title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 2 April 1998 in Case T-86/96 R: Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Others v. Commission of the European Communities (State aid - Commission decision classifying a national aid measure as incompatible with the common market - Interim measures - Order requiring authorisation for the aid to be granted on a provisional basis - Urgency - Balance of interests)

text:
C 184/10              EN                Official Journal of the European Communities                                  13.6.98
  JUDGMENT OF THE COURT OF FIRST INSTANCE                          annulment of Commission Decision 95/466/EC of 26 July
                       of 30 April 1998                            1995 concerning aid granted by the Flemish Region to the
                                                                   Belgian airline Vlaamse Luchttransportmaatschappij NV
in Case T-214/95: Het Vlaamse Gewest (Flemish Region)              (OJ L 267 of 9.11.1995, p. 49) Ð the Court (Fifth
      v. Commission of the European Communities (1)                Chamber, Extended Composition), composed of R.
                                                                   García-Valdecasas, President, V. Tiili, J. Azizi, R. M.
(Application for annulment Ð Air transport Ð State aid
                                                                   Moura Ramos and M. Jaeger, Judges; A. Mair,
Ð Small amount Ð Distortion of competition Ð Effect
                                                                   Administrator, for the Registrar, has given a judgment on
 on trade between Member States Ð Statement of reasons)
                                                                   30 April 1998 in which it:
                        (98/C 184/18)
                                                                   1. Dismisses the application;
                (Language of the case: Dutch)
In Case T-214/95: Het Vlaamse Gewest (Flemish Region),             2. Orders the applicant to pay the costs.
represented by Alfred L. Merckx, of the Brussels Bar, with
an address for service in Luxembourg at the Chambers of            (1) OJ C 108, 13.4.1996.
Duro and Lorang, 4 Boulevard Royal, against
Commission of the European Communities (Agents: Pieter
Van Nuffel and Anders Christian Jessen) Ð application
for annulment of Commission Decision 95/466/EC of
26 July 1995 concerning aid granted by the Flemish
Region to the Belgian airline Vlaamse Luchttransport-
maatschappij NV (OJ L 267 of 9.11.1995, p. 49) Ð the               ORDER OF THE PRESIDENT OF THE COURT OF
Court of First Instance (Fifth Chamber, Extended                                        FIRST INSTANCE
Composition), composed of: R. García-Valdecasas,
President, V. Tiili, J. Azizi, R. M. Moura Ramos and M.                                   of 2 April 1998
Jaeger, Judges; A. Mair, Administrator, for the Registrar,         in Case T-86/96 R: Arbeitsgemeinschaft Deutscher
has given a judgment on 30 April 1998, in which it:                Luftfahrt-Unternehmen and Others v. Commission of the
                                                                                European Communities
1. Dismisses the application;                                      (State aid Ð Commission decision classifying a national
                                                                   aid measure as incompatible with the common market Ð
2. Orders the applicant to bear the costs.                         Interim measures Ð Order requiring authorisation for the
                                                                   aid to be granted on a provisional basis Ð Urgency Ð
                                                                                Balance of interests)
(1) OJ C 16, 20.1.1996.
                                                                                (98/C 184/20)
                                                                                (Language of the case: German)
  JUDGMENT OF THE COURT OF FIRST INSTANCE                          In Cases T-86/96 R: Arbeitsgemeinschaft Deutscher Luft-
                       of 30 April 1998                            fahrt-Unternehmen, established in Bonn, composed of the
                                                                   following members: Aero Lloyd Flugreisen GmbH & Co.
in Case T-16/96: Cityflyer Express Ltd v. Commission of            Luftverkehrs-KG, established at Oberursel (Germany), Air
                the European Communities (1)                       Berlin GmbH & Co. Luftverkehrs KG, established in
(Action for annulment Ð Air transport Ð State aid Ð                Berlin, Condor Flugdienst GmbH, established at
Interest-free loan Ð Amount of the aid Ð Principle of the          Kelsterbach (Germany), Germania Fluggesellschaft mbH,
market economy investor Ð Principle of proportionality             established in Berlin, Hapag-Lloyd Fluggesellschaft mbH,
Ð Manifest error of assessment Ð Statement of reasons              established at Langenhagen (Germany), LTU Lufttransport
Ð Need for exchange of argument between the                        Unternehmen GmbH & Co. KG, established in
              Commission and the complainant)                      Düsseldorf, and Hapag Lloyd Fluggesellschaft mbH,
                                                                   established at Langenhagen, represented by Gerrit Schohe,
                        (98/C 184/19)                              Rechtsanwalt, Hamburg, with an address for service in
                                                                   Luxembourg at the Chambers of Marc Baden, 34b Rue
               (Language of the case: English)                     Philippe II, v. Commission of the European Communities
                                                                   (Agents: Paul F. Nemitz and Georg Berrisch) Ð
                                                                   application for interim measures in relation to
In Case T-16/96: Cityflyer Express Ltd, established at             Commission Decision 96/369/EC of 13 March 1996
Gatwick Airport (United Kingdom), represented by                   concerning fiscal aid given to German airlines in the form
Charles Price, of the Brussels Bar, with an address for            of a depreciation facility (OJ L 146 of 20.6.1996, p. 42)
service in Luxembourg at the Chambers of Lucy Dupong               Ð the President of the Court of First Instance has made
v. Commission of the European Communities (Agents:                 an order on 2 April 1998, the operative part of which is
Peter Oliver and Anders Jessen) Ð application for                  as follows:
 ---pagebreak--- 13.6.98              EN                   Official Journal of the European Communities                                   C 184/11
1. The application for interim measures is dismissed;                Pleas in law and main arguments adduced in support:
2. The costs are reserved.
                                                                     The applicants are all members of the JET project team
                                                                     employed by the United Kingdom Atomic Energy
                                                                     Authority. This application is made consequent to the
                                                                     judgment of the Court in Joined Cases T-177/94 and 377/
                                                                     94 (1). The Commission was the defendant in those cases
                                                                     and the Council participated as intervener. In the
Action brought on 12 February 1998 by Henk Altmann                   judgment, the statutes of the JET Joint Undertaking and
and Others against the European Commission and the                   associated supplementary rules and administrative
               Council of the European Union                         practices were ruled to be illegal in so far as they resulted
                                                                     in unequal treatment of the applicants and the temporary
                       (Case T-30/98)
                                                                     employees of the Communities working together as
                        (98/C 184/21)                                members of the JET Project Team at Culham. Two
                                                                     decisions of the Commission were therefore annulled.
               (Language of the case: English)
                                                                     The applicants now submit firstly that the Commission
An action against the European Commission and the                    has not acted to comply with the judgment by adopting
Council of the European Union was brought before the                 measures to replace the annulled decisions in the light of
Court of First Instance of the European Communities on               the judgment and secondly that the Council has not
12 February 1998 by Henk Altmann and Others,                         amended the statutes. Furthermore, the current proposal
represented by Kenneth Parker QC and Rhodri Thompson                 for amendment of the statutes does not purport to address
with an address for service in Luxembourg at the Offices             the unlawful inequality of treatment found in the
of Elvinger, Hoss & Prussen, 2, Place Winston Churchill.             judgment in respect of the applicants. The Commission,
                                                                     the JET Council and the JET management have not
                                                                     altered either the supplementary rules or the
The applicants claim that the Court should:
                                                                     administrative practices ruled to be unlawful in the
                                                                     judgment and none of the proposals either to take
Ð declare that the rejection of the applicants' complaint            practical steps or to offer a financial settlement are based
    whereby the Commission and the Council failed to                 on the principles laid down in the judgment and the
    take any specific measures vis-aÁ-vis the applicants to          decisions of the Court. The applicants therefore submit
    implement the judgment of the Court in Joined Cases              that the failure of both the Commission and the Council
    T-177/94 and T-377/94 Altmann and Others v.                      to act constitutes a clear breach of Article 149 of the
    Commission of 12 December 1996 is unlawful and a                 Euratom Treaty and a service-related fault sounding in
    service-related fault for which the Commission and the           damages to the extent that such failure has caused the
    Council are liable;                                              applicants material or non-material loss.
Ð order the Commission and the Council to pay the                    (1) Altmann and Others v. Commission [1996] ECR II-2041.
    applicants:
    (a) the individual sums set out in the schedule,
         modified to the date of judgment; and, in the
         event that no order is made in respect of the
         applicants' liability for UK taxation on such
         sums,                                                       Action brought on 30 March 1998 by Anne Ruth Burrill
                                                                     and Alberto Noriega Guerra against the Commission of
    (b) such further sum as may represent:                                            the European Communities
                                                                                (Case T-51/98)
         (i)   the sum payable by the applicants in respect
               of UK taxation, the quantification of such                                    (98/C 184/22)
               sums being adjourned pending negotiation
               between the parties and the UK tax
               authorities; alternatively                                           (Language of the case: French)
         (ii) the actual liabilities for which the applicants
               are liable to the UK tax authorities, the
               Council and the Commission being liable to            An action against the Commission of the European
               indemnify the applicants in respect of any            Communities was brought before the Court of First
               such contingent liability; and                        Instance of the European Communities on 30 March 1998
                                                                     by Anne Ruth Burrill and Alberto Noriega Guerra
                                                                     residing in RosieÁres (Belgium), represented by Georges
Ð Order the Commission and the Council to bear the                   Vandersanden, Laure Levi and Marie-Ange Marx, of the
    costs of these proceedings.                                      Brussels Bar, with an address for service in Luxembourg at


