title: Case C-238/06 P: Appeal brought on 29 May 2006 by Develey Holding GmbH & Co. Beteiligungs KG against the judgment delivered by the Court of First Instance (Second Chamber) on 15 March 2006 in Case T-129/04 Develey Holding GmbH & Co. Beteiligungs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/9

         Appeal brought on 29 May 2006 by Develey Holding GmbH & Co. Beteiligungs KG against the judgment delivered by the Court of First Instance (Second Chamber) on 15 March 2006 in Case T-129/04 Develey Holding GmbH & Co. Beteiligungs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-238/06 P)
   (2006/C 212/15)
   Language of the case: German
   Parties

      Appellant: Develey Holding GmbH & Co. Beteiligungs KG (represented by: H. Kunz-Hallstein)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the judgment of the Court of First Instance of 15 March 2006 in Case T-129/04 (1);

               —

               Annul the decision of the Second Board of Appeal of OHIM of 20 January 2004 (Case R367/2003-2);

               —

               In the alternative, refer the case back to the Court of First Instance;

               —

               Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs for the first-instance proceedings and the appeal.

         Pleas in law and main arguments
   The appellant substantiates its appeal against the abovementioned judgment of the Court of First Instance as follows:

               1.

               In accordance with the theory relating to standards which is now generally recognised and also acknowledged with regard to proceedings before the Court, it corresponds to the basic rules concerning burden of proof that a party which is relying on a standard has to prove the factual premises thereof. That applies in particular to reliance on exceptions, which always have to be interpreted strictly according to the case-law of the Court. As OHIM relied on an exception in refusing protection it was thus obliged to prove the existence of the facts constituting the exception.

               2.

               In the present case there is not just an earlier national registration, but also an earlier national registration by a Member State of both the EU and the Paris Convention for the Protection of Industrial Property (PC) within the meaning of Article 6 quinquies (A) PC which can only be denied protection under the rules relating to exceptions in Article 6 quinquies (B) PC. The special right in Article 6 quinquies (A)(1) prevents the defendant from declaring that the application is not capable of being protected at least as regards the territory of the Member State in which the identical union trade mark enjoys protection. The defendant, however, based its decision on a lack of distinctive character in the Community and thus also in the territory of the Federal Republic of Germany: to that extent the defendant is declaring a registration made by a State signatory to the Paris Convention to be invalid. In this case it is not sufficient for OHIM to rely completely on the independence of 'national', namely German, legislation as the proprietor of a mark of a State signatory to the Paris Convention may demand more than treatment under domestic law. Rather, that assessment must take place in the light of Article 6 quinquies (A) PC.

               3.

               As regards proof of lack of distinctive character, the Court of First Instance stated that OHIM complied with its obligation at least in so far as it correctly referred to general experience of life. The argument relating to general experience of life cannot, however, serve as a way of avoiding the fact that there has been failure to prove the facts. The Court of First Instance also wrongfully examined the issue of lack of distinctive character solely on the basis of Article 7(1)(b) of Regulation No 40/94 and completely disregarded Article 6 quinquies (B) PC.

               4.

               The Court of First Instance neither examined the distinctive character on the basis of the goods in respect of which registration of the mark was actually sought nor accurately determined the overall impression of the marks. It also drew no distinction between individual goods. The Court of First Instance overlooked the fact that the use of design as an indicator of origin also serves the needs of consumers: the shape of the packaging provides them with their only possibility of pre-selecting it in supermarkets where numerous bottles with the same contents are lined up on a shelf.

      (1)  OJ C 108, p. 20


title: Case C-409/02 P: Appeal by Jan Pflugradt against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 22 October 2002 in Joined Cases T-178/00 and T-341/00, Jan Pflugradt v European Central Bank, lodged on 18 November 2002

text:
25.1.2003               EN                   Official Journal of the European Communities                                           C 19/15
According to the Commission, the contract ‘Renewal of the               2.    annul the decision of the respondent (ECB) in its letter of
town of Serres: framework of investigative study models and                   28 June 2000 altering the responsibilities assigned to the
pilot realisation programme’ is a public service contract                     appellant;
falling within the directive given its subject-matter and value.
Nevertheless, the contract was not put out to tender but was            3.    order the ECB to pay the costs.
awarded directly by the municipality of Serres to the Aristotle
University of Thessaloniki.
                                                                        Pleas in law and main arguments
The Commission further maintains that in the present case               —     The judgment appealed against mistakes the scope and
neither the exception in Article 6 of the directive (contract                 structure of the EBC’s functional autonomy under the
with an entity which is itself a contracting authority within the             contractual system established by Article 36.1 of the
meaning of the directive) nor the exception in Article 1(a)(ix)               ESCB Statute and the first sentence of Article 9(a) of the
is applicable.                                                                Conditions of Employment. Owing to that error of law
                                                                              that judgment was based on the supposition that under
                                                                              the contractual system the ECB had the same wide
                                                                              discretion as is available to employers in the use of
( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the              staff under the law governing officials of the European
     coordination of procedures for the award of public service               Communities. That discretion relating to the use of staff
     contracts (OJ L 209, 24.7.1992, p. 1).                                   is, however, to be distinguished from discretion in terms
                                                                              of operational organisation. The Court of First Instance
                                                                              was wrong to consider the ECB entitled to disregard the
                                                                              applicant’s job description which had become a part
                                                                              of the contract and to withdraw contractually agreed
                                                                              responsibilities from him. In accordance with principles
                                                                              governing the law concerning officials, the Court of First
                                                                              Instance should not have had regard to whether the
                                                                              tasks withdrawn constituted ‘essential elements’ of the
                                                                              contractually agreed area of activity. It should have
                                                                              inquired into whether those tasks were contractually laid
                                                                              down.
Appeal by Jan Pflugradt against the judgment of the Court
of First Instance of the European Communities (Fifth                          In the event that the contractually agreed employment
Chamber) of 22 October 2002 in Joined Cases T-178/00                          cannot be continued because of cessation of employment,
and T-341/00, Jan Pflugradt v European Central Bank,                          Article 11(a)(ii) provides for the possibility of dismissal for
                  lodged on 18 November 2002                                  organisational reasons. That provision therefore makes it
                                                                              clear that it is not permissible unilaterally to alter the
                                                                              terms of the contract in order to enable employment
                         (Case C-409/02 P)                                    relations to be ‘developed further’ in disregard of contrac-
                                                                              tual agreements. It is not permissible to leave to the ECB
                                                                              as the employer from the point of view of employment
                                                                              law the decision on the application of two different
                           (2003/C 19/26)                                     arrangements which in the end are contradictory. If that
                                                                              were the case, the ECB could — in certain cases even
                                                                              arbitrarily — choose between termination of contract
                                                                              under Article 11(a)(ii) of the Conditions of Employment
                                                                              and continuation of the contract in disregard of contrac-
                                                                              tual agreements.
An appeal against the judgment delivered on 22 October 2002
by the Fifth Chamber of the Court of First Instance of the                    The Court of First Instance described the appellant’s
European Communities in Joined Cases T-178/00 and T-341/                      responsibility for appraisal of the members of the UNIX
99, Jan Pflugradt v the European Central Bank, was brought                    team as not an essential element of the contract of
before the Court of First Instance of the European Communities                employment, although in the job description it is termed
on 18 November 2002 by Jan Pflugradt, represented by Dr                       a ‘key responsibility’. The Court of First Instance also
Norbert Pflüger, 44 Kaiserstraße, D-60329 Frankfurt am Main,                  misconstrued the job description by assuming it to
with an address for service in Luxembourg.                                    constitute merely a provisional assignment of responsi-
                                                                              bilities.
                                                                        —     Infringement of the rules concerning evidence.
The appellant claims that the Court should, on setting aside
the judgment appealed against ( 1)
                                                                        (1 ) Not yet published in the Official Journal of the European
                                                                             Communities.
1.     annul the appellant’s performance appraisal report for
       1999 dated 23 November 1999;


title: Case C-392/00: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 9 August 2000 in the case of Finanzamt Hannover-Nord v Norddeutsche Gesellschaft zur Beratung und Durchführung von Entsorgungsaufgaben bei Kernkraftwerken mbH

