann, S. von Bahr and
Judges; S. Alber, Advocate General; H. von Holstein, Deputy                C.W.A. Timmermans, Judges; S. Alber, Advocate General;
Registrar, for the Registrar, has given a judgment on 22 March             R. Grass, for the Registrar, has given a judgment on 22 March
2001, in which it:                                                         2001, in which it:
                                                                           1.    Declares that, by failing to comply with Commission Decision
1.    Dismisses the application;                                                 1999/378/EC of 4 November 1998 on aid granted by France
                                                                                to Nouvelle Filature Lainière de Roubaix, the French Republic
2.    Orders the French Republic to pay the costs.                               has failed to fulfil its obligations under the EC Treaty;
                                                                           2.    Orders the French Republic to pay the costs.
(1) OJ C 71 of 13.3.1999.
                                                                           (1) OJ C 281 of 2.10.1999.


title: Case C-525/11: Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 17 October 2011 — SIA Mednis v Valsts ieņēmumu dienests

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/7

         Reference for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 17 October 2011 — SIA Mednis v Valsts ieņēmumu dienests
   (Case C-525/11)
   2012/C 6/08
   Language of the case: Latvian

      Referring court

   Augstākās tiesas Senāts

      Parties to the main proceedings

      Applicant: SIA Mednis

      Defendant: Valsts ieņēmumu dienests

      Question referred

   Does Article 183 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax give a Member State the right, without carrying out any specific analysis and solely on the basis of an arithmetical calculation, not to refund that part of the excess tax that is over 18 % (the standard rate of VAT) of the total value of the taxable transactions carried out in the corresponding monthly tax periods until the State tax authority has received the annual return of the person subject to value added tax?

      (1)  OJ 2006 L 347, p 1.


title: Case T-111/99: Action brought on 6 May 1999 by Ignacio Samper against the European Parliament

