title: Case C-406/05: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of  18 November 2005  in Staatssecretaris van Financiën v P. Jurriëns Beheer BV

text:
               28.1.2006

               EN

               Official Journal of the European Union

               C 22/8

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 18 November 2005 in Staatssecretaris van Financiën v P. Jurriëns Beheer BV
   (Case C-406/05)
   (2006/C 22/14)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by judgment of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) of 18 November 2005, received at the Court Registry on 21 November 2005, for a preliminary ruling in the proceedings between Staatssecretaris van Financiën and P. Jurriëns Beheer BV on the following questions:

               1.

               As regards the management of a collective investment fund, is the application of Article 13B(d)(6) of the Sixth Directive (1) dependent merely on the nature of the service provided or is application thereof also subject to the condition that the management services are provided by the person who maintains a legal relationship with the participants in the fund concerned?

               2.

               Can a service agreed with an organisation which, in regard to its business activities, consists of the management of a collective investment fund, be deemed to constitute management for the purposes of the exemption mentioned under Question 1 if the person performing the service does so in his capacity as a director of that organisation?

      (1)  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).


title: Case C-656/16: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 December 2016 — Finmeccanica SpA v Commissione Nazionale per le Società e la Borsa (Consob)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/10

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 December 2016 — Finmeccanica SpA v Commissione Nazionale per le Società e la Borsa (Consob)
   (Case C-656/16)
   (2017/C 121/15)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicant: Finmeccanica SpA

      Defendant: Commissione Nazionale per le Società e la Borsa (Consob)

      Question referred

   Is the proper application of the second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, (1) in the light of the general principles laid down in Article 3(1) thereof, and the proper application of the general principles of European law relating to legal certainty, protection of legitimate expectations, proportionality, reasonableness, transparency and non-discrimination, prevented by a provision of national law such as Article 106(3)(d)(2) of Legislative Decree No 58 of 24 February 1998 (consolidating all provisions in the field of financial intermediation within the meaning of Articles 8 and 21 of Law No 52 of 6 February 1996), as subsequently amended, and Article 47 octies of the Decision of the Commissione Nazionale per le Società e la Borsa — Consob No 11971 of 14 May 1999 (Order implementing Legislative Decree No 58 of 24 February 1998 laying down rules applicable to offerees), as subsequently amended, in so far as those provisions authorise Consob to increase the takeover bid as referred to in Article 106 where the condition that ‘there has been collusion between the offeror or the persons acting in concert with it and one or more sellers’ is fulfilled, without identifying the specific actions which constitute such a situation, and thus without determining clearly the conditions and criteria under which Consob is authorised to adjust upwards the price of the takeover bid?

      (1)  OJ 2004 L 142, p. 12.


title: Case C-58/02: Action brought on 25 February 2002 by the Commission of European Communities against Kingdom of Spain