title: Case C-238/02: Reference for a preliminary ruling by the Bundesfinanzhof by order of that Court of 7 May 2002 in the case of Hauptzollamt Hamburg-Hafen against Kazimieras Viluckas

text:
C 202/12               EN                   Official Journal of the European Communities                                       24.8.2002
Reference for a preliminary ruling by the College van                  Reference for a preliminary ruling by the Bundesfinanz-
Beroep by order of 12 June 2002 in the case of J. Slob                 hof by order of that Court of 7 May 2002 in the case of
                     v Productschap Zuivel                             Hauptzollamt Hamburg-Hafen against Kazimieras Viluck-
                                                                                as
                         (Case C-236/02)
                                                                                (Case C-238/02)
                         (2002/C 202/15)
                                                                                (2002/C 202/17)
Reference has been made to the Court of Justice of the
European Communities by order of 12 June 2002 by the
College van Beroep, which was received at the Court Registry           Reference has been made to the Court of Justice of the
on 27 June 2002, for a preliminary ruling in the case of J. Slob       European Communities by order of the Bundesfinanzhof
v Productschap Zuivel on the following question:                       (Federal Finance Court) of 7 May 2002, received at the Court
                                                                       Registry on 28 June 2002, for a preliminary ruling in the case
Can it be inferred from Article 7(1)(f) of Regulation (EEC)            of Hauptzollamt Hamburg-Hafen against Kazimieras Viluckas
No 536/93 (1) that the producer is obliged to maintain                 on the following questions:
accounts recording among other things, the availability, pro-
duction, storage, use, processing and destruction of milk and/         1.   Is Article 4(19) of the Customs Code to be interpreted as
or milk products on his holding, such ‘stock accounts’ also                 meaning that the notification to the customs authorities
being required to contain declarations of the quantity per                  of the arrival at a particular place of goods introduced into
month and per product of the milk and/or milk products sold,                the Community customs territory must refer expressly
or does that provision only lay down an obligation to record                to goods which are hidden or concealed in secret
those data as to sales?                                                     compartments?
(1) OJ 1993 L 57, p. 12.
                                                                       2.   If Question 1 is answered affirmatively:
                                                                            Is Article 40 of the Customs Code to be interpreted as
                                                                            meaning that such notification must also be made by the
                                                                            driver of a lorry, or a co-driver also entitled to drive it,
                                                                            who was not aware and should not have been aware of
                                                                            the goods hidden or concealed in the lorry?
Reference for a preliminary ruling by the Bundesge-
richtshof by order of that Court of 2 May 2002 in the case             3.   If Question 2 is answered affirmatively:
of Freiburger Kommunalbauten GmbH Baugesellschaft &
  Co. KG against Ulrike Hofstetter and Ludger Hofstetter                    Is the identity of the person who actually gave the
                                                                            (incomplete) notification a material factor in determining
                         (Case C-237/02)                                    the customs debtor under the first indent of Article 202(3)
                                                                            of the Customs Code?
                         (2002/C 202/16)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshof
(Federal Court of Justice) of 2 May 2002, received at the Court
Registry on 27 June 2002, for a preliminary ruling in the case         Reference for a preliminary ruling by the Rechtbank van
of Freiburger Kommunalbauten GmbH Baugesellschaft & Co.                Koophandel, Hasselt, by order of that Court of 28 June
KG against Ulrike Hofstetter and Ludger Hofstetter on the              2002 in the case of Douwe Egberts NV against 1. Westrom
following question:                                                    Pharma NV and 2. Souranis Christophe and in the case of
                                                                              NV Douwe Egberts against BVBA Fics-World
Is a term, contained in a seller’s standard business conditions,
which provides that the purchaser of a building which is to be
                                                                                (Case C-239/02)
constructed is to pay the total price for that building,
irrespective of whether there has been any progress in the
construction, provided that the seller has previously provided                                  (2002/C 202/18)
him with a guarantee from a credit institution securing any
monetary claims the purchaser may have in respect of defective
performance or non-performance of the contract, to be                  Reference has been made to the Court of Justice of the
regarded as unfair within the meaning of Article 3(1) of               European Communities by order of the Rechtbank van
Council Directive 93/13/EEC (1) of 5 April 1993 on unfair              Koophandel (Commercial Court), Hasselt, of 28 June 2002,
terms in consumer contracts?                                           received at the Court Registry on 1st July 2002, for a
                                                                       preliminary ruling in the case of Douwe Egberts NV against
(1) OJ L 95 of 21.4.1993, p. 29.                                       1. Westrom Pharma NV and 2. Souranis Christophe and in the
                                                                       case of NV Douwe Egberts against BVBA Fics-World on the
                                                                       following questions:


title: Case C-339/10: Reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 7 July 2010 — Krasimir Asparuhov Estov, Monika Lucien Ivanova and KEMKO INTERNATIONAL EAD v Ministerski savet na Republika Bulgaria

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/16

         Reference for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 7 July 2010 — Krasimir Asparuhov Estov, Monika Lucien Ivanova and ‘KEMKO INTERNATIONAL’ EAD v Ministerski savet na Republika Bulgaria
   (Case C-339/10)
   ()
   2011/C 13/26
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad

      Parties to the main proceedings

      Applicants: Krasimir Asparuhov Estov, Monika Lyusien Ivanova and ‘KEMKO INTERNATIONAL’ EAD

      Defendant: Ministerski savet na Republika Bulgaria
   By order of 12 November 2010, the Court of Justice (Eight Chamber) held that it clearly has no jurisdiction to rule on the questions referred by the Varhoven administrativen sad (Bulgaria).


title: Case T-502/15: Action brought on 1 September 2015 — Spain v Commission

text:
               19.10.2015

               EN

               Official Journal of the European Union

               C 346/36

         Action brought on 1 September 2015 — Spain v Commission
   (Case T-502/15)
   (2015/C 346/41)
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented by: L. Banciella Rodríguez-Miñón)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the court should:

               —

               annul in part the Commission Implementing Decision of 22 June 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agriculture Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as it concerns the Kingdom of Spain;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law.
   In relation to the Catalan Autonomous Community:

               1.