text:
C 372/6                 EN                      Official Journal of the European Communities                                       23.12.2000
Reference for a preliminary ruling by the Hoge Raad der                    Is it compatible with Article 4 of Council Directive 69/335/EEC
Nederlanden by judgment of 18 October 2000 in the case                     concerning indirect taxes on the raising of capital (1) to subject
of F. W. L. de Groot v Inspecteur van de Belastingdienst                   to capital duty the grant of an interest-free loan by a
         Particulieren/Ondernemingen te Haarlem                            shareholder to his company, if at the time of granting the loan
                                                                           there existed a profit and loss transfer agreement between the
                         (Case C-385/00)                                   company and the shareholder?
                         (2000/C 372/10)                                   (1) OJ, English Special Edition 1969 (II), p. 412.
Reference has been made to the Court of Justice of the
European Communities by judgment of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 18 Octo-
ber 2000, received at the Court Registry on 20 October 2000,
in the case of F. W. L. de Groot v Inspecteur van de
Belastingdienst Particulieren/Ondernemingen te Haarlem (Tax
Inspector for Individuals and Undertakings, Haarlem) on the
following questions:                                                       Reference for a preliminary ruling by the Tribunale de
                                                                           Trento — Sezione Civile by order of that court of
1.   Do Article 48 of the EC Treaty (now, after amendment,                 20 October 2000 in the case of Distillerie F.lli Cipriani
     Article 39 EC) and Article 7 of Regulation (EEC)                                    SpA against Ministero delle Finanze
     No 1612/68 (1) of the Council preclude a system for the
     avoidance of double taxation under which a resident of a                                        (Case C-395/00)
     Member State, who in a given year (also) derives income
     in another Member State from an employment exercised
     there, on which he is taxed in that other Member State                                          (2000/C 372/12)
     without account being taken of that employee’s personal
     and family circumstances, loses in his State of residence a           Reference has been made to the Court of Justice of the
     proportional part of the advantage of his tax-free allow-             European Communities by order of the Tribunale di Trento —
     ance and personal tax concessions?                                    Sezione Civile (District Court, Trento — Civil Section) of
                                                                           20 October 2000, received at the Court Registry on 26 October
2.   If Question 1 is answered in the affirmative, do specific             2000, for a preliminary ruling in the case of Distillerie. F.lli
     requirements then arise from Community law with                       Cipriani SpA against Ministero delle Finanze (Ministry of
     regard to the manner in which the personal and family                 Finance) on the following questions:
     circumstances of the employee concerned must be taken
     into account in his State of residence?                               1.     Where products destined for export via one or more
                                                                                Member States are moved under the suspension arrange-
(1) OJ English Special Edition 1968 (II), p. 475.                                 ment defined in Article 4(c) of Council Directive
                                                                                92/12/EEC of 25 February 1992 (1) but fail to reach their
                                                                                destination, and it is impossible to ascertain where the
                                                                                irregularity occurred or where the offence took place, is
                                                                                Article 20(3) of that directive to be interpreted as meaning
                                                                                that the Member State of departure may collect the excise
                                                                                duties only if the party that has guaranteed payment has
                                                                                been promptly put in a position to ascertain that there
Reference for a preliminary ruling from the Bundesfi-                             has been no discharge from the suspension arrangement,
nanzhof by order of that court of 9 August 2000 in                                in such a way as to enable that party to provide, within
the case of Finanzamt Hannover-Nord v Norddeutsche                                the four-month period following the date of dispatch of
Gesellschaft zur Beratung und Durchführung von Entsor-                            the products, satisfactory evidence of the correctness of
         gungsaufgaben bei Kernkraftwerken mbH                                    the operation or of the place where the irregularity in fact
                                                                                occurred or where the offence was in fact committed?
                         (Case C-392/00)
                                                                           2.     In the event that Question 1 is answered in the affirmative,
                                                                                does the same interpretation also hold good, in the same
                         (2000/C 372/11)                                          circumstances, where the Member State of departure is
                                                                                also the Member State where the offence was committed
Reference has been made to the Court of Justice of the                            or where the irregularity occurred, or, in such a case, does
European Communities by an order of the Bundesfinanzhof                           the presumption set out in Article 20(2) of Directive
(Federal Finance Court), Germany, of 9 August 2000, which                         92/12/EEC apply? If that presumption applies, may
was received at the Court Registry on 25 October 2000, for a                      evidence be furnished of the correctness of the operation
preliminary ruling in the case of Finanzamt Hannover-Nord v                       or of the place where the irregularity in fact occurred or
Norddeutsche Gesellschaft zur Beratung und Durchführung                           where the offence was in fact committed, and is such
von Entsorgungsaufgaben bei Kernkraftwerken mbH on the                            evidence subject to the time-limit laid down in
following question:                                                               Article 20(3)?


title: Case T-377/04: Action brought on 16 September 2004 by Bart Nijs against the Court of Auditors of the European Communities

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/26

         Action brought on 16 September 2004 by Bart Nijs against the Court of Auditors of the European Communities
   (Case T-377/04)
   (2004/C 284/52)
   Language of the case: French
   An action against the Court of Auditors of the European Communities was brought before the Court of First Instance of the European Communities on 16 September 2004 by Bart Nijs, residing in Bereldange (Luxembourg), represented by Fränk Rollinger, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the decision of the Court of Auditors, taken in the promotions exercise 2003 not to promote the applicant to the grade of translator-reviser (in 2003: LA5).

         Pleas in law and main arguments:
   In support of his action, the applicant alleges that, during the promotions exercise in question, the defendant conducted a comparative examination of the candidates' files, without taking account all of the factors liable to determine its decision, without regard for impartiality, on an unequal basis, neglecting the interests of the service and using information which was not comparable, as it allegedly came from a single reviser whose professional competence is contested by the applicant.


title: Case T-816/14: Action brought on 17 December 2014 — Tayto Group v OHIM — MIP Metro (REAL HAND COOKED)

text:
               16.2.2015

               EN

               Official Journal of the European Union

               C 56/26

         Action brought on 17 December 2014 — Tayto Group v OHIM — MIP Metro (REAL HAND COOKED)
   (Case T-816/14)
   (2015/C 056/37)
   Language in which the application was lodged: English

      Parties

      Applicant: Tayto Group Ltd (Craigavon, United Kingdom) (represented by: R. Kunze, Solicitor, and G. Würtenberger, lawyer)

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

      Other party to the proceedings before the Board of Appeal: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word elements ‘REAL HAND COOKED’ — Community trade mark application No 9 0 62  688

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 6 October 2014 in Case R 842/2013-4

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision;

               —

               Order OHIM to pay the costs.

      Pleas in law

               —

               Infringement of Articles 8(1)(b), 64, 75, 76 and 83 of Regulation No 207/2009.


title: Action brought on 26 June 1996 by the Commission of the European Communities against the Kingdom of Belgium (Case C-219/96)