text:
C 109/30               EN                  Official Journal of the European Communities                                     4.5.2002
—     in refusing to grant the Appellant the same reduction of        Action brought on 26 February 2002 by the Commission
      fine as that granted to other participants because the          of the European Communities against the United
      Appellant denied its participation in an infringement,                Kingdom of Great Britain and Northern Ireland
      the Court of First Instance has violated fundamental
      principles of law (right of defence) recognised by the
      Court of Justice in its case-law.                                                        (Case C-62/02)
                                                                                (2002/C 109/52)
(1) OJ C 137, 02.05.98, p. 20.
                                                                      An action against the United Kingdom of Great Britain and
                                                                      Northern Ireland was brought before the Court of Justice of
                                                                      the European Communities on 26 February 2002 by the
                                                                      Commission of the European Communities, represented by
                                                                      Michael Shotter, acting as agent, with an address for service in
Action brought on 25 February 2002 by the Commission                  Luxembourg.
   of European Communities against Kingdom of Spain
                                                                      The Applicant claims that the Court should:
                          (Case C-58/02)
                                                                      —     declare that by failing to adopt the laws, regulations
                         (2002/C 109/51)                                    and administrative provisions necessary to comply with
                                                                            Directive 1999/94/EC of the European Parliament and of
                                                                            the Council of 13 December 1999 relating to the
                                                                            availability of consumer information on fuel economy
An action against the Kingdom of Spain was brought before                   and CO2 emissions in respect of the marketing of new
the Court of Justice of the European Communities on 25 Febru-               passenger cars (1) or, in any event, by failing to notify
ary 2002 by the Commission of the European Communities,                     such provisions to the Commission, the United Kingdom
represented by Gregorio Valero Jordana and Michael Shotter,                 of Great Britain and Northern Ireland has failed to fulfil
acting as Agents, with an address for service in Luxembourg at              its obligations under Article 12(1) and 12(2) of this
the office of Luis Escobar, Wagner Centre, C 254.                           Directive;
                                                                      —     order the United Kingdom to pay the costs.
The applicant claims that the Court should:
—     Declare that, by failing to adopt and bring into force
      within the prescribed period the laws, regulations and
                                                                      Pleas in law and main arguments
      administrative provisions necessary to comply with
      Directive 98/84/EC of the European Parliament and of
      the Council of 20 November 1998 on the legal protection
      of services based on, or consisting of, conditional             Article 249 EC, under which a directive shall be binding as to
      access (1), the Kingdom of Spain has failed to fulfil its       the result to be achieved, upon each Member State, carries by
      obligations under that directive;                               implication an obligation on the Member States to observe the
                                                                      period for compliance laid down in the directive. That period
                                                                      expired on 18 January 2001 without the United Kingdom
—     Order the Kingdom of Spain to pay the costs.
                                                                      having informed the Commission of the provisions adopted to
                                                                      comply with the directive referred to in the conclusions of the
                                                                      Commission.
Pleas in law and main arguments
                                                                      Since the Commission is in possession of no other information
                                                                      enabling it to conclude that the United Kingdom has adopted
The pleas in law and main arguments are similar to those put          the necessary provision, it is compelled to assume that the
forward in Case C-44/02 (2); the time-limit for transposition         United Kingdom has failed to fulfil its obligations under the
expired on 28 May 2000.                                               Directive.
(1) OJ 1998 L 320, p. 54.
(2) OJ C 97, 20.4.2002, p. 4.                                         (1) OJ L 12, 18.1.2000, p. 16.


title: Reference for a preliminary ruling from the Tribunal du Travail, Charleroi, by judgment of that court of 18 March 1997 in the case of Henia Babahenini v. Belgian State (Case C-113/97)