text:
7.8.1999               EN                     Official Journal of the European Communities                                       C 226/33
— annul the decision by which the appointing authority took              Action brought on 6 May 1999 by Ignacio Samper against
     the view that the applicant’s absence from 13 November                                 the European Parliament
     to 25 November 1998 was irregular and deducted 81
     working hours from her annual leave entitlement;
                                                                                (Case T-111/99)
— order the European Parliament to pay to the applicant
     compensation for non material damage in the sum of                                          (1999/C 226/59)
     LUF 100 000 (one hundred thousand Luxembourg francs);
— order the defendant to pay the costs;                                                     (Language of the case: French)
— reserve unto the applicant the right to submit further                 An action against the European Parliament was brought before
     evidence during the course of the written procedure.                the Court of Firs Instance of the European Communities on 6
                                                                         May 1999 by Ignacio Samper, residing in Spain, represented
                                                                         by Eric Boigelot, of the Brussels Bar, with an address for service
                                                                         in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du
Pleas in law and main arguments                                          Fort Rheinsheim.
Upon receiving her annual leave statement on 28 January                  The applicant claims that the Court should:
1999, the applicant found that 81 hours had been deducted
from the amount of annual leave to which she is lawfully                 — annul Vacancy Notice No 8675 dated 14 April 1999,
entitled.                                                                    adopted by the President of the European Parliament, Mr
                                                                             José Maria Gil-Robles, and published on 26 April 1999,
                                                                             requiring the submission by no later than 7 May 1999 of
According to the defendant, the applicant’s repeated absences                applications for the post of Head of Division (grade A 3)
cannot be justified by the existence of a pathological condition,            in the Directorate-General for Information and Public
which is, moreover, contested. On several occasion, she did                  Relations, Coordination of External Offices, Publications
not keep appointments with the medical officer and the                       and Public Events, Madrid Information Office, and annul
examining doctor was unable to contact her at her home. As                   the procedure initiated by that vacancy notice for recruit-
the defendant classified this as conduct which was ‘hostile’ to              ment by way of transfer or promotion;
the institution, she was sent a formal warning and her absences
during the periods from 3 September 1998 to 15 September
1998 and from 13 November 1998 to 25 November 1998                       — order the European Parliament to pay all the costs in any
were regarded as irregular.                                                  event, including the costs of the proceedings for interim
                                                                             measures.
The applicant maintains that she was incapable of working
during the above-mentioned periods. As regards the checks                Pleas in law and main arguments
carried out to see whether she was at home, she states that she
was consulting her own doctor at the time; and as to the
alleged absences which made it impossible for her to undergo             The applicant stases that on 21 February 1995 he was
a medical check-up, the applicant maintains that she was                 appointed head of division in grade A 3 and assigned to the
incapable of attending at the institution’s medical service              post of head of the European Parliament’s Information Office
during the periods concerned. Furthermore, she invariably                in Madrid. In its judgment of 18 March 1999 the Court of
produced medical certificates. She claims that the defendant’s           Justice held that the Parliament had committed an error in the
reproaches are unjustified.                                              recruitment procedure and that the decision appointing him
                                                                         to that post should be annulled. The Parliament complied with
                                                                         that judgment by decision of 14 April 1999, by which it
In support of her application, the applicant pleads violation of         annulled the decision appointing the applicant to the post in
the rights of the defence and infringement of Articles 25 and            issue and reinstated him in grade A 5, which had been the
60 of the Staff Regulations. She argues that the deduction by            grade occupied by him at the time of his promotion to that
the defendant of days of leave on account of unjustified                 post. On the same day, a vacancy notice was drawn up in
absences, contrary to the aforementioned provisions of the               relation to the post in issue; this specified that the post was
Staff Regulations, also constitutes a serious breach of adminis-         open only to grade A 4 officials.
trative duty giving rise to liability on the part of the institution.
Furthermore, according to the applicant, the defendant failed
to assist her in tackling the problems which she encountered             The applicant observes that, for the purposes of complying
with a person whose conduct she felt to be threatening. That             with the judgment of the Court of Justice, the Parliament was
attitude amounts to a flagrant breach of Article 24 of the Staff         not in any way obliged to take immediate steps to publish the
Regulations.                                                             vacancy notice in question. By publishing the vacancy notice
                                                                         and laying down conditions and time-limits for the submission
                                                                         of applications which were not such as to enable the applicant
                                                                         to be re-established beforehand in his career, the Parliament
