title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 12 June 1997 in Case T-504/93: Tiercé Landbroke SA v. Commission of the European Communities (Action for annulment - Rejection of a complaint - Article 86 - Relevant market - Joint dominant position - Refusal to grant a transmission licence - Article 85 (1) - Clause prohibiting retransmission)

text:
No C 252/24            EN                   Official Journal of the European Communities                                    16 . 8 . 97
         Removal from the register of C-3 13/95 (*)                    removal from the register of Case C-16/96 ( reference for a
                           ( 97/C 252/49 )                             preliminary ruling from the Bundessozialgericht): Karin
                                                                       Mille-Wilsmann v. Land Nordrhein-Westfalen .
By order of 18 April 1997 the President of the Sixth
Chamber of the Court of Justice of the European                        (') OJ No C 64, 2 . 3 . 1996 .
Communities has ordered the removal from the register
of Case C-3 13/95 : Commission of the European
Communities v. Italian Republic .
(') OJ No C 315 , 25 . 11 . 1995 .
                                                                                Removal from the register of C-245/96 ( ')
                                                                                97/C 252/51
                                                                       By order of 15 May 1997 the President of the Court of
          Removal from the register of C-16/96 ( l )                   Justice of the European Communities has ordered the
                           ( 97/C 252/50 )                             removal from the register of Case C-245/96 : Commission
                                                                       of the European Communities v. Italian Republic.
By order of 14 April 1997 the President of the Court of
Justice of the European Communities has ordered the                  ' (') OJ No C 269, 14 . 9 . 1996 .
                                                      COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                              Fontainebleau (France ), Groupement d'intérêt économique
                         of 12 June 1997                               Pari Mutuel Urbain, established in Paris, Pari Mutuel
                                                                       International established in Paris, represented by Bruno
in Case T-504/93 : Tiercé Landbroke SA v. Commission of                Chain and Jerome Depondt, of the Paris Bar, with an
               the European Communities (')                            address for service in Luxembourg at the Chambers of
                                                                       Victor Gillen, 13 Rue Aldringen — application for
(Action for annulment — Rejection of a complaint —                     annulment of the Commission Decision of 24 June 1993
Article 86 — Relevant market — Joint dominant position                 rejecting a complaint lodged by Tiercé Ladbroke SA on
— Refusal to grant a transmission licence — Article 85 (1 )            9 October 1990 (IV/33.699 ) against the principal French
           — Clause prohibiting retransmission)                        sociétes de courses ( horse-racing associations ), Pari Mutuel
                            ( 97/C 252/52 )                            Urbain and Pari Mutuel International, alleging
                                                                       infringement of Articles 85 and 86 of the EEC Treaty, and
                                                                       for an order requiring the Commission to re-examine
                                                                       that complaint forthwith — the Court of First Instance
              (Language of the case: English)
                                                                       ( Second Chamber, Extended Composition ), composed
                                                                       of: B. Vesterdorf, President, C. W. Bellamy and A.
                                                                       Kalogeropoulos, Judges; H. Jung, Registrar, has given a
In Case T-504/93 : Tiercé Landbroke SA, established in                 judgment on 12 June 1997, in which it:
Brussels, represented by Jeremy Lever QC, Christopher
Vajda, Barrister, of the Bar of England and Wales, and
Stephen Kon, Solicitor, London, with an address for
                                                                        1.  annuls the Commission decision contained in its letter
service in Luxembourg at the Chambers of Winandy and
Err, 60 Avenue Gaston Diderich, against Commission of '                     of 24 June 1 993 rejecting the applicant's complaint of
the European Communities (Agents : Julian Currall and                       9 October 1990 (IV/33.699) in so far as it considers
Francisco Enrique Gonzalez Diaz ), supported by Société                     that the refusal of the sociétés de courses to grant the
d'encouragement et des steeple-chases de France,                            applicant a licence for the transmission of French races
established in Boulogne-Billancourt ( France ), Société                     in Belgium, as notified to the applicant by a letter
d'encouragement à l'élevage du cheval français,                             from Pari Mutuel Urbain dated 8 August 1990, was
established in Paris, Société sportive d'encouragement,                     the normal consequence of the fact that neither Pari
                                                                            Mutuel Urbain nor the sociétés de courses take bets on
established in Paris, Société de sport de France, established
in Boulogne-Billancourt ( France ), Société des courses de la               the betting market in Belgium, and therefore could not
Côte d'Azur, established in Cagnes-sur-Mer ( France ),                      be the subject of an agreement between the sociétés de
Société des courses du Pays d'Auge, established in                          courses within the meaning of Article 85 (1 ) of the
Deauville ( France ), Société des courses de Compiègne,                     Treaty;
established in Compiègne ( France ), Société des courses de
Dieppe, established in Rouxmesnil-Bouteilles ( France ),
Société des courses de Fontainebleau, established in                    2 . dismisses the remainder of the application;
 ---pagebreak--- 16 . 8 . 97             EN                   Official Journal of the European Communities                               No C 252/25
3 . orders the parties, including the interveners, to bear                JUDGMENT OF THE COURT OF FIRST INSTANCE
     their own costs .
                                                                                of 19 June 1997
(') OJ No C 275 , 13 . 10 . 1993 .                                      in Case T-73/96: Miguel Forcat Icardo v. Commission of
                                                                                the European Communities (')
                                                                        (Officials — Assignment to a new post — Interests of the
                                                                                service — Misuse ofpowers)
                                                                                ( 97/C 252/54
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: French)
                          of 19 June 1997
in Case T-260/94 : Air Inter SA v. Commission of the
                   European Communities (' )
                                                                        In Case T-73/96 : Miguel Forcat Icardo, an official of the
                                                                        Commission, residing in Brussels, represented by Georges
(Air transport — Continuation of an exclusive concession                Vandersanden, of the Brussels Bar, with an address for
on domestic routes — Regulation (EEC) No 2408/92 —                      service in Luxembourg at the offices of Fiduciaire Myson
Articles 5 and 8 — Rights of the defence — Audi alteram                 Sari, 30 Rue de Cessange, v. Commission of the European
partem — Principle of good faith — Principle of                         Communities ( Agent: Julian Currall ) — application for
     proportionality -— Article 90 (2) of the EC Treaty)                annulment of the memorandum of the Director-General of
                                                                        Directorate-General IX ( Personnel and Administration ) of
                            ( 97IC 252/53 )                             11 August 1995 assigning the applicant to a new post
                                                                        with effect from 1 October 1995 and for compensation
                 (Language of the case: French)                         for the non-material damage suffered — the Court of First
                                                                        Instance ( Third Chamber ), composed of: B. Vesterdorf,
                                                                        President, and C. P. Briët and A. Potocki, Judges; B.
In Case T-260/94 : Air Inter SA, having its registered office           Pastor, Principal Administrator, for the Registrar, has given
in Paray Vieille Poste, France, represented by Jean-Pierre              a judgment on 19 June 1997, in which it:
Spitzer, of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Aloyse May, 31 Grand
Rue, against Commission of the European Communities                      1 . dismisses the application as inadmissible in so far as it
(Agents: Rolf Wägenbaur and Lucio Gussetti ), supported                       concerns the claim for compensation based on the
by TAT European Airlines, represented by Antoine                             second paragraph of Article 24 of the Staff
Winckler, of the Paris Bar, and Romano Subiotto,                              Regulations of officials of the European Communities;
Solicitor, with an address for service in Luxembourg at the
Chambers of Elvinger and Hoss, 2, Place Winston
Churchill, and United Kingdom of Great Britain and                      2 . dismisses the remainder of the application;
Northern Ireland ( Agents: John E. Collins and Richard
Plender) — application for annulment of Article 1 of                    3 . orders the parties to bear their own costs.
Commission Decision 94/291/EC of 27 April 1994 on a
procedure relating to the application of Council
Regulation ( EEC ) No 2408/92 ( Case VII/AMA/IV/93 —                     (') OJ No C 233 , 10 . 8 . 1996 .
TAT — Paris ( Orly) — Marseille and Paris ( Orly ) —
Toulouse ) ( OJ No L 127, 19 . 5 . 1994, p. 32 ) — the Court
of First Instance               ( Second    Chamber,     Extended
 Composition ), composed of: C. W. Bellamy, President, C. P.
 Briët and A. Kalogeropoulos, Judges; J. Palacio Gonzales,
Administrator, for the Registrar, has given a judgment on
 19 June 1997, in which it:                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 25 June 1997
 1 . dismisses the application;                                          in Case T-7/96: Francesco Perillo v. Commission of the
                                                                                European Communities (')
 2 . orders the applicant to pay the costs, including those              (Lomé Convention — European Development Fund —
      of the proceedings in Case C-301 /94 which took place              Non-payment of contract — Commission's non
      before the Court of Justice and those incurred by TAT,                                    contractual liability)
      but not those incurred by the United Kingdom                                                   ( 97/C 252/55 )
      Government, an intervening party, which shall bear its
      own costs .
                                                                                (Language of the case: French)
 (') OJ No C 275 , 1 . 10 . 1994 .
                                                                         In Case T-7/96 : Francesco Perillo, trading as ITAM
                                                                         SIDER, residing in Altamura, Italy, represented by Mario