text:
10 . 5 . 97           EN                    Official Journal of the European Communities                                     No C 142/ 13
     transposing measure merely that those provisions                  ( Federal Procurement Office ) of 25 November 1996,
     remain in force to the extent that they do not conflict           which was received at the Court Registry on 17 March
     with the new national legislation ?                               1997, for a preliminary ruling in the review proceedings
                                                                       brought by the applicant, EvoBus Austria GmbH, against
                                                                       the contracting entity, Niederosterreichische Verkehrsorga
2 . Do Articles 10 ( 2 ) and 15 ( 2 ) of Council Directive 89/
                                                                       nisations Gesellschaft mbH (NOVOG ), on the following
     398/EEC of 3 May 1989 on the approximation of the                 questions:
     laws of the Member States relating to foodstuffs
     intended for particular nutritional uses ( OJ No L 186,
     30 . 6 . 1989, p. 27) authorize a State to continue to
     apply rules which predate the Directive and the                   1 . May an individual derive, from the abovemen
     measure transposing it ?                                                 tioned (') or other provisions of Directive 92/13/EEC,
                                                                              a specific right to have review proceedings conducted
                                                                              before authorities or courts or tribunals complying
3 . Does the classification, by Council Directive 89/398/                     with Article 2 ( 9 ) of Directive 92/13/EEC which is so
     EEC of 3 May 1989 on the approximation of the laws                       sufficiently precise and specific that, in the event of
     of the Member States, of foodstuffs intended for                         non-transposition by a Member State of the provisions
     particular nutritional uses into nine groups ( referred to               of the Directive in question, an individual may rely on
     in Annex I thereto ), which are to be the subject of                     that provision ?
     specific directives, and into foodstuffs not falling
     within those groups, for which there is no provision
     for such directives, allow a Member State to apply                2 . In conducting a review procedure, must a national
     rules founded on a classification based on a distinction                 court constituted on the lines of the Bundesvergabeamt
     between dietary products and dietetic products or on a                   disregard provisions of national law such as
     distinction between foodstuffs for infants and young                     paragraph 7 (2 ) in conjunction with paragraph 67 ( 1 )
     children and foodstuffs other than those intended for                    of the Bundesvergabegesetz (Federal Procurement
     infants and young children ?                                             Law ) which preclude it from conducting a review
                                                                              procedure even where such review procedure is
4 . Do Articles 10 ( 2 ) and 15 ( 2 ) of Council Directive 89/                intended by the national legislature solely to serve the
     398/EEC of 3 May 1989 on the approximation of the                        purpose of transposing Directive 89/665/EEC (2 )?
     laws of the Member States relating to foodstuffs
     intended for particular nutritional uses, which do not
     affect the application of national measures in the event          3 . Must the adjudicating court disregard those or any
     that specific directives as provided for in Article 4 of                 comparable procedural provisions of national law in
     the Directive are not adopted, preclude individuals                      such circumstances, if they impede or prevent a review
     from relying on the provisions of the Directive in                       procedure from being effectively conducted ?
     order to challenge the detailed measures of
     transposition adopted by the Member States and to                 (') Article 1 ( 1 ) to ( 3 ) and Article 2 ( 1 ) and 2 ( 7) to ( 9 ) of
     have them declared inapplicable by the national courts                  Council Directive 92/13/EEC of 25 February 1992
     to the extent that they conflict with the provisions of                 coordinating the laws, regulations and administrative
     the Directive ?                                                         provisions relating to the application of Community rules on
                                                                             the procurement procedures of entities operating in the water,
                                                                             energy, transport and telecommunications sectors ( OT No L 76 ,
5.   Does not the fact that foodstuffs are controlled within                 23 . 3 . 1992 , p. 14 ).
     the framework of Community Directives imply that                  ( 2 ) Council Directive 89/665/EEC of 21 December 1989 on the
     States must, when carrying out such control, observe                    coordination of the laws, regulations and administrative
     the general Community principles, in particular the                     provisions relating to the application of review procedures to
     protection of legitimate expectations ?                                 the award of public supply and public works contracts ( OJ No
                                                                             L 395 , 30 . 12 . 1989 , p. 33 ).
Reference for a preliminary ruling from the
Bundesvergabeamt, by order of that court of 25 November                Reference for a preliminary ruling from the Tribunal du
1996 in the review proceedings brought by the applicant,               Travail, Charleroi, by judgment of that court of 18 March
EvoBus Austria GmbH, against the contracting entity,                         1997 in the case of Henia Babahenini v. Belgian State
Niederosterreichische Verkehrsorganisations Gesellschaft
                                                                                Case C-l 13/97
                        mbH (NOVOG )
                        ( Case C-l 11 /97 )                                                           ( 97/C 142/28 )
                          ( 97/C 142/27
                                                                       Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the                 European Communities by a judgment of the Tribunal du