                                                                         has prevented him from applying for the post in issue, whereas,
 ---pagebreak--- C 226/34              EN                      Official Journal of the European Communities                                       7.8.1999
had he not been appointed to that post on the conclusion of              The applicants consider that both the exclusive rights clause
an irregular procedure for which he is in no way responsible,            concerning the general channels and the clause granting
he would by now, in the course of a normal career, have                  preference to TPS by its associates for the special interest
reached the grade of A 4 and could apply for the post.                   channels and the television services which constitute incidental
                                                                         restrictions on the TPS joint venture, should be afforded the
The applicant considers that, by acting in that way, the                 same treatment as the joint venture. B refusing to acknowledge
Parliament has infringed Article 233 EC (ex Article 176),                the incidental nature of the restrictions deriving from those
Articles 4, 7(1), 29(1), 45 and 46 of the Staff Regulations of           clauses, the Commission is forcing the applicants to request
Officials and the internal rules and provisions adopted by the           on a regular basis the renewal of the exemptions granted,
Parliament with regard to promotion and career development,              which runs counter to Article 81 EC (ex Article 85) and the
and that it has violated the principle of equal treatment, the           principle of legal certainty. In the alternative, the applicants
duty to have regard for the welfare and interests of officials,          claim that the Commission misapplied the exemption criteria
and the principles of proportionality and of the protection              provided for in the third paragraph of the aforementioned
of legitimate expectations. He furthe1 maintains that the                Article 81, and misassessed the minimal duration of the
contravention’s of the above-mentioned rules and principles              exemption.
form part of a process of misuse of powers designed to secure
the appointment to the post in issue of a candidate chosen in            So far as concerns the clause referred to in Article 2 of
advance.                                                                 the contested decision, the applicants emphasise that the
                                                                         Commission, while considering their undertaking not to
                                                                         compete to be a restriction incidental to the setting up of the
                                                                         TPS, has nevertheless decided to restrict to three years the
                                                                         incidental status of that restriction. In their view, by adopting
                                                                         that approach, the Commission has not complied with the
                                                                         rules which it had itself laid clown in the 24th Report on
Action brought on 10 May 1999 by Métropole Télévision                    Competition Policy (1994), thus infringing Article 81 EC (ex
— M6, Suez-Lyonnaise des Eaux, France Télécom and                        Article 85) and the principle of legal certainty.
Télévision Française 1 — TF1 against Commission of the
                    European Communities
                        (Case T-112/99)
                        (1999/C 226/60)
                   (Language of the case: French)
                                                                         Action brought on 7 May 1999 by The Galileo Company
                                                                         and Galileo International L.L.C against the Council of the
An action against the Commission of the European Communi-                                        European Union
ties was brought before the Court of First Instance of the
European Communities on 10 May 1999 by Métropole
Télévision - M6, Neuilly-sur-Seine (France), Suez-Lyonnaise des                                  (Case T-113/99)
Eaux, Nanterre (France), France Télécom Paris, and Télévision
Française 1 - TF1, Paris, represented by Didier Théophile,
Patrick Dunaud and Patricia Elsen, of the Paris Bar, with an                                     (1999/C 226/61)
address for service in Luxembourg at the Chambers of Aloyse
May. 31 Grand-Rue.
                                                                                (Language of the case: English)
The applicant claims that the Court should:
— annul in part the Commission Decision of 3 March 1999                  An action against the Council of the European Union was
    relating to a proceeding under Article 85 of the EC Treaty           brought before the Court of First Instance of the European
    (Case IV/36.237 - TPS) (OJ 1999 L 90, p. 6) to the extent            Communities on 7 May 1999 by The Galileo Company and
    of annulling Articles 2 and 3 thereof;                               Galileo International L.L.C., represented by Richard Plender,
                                                                         Sara Masters, Katherine Holmes and Daniel Austin, with an
— order the Commission to pay the costs.                                 address for service in Luxembourg at the Chambers of Elvinger,
                                                                         Hoss and Prussen, 15 Côte d’Eich.
Pleas in law and main arguments
                                                                         The applicant claims that the Court should:
The applicants criticise the Commission for having granted
only a temporary negative clearance of three years in respect            — annul Article 1(7)(b), second indent, of Council Regulation
of certain clauses in the agreements setting up the Télévision               (EC) No 323/1999 of 8 February 1999 to the extent to
par Satellite (TPS) company, namely, on the one hand, the                    which that measure applies to operators of Computer
clause on the exclusive transmission of the four channels on                 Reservation Systems in being on the date when the
TPS and the clause on the special-interest channels and                      measure was made; and
television services provided by TPS (Article 3 of the contested
decision) and, on the other, the non-competition clause (Article         — order the Council to pay the costs of the action including
2 of the contested decision).                                                those of the applicants.


