title: Case C-496/01: Action brought on 21 December 2001 by the Commission of the European Communities against the French Republic

text:
16.2.2002               EN                   Official Journal of the European Communities                                         C 44/9
      legislation in force, current health policy and veterinary              —     requiring bio-medical analysis laboratories estab-
      supervision’ also applied to caviar, their findings in fact                   lished in other Member States to have their place of
      related exclusively to the production of horse meat and                       business on French territory as a condition for
      pike fillets. The Commission made a proposal to the                           obtaining the requisite operating authorisation; and
      Veterinary Committee without having itself carried out
      any examination or appraisal and without submitting the
      inspectors’ report.                                                     —     precluding any reimbursement of the cost of bio-
                                                                                medical analyses carried out by bio-medical analysis
                                                                                laboratories established in another Member State,
—     The Court of First Instance further disregarded the fact
      that, in addition, the Commission clearly violated the
      principle of the protection of legitimate expectations, to              the French Republic has failed to fulfil its obligations
      the detriment of the appellant: according to Commission                 under Articles 43 and 49 of the EC Treaty; and
      Decision 1999/136 of 28 January 1999, published in the
      Official Journal of 18 February 1999, the importation of          2.    order the French Republic to pay the costs.
      caviar from Kazakhstan continued to be permitted (List II).
      Thereafter, at the beginning of March 1999, the appellant
      concluded contracts for the supply of caviar from Kazakh-
      stan for the 1999 season. However, in January 1999, at
      all events before 18 February 1999, the Commission was            Pleas in law and main arguments
      already aware of the results of the inspection, as set out
      in the report, which prompted it to submit to the
      Veterinary Committee, for consideration at its meeting            —     Restriction of Article 43 EC by virtue of the fact that the
      on 23 February 1999, a draft providing for deletion from                requisite administrative authorisation for operating a bio-
      List II. In view of the small number of importers affected,             medical analysis laboratory (Article L 757 of the Public
      it would have been easy for the Commission to inform                    Health Code) can only be delivered by the Préfet for the
      those undertakings of the results of the inspection visit,              département in which the laboratory operates (Article 15
      which were available to it in January, and of the                       of Decree No 76-1004). That provision precludes the
      consequences which those results might have for the                     setting up of an establishment having the status of an
      importation of caviar.                                                  office or agency. The Commission does not dispute that
                                                                              a Member State may provide for rules governing the
                                                                              authorisation for operating laboratories. Such rules must
                                                                              however take account of the requirements and safeguards
(1) Decision 1999/244/EC amending Decision 97/296/EC drawing
    up the list of third countries from which the import of fishery           already complied with in another Member State of
    products is authorised for human consumption (OJ 1999 L 91,               establishment without disregarding that a higher level of
    p. 37).                                                                   protection may exist in the first Member State. Otherwise,
                                                                              failure to take into account safeguards already complied
                                                                              with in another Member State would lead to a duplicate
                                                                              procedure for applying for authorisation over and above
                                                                              the authorisation which the foreign laboratory has already
                                                                              obtained in its Member State of establishment. Such a
                                                                              situation runs counter to the principle of proportionality
                                                                              which requires that the objectives pursued must be
                                                                              achieved by the least restrictive means.
Action brought on 21 December 2001 by the Commission
of the European Communities against the French Republic                 —     Restriction of Article 43 EC by virtue of the fact that the
                                                                              French legislation (Article R 332-3 of the Social Security
                                                                              Code) restricts financial assistance from sickness
                          (Case C-496/01)                                     insurance schemes only to exceptional cases, that is to
                                                                              say where the insured person is able to show that he
                           (2002/C 44/16)                                     cannot obtain the appropriate treatment on French
                                                                              territory, which is moreover not the case so far as
                                                                              concerns bio-medical analysis laboratories. That consti-
                                                                              tutes a barrier both to the freedom to provide services
                                                                              (where a laboratory does not have an establishment in
An action against the French Republic was brought before the
                                                                              France) and to the right to set up secondary establish-
Court of Justice of the European Communities on 21 December
                                                                              ments (where a laboratory has a secondary establishment
2001 by the Commission of the European Communities,
                                                                              where analyses are not however carried out).
represented by Maria Patakia, acting as Agent.
                                                                        The Commission takes the view that such restrictions are not
The applicant claims that the Court should:
                                                                        justified on public-health grounds in particular. The safeguards
                                                                        afforded by the Council directives in the field (93/16/EEC,
1.    Declare that by:                                                  85/432/EEC, 85/433/EEC, 78/1026/EEC and 78/1027/EEC)
 ---pagebreak--- C 44/10                EN                   Official Journal of the European Communities                                      16.2.2002
ensure to a great extent the quality of medical services, so that           Member States relating to turnover taxes — Common
specific measures restricting the basic freedoms enshrined in               system of value added tax: uniform basis of assessment (1)
the Treaty should be exceptional and fully justified by special             to be interpreted as meaning that the transfer of a totality
circumstances. As for monitoring in particular, there is nothing            of assets to a taxable person constitutes a sufficient
to prevent laboratories established in other Member States                  condition for the transaction not to be made subject to
agreeing, voluntarily, to comply with French standards when                 value added tax, whatever the taxable person’s activity
applying for authorisation nor is there anything to prevent                 may be or whatever use he makes of the property
French inspectors from travelling abroad so long as their                   transferred?
inspection is freely consented to by the laboratories concerned.
                                                                       2.   If the answer to the first question is in the negative, is
                                                                            Article 5(8) of the Sixth Directive to be interpreted as
                                                                            meaning that the transfer of a totality of assets to a
                                                                            taxable person is to be understood as meaning a transfer
                                                                            of all or part of an undertaking to a taxable person who
Reference for a preliminary ruling by the Tribunal d’Ar-                    continues the whole activity of the transferor undertaking
rondissement de Luxembourg by order of 19 December                          or continues the activity of the branch corresponding to
2001 in the case of Zita Modes SARL v Administration                        the part of the totality of assets transferred, or merely as
             de l’enregistrement et des domaines                            meaning a transfer of a totality of assets or part thereof
                                                                            to a taxable person who continues the transferor’s line of
                         (Case C-497/01)                                    activity in whole or in part, without there being any
                                                                            transfer of an undertaking or branch of an undertaking?
                          (2002/C 44/17)
                                                                       3.   If the answer to any part of the second question is in the
                                                                            affirmative, does Article 5(8) of the Sixth Directive require
                                                                            or allow a State to require that the recipient’s activity be
Reference has been made to the Court of Justice of the                      pursued in accordance with the licence issued by the
European Communities by order of 19 December 2001 by the                    competent authority for the activity or branch of activity
Tribunal d’Arrondissement de Luxembourg which was received                  stipulated, assuming that the activity pursued falls within
at the Court Registry on 24 December 2001, for a preliminary                lawful economic channels in the sense contemplated in
ruling in the case of Zita Modes SARL v Administration de                   the case-law of the Court of Justice?
l’enregistrement et des domaines on the following questions:
1.    Is Article 5(8) of the Sixth Council Directive 77/388/EEC
      of 17 May 1977 on the harmonisation of the laws of the           (1) OJ L 145, 13.6.1977, p. 1.