European Communities by order of the Bundesvergabeamt                  Travail ( Labour Court), Charleroi, of 18 March 1997,
 ---pagebreak--- No C 142/ 14           EN                 Official Journal of the European Communities                                    10 . 5 . 97
which was received at the Court Registry on 20 March                      pension    fund   within    the meaning     of the     Wet
 1997, for a preliminary ruling in the case of Henia                      betreffende verplichte Deelneming in een Bedrijfspen
Babahenini v. Belgian State on the following question:                    sioenfonds ( Law on Compulsory Participation in an
                                                                          Industrial Pension Scheme )?
In the light of Article 39 of the Cooperation Agreement
between the European Economic Community and the                      4 . Must Articles 86 and 90 of the EC Treaty, read
People's Democratic Republic of Algeria, approved by                      together, be interpreted as meaning that there is an
Regulation ( EEC ) No 2210/78 ('), may a Member State                     infringement of those provisions where the authorities
refuse to grant disablement benefit ( in this case that                   accord an industrial pension scheme an exclusive right
provided for by the Belgian Law of 27 February 1987 ) to                  which gives rise to a serious restriction of the freedom
a disabled person of Algerian nationality who has not                     to make pension arrangements with a private insurer ?
herself worked in Belgium, where that person resides in
Belgium with her spouse, an Algerian national in receipt
of a Belgian retirement pension ?
(') OJ No L 263 , 27. 9 . 1978 , p . 1 .
                                                                     Appeal brought on 22 March 1997 by Union Française de
                                                                     l'Express (UFEX, previously called Syndicat Français de
                                                                     l'Express International, SFEI), DHL International and
                                                                     CRIE against    the judgment delivered on 15 January 1997
                                                                     by the Third     Chamber of the Court of First Instance of
Reference for a preliminary ruling from the                          the European    Communities in Case T-77/95 between SFEI
Kantongerecht, Roermond, by judgments of that court of               and Others       and the Commission of the European
18 March 1997 in the case of Brentjens' Handelsonder                                          Communities
neming BV v. Stichting Bedrijfspensioenfonds voor de
                  Handel in Bouwmaterialen                                                 ( Case C-l 19/97 P )
         ( Cases C-l 15/97, C-116/97 and C-117/97)                                            ( 97/C 142/30 )
                          ( 97/C 142/29 )
                                                                     An appeal against the judgment delivered on 15 January
Reference has been made to the Court of Justice of the               1997 by the Third Chamber of the Court of First Instance
European Communities by judgments of the                             of the European Communities in Case T-77/95 between
Kantongerecht ( Cantonal Court), Roermond, of 18 March               SFEI and Others and the Commission of the European
1997, which were received at the Court Registry on                   Communities was brought before the Court of Justice on
20 March 1997, for a preliminary ruling in the case of               22 March 1997 by Union Française de l'Express (UFEX,
Brentjens' Handelsonderneming BV v. Stichting Bedrijfs              previously called Syndicat Français de l'Express Interna
pensioenfonds voor de Handel in Bouwmaterialen on the                tional, SFEI ), established in Roissy CDG ( France ), DHL
following questions:                                                 International, established in Roissy ( France ), and CRIE,
                                                                     established in Asnières ( France ), represented by Eric
                                                                     Morgan de Rivery, of the Paris Bar, and Jacques Derenne,
1 . Must Article 85 ( 1 ) of the EC Treaty be interpreted as         of the Brussels and Paris Bars, with an address for service
    meaning that there is an agreement or decision of an             in Luxembourg at the Chambers of Alex Schmitt, 62
    undertaking or association of undertakings which                Avenue Guillaume .
    restricts competition or affects trade between Member
    States, as those elements are respectively referred to in
    that provision, where social partners within a                  The appellant claims that the Court should:
    particular sector of activity make agreements
    concerning pensions under which a single industrial
    pension scheme is set up for the whole sector, to which         — annul the judgment of the Court of First Instance
    all workers employed within the sector are in principle              delivered on 15 January 1997 in Case T-77/95 H SFEI
    to be compulsorily affiliated and which is to have the               and Others v. Commission,
    sole right to administer the funds collected for that
    purpose within the sector ?                                     — itself give final judgment in the case in accordance
                                                                         with Article 54 of the EC Statute of the Court of
2 . Must Articles 3 (g), 5 and 85 of the EC Treaty, read                 Justice,
    together, be interpreted as meaning that there is an
    infringement of those provisions where the authorities
    make participation in a single industrial pension               — in the alternative, in the event of the Court not itself
    scheme, as described in Question 1 , compulsory for                  giving final judgment, refer the matter back to a
                                                                         Chamber of the Court of First Instance with a
    undertakings within a particular sector of activity ?
                                                                         different composition,
3 . Must the term 'undertaking', as used in the
    competition provisions (Articles 85 to 94 ) of the EC           — order the Commission to pay the costs or, if it does
    Treaty, be interpreted as including an industrial                    not give final judgment, reserve the costs .