title: Case T-175/05: Judgment of the Court of First Instance of 30 September 2009 — Akzo Nobel and Others v Commission (Competition — Agreements, decisions and concerted practices — Market for monochloroacetic acid — Decision finding an infringement of Article 81 EC — Action for annulment — Admissibility — Market sharing and price fixing — Attributability of the infringement — Fines — Obligation to state the reasons on which the decision is based — Gravity and duration of the infringement — Deterrent effect)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/36

         Judgment of the Court of First Instance of 30 September 2009 — Akzo Nobel and Others v Commission
   (Case T-175/05) (1)

   (Competition - Agreements, decisions and concerted practices - Market for monochloroacetic acid - Decision finding an infringement of Article 81 EC - Action for annulment - Admissibility - Market sharing and price fixing - Attributability of the infringement - Fines - Obligation to state the reasons on which the decision is based - Gravity and duration of the infringement - Deterrent effect)
   2009/C 282/67
   Language of the case: English

      Parties

      Applicants: Akzo Nobel NV (Arnhem, Netherlands); Akzo Nobel Nederland BV (Arnhem); Akzo Nobel AB (Stockholm, Sweden); Akzo Nobel Chemicals BV (Amersfoort, Netherlands); Akzo Nobel Functional Chemicals BV (Amersfoort); Akzo Nobel Base Chemicals AB (Skoghall, Sweden); and Eka Chemicals AB (Bohus, Sweden) (represented initially by C. Swaak and A. Käyhkö, and subsequently by C. Swaak and M. van der Woude, lawyers)

      Defendant: Commission of the European Communities (represented initially by P. Hellström and F. Amato, and subsequently by A. Bouquet and X. Lewis, Agents)

      Re:

   Application, principally, for annulment of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 — MCAA) and, in the alternative, reduction of the fine imposed on the applicants.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel AB, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV, Akzo Nobel Base Chemicals AB and Eka Chemicals AB to pay the costs.

      (1)  OJ C 171, 9.7.2005.


title: Case T-318/08: Action brought on 12 August 2008 — Di Mercurio v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/35

         Action brought on 12 August 2008 — Di Mercurio v Commission
   (Case T-318/08)
   (2008/C 272/66)
   Language of the case: Italian
   Parties

      Applicant: Salvatore Di Mercurio (Pachino, Italy) (represented by: A. Maiorana, A. De Matteis and A. De Francesco, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Regulation (EC) No 530/2008 of 12 June 2008, published in OJ L 155 of 13 June 2008.

               —

               Order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The pleas in law and main arguments are the same as those relied on in Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c v Commission.


title: Reference for a preliminary ruling by the Immigration Adjudicator, by decision of the Adjudicator of 20 December 1996, in the case of Nour Eddline El Yassini against Secretary of State for the Home Department (Case C-416/96)