               The imposition of a flat-rate correction in the amount of EUR 609 337,80 and the method of calculation used, were contrary to Article 31(2) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the Common Agricultural Policy, the guidelines set out in Commission document No VI/5330/97 of 23 December 1997 (Guidelines for the calculation of financial consequences when preparing the decision regarding the clearance of the accounts of the EAGFF Guarantee section) and to the document AGRI-64043-2005 (Commission Communication on how the Commission intends in the context of the EAGGF-Guarantee clearance procedure to handle shortcomings in the context of cross-compliance control systems implemented by Member States) in so far as it is inappropriate to apply a flat-rate assessment, since the Kingdom of Spain had provided a specific evaluation of the actual risks for the fund. The implementing measure adopted by the Commission was not only incorrect, but also disproportionate and unjustified.

               2.

               The addition of a specific correction in the amount of EUR 609 337,80 to the general flat-rate correction of 2 % and the method of calculation are contrary to Article 31(2) of Council Regulation (EC) No 1290/2005 and to the Commission documents on the guidelines for the calculation of financial corrections, because it is not appropriate to use two methods of calculation at the same time for the same infringement. To proceed in that way is not only legally incoherent but also disproportionate and unjustified.

               3.

               The correction imposed for the 2010 application year, the 2011/2012 financial year, infringes Article 31(4) of Regulation (EC) No 1290/2005, implies failure to observe the principle of sincere cooperation and infringes the rights of defence of the Kingdom of Spain in so far as the defendant has unduly extended the financial correction to cover the period subsequent to the 24 months preceding the Communication, even though the shortcomings had already been rectified by the Kingdom of Spain.

         In relation to the Autonomous Community of the Canaries on the basis of the following plea in law:

               4.

               The correction imposed at a flat-rate on the sum of EUR 1 689 689,03 and the method of calculation used are contrary to Article 31(2) of Council Regulation (EC) No 1290/2005 and the guidelines set out in Commission document AGRI/D/40474/2010-REV 1.


title: Case C-479/13: Judgment of the Court (Fourth Chamber) of 5 March 2015 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Taxation — VAT — Application of a reduced rate — Supply of digital books or electronic books)

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/8

         Judgment of the Court (Fourth Chamber) of 5 March 2015 — European Commission v French Republic
   (Case C-479/13) (1)

   ((Failure of a Member State to fulfil obligations - Taxation - VAT - Application of a reduced rate - Supply of digital books or electronic books))
   (2015/C 138/09)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: C. Soulay and F. Dintilhac, acting as Agents)

      Defendant: French Republic (represented by: D. Colas and J.-S. Pilczer, acting as Agents)

      Intervener in support of the defendant: Kingdom of Belgium (represented by: M. Jacobs and J.-C. Halleux, acting as Agents)

      Operative part of the judgment

   The Court:

               (1)

               Declares that, by applying a reduced rate of value added tax to the supply of digital or electronic books, the French Republic has failed to fulfil its obligations under Articles 96 and 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax as amended by Council Directive 2010/88/EU of 7 December 2010, read in conjunction with Annexes II and III to that directive and Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC;

               (2)

               Orders the French Republic to bear its own costs and to pay those incurred by the European Commission;

               (3)

               Orders the Kingdom of Belgium to bear its own costs.

      (1)  OJ C 344, 23.11.2013.


title: Judgment of the Court (Fourth Chamber) of 28 October 2004 in Case C-497/03 Commission of the European Communities v Republic of Austria (Failure to fulfil obligations — Article 28 EC — Measures having equivalent effect — Sale of food supplements by mail order — Prohibition)

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/17

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 28 October 2004
   in Case C-497/03 Commission of the European Communities v Republic of Austria (1)

   (Failure to fulfil obligations - Article 28 EC - Measures having equivalent effect - Sale of food supplements by mail order - Prohibition)
   (2005/C 6/31)
   Language of the case: German
   In Case C-497/03 Commission of the European Communities (Agents: J.C. Schieferer and B. Schima) v Republic of Austria (Agent: E. Riedl) — action under Article 226 EC for failure to fulfil obligations, brought on 24 November 2003 — the Court (Fourth Chamber), composed of: K. Lenaerts, President of the Chamber, J.N. Cunha Rodrigues and M. Ilešič (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

               1.

               Declares that, by prohibiting under Paragraph 50(2) of the Gewerbeordnung the sale of food supplements by mail order, the Republic of Austria has failed to fulfil its obligations under Article 28 EC;

               2.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 21 of 24.1.2004.


title: Case C-61/06: Action brought on  3 February 2006  by the Commission of the European Communities against the Italian Republic

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/13

         Action brought on 3 February 2006 by the Commission of the European Communities against the Italian Republic
   (Case C-61/06)
   (2006/C 86/24)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 3 February 2006 by the Commission of the European Communities, represented by B. Schima and D. Recchia, acting as Agents.
   The Commission claims that the Court should:

               1.

               declare that by failing to submit its national annual report on the promotion of biofuels before 1 July 2004, the Italian Republic has failed to fulfil its obligations under Article 4(1) of Directive 2003/30/EC (1) of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport;

               2.

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The report referred to in Article 4(1) of the directive should have been sent to the Commission before 1 July 2004. To date, the Commission has not received any information from the Italian authorities.
   The Commission therefore maintains that as matters now stand Italy has not communicated the report on the promotion of the use of biofuels and other renewable fuels for transport required under Article 4(1) of the directive.

      (1)  OJ L 123, p. 42.


title: ORDER OF THE COURT OF FIRST INSTANCE of 24 June 1998 in Case T-596/97: Dalmine SpA v. Commission of the European Communities (Action for annulment - Competition law - Decision requiring the supply of information - Periodic penalty payments - Notification - Manifest inadmissibility)

text:
C 312/12              EN                  Official Journal of the European Communities                                  10.10.98
of: V. Tiili, President, C. P. BrieÈt and A. Potocki, Judges;        service in Luxembourg at the Chambers of Elvinger, Hoss
H. Jung, Registrar, made an order on 6 July 1998, the                et Prussen, 2 Place Winston Churchill v. Commission of
operative part of which is as follows:                               the European Communities (Agents: Kirsi Leivo and
                                                                     Richard Lyal) Ð application for annulment of Articles 2
1. The application is dismissed.                                     and 4 of Commission Decision C(97) 3036 of 6 October
                                                                     1997 relating to a procedure pursuant to Article 11(5) of
2. The applicant shall pay the costs.                                Council Regulation No 17 (IV/35.860 Ð Steel tubes), Ð
                                                                     the Court of First Instance (Fourth Chamber), composed
(1) OJ C 7, 10.1.1998.
                                                                     of: P. Lindh, President, K. Lenaerts and J. D. Cooke,
                                                                     Judges, has given an order of 24 June 1998, in which:
                                                                     1. The application         is    dismissed  as    manifestly
                                                                         inadmissible.
               ORDER OF THE PRESIDENT
          OF THE COURT OF FIRST INSTANCE                             2. The applicant is ordered to pay the costs.
                       of 15 July 1998
                                                                     (1) OJ C 55, 20.2.1998.
in Case T-286/97 R: Anthony Goldstein v. Commission of
                  the European Communities
                    (No need to adjudicate)
                        (98/C 312/32)
               (Language of the case: English)                                      ORDER OF THE PRESIDENT
                                                                              OF THE COURT OF FIRST INSTANCE
In Case T-286/97 R: Anthony Goldstein, residing in                                           of 7 July 1998
London, represented by Raymond St John Murphy,
solicitor, 3 Kings Bench Walk, Inner Temple, London,                 in Case T-65/98 R, Van den Bergh Foods Ltd v.
against Commission of the European Communities Ð                              Commission of the European Communities
application for interim measures in connection with a                (Competition Ð Interlocutory proceedings Ð Intervention
complaint (IV/34.824 Ð Goldstein/GMC) against certain                       Ð Confidentiality Ð Suspension of execution)
anti-competitive practices, lodged by the applicant under
Article 3(2) of Council Regulation No 17 of 6 February                                       (98/C 312/34)
1962, First Regulation implementing Articles 85 and 86 of
the Treaty (OJ, English Special Edition 1959Ð1962, p. 87)
                                                                                (Language of the case: English)
Ð the President of the Court of First Instance made an
order on 15 July 1998, the operative part of which is as
follows:                                                             In Case T-65/98 R, Van den Bergh Foods Ltd, formerly
                                                                     HB Ice Cream Ltd, established in Dublin, represented by
1. There is no need to adjudicate on the application for             Malcolm Nicholson and Michael Rowe, solicitors, with an
     interim measures.                                               address for service in Luxembourg at the Chambers of
                                                                     Elvinger, Hoss & Prussen, 2 Place Winston Churchill, v.
2. The applicant shall bear his own costs.                           Commission of the European Communities (Agents: Barry
                                                                     Doherty and Wouter Wils) Ð application for suspension
                                                                     of execution of the Commission Decision of 11 March
                                                                     1998 relating to a proceeding under Articles 85 and 86 of
                                                                     the EC Treaty (Case Nos IV/34.073, IV/34.395 and IV/
                                                                     35.436 Ð Van den Bergh Foods Limited) Ð the President
     ORDER OF THE COURT OF FIRST INSTANCE                            of the Court of First Instance made an order on 7 July
                                                                     1998 in which he:
                       of 24 June 1998
in Case T-596/97: Dalmine SpA v. Commission of the
                                                                     1. grants leave to Master Foods Ltd and Treats Frozen
                   European Communities (1)
                                                                         Confectionery Ltd to intervene in Case T-65/98 R in
(Action for annulment Ð Competition law Ð Decision                       support of the forms of order sought by the defendant;
requiring the supply of information Ð Periodic penalty
    payments Ð Notification Ð Manifest inadmissibility)
                                                                     2. grants the requests for confidential treatment made by
                        (98/C 312/33)                                    Van den Bergh Foods Ltd, with respect to certain
                                                                         information contained in its application for suspension
               (Language of the case: English)                           of execution of the Commission Decision of 11 March
                                                                         1998 relating to a proceeding under Articles 85 and
In Case T-596/97: Dalmine SpA, established in Dalmine                    86 of the EC Treaty (Case Nos IV/34.073, IV/34.395
(Italy), represented by Fabrizio Arossa, of the Milan Bar,               and IV/35.436 Ð Van den Bergh Foods Limited), for
and Rachel Brandenburger, Solicitor, with an address for                 the purposes of the interlocutory proceedings;