title: Case C-112/13: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 8 March 2013 — A v B and Others

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 226/2

         Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 8 March 2013 — A v B and Others
   (Case C-112/13)
   (2013/C 226/03)
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Defendant and appellant on a point of law: A

      Applicants and respondents in the appeal on a point of law: B and Others

      Questions referred

               1.

               In the case of rules of procedural law under which the ordinary courts called upon to decide on the substance of cases are also required to examine whether legislation is unconstitutional but are not empowered to repeal legislation generally, this being reserved for a specially organised constitutional court, does the ‘principle of equivalence’ in the implementation of European Union law mean that, where legislation infringes Article 47 of the Charter of Fundamental Rights of the European Union (‘the CFR’), the ordinary courts are also required, in the course of the proceedings, to request the constitutional court to set aside the legislation generally, and cannot simply refrain from applying that legislation in the particular case concerned?

               2.

               Is Article 47 of the CFR to be interpreted as precluding a procedural rule under which a court which does not have international jurisdiction appoints a representative in absentia for a party whose place of domicile cannot be established and that representative can then, by ‘entering an appearance’, confer binding international jurisdiction on that court?

               3.

               Is Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that ‘a defendant enters an appearance’, within the meaning of that provision, only where that procedural act was carried out by the defendant himself or by a legal representative authorised by him, or does the foregoing obtain without restriction also in the case of a representative in absentia appointed under the law of the Member State in question?

      (1)  OJ 2001 L 12, p. 1.


title: Case T-222/11: Action brought on 20 April 2011 — Rautenbach v Council and Commission

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/29

         Action brought on 20 April 2011 — Rautenbach v Council and Commission
   (Case T-222/11)
   2011/C 186/55
   Language of the case: English

      Parties

      Applicant: Muller Conrad Rautenbach (Harare, Zimbabwe) (represented by: S. Smith QC, M. Lester, Barristers, and W. Osmond, Solicitor)

      Defendants: Council of the European Union and European Commission

      Form of order sought

               —

               Annul Council Decision 2011/101/CFSP of 15 February 2011 concerning restrictive measures directed against Zimbabwe (OJ 2011 L 42, p. 6) and Commission Regulation (EU) No 174/2011 of 23 February 2011 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2011 L 49, p. 23), insofar as they apply to the applicant; and

               —

               Order the defendants to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that neither Commission Regulation (EU) No 174/2011 nor Council Decision 2011/101/CFSP has a valid legal basis since the institutions concerned acted beyond the ambit of their powers.

               2.

               Second plea in law, alleging that the defendants do not have the power to impose these restrictive measures on the applicant; alternatively, his inclusion is based on a manifest error of assessment, as the defendants erred in concluding that the restrictive measures were justified as regards the applicant.

               3.

               Third plea in law, alleging that the contested measures violate the applicant’s rights of defence and right to effective judicial review.

               4.

               Fourth plea in law, alleging that the defendants have breached their duty to give reasons, as the statement of reasons given does not comply with such obligation incumbent upon EU institutions.

               5.

               Fifth plea in law, alleging that the contested measures impose an unjustified and disproportionate restriction on the applicant’s fundamental rights, specifically on his property rights, freedom to conduct his business and the right to respect for his reputation and family life.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/61

         Action brought on 11 February 2004 by Budějovický Budvar, národní podnik, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-64/04)
   (2004/C 94/155)
   Language of the case: French
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 11 February 2004 by Budějovický Budvar, národní podnik, established in České Budějovice (Czech Republic), represented by Fabienne Fajgenbaum, lawyer.
   Anheuser-Busch, Incorporated, was also a party to the proceedings before the Second Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the decision of the defendant's Second Board of Appeal of 3 December 2003;

               —

               reject the application for the registration of BUD for Class 16 filed on 1 April 1996 on behalf of Anheuser-Busch;

               —

               order Anheuser-Busch to pay the costs.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               Anheuser-Busch, Incorporated

               Community trade mark sought:

               Word mark ‘BUD’ — Application No 24729 in respect of goods in Class 16 (paper etc)

               Proprietor of mark or sign cited in the opposition proceedings:

               Applicant

               Mark or sign cited in opposition:

               Appellations of origin ‘BUD’

               Decision of the Opposition Division:

               Opposition rejected

               Decision of the Board of Appeal:

               Appeal dismissed

               Pleas in law:

               Incorrect application of Article 8(4) of Regulation (EC) No 40/94 (1). The applicant, entitled in France to use the above-mentioned appellations of origin, submits that French law enables it to oppose the registration of the mark sought without having to demonstrate that the appellations in question possess a reputation in France and without having to examine whether the use of the mark at issue could have the consequence of misappropriating or weakening the reputation of those appellations.