title: Case C-10/15 P: Appeal brought on 12 January 2015 by Christos Theophilou and Eleni Theophilou against the order of the General Court (First Chamber) delivered on 10 November 2014 in Case T-293/13: Christos Theophilou and Eleni Theophilou v European Commission and European Central Bank

text:
               26.5.2015

               EN

               Official Journal of the European Union

               C 171/11

         Appeal brought on 12 January 2015 by Christos Theophilou and Eleni Theophilou against the order of the General Court (First Chamber) delivered on 10 November 2014 in Case T-293/13: Christos Theophilou and Eleni Theophilou v European Commission and European Central Bank
   (Case C-10/15 P)
   (2015/C 171/13)
   Language of the case: English

      Parties

      Appellants: Christos Theophilou and Eleni Theophilou (represented by: C. Paschalides, Solicitor, A. Paschalides, dikigoros and A. Riza QC)

      Other parties to the proceedings: European Commission and European Central Bank

      Form of order sought

   The appellant claims that the Court should:

               —

               allow the appeal and dismiss the applications of the Defendants and order them to bear the costs, both before this Court and before the General Court and for the case to proceed to trial on the substantive issues.

      Pleas in law and main arguments

               1.

               The General Court infringed EU law in its appraisal of a number of propositions in its judgment as follows.

                           a)

                           That the ‘duties conferred on the Commission… within the ESM Treaty do not entail any power to make decisions of their own and …that the activities of those two institutions within the ESM Treaty solely commit the ESM (1),’ was relied on by the General Court without appraising at all the impact of the proposition of law it accepted arguendo at paragraph 48, that the Commission ‘had not surrendered effective control of its overarching decision making role under Article 136(3) [TFEU] pursuant to its powers under Article 17 [TEU] to act as the EU institution responsible for ensuring that acts concluded under the ESM Treaty were in conformity with EU law’

                           b)

                           It is submitted that the case of Pringle
                               (2) upon which the General Court relied (3), decides that whereas the Commission and the ECB solely commit the ESM (4), nevertheless at inter alia
                               (5) paragraph 164 of that case the court observed that the ‘tasks allocated to the Commission by the ESM Treaty enable it, as provided in 13(3) and 13(4) of that treaty, to ensure that the memoranda of understanding concluded by the ESM are consistent with EU law’ and at paragraph 174 that ‘under Article 13(3) of the ESM Treaty the MoU which is to be negotiated with the Member State requesting stability support must be fully consistent with EU law.’