text:
8 . 3 . 97               EN [                  Official Journal of the European Communities                                   No C 74/13
Registry on 23 December 1996, for a preliminary ruling in                 2 . Must the words '[. . .] legally due [. . .]' in Article 2(1 )
the proceedings brought by Kainuun Liikenne Oy and Oy                          of Council Regulation (EEC ) No 1697/79 be
Pohjolan Liikenne Ab on the following questions :                              interpreted as meaning that:
1 . Is the Regulation on public service obligations                            — it is the factual and legal circumstances at the time
       ( Regulation (EEC ) No 1191 /69 (') as amended by
                                                                                when the competent authorities receive a
       Regulation ( EEC ) No 1893/91 (2 )), in particular                          declaration containing an incorrect tariff heading
       Article 4 in conjunction with Article 1 ( 3 ), to be                        that are conclusive for determining whether an
                                                                                amount is due ?
       interpreted as meaning that it entitles a transport
       undertaking to have a part, of whatever size, of its
       operating obligation terminated, for example, only a                         or as meaning that:
       certain part of one route operated ?
                                                                               — it is the factual and legal circumstances at the time
                                                                                when the competent authorities establish that a
2 . If the answer to the first question is wholly or                                declaration contained an incorrect tariff heading
       conditionally in the affirmative, in which case the                          that are conclusive for determining whether an
       Korkein Hallinto-oikeus may remit the case to the                            amount is due ?
       Laaninhallitus for a fresh decision, in order to reach a
       final decision in the case the question arises whether it
       also follows, from the right given to transport                    3 . A. What is the legal effect of a decision by the
       undertakings in the Regulation on public service                             European Commission, after consultation with the
       obligations to have a service obligation partially                           Customs Code Committee, addressed to a Member
       terminated, that the authorities' power under national                       State following a request by a Member State to the
        law to revoke a traffic licence in order reasonably to                      Committee that it take a decision on whether there
       reorganize the traffic is precluded or restricted where                      was, in specified circumstances, justification for
       the need to reorganize results from a partial                                granting remission of import duties, and in which
       termination .                                                                the Commission and the Committee decided that
                                                                                there was no justification for granting remission of
 (') OJ, English Special Edition 1969 ( I), p. 276.                                 import duties referred to in the Member State's
 ( 2 ) OJ No L 169, 29 . 6 . 1991 , p. 1 .                                          request to the Committee ?
                                                                               B. Is it compatible with the legal effects described in
                                                                                the answer to question 3 .A for a court in the
                                                                                Member State concerned to rule in a judgment
                                                                                that there was no necessary legal basis for post
                                                                                clearance recovery of import duties ?
 Reference for a preliminary ruling by the Appeals and
 Objections Committee of the Hojesteret by decision of
 that      court   of 20      December     1996   in  the   case  of
                 Skatteministeriet v. Sportgoods A/S
                            ( Case C-413/96 )
                               ( 97/C 74/25 )                             Reference for a preliminary ruling by the Immigration
                                                                          Adjudicator, by decision of the Adjudicator of
                                                                          20 December 1996, in the case of Nour Eddline El Yassini
 Reference has been made to the Court of Justice of the                        against Secretary of State for the Home Department
 European Communities by decision of the Appeals and                                              ( Case C-416/96 )
  Objections Committee of the Hojesteret ( Supreme Court)
  of 20 December 1996, which was received at the Court                                               97/C 74/26 )
  Registry on 27 December 1996, for a preliminary ruling in
  the case of Skatteministeriet ( Ministry of Fiscal Affairs ) v.
  Sportgoods A/S on the following questions :                              Reference has been made to the Court of Justice of the
                                                                           European Communities by decision of the Immigration
                                                                           Adjudicator of 20 December 1996, which was received at
  1 . Must Article 2 ( 1 ) of Council Regulation ( EEC )                   the Court Registry on 31 December 1996 , for a
        No 1697/79 on the post-clearance recovery of import                preliminary ruling in the case of Nour Eddline El Yassini
         duties or export duties which have not been required              against Secretary of State for the Home Department, on
         of the person liable for payment on goods entered for             the following questions:
         a customs procedure involving the obligation to pay
         such duties ( OJ No L 197, 1979, p. 1 ) be interpreted
         as meaning that post-clearance recovery may be                    1 . In a case of a Moroccan national, who is lawfully
         effected only in cases in which there is a difference in               resident in a Member State and who is lawfully
         the amount of duty involved, but not in cases of                       employed in that Member State, does the term
         incorrect declarations of headings which have not had                  'working conditions' in Article 40 of the EC/Morocco
         any bearing on the amount ?                                            Cooperation Agreement include security of such
 ---pagebreak---  No C 74/ 14           EN                    Official Journal of the European Communities                                    8 . 3 . 97
     employment for the duration of the employment as                   paragraph 19 (2 ) of the Bundessozialhilfegesetz ( Federal
     freely determined between the employer and the                      Law on Social Assistance )) to a limited group of persons ?
     employee ( i.e. length of employment) and the benefits
     arising from such security, such as a career structure
     providing the possibility of promotion, vocational
     training and pay and retirement pensions
     commensurate to the seniority of the applicant,
     applying mutatis mutandis the reasoning used by the                Reference for a preliminary ruling by the Court of Appeal,
     European Court of Justice in inter alia Case C-272/92              Criminal Division, by order of that court of 24 December
     Spotti v. Freistaat Bayern [ 1994] 3 CMLR 29, [ 1993 ]
                                                                         1996, in the case of Regina against John Charles Goodwin
     ECR 1-5185 and Case 225/85 Commission v. Italy                                        and Edward Thomas Unstead
     [ 1987] ECR 2625 ?
                                                                                (Case C-3/97)
                                                                                ( 97/C 74/28 )
 2 . If so, does the fact that the length of the applicant's
     employment is subject to a de facto time limit by the
     operation of the United Kingdom immigration laws                   Reference has been made to the Court of Justice of the
     and in the instant case is being terminated by the                 European Communities by an order of the Court of
     respondent's decision not to extend the applicant's                Appeal, Criminal Division, of 24 December 1996, which
     leave to remain in the United Kingdom constitute                   was received at the Court Registry on 9 January 1997, for
     discrimination in relation to such 'working conditions'            a preliminary ruling in the case of Regina against John
     on grounds of nationality where the respondent could               Charles Goodwin and Edward Thomas Unstead, on the
     not impose such a de facto time limit and/or forced                following question :
     termination of employment upon its own nationals ?
                                                                        Does the supply of counterfeit perfume products fall
3 . If the answer to questions 1 and 2 is in the                        within the scope of Council Directive 77/388/EEC of
     affirmative, does Article 40 of the EC/Morocco                     17 May 1977 on the harmonization of the laws of the
     Cooperation Agreement require the Member State to                  Member States relating to turnover taxes (the sixth
     grant the Moroccan worker leave to remain for the                  Directive ) ( 1 )?
     duration of his lawful employment ?
                                                                        (') OJ No L 145 , 13 . 6 . 1977, p . 1 .
Reference      for    a       preliminary     ruling    by    the       Reference for a preliminary ruling from the Raad van
Verwaltungsgericht der Freien Hansestadt Bremen by                      State, Belgium, by judgment of that court of 18 December
order    of  that   court     of   9   December    1996   in  the
                                                                        1996 in the case of NV Ballast Nedam Group v. Belgian
administrative proceedings between Mehmet Birden and                                                      State
                    Stadtgemeinde Bremen
                                                                                ( Case C-5/97 )
                         ( Case C-l /97 )
                                                                                97/C 74/29
                           ( 97/C 74/27 )
                                                                       Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice                        European Communities by a judgment of the Raad van
of the European Communities by order of the                            Staate ( Council of State ) of 18 December 1997, which was
Verwaltungsgericht der Freien Hansestadt Bremen                        received at the Court Registry on 13 January 1997, for a
( Administrative Court of the Free Hanseatic City of                   preliminary ruling in the case of Ballast Nedam Group v.
Bremen ) of 9 December 1996, received at the Court                     Belgian State
Registry on 6 January 1997, for a preliminary ruling in
the case of Mehmet Birden v. Stadtgemeinde Bremen ( City               on the following questions :
of Bremen ) on the following question:
                                                                        1 . May the word 'permit' in the phrase 'permit [. . .]
Is a Turkish worker a duly registered member of the                         account to be taken of [...]' in the operative part of
labour force of a Member State, within the meaning of                       the judgment in Case C-389/92 (') be taken to mean
Article 6 ( 1 ) of Decision No 1/80 of the EEC-Turkey                       'require'?
Association     Council       on    the   development    of   the
Association, if he has a job sponsored by that Member                  2. If the word 'permit' in the above phrase cannot be
State with public funds and requiring payment of social                     taken to mean 'require ', does that mean that the
security contributions which is meant to enable him to                      Member State concerned in this regard enjoys a
enter or re-enter working life and which, owing to the                      discretionary power, even where the condition laid
State sponsorship, may only be offered (pursuant to                         down by the Court is satisfied ?


title: Case T-182/02: Action brought on 10 June 2002 by Uni-Pharma — Kleon Tsetis Farmakeftika Ergastiria Anonimos Viomikhaniki kai Emboriki Eteria against Office for the Harmonization in the Internal Market (trade marks and designs) (OHIM)