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


title: Judgment of the Court (Third Chamber) of 25 February 1999 in Case C-65/97: Commision of the European Communities v. Cascina Laura di Arch. Aldo Delbó e C. and Gariboldi Engineering Company Srl (Article 181 of the EC Treaty - Arbitration clause - Non-performance of a contract)

text:
C 121/4                 EN                      Official Journal of the European Communities                                           1.5.1999
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                         (Third Chamber)
                                                                                (Fifth Chamber)
                       of 25 February 1999
in Case C-65/97: Commission of the European Communi-                                              of 25 February 1999
ties v. Cascina Laura di Arch. Aldo Delbó e C. and
            Gariboldi Engineering Company Srl (1)
                                                                           in Case C-90/97 (reference for a preliminary ruling from
(Article 181 of the EC Treaty — Arbitration clause —                       the Social Security Commissioner): Robin Swaddling v.
                 Non-performance of a contract)                                                  Adjudication Officer (1)
                          (1999/C 121/06)
                                                                           (Social Security — Income support — Conditions of
                                                                                entitlement — Habitual residence)
                    (Language of the case: Italian)
                                                                                (1999/C 121/07)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
In Case C-65/97: Commission of the European Communities                                        (Language of the case: English)
(Agents: Paolo Stancanelli and Jean-francis Pasquier, assisted
by Alberto Dal Ferro) v. Cascina Laura Sas di Arch. Aldo Delbó
e C., in arrangement with its creditors, whose registered office
                                                                           In Case C-90/97: reference to the Court under Article 177 of
is at Casaleggio Novara (Italy), in the person of its provisional
                                                                           the EC Treaty by the Social Security Commissioner (United
legal representative, and Gariboldi Engineering Company Srl,
                                                                           Kingdom) for a preliminary ruling in the proceedings pending
in liquidation, whose registered office is in Milan (Italy), in the
person of its liquidator, Ester Dallarosa, represented by Alberto          before that court between: Robin Swaddling and Adjudication
Croze, Rodolfo Radice and Cristina Ravelli, of the Milan Bar               Officer — on the interpretation of Article 48 of the EC Treaty
                                                                           — the Court (Fifth Chamber), composed of: P. Jann, President
— application under Article 181 of the EC Treaty for
                                                                           of the First Chamber, acting as President of the Fifth Chamber,
reimbursement of monies paid under contract No BM 5/89 IT,
                                                                           J.C. Moitinho de Almeida (Rapporteur), C. Gulmann, L. Sevón
terminated by the applicant for non-performance by the
defendants — the Court (Third Chamber), composed of: J.-P.                 and M. Wathelet, Judges; Advocate-General: A. Saggio; L.
Puissochet (Rapporteur), President of the Chamber, J. C. Moit-             Hewlett, Administrator, for the Registrar, has given a judgment
                                                                           on 25 February 1999, in which it held that:
inho de Almeida and C. Gulmann, Judges; A. Saggio, Advocate-
General; L. Hewlett, Administrator, for the Registrar, has given
a judgment on 25 February 1999, in which it:
                                                                           Article 10a of Council Regulation (EEC) No 1408/71 of 14 June
                                                                           1971 on the application of social security schemes to employed
                                                                           persons, to self-employed persons and to members of their families
1. takes formal note that the Commission of the European                   moving within the Community, as amended and updated by Council
     Communities has withdrawn its claims against Cascina Laura            Regulation (EEC) No 2001/83, as amended by Council Regulation
     Sas di Arch. Aldo Delbó e C.;                                        (EEC) No 1247/92, read toegether with Article 1(h) thereof,
                                                                           precludes the Member State of origin — in the case of a person who
2. orders Gariboldi Engineering Company Srl to pay to the applicant        has exercised his right to freedom of movement in order to establish
     the sum of ECU 479 134, together with interest in the amount          himself in another Member State, in which he has worked and set up
     of ECU 1 742 per month from 31 July 1990 until the date of            his habitual residence, and who has returned to his Member State of
     final settlement, plus ECU 2 464 per month from                       origin, where his family lives, in order to seek work — from making
     20 April 1991 until the date of final settlement;                     entitlement to one of the benefits referred to in Article 10a of
                                                                           Regulation (EEC) No 1408/71 conditional upon habitual residence
3. dismisses the remainder of the application;                             in that State, which presupposes not only an intention to reside there,
                                                                           but also completion of an appreciable period of residence there.
4. orders Gariboldi Engineering Company Srl and Cascina Laura
     Sas di Arch. Adldo Delbó e C. jointly and severally to pay the
     costs.
                                                                           (1) OJ C 131, 26.4.1997.
(1) OJ C 131, 26.4.1997.