text:
14 . 9 . 96             EN                    Official Journal of the European Communities                                      No C 269/5
Action brought on 26 June 1996 by the Commission of the                         Council Directive 67/548/EEC ( 2 ) on the approximation
 European Communities against the Kingdom of Belgium                            of laws, regulations and administrative provisions
                         ( Case C-2 19/96 )                                     relating to the classification, packaging and labelling of
                                                                                dangerous substances, or by not communicating those
                            ( 96/C 269/ 11 )
                                                                                measures, the Kingdom of Belgium has failed to fulfil its
                                                                                obligations under that Directive,
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on               — order the Kingdom of Belgium to pay the costs .
26 June 1996 by the Commission of the European
Communities , represented by Gotz zur Hausen, acting as                  Pleas in law and main arguments adduced in support:
Agent, assisted by J. -J. Evrard, Avocat, with an address for
service in Luxembourg at the office of Carlos Gomez de la                The pleas in law and main arguments are analogous to those
Cruz, of the Commission's Legal Service, Wagner Centre,                  in Case C-196/96 ( 3 ); the period prescribed by the Directive
Kirchberg .                                                              expired on 30 October 1993 .
The applicant claims that the Court should :                             (') OJ No L 383 , 29 . 12 . 1992 , p . 113 .
                                                                         ( 2 ) Official Journal, English Special Edition 1967, p. 234 .
— declare that, by not adopting the laws , regulations and               ( 3 ) OJ No C 247, 24 . 8 . 1996 , p . 4 .
      administrative provisions necessary to comply with
      Commission Directive 93/86/EEC ( ') of 4 October 1993
      adapting to technical progress Council Directive
      91 / 157/EEC ( 2 ) on batteries and accumulators
      containing certain dangerous substances, or by not
      communicating those measures, the Kingdom of
      Belgium has failed to fulfil its obligations under that            Action brought on 26 June 1996 by the Commission of the
      Directive ,
                                                                          European Communities against the Kingdom of Belgium
                                                                                Case C-221 /96 )
— order the Kingdom of Belgium to pay the costs .                                                    ( 96/C 269/ 13 )
Pleas in law and main arguments adduced in support:                      An action against the Kingdom of Belgium was brought
                                                                         before the Court of Justice of the European Communities on
The pleas in law and main arguments are analogous to those               26 June 1996 by the Commission of the European
in Case C-205/96 ( 3 ); the period prescribed by the Directive           Communities, represented by Gotz zur Hausen, acting as
expired on 31 December 1993 .                                            Agent, assisted by J. -J. Evrard, Avocat, with an address for
                                                                         service in Luxembourg at the office of Carlos Gomez de la
(') OJ No L 264 , 23 . 10 . 1993 , p . 51                                Cruz, of the Commission's Legal Service , Wagner Centre ,
(-) OJ No L 78 , 26 . 3 . 1991 , p . 38 .                                Kirchberg.
( 5 ) OJ No C 247, 24 . 8 . 1996 , p . 7.
                                                                         The applicant claims that the Court should :
                                                                         — declare that, by not adopting the laws, regulations and
                                                                                administrative provisions necessary to comply with
                                                                                Commission Directive 93/67/EEC (') of 20 July 1993
Action brought on 26 June 1996 by the Commission of the                         laying down the principles for assessment of risks to man
 European Communities against the Kingdom of Belgium                            and    the   environment      of    substances   notified in
                          ( Case C-220/96 )                                     accordance with Council Directive 67/548/EEC ( 2 ), or
                             ( 96/C 269/ 12 )                                   by not communicating those measures , the Kingdom of
                                                                                Belgium has failed to fulfil its obligations under the
                                                                                first-mentioned Directive ,
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on
26 June 1996 by the Commission of the European                           — order the Kingdom of Belgium to pay the costs .
Communities , represented by Gotz zur Hausen, acting as
Agent, assisted by J. -J. Evrard, Avocat, with an address for             Pleas in law and main arguments adduced in support:
service in Luxembourg at the office of Carlos Gomez de la
Cruz, of the Commission 's Legal Service , Wagner Centre,                 The pleas in law and main arguments are analogous to those
Kirchberg.                                                                in Case C-205/96 ( ? ); the period prescribed by the Directive
                                                                          expired on 31 October 1993 .
The applicant claims that the Court should :
                                                                          (') OJ No L 227, 8 . 9 . 1993 , p . 9 .
— declare that, by not adopting the laws, regulations and                 ( 2 ) Official Journal, English Special Edition 1967, p. 234 .
      administrative provisions necessary to comply with                  (') OJ No C 247, 24 . 8 . 1996 , p. 7 .
      Commission Directive 92/69/EEC (') of 31 July 1992
      adapting to technical progress for the 7th time


title: Reference for a preliminary ruling from the Landesarbeitsgericht Niedersachsen by orders of that court of 8 November 1996 in the cases of Deutsche Post AG v. (1) Elisabeth Sievers and (2) Brunhilde Schrage (Cases C-270/97 and C-271/97)

text:
6 . 9 . 97                EN                     Official Journal of the European Communities                                      C 271 / 11
legislation must necessarily be ensured by the Municipality                 gericht Niedersachsen ( Higher Labour Court of Lower
itself, which must proceed to announce the requisite                        Saxony ) of 8 November 1996, which were received at the
tendering procedures, or whether it may also be ensured                     Court Registry on 24 July 1997, for preliminary rulings in
by the concessionaire, to which the relevant powers are                     the cases of Deutsche Post AG v. Elisabeth Sievers ( Case
transferred; finally, if it should be considered that                       C-270/97) and Deutsche Post AG v. Brunhilde Schrage
compliance with that obligation may also be ensured by                      ( Case C-271/97) on the following questions:
the concessionaire, it is necessary to ascertain whether the
latter has the option of choosing whether to manage the
                                                                            1 . ( a ) Does Community law require precedence of
service itself or whether it must necessarily entrust it to
                                                                                application or validity ( under the second
third parties.
                                                                                paragraph of Article 5 and Article 189 of the EC
                                                                                Treaty ) over national provisions of the Member
( 1 ) Council Directive 92/50/EEC of 18 June 1992, relating to the                     States which could or would be applicable, by way
      coordination of procedures for the award of public service                       of concurrence of claims, to the same factual
      contracts, OJ L 209 , 24 . 7. 1992, p. 1 .
                                                                                situation and with the same aim of supporting
                                                                                claims to equal treatment in occupational pension
                                                                                schemes, as for example in Germany — generally
                                                                                — the employment law principle of equal
                                                                                treatment or — specifically — Paragraph 2 ( 1 ) of
                                                                                the Beschaftigungsforderungsgesetz ( Employment
Reference for a preliminary ruling by the Cour Superieure                              Promotion Law ) 1985 ?
de Justice ( High Court of Justice ) of the Grand Duchy of
Luxembourg by judgment of that court of 26 June 1997                             ( b ) Does the precedence of Community law in such a
in the case of Eric Coursier v. Fortis Bank and Martine                                conflict, where Community law confers benefits
                         Coursier, nee Bellami                                         under occupational pension schemes only if and in
                           ( Case C-267/97 )                                           so far as they are attributable to periods of
                                                                                employment prior to 17 May 1990, whereas the
                             ( 97/C 271/ 17)                                           national provisions regulate the same factual
                                                                                situation differently in that they do not exclude
                                                                                retroactive effect, apply generally ?
Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour                                     ( c ) Does such precedence exist only if the economic
Superieure de Justice of the Grand Duchy of Luxembourg                                 objective of Article 119, which exists alongside the
of 26 June 1997, received at the Court Registry on 22 July                             social objective, namely the creation of equal
1997, for a preliminary ruling in the case of Eric Coursier                            competitive opportunities, is specifically affected ?
v. Fortis Bank and Martine Coursier, nee Bellami, on the
following question:
                                                                            2 . Does at least the principle, to be regarded as part of
                                                                                Community law, that national law is to be interpreted
Does a judgment delivered in the State of origin in the                          in a Community manner consistent with EC law,
context of a court-supervised liquidation — a matter                             require national provisions on equal treatment with
which is excluded from the scope of the Brussels                                 respect to benefits from occupational pension schemes
Convention — and which is not open to recognition under                          to be interpreted and applied in harmony with the
the national law of the State in which enforcement is                            requirements and limitations ( prohibition of
sought, but which, in the State in which it was given,                           retroactive effect) of Community law ?
confers on one of the parties immunity from execution of
the judgment whose enforcement is sought, affect the
quality of enforceability which, according to the first
paragraph of Article 31 of the Convention, a judgment
must possess in order to be recognized and enforced ?
                                                                            Action brought on 28 July 1997 by the Commission of the
                                                                            European Communities against the Federal Republic of
                                                                                Germany
                                                                                Case C-272/97 )
Reference for a preliminary ruling from the                                                             97/C 271 / 19
Landesarbeitsgericht Niedersachsen by orders of that court
of 8 November 1996 in the cases of Deutsche Post AG v.
         ( 1 ) Elisabeth Sievers and (2 ) Brunhilde Schrage                 An action against the Federal Republic of Germany was
                   ( Cases C-270/97 and C-271/97 )
                                                                            brought before the Court of Justice of the European
                                                                            Communities on 28 July 1997 by the Commission of the
                               97/C 271 / 18 )                              European Communities, represented by Antonio Caeiro
                                                                            and Jiirgen Grunwald, of its Legal Service, with an
                                                                            address for service in Luxembourg at the office of Carlos
Reference has been made to the Court of Justice of the                      Gomez de la Cruz, also of its Legal Service, Wagner
European Communities by orders of the Landesarbeits                         Centre, Kirchberg.


title: Case C-553/14 P: Appeal brought on 1 December 2014 by Kyocera Mita Europe BV against the order of the General Court (Sixth Chamber) delivered on 16 September 2014 in Case T-35/11: Kyocera Mita Europe BV v European Commission

text:
               9.2.2015

               EN

               Official Journal of the European Union

               C 46/27

         Appeal brought on 1 December 2014 by Kyocera Mita Europe BV against the order of the General Court (Sixth Chamber) delivered on 16 September 2014 in Case T-35/11: Kyocera Mita Europe BV v European Commission
   (Case C-553/14 P)
   (2015/C 046/34)
   Language of the case: English

      Parties

      Appellant: Kyocera Mita Europe BV (represented by: P. De Baere, avocat, P. Muñiz, advogado)

      Other party to the proceedings: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               set aside, in whole, the order delivered by the EU General Court in case T-35/11;

               —

               rule that the appeal is admissible;

               —

               return the case to the EU General Court for a ruling on the substantive grounds of appeal;

               —

               order the Defendant to pay the costs of these proceedings and those before the General Court.