title: Case C-41/17: Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 25 January 2017 — Isabel González Castro v Mutua Umivale, Prosegur España, S.L.

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/13

         Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 25 January 2017 — Isabel González Castro v Mutua Umivale, Prosegur España, S.L.
   (Case C-41/17)
   (2017/C 121/19)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Galicia

      Parties to the main proceedings

      Appellant: Isabel González Castro

      Respondents: Mutua Umivale, Prosegur España, S.L.

      Questions referred

               1.

               Has Article 7 of Directive 92/85/EEC (1) to be interpreted as meaning that the night work, which those workers referred to in Article 2, including workers who are breastfeeding, must not be obliged to perform, includes not only work performed entirely during the night, but also shift work when, as in this case, some of those shifts are worked at night?

               2.

               In proceedings in which the existence of a situation of risk for a worker who is breastfeeding is at issue, do the special rules on burden of proof in Article 19(1) of Directive 2006/54/EC, (2) transposed into Spanish law by, inter alia, Article 96(1) of Ley 36/2011 (Law 36/2011), apply in conjunction with the requirements set out in Article 5 of Directive 92/85/EEC, transposed into Spanish law by Article 26 of the Ley de Prevención de Riesgos Laborales (Law on the Prevention of Occupational Risks), relating to the granting of leave to a breastfeeding worker and, as the case may be, payment of the relevant allowance under national legislation by virtue of Article 11(1) of Directive 92/85/EEC?

               3.

               In proceedings in which the existence of a risk during breastfeeding giving entitlement to leave, as provided for in Article 5 of Directive 92/85/EEC and transposed into Spanish law by Article 26 of the Law on the Prevention of Occupational Risks, is at issue, can Article 19(1) of Directive 2006/54/EC be interpreted as meaning that the following are ‘facts from which it may be presumed that there has been direct or indirect discrimination’ in relation to a breastfeeding worker: (1) the fact that the worker does shift work as a security guard with some shifts being worked at night and alone; (2) in addition, that the work entails doing rounds and, where necessary, dealing with emergencies (criminal behaviour, fire and other incidents); and (3) furthermore that there is no evidence that the workplace has anywhere suitable for breastfeeding or, as the case may be, for expressing breast milk?

               4.

               In proceedings in which the existence of a risk during breastfeeding giving entitlement to leave is at issue, when ‘facts from which it may be presumed that there has been direct or indirect discrimination’ have been established in accordance with Article 19(1) of Directive 2006/54/EC in conjunction with Article 5 of Directive 92/85/EEC, transposed into Spanish law by Article 26 of the Law on the Prevention of Occupational Risks, can a breastfeeding worker be required to demonstrate, in order to be granted leave in accordance with the domestic legislation transposing Article 5(2) and (3)of Directive 92/85/EEC, that the adjustment of her working conditions and/or working hours is not technically and/or objectively feasible, or cannot reasonably be required and that moving her to another job is not technically and/or objectively feasible or cannot reasonably be required or are these matters for the respondents (the employer and the mutual insurance company providing the social security benefit associated with the suspension of the contract of employment) to prove?

      (1)  Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) . OJ 1992 L 348, p. 1

      (2)  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). OJ 2006 L 204, p. 23


title: Case C-524/03: Action brought on 16 December 2003 by the Commission of the European Communities against G. & E. Gianniotis EPE, trading as "Nosokomio Agia Eleni"

text:
C 59/6                  EN                        Official Journal of the European Union                                        6.3.2004
Court taken into account that neither the former rules nor the            Action brought on 16 December 2003 by the Commission
new Regulations include a reference to audits. The audit                  of the European Communities against G. & E. Gianniotis
proposed by ECHO had a discriminatory character in so far as                         EPE, trading as ‘Nosokomio Agia Eleni’
there was no justification given for undertaking such an audit
once the German Foreign Office had confirmed the legal status
of IH as a charitable organisation.                                                                (Case C-524/03)
                                                                                (2004/C 59/10)
(1) OJ C 31, 8.2.2003, p. 21.
(2) of the Council, of 20 June 1996, concerning humanitarian aid (OJ
    L 163, 2.7.1996, p. 1).
                                                                          An action against G. &. E. Gianniotis EPE, trading as ‘Nosoko-
                                                                          mio Agia Eleni’ was brought before the Court of Justice of
                                                                          the European Communities on 16 December 2003 by the
                                                                          Commission of the European Communities, represented by
                                                                          Dimitri Triandafilou of its Legal Service, assisted by Nicolao
                                                                          Korogiannakis, of the Athens Bar, with an address for service
                                                                          in Luxembourg.
Action brought on 15 December 2003 by the Commission
of the European Communities against Biotrast AE, Anoni-
               mi Eteria Tekhnologion Aikhmis                             The applicant claims that the Court should order the defendant:
                                                                          (a)   to pay the amount of EUR 236 977,73, comprising the
                          (Case C-523/03)
                                                                                principal sum of EUR 212 010,17 and daily interest of
                                                                                EUR 24 697,76 from the date of each debit note until
                           (2004/C 59/09)                                       31 October 2003;
                                                                          (b) to pay interest in the amount of EUR 42,16 per day as
                                                                                from 31 October 2003 until payment in full of the debt;
An action against Biotrast AE, Anonomi Eteria Tekhnologion
Aikhmis, was brought before the Court of Justice of the                   (c)   to pay the costs.
European Communities on 15 December 2003 by the Com-
mission of the European Communities, represented by Dimitris
Triantafillou, of its Legal Service, and by Nikolaos Koroyian-
nakis, of the Athens Bar, with an address for service in                  Pleas in law and main arguments
Luxembourg. The applicant claims that the Court should:
                                                                          (a)   Liability to repay the amount unduly paid by the Com-
                                                                                mission;
order the defendant:
                                                                          (b) Date on which interest became payable.
(a)   to pay the amount of EUR 730 726,81, representing a
      capital sum of EUR 661 838,82 and daily interest of EUR
      68 887,99, from the date on which the debit note fell
      due with interest at 4,77 % until 31.12.2002 and 6,77 %
      from 11.2003;
(b) to pay interest in the amount of EUR 122,75 per day
      from 31.10.2003 until the debt is repaid in full;                   Action brought on 16 December 2003 by the Commission
                                                                          of the European Communities against the Italian Republic
(c)   to pay the costs.
                                                                                (Case C-525/03)
Pleas in law and main arguments                                                                     (2004/C 59/11)
(a)   There is an obligation to repay the amount unduly paid
      by the Commission.
                                                                          An action against the Italian Republic was brought before the
(b) The date on which interest became payable.                            Court of Justice of the European Communities on 16 December
                                                                          2003 by the Commission of the European Communities,
                                                                          represented by Klaus Wiedner and Claudio Loggi, acting as
                                                                          Agents.