title: Action brought on 21 December 1998 (lodged on 18 December 1998) by the Commission of the European Communities against the Hellenic Republic (Case C-470/98)

text:
20.2.1999            EN                  Official Journal of the European Communities                                    C 48/19
     proceedings because of the emergence of new                    Ð order the Republic of Austria to pay the costs.
     circumstances, according to which an internal
     Commission decision changing the criteria for the
     classification of officials must be regarded as a              Pleas in law and main arguments adduced in support
     supervening event.
Ð Infringement of Article 176 of the EC Treaty, under               Article 12(1) of the directive provides that the Member
     which the Commission should have taken all the steps           States are to bring into force the laws, regulations and
     necessary to comply with the judgment of the CFI in            administrative provisions necessary to comply with the
     Alexopolou (1).                                                directive not later than 21 November 1996.
Ð Breach of the fundamental principle of equal treatment            The Republic of Austria has not adopted the necessary
     embodied in Article 5(3) of the Staff Regulations and          measures within that deadline.
     upheld in the case-law of the ECJ and CFI.
                                                                    (1) OJ L 319, 12.12.1994, p. 14.
Ð Infringement of Community law: the order is not
     consistent with the duty of assistance and protection
     laid down in Article 24 of the Staff Regulations.
Ð The contested order of the CFI contains a defective
     statement of reasons, in that it does not sufficiently         Action brought on 21 December 1998 (lodged on
     explain why the internal Commission decision of                18 December 1998) by the Commission of the European
     7 February 1996 cannot be regarded as a supervening                     Communities against the Hellenic Republic
     event.
                                                                                (Case C-470/98)
( ) Case T-17/95 ECR-SC [1995] II-683.
 1
                                                                                (1999/C 48/31)
                                                                    An action against the Hellenic Republic was brought
                                                                    before the Court of Justice of the European Communities
                                                                    on 21 December 1998 by the Commission of the European
Action brought on 16 December 1998 by the Commission                Communities, represented by Maria Kondou-Durande, of
of the European Communities against the Republic of                 its Legal Service, with an address for service in
                            Austria                                 Luxembourg at the Office of Carlos Gómez de la Cruz, of
                                                                    its Legal Service, Wagner Centre.
                       (Case C-461/98)
                        (1999/C 48/30)
                                                                    The Commission claims that the Court should:
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities             Ð declare that, by failing, except as regards fresh meat
on 16 December 1998 by the Commission of the                             and poultrymeat, to take the necessary measures to
European Communities, represented by Frank Benyon,                       ensure that the costs of the veterinary and
Legal Adviser, and Karin Schreyer, a national civil servant              administrative checks in respect of products of
on secondment to the Commission's Legal Service, with an                 agricultural origin from third countries, required
address for service in Luxembourg at the Office of Carlos                under Articles 3(ii) and 4 of Council Directive
Gómez de la Cruz, C 254, Wagner Centre, Kirchberg.                       90/675/EEC (1), are met by the consignor, the
                                                                         consignee or their agent, without reimbursement by
                                                                         the State, the Hellenic Republic has failed to fulfil its
The applicant claims that the Court should:                              obligations under the Treaty and that directive;
Ð declare that, by failing to adopt the laws, regulations
                                                                    Ð order the Hellenic Republic to pay the costs.
     and administrative measures necessary in order
     to comply with Council Directive 94/56/EC of
     21 November 1994 esetablishing the fundamental
     principles governing the investigation of civil aviation       Pleas in law and main arguments adduced in support
     accidents and incidents (1), alternatively by failing to
     communicate those measures to the Commission, the
     Republic of Austria has failed to fulfil its obligations       Under Article 189 of the EC Treaty directives are binding
     under that directive;                                          upon the Member States as to the result to be achieved.
 ---pagebreak--- C 48/20               EN                Official Journal of the European Communities                                 20.2.1999
While the Greek authorities have transposed Directive              withholding tax which is levied at source from the party
90/675/EEC into national law, they have not adopted the            making the income payments. However, the Belgian State
measures needed in order for Articles 3 and 4 of that              has waived the withholding tax on the interest payable on
directive to be capable of being applied since they have           the loan in the present case. According to the Belgian
not yet laid down at national level the fees for the               State, it is necessary to exclude Belgian residents from the
veterinary and administrative checks, such fees being              issue, in order to prevent such persons from evading tax
necessary for the application of those provisions.                 by not declaring the interest received.
(1) OJ L 373, 31.12.1990, p. 1.                                    The fiscal reasons advanced cannot justify the restriction
                                                                   in question.
Action brought on 21 December 1998 by the Commission
of the European Communities against the Kingdom of                 Action brought on 30 December 1998 by the Commission
                           Belgium                                 of the European Communities against the French Republic
                       (Case C-478/98)                                                    (Case C-481/98)
                        (1999/C 48/32)                                                     (1999/C 48/33)
An action against the Kingdom of Belgium was brought               An action against the French Republic was brought before
before the Court of Justice of the European Communities            the Court of Justice of the European Communities on
on 21 December 1998 by the Commission of the                       30 December 1998 by the Commission of the European
European Communities, represented by HeÂleÁne Michard              Communities, represented by Enrico Traversa, acting as
and Bernard Mongin, of its Legal Service, acting as                Agent, assisted by Nicole Coutrelis, of the Paris Bar, with
Agents, with an address for service in Luxembourg at the           an address for service in Luxembourg at the Chambers of
Office of Carlos Gómez de la Cruz, Wagner Centre,                  Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Kirchberg.
                                                                   The Commission claims that the Court should:
The Commission of the European Communities claims
that the Court should:
                                                                   Ð declare that by introducing and maintaining in force
                                                                       rules on value added tax whereby medicaments
Ð declare that, by prohibiting the acquisition by persons              reimbursable by the social security are taxed at the
    resident in Belgium of certificates relating to a loan             rate of 2,1 %, whereas other medicaments are taxed at
    issued abroad, the Kingdom of Belgium has failed to                the reduced rate of 5,5 %, the French Republic has
    fulfil its obligations under Article 73(b) of the EC               failed to fulfil its obligations under Article 12
    Treaty;                                                            of Council Directive 77/388/EEC (Sixth VAT
                                                                       Directive) (1);
Ð order the Kingdom of Belgium to pay the costs.
                                                                   Ð order the French Republic to pay the costs.
Pleas in law and main arguments adduced in support
                                                                   Pleas in law and main arguments adduced in support
Pursuant to a Royal Decree of 14 October 1994, the
                                                                   Under the third subparagraph of Article 12(3)(a) of
Kingdom of Belgium has issued a loan of DEM 1 000
                                                                   Council Directive 77/388/EEC, as amended by Council
million underwritten by an international syndicate of
                                                                   Directive 92/77/EEC of 19 October 1992 supplementing
banks and financial institutions led by the Dresdner Bank
                                                                   the common system of value added tax and amending
and the Schweizerische Bankverein.
                                                                   Directive 77/388/EEC (approximation of VAT rates) (OJ
                                                                   L 316, 31.10.1992, p. 1) and Council Directive
The conditions governing the loan issue expressly exclude          92/111/EEC of 14 December 1992 amending Directive
applications to subscribe thereto made by persons resident         77/388/EEC and introducing simplification measures with
in Belgium. That condition constitutes a restriction on the        regard to value added tax (OJ L 384, 30.12.1992, p. 47),
free movement of capital which is incompatible with                a reduced rate of the tax may not be lower than 5 % and
Article 73(b) of the EC Treaty.                                    applicable only to supplies of goods referred to in
                                                                   Annex H, which refers, inter alia, to medicaments.
                                                                   However, under Article 28(2)(a) of the directive, reduced
According to the Belgian authorities, the restriction in           rates of tax below the minimum level thus fixed which
question is necessary for fiscal reasons. Income derived           were applicable on 1 January 1991 and comply with
from movable assets of Belgian origin is subject to                Community law may be retained.


title: Reference for a preliminary ruling by the Tribunal de Commerce (Second Chamber), Tournai, by judgment of that court of 30 October 1997 in the case of General Motors Corporation v. Yplon SA (Case C-375/97)