text:
C 202/32                 EN                    Official Journal of the European Communities                                        24.8.2002
Pleas and main arguments                                                  Action brought on 10 June 2002 by Uni-Pharma — Kleon
                                                                          Tsetis Farmakeftika Ergastiria Anonimos Viomikhaniki
                                                                          kai Emboriki Eteria against Office for the Harmonization
                                                                           in the Internal Market (trade marks and designs) (OHIM)
In the contested decision the Commission imposed on the
Federal Republic of Germany the obligation to reclaim from a
                                                                                (Case T-182/02)
group said to comprise Erba Lautex GmbH in liquidation
and Neue Erba Lautex GmbH aid amounting in total to
EUR 7 834 million.                                                                                (2002/C 202/53)
                                                                                (Language of the case: French)
The applicant submits that the Commission was incorrect in its
finding that the applicant and Erba Lautex GmbH constituted a
unit or group of undertakings and that therefore the ability to           An action against the Office for Harmonization in the Internal
approve rescue and restructuring aid could only be assessed in            Market (trade marks and designs) (OHIM) was brought before
favour of the group, that the Deggendorf doctrine was to be               the Court of First Instance of the European Communities on
applied and the aid was to be claimed back from both members              10 June 2002 by Uni-Pharma — Kleon Tsetis Farmakeftika
of the group. The Commission’s Decision is said to be based               Ergastiria Anonimos Viomikhaniki kai Emboriki Eteria, whose
on the erroneous finding that the applicant’s case did not                registered office is in Kato Kifissia, Attiki (Greece), represented
constitute a residual arrangement under the terms of the                  by Eleni Gioti-Manthou and Maria Bra.
exception provided for in footnote 10 of the Guidelines (1). By
not applying that exceptional provision the Commission
infringed the principle of equal treatment and provided no                The applicant claims that the Court should:
objective reason for the unequal treatment.
                                                                          —     find that there is no likelihood of confusion between the
                                                                                marks in question;
The applicant maintains that the Commission’s finding that                —     annul the contested decision of the Fourth Board of
the applicant and Erba Lautex GmbH were to be deemed to                         Appeal of 27 February 2002;
constitute a group was erroneous since the applicant is
controlled not by Erba Lautex GmbH but by the liquidator. In              —     order the Office to pay the costs of all the proceedings,
consequence of the erroneous assumptions made by the                            including lawyers’ fees incurred by the applicant.
Commission the contested decision was already unlawful and
liable to be set aside for breach of Article 87(3)(c) EC in
conjunction with the Guidelines.
                                                                          Pleas in law and main arguments
In the alternative the applicant maintains that the Commission
                                                                          Applicant for the Com-         The applicant
wrongly classified the relevant measure as aid or, in the
                                                                          munity trade mark:
alternative, assumed a level of aid intensity greater than was
the case. In addition, in finding that the decision of 1999 to            The Community trade            Word mark ‘Apotel’ in respect of
claim repayment of aid concerning Erba Lautex GmbH had                    mark concerned:                certain goods in Class 5 (anal-
not been complied with, the Commission manifestly erred in                                               gesics and antipyretics) — appli-
its findings of facts in that regard.                                                                    cation No 613554
                                                                          Proprietor of the right to     Biofarma (previously Orsem)
                                                                          the trade mark or sign
Furthermore, the applicant is claiming that the Commission
                                                                          asserted by way of oppo-
committed errors of assessment and infringed essential formal
                                                                          sition in the opposition
requirements. It infringed the duty to provide a statement of
                                                                          proceedings:
reasons and the Federal Government’s right to be heard.
Finally, the Commission misused its discretion in adopting the            Trade mark or sign             National and international word
contested decision and infringed the right to administration in           asserted by way of oppo-       mark ‘Aportex’ in respect of cer-
accordance with the rules.                                                sition in the opposition       tain goods in Class 5 (pharmaceu-
                                                                          proceedings:                   tical products for the prevention
                                                                                and/or treatment of the meno-
(1) Community Guidelines on State aid for rescuing and restructuring                                     pause)
    firms in difficulty (OJ 1999 C 288, p. 2).
                                                                          Decision of the Oppo-          Dismissal of entire opposition
                                                                          sition Division:
                                                                          Decision of the Board of       Annulment of the decision of the
                                                                          Appeal:                        Opposition Division
 ---pagebreak--- 24.8.2002             EN                     Official Journal of the European Communities                                       C 202/33
Grounds of claim:            —     Irregularity of the procedure        Pleas in law and main arguments
                                   in that the appeal was reas-
                                   signed to another Board of
                                   appeal and that the applicant
                                   was not informed of the              Applicant for the Com-        The applicant.
                                   change of name of the                munity trade mark:
                                   opponent.
                                                                        Community trade mark          Word mark MUNDICOR (appli-
                             —     Failure of the Board of              applied for:                  cation published in Community
                                   Appeal to provide reasons                                          Trade Mark Bulletin No 27/98,
                                   for its decision.                                                  p. 600, 14 April 1998) for goods
                                                                                in the 42 classes of the nomencla-
                             —     Breach of the concept of                                           ture.
                                   ‘likelihood of confusion’.
                             —     Misuse of rights by the              Owner of the mark or          González Cabello S.A.
                                   opponent in that it has not          sign relied on in the
                                   made any use of the mark             opposition proceedings:
                                   objected to.
                                                                        Mark or sign opposed:         Spanish mark MUNDICOLOR for
                                                                                goods in class 2 (colours, varnish-
                                                                                es, lacquers, preservatives against
                                                                                rust and against deterioration of
                                                                                wood; colorants; mordants; raw
                                                                                natural resins; metals in foil and
                                                                                powder form for painters, decor-
                                                                                ators, printers and artists).
                                                                        Decision of the oppo-         Application allowed.
                                                                        sition division:
Action brought on 11 June 2002 by El Corte Inglés, S.A.
against the Office for Harmonisation in the Internal                    Decision of the Board of      Dismissal of the appeal brought
                            Market                                      Appeal:                       by El Corte Inglés S.A.
                                                                        Pleas in law relied on:       Misapplication of Article 8(1)(b)
                       (Case T-183/02)                                                                of Regulation (EC) No 40/94 (like-
                                                                                lihood of confusion).
                       (2002/C 202/54)
                 (Language of the case: Spanish)
An action against the Office for Harmonisation in the Internal          Action brought on 11 June 2002 by El Corte Inglés, S.A.
Market was brought before the Court of First Instance of the            against the Office for Harmonisation in the Internal
European Communities on 11 June 2002 by El Corte Inglés,                                            Market
S.A. of Madrid, represented by Juan Luis Rivas Zurdo.
                                                                                (Case T-184/02)
The applicant claims that the Court should:
                                                                                (2002/C 202/55)
—    annul the decision of 22.3.02 of OHIM’s First Board of
     Appeal and the decision of 17.9.99 of OHIM’s opposition                              (Language of the case: Spanish)
     division;
—    allow registration of Community Trade Mark No 557108
     ‘MUNDICOR’ to proceed for all goods claimed in Class 2;            An action against the Office for Harmonisation in the Internal
                                                                        Market was brought before the Court of First Instance of the
                                                                        European Communities on 11 June 2002 by El Corte Inglés,
—    order the opponent(s) to pay the costs.                            S.A. of Madrid, represented by Juan Luis Rivas Zurdo.


title: Case C-220/05: Reference for a preliminary ruling from the Tribunal Administratif de Lyon (France) by judgment of that court of 7 April 2005 in the case Jean Auroux and Others v Commune de Roanne — Intervener: Société d'équipement du département de la Loire

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/11

         Reference for a preliminary ruling from the Tribunal Administratif de Lyon (France) by judgment of that court of 7 April 2005 in the case Jean Auroux and Others v Commune de Roanne — Intervener: Société d'équipement du département de la Loire
   (Case C-220/05)
   (2005/C 193/19)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by judgment of the Tribunal Administratif de Lyon of 7 April 2005, received at the Court Registry on 19 May 2005, for a preliminary ruling in the proceedings between Jean Auroux and Others and Commune de Roanne — Intervener: Société d'équipement du département de la Loire, on the following questions:

               1.

               Does a contract under which one contracting authority engages a second contracting authority to carry out a development project for a purpose of general interest, pursuant to which contract that second contracting authority is to deliver works to the first which are intended to meet its needs, and at the end of which such of the other land and works as have not been disposed of to third parties vest automatically in the first contracting authority, constitute a public works contract within the meaning of Article 1 of Directive 93/37/EEC of 14 June 1993, (1) as amended?

               2.

               If the answer to question 1 is in the affirmative, is it necessary, in assessing the threshold of 500 000 000 special drawing rights imposed by Article 6 of the same directive, to take into account only the price paid in return for the delivery of the works to the contracting authority, or the sum of that price and the contributions paid, even if the latter are only partly allocated to the execution of those works, or the total value of the works, with assets not disposed of at the end of the contract vesting automatically in the first contracting authority and the latter then pursuing the execution of ongoing contracts and assuming the debts incurred by the second contracting authority?

               3.

               If the answer to both questions 1 and 2 is in the affirmative, can the first contracting authority, when entering into such a contract, dispense with the procedures for awarding public works contracts laid down in that directive, on the grounds that that contract can be awarded only to certain legal persons and that those same procedures will be applied by the second contracting authority when awarding its public works contracts?

      (1)  Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54).


title: Case C-435/10: Judgment of the Court (Fourth Chamber) of 17 November 2011 (reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands)) — J. C. van Ardennen v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Directive 80/987/EEC — Protection of employees in the event of the insolvency of their employer — Insolvency benefit — Payment subject to registration as a job-seeker)

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/17

      Judgment of the Court (Fourth Chamber) of 17 November 2011 (reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands)) — J. C. van Ardennen v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen
      (Case C-435/10) (1)

      (Directive 80/987/EEC - Protection of employees in the event of the insolvency of their employer - Insolvency benefit - Payment subject to registration as a job-seeker)
      (2012/C 25/27)
      Language of the case: Dutch

         Referring court

      Centrale Raad van Beroep

         Parties to the main proceedings

         Applicant: J. C. van Ardennen

         Defendant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

         Re:

      Reference for a preliminary ruling — Centrale Raad van Beroep — Interpretation of Articles 4, 5 and 10 of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23), as amended by Directive 2002/74/EC (OJ 2002 L 270, p. 10) — Extent of the guarantee offered by the guarantee institution — National legislation obliging employees to register immediately as job-seekers before they apply for payment of outstanding pay claims.

         Operative part of the judgment

      Articles 3 and 4 of Council Directive 80/987/EEC of 20 October 1980 relating to the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 must be interpreted as precluding a national rule which obliges employees to register as job-seekers in the event of the insolvency of their employer, in order to fully assert their right to payment of outstanding wage claims, such as those in issue in the main proceedings.

         (1)  OJ C 317, 20.11.2010.


title: Case T-649/15: Action brought on 13 November 2015 — Toth v Parliament

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/63

         Action brought on 13 November 2015 — Toth v Parliament
   (Case T-649/15)
   (2016/C 048/71)
   Language of the case: English

      Parties

      Applicant: Balazs Toth (Budapest, Hungary) (represented by: N. Pirc Musar, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul decision A(2015)8490 C of the European Parliament of 16 September 2015 rejecting the applicant’s confirmatory application for access to certain documents relating to information on Members’ of the European Parliament travel expenses, subsistence allowances, general expenditure allowances and staffing arrangements expenses;

               —

               order the Parliament to pay the applicant’s costs pursuant to Articles 134 and 140 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 (1) in conjunction with Article 8(b) of Regulation 45/2001 (2), since the personal data requested are not protected under Community legislation

               2.