title: Case C-171/05 P: Order of the Court of  23 February 2006  — Laurent Piau v Commission of the European Communities, Fédération Internationale de Football Association (FIFA) (Appeal — Freedom to provide services — Competition — Regulation of the activities of players' agents — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/3

         Order of the Court of 23 February 2006 — Laurent Piau v Commission of the European Communities, Fédération Internationale de Football Association (FIFA)
   (Case C-171/05 P) (1)

   (Appeal - Freedom to provide services - Competition - Regulation of the activities of players' agents - Appeal in part manifestly inadmissible and in part manifestly unfounded)
   (2006/C 154/06)
   Language of the case: French
   Parties

      Applicant: Laurent Piau (represented by: M. Fauconnet, lawyer)

      Other parties to the proceedings: Commission of the European Communities (represented by: A. Bouquet and O. Beynet, Agents), Fédération Internationale de Football Association (FIFA) (represented by: F. Louis and A. Vallery, lawyers)
   Re:
   Appeal brought against the judgment of the Court of First Instance (Fourth Chamber) of 26 January 2005 in Case T-193/03 Piau v Commission, in which the Court of First Instance dismissed the action for annulment of the Commission's decision of 15 April 2002 rejecting the complaint lodged by the applicant concerning the Fédération Internationale de Football Association's regulation governing the activities of players' agents
   Operative part of the order

               1.

               The appeal is dismissed;

               2.

               Mr Piau is ordered to pay the costs of the present proceedings.

      (1)   OJ C 155 25.06.2005


title: Case T-198/01: Action brought on 28 August 2001 by Technische Glaswerke Ilmenau GmbH against the Commission of the European Communities

text:
27.10.2001             EN                     Official Journal of the European Communities                                      C 303/25
the case under the present regulation. Thus the Commission               the applicant obtained three of the twelve production lines of
has distorted competition and discriminated between those                that company. A condition of the transfer of ownership was
undertakings able to satisfy the references laid down in the             the agreement by the German Federal State Thüringia to grant
new implementing regulation and the remaining undertakings.              an additional investment subsidy of DEM 4 000 000 in the
                                                                         framework of the ‘joint Federal Government/Länder scheme
                                                                         for improving regional economic structures’, whereby the
(1) Commission Regulation (EC) No 896/2001 of 7 May 2001                 burden on the applicant owing to the purchase price would be
    laying down detailed rules for applying Council Regulation (EEC)     reduced by that amount. The promise was not fulfilled.
    No 404/93 as regards the arrangements for importing bananas
    into the Community (OJ L 126, 08/5/2001, p. 6).
(2) Council Regulation (EEC) No 404/93 of 13 February 1993 on the
    common organization of the market in bananas (OJ L 47,
    25/2/1993, p. 1).
                                                                         Subsequently the applicant acquired a fourth production
                                                                         line. In February 1998, because of the applicant’s liquidity
                                                                         problems, the German Treuhandanstalt waived payment of
                                                                         DEM 4 000 000 of the purchase price under the 1994
                                                                         contract. In December 1998 Germany notified the Com-
                                                                         mission of various measures whose aim was the financial
                                                                         consolidation and long-term profitability of the applicant, and
Action brought on 28 August 2001 by Technische Glas-                     included the purchase price waiver, which the Commission
werke Ilmenau GmbH against the Commission of the                         has declared incompatible with the common market in the
                    European Communities                                 contested decision.
                         (Case T-198/01)
                         (2001/C 303/40)                                 The applicant claims that the purchase price waiver was not
                                                                         aid. The purpose of the purchase price waiver was to put the
                  (Language of the case: German)                         applicant in the position it would have been in if the full
                                                                         amount promised had been paid. That promise founded a
                                                                         claim for payment and a legitimate expectation. Moreover, it
                                                                         would not have infringed the aid rules if the Treuhandanstalt
An action against the Commission of the European Communi-
                                                                         had agreed with the applicant in 1994 on a purchase price
ties was brought before the Court of First Instance of the
                                                                         that was lower by DEM 4 000 000. The argument that the loss
European Communities on 28 August 2001 by Technische
                                                                         of the additional aid of DEM 4 000 000 is legally irrelevant,
Glaswerke Ilmenau GmbH, Ilmenau (Germany), represented by
                                                                         because the Treuhandanstalt and the Federal State of Thüringia
G. Schohe, lawyer, with an address for service in Luxembourg.
                                                                         are different legal persons, is not a sound one.
The applicant claims that the Court should:
—     Annul the Commission Decision of 12 June 2001 on
      German State aid to Technische Glaswerke Ilmenau                   Moreover, the applicant claims that the Commission wrongly
      GmbH, Germany — K(2001) 1549;                                      applied the private investor test. It ought to have examined
                                                                         whether the purchase price waiver could have led in the long-
—     Order the defendant to pay the costs of the proceedings.           term to the applicant’s profitability. Furthermore, the purchase
                                                                         price waiver has not led to a further, additional loss of State
                                                                         assets, but is merely a method chosen by Germany to fulfil its
                                                                         1994 promise.
Pleas in law and main arguments
The action concerns the Commission’s decision declaring State
aid of DEM 4 000 000 by Germany to the applicant to be                   In the alternative, the applicant submits that the determination
incompatible with the common market.                                     of the amount of the aid element is incorrect. The Commission
                                                                         failed to determine the amount by reference to positive
                                                                         findings of fact. Germany has also avoided losses which would
The application states that the Werk für Technisches Glas                have arisen without the purchase price waiver, because the
Ilmenau, a State-owned company, was the centre of glass                  applicant would have become bankrupt if the Treuhandanstalt
manufacture in the GDR and after unification of the Federal              had claimed the full amount of the purchase price. Further-
Republic of Germany and the German Democratic Republic                   more, the Commission estimated the amount of the aid
was converted into the Ilmenauer Glaswerke GmbH. In 1994                 element at a sum which contradicts its own findings.
 ---pagebreak--- C 303/26                EN                     Official Journal of the European Communities                                      27.10.2001
The applicant claims that the Commission, when exercising its                   continue with a view to determining the quantum of the
discretion, did not take account of the fact that another firm                  damage, and order the Community in any event to pay
obtains or strengthens a dominant position in specific areas of                 the damages provisionally quantified and yet to be
glass manufacture if the applicant disappears from the market.                  quantified, alternatively order the Community to pay
That is a manifest error of appraisal and therefore an infringe-                such compensation as the Court may deem fair and
ment of Article 87(3)(c) EC. Moreover, the Commission took                      equitable, together with interest thereon from the date of
a restructuring plan as a basis which it knew to be no longer                   the application until payment in full;
current.
                                                                          (3) order the Commission to pay the costs.
Finally, the applicant complains of infringement of the appli-
cant’s right to a fair hearing, of its rights of defence, of the
principle of good administration, of the duty to state reasons
(Article 253 EC) and of Article 20(1) of Regulation                       Pleas in law and main arguments
No 659/1999 (1).
                                                                          The applicant has a sugar refinery in Curaçao which is used
(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying           for processing C sugar from the European Community. That
    down detailed rules for the application of Article 93 of the EC       sugar obtains OCT origin under the EC/OCT cumulation of
    Treaty (OJ L 83, p. 1).                                               origin rule, and can be imported into the Community duty-
                                                                          free.
                                                                          By Regulation 1325/2001 of 29 June 2001 (1) (the Fifth
                                                                          Safeguard Measure), amended by Commission Regulation
                                                                          1476/2001 of 18 July 2001 (2), a quota of 4 848 tonnes was
                                                                          fixed for the period 1 July to 1 December 2001.
Action brought on 30 August 2001 by Free Trade Foods
NV against the Commission of the European Communities                     The applicant puts forward the following pleas in law in
                                                                          support of its claims:
                           (Case T-202/01)
                                                                          —     infringement of Article 109 of the OCT decision;
                          (2001/C 303/41)
                                                                          —     infringement of the order of preference established by the
                                                                                EC Treaty in favour of OCT goods;
                    (Language of the case: Dutch)
                                                                          —     infringement of Article 7(5) of the Agreement on Safe-
                                                                                guards concluded within the framework of the WTO, and
An action against the Commission of the European Communi-                       of Article 33(7) EC;
ties was brought before the Court of First Instance of the
European Communities on 30 August 2001 by Free Trade                      —     illegality of Regulation 2553/97, the provisions of which
Foods NV, established in Curaçao (Dutch West Indies), rep-                      have been declared applicable by the contested regulation.
resented by M.M. Slotboom and N.J. Helder, lawyers.
The applicant claims that the Court should:                               (1) Commission Regulation (EC) No 1325/2001 of 29 June 2001
                                                                              providing for the continued application of safeguard measures
                                                                              with regard to imports of sugar sector products with EC/OCT
(1) annul Regulation 1325/2001 of 29 June 2001 introdu-                       originating status from the overseas countries and territories for
      cing safeguard measures for imports from the overseas                   the period 1 July to 1 December 2001 (OJ L 177 of 30 June 2001,
      countries and territories of sugar sector products with                 p. 57).
      EC/OCT cumulation of origin;                                        (2) Commission Regulation (EC) No 1476/2001 of 18 July 2001
                                                                              amending Regulation (EC) No 1325/2001 as regards safeguard
                                                                              measures with regard to imports from the overseas countries
(2) rule that the Community is liable for the damage suffered                 and territories of mixtures of sugar and cocoa with ACP/OCT
      by the applicant as a result of the Fifth Safeguard Measure,            originating status for the period 1 July to 1 December 2001 (OJ
      and that the parties should seek to reach agreement on                  L 195 of 19 July 2001, p. 29).
      the extent of the damage suffered by the applicant, and
      order that, if no such agreement is reached within a time-
      limit to be specified by the Court, the proceedings are to