                           c)

                           ‘A claim for compensation that is directed against the EU and is based on the mere illegality of an act or course of conduct that has not been adopted by an institution of the EU or by its servants must be rejected as inadmissible (6),’ was applied without an appraisal of the submission in the Appellant’s reply which was that ‘... the ECB must have been acting as an EU institution since the ESM could not lawfully exercise effective control of the coercive power under EU law to allow and/or make and/or act in furtherance of the unless-demand. The said coercive power is vested exclusively in the ECB ... effective control of which could not be surrendered under EU law.’

                           d)

                           ‘The conduct allegedly giving rise to the damage pleaded is a failure by the Commission to act when signing the MoU. However, the MoU was signed after the reduction in the value of the applicant’s deposit... That reduction actually occurred on the entry into force of the measures of 29 March 2013. Therefore the applicant cannot be regarded as having established with necessary certainty that the damage it claims to have suffered was actually caused by the inaction alleged against the Commission (7).’ This proposition ignores the way the applicant put his case referred to at paragraph 41 of the judgment viz. ‘that it is in respect of the conditions attached to FAF provided to [the Republic of Cyprus] on 26 April 2013and the process by which they were required by the Commission and the ECB that caused the applicant damage for which it seeks compensation pursuant to Articles 268 and 340 TFEU.’ The process by which they were required included the failure by the Commission to ensure that the conditionality was in conformity with EU law and the unless-demand made by the ECB to cut the supply of euro to Cyprus off which were continuing acts/failures to act beginning 15 March 2013 and ending with compliance with the conditionality on 29 March 2013.

                           e)

                           The contents of the MoU were challenged on the basis that they referred back to prior compliance with a conditionality that ex hypothesi arose prior to the diminution in the value of the applicant’s deposit, which the General Court failed to appraise as an integral part of a course of conduct.

                           f)

                           ‘In cases where the conduct allegedly giving rise to the damage pleaded consists in refraining from taking action, it is particularly necessary to be certain that the damage was actually caused by the inaction complained of and could not have been caused by conduct separate from that alleged against the defendant institution’: Portela v Commission
                               (8). In other words ‘even if’ (9) the Commission acted in accordance with its duty to ensure the conditions were consistent with EU law it would have made no difference ‘as the MoU was signed after the reduction in value of the applicant’s deposit at BoC.’ (10) Again the General Court failed to appraise the arguments relied on by the Appellant: see inter alia (d) and (e) above.

                           g)

                           Further and alternatively the General Court was wrong in point of fact to hold that the MoU was signed after the diminution deposits in all cases. In the case of BoC the final diminution in value did not occur until after the MoU was signed on 26 April 2013 viz. at the end of June 2013.

               2.

               If the ECJ accepts that the defendants were in law capable of acting as institutions of the EU it follows that the General Court’s decision in respect of the second head of claim [for annulment] referred to at paragraphs 55 to 60 of the judgment would fall away afortiori.

      (1)  At paragraph 45 of its judgment.

      (2)  Case C-370/12 [2012].

      (3)  Paragraph 45 of judgment.

      (4)  Paragraph 45 of judgment dated 10 November 2014.

      (5)  See also 112 and 163.

      (6)  Paragraph 43 of the judgment and case C-520/12 P.

      (7)  Paragraph 54 of judgment.

      (8)  Case T-137/07 at paragraph 80.

      (9)  Case T-7/96 Perillo v Commission.

      (10)  Paragraph 54 of judgment.


title: Case C-123/09: Reference for a preliminary ruling from the Finanzgericht München (Germany), lodged on 3 April 2009 — Roeckl Sporthandschuhe GmbH & Co. KG v Hauptzollamt München

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/10

         Reference for a preliminary ruling from the Finanzgericht München (Germany), lodged on 3 April 2009 — Roeckl Sporthandschuhe GmbH & Co. KG v Hauptzollamt München
   (Case C-123/09)
   2009/C 129/17
   Language of the case: German

      Referring court

   Finanzgericht München

      Parties to the main proceedings

      Claimant: Roeckl Sporthandschuhe GmbH & Co. KG

      Defendant: Hauptzollamt München

      Question referred

   Must subheading 3926 20 00 of the Combined Nomenclature, in the version set out in Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) be interpreted as meaning that it covers also textile articles that have been roughened on one side and covered with a layer of plastic, but which do not have a function beyond that of mere reinforcement, where the roughening serves only to improve the adhesion of the layer of plastic and is no longer discernible to the user once the manufacture of the article has been completed (cf. also Harmonised System explanatory note 56.6 on Chapter 39 of the Combined Nomenclature)?