text:
20 . 12 . 97                                     Official Journal of the European Communities                                  C 387/ 11
          regarded as unlawful solely as regards that granted               Reference for a preliminary ruling by the Tribunal de
          on or after 1 July 1990 .                                         Commerce ( Second Chamber), Tournai, by judgment of
                                                                            that court of 30 October 1997 in the case of General
(') Concerning aid granted to the Friuli Venezia Giulia Region in                         Motors Corporation v. Yplon SA
       favour of road hauliers of that region.                                                     ( Case C-375/97 )
( 2 ) OJ English Special Edition 1979 ( II ), p. 360 .
                                                                                ( 97/C 387/17 )
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by judgment of the Tribunal de
                                                                            Commerce ( Second Chamber), Tournai, of 30 October
Reference for a preliminary ruling by the Bayerische                        1997, received at the Court Registry on 3 November
Verwaltungsgerichtshof by order of that court of                            1997, for a preliminary ruling in the case of General
20 October 1997 in the case of Anton Feyrer v. Landkreis                    Motors Corporation v. Yplon SA on the following
Rottal-Inn ( also party: Landesanwaltschaft Bayern as                       question:
                 representative of the public interest )
                              Case C-374/97                                 On reading Article 13 A ( 1 ) ( c ) of the Uniform Benelux
                              ( 97/C 387/ 16 )                              Law introduced pursuant to the amending protocol in
                                                                            force since 1 January 1996, what is the proper
                                                                            construction of the term 'repute of the trade mark ' and
Reference has been made to the Court of Justice of the                      may it also be said that such 'repute' applies throughout
European Communities by order of the Bayerische                             the Benelux countries or to part thereof?
Verwaltungsgerichtshof ( Bavarian Administrative Court )
of 20 October 1997, received at the Court Registry on
3 November 1997, for a preliminary ruling in the case of
Anton Feyrer v. Landkreis Rottal-Inn, represented by the
Landrat ( also party: Landesanwaltschaft Bayern as
representative of the public interest) on the following                     Reference      for a preliminary ruling by the
questions:                                                                  Arrondissementsrechtbank Rotterdam by order of that
                                                                            court of 30 October 1997 in the criminal proceedings
 1 . Can an individual oppose the collection of fees higher                                against Florus Ariel Wijsenbeek
        than the standard amounts listed in point 1 of the                                          ( Case C-378/97 )
        annex relating to Article 2 ( 1 ) of Council Directive 85/                                    ( 97/C 387/ 18 )
        73/EEC (') as amended by Council Directive 93/ 118/
        EC ( 2 ) where the Member State has not transposed
        Directive 93/ 118/EC into national law within the
                                                                            Reference has been made to the Court of Justice of the
        prescribed period ?                                                 European Communities by an order of the
                                                                            Arrondissementsrechtbank ( District Court ) Rotterdam of
 2 . Can a Member State collect fees higher than the                        30 October 1997, received at the Court Registry on
        standard amounts in reliance in point 4 ( b ) of the                5 November 1997, for a preliminary ruling in the criminal
        annex relating to Article 2 ( 1 ) of Council Directive 85/          proceedings against Florus Ariel Wijsenbeek on the
        73/EEC as amended by Directive 93/ 118/EC provided                  following questions :
        that the fees levied do not exceed the actual costs, no
        further conditions being imposed ?                                  Are the second paragraph of Article 7a of the EC Treaty,
                                                                            which provides that the internal market is to comprise an
                                                                            area without internal frontiers in which the free movement
 3 . Is the authorization given to Member States under
        Article 2 ( 3 ) of Council Directive 85/73/EEC as                   of persons is ensured, and Article 8a of the EC Treaty,
        amended by Directive 93/ 118/EEC to collect an                      which confers on all citizens of the Union the right to
        amount exceeding the Community fees dependent on                    move and reside freely within the territory of the Member
        the total fee collected in the Member State as a whole               States, to be interpreted as precluding national legislation
        and the actual inspection costs in the Member State as               of a Member State imposing an obligation, accompanied
        a whole or is it sufficient, when the Member State has               by criminal penalties for failure to comply, on persons
        delegated authorization to collect the fees to the local             ( whether or not citizens of the European Union ) to present
         authorities, that the total fee collected by the local              a passport on entry into a Member State whenever that
         authority is not greater than the actual inspection                 person enters the Member State through the national
        costs of that authority ?                                            airport coming from another Member State ?
 (') OJ L 32, 5 . 2 . 1985 , p . 14 .                                        Does any other provision of Community law preclude
 ( 2 ) OJ L 340 , 31 . 12 . 1993 , p . 15 .                                  such an obligation ?


title: Case T-235/16: Judgment of the General Court of 21 June 2017 — GP Joule PV v EUIPO — Green Power Technologies (GPTech) (EU trade mark — Opposition proceedings — Application for the EU figurative trade mark GPTech — Earlier EU word marks GP JOULE — Failure to produce before the Opposition Division proof of entitlement to file a notice of opposition — Proof first produced before the Board of Appeal — Failure to take into account — Discretion of the Board of Appeal — Circumstances precluding additional or supplementary evidence from being taken into account — Article 76(2) of Regulation (EC) No 207/2009 — Rules 17(4), 19(2), 20(1) and 50(1) of Regulation (EC) No 2868/95)

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/24

         Judgment of the General Court of 21 June 2017 — GP Joule PV v EUIPO — Green Power Technologies (GPTech)
   (Case T-235/16) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU figurative trade mark GPTech - Earlier EU word marks GP JOULE - Failure to produce before the Opposition Division proof of entitlement to file a notice of opposition - Proof first produced before the Board of Appeal - Failure to take into account - Discretion of the Board of Appeal - Circumstances precluding additional or supplementary evidence from being taken into account - Article 76(2) of Regulation (EC) No 207/2009 - Rules 17(4), 19(2), 20(1) and 50(1) of Regulation (EC) No 2868/95))
   (2017/C 256/26)
   Language of the case: English

      Parties

      Applicant: GP Joule PV GmbH & Co. KG (Reußenköge, Germany) (represented by: F. Döring, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: E. Zaera Cuadrado, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO: Green Power Technologies, SL (Bollullos de la Mitación, Spain)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 9 February 2016 (Case R 848/2015-2), relating to opposition proceedings between GP Joule PV and Green Power Technologies.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders GP Joule PV GmbH & Co. KG to pay the costs.

      (1)  OJ C 279, 1.8.2016.


title: Case T-62/15: Judgment of the General Court of 13 May 2016 — Market Watch v EUIPO — El Corte Inglés (MITOCHRON) (EU trade mark — Opposition proceedings — Application for EU word mark MITOCHRON — Earlier EU figurative mark mito — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 207/2009)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/18

         Judgment of the General Court of 13 May 2016 — Market Watch v EUIPO — El Corte Inglés (MITOCHRON)
   (Case T-62/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU word mark MITOCHRON - Earlier EU figurative mark mito - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation No 207/2009))
   (2016/C 232/23)
   Language of the case: English

      Parties

      Applicant: Market Watch Franchise & Consulting, Inc. (Freeport, Bahamas) (represented by: J. Korab, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO) (represented by: S. Bonne, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO: El Corte Inglés, SA (Madrid, Spain)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 19 November 2014 (Case R 508/2014-2), relating to opposition proceedings between El Corte Inglés, SA, and Market Watch Franchise & Consulting, Inc.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Market Watch Franchise & Consulting, Inc. to pay the costs.

      (1)  OJ C 107, 30.3.2015.


title: Reference for a preliminary ruling from the Pretura Circondariale, Udine (Sezione distaccata di Cividale del Friuli), by order of that court of 21 July 1998 in the criminal proceedings pending before it against Claudio Chiarotti and Antonio Chillemi (Case C-317/98)