      Pleas in law and main arguments

   The appeal is based on the following two grounds:
   First, the General Court erred in law in the interpretation and application of Article 263 TFUE, when it concluded that the Regulation ‘entailed implementing measures’ within the meaning of that provision.
   Secondly, the General Court infringed the Appellant’s right to be heard, erred in the legal characterisation of the evidence submitted by the Appellant, and alternatively distorted such evidence.


C 247/28              EN                  Official Journal of the European Communities                                26.8.2000
       Removal from the register of Case C-405/99 (1)                     Removal from the register of Case C-417/98 P (1)
                         (2000/C 247/43)                                                     (2000/C 247/47)
By order of 4 April 2000 the President of the Court of Justice       By order of 10 May 2000 the President of the Court of Justice
of the European Communities has ordered the removal from             of the European Communities has ordered the removal from
the register of Case C-405/99: Commission of the European            the register of Case C-417/98 P: Commission of the European
Communities v Kingdom of Belgium.                                    Communities v Primex Produkte Import-Export GmbH & Co.
                                                                     KG, Gebr. Kruse GmbH Kai Interporc Im- und Export GmbH.
(1) OJ C 20 of 22.1.2000.
                                                                     (1) OJ C 1 of 4.1.1999.
       Removal from the register of Case C-426/99 (1)
                                                                            Removal from the register of Case C-156/99 (1)
                         (2000/C 247/44)
                                                                                (2000/C 247/48)
By order of 6 April 2000 the President of the Court of Justice
of the European Communities has ordered the removal from             By order of 10 May 2000 the President of the Court of Justice
the register of Case C-426/99 (reference for a preliminary           of the European Communities has ordered the removal from
ruling from the Oberlandesgericht, Düsseldorf): Connaught            the register of Case C-156/99: Commission of the European
Laboratories Inc. v SmithKline Beecham Pharma GmbH and               Communities v French Republic.
SmithKline Beecham Biologicals Manufacturing SA.
                                                                     (1) OJ C 226 of 7.8.1999.
(1) OJ C 34 of 5.2.2000.
       Removal from the register of Case C-355/99 (1)                       Removal from the register of Case C-168/99 (1)
                         (2000/C 247/45)                                                     (2000/C 247/49)
By order of 7 April 2000 the President of the Court of Justice       By order of 11 May 2000 the President of the First Chamber
of the European Communities has ordered the removal from             of the Court of Justice of the European Communities has
the register of Case C-355/99: Commission of the European            ordered the removal from the register of Case C-168/99:
Communities v Ireland.                                               Commission of the European Communities v Kingdom of
                                                                     Spain.
(1) OJ C 352 of 4.12.1999.
                                                                     (1) OJ C 204 of 17.7.1999.
       Removal from the register of Case C-412/99 (1)
                         (2000/C 247/46)                                    Removal from the register of Case C-229/99 (1)
By order of 18 April 2000 the President of the Court of Justice                              (2000/C 247/50)
of the European Communities has ordered the removal from
the register of Case C-412/99: Commission of the European            By order of 15 May 2000 the President of the First Chamber
Communities v Republic of Austria.                                   of the Court of Justice of the European Communities has
                                                                     ordered the removal from the register of Case C-229/99:
(1) OJ C 79 of 18.3.2000.                                            Commission of the European Communities v French Republic.
                                                                     (1) OJ C 226 of 7.8.1999.


title: Case C-546/14: Request for a preliminary ruling from the Tribunale di Udine (Italy) lodged on 28 November 2014  — Degano Trasporti S.a.s. di Ferruccio Degano & C., in liquidazione

text:
               9.3.2015

               EN

               Official Journal of the European Union

               C 81/4

         Request for a preliminary ruling from the Tribunale di Udine (Italy) lodged on 28 November 2014 — Degano Trasporti S.a.s. di Ferruccio Degano & C., in liquidazione
   (Case C-546/14)
   (2015/C 081/05)
   Language of the case: Italian

      Referring court

   Tribunale di Udine

      Parties to the main proceedings

      Applicant: Degano Trasporti S.a.s. di Ferruccio Degano & C., in liquidation

      Question referred

   On a proper construction of the principles and rules contained in Article 4(3) TEU and Council Directive 2006/112/EC (1), as already interpreted in the judgments of the Court of Justice of 17 July 2008 in C-132/06, of 11 December 2008 in C-174/07, and of 29 March 2012 in C-500/10, must those principles and rules also be interpreted in such a way that a national rule (and, therefore, in respect of the case in the main proceedings, an interpretation of Articles 162 and 182(b) of the Bankruptcy Law) is incompatible [with EU law] where, under that rule, a proposal for an arrangement with creditors with the liquidation of the debtor’s assets, permits only partial payment of the State’s claim in respect of VAT, where there is no tax settlement and where, in respect of that claim, a larger payment in the event of bankruptcy is not foreseeable on the basis of an assessment by an independent expert and following the formal review of the court?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Action brought on 7 April 1997 by Mikael Barfod against the Commission of the European Communities (Case T-89/97)

text:
No C 166/24            EN                  Official Journal of the European Communities                                    31 . 5 . 97
    applicant, upon his appointment, of the implications              The applicant claims that the Court should:
    of Article 31 (2 ) of the Staff Regulations, the
    Commission breached the abovementioned principles.                — annul the Commission 's decision of 18 June 1996
                                                                            rejecting the applicant's request that it give
                                                                            consideration to the possible application of Article 31
                                                                             ( 2 ) of the Staff Regulations,
                                                                      — annul, in so far as may be necessary, the decision
Action brought on 7 April 1997 by Henri Jacobs against
                                                                            adopted by the Commission on 27 December 1996
       the Commission of the European Communities
                                                                            expressly rejecting the applicant's complaint,
                         ( Case T-88/97)
                           ( 97/C 166/48                              — order the defendant to pay all the costs.
                (Language of the case: French)
                                                                      Pleas in law and main arguments adduced in support:
An action against the Commission of the European
Communities was brought before the Court of First                     The pleas in law and main arguments are the same as in
Instance of the European Communities on 7 April 1997                  Case T- 16/97 ( M.
by Henri Jacobs, residing at Steenokkerzeel ( Belgium ),
represented by Nicolas Lhoest, of the Brussels Bar, with an           O OJ No C 74, 8 . 3 . 1997, p . 27.
address for service in Luxembourg at the offices of
Fiduciaire Myson Sari, 30 Rue de Cessange .
The applicant claims that the Court should:
                                                                      Action brought on 7 April 1997 by Martine Frix against
— annul the Commission's decision of 20 June 1996                                the Commission of the European Communities
    rejecting the applicant's request that it give
                                                                                ( Case T-90/97)
    consideration to the possible application of Article 31
    (2 ) of the Staff Regulations,                                                                  ( 97/C 166/50)
— annul, in so far as may be necessary, the decision                                      (Language of the case: French)
    adopted by the Commission on 27 December 1996
    expressly rejecting the applicant's complaint,                    An action against the Commission of the European
                                                                      Communities was brought before the Court of First
— order the defendant to pay all the costs .                          Instance of the European Communities on 7 April 1997
                                                                      by Martine Frix, residing at Rosieres ( Belgium ),
                                                                      represented by Nicolas Lhoest, of the Brussels Bar, with an
Pleas in law and main arguments adduced in support:                   address for service in Luxembourg at the offices of
                                                                      Fiduciaire Myson Sari , 30 Rue de Cessange .
The pleas in law and main arguments are the same as in
Case T- 16/9 7 ( M.                                                   The applicant claims that the Court should :
H OJ No C 74 , 8 . 3 . 1997, p . 27.
                                                                      — annul the Commission's decision of 18 July 1996
                                                                            rejecting the applicant's request that it give
                                                                            consideration to the possible application of Article 31
                                                                             (2 ) of the Staff Regulations,
Action brought on 7 April 1997 by Mikael Barfod against               — annul, in so far as may be necessary, the decision
       the Commission of the European Communities                            adopted by the Commission on 27 December 1996
                         ( Case T-89/97 )                                   expressly rejecting the applicant's complaint,
                             97/C 166/49 )
                                                                      — order the defendant to pay all the costs .
                (Language of the case: French)
                                                                      Pleas in law and main arguments adduced in support:
An action against the Commission of the European
Communities was brought before the Court of First                     The pleas in law and main arguments are the same as in
Instance of the European Communities on 7 April 1997                  Case T-l 6/97 (>).
by Mikael Barfod, residing at Rhode-Saint-Genese
(Belgium ), represented by Nicolas Lhoest, of the Brussels            t 1 ) OJ No C 74 , 8 . 3 . 1997, p . 27.
Bar, with an address for service in Luxembourg at the
offices of Fiduciaire Myson Sari, 30 Rue de Cessange.