               Second plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 in conjunction with Article 8(b) of Regulation 45/2001, as the access to the requested information was refused, although the conditions for disclosure were met

               3.

               Third plea in law, alleging a violation of the general obligation, under Articles 2 and 4 of Regulation 1049/2001 in conjunction with Article 6(3) of Regulation 1049/2001, to conduct an examination of each individual document

               4.

               Fourth plea in law, alleging a violation of Article 4(6) of Regulation 1049/2001, as the refusal to grant partial access to the requested documents was not justified

               5.

               Fifth plea in law, alleging a violation of the duty to state reasons as required by Articles 7(1) and 8(1) of Regulation 1049/2001, as the Parliament failed to address all the applicant’s arguments

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

      (2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).


title: Case T-311/17: Action brought on 19 May 2017 — Stips v Commission

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/49

         Action brought on 19 May 2017 — Stips v Commission
   (Case T-311/17)
   (2017/C 231/63)
   Language of the case: French

      Parties

      Applicant: Adolf Stips (Besozzo, Italy) (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European Commission

      Form of order sought

   Declare and rule,

               —

               principally, that the decision of the AECE of 19 August 2016 not to reclassify the applicant in grade AD 13 in the 2013 reclassification procedure is annulled;

               —

               in the alternative, that the Commission is ordered to make good in full the harm, both pecuniary and non-pecuniary, suffered by the applicant;

               —

               in any event, that the Commission is ordered to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on a single plea in law, alleging an infringement of Article 266 TFEU, in that the Commission ignored the grounds for the judgment of 19 July 2016, Stips v Commission (F-131/15, EU:F:2016:154) and executed that judgment in bad faith, thus undermining the force of res judicata given absolute effect by the Civil Service Tribunal.


title: Case C-355/11: Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 6 July 2011 — G. Brouwer v Staatssecretaris van Economische Zaken, Landbouw en Innovatie

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/8

         Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 6 July 2011 — G. Brouwer v Staatssecretaris van Economische Zaken, Landbouw en Innovatie
   (Case C-355/11)
   2011/C 282/14
   Language of the case: Dutch

      Referring court

   College van Beroep voor het Bedrijfsleven

      Parties to the main proceedings

      Appellant: G. Brouwer

      Respondent: Staatssecretaris van Economische Zaken, Landbouw en Innovatie

      Questions referred

               1.

               Must Directive 91/629/EEC (1) be interpreted as meaning that the management requirements within the meaning of Article 4 of Regulation (EC) No 1782/2003 (2) arising out of that directive are also applicable to calves which are kept confined by a farmer in the context of a dairy farming operation?

               2.

               If that question is answered in the negative, does the fact that a Member State has implemented that directive by means of legislation which declares the aforementioned requirements to be nevertheless applicable to such calves, give grounds, in the event of an infringement of those requirements in that Member State, for deeming a reduction or exclusion under Article 6 of Regulation (EC) No 1782/2003 to be necessary?

      (1)  Council Directive of 19 November 1991 laying down minimum standards for the protection of calves (OJ 1991 L 340, p. 28).

      (2)  Council Regulation of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).


title: Judgment of the Court (Second Chamber) of  26 January 2006  in Case C-533/03 Commission of the European Communities v Council of the European Union (Regulation (EC) No 1798/2003 — Directive 2003/93/EC — Choice of legal basis)

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/4

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 26 January 2006
   in Case C-533/03 Commission of the European Communities v Council of the European Union (1)

   (Regulation (EC) No 1798/2003 - Directive 2003/93/EC - Choice of legal basis)
   (2006/C 86/07)
   Language of the case: English
   In Case C-533/03 Commission of the European Communities (represented by: R. Lyal, Agent) v Council of the European Union (represented by: A.-M. Colaert and E. Karlsson, Agents) supported by: Ireland (represented by: D. O'Hagan, Agent, and by A. Collins SC), Portuguese Republic (represented by: L. Fernandes, Agent), United Kingdom of Great Britain and Northern Ireland (represented by: R. Caudwell, Agent, and by D. Wyatt QC) — action for annulment under Article 230 EC, brought on 19 December 2003 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, P. Kūris and G. Arestis, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 26 January 2006, in which it:

               1.

               Dismisses the action;

               2.

               Orders the Commission of the European Communities to pay the costs;

               3.

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

      (1)  OJ C 59, 06.03.2004.


title: Case T-356/11: Action brought on 1 July 2011 — Restoin v OHIM — (EQUIPMENT)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/52

         Action brought on 1 July 2011 — Restoin v OHIM — (EQUIPMENT)
   (Case T-356/11)
   2011/C 269/116
   Language of the case: French

      Parties

      Applicant: Christian Restoin (Paris, France) (represented by A. Alcaraz, lawyer)

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

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of 14 April 2011 in Case R 1430/2010-4;

               —

               Order OHIM to pay the costs incurred by Mr Christian Restoin.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘EQUIPMENT’ for goods and services in Classes 3, 9, 14, 18, 25 and 35 — application for registration No 8 722 076.

      Decision of the Examiner: Rejection of the application for registration.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009, since the sign applied for is distinctive as regards the perception which the relevant public would have of it and as regards the goods and services for which registration is sought, and of Article 75 of that regulation, since the reasons of the Board of Appeal (i) cannot be all-encompassing, the goods covered not being sufficient homogenous, and (ii) are not coherent.


title: Case C-263/13 P: Judgment of the Court (First Chamber) of 24 June 2015 — Kingdom of Spain v European Commission (Appeals — European Regional Development Fund (ERDF) — Reduction of financial assistance — Method of calculation by extrapolation — Procedure of adoption of the decision by the European Commission — Failure to comply with the time-limit laid down — Consequences)

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/3

         Judgment of the Court (First Chamber) of 24 June 2015 — Kingdom of Spain v European Commission
   (Case C-263/13 P) (1)

   ((Appeals - European Regional Development Fund (ERDF) - Reduction of financial assistance - Method of calculation by extrapolation - Procedure of adoption of the decision by the European Commission - Failure to comply with the time-limit laid down - Consequences))
   (2015/C 279/03)
   Language of the case: Spanish

      Parties

      Appellant: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

      Other party to the proceedings: European Commission (represented by: J. Baquero Cruz and A. Steiblytė, Agents)

      Operative part of the judgment

   The Court:

               1)

               Sets aside the judgment of the General Court of the European Union in Spain v Commission (T-65/10, T-113/10 and T-138/10, EU:T:2013:93);

               2)

               Annuls Commission Decisions C(2009) 9270 of 30 November 2009, C(2009) 10678 of 23 December 2009 and C(2010) 337 of 28 January 2010 reducing the assistance from the European Regional Development Fund (ERDF) granted respectively under the operational programme ‘Andalusia’ falling within Objective 1 (1994-1999) pursuant to Commission Decision C(94) 3456 of 9 December 1994, the operational programme ‘Basque Country’ falling within Objective 2 (1997-1999) pursuant to Commission Decision C(1998) 121 of 5 February 1998, and the operational programme ‘Comunidad Valenciana’ falling within Objective 1 (1994-1999) pursuant to Commission Decision C(1994) 3043/6 of 25 November 1994;

               3)

               Orders the European Commission to pay the costs incurred by the Kingdom of Spain and to bear its own costs, both in the proceedings at first instance and on appeal.