title: Case C-302/07: Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the VAT and Duties Tribunal, London (United Kingdom)) — J D Wetherspoon plc v The Commissioners for Her Majesty’s Revenue and Customs (First and Sixth VAT Directives — Principles of fiscal neutrality and proportionality — Rules on rounding of amounts of VAT — Methods and levels of rounding)

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/5

         Judgment of the Court (Fourth Chamber) of 5 March 2009 (reference for a preliminary ruling from the VAT and Duties Tribunal, London (United Kingdom)) — J D Wetherspoon plc v The Commissioners for Her Majesty’s Revenue and Customs
   (Case C-302/07) (1)

   (First and Sixth VAT Directives - Principles of fiscal neutrality and proportionality - Rules on rounding of amounts of VAT - Methods and levels of rounding)
   2009/C 102/06
   Language of the case: English

      Referring court

   VAT and Duties Tribunal, London

      Parties to the main proceedings

      Applicant: J D Wetherspoon plc

      Defendant: The Commissioners for Her Majesty’s Revenue and Customs

      Re:

   Reference for a preliminary ruling — VAT and Duties Tribunal, London –Interpretation of Articles 11A(1)(a), 12(3)(a) and 22(3)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) and the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967, p. 14) — Rules on the rounding of VAT amounts.

      Operative part of the judgment

               1.

               Community law, as it currently stands, contains no specific requirement concerning the method of rounding amounts of value added tax. In the absence of specific Community legislation, it is for Member States to decide on the rules and methods for rounding amounts of value added tax, although those States must, when so deciding, observe the principles underpinning the common system of that tax, particularly the principles of fiscal neutrality and proportionality. In particular, Community law, first, does not preclude the application of a national rule which requires an amount of value added tax to be rounded up whenever the fraction of the smallest unit of currency concerned is at or above 0.50, and, second, does not require that taxable persons be allowed to round down any amount of value added tax which includes a fraction of the smallest unit of national currency.

               2.

               In a sale at a price inclusive of value added tax, in the absence of specific Community legislation, each Member State is obliged to determine, within the limits of Community law, in particular in compliance with the principles of fiscal neutrality and proportionality, the level at which the rounding of an amount of value added tax which includes a fraction of the smallest unit of national currency may or must occur.

               3.

               In view of the fact that traders who calculate the price of their sales of goods and services inclusive of value added tax are in a different situation to those effecting that same type of transactions at prices exclusive of value added tax, the former cannot invoke the principle of fiscal neutrality in order to claim the right also to round down, at line level and basket level, the amounts of value added tax due.

      (1)  OJ C 211, 8.9.2007.


title: Case T-262/14: Action brought on 24 April 2014 — Bionecs/OHMI — Fidia Farmaceutici (BIONECS)

text:
               21.7.2014

               EN

               Official Journal of the European Union

               C 235/25

         Action brought on 24 April 2014 — Bionecs/OHMI — Fidia Farmaceutici (BIONECS)
   (Case T-262/14)
   2014/C 235/35
   Language in which the application was lodged: English

      Parties

      Applicant: Bionecs GmbH (Munich, Germany) (represented by: M. Knitter, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Fidia Farmaceutici SpA (Abano Terme, Italy)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 February 2014 given in Case R 1179/2013-1;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘BIONECS’ for goods and services in classes 5, 29 and 35 — Community trade mark application No 1 0 6 50  638

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: The word mark ‘BIONECT’ for goods in class 5 registered as international trade mark under the number 7 15  915

      Decision of the Opposition Division: Upheld the opposition in part

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) CTMR


title: Case T-626/16 R: Order of the President of the General Court of 16 February 2017 — Troszczynski v Parliament (Interim measures — Member of the European Parliament — Recovery by offsetting of allowances paid in the context of the reimbursement of parliamentary assistance expenses — Application for suspension of operation — Lack of urgency)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/33

         Order of the President of the General Court of 16 February 2017 — Troszczynski v Parliament
   (Case T-626/16 R)
   ((Interim measures - Member of the European Parliament - Recovery by offsetting of allowances paid in the context of the reimbursement of parliamentary assistance expenses - Application for suspension of operation - Lack of urgency))
   (2017/C 121/49)
   Language of the case: French

      Parties

      Applicant: Mylène Troszczynski (Noyon, France) (represented by: M. Ceccaldi, lawyer)

      Defendant: European Parliament (represented by: G. Corstens and S. Alonso de León, acting as Agents)

      Re:

   Application under Articles 278 and 279 TFEU seeking the suspension of operation of the decision of the Secretary General of the European Parliament of 23 June 2016 concerning the recovery from the applicant of EUR 56 554 and of debit note No 2016-888 issued pursuant to that decision

      Operative part of the order

               1.

               The application for interim measures is rejected.

               2.