      (1)  OJ 2003 L 281, p. 1; OJ 1987 L 256, p. 1.


title: Order of the Court of First Instance of 8 December 1999 in Case T-79/99, Euro-Lex European Law Expertise GmbH against the Office for Harmonisation in the Internal Market (trade marks and designs) (Community trade mark — Representation by a lawyer who is a manager of the applicant — Inadmissible)

text:
C 79/26                EN                    Official Journal of the European Communities                                      18.3.2000
decision of the Commission of 10 October 1997 imposing on                      ORDER OF THE COURT OF FIRST INSTANCE
the applicant the disciplinary measure of downgrading him
from grade D 1, step 8, to grade D 2, step 8, for failure to fulfil                         of 23 November 1999
his obligations under the Staff Regulations — the Court of First
Instance (Fifth Chamber), composed of R. Garcı́a-Valdecasas,            in Case T-173/98: Unión de Pequeños Agricultores v
President, P. Lindh and J.D. Cooke, Judges; H. Jung, Registrar,                        Council of the European Union (1)
made an order on 24 November 1999, the operative part of
which is as follows:                                                                       (Manifestly inadmissible)
1. The application is dismissed as inadmissible.                                                 (2000/C 79/58)
2. The parties shall bear their own costs.
                                                                                (Language of the case: Spanish)
(1) OJ 1998 C 312.                                                      In Case T-173/98: Unión de Pequeños Agricultores, established
                                                                        in Madrid, represented by Javier Ledesma Bartret and José-Mar-
                                                                        ia Jiménez Laiglesia y de Oñate, of the Madrid Bar, with an
                                                                        address for service in Luxembourg at the address of Concep-
                                                                        ción Llasser Moyano, 22 Rue Wenkelhiel, Dalheim, against
                                                                        Council of the European Union (Agents: Ignacio Dı́ez Parra
                                                                        and Antonio Tanca) — application for annulment in part of
                                                                        Council Regulation (EC) No 1638/98 of 20 July 1998
      ORDER OF THE COURT OF FIRST INSTANCE                              amending Regulation No 136/66/EEC on the establishment of
                                                                        a common organisation of the market in oils and fats (OJ
                                                                        1998 L 210, p. 32) — the Court of First Instance (Third
                      of 8 December 1999                                Chamber), composed of K. Lenaerts, President, J. Azizi and
                                                                        M. Jaeger, Judges; H. Jung, Registrar, made an order on 23 Nov-
in Case T-161/98: Henri de Compte v European Parlia-                    ember 1999, the operative part of which is as follows:
                              ment (1)
                                                                        1. The action is dismissed as manifestly inadmissible.
(Officials — Annulment of a disciplinary measure — Action               2. The applicant shall bear its own costs and pay those incurred by
manifestly inadmissible — Action manifestly unfounded in                     the Council.
                                law)
                                                                        3. The Diputación Provincial de Jaén, the Junta de Comunidades de
                                                                             Castilla-La Mancha, the Consejo de Gobierno de la Comunidad
                         (2000/C 79/57)                                      Autónoma de Andalucı́a and the Commission shall bear their
                                                                             own costs.
                  (Language of the case: French)
                                                                        (1) OJ 1999 C 71.
In Case T-161/98: Henri de Compte, former official of the
European Parliament, residing in Longeville-lès-Metz (France),
represented by Henri Ferretti, of the Thionville Bar, with an
address for service in Luxembourg at the Chambers of André
Lutgen, 1 Rue J.-P. Brasseur, against European Parliament
(Agents: Manfred Peter, Yannis Pantalis and Denis Waelbroeck)                  ORDER OF THE COURT OF FIRST INSTANCE
— application for annulment of the decision of the President
of the European Parliament of 18 January 1988 downgrading                                    of 8 December 1999
him from grade A 3, step 8, to grade A 7, step 6 — the Court
of First Instance (Fourth Chamber), composed of V. Tiili,               in Case T-79/99, Euro-Lex European Law Expertise GmbH
President, R.M. Moura Ramos and P. Mengozzi, Judges;                    against the Office for Harmonisation in the Internal
H. Jung, Registrar, made an order on 8 December 1999, the                             Market (trade marks and designs) (1)
operative part of which is as follows:
                                                                        (Community trade mark — Representation by a lawyer who
1. The application is dismissed.                                                 is a manager of the applicant — Inadmissible)
2. The parties shall bear their own costs.                                                       (2000/C 79/59)
(1) OJ 1998 C 378.                                                                        (Language of the case: German)
                                                                        In Case T-79/99, Euro-Lex European Law Expertise GmbH,
                                                                        established in Emmerich (Germany), represented by Eckhard
 ---pagebreak--- 18.3.2000               EN                     Official Journal of the European Communities                                        C 79/27
Benkelberg, Rechtsanwalt, Emmerich and Kleve, with an                     2. There is no need to adjudicate on the Council’s application for
address for service in Luxembourg at the Chambers of Faltz                    leave to intervene.
and Kremer, 6 Rue Heinrich Heine, against the Office for
Harmonisation in the Internal Market (trade marks and designs)            3. The parties shall bear their own costs.
(Agents: Detlef Schennen and Emmanuel Joly) — application
for annulment of the decision of the first Board of Appeal of             4. The Council, which has applied to intervene, shall bear its own
the Office for Harmonisation in the Internal Market (trade                    costs.
marks and designs) of 26 January 1999 (Case R 14/1998-1),
notified to the applicant on 1 February 1999 — the Court of
First Instance (Second Chamber), composed of J. Pirrung,                  (1) OJ 1999 C 160.
President, and A. Potocki and W.H. Meij, Judges; H. Jung,
Registrar, has made an order on 8 December 1999, the
operative part of which is as follows:
1. The action is dismissed as inadmissible.
2. The applicant is ordered to pay the costs.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
(1) OJ C 204 of 17.7.1999.                                                                        of 7 December 1999
                                                                          in Case T-108/99, Gemma Reggimenti v European Parlia-
                                                                                ment (1)
                                                                          (Officials — Actions — Time-limits — Public policy —
                                                                          Distinction between complaint and request under
                                                                          Article 90(1) of the Staff Regulations — Rejection of
                                                                                complaint — Late action — Inadmissible)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                                (2000/C 79/61)
                       of 1 December 1999
in Case T-81/99: Lily Karoline Schuerer v Commission of                                       (Language of the case: French)
                  the European Communities (1)
                                                                          In Case T-108/99, Gemma Reggimenti, official of the European
(Officials — Pensions — Weighting — Change of capital of                  Parliament, residing in Brussels, represented by Claudine
a Member State — Manifest inadmissibility — Action                        Junion, of the Brussels Bar, with an address for service in
                   manifestly unfounded in law)                           Luxembourg at the Chambers of Christine Nabozny, 3 Rue
                                                                          Mathias Tresch, against European Parliament (Agents: Hannu
                                                                          von Hertzen and Yannis Pantalis) — application for annulment
                           (2000/C 79/60)                                 of the decision of the European Parliament of 18 June 1998
                                                                          refusing the payment, on behalf of and in the name of the
                                                                          applicant, of family allowances, to which she is entitled in
                                                                          respect of her child, to third parties who have the child in their
                    (Language of the case: German)
                                                                          care, for the period from 29 August to 31 December 1997 —
                                                                          the Court of First Instance (Third Chamber), composed of
In Case T-81/99: Lily Karoline Schuerer, former official of the           K. Lenaerts, President, and J. Azizi and M. Jaeger, Judges;
Commission of the European Communities, represented by                    H. Jung, Registrar, has made an order on 7 December 1999,
Hermann J. Winzen, Rechtsanwalt, Munich, with an address                  the operative part of which is as follows:
for service in Luxembourg at the address of Marco Steil, 12
rue d’Anvers, against Commission of the European Communi-                 1. The action is dismissed as inadmissible.
ties — application for compensation amounting to
DEM 17 677,57, together with interest — the Court of First                2. The parties shall bear their own costs.
Instance (Third Chamber), composed of K. Lenaerts, President,
J. Azizi and M. Jaeger, Judges; H. Jung, Registrar, made an order
on 1 December 1999, the operative part of which is as follows:            (1) OJ C 226 of 7.8.1999.
1. The action is dismissed in part as manifestly inadmissible and,
    for the rest, as manifestly unfounded in law.


title: Case C-302/16: Judgment of the Court (Eighth Chamber) of 11 May 2017 (request for a preliminary ruling from the Rechtbank Noord-Nederland — Netherlands) — Bas Jacob Adriaan Krijgsman v Surinaamse Luchtvaart Maatschappij NV (Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(1)(c) — Compensation and assistance to passengers in the event of cancellation of a flight — Exemption from the obligation to pay compensation — Contract for carriage concluded through an online travel agent — Air carrier having informed the travel agent in good time of a change to the scheduled time for the flight — Travel agent having communicated that information to a passenger by email 10 days before the flight)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/16