title: Case F-51/15: Order of the Civil Service Tribunal of 12 May 2016 — FR v EASA

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/37

         Order of the Civil Service Tribunal of 12 May 2016 — FR v EASA
   (Case F-51/15) (1)

   (2016/C 232/47)
   Language of the case: English
   The Judge ordered that the case be removed from the register.

      (1)  OJ C 190, 8/6/2015, p. 37.


title: Case T-504/08: Action brought on 21 November 2008 — Mologen v OHIM (dSLIM)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/49

         Action brought on 21 November 2008 — Mologen v OHIM (dSLIM)
   (Case T-504/08)
   (2009/C 44/86)
   Language of the case: German
   Parties

      Applicant: Mologen AG (Berlin, Germany) (represented by C. Klages, 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 the Office for Harmonisation in the Internal Market of 17 September 2008 in Case R 1077/2007-4;

               —

               order the Office for Harmonisation in the Internal Market to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘dSLIM’ for goods and services in classes 1, 5, 10, 42 and 44 (Application No 5 355 136).

      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) and (c) of Regulation (EC) No 40/94 (1), in that the sign neither lacks distinctive character nor involves a descriptive indication.

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


title: Case T-181/04: Action brought on 17 May 2004 by Nathalie Heinen against Commission of the European Communities

text:
               24.7.2004

               EN

               Official Journal of the European Union

               C 190/19

         Action brought on 17 May 2004 by Nathalie Heinen against Commission of the European Communities
   (Case T-181/04)
   (2004/C 190/32)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 May 2004 by Nathalie Heinen, residing in Ottignies (Belgium), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the decision of the selection board in Competition COM/PB/02 not to include the applicant's name on the reserve list;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:
   The applicant, who took the tests in internal competition COM/PB/02 to move from Category C to Category B, contests the decision of the selection board not to place her on the reserve list drawn up following that competition on the basis of the marks she was awarded in the oral test which, although higher than those required in theory, were insufficient.
   In support of her claims the applicant pleads breach of the notice of competition and breach of the principle of equality of treatment and non-discrimination.
   In that connection the applicant explains that although the notice of competition provided that the candidates had to indicate on their application form their chosen language for the pre-selection tests and for the oral test, with the option of choosing a different language for the oral test, that decision being final, certain candidates were allowed to change language after submitting their application form, some of them on the day of the oral test itself.


title: Case C-193/02: Action brought on 27 May 2002 by the Kingdom of the Netherlands against the Commission of the European Communities

text:
C 191/16                 EN                   Official Journal of the European Communities                                       10.8.2002
Appeal brought on 21 May 2002 against the judgment                       Action brought on 27 May 2002 by the Kingdom of the
delivered on 6 March 2002 by the Third Chamber,                          Netherlands against the Commission of the European
Extended Composition, of the Court of First Instance of                                             Communities
the European Communities in Joined Cases T-92/00 and
T-103/00 (not yet published) between Territorio His-
tórico de Álava — Diputación Foral de Álava and Others                                        (Case C-193/02)
      and Commission of the European Communities
                                                                                (2002/C 191/28)
                          (Case C-188/02 P)
                           (2002/C 191/27)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 27 May 2002 by the Kingdom of