               The costs are reserved.


title: Judgment of the Court of 20 November 2001 in Case C-268/99 (reference for a preliminary ruling from the Arrondissementsrechtbank te 's-Gravenhage): Aldona Malgorzata Jany and Others v Staatssecretaris van Justitie (External relations — Association agreements between the Communities and Poland and between the Communities and the Czech Republic — Freedom of establishment — "Economic activities" — Whether or not they include the activity of prostitution)

text:
C 3/8                     EN                      Official Journal of the European Communities                                           5.1.2002
      and proper form, a new application for establishment on the            Member States, of the one part, and the Czech Republic, of
      basis of that Agreement by applying for an entry visa to the           the other part, concluded and approved on behalf of the
      competent authorities in his State of origin or, as the case may       Communities by Decision 94/910/ECSC, EC, Euratom of the
      be, in another country, provided that such measures do not have        Council and the Commission of 19 December 1994 (OJ 1994
      the effect of preventing such a national from having his situation     L 360, p. 1) — the Court, composed of: G.C. Rodrı́guez Iglesias,
      reviewed at a later date when he submits that new application.         President, P. Jann, F. Macken and N. Colneric (Presidents
                                                                             of Chambers), C. Gulmann, D.A.O. Edward, A. La Pergola
                                                                             (Rapporteur), L. Sevón, M. Wathelet, V. Skouris and
(1) OJ C 246 of 28.8.1999.
                                                                             C.W.A. Timmermans, Judges; P. Léger, Advocate General;
                                                                             L. Hewlett, Administrator, for the Registrar, has given a
                                                                             judgment on 20 November 2001, in which it has ruled:
                                                                             1.   Article 44(3) of the Europe Agreement establishing an associ-
                                                                                ation between the European Communities and their Member
                                                                                States, of the one part, and the Republic of Poland, of the other
                                                                                part, concluded and approved on behalf of the Communities by
                   JUDGMENT OF THE COURT                                          Decision 93/743/Euratom, ECSC, EC of the Council and the
                                                                                Commission of 13 December 1993, and Article 45(3) of the
                                                                                Europe Agreement establishing an association between the
                        of 20 November 2001                                       European Communities and their Member States, of the one
                                                                                part, and the Czech Republic, of the other part, concluded
                                                                                and approved on behalf of the Communities by Decision
in Case C-268/99 (reference for a preliminary ruling from                         94/910/ECSC, EC, Euratom of the Council and the Com-
the Arrondissementsrechtbank te ’s-Gravenhage): Aldona                            mission of 19 December 1994, must be construed as estab-
Malgorzata Jany and Others v Staatssecretaris van                                 lishing, within the respective scopes of application of those two
                                Justitie (1)                                      Agreements, a precise and unconditional principle which is
                                                                                sufficiently operational to be applied by a national court and
                                                                                which is therefore capable of governing the legal position of
(External relations — Association agreements between the                          individuals.
Communities and Poland and between the Communities
and the Czech Republic — Freedom of establishment —
‘Economic activities’ — Whether or not they include the                           The direct effect which those provisions must therefore be
                        activity of prostitution)                                 recognised as having means that Polish and Czech nationals
                                                                                relying on those provisions have the right to invoke them before
                                                                                the courts of the host Member State, notwithstanding the fact
                             (2002/C 3/11)                                        that the authorities of that State remain competent to apply to
                                                                                those nationals their own national laws and regulations
                                                                                regarding entry, stay and establishment, in accordance with
                      (Language of the case: Dutch)                               Article 58(1) of the above Agreement with the Republic of
                                                                                Poland and Article 59(1) of the above Agreement with the
                                                                                Czech Republic.
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)
                                                                             2.   The right of establishment, as defined by Article 44(3) of
                                                                                the above Agreement with the Republic of Poland and by
                                                                                Article 45(3) of the above Agreement with the Czech Republic,
In Case C-268/99: reference to the Court under Article 234 EC                     means that rights of entry and residence, as corollaries of the
from the Arrondissementsrechtbank te ’s-Gravenhage (District                      right of establishment, are conferred on Polish and Czech
Court, The Hague) (Netherlands) for a preliminary ruling in                       nationals wishing to pursue activities of an industrial or
the proceedings pending before that court between Aldona                          commercial character, activities of craftsmen or activities of the
Malgorzata Jany and Others and Staatssecretaris van Justitie —                    professions in a Member State.
on the interpretation of Articles 44 and 58 of the Europe
Agreement establishing an association between the European
Communities and their Member States, of the one part, and                         However, it follows from Article 58(1) of the above Agreement
the Republic of Poland, of the other part, concluded and                          with the Republic of Poland and from Article 59(1) of the
approved on behalf of the Communities by Decision                                 above Agreement with the Czech Republic that those rights of
93/743/Euratom, ECSC, EC of the Council and the Com-                              entry and residence are not absolute privileges, inasmuch as
mission of 13 December 1993 (OJ 1993 L 348, p. 1), and of                         their exercise may, in some circumstances, be limited by the
Articles 45 and 59 of the Europe Agreement establishing an                        rules of the host Member State governing the entry, stay and
association between the European Communities and their                            establishment of Polish and Czech nationals.
 ---pagebreak--- 5.1.2002                 EN                      Official Journal of the European Communities                                               C 3/9
3.   Articles 44(3) and 58(1) of the above Agreement with the                                JUDGMENT OF THE COURT
     Republic of Poland, read together, and Articles 45(3) and 59(1)
     of the above Agreement with the Czech Republic, read together,
     do not in principle preclude a system of prior control which                                 of 20 September 2001
     makes the issue by the competent immigration authorities of
     leave to enter and remain subject to the condition that the
     applicant must show that he genuinely intends to take up an
     activity as a self-employed person without at the same time            in Case C-383/99 P: Procter & Gamble Company v Office,
     entering into employment or having recourse to public funds,           for Harmonisation in the Internal Market (Trade Marks
     and that he possesses, from the outset, sufficient financial                                and Designs) (OHIM) (1)
     resources for carrying out the activity in question as a self-
     employed person and has reasonable chances of success.
                                                                            (Appeal — Admissibility — Community trade mark —
     Substantive requirements such as those set out in section 4.2.3        Regulation (EC) No 40/94 — Absolute ground for refusal
     of Chapter B 12 of the Netherlands Vreemdelingencirculaire             to register — Distinctive character — Marks consisting
     (Circular on Aliens), in particular the requirement that Polish        exclusively of descriptive signs or indications — ‘BABY-
     and Czech nationals wishing to become established in the host                                         DRY’)
     Member State must from the outset have sufficient financial
     resources to carry on the activity in question in a self-employed
     capacity, are designed precisely to enable the competent auth-                                    (2002/C 3/12)
     orities of that State to carry out such checks and are appropriate
     for ensuring that such an objective is attained.
                                                                                (Language of the case: French)
4.   Article 44(4)(a)(i) of the above Agreement with the Republic
     of Poland and Article 45(4)(a)(i) of the above Agreement with
     the Czech Republic must be construed to the effect that the
     ‘economic activities as self-employed persons’ referred to in those    (Provisional translation; the definitive translation will be published
     provisions have the same meaning and scope as the ‘activities                             in the European Court Reports)
     as self-employed persons’ referred to in Article 52 of the EC
     Treaty (now, after amendment, Article 43 EC).
     The activity of prostitution pursued in a self-employed capacity
     can be regarded as a service provided for remuneration and is          In Case C-383/99P: Procter and Gamble Company established
     therefore covered by both those expressions.                           in Cincinnatti (United States) represented by T. van Innis,
                                                                            avocat, appeal against the judgment of the Court of First
5.   Article 44 of the above Agreement with the Republic of Poland          Instance of the European Communities (Second Chamber) of
     and Article 45 of the above Agreement with the Czech Republic          8 July 1999 in Case T-163/98 Procter & Gamble v OHIM
     must be construed to the effect that prostitution is an economic       (‘BABY-DRY’) [1999] ECR II-2383, seeking to have that
     activity pursued by a self-employed person as referred to in those     judgment set aside in so far as the Court of First Instance ruled
     provisions, where it is established that it is being carried on by     that the First Board of Appeal of the Office for Harmonisation
     the person providing the service:                                      in the Internal Market (Trade Marks and Designs) had not
                                                                            infringed Article 7(1)(c) of Council Regulation (EC) No 40/94
                                                                            of 20 December 1993 on the Community trade mark (OJ
     —      outside any relationship of subordination concerning the        1994 L 11, p. 1) in adopting its decision of 31 July 1998 (Case
            choice of that activity, working conditions and conditions      R 35/1998-1), the other party to the proceedings being the
            of remuneration;                                                Office for Harmonisation in the Internal Market (Trade Marks
                                                                            and Designs) (Agents: O. Montalto and E. Joly) — the Court,
                                                                            composed of: G.C. Rodrı́guez Iglesias, President, C. Gulmann,
     —      under that person’s own responsibility; and                     M. Wathelet and V. Skouris (Presidents of Chambers),
                                                                            J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen,
     —      in return for remuneration paid to that person directly         F. Macken, N. Colneric and S. von Bahr, Judges, F.G. Jacobs,
            and in full.                                                    Advocate General; D. Louterman-Hubeau for the Registrar,
                                                                            gave a judgment on 20 September 2001, in which it:
     It is for the national court to determine in each case, in the light
     of the evidence adduced before it, whether those conditions are
     satisfied.                                                             1.    Annuls the judgment of the Court of First Instance of 8 July
                                                                                1999 in Case T-163/98 Procter & Gamble v OHIM (‘BABY-
                                                                                DRY’), in so far as it found that the First Board of Appeal of
                                                                                the Office for Harmonisation in the Internal Market (Trade
(1) OJ C 265 of 18.9.1999.                                                        Marks and Designs) did not infringe Article 7(1)(c) of Council
                                                                                Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                                Community trade mark in adopting its decision of 31 July
                                                                                1998 (Case R 35/1998-1);