      (1)  OJ C 207, 20.7.2013.


title: Action brought on 23 December 1997 by Hanne Norup Carlsen and Others against the Council of the European Union (Case T-610/97)

text:
C 55/32               EN                 Official Journal of the European Communities                                    20.2.98
Ð order the Commission to pay the entire costs.                     The applicants claim that the Court should:
Pleas in law and main arguments adduced in support:                 Ð annul the decision of the Council of the European
                                                                         Union of 3 November 1997 in so far as the Council
The applicant, formerly a temporary servant of the                       thereby refuses to release documents from the Legal
European Commission, has already brought two cases                       Services, including in particular:
before the Court of First Instance (1). The essential facts in
the present case are the same as those in Case T-47/97.                  Ð DOK.R/2026/77 (ENV.118) (AGRI 563),
The present case is directed against the decision of the                 Ð DOK.R/1867/77 (JUR.95) (ENV.106), and
appointing authority, contained in the letter which the
latter sent to the applicant on 14 January 1997, notified
on 22 January 1997. In that letter, the appointing                       Ð DOK.R/2048 dk/77 (ENV.199) (AGRI 568).
authority refused to accede to the applicant's request to
comply with the judgment of the Court of First Instance
of 27 February 1992 in Case T-165/89 (2) and thus                   Pleas in law and main arguments adduced in support:
withdraw the draft decision, as provided for in Article 19
of the Rules on the Insurance of Officials of the European
Communities against the Risk of Accident and of                     The applicants in the present case have brought
Occupational Disease, which it drew up on 27 November               proceedings against the Danish Prime Minister concerning
1996 on the basis of the medical opinions of new experts.           the question whether he was entitled to ratify the Treaty
In the present action the applicant seeks the annulment of          on European Union, on the ground that accession to that
the decision contained in the letter of 14 January 1997             Treaty was contrary to Article 20 of the Danish Grundlov
which takes a definitive position both as to the validity of        (Basic Law), which provides that powers vested in the
the draft decision of 27 November 1996 and on the sole              authorities of the Kingdom may, to a specified extent, be
means of challenging that action (by Committee). The                transferred by legislation to international authorities. The
applicant pleads breach of res judicata as well as failure to       case is at present pending before the Danish Hùjesteret
comply with the judgment in Case T-165/89, misuse of                (Supreme Court).
powers, infringement of Articles 18 and 19 of the
Insurance Rules, breach of the principle of sound
management as enshrined, for example, in Article 15 of              In the proceedings before the Hùjesteret, it has, according
Annex VIII to the Staff Regulations and, in the alternative,        to the applicants, become essential to gain access to
infringement of Article 73 of the Staff Regulations and             certain documents of the Council of the European Union
Article 12 of the Insurance Rules.                                  concerning legal measures which indicate the extent of the
                                                                    competence transferred to the European Union by the
                                                                    Danish legislation governing accession, including in
(1) Case T-165/89 (OJ C 23, 31.1.1990, p. 9); Case T-47/97 (OJ
    C 142, 10.5.1997, p. 22).                                       particular the question of the application of Article 235 of
(2) [1992] ECR II-367.                                              the Treaty prior to the Maastricht Treaty. During the
                                                                    proceedings before the Hùjesteret, the applicants requested
                                                                    that the Danish Government be ordered to produce a long
                                                                    list of documents, relating in particular to the views
                                                                    expressed by the other Member States and the Council's
                                                                    Legal Service regarding the legal basis for Council
                                                                    Directive 79/409/EEC of 2 April 1979 on the conservation
Action brought on 23 December 1997 by Hanne Norup                   of wild birds (OJ L 103, 25.4.1979, p. 1), and the
Carlsen and Others against the Council of the European              applicants' pleas were upheld in part by order of the
                              Union                                 Hùjesteret of 3 November 1997. The Hùjesteret did not in
                       (Case T-610/97)                              this connection address the issue of the release of
                                                                    documents held by the Council, an issue of which the
                          (98/C 55/63)                              applicants had notified the Council prior to the order.
               (Language of the case: Danish)
                                                                    In the contested decision, the Council acceded to the
                                                                    request for the release of documents, with the exception of
An action against the Council of the European Union was             those setting out the views of the Legal Services of the
brought before the Court of First Instance of the European          Council and the Commission, to which the applicants also
Communities on 23 December 1997 by Hanne Norup                      sought access. The Council stated in this connection that
Carlsen, Ingeborg Fangel, Nicolas Fischer, Jùrgen Erik              those views, in accordance with consistent practice, would
Hansen, Marianne Henriksen, Ole Donbñk Jensen,                      not be released, on the ground that publication of the
Yvonne Petersen, Iver Reedtz-Thott, Lars Ringholm and               opinions of the Legal Services on issues dealt with by the
Arne Würgler, represented by Karen Dyekjñr-Hansen, of               Council could adversely affect the public interest in the
the Copenhagen Bar, with an address for service in                  maintenance of legal certainty and the stability of
Luxembourg at the Chambers of Aloyse May, 31 Grand-                 Community law, as well as the public interest in ensuring
Rue.                                                                that the Council has access to independent legal advice.
 ---pagebreak--- 20.2.98              EN                  Official Journal of the European Communities                                  C 55/33
In support of their plea in law, the applicants argue that          Menen (Belgium), represented by P. Cavenaille and K.
the Council has failed to comply with the duty to state             Tanghe, of the LieÁge Bar, with an address for service in
reasons pursuant to Article 190 of the Treaty. The Council          Luxembourg at the Chambers of A. Schmitt, 62, avenue
has failed to explain adequately why release of the                 Guillaume.
documents to which access has been refused should be
contrary to the public interest'. Since the reason given
consists merely in a standard reference to opinions drafted         The applicant claims that the Court should:
by the Legal Services being exempted en bloc from the
right of access, without any kind of specific consideration
being paid as to whether the interests invoked regarding            Ð declare the application admissible and well founded,
the maintenance of legal certainty and the stability of
Community law apply in regard to the documents
requested, the decision must on that ground alone be                Ð rule that the defendants are liable for the damage
annulled as being vitiated by fundamental procedural                    suffered by the applicant,
defects.
                                                                    Ð consequently, order the defendants jointly and
The applicants further argue that the decision is contrary              severally to pay a sum provisionally fixed at
to fundamental principles of law concerning application of              BEF 46 655 281, subject to increase or decrease during
the Treaty, including in particular the principle in force on           the course of the proceedings, together with 8 %
transparency in the decision-making process (see                        interest from 1 January 1993, the date on which the
Declaration No 17 in the Final Act to the Treaty on                     damage was effectively suffered, to the date of
European Union, the Code of Conduct concerning Public                   payment in full,
Access to Council and Commission Documents (93/730/
EC, OJ L 340, 31.12.1993, p. 41), and Council Decision
93/731/EC of 20 December 1993 on public access to                   Ð order the defendants jointly and severally to pay the
Council documents (OJ L 340, 31.12.1993, p. 43)). The                   costs.
applicants submit in this connection that the exceptions to
the fundamental principle of transparency must be
                                                                    Pleas in law and main arguments adduced in support:
narrowly construed, and the Council cannot therefore
exempt an entire group of documents from the right of
access merely on the basis of their origin. On the contrary,        The applicant, a firm of customs agents, complains that
an examination must be made in each case as to whether              the defendants ruined its intra-Community business with
the interests referred to in the Code of Conduct provide            effect from 1 January 1993 by abolishing customs controls
justification for exempting a specific document from the            and formalities at internal borders through a series of acts
right of access. There are in this case no such specific            which it specifies in detail. It also complains that the
interests such as could justify the refusal to grant access.        defendants failed to adopt any effective transitional
                                                                    measures enabling customs agents progressively to adapt
                                                                    to the new situation. In that regard, it pleads inter alia
In the alternative, the applicants submit that the interests
                                                                    breach of acquired rights and violation of the principle of
pleaded by the Council do not appear to apply in regard
                                                                    the protection of legitimate expectations.
to the documents which they have requested. On the
contrary, the maintenance of legal certainty and the
stability of Community law can be guaranteed by allowing
the public to discover the full basis on which the Council
has adopted secondary legal measures.
                                                                    Action brought on 24 December 1997 by Wybo NV
                                                                    against the Commission of the European Communities
                                                                               and the Council of the European Union
                                                                                (Case T-619/97)
Action brought on 24 December 1997 by Transfluvia NV
against the Commission of the European Communities                                          (98/C 55/65)
           and the Council of the European Union
                      (Case T-611/97)                                              (Language of the case: Dutch)
                        (98/C 55/64)
                                                                    An action against the Commission of the European
                (Language of the case: Dutch)                       Communities and the Council of the European Union was
                                                                    brought before the Court of First Instance of the European
                                                                    Communities on 24 December 1997 by Wybo NV, of
An action against the Commission of the European                    Poperinge (Belgium), represented by P. Cavenaille and K.
Communities and the Council of the European Union was               Tanghe, of the LieÁge Bar, with an address for service in
brought before the Court of First Instance of the European          Luxembourg at the Chambers of A. Schmitt, 62, avenue
Communities on 24 December 1997 by Transfluvia NV, of               Guillaume.