         Judgment of the Court (Eighth Chamber) of 11 May 2017 (request for a preliminary ruling from the Rechtbank Noord-Nederland — Netherlands) — Bas Jacob Adriaan Krijgsman v Surinaamse Luchtvaart Maatschappij NV
   (Case C-302/16) (1)

   ((Reference for a preliminary ruling - Air transport - Regulation (EC) No 261/2004 - Article 5(1)(c) - Compensation and assistance to passengers in the event of cancellation of a flight - Exemption from the obligation to pay compensation - Contract for carriage concluded through an online travel agent - Air carrier having informed the travel agent in good time of a change to the scheduled time for the flight - Travel agent having communicated that information to a passenger by email 10 days before the flight))
   (2017/C 239/20)
   Language of the case: Dutch

      Referring court

   Rechtbank Noord-Nederland

      Parties to the main proceedings

      Applicant: Bas Jacob Adriaan Krijgsman

      Defendant: Surinaamse Luchtvaart Maatschappij NV

      Operative part of the judgment

   Article 5(1)(c) and Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that the operating air carrier is required to pay the compensation specified in those provisions in the case where a flight was cancelled and that information was not communicated to the passenger at least two weeks before the scheduled time of departure, including in the case where the air carrier, at least two weeks before that time, communicated that information to the travel agent via whom the contract for carriage had been entered into with the passenger concerned and the passenger had not been informed of that cancellation by that agent within that period.

      (1)  OJ C 326, 5.9.2016.


title: Case C-409/00: Action brought on 10 November 2000 by Kingdom of Spain against Commission of the European Communities