10.6.2000               EN                     Official Journal of the European Communities                                   C 163/35
Action brought on 26 April 2000 by Ramondı́n S.A and                             Removal from the register of Case T-179/96 (1)
Ramondı́n Cápsulas S.A. against the Commission of the
                      European Communities                                                         (2000/C 163/70)
                          (Case T-103/00)                                                    (Language of the case: Dutch)
                                                                          By order of 17 December 1999, the President of the First
                                                                          Chamber of the Court of First Instance of the European
                          (2000/C 163/69)                                 Communities has ordered the removal from the register of
                                                                          Case T-179/96: J. Antonissen v Council of the European Union
                                                                          and Commission of the European Communities.
                    (Language of the case: Spanish)                       (1) OJ C 9 of 11.1.1997.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 26 April 2000 by Ramondı́n S.A,
established in Logroño, Spain, and by Ramondı́n Cápsulas S.A.
established in Alava, Spain, represented by Javier Lazcano-                      Removal from the register of Case T-316/97 (1)
Iturburu Ayestaran, lawyer.
                                                                                (2000/C 163/71)
The applicant claims that the Court should:                                                (Language of the case: Portuguese)
— annul the Commission’s decision of 22 December 1999                     By order of 14 December 1999, the President of the Third
     inasmuch as it declares the fiscal measures provided for in          Chamber of the Court of First Instance of the European
     Normas Forales de Alava Nos 22/1994 and 24/1996 to be                Communities has ordered the removal from the register of
     incompatible with the common market and requires the                 Case T-316/97: Hermı́nia F. dos Santos Morais Antas v Council
     Spanish State to effect recovery in respect thereof;                 of the European Union and Commission of the European
                                                                          Communities.
— order the Commission to pay all the costs.                              (1) OJ C 166 of 30.5.1998.
Pleas in law and main arguments
                                                                          Removal from the register of Case T-509/97 to T-517/97 (1)
The pleas in law and main arguments are similar to those put
forward in Case T-127/99 Diputación Foral de Alava v
Commission (1).                                                                                (2000/C 163/72)
                                                                                (Language of the case: Portuguese)
It is alleged, in particular, that the Commission has misused its
powers in alleging the existence of State aid with a view to              By order of 14 December 1999, the President of the Third
achieving the objective of fiscal harmonisation.                          Chamber, of the Court of First Instance of the European
                                                                          Communities has ordered the removal from the register of
                                                                          Case T-509/97 to T-517/97: Maria de Lurdes Esteves Afonso
                                                                          and Others v Council of the European Union and Commission
(1) OJ C 226 of 7.8.1999, p. 41.                                          of the European Communities.
                                                                          (1) OJ C 166 of 30.5.1998.


title: Case T-293/02: Action brought on 23 September 2002 by Eric Vranckx against Commission of the European Communities

text:
C 289/34               EN                   Official Journal of the European Communities                                   23.11.2002
The applicant claims that the Court should:                            The applicant also alleges a breach of the requirement to state
                                                                       reasons.
—     annul Articles 1, 2 and 5 of the Commission Decision of
      2 July 2002 concerning aid granted by Spain to the               (1 ) OJ L 329 of 30.12.1993, p. 12.
      undertaking González y Díez SA for the years 1998,               (2 ) OJ L 83 of 27.3.1999, p. 1.
      2000 and 2001; and
—     order the Commission to pay the costs.
                                                                       Action brought on 23 September 2002 by Eric Vranckx
                                                                            against Commission of the European Communities
Pleas in law and main arguments
                                                                                (Case T-293/02)
Pursuant to Article 1 of the contested Decision, the defendant                                  (2002/C 289/63)
institution found incompatible with the common market part
of the State aid granted to the applicant by the Spanish                                   (Language of the case: French)
authorities in 1998, 2000 and 2001, totalling EUR
5 113 254,96, to cover exceptional costs arising from modern-
isation, rationalisation and restructuring, in accordance with
Article 5 of Decision No 3632/93/ECSC of 28 December
                                                                       An action against the Commission of the European Communi-
1993 establishing Community rules for State aid to the coal
                                                                       ties was brought before the Court of First Instance of the
industry ( 1).
                                                                       European Communities on 23 September 2002 by Eric
                                                                       Vranckx, residing in Brussels, represented by Albert Coolen,
                                                                       Jean-Noël Louis and Etienne Marchal, lawyers, with an address
                                                                       for service in Luxembourg.
In support of the form of order sought, the applicant claims:
                                                                       The applicant claims that the Court should:
—     fundamental procedural irregularities, contrary to Articles
      88 of the ESCS Treaty and 4(4) of Council Regulation             —     annul the decision of the Selection Board in Competition
      (EC) No 659/1999 of 22 March 1999 laying down                          COM/B/1/00 in so far as the oral test marks awarded to
      detailed rules for the application of Article 93 (now 88)              the applicant are concerned;
      of the EC Treaty (2), by failing to publish in the Official
      Journal the Commission’s decision to initiate the formal
                                                                       —     order the defendant to pay the costs.
      investigation procedure;
—     numerous manifest errors of assessment, in that the
      Commission based the contested decision on facts which           Pleas in law and main arguments
      are not relevant to the case in question, such as the
      conditions on which the applicant was acquired by Mina
      la Camocha, and ordered the recovery of an amount                The applicant participated in Competition COM/B/1/00. He
      higher than that granted to the applicant. The Com-              contests the failure to include him on the reserve list for
      mission also made an error of fact in considering that the       assistants in the field of information technology and telecom-
      amount of the aid granted for exceptional costs arising          munications.
      from restructuring for the year 2001 was
      ESP 393 971,600, and in failing to take account of certain
      exceptional costs arising from restructuring under the aid       In support of his arguments, the applicant alleges:
      granted in 1998, 2000 and 2001;
                                                                       —     breach of the duty to provide reasons;
—     breach of the principle of protection of legitimate expec-       —     manifest error of assessment;
      tations, in that the Commission asked Spain to recover
      aid previously authorised under Decisions 98/637/ECSC
                                                                       —     failure to take account of the competition notice.
      of 3 June 1998 and 2001/162/ECSC of 13 December
      2000 concerning the granting of aid by Spain to the coal
      industry in the years 1998 and 2000, respectively.