title: Case C-619/11: Reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium) of 30 November 2011 — Patricia Dumont de Chassart v ONAFTS — Office national des allocations familiales pour travailleurs salariés

text:
               18.2.2012

               EN

               Official Journal of the European Union

               C 49/16

         Reference for a preliminary ruling from the Tribunal du travail de Bruxelles (Belgium) of 30 November 2011 — Patricia Dumont de Chassart v ONAFTS — Office national des allocations familiales pour travailleurs salariés
   (Case C-619/11)
   2012/C 49/27
   Language of the case: French

      Referring court

   Tribunal du travail de Bruxelles

      Parties to the main proceedings

      Applicant: Patricia Dumont de Chassart

      Defendant: ONAFTS — Office national des allocations familiales pour travailleurs salariés

      Question referred

   Does Article 79(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) breach the general principles of equality and non-discrimination, enshrined, inter alia, in Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, read, where appropriate, in conjunction with Articles 17, 39 and/or 43 of the consolidated version of the Treaty establishing the European Community, when it is interpreted as allowing the rules equating periods of insurance, employment or self-employment laid down in Article 72 of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community to apply to the deceased parent alone with the consequence that Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939 excludes, in the case of the surviving parent, irrespective of that parent’s nationality provided he or she is a national of a Member State or provided he or she comes within the scope ratione personae of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, who has worked in another country of the European Union during the 12-month period referred to in Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939, the opportunity for that parent to provide evidence that he or she fulfils the condition that, in his or her capacity as claimant for the purposes of Article 51(3)(1) of the Laws on Family Allowances consolidated on 19 December 1939, he or she could have received six flat-rate monthly benefit payments during the 12 months preceding the death, whereas the surviving parent, whether he or she is of Belgian nationality or is a national of another Member State of the European Union, who has worked exclusively in Belgium during the 12-month period referred to in Article 56bis(1) of the Laws on Family Allowances consolidated on 19 December 1939, in some cases because he or she has never left Belgian territory, is allowed to adduce such evidence?

      (1)  OJ, English Special Edition 1971(II), p. 416.


title: Case T-260/13: Order of the General Court of 28 October 2015 — Ryanair v Commission

text:
               21.12.2015

               EN

               Official Journal of the European Union

               C 429/29

         Order of the General Court of 28 October 2015 — Ryanair v Commission
   (Case T-260/13) (1)

   (2015/C 429/39)
   Language of the case: English
   The President of the Sixth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 189, 29.6.2013.


title: Case C-318/00: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division, by order of that court of 28 July 2000, in the case of Bacardi-Martini S.A.S. and Cellier des Dauphins against Newcastle United Football Company Limited

text:
C 302/20               EN                     Official Journal of the European Communities                                    21.10.2000
2.    Is it of any significance in that connection whether the                 deadline laid down in Directive 80/778/EEC, especially
      lessor makes available to the lessee both the building and               when that Directive makes clear the importance of strict
      the land on which it is erected, or merely the building,                 compliance with these parameters. While the three-tier
      which he has erected on the lessee’s land?                               approach to dealing with noncompliant group water
                                                                               supplies adopted by the Irish authorities offers the
                                                                               prospect of improved compliance in the years to come, it
(1) OJ L 145 of 13.6.1977, p. 1.                                               comes very late by reference to the compliance deadline,
                                                                               is insufficiently grounded in national legislation, and is
                                                                               very far from being implemented at the level of individual
                                                                               local authorities and individual non-compliant water
                                                                               supplies.
                                                                         —     The second major concern of the Commission is that,
                                                                               notwithstanding the new legislation, Ireland’s transpo-
                                                                               sition of Directive 80/778/EEC still fails to properly
Action brought on 22 August 2000 by the Commission                             reflect the binding character of the parameters of the
        of the European Communities against Ireland                            Directive in relation to group water supplies.
                         (Case C-316/00)
                                                                         (1) OJ L 229 of 30.8.1980, p. 11.
                         (2000/C 302/38)
An action against Ireland was brought before the Court of
Justice of the European Communities on 22 August 2000 by
the Commission of the European Communities, represented
by Richard Wainright, Principal Legal Adviser, acting as agent,
with an address for service in Luxembourg at the office of
Carlos Gómez de la Cruz, member of the Legal Service of the
Commission, Centre Wagner.
                                                                         Reference for a preliminary ruling by the High Court of
The Applicant claims that the Court should:                              Justice (England & Wales), Queen’s Bench Division, by
                                                                         order of that court of 28 July 2000, in the case of Bacardi-
                                                                         Martini S.A.S. and Cellier des Dauphins against Newcastle
—     declare that Ireland is in breach of its obligations under
                                                                                United Football Company Limited
      Articles 7(6) and 19 of Directive 80/778/EEC (1) in failing
      to ensure compliance with microbiological parameters 57
      (total coliforms) and 58 (faecal coliforms) of Annex I of                                   (Case C-318/00)
      the Directive 80/778/EEC in respect of certain public
      water supplies and certain group water supplies identified
      in official drinking water reports and in correspondence                                    (2000/C 302/39)
      concerning Ballycroy, and is further in breach of its
      obligations under Articles 7(6), 18 and 19 of Directive
      80/778/EEC in failing, in its implementing legislation, to         Reference has been made to the Court of Justice of the
      reflect the binding character of the requirements of               European Communities by an order of the High Court of
      Annex I of the Directive in relation to group water                Justice (England & Wales), Queen’s Bench Division of 28 July
      supplies, and is also in breach of its obligations under the       2000, which was received at the Court Registry on 14 August
      Treaty;                                                            2000, for a preliminary ruling in the case of Bacardi-Martini
                                                                         S.A.S. and Cellier des Dauphins against Newcastle United
—     order Ireland to pay the costs.                                    Football Company Limited, on the following question:
                                                                         1.    Are Articles L. 17 to L.21 of the Code des débits de
Pleas in law and main arguments                                                boissons (the so-called ‘Loi Evin’ provisions), Article 8 of
                                                                               Decree no 92-280 of 27 March 1992 and the provisions
                                                                               of the Code de Bonne Conduite of 28 March 1995,
Two major concerns have led the Commission to make this                        contrary to Article 59 of the EC Treaty (now Article 49
application to the Court against Ireland:                                      EC) insofar as they prevent or restrict (a) the advertising
                                                                               of alcoholic drinks at sporting events taking place in
—     The first concern relates to the prevalence and persistence              Member States other than France when the events are to
      of problems of non-compliance with microbiological                       be televised in France and (b) the broadcasting in France
      parameters in Irish drinking water supplies, notably                     of sporting events taking place in other Member States at
      group water supplies, fifteen years after the compliance                 which there is advertising of alcoholic beverages?
 ---pagebreak--- 21.10.2000              EN                    Official Journal of the European Communities                                         C 302/21
2.    If not, is the manner in which these provisions are                sation — United Civil Chambers) of 9 June 2000, which was
      interpreted and applied in practice by the Conseil Supé-           received at the Court Registry on 11 September 2000, for a
      rieur de l’Audiovisuel contrary to Article 59 of the EC            preliminary ruling in the case of Fonderie Officine Meecaniche
      Treaty (now Article 49 EC) insofar as they prevent or              Tacconi SpA against HWS Heinrich Wagner Sinto Maschinen-
      restrict (a) the advertising of alcoholic drinks at sporting       fabrik GmbH on the following question:
      events taking place in Member States other than France
      when the events are to be televised in France and (b) the
      broadcasting in France of sporting events taking place in          Does an action against a defendant for pre-contractual liability
      other Member States at which there is advertising of               fall within the scope of matters relating to delict or quasi-delict
      alcoholic beverages?                                               (Article 5(3)? If not, does it fall within the scope of matters
                                                                         relating to a contract (Article 5(1) (1)? If it does, what is ‘the
                                                                         obligation in question’? Otherwise, is the general criterion of
                                                                         ‘domicile of the defendant’ the only criterion applicable?
Reference for a preliminary ruling by the Unabhängiger                   (1) Article 5(1) and (3) of the Brussels Convention 1968 on Jurisdic-
                                                                             tion and the Enforcement of Judgments in Civil and Commercial
Verwaltungssenat Salzburg by order of that court of
                                                                             Matters (consolidated version) (OJ 1998 C 27, p. 1).
23 August 2000 in the appeal concerning Merkurbau-
Grundstücksverwertungs GmbH & Co KG, Manfred
Wander, Grundverkehrsbeauftragter des Landes Salzburg
and Grundverkehrslandeskommission des Landes Salz-
                                burg
                         (Case C-319/00)
                         (2000/C 302/40)
                                                                                Removal from the register of Case C-525/99 (1)
Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängiger Verwal-                                          (2000/C 302/42)
tungssenat Salzburg of 23 August 2000, received at the Court
Registry on 28 August 2000, for a preliminary ruling in
the appeal concerning Merkurbau-Grundstücksverwertungs                   By order of 3 April 2000, the President of the Court of Justice
GmbH & Co KG, Manfred Wander, Grundverkehrsbeauftragter                  of the European Communities has ordered the removal from
des Landes Salzburg and Grundverkehrslandeskommission des                the register of Case C-525/99 (Reference for a preliminary
Landes Salzburg on the following question:                               ruling from the Unabhängiger Verwaltungssenat Salzburg):
                                                                         Neubau GmbH and Herbert Bogensberger.
Are the provisions of Article 56 et seq. of the EC Treaty to be
interpreted as precluding the application of Paragraphs 12 to
14 of the Salzburger Grundverkehrsgesetz (Salzburg Land                  (1) OJ C 79 of 18.3.2000.
Transfer law) of 1997 in the version published in LGBl.
No. 11/1999, whereby any person who wishes to acquire a
building plot in the federal Land of Salzburg must comply
with a notification or authorisation procedure in respect of the
acquisition of that plot, with the consequence that one of the
fundamental freedoms of the acquirer of title as guaranteed by
the laws of the European Union has been infringed in this
case?
                                                                                Removal from the register of Case C-38/00 (1)
                                                                                (2000/C 302/43)
Reference for a preliminary ruling by the Corte Suprema
di Cassazione — Sezione Unite Civile by order of that                    By order of 10 May 2000, the President of the Court of Justice
court of 9 June 2000 in the case of Fonderie Officine                    of the European Communities has ordered the removal from
Meccaniche Tacconi SpA against HWS Heinrich Wagner                       the register of Case C-38/00 (Reference for a preliminary
                  Sinto Maschinenfabrik GmbH                             ruling from the Deputy Traffic Commissioner, North Western
                                                                         Traffic Area): Public enquiry concerning Aaron Theophilus
                         (Case C-334/00)                                 Joseph, trading under the name of Woodcroft Haulage.
                         (2000/C 302/41)
                                                                         (1) OJ C 122 of 29.4.2000.
Reference has been made to the Court of Justice of the
European Communities by order of the Corte Suprema di
Cassazione — Sezione Unite Civile (Supreme Court of Cas-