text:
C 327/10              EN               Official Journal of the European Communities                                     24.10.98
Pleas in law and main arguments adduced in support:                   waste in the production area which, under the
                                                                      national legislation in force, may extend for one year,
                                                                      constitute temporary storage under the Community
By virtue of Article 189 of the EC Treaty, pursuant                   directives?
to which a directive is binding, as to the result to be
achieved, upon each Member State to which it is
addressed, the Member States are under an obligation to           (1) OJ L 78, 26.3.1991, p. 32.
comply with time-limits for transposition laid down
directives. In the case of the abovementioned directive, the
prescribed period expired on 30 June 1996 without the
Italian Republic having adopted the provisions needed to
comply with it.
(1) OJ L 157, 7.7.1995, p. 1.
                                                                  Reference for a preliminary ruling by the Pretura
                                                                  Circondariale di Udine, Sezione Distaccata di Cividale del
                                                                  Friuli, by order of that court of 16 July 1998 in criminal
                                                                       proceedings against Giancarlo Fornasar and others
Reference for a preliminary ruling from the Pretura                                       (Case C-318/98)
Circondariale, Udine (Sezione distaccata di Cividale del
Friuli), by order of that court of 21 July 1998 in the                                     (98/C 327/15)
criminal proceedings pending before it against Claudio
                Chiarotti and Antonio Chillemi
                       (Case C-317/98)
                        (98/C 327/14)                             Reference has been made to the Court of Justice of
                                                                  the European Communities by order of the Pretura
                                                                  Circondariale di Udine, Sezione Distaccata di Cividale
                                                                  del Friuli (Udine District Magistrate's Court, Separate
Reference has been made to the Court of Justice of the
                                                                  Chamber for Cividale del Friuli) of 16 July 1998,
European Communities by an order of the Pretura
                                                                  received at the Court Registry on 18 August 1998, for
Circondariale (District Magistrates Court), Udine, by
                                                                  a preliminary ruling in criminal proceedings against
order of that court of 21 July 1998, which was received at
                                                                  Giancarlo Fornasar and others on the following questions:
the Court Registry on 18 August 1998, for a preliminary
ruling in the criminal proceedings pending before it
against Claudio Chiarotti and Antonio Chillemi on the
following questions:
                                                                  Ð For the purposes of classifying waste as hazardous
                                                                      within the meaning of Article 1(4) of Council
Ð What is the difference (if any) between temporary                   Directive 91/689/EEC (1) and Council Decision 904/94/
     storage and storage of waste pending further                     EC (2), is it necessary in each particular case to identify
     operations (or storage of materials) within the                  the origin of the waste, referred to for purposes of
     producer's premises, and what are the criteria for               classification by the list of hazardous waste adopted in
     determining in a given case which of those forms of              that decision, or is it sufficient for such purposes that,
     storage is involved?                                             by reason of its composition, the substance can only
                                                                      be used in theory in a given production process, or is
                                                                      derived as a final product from that process?
Ð Is temporary storage excluded from waste
     management' in the sense contemplated in Article 1(d)
     of Council Directive 91/156/EEC (1) and from all the
     obligations in relation thereto, including the
     notification of temporary storage to the supervisory         Ð Is the list adopted by Council Decision 904/94
     authorities?                                                     exhaustive, so that waste which is not referred to
                                                                      in the list, but which nevertheless displays the
                                                                      characteristics referred to in Annexes I, II and III to
Ð Is temporary storage subject to supervision and, if                 Directive 91/689/EEC, is excluded?
     so, to what type of measures; in that regard do
     the principles contained in the first and second
     subparagraphs of Article 4 of Directive 91/156/EEC
     apply and to what extent?
                                                                  Ð If the Court finds that the list of hazardous waste is
                                                                      not exhaustive, must automatic addition of hazardous
Ð Does the offence with which the defendants are                      waste to the list be deemed to operate on the basis of
     charged, namely the storage of 2 985 kg of dangerous             Annexes I, II and III to Directive 91/689/EEC?


title: Appeal brought on 4 August 1998 by David T. Keeling against the order made on 8 June 1998 by the Third Chamber of the Court of First Instance of the European Communities in Case T-148/97 between David T. Keeling and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Case C-305/98 P)