title: Case T-481/17: Action brought on 2 August 2017 — Fundación Tatiana Pérez de Guzmán el Bueno and SFL v SRB

text:
               25.9.2017

               EN

               Official Journal of the European Union

               C 318/19

         Action brought on 2 August 2017 — Fundación Tatiana Pérez de Guzmán el Bueno and SFL v SRB
   (Case T-481/17)
   (2017/C 318/25)
   Language of the case: Spanish

      Parties

      Applicants: Fundación Tatiana Pérez de Guzmán el Bueno (Madrid, Spain) and SFL — Stiftung für Forschung und Lehre (Zurich, Switzerland) (represented by: R. Pelayo Jiménez and A. Muñoz Aranguren, lawyers)

      Defendant: Single Resolution Board

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision of the Single Resolution Board of 7 June 2017 (SRB/EES/2017/08);

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   The pleas in law and main arguments are those relied on in Case T-478/17, Mutualidad de la Abogacía and Hermandad Nacional de Arquitectos Superiores y Químicos v SRB.


title: Case T-382/06: Action brought on 15 December 2006 — Tomkins v Commission

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/30

         Action brought on 15 December 2006 — Tomkins v Commission
   (Case T-382/06)
   (2007/C 42/52)
   Language of the case: English
   Parties

      Applicant: Tomkins plc (London, United Kingdom) (represented by: T. Soames and S. Jordan, solicitors)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Article 1 of Commission Decision of 20 September 2006 (Case COMP/F-1/38.121 — Fittings — C(2006) 4180 final) relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement, insofar as it relates to the applicant; or in the alternative

               —

               amend Article 2(h) of the contested decision so as to reduce the fine imposed on the applicant and on Pegler; and

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant seeks annulment of Article 1 of Commission Decision C(2006) 4180 final of 20 September 2006 in Case COMP/F-1/38.121 — Fittings, by which the Commission found the applicant, jointly and severally liable with Pegler Ltd for an infringement of Article 81 EC in the Copper Fittings industry from 31 December 1988 to 22 March 2001 and ordered it to pay a fine of EUR 5.25 million. In the alternative, the applicant seeks to amend Article 2(h) of the contested decision.
   The applicant contends that the Commission infringed Article 230 EC on the following grounds:
   First, the Commission has allegedly breached the rules governing the responsibility of parent companies for the acts of their subsidiaries by holding the applicant jointly and severally liable for the conduct of Pegler, one of the applicant's former subsidiaries. In that sense, the applicant claims that the Commission made a manifest error in law by incorrectly stating the legal basis for parent company liability and incorrectly applying the test for shareholder liability in a factual setting where it should not apply. Moreover, the applicant submits that the Commission erred in relying on the applicant's alleged scope of business in the construction sector as relevant to the question of whether the applicant was purely a financial investor delegating operational responsibility to Pegler at the local business unit level. Further still, the Commission's elimination of its own burden to establish shareholder liability and the raising of the burden for the shareholder in this case infringes the principle of presumption of innocence.
   Second, the applicant alleges that the Commission committed a manifest error of fact and has failed to prove to the requisite legal standard any decisive influence by the applicant on the commercial conduct of Pegler. According to the applicant's submissions the facts do not establish the applicant's liability either under (a) the correct law that was either not applied or misapplied by the Commission, or (b) the incorrect law as stated by the Commission.
   Third, the applicant contends that the Commission has failed to state adequately why the evidence submitted by the applicant was insufficient to rebut the presumption of decisive influence.
   Fourth, the applicant maintains that the Commission applied the wrong standard in imposing an uplift for deterrence, and failed properly to assess the evidential basis for calculating the length of Pegler's participation in the cartel, thus arriving at an unfounded and inaccurate determination of the duration of the infringement.


title: Case F-120/07: Action brought on 22 October 2007 — Strack v Commission

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/50

         Action brought on 22 October 2007 — Strack v Commission
   (Case F-120/07)
   (2007/C 315/95)
   Language of the case: German
   Parties

      Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Tribunal should:

               —

               Annul the decisions of the European Commission of 30 May 2005, 25 October 2005, 15 March 2007 and 20 July 2007 to the extent that they limit to 12 the number of days of unused annual leave for 2004 which the applicant was allowed to carry over to the following year and to limit accordingly the compensation for unused leave paid to the applicant at the time that he left the service;

               —

               Order the European Commission to pay the applicant financial compensation for 26,5 days unused leave in respect of which no compensation has been paid in accordance with the second paragraph of Article 4 of Annex V to the Staff Regulations, plus interest, from 1 April 2005, at a rate of 2 % per year above the main refinancing operations rate fixed by the European Central Bank for the period in question;

               —

               Order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   In support of his application, the applicant invokes an infringement of the first and second paragraphs of Article 4 of Annex V to the Staff Regulations and of the defendant's Administrative Notice No 66-2002. According to those provisions, he was entitled to carry over in its entirety to 2005 that part of his annual leave for 2004 which, by reason of the requirements of the service, he had been unable to use up before the end of the calendar year 2004, something which the defendant's contested decision refused him permission to do. He was unable to use up his leave due to the illness which the defendant has in the interim accepted is occupational in nature.
   The applicant also claims that it can be seen from the accessory claim for damages that the defendant unlawfully refused to pay the compensation due to the applicant in accordance with the second paragraph of Article 4 of Annex V to the Staff Regulations at the time that the applicant left the active service.


title: Case F-40/13: Action brought on 7 May 2013 — ZZ v Commission

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/60

         Action brought on 7 May 2013 — ZZ v Commission
   (Case F-40/13)
   2013/C 207/103
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision on the transfer of the applicant’s pension rights into the pension scheme of the institutions of the European Union which applies the new General Implementing Provisions concerning Articles 11 and 12 of Annex VIII to the Staff Regulations.

      Form of order sought

               —

               declare unlawful Article 9 of the General Implementing Provisions of Article 11(2) of Annex VIII to the Staff Regulations;

               —

               annul the decision of 11 October 2012 upholding the application of the parameters set out in the General Implementing Provisions of Article 11(2) of Annex VIII to the Staff Regulations of 3 March 2011 in respect of the transfer of the applicant’s pension rights;

               —

               order the Commission to pay the costs.


title: Case C-415/11: Judgment of the Court (First Chamber) of 14 March 2013 (request for a preliminary ruling from the Juzgado de lo Mercantil No 3 de Barcelona — Spain) — Mohamed Aziz v Caixa d’Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa) (Directive 93/13/EEC — Consumer contracts — Mortgage loan agreement — Mortgage enforcement proceedings — Powers of the court hearing the declaratory proceedings — Unfair terms — Assessment criteria)

text:
               18.5.2013

               EN

               Official Journal of the European Union

               C 141/5

         Judgment of the Court (First Chamber) of 14 March 2013 (request for a preliminary ruling from the Juzgado de lo Mercantil No 3 de Barcelona — Spain) — Mohamed Aziz v Caixa d’Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa)
   (Case C-415/11) (1)

   (Directive 93/13/EEC - Consumer contracts - Mortgage loan agreement - Mortgage enforcement proceedings - Powers of the court hearing the declaratory proceedings - Unfair terms - Assessment criteria)
   2013/C 141/07
   Language of the case: Spanish

      Referring court

   Juzgado de lo Mercantil No 3 de Barcelona

      Parties to the main proceedings

      Applicant: Mohamed Aziz

      Defendant: Caixa d’Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa)

      Re:

   Request for a preliminary ruling — Juzgado de lo Mercantil — Interpretation of points 1(a) and (q) of the Annex to Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Terms with the object or effect of requiring a consumer in breach of his obligations to pay a disproportionately high amount in compensation — Mortgage loan agreement — Provisions of national procedural law relating to the procedure for enforcement in respect of mortgaged or pledged property restricting the grounds of objection which can be raised by the consumer subject to enforcement.