title: Case T-370/17: Action brought on 12 June 2017 — KPN v Commission

text:
               31.7.2017

               EN

               Official Journal of the European Union

               C 249/47

         Action brought on 12 June 2017 — KPN v Commission
   (Case T-370/17)
   (2017/C 249/64)
   Language of the case: English

      Parties

      Applicant: KPN BV (Den Haag, Netherlands) (represented by: P. van Ginneken and G. Béquet, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision C(2016) 5165 final of the European Commission of 3 August 2016 declaring a concentration to be compatible with the internal market and the EEA agreement pursuant to Article 6(2) of Council Regulation No 139/2004 in Case M. 7978 — Vodafone/Liberty Global/Dutch JV;

               —

               revert the case to the Commission for further examination pursuant to Article 10(5) of Council Regulation No 139/2004;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission committed a manifest error in its assessment of the market for sports content and that, as a consequence of this, the competition analysis of the Commission is unfunded.

                           —

                           The applicant puts forward that sports content is not substitutable and is essential for subscribers. According to the applicant, this makes sports content (and especially must have sports content) essential for TV providers who want to compete on (among others) the markets relating to TV services.

                           —

                           The applicant further puts forward that the Commission, by considering otherwise, made a manifest error in its assessment of the market(s) for sports contents. According to the applicant, these errors in the market definition have consequences for the further assessment of the Commission in this decision and ultimately for the conclusions of the Commission to allow the merger.

               2.

               Second plea in law, alleging that the Commission committed a manifest error in its assessment regarding the incentive to engage in input foreclosure on the market of wholesale supply of Premium Pay TV Sports channels.

                           —

                           The applicant puts forward that before the merger, Ziggo already had the ability and incentive to foreclose must have content from competitors. According to the applicant, the Commission knew this and the merger thus permits to extend the foreclosure to new markets, such as the markets for fixed-mobile multiplay bundles.

                           —

                           The applicant equally puts forward that the Commission erroneously assessed that the consumption of content on mobile devices is minor and that therefore these markets would not be affected by the merger. Furthermore, so the applicant claims, the Commission erroneously assessed that the markets for fixed-mobile multiplay bundles are only at their early stages in the Netherlands.

                           —

                           According to the applicant, the Commission therefore erroneously came to the conclusion that the merger would have no negative effects regarding foreclosure of sports content on the markets for fixed-mobile multiplay bundles.

               3.

               Third plea in law, alleging that the Commission did not motivate why the joint venture would not have the incentive to foreclose downstream competitors from access to must have content.

                           —

                           The applicant puts forward that the conclusions of the Commission discussed in the previous pleas were insufficiently motivated.


title: Case T-507/11: Action brought on 26 September 2011 — Peek & Cloppenburg v OHIM — Peek & Cloppenburg (Peek & Cloppenburg)

text:
               10.12.2011

               EN

               Official Journal of the European Union

               C 362/18

         Action brought on 26 September 2011 — Peek & Cloppenburg v OHIM — Peek & Cloppenburg (Peek & Cloppenburg)
   (Case T-507/11)
   2011/C 362/26
   Language in which the application was lodged: German

      Parties

      Applicant: Peek & Cloppenburg KG (Düsseldorf, Germany) (represented by: S. Abrar, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Peek & Cloppenburg (Hamburg, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 February 2011 in Case R 262/2005-1;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the word mark ‘Peek & Cloppenburg’ for services in Class 35

      Proprietor of the mark or sign cited in the opposition proceedings: Peek & Cloppenburg

      Mark or sign cited in opposition: another earlier sign, namely the company name ‘Peek & Cloppenburg’, which is valid in Germany

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the appeal was dismissed

      Pleas in law: Infringement of Article 8(4) of Regulation No 207/2009 as the use of the subsequent mark ‘Peek & Cloppenburg’ may not be prohibited and there is no right to prohibit use throughout Germany under Paragraph 12 of the Markengesetz (Law on Trade Marks), and infringement of the first part of the first sentence of Article 76(1) of Regulation No 207/2009 as the Board of Appeal should have waited for a decision of the German Federal Court of Justice and the res judicata of a judgment in the German proceedings to have the trade mark removed from the register.


title: Case C-387/07: Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunale di Ancona — Italy) — MI.VER Srl, Daniele Antonelli v Provincia di Macerata (Waste — Concept of temporary storage — Directive 75/442/EEC — Decision 2000/532/EC — Possibility of mixing together items of waste covered by different codes — Concept of mixed packaging )

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/7

         Judgment of the Court (Second Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunale di Ancona — Italy) — MI.VER Srl, Daniele Antonelli v Provincia di Macerata
   (Case C-387/07) (1)

   (Waste - Concept of ‘temporary storage’ - Directive 75/442/EEC - Decision 2000/532/EC - Possibility of mixing together items of waste covered by different codes - Concept of ‘mixed packaging’)
   (2009/C 32/12)
   Language of the case: Italian
   Referring court
   Tribunale di Ancona
   Parties to the main proceedings

      Applicants: MI.VER Srl, Daniele Antonelli

      Defendant: Provincia di Macerata
   Re:
   Reference for a preliminary ruling — Tribunale di Ancona — Interpretation of Council Directive 75/422/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39) and of Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 2000 L 226, p. 3) — Notion of temporary deposit — Right of the producer to mix together items of waste covered by different codes in the European Waste Catalogue provided for in Decision 2000/532/EC
   Operative part of the judgment

               1.

               Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003, and Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste do not preclude a producer of waste mixing together items of waste covered by different codes in the list annexed to Decision 2000/532 during their temporary storage, pending collection, on the site where they are produced. However, the Member States are required to adopt measures requiring producers of waste to sort and store waste separately during its temporary storage, pending collection, on the site where it is produced, using, for that purpose, the codes from that list, if they consider such measures to be necessary to achieve the objectives laid down in the first paragraph of Article 4 of Directive 75/442/EEC, as amended by Regulation No 1882/2003.

               2.

               Since the national rules repeat the list of waste annexed to Decision 2000/532, code 15 01 06 corresponding to ‘mixed packaging’ may be used to cover waste consisting of packaging of various materials grouped together.

      (1)  OJ C 283, 24.11.2007.


title: Appeal brought on 24 July 1995 by the European Parliament against the judgment delivered on 30 May 1995 by the Third Chamber of the Court of First Instance of the European Communities in Case T-289/94 between Angelo Innamorati and the European Parliament (Case C-254/95 P)

text:
14 . 10 . 95           EN                      Official Journal of the European Communities                                  No C 268/ 11
A. failure by the EC Commission to submit to the                          3 . In the event that that question should also be answered
     Management Committee for Tobacco Regulation                               in the negative : may a body governed by public law rely
     ( EEC ) No 3477/93 in draft form having retroactive                       directly on Article 4 ( 1 ) and ( 2 ) in conjunction with
     effect;                                                                   Article 4(5 ) of Directive 77/388/EEC in order to oppose
                                                                               the application of a national provision even where the
B. infringement of Council Regulation ( EEC ) No 3813/92                       application of those provisions of the Directive, albeit
     and inadequacy of the statement of reasons in                             having an indirectly favourable effect through the
     Commission Regulation ( EEC ) No 3477/93 ;                                deduction of input tax, also has a burdensome effect ?
C. infringement of Article 3(1 ), second paragraph, ( iv ) of             (') OJ No L 145 , 13 . 6 . 1977, p . 1 .
     Council Regulation ( EEC ) No 727/70, as replaced by
     Article 1 of Council Regulation ( EEC ) No 1329/90;
D. infringement of Article 39 ( 1 ) ( c ) of the EC Treaty;
E. infringement of the principle of non-retroactivity of                  Appeal brought on 24 July 1995 by the European
     Community measures;
                                                                          Parliament against the judgment delivered on 30 May 1995
                                                                          by the Third Chamber of the Court of First Instance of the
F. infringement of the principle of the protection of                     European Communities in Case T-289/94 between Angelo
     legitimate expectations ;
                                                                                Innamorati and the European Parliament
G. infringement of the principle of equal treatment of                                           ( Case C-254/95 P)
     traders in the Community;                                                                       ( 95/C 268/24 )
H. misuse of powers .                                                     An appeal against the judgment delivered on 30 May 1995
                                                                          by the Third Chamber of the Court of First Instance of the
(') OJ No L 317 , 18 . 12 . 1993 , p . 30 .                               European Communities in Case T-289/94 between Angelo
                                                                          Innamorati and the European Parliament was brought
                                                                          before the Court of Justice of the European Communities on
                                                                          24 July 1995 by the European Parliament, represented by
                                                                          Manfred Peter and José Luis Rufas Quintana, acting as
                                                                          agents, with an address for service at the Secretariat of the
Reference for a preliminary ruling from the                               European Parliament, Kirchberg.
Bundesfinanzhofby judgment of 21 March 1995 in the case
 of Finanzamt Augsburg-Stadt v. Marktgemeinde Welden
                                                                          The appellant claims that the Court should:
                          ( Case C-247/95 )
                            ( 95/C 268/23 )                               — set aside the contested decision, a judgment of the Court
                                                                               of First Instance delivered on 30 May 1995 in Case
Reference has been made to the Court of Justice of the                         T-289/94       Angelo       Innamorati     v.    European
European Communities by a judgment of the XI Senate of                         Parliament ( 1 );
the Bundesfinanzhof (Federal Finance Court) of 21 March
1995 , which was received at the Court Registry on 17 July                — grant the orders sought at first instance by the European
1995 , for a preliminary ruling in the case of Finanzamt                       Parliament, namely:
Augsburg-Stadt v. Marktgemeinde Welden on the following                        — a ruling that the action is unfounded,
questions :
                                                                               — an order for costs in accordance with the applicable
 1 , does the fourth subparagraph of Article 4 ( 5 ) of                             provisions,
     Directive 77/388/EEC ( A ) allow the Member States to
     treat tax-exempted activities, in respect of which,                  — make an appropriate order as to the costs incurred
                                                                               before the Court of Justice .
     however, it is possible to opt to be taxed, of bodies
     governed by public law as activities which they engage in
     as public authorities, even though they pursue them                   Pleas in law and main arguments adduced in support:
     under the same legal conditions and in the same way as
     private traders ?                                                     infringement of Community law, in particular disregard or
                                                                           misinterpretation of the case-law of the Court of Justice and
                                                                           the Court of First Instance concerning the provision of
 2 . In the event that the first question should be answered in            reasons for administrative decisions : the Selection Board in a
     the negative: may the scope of the right of option to be              competition is not required to specify the marking criteria or
     taxed be restricted pursuant to the second subparagraph
      of Article 13 ( C ) of Directive 77/388/EEC in such a way            parameters which it is entitled to set for the marking of a
                                                                           written test .
     that, where activities coming under the first
      subparagraph of Article 13 ( C ) of that Directive are
      engaged in by bodies governed by public law, they are                (') OJ No C 189 , 22 . 7. 1995 , p . 15 .
      treated    as   business      activities   only    in  certain
      circumstances ?


title: Action brought on 17 March 1995 by Bernard Laga against the Commission of the European Communities (Case T-93/95)