text:
C 312/4                EN                   Official Journal of the European Communities                                    10.10.98
Pleas in law and main arguments adduced in support:                         to a semen collection centre as laid down in
                                                                            paragraph 1(b) of Chapter I of Annex B to Directive
Infringement of Community law, and in particular:                           88/407/EEC?
                                                                       If the answer to question 1 is affirmative:
Ð disregard of the case-law of the Court of Justice with
     regard to reinstatement following the termination of a
     period of leave on personal grounds: according to the             2. Should the transitional rule set out in Article 20 of
     Court of Justice, an institution is not obliged to                     Directive 88/407/EEC be construed as meaning that it
     reinstate an official on the first occasion that the                   is applicable by analogy to semen which was collected
     requirements of Article 40 of the Staff Regulations are                and processed prior to 1 July 1994?
     fulfilled if the official's conduct is such as to cast
     doubt on the seriousness of his intention to make                 If the answer to question 1 is affirmative and the answer
     himself available to the institution (2). The Court of            to question 2 negative:
     First Instance wrongly allowed itself to be guided by
     its own interpretation of Article 40(4)(d) of the Staff           3. Is Directive 93/60/EEC invalid as being contrary to
     Regulations of Officials (3), with the result that it made             general principles of law, in particular the principle of
     incomplete findings of fact and declined to accept                     the protection of legitimate expectations and the
     material evidence,                                                     principle of proportionality, in so far as that Directive
                                                                            does not provide for transitional measures to counter
Ð disregard of the case-law of the Court of Justice with                    obstacles to intra-Community trade in the semen of
     regard to non-contractual liability: the Court of First                bulls which had already, in accordance with the
     Instance failed to take into account the extent to                     provisions then in force, been admitted to an approved
     which the respondent contributed to the delay in his                   semen collection centre before Directive 93/60/EEC
     reinstatement.                                                         was adopted?
(1) OJ C 234, 25.7.1998, p. 25.                                        If the answer to question 1 is negative:
(2) Judgment of the Court of Justice of 27 October 1977 in
    Joined Cases 126/75, 34/96 and 92/96 Giry v. Commission            4. The provision in Article 1(8) of Directive 93/60/EEC
    [1977] ECR 1937, paragraphs 7 and 20.
                                                                            amended the second subparagraph of paragraph 1(b)
(3) Judgment of the Court of First Instance of 1 July 1993 in Case
    T-40/90 Giordani v. Commission [1993] ECR II-721.
                                                                            of Chapter I of Annex B to Directive 88/407/EEC
                                                                            (The animals may not previously have been kept in
                                                                            other herds of a lower status') to read The animals
                                                                            may not previously have been kept in one or more
                                                                            herds of a lower status'. Must this amendment be
                                                                            construed as being exclusively a clarification or as a
                                                                            substantive amendment to the requirements applying
Reference for a preliminary ruling by the College van                       in regard to the admission of bovine animals to an
Beroep voor het Bedrijfsleven in the case of K. V. S.                       approved semen collection centre?
International BV v. Minister van Landbouw, Natuurbeheer
                           en Visserij                                 (1) OJ L 194, 22.7.1988, p. 10.
                        (Case C-301/98)                                (2) OJ L 186, 28.7.1993, p. 28.
                         (98/C 312/08)
Reference has been made to the Court of Justice of the
European Communities by decision of 17 July 1998 from
the College van Beroep voor het Bedrijfsleven                          Appeal brought on 4 August 1998 by David T. Keeling
(Administrative Court for Trade and Industry), which was               against the order made on 8 June 1998 by the Third
received at the Court Registry on 31 July 1998, for a                  Chamber of the Court of First Instance of the European
preliminary ruling in the case of K. V. S. International BV            Communities in Case T-148/97 (1) between David T.
v. Minister van Landbouw, Natuurbeheer en Visserij                     Keeling and the Office for Harmonisation in the Internal
(Minister for Agriculture, Nature Management and                                     Market (Trade Marks and Designs)
Fisheries) on the following questions:                                                       (Case C-305/98 P)
                                                                                (98/C 312/09)
1. Must Article 3(b) of Directive 88/407/EEC (1) be
     construed as meaning that semen from a bull which
     was admitted to an approved semen collection centre               An appeal against the order made on 8 June 1998 by the
     before the adoption of amending Directive 93/60/                  Third Chamber of the Court of First Instance of the
     EEC (2) on the ground that it satisfied the admission             European Communities in Case T-148/97 between David
     requirements in force at that time does not (any                  T. Keeling and the Office for Harmonisation in the
     longer) satisfy the condition set out in Article 3(b) of          Internal Market (Trade Marks and Designs), was brought
     the Directive if the animal in question fails, at the time        before the Court of Justice of the European Communities
     when certification of the semen is applied for, to                on 4 August 1998 by David T. Keeling, of Alicante, Spain,
     satisfy the amended requirement governing admission               represented by Professor A. A. Dashwood, instructed by
 ---pagebreak--- 10.10.98               EN                Official Journal of the European Communities                                    C 312/5
Edward Lewis, Solicitors, with an address for service               Regulation. The Office was created by a Council
in Luxembourg at the Chambers of Maître ArseÁne                     Regulation based on Article 235 of the Treaty: the acts of
Kronshagen, 22, rue Marie Adelaide.                                 any body created by Community legislation which are
                                                                    capable of producing binding legal effects must be
                                                                    amenable to judicial review under Article 173 of the
The appellant claims that the Court should:                         Treaty. In the contested order, the Court of First Instance
                                                                    appears to have taken the view that, in so far as an action
1. set aside the order of the Court of First Instance of            for annulment may be the appropriate remedy for
     8 June 1998 dismissing as manifestly inadmissible the          challenging a decision of the President of the Office, such
     application in Case T-148/97;                                  proceedings cannot be brought directly against the Office
                                                                    under Article 173 of the Treaty; instead an application
                                                                    must first be made to the Commission under Article 118
2. remit the case to the Court of First Instance so that            of the Regulation and the Commission's decision may
     the written procedure may resume;                              then be challenged in the Court under Article 173 of the
                                                                    Treaty. In the appellant's submission there are several
3. order the respondent to pay the costs of this appeal.            reasons why an application to the Commission, followed
                                                                    by an action for annulment against the Commission,
                                                                    would not be an appropriate means of obtaining judicial
Pleas in law and main arguments adduced in support:                 review of acts of the President of the Office.
The appellant submits that the Court of First Instance
                                                                    First, grave doubts may be felt as to the validity of
erred in law by holding that the legality of the contested
                                                                    Article 118 of the Regulation, at least in the interpretation
decision could not be challenged by way of an action for
                                                                    given to it in the contested decision. That Article purports
annulment under Article 173 of the EC Treaty.
                                                                    to confer on the Commission a judicial function which,
                                                                    under the Treaty, would normally fall to the Court of
In the applicant's view the Court of First Instance failed to       Justice and the Court of First Instance. It is unthinkable
draw the correct inferences from the judgment of the                that a Council Regulation based on Article 235 of the
Court of Justice in Les Verts v. European Parliament (2) in         Treaty could transfer part of the jurisdiction of the Court
which the Court held that an action for annulment under             of Justice to the Commission.
Article 173 could be brought in respect of acts of the
European Parliament intended to produce legal effects vis-
aÁ-vis third parties, even though the Parliament was not at         Secondly, the very wording of Article 118 seems to
that time mentioned in the text of Article 173. The reason          condemn the provision to redundancy, at least as regards
given by the Court for that ruling was that in a                    acts which are capable of producing binding legal effects.
Community founded on the rule of law the Court must be
able to review the legality of all acts adopted by an organ
governed by Community law which are capable of                      Thirdly, there is no good reason why a person wishing to
trespassing on the powers of the Member States or the               challenge a decision of the President of the Office should
other institutions or of exceeding the power of their               be required to bring an action against the Commission.
author.
                                                                    Fourthly, a special process of review interposing the
The Court implicitly took a similar position in relation to         Commission between the litigant and the author of a
acts of the Court of Auditors in Maurissen v. Court of              contested act would only be acceptable if the procedural
Auditors (3); moreover, in his opinion in that case,                safeguards available to the individual under Article 118 of
advocate-general Darmon described the Court's analysis in           the Regulation were equivalent to those under Article 173
Les Verts as having been expressed so unreservedly' that           of the Treaty. That is manifestly not the case.
it could be applied without limitation to review of
measures adopted by the Court of Auditors'. The
advocate-general also dealt explicitly with the point that          Fifthly, the Court of First Instance does not seem to have
the Court of Auditors was not, at the time, one of the              addressed the anomalous situation that would occur if the
institutions' listed in Article 4(1) of the EC Treaty. On          Commission upheld an application under Article 118 and
this, he said:                                                      the President of the Office then challenged the
                                                                    Commission's decision (as he presumably could) under
    The need to review the legality of measures can be no          Article 173. In that event, the only way in which the party
    less pressing in the case of a measure adopted by a             who made the application to the Commission under
    ªquasi-institutionº or ªan auxiliary body vested with           Article 118 could take part in the proceedings before the
    specific powers of an administrative natureº'.                  Court would be to apply for leave to intervene in the
                                                                    action between the Office and the Commission under
                                                                    Article 37 of the Statute of the Court of Justice of the EC.
In the appellant's submission, the same reasoning must
apply with equal force to acts of the President of the
Office, especially to acts such as the contested decision, in       Sixth, and finally, what goes for an individual like the
view of its serious implications for the independence of            appellant, must equally go for the Member States, since
the quasi-judicial Boards of Appeal established by the              they, too, have a remedy under Article 118 of the
 ---pagebreak--- C 312/6               EN                  Official Journal of the European Communities                                  10.10.98
Regulation. On the other hand, it must presumably, be                1. What should the requirements be for furnishing proof
open to the Commission to bring proceedings in respect of                 of the place where an irregularity or offence was
decisions of the President of the Office directly under                   actually committed in the course of a transport
Article 173. That the Member States should be differently                 operation carried out under cover of a TIR carnet
situated from the Commission in the matter of challenging                 (first subparagraph of Article 454(3) of Commission
such decisions seems constitutionally anomalous.                          Regulation (EEC) No 2454/93 (OJ L 253, 11.10.1993,
                                                                          p. 1))? Is a statement from the carnet holder and the
(1) OJ C 199, 28.6.1997, p. 39.                                           testimony of the lorry driver who has effected the
(2) Case 294/83, [1986] ECR 1339.                                         transport for the carnet holder sufficient or must the
(3) Joined Cases 193/87 and 194/87, [1989] ECR 1045.                      proof comprise documents which unambiguously show
                                                                          that the competent authorities in the other Member
                                                                          State reached the conclusion that the irregularity or
                                                                          offence was committed on their territory?
Reference for a preliminary ruling by the Finanzgericht              2. If the Court of Justice takes the view that the actual
München by order of that court of 24 June 1998 in the                     place where the irregularity or offence was commited
case of Holz Geenen GmbH against Oberfinanzdirektion                      can be proved on the basis of statements of the carnet
                           München                                        holder and the testimony of the lorry driver who
                                                                          effected the transport operation, are the third and
                       (Case C-309/98)                                    fourth subparagraphs of Article 454(3) of Directive
                         (98/C 312/10)                                    (EEC) No 2454/93 to be interpreted as meaning that
                                                                          they also apply in cases where the charges were
                                                                          recovered in the Member State where the irregularity
                                                                          or offence was detected, even though it has been
Reference has been made to the Court of Justice of the
                                                                          proved that the irregularity or offence was actually
European Communities by order of the Third Senate of
                                                                          commited in another Member State?
the Finanzgericht München (Finance Court, Munich) of
24 June 1998, received at the Court Registry on 10 August
1998, for a preliminary ruling in the case of Geenen
GmbH against Oberfinanzdirektion München (Principal
Revenue Office, Munich) on the following question:
Is Commission Regulation (EC) No 1509/97 of 30 July
1997 concerning the classification of certain goods in the           Appeal brought on 14 August 1998 by the Union Euro-
Combined Nomenclature (OJ L 204, 31.7.1997, p. 8) Ð                  peÂenne de l'Artisanat et des Petites et Moyennes Entrepri-
in this case rectangular wood blocks, 48 or 85 mm wide              ses (UEAPME) against the judgment delivered on 17 June
72 mm high, used in the construction of window frames,               1998 by the Fourth Chamber, Extended Composition, of
consisting of layers of wood glued together with the grain           the Court of First Instance of the European Communities
running parallel and with slightly rounded edges Ð                   in Case T-135/96 between the Union EuropeÂenne de
invalid?                                                             l'Artisanat et des Petites et Moyennes Entreprises
                                                                     (UEAPME), supported by ConfeÂdeÂration GeÂneÂrale des
                                                                     Petites et Moyennes Entreprises et du Patronat ReÂel
                                                                     (CGPME), Union Professionnelle Artisanale (UPA), Natio-
                                                                     naal Christelijk Middenstandsverbond (NCMV), Konink-
                                                                     lijke Vereniging MKB-Nederland, FeÂdeÂration des Artisans,
                                                                     Confederazione Generale Italiana del Artigianato (Confar-
Reference for a preliminary ruling by the Bundesfinanzhof            tigianato), Wirtschaftskammer Österreich, Bundesvereini-
by order of that court of 7 July 1998 in the case of Haupt-          gung der Fachverbände des Deutschen Handwerks eV
zollamt Neubrandenburg against Leszek Labis trading                  (BFH), and the Council of the European Union, supported
as Przedsiebiorstwo Transportowo-Handlowe Met-Trans',                     by the Commission of the European Communities
                            PL-Reda                                                        (Case C-316/98 P)
                       (Case C-310/98)
                                                                                (98/C 312/12)
                         (98/C 312/11)
Reference has been made to the Court of Justice of the               An appeal against the judgment delivered on 17 June 1998
European Communities by order of the Bundesfinanzhof                 by the Fourth Chamber, Extended Composition, of the
(Federal Finance Court) of 7 July 1998, received at the              Court of First Instance of the European Communities in
Court Registry on 10 August 1998, for a preliminary                  Case T-135/96 between the Union EuropeÂenne de l'Artisa-
ruling in the case of Hauptzollamt Neubrandenburg                    nat et des Petites et Moyennes Entreprises (UEAPME),
against Leszek Labis trading as Przedsiebiorstwo                     supported by ConfeÂdeÂration GeÂneÂrale des Petites et
Transportowo-Handlowe Met-Trans', PL-Reda on the                    Moyennes Entreprises et du Patronat ReÂel (CGPME),
following questions:                                                 Union Professionnelle Artisanale (UPA), Nationaal Christe-