      Operative part of the judgment

               1.

               Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which, while not providing in mortgage enforcement proceedings for grounds of objection based on the unfairness of a contractual term on which the right to seek enforcement is based, does not allow the court before which declaratory proceedings have been brought, which does have jurisdiction to assess whether such a term is unfair, to grant interim relief, including, in particular, the staying of those enforcement proceedings, where the grant of such relief is necessary to guarantee the full effectiveness of its final decision.

               2.

               Article 3(1) of Directive 93/13 must be interpreted as meaning that:

                           —

                           the concept of ‘significant imbalance’ to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out;

                           —

                           in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

                     Article 3(3) of Directive 93/13 must be interpreted as meaning that the annex to which that provision refers contains only an indicative and non-exhaustive list of terms which may be regarded as unfair.

      (1)  OJ C 331, 12.11.2011.


title: Case T-290/17: Action brought on 16 May 2017 — Stavytskyi v Conseil

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/40

         Action brought on 16 May 2017 — Stavytskyi v Conseil
   (Case T-290/17)
   (2017/C 231/49)
   Language of the case: English

      Parties

      Applicant: Edward Stavytskyi (Belgium) (represented by: M. J. Grayston, Solicitor, Mes P. Gjørtler, G. Pandey and D. Rovetta, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ L 58, p. 34), and Council Implementing Regulation (EU) 2017/374 of 3 March 2017 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ L 58, p. 1), in so far as these acts retain the applicant in the list of persons and entities made subject to the restrictive measures;

               —

               order the Council to bear the costs of the present proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the listing legislation violates the principle of proportionality, as it allows for listing on the basis merely of being subject to criminal proceedings, and that consequently the contested acts have been acted on an illegal basis.

               2.

               Second plea in law, alleging that the Council committed a manifest error of assessment, as it did not have sufficiently solid factual basis for listing the applicant on the ground that he was subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds and assets.

               3.

               Third plea in law, alleging an insufficient statement of reasons, as, in the contested acts, the Council gave an insufficient and stereotypical statement of reasons, as it merely copied the text found in the listing legislation.

               4.

               Fourth plea in law, alleging an incorrect legal basis, as the measures taken by the Council do not, in relation to the applicant, constitute foreign policy measures, but instead constitute international cooperation in criminal proceedings, which accordingly have been adopted on an incorrect legal basis.


title: Case C-321/14: Request for a preliminary ruling from the Landgericht Krefeld (Germany) lodged on 4 July 2014  — Colena AG v Karnevalservice Bastian GmbH

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/40

         Request for a preliminary ruling from the Landgericht Krefeld (Germany) lodged on 4 July 2014 — Colena AG v Karnevalservice Bastian GmbH
   (Case C-321/14)
   2014/C 315/64
   Language of the case: German

      Referring court

   Landgericht Krefeld

      Parties to the main proceedings

      Applicant: Colena AG

      Defendant: Karnevalservice Bastian GmbH

      Questions referred

               1.

               Must Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (1) be interpreted as meaning that a product which does not come under Regulation No 1223/2009 must comply with the requirements of that regulation solely by reason of a statement on the outer packaging that the product is a ‘cosmetic eye accessory which is subject to the EU cosmetics directive’?

               2.

               Must Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products be interpreted as meaning that so-called themed contact lenses, which do not have any corrective function, come within the scope of that regulation?

      (1)  OJ 2009 L 342, p. 59.


title: Case T-136/15: Action brought on 20 March 2015 — Evropaïki Dynamiki/Parliament

text:
               13.7.2015

               EN

               Official Journal of the European Union

               C 228/17

         Action brought on 20 March 2015 — Evropaïki Dynamiki/Parliament
   (Case T-136/15)
   (2015/C 228/20)
   Language of the case: English

      Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: I. Ampazis and M. Sfyri, lawyers)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of 13 February 2015 (302534) of the vice president of the European Parliament rejecting the confirmatory application of the applicant for access to European Parliament documents relating to all requests for quotation in all lots of Call for Tenders No ITS08 — External service provision for IT services 2008S/149-199622 (pursuant to Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents) and confirming the decision of the Parliament’s Secretary General dated 18 December 2014, and

               —

               order the Parliament to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if the application is rejected.

      Pleas in law and main arguments

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

               1.

               First, the applicant argues that the Parliament did not proceed to an individual assessment of the requested documents and refused even partial access to the requested documents, in breach of article 4(6) of Regulation No 1049/2001 (1).

               2.

               Second, the applicant contends that the justifications provided for by the Parliament with regards to the protection of public security, privacy of the individual, commercial interests of a natural or legal person and decision making progress should be rejected as wholly unfounded.

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


title: Case C-435/05: Judgment of the Court (Fourth Chamber) of 8 February 2007 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Investrand BV v Staatssecretaris van Financiën (Sixth VAT Directive — Article 17(2) — Right to deduct — Costs related to advisory services obtained in the course of arbitration proceedings to establish the amount of a claim that forms part of a company's assets, but arose before its holder became liable to VAT)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/6

         Judgment of the Court (Fourth Chamber) of 8 February 2007 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Investrand BV v Staatssecretaris van Financiën
   (Case C-435/05) (1)

   (Sixth VAT Directive - Article 17(2) - Right to deduct - Costs related to advisory services obtained in the course of arbitration proceedings to establish the amount of a claim that forms part of a company's assets, but arose before its holder became liable to VAT)
   (2007/C 82/10)
   Language of the case: Dutch
   Referring court
   Hoge Raad der Nederlanden (Netherlands)
   Parties to the main proceedings

      Applicant: Investrand BV

      Defendant: Staatssecretaris van Financiën
   Re:
   Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 17(2) 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) — Services paid for by a taxable person with a view to establishing the amount of a claim which arose before he became a taxable person — Deduction of the tax — Need for a direct and immediate link between the services and his activity as a taxable person or not
   Operative part of the judgment
   Article 17(2) 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, is to be interpreted as meaning that the costs for advisory services which a taxable person obtains with a view to establishing the amount of a claim forming part of his company's assets and relating to a sale of shares prior to his becoming liable to VAT do not, in the absence of evidence establishing that the exclusive reason for those services is to be found in the economic activity, within the meaning of that directive, carried out by the taxable person, have a direct and immediate link with that activity and, consequently, do not give rise to a right to deduct the VAT charged on them.

      (1)  OJ C 74, 25.3.2006.


title: Case C-369/06: Action brought on 8 September 2006 — Commission of the European Communities v Republic of Austria

text:
               28.10.2006

               EN

               Official Journal of the European Union

               C 261/15

         Action brought on 8 September 2006 — Commission of the European Communities v Republic of Austria
   (Case C-369/06)
   (2006/C 261/27)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: T. Scharf and K. Gross, Agents)

      Defendant: Republic of Austria
   Form of order sought

               —

               declare that, by failing to transpose Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings (1), the Republic of Austria has failed to fulfil its obligations under both Article 2 of the Directive and the third paragraph of Article 249 EC;

               —

               order the Republic of Austria to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposition of the Directive expired on 31 July 2001.

      (1)  OJ 2000 L 193, p. 75.


title: Case T-282/07: Action brought on 24 July 2007 — Tailor v OHIM (Gesäßtasche links)

text:
               6.10.2007

               EN

               Official Journal of the European Union

               C 235/15

         Action brought on 24 July 2007 — Tailor v OHIM (Gesäßtasche links)
   (Case T-282/07)
   (2007/C 235/28)
   Language of the case: German
   Parties

      Applicant: Tom Tailor GmbH (Hamburg, Germany) (represented by: S.O. Gillert, K. Vanden Bossche and F. Schiwek, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2007 (Case R 669/2006-1);

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: The figurative mark ‘Gesäßtasche links’ for goods in Class 25 (Application No 4 287 751).

      Decision of the Examiner: Rejection of the application.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), as the figurative mark applied for is sufficiently distinctive.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).