text:
12 . 8 . 95            EN                  Official Journal of the European Communities                                  No C 208/25
    ORDER OF THE COURT OF FIRST INSTANCE                              — order the defendant to pay the applicant the sum of sixty
                        of 21 June 1995                                   thousand French francs ( FF 60 000 ) for irrecoverable
                                                                          costs, or the equivalent in ecus,
in Case T-370/94 : Jacques Vigel v. Commission of the
                  European Communities ( J )                          — order the defendant to pay all the costs .
(Officials — Admissibility — Act adversely affecting an
               official — Promotion procedure)                        Pleas in law and main arguments adduced in support:
                           ( 95/C 208/55 )
                                                                      In 1978 the applicant, who is the manager of a farmers'
                (Language of the case: French)                        association ( GAEC ), received a premium for conversion
                                                                      from dairy herds to the production of beef and veal or
In Case T-370/94 : Jacques Vigel , an official of the                 sheepmeat and in 1991 he was allocated a specific reference
Commission of the European Communities, residing at                   quantity under Regulation ( EEC ) No 857/84 ( x ) and offered
Bergen ( Netherlands ), represented by Constantin Nikis, of           compensation of FF 543 871,13 pursuant to Regulation
the Brussels Bar, with an address for service in Luxembourg           ( EEC ) No 2187/93 ( 2 ); he challenges the decision of the
at the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim,           Office National Interprofessionnel du Lait ( National Milk
v. Commission of the European Communities ( Agent: Ana                Trades Board , ONILAIT ) refusing to pay him that
Maria Alves Vieira ) — application for the annulment of               compensation on the ground that his specific reference
Notice to Staff No PE/A/637 of the Petten Joint Research              quantity cannot be regarded as being definitive, since he has
Centre ( Netherlands ) of 20 April 1994 showing that the              never personally resumed milk production . In 1992 the
applicant was not included on the list of persons to be               members of the GAEC settled the constitution of a farming
considered for promotion or an additional step in the 1994            partnership but did not however thereby create a new legal
promotion exercise, and for the award of damages of Bfrs              person .
75 000 as compensation for non-material damage and Bfrs
250 000 as compensation for material damage suffered by               The applicant considers that the contested decision is the
the applicant — the Court of First Instance ( Fourth                  result of a mistaken assessment of the facts of the matter by
Chamber ), composed of: K. Lenaerts, President of the                 the competent authority . From the actual nature of the legal
Chamber, R. Schintgen and R. Garcfa-Valdecasas, Judges,               relationships it must be deduced on the one hand that the
H. Jung, Registrar, has made an order on 21 June 1995 , in            only lawful holder of the reference quantity originally
which it :
                                                                      allocated was the EARL BENIN ( the Benin limited liability
I. dismisses the application as inadmissible;                         farm-holding ) to which all assets necessary for production,
                                                                      in particular the right to the lease on the farm, had been
2 . orders the parties to bear their own costs.                       transferred, and on the other that the EARL BENIN had
                                                                      been turned into a farming partnership without creating a
(M Of No C 380, 31 . 12 . 1994 .                                      new legal person.
                                                                      Accordingly, the contested decision is based on a
                                                                      misinterpretation of the concepts of holding and producer
Action brought on 16 March 1995 by Rene Bebin against                 within the meaning of Regulation ( EEC ) No 3950/92 ( 3 ).
       the Commission of the European Communities                     Furthermore, creating the EARL BENIN and turning it into
                                                                      a farming partnership merely constitute 'a necessary
                         ( Case T-84/95 )                             structural adaptation ' within the meaning of Regulation
                           ( 95/C 208/56 )                            ( EEC ) No 804/68 (4 ) which cannot in any way interfere with
                                                                      controlling milk production .
                (Language of the case: Frenchj
                                                                      (>) OJ  No L 90 , 31 . 3 . 1984 , p . 13 .
An action against the Commission of the European                      (2) OJ  No L 196 , 4 . 8 . 1993 , p . 16 .
Communities was brought before the Court of First                     (3) OJ  No L 405 , 31 . 12 . 1992, p. 1 .
Instance of the European Communities on 16 March 1995                 ( ) OJ  English Special Edition 1968(1 ), p. 176 .
by Rene Bebin, joint managing partner in the farming
partnership R. D. M. , resident at Le Rheu ( France ),
represented by Philippe Olive , of the Rennes Bar, with an
address for service in Luxembourg at the Chambers of
Aloyse May, 31 Grand'Rue .
                                                                      Action brought on 17 March 1995 by Bernard Laga against
The applicant claims that the Court should :                                the Commission of the European Communities
— order the Commission of the European Communities to                                            ( Case T-93/95 )
     pay to Rene Bebin, in his capacity as managing partner                                        ( 95/C 208/57 )
     of the farming partnership R. D. M. and for the
     partnership, the sum of five hundred and forty-three
     thousand eight hundred and seventy-one French francs                             (Language of the case: French)
     thirteen centimes ( FF 543 871,13 ) together with interest
     thereon to run from the date of this action and                  An action against the Commission of the European
     capitalization of the interest or its equivalent in ecus ,       Communities was brought before the Court of First
 ---pagebreak--- No C 208/26           EN                      Official Journal of the European Communities                                     12 . 8 . 95
Instance of the European Communities on 16 March 1995                    Action brought on 17 March 1995 by Jean-Pierre Landuyt
by Bernard Laga , who runs a farm as part of the                            against the Commission of the European Communities
Landuyt-Laga farmers ' association ( GAEC ), whose                                                ( Case T-94/95 )
registered office is at Grisolles ( France ), represented by
Jean-Francois Le Petit, of the Rennes Bar, with an address                                          ( 95/C 208/58 )
for service in Luxembourg at the Chambers of Aloyse Mai,
31 Grand'Rue .                                                                            (Language of the case: French)
                                                                         An action against the Commission of the European
The applicant claims that the Court should :                             Communities was brought before the Court of First
                                                                         Instance of the European Communities on 16 March 1995
— order the Commission of the European Communities to                    by Jean-Pierre Landuyt, who runs a farm as part of the
     pay the compensation provided for by the proposal for a             Landuyt-Laga        farmers '    association ( GAEC ),    whose
     Council Regulation COM(93 ) final submitted on                      registered office is at Grisolles ( France ), represented by
     13 May 1993 ( x ) and accordingly should determine the              Jean-Francois Le Petit, of the Rennes Bar, with an address
     amount pursuant to that proposal for a Regulation,                  for service in Luxembourg at the Chambers of Aloyse May,
                                                                         31 Grand'Rue .
— order payment of default interest thereon of 8 % from                  The applicant claims that the Court should :
     19 May 1992 in accordance with Article 12 of that
     proposal for a Regulation,                                          — order the Commission of the European Communities to
                                                                              pay the compensation provided for by the proposal for a
— order the Commission of the European Communities to                         Council Regulation COM(93 ) final submitted on
     pay the sum of fifty thousand French francs ( FF 50 000 )                13 May 1993 (^ and accordingly should determine the
     for irrecoverable costs, or the equivalent in ecus, and all              amount pursuant to that proposal for a Regulation,
     the costs .
                                                                         — order payment of default interest thereon of 8 % from
                                                                              19 May 1992 in accordance with Article 12 of that
Pleas in law and main arguments adduced in support:                           proposal for a Regulation,
The applicant is a farmer who, having given an undertaking               — order the Commission of the European Communities to
not to market milk pursuant to Council Regulation ( EEC )                     pay the sum of fifty thousand French francs ( FF50 000 )
No 1078/77, was allocated a provisional specific reference                    for irrecoverable costs, or the equivalent in ecus, and all
                                                                              the costs .
 quantity in 1989 and offered compensation under
 Regulation ( EEC ) No 2187/93 ; his action centres around
 the decision of the Office National Interprofessionnel du               Pleas in law and main arguments adduced in support:
 Lait ( National Milk Trades Board , ONILAIT) refusing to                The pleas in law and main arguments are the same as those
 pay him that compensation on the ground that his specific                in Case T-93/95 Laga v. Commission .
 reference quantity cannot be regarded as being definitive,
 since he has never personally resumed milk production,                   (') OJ No C 157, 9 . 6 . 1993 , p . 11 .
 contrary to Article 3 ( 3 ) of Regulation ( EEC )
 No 857/ 84 .
                                          tor
 The applicant considers that the contested decision is the
 result of a mistaken assessment of the facts of the matter by            Action brought on 11 April 1995 by the Enosi
 the competent authority. He points out in particular that                Tsimentoviomichanion Ellados against the Commission of
 because the prefectural decision allocating him a provisional                              the European Communities
 specific reference quantity was taken unduly late, he had                                        ( Case T-103/95 )
 already rotated the crops on an area of 188 hectares 20
 centares which he farmed within the Landuyt-Laga farmers '                                           95/C 208/59 )
 association ( GAEC ), planting wheat and colza, whereas a
 maize crop would have been needed in order to feed cattle .                               (Language of the case: Greek)
 That was why the applicant found himself obliged to rent
 cows, which he had to do because he was unable to replenish              An action against the Commission of the European
 a herd in time . Temporary rental of that sort is not in any             Communities was brought before the Court of First
 way contrary to custom and practice, whereas it has been                 Instance of the European Communities on 11 April 1995 by
 established that he possessed the necessary plant for milk               the Enosi Tsimentoviomichanion Ellados ( ETE ), established
 production, and the schedule of analyses performed by                    in Athens , represented by Ioannis Yeorgakis and Maria
 Uriane demonstrates that those cows formed part of the                   Golfinopoulou, of the Athens Bar, with an address for
 applicant's farming operation as a whole .                               service in Luxembourg at the Chambers of Tom Loesch,
                                                                          Avocat, 11 Rue Goethe, L-1011 Luxembourg.
  (M OJ No C 157, 9 . 6 . 1993 , p . 11 .                                 The applicant claims that the Court should :
                                                                          — annul the Commission Decision of 30 November 1994
                                                                               in connection with a proceeding under Article 85 of the