title: Action brought on 8 July 1996 by Pharos SA against the Commission of the European Communities (Case T-105/96)

text:
No C 269/24           EN                  Official Journal of the European Communities                                     14 . 9 . 96
Action brought on 27 June 1996 by Franz Eppe against the             newly-created post, contrary to Articles 5 , 7, 25 , 29 and 45
        Commission of the European Communities                       of the Staff Regulations and Annex I thereto . The procedure
                        ( Case T-99/96 )                             adopted shows that the appointment decision in question
                                                                     was taken by reference to his identity and his personal file,
                          ( 96/C 269/56 )
                                                                     contrary to the principle that the appointing authority is
                                                                     under a duty to fix the level of a post as adviser or Head of
                (Language of the case: French)                       Unit by reference to its importance, independently of the
                                                                     qualifications, identity and personal file of the candidate to
                                                                     be appointed . The adviser's post in question was never the
An action against the Commission of the European                     subject of a prior, independent and objective decision as to
Communities was brought before the Court of First                    its level .
Instance of the European Communities on 27 June 1996 by
Franz Eppe , residing at Tervueren ( Belgium ), represented by
Eric Boigelot, of the Brussels Bar, with an address for service      The applicant also maintains that there has been a disregard
in Luxembourg at the Chambers of Louis Schiltz, 2 rue du             of the criteria laid down by the Court of First Instance in
Fort Rheinsheim .                                                    Case T- 10/94 Kratz v. Commission [ 1995 ] ECR-SC
                                                                     I-A-103 , concerning the Commission decision of 19 July
                                                                     1988 amending the procedure for filling middle
The applicant claims that the Court should :                         management posts, and infringement also of the duty to
                                                                     have due regard for the interests of officials and the
— annul the Commission 's implied decision rejecting the             principles of the protection of legitimate expectations and
                                                                     non-discrimination .
    applicant's request of 31 July 1995 under Article 90 of
    the Staff Regulations for objective re-examination by the
    Advisory Committee on Appointments and by the                    The Commission gave no justification for holding that his
    Commission as appointing authority of the level of his           request for objective re-examination of the level of the post
    post as adviser to the EAGGF,                                    could not be entertained, given that that question was not
                                                                     dealt with before the Community judicature in Joined Cases
— annul       the   Commission 's      express    decision   of      T-59/91 and T-79/91 , which concerned the alteration of the
    16 November 1995 ( note from Mr Franz De Koster ),               organization plan of DG VI, appointing the applicant to the
    rejecting the applicant's request of 31 July 1995 under          post of adviser while rejecting his candidature for his former
    Article 90 of the Staff Regulations for the Commission 's        post as Head of Unit. Nor, the applicant argues, has the
    assistance under Article 24 of the Staff Regulations in an       Commission denied that the manner in which the level of the
    action for damages ,                                             post to be filled was fixed was unlawful , or that it would
                                                                     normally be filled at Grade A 3 .
— annul the Commission 's express decision of 29 March
    1996 , notified to the applicant on 3 April 1996 ,               The applicant also challenges the Commission 's refusal to
    rejecting his complaint lodged on 1 December 1995 ,              assist him, in accordance with Article 24 of the Staff
    No R.9 17/95 , against the implied decision referred to          Regulations, in the proceedings he intends to take against
    above , rejecting his request under Article 90 of the Staff      his former legal adviser for the negligent way in which the
    Regulations for objective re-examination of the level of         latter defended his interests before the Court of First
    his post,                                                        Instance .
— annul the Commission 's express decision of 29 March
     1996 , notified to the applicant on 3 April 1996 ,
    rejecting his complaint lodged on 1 December 1995 ,
    No R.9 17/95 , concerning the rejection of his request for
    assistance in an action for damages,
— declare the Commission liable to pay compensation ,                Action brought on 8 July 1996 by Pharos SA against the
                                                                               Commission of the European Communities
— order the Commission to pay the costs .                                                    Case T-105 /96
                                                                                ( 96/C 269/57 )
 Pleas in law and main arguments adduced in support:
                                                                                (Language of the case: French)
 The applicant, a former Grade A 4 Head of Unit in DG IV,
 challenges the Commission's refusal to reconsider the
 conditions of his appointment as adviser to the EAGGF,               An action against the Commission of the European
 which took place on 1 November 1990 without promotion                Communities was brought before the Court of First
 to Grade A 3 .
                                                                      Instance of the European Communities on 8 July 1996 by
                                                                      Pharos SA, whose registered office is at Seraing ( Belgium ),
 It is clear, in his submission , that the Commission                 represented by Alexandre Vandencasteele , of the Brussels
 automatically aligned the post of adviser to the EAGGF at            Bar, with an address for service in Luxembourg at the
 Grade A 4 , without first objectively deciding its level as a        Chambers of Ernest Arendt, 8-10 rue Mathias Hardt .
 ---pagebreak--- 14 . 9 . 96           EN                  Official Journal of the European Communities                                 No C 269/25
The applicant claims that the Court should :                         clinical trials allowed by the competent authorities after
                                                                     notification or authorization in accordance with the
                                                                     legislation in force, and not resulting in the formation of
— declare that, in breach of its obligations, the
                                                                     residues constituting a risk to human health . In any event,
     Commission failed to follow the procedure to include            the Commission was not entitled to invoke the moratorium
     somatosalm produced by the applicant on the list of             on BST to oppose the classification of the product in
     substances not subject to maximum residue levels in
                                                                     question in Annex II to Regulation ( EEC ) No 2377/90 .
     Annex II to Regulation ( EEC ) No 2377/90,
                                                                     Finally, the applicant argues that the omission in question
— order the Commission to pay the applicant provisional              infringes the principle of sound administration, in that it
     damages of Bfr 512 million, or, at the very least,              goes against the objectives which the Community has set
     provisional damages of Bfr 353 million,                         itself in encouraging research and development in the
                                                                     biotechnology sector , in which Europe is significantly
                                                                     behind .
— order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:
The applicant is a Belgian biotechnology company . The
development and use of smoltine, a derivate of a protein ,           Action brought on 10 July 1996 by Wirtschaftsvereinigung
somatosalm , used naturally by salmon to control their               Stahl against the Commission of the European
                                                                                Communities
osmoregulation capacity, is extremely important for the
future of the applicant, which wishes to extend its activities                                 ( Case T- 106/96 )
in the area of pharmaceutical products for the aquaculture                                       ( 96/C 269/58 )
sector .
                                                                                (Language of the case: German)
The applicant accuses the Commission of preventing the
adoption of an implementing regulation to include
somatosalm in Annex I , II or III to Regulation ( EEC )              An action against the Commission of the European
No 2377/90 , laying down a Community procedure for the               Communities was brought before the Court of First
establishment of maximum residue limits of veterinary                Instance of the European Communities on 10 July 1996 by
medicinal products in foodstuffs of animal origin, which             Wirtschaftsvereinigung Stahl , Diisseldorf, represented by
would have allowed the product in question to be marketed .          Joachim Sedemund , Rechtsanwalt, Berlin , with an address
It argues that, under Article 8 ( 3 ) of that Regulation , the       for service in Luxembourg at the Chambers of Aloyse May ,
                                                                      31 Grand-Rue .
Commission was obliged , in the absence of an opinion from
the Committee on Veterinary Medicinal Products ( CVMP),
to submit a proposition to the Council without delay as to           The applicant claims that the Court should:
the measures to be taken . It appears that the Commission
submitted a draft implementing regulation to the CVMP,               — annul the defendant's decision ( 96/315/ECSC ) of
including somatosalm in Annex II to Regulation ( EEC )                    7 February 1 996 concerning aid to be granted by Ireland
No 2377/90 . The Committee did not, however, issue an                     to the steel company Irish Steel,
opinion , for lack of a qualified majority , four Member States
having been opposed and six others having abstained on               — in the alternative, annul the contested decision of the
the ground that the Council 's moratorium on bovine                       defendant in so far as it allows Irish Steel to increase its
somatotrophine ( BST) would be ' indirectly ' called into                 production level above the total production level in the
 question if another somatotrophine were to appear on the                 1994/95 financial year,
market .
                                                                      — order the defendant to pay the costs .
The applicant makes the legal argument that abstention by
 the Commission from submitting a proposal for measures to            Pleas in law and main arguments adduced in support:
 be taken is generally accepted as constituting a culpable
 failure to act, and that the absence of a Commission
 proposal prevents the adoption of an implementing                    The applicant complains that the contested decision
 regulation which could make it possible to market smoltine           infringes Article 4 ( c ) of the ECSC Treaty and the fifth ' steel
 in the Community .                                                   aids code', in a manner which is not justified by Article 95 of
                                                                      the ECSC Treaty. The Commission is permitting individual
                                                                      Member States to subsidize unprofitable State-owned steel
 It maintains that the effects of that failure to act are             companies on a repeated basis and on so massive a scale that
 particularly damaging, since, as from 1 January 1997 , the           the subsidy payments exceed the equity capital of the
 administration to animals used in food production                    undertaking concerned . This is contrary to the
 of veterinary medicinal products which contain                       Community 's aids policy in respect of privately operated
 pharmacologically active substances and do not appear in             steel undertakings, the subsidizing of which is subject to
 Annex I, II or III will be prohibited , save in the case of          rigorous supervision . The subsidizing of individual