text:
27.1.2001              EN                    Official Journal of the European Communities                                         C 28/13
Action brought on 8 November 2000 by the Commission                     Action brought on 8 November 2000 by the Commission
of the European Communities against the Republic of                     of the European Communities against the Federal Repub-
                             Austria                                                                lic of Germany
                                                                                (Case C-408/00)
                         (Case C-407/00)
                                                                                (2001/C 28/23)
                                                                        An action against the Federal Republic of Germany was
                          (2001/C 28/22)                                brought before the Court of Justice of the European Communi-
                                                                        ties on 8 November 2000 by the Commission of the European
                                                                        Communities, represented by Götz zur Hausen, Commission
                                                                        Legal Adviser, with an address for service in Luxembourg at
An action against the Republic of Austria was brought                   the office of Carlos Gómez de la Cruz, of its Legal Service,
before the Court of Justice of the European Communities on              Wagner Centre C 254, Kirchberg.
8 November 2000 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal Adviser,
of its Legal Service, with an address for service in Luxembourg         The applicant claims that the Court should:
at the office of Carlos Gómez de la Cruz, of its Legal Service,
Wagner Centre C 254, Kirchberg.                                         1.    declare that, by not adopting in full, or in any event not
                                                                              communicating in full to the Commission, the laws,
                                                                              regulations and administrative provisions necessary to
                                                                              comply with Council Directive 97/11/EC (1) of 3 March
The applicant claims that the Court should:                                   1997 amending Directive 85/337/EEC on the assessment
                                                                              of the effects of certain public and private projects on the
                                                                              environment, the Federal Republic of Germany has failed
(1) declare that, by failing within the time-limit prescribed to              to fulfil its obligations under that directive;
      take all necessary measures in order to comply with
      Council Directive 96/82/EC of 9 December 1996 (1)                 2.    order the Federal Republic of Germany to pay the costs.
      on the control of major-accident hazards involving
      dangerous substances, and in particular Articles 11
      and 12 thereof, the Republic of Austria has failed to fulfil      Pleas in law and main arguments
      its obligations under the EC Treaty;
                                                                        The pleas in law and main arguments correspond to those in
                                                                        Case C-407/00 (2); the time-limit for implementation expired
(2) order the Republic of Austria to pay the costs.                     on 14 March 1999.
                                                                        (1) OJ L 73, 14.3.1997, p. 5.
                                                                        (2) See p. 13 of this Official Journal.
Pleas in law and main arguments
The mandatory nature of the provisions of the third paragraph
of Article 249 EC and of the first paragraph of Article 10 EC
obliges the Member States to adopt the measures necessary in
order to comply with directives addressed to them within the            Action brought on 10 November 2000 by Kingdom of
time-limit prescribed for so doing. That time-limit expired on          Spain against Commission of the European Communities
3 February 1999 but Austria has not to date taken all the
measures required in order to transpose Articles 11 and 12 of
                                                                                (Case C-409/00)
the directive.
                                                                                (2001/C 28/24)
(1) OJ 1997 L 10, p. 13.                                                An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of Justice of the European
                                                                        Communities on 10 November 2000 by the Kingdom of
                                                                        Spain, represented by Mónica López-Monı́s Gallego, abogado
                                                                        del Estado, acting as Agent, with an address for service in
                                                                        Luxembourg at the office of Carlos Gómez de la Cruz, of its
                                                                        Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- C 28/14                EN                      Official Journal of the European Communities                                         27.1.2001
The applicant claims that the Court should:                                     Commission is inconsistent in its criteria in this regard,
                                                                                since in paragraph 35 of the contested decision it
                                                                                describes the aid as aid to investment while, on the other
                                                                                hand, in paragraph 38 it describes it as operating aid.
—     annul the Commission decision of 26 July 2000(1); and
                                                                          (1) Commission Decision C(2000) 2465 Final concerning the system
—     order the defendant institution to pay the costs.                       of aid granted by Spain for the purchase of industrial vehicles by
                                                                              means of the ‘Convenio de Colaboración’ of 26 February 1997
                                                                              between the Ministerio de Industria y Energı́a and the Instituto de
                                                                              Crédito Official.
Pleas in law and main arguments
—     Indeterminate nature of the contested decision: delimi-
      tation of the benefits covered respectively by Article 1
      (incompatible aid) and Article 2 (aid incompatible with
                                                                          Action brought on 9 November 2000 by the Commission
      the common market and, accordingly, to be recovered) is
                                                                          of the European Communities against the Kingdom of
      impossible. The whole category of undertakings referred
                                                                                Sweden
      to in Article 1 and, in particular, those which are caught
      by the definition of ‘operating at local or regional level
      does not exist as a concept under Spanish law’.                                                (Case C-410/00)
                                                                                (2001/C 28/25)
—     Non-selective aid: the measures contained in the Convenio
      do not favour certain undertakings or productions, since
      the subsidies which it envisages are not aimed at a defined         An action against the Kingdom of Sweden was brought
      set of recipients but at all possible beneficiaries in general.     before the Court of Justice of the European Communities on
      The fact of requiring that beneficiaries should be natural          9 November 2000 by the Commission of the European
      persons or small or medium-sized enterprises constitutes            Communities, represented by Marie Wolfcarius and Christina
      an objective condition requiring that they be in an                 Tufvesson, Legal Advisers in the Commission’s Legal Service,
      objectively similar situation.                                      acting as Agents, with an address for service in Luxembourg at
                                                                          the office of Carlos Gómez de la Cruz, also of that service,
                                                                          Wagner Centre, Kirchberg.
—     Absence of discrimination: the implementing rules for
      the Convenio do not require that the vehicle which must             The applicant claims that the Court should:
      be withdrawn from circulation should belong to the
      beneficiary of the subsidy — the vehicle may belong to a            1.    declare that, by failing to adopt the laws, regulations
      third party with which the beneficiary may have entered                   and administrative provisions necessary to comply with
      into an agreement to that end. Thus, there is no distortion               Council Directive 96/48/EC (1) of 23 July 1996 on the
      of competition to the detriment of those hauliers not                     interoperability of the trans-European high-speed rail
      established in Spain.                                                     system, the Kingdom of Sweden has failed to fulfil its
                                                                                obligations under that directive,
—     Competition is not distorted: the impact at Community               2.    order the Kingdom of Sweden to bear the costs.
      level of the system of aid provided for by the Convenio
      on competition in transport is entirely insignificant —
      the requirements laid down in Article 87(1) EC are not
                                                                          Pleas in law and main arguments
      met.
                                                                          The pleas in law and main arguments are the same as those
—     Infringement of Article 87(3)(c) EC: in the view of the             relied on in Case C-407/00 (2); the period prescribed for
      Kingdom of Spain, concern for the environment and                   transposition of the directive expired on 8 April 1999.
      traffic safety justify application in the present case of
      Article 87(3)(c), since it is clear that the measures
      proposed in those two sectors will have a positive impact,          (1) OJ L 235, 17.9.1996, p. 6.
                                                                          (2) See p. 13 of this Official Journal.
      without resulting in an increase in capacity. The measures
      provided for in the Convenio cannot be characterised as
      operating aid but rather as aid for investment linked to
      the restructuring of the pool of industrial vehicles. The