title: Case C-138/16: Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 7 March 2016 — Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg. Gen. mbH (AKM) v Zürs.net Betriebs GmbH

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/2

         Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 7 March 2016 — Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg. Gen. mbH (AKM) v Zürs.net Betriebs GmbH
   (Case C-138/16)
   (2016/C 222/02)
   Language of the case: German

      Referring court

   Handelsgericht Wien

      Parties to the main proceedings

      Applicant: Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger Reg. Gen. mbH (AKM)

      Defendant: Zürs.net Betriebs GmbH

      Question referred

   Are Article 3(1) or Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) and Article 11bis (1)(ii) of the Berne Convention for the Protection of Literary and Artistic Works, as revised in Stockholm/Paris in 1967/1971, to be interpreted as meaning that a rule according to which the transmission of broadcasts by ‘communal antenna installations’ such as those of the defendant in the main proceedings

               (a)

               does not constitute a new broadcast when no more than 500 participants are connected to the installation and/or

               (b)

               constitutes part of the original broadcast when it involves the simultaneous, full and unaltered transmission of broadcasts of the Österreichischer Rundfunk (Austrian Broadcasting Corporation) using services within the country (Austria),

         and these uses are also not covered by any other exclusive right of communication to the public at a distance within the meaning of Article 3(1) of Directive 2001/29/EC, and are therefore not subject to the author’s consent and are also not subject to a fee,
   is contrary to EU law or to the law of the Berne Convention as an international agreement which forms part of EU law?

      (1)  OJ 2001 L 167, p. 10.


title: Case T-430/13 P: Judgment of the General Court of 27 February 2015 — EESC v Achab (Appeal — Civil service — Officials — Remuneration — Expatriation allowance — Naturalisation — Article 4(1)(a) and (b) of Annex VII to the Staff Regulations — Recovery of overpayments — Paragraph 2 of Article 85 of the Staff Regulations)

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/23

         Judgment of the General Court of 27 February 2015 — EESC v Achab
   (Case T-430/13 P) (1)

   ((Appeal - Civil service - Officials - Remuneration - Expatriation allowance - Naturalisation - Article 4(1)(a) and (b) of Annex VII to the Staff Regulations - Recovery of overpayments - Paragraph 2 of Article 85 of the Staff Regulations))
   (2015/C 127/31)
   Language of the case: French

      Parties

      Appellant: European Economic and Social Committee (EESC) (represented initially by M. Arsène, subsequently by M. Pascua Mateo and L. Camarena Januzec, acting as Agents, and D. Waelbroeck and A. Duron, lawyers)

      Other party to the proceedings: Mohammed Achab (represented by: N. Lhoëst, lawyer)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 26 June 2013 in Achab v EESC (F-21/12, ECR-SC, EU:F:2013:95), seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Economic and Social Committee (EESC) to bear its own costs and pay those incurred by Mr Mohammed Achab in the present proceedings.

      (1)  OJ C 325, 9.11.2013.


title: Case T-28/99: Action brought on 25 January 1999 by Sigma Tecnologie di Rivestimento SRL against the Commission of the European Communities

text:
10.4.1999            EN                  Official Journal of the European Communities                                      C 100/21
protection of legitimate expectations and of the duty to            The complaint relates to the following conduct:
have inasmuch as he was refused promotion in 1998
despite the fact that, by virtue of his name having already
been entered on the list of officials most deserving of             Ð concertation between PSA and its concessionaires at
promotion in 1997, his entitlement to promotion should                   national and local level with a view to impeding
have been given priority over that of other officials.                   parallel imports;
                                                                    Ð obstruction of supplies by the exertion of pressure of
He also pleads infringement of Article 45(1) of the Staff                foreign concessionaires to dissuade them from
Regulations, inasmuch as the appointing authority did not                supplying vehicles to end-users domiciled in France;
undertake, in a reasonable and duly justified way, an
examination of the comparative merits of the eligible
candidates.                                                         Ð use of the so-called model-year date' sales technique;
                                                                         and
                                                                    Ð the existence of measures accompanying so-called
                                                                         Balladur' State premiums.
                                                                    The applicant considers that the Commission failed, both
Action brought on 25 January 1999 by Garage Trabisco                in its summary of the complaint and in the presentation of
SA against the Commission of the European Communities               its statement of reasons, with a view to justifying the lack
                                                                    of a sufficient Community interest, to demonstrate the
                       (Case T-26/99)                               partitioning of the markets and the obstruction of
                      (1999/C 100/40)                               supplies, such as the concerted efforts made to prevent
                                                                    access to the parallel imports market by the misuse of
                                                                    the national proedures. Consequently, the defendant
                                                                    institution has failed to fulfil its obligations relating to the
               (Language of the case: French)                       examination of complaints submitted in competition
                                                                    matters.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 25 January
1999 by Garage Trabisco SA, established at Cognac
(France), represented by Jean Claude Fourgoux, of the
Paris Bar,with an address for service in Luxembourg at the
Chambers of Pierrot Schiltz, 4 Rue BeÂatrix de Bourbon.             Action brought on 25 January 1999 by Sigma Tecnologie
                                                                    di Rivestimento SRL against the Commission of the
                                                                                European Communities
                                                                                (Case T-28/99)
The applicant claims that the Court should:
                                                                                (1999/C 100/41)
Ð annul the decision of the Commission of 16/                                       (Language of the case: Italian)
    17 November 1998;
                                                                    An action against the Commission of the European
Ð order the Commission to pay the costs.                            Communities was brought before the Court of First
                                                                    Instance of the European Communities on 25 January
                                                                    1999 by Sigma Tecnologie di Rivestimento SRL, whose
                                                                    registered office is in Lonato (Italy), represented by
Pleas in law and main arguments adduced in support                  Aurelio Pappalardo, of the Trapani Bar, and Massimo
                                                                    Merola, of the Rome Bar, with an adress for service in
                                                                    Luxembourg at the Chambers of Alain Lorang, Rue
                                                                    Albert 1er 51.
By its action, the applicant company contests the decision
of the Commission rejecting the complaint lodged by it
concerning the steps taken by the Peugeot Group (PSA)               The applicant claims that the Court should:
and certain of its concessionaires to impede its activities as
an independent agent/reseller, pursuant to an illegal
agreement between PSA and its concessionaires covering              Ð annul Article 1 of Commission Decision K(1998) 3117
the whole of the territory of France.                                    final of 21 October 1998 (Case IV/35.691/E-4
 ---pagebreak--- C 100/22              EN                  Official Journal of the European Communities                                 10.4.1999
    Fernwärmetechnik         Kartell),   as     amended      by      Vienna, Austria, represented by Dr Stefan Köck,
    Commission Decision K(1998) 3415 final of                        Rechtsanwalt, of Bruckhaus Westrick Heller Löber,
    6 November 1998 (Case IV/35.691 Ð Vorisolierte                   Vienna, with an address for service in Luxembourg at the
    Rohre), in so far as it refers to the applicant, holding         Chambers of Bonn & Schmitt, 62 Avenue Guillaume.
    it liable for participation in the overall agreement';
                                                                     The apllicant claims that the Court should:
Ð in the alternative, annul Article 3 of the decision in so
    far as it sets the applicant's fine at ECU 400 000, or
    substantially reduce the fine;                                   1.    annul that part of the Commission's decision,
                                                                           notified to the applicant by letter (D 18497) of
                                                                           11 December 1998,
Ð order the Commission to pay the costs.
                                                                     1.1. by which the Commission rejected the applicant's
                                                                           application to the Commission to declare that the
Pleas in law and main arguments adduced in support
                                                                           Republic of Austria had infringed Article 90(1) in
                                                                           conjunction with Article 86 of the EC Treaty,
The pleas in law and main arguments are similar to those
in Case T-9/99 HFB Holding and Others v.                                   Ð by placing Mobilkom in a more favourable
Commission (1).                                                                position than the applicant, with respect both to
                                                                               determination of the amount and to the terms of
                                                                               payment of the concession fee, and
The applicant pleads in particular that the Commission
has failed to state adequate grounds in relation to the                    Ð be giving preference to the third network
applicant's participation in the infringement at issue, and                    operator, Connect, over the applicant when
has erroneously assessed the role played by the European                       determining the amount of the concession fee,
District Heating Pipe Manufacturers' Association in the                        and
context of the overall agreement.
                                                                     1.2. by which the Commission rejected the applicant's
Concerning the reduction in the basic amount of the fine                   application,
owing to the secondary role played by the applicant in the
infringement, the applicant maintains that only in the case                Ð to the Commission to require the Republic
of Sigma is it possible to dispute the company's                               of Austria to create equal conditions of
membership of the contact grop for the market concerned,                       competition for mobile telephone operators, by
or at least knowledge that it formed part of an overall                        prescribing additional concession fees or partially
agreement, whereas Ke-Kelit had never denied such                              waiving concession fees; and
knowledge.
(1) OJ C 86, 27.3.1999, p. 24.                                       2.    order the Commission to pay the costs.
                                                                     Pleas in law and main arguments adduced in support
                                                                     The applicant, which entered on the Austrian market in
                                                                     October 1996 as the second operator of a GSM mobile
Action brought on 22 February 1999 by max.mobil.                     communications network after Mobilkom Austria AG, a
Telekommunikation          Service     GmbH      against    the      company predominantly owned by the State, lodged a
          Commission of the European Communities                     complaint with the Commission in October 1997. It
                                                                     complained that it had been treated less favourably than
                         (Case T-54/99)
                                                                     Mobilkom Austria and the third mobile network operator
                        (1999/C 100/42)                              Connect Austria, which had in the meantime entered the
                                                                     market in August 1997, with respect to the determination
                                                                     and terms of collection of the fees for GSM concessions,
               (Language of the case: German)                        and submitted that there had been a breach of
                                                                     Article 90(1) in conjunction with Article 86 of the EC
                                                                     Treaty.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on February 1999                By the decision contained in the Commission's letter of
by max.mobil. Telekommunikation Service GmbH, of                     11 December 1998 the applicant was assured that its


title: Case T-43/11: Action brought on 25 January 2011 — Singapore Airlines and Singapore Airlines Cargo PTE v Commission

text:
               19.3.2011

               EN

               Official Journal of the European Union

               C 89/21

         Action brought on 25 January 2011 — Singapore Airlines and Singapore Airlines Cargo PTE v Commission
   (Case T-43/11)
   2011/C 89/43
   Language of the case: English

      Parties

      Applicants: Singapore Airlines Ltd and Singapore Airlines Cargo PTE Ltd (represented by: J. Kallaugher, Solicitor, J. P. Poitras, Solicitor, J. R. Calzado and É. Barbier de la Serre, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul Commission’s Decision of 9 November 2010 in case COMP/39.258 — Airfreight;

               —

               As a complement, or in the alternative, reduce the amount of fine imposed on the applicants; and

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on six pleas in law.

               1.

               First plea in law, alleging that the decision breaches essential procedural requirements, including:

                           —

                           The right to an independent and impartial tribunal;

                           —

                           The right to legal certainty and foreseeable penalties; and

                           —

                           The applicants’ rights of the defence, since Singapore Airlines Cargo PTE Ltd was not granted access to the replies to the Statement of Objections filed by the other undertakings to which the Statement of Objections was addressed and other relevant material in the Commission’s possession that is relied on in the decision.

               2.

               Second plea in law, alleging that the decision is vitiated by a series of errors of fact and law in the application of Article 101 TFEU in relation to the nature and scope of the supposed ‘cartel’, as:

                           —

                           The decision is vitiated by inadequate reasoning because it fails to explain the basis for its central findings and does not define the relevant markets.

                           —

                           The decision is affected by errors of assessment in relation to the nature and scope of the supposed ‘cartel’. In particular, the contacts alleged in the decision do not constitute a single worldwide network and the finding of a ‘common aim’ linking these contacts is not supported by the evidence;

                           —

                           The Commission has erred in law when it defined the elements of the alleged complex infringement;

                           —

                           The Commission has wrongly assessed the alleged complex infringement relating to non-commissioning of surcharges; and

                           —

                           The Commission has committed errors of law and of assessment when it treated the three alleged ‘elements’ of the infringement as a single infringement.

               3.

               Third plea in law, alleging that the Commission has committed errors of law and fact when it applied Article 101 TFEU to conduct related to sales in foreign jurisdictions, as:

                           —

                           The Commission has committed errors of law and fact when it applied Article 101 TFEU to conduct affecting markets outside the EU, thereby breaching the rules limiting EU’s jurisdiction on such conduct; and

                           —

                           The Commission has committed errors of law and assessment when it refused to take into account the fact that in foreign jurisdictions that feature prominently in the decision, the decision does not properly reflect the fact that conduct was actively supervised and effectively required by government agencies.

               4.

               Fourth plea in law alleging that the Commission has committed a number of errors in inputting the alleged infringement to Singapore Airlines Cargo PTE Ltd, as:

                           —

                           The Commission has committed several errors of law and assessment when it analyzed and took into account contacts prior to 1 May 2004, contacts regarding demands by forwarders for payments of commissions, contacts regarding the security surcharge, contacts regarding the fuel surcharge outside the EU and contacts regarding the fuel surcharge in the EU;

                           —

                           The Commission has committed errors of law and appreciation regarding the use of WOW alliance contacts to establish Singapore Airlines Cargo PTE Ltd’s participation in the alleged infringement; and

                           —

                           The Commission has not established that Singapore Airlines Cargo PTE Ltd knew or should have known about the alleged infringement or its constituent elements.

               5.

               Fifth plea in law alleging that the Commission has breached its duty, pursuant to the principle of sound administration, to examine carefully and impartially all the elements of the case.

               6.

               Sixth plea in law, alleging that the decision has made several errors of law and assessment in calculating the fine imposed on the applicants, as:

                           —

                           The Commission has infringed the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006, C 210, p. 2), the principle of proportionality and the principle of equality in calculating the value of sales, as it has not taken into account:

                                       —

                                       The fact that inbound turnover does nit relate to sales within EEA;

                                       —

                                       The limited geographic scope of the conduct in relation to which the decision finds an infringement;

                                       —

                                       The relative role of the applicants; and

                                       —

                                       The fact that the supposed coordination only involved surcharges.

                           —

                           The Commission failed to give proper weight to the scope and duration of the Singapore Airlines Cargo PTE Ltd’s alleged participation in the infringement; and

                           —

                           The failure of the decision to grant a reduction for limited participation to Singapore Airlines Cargo PTE Ltd constitutes a breach of principle of equality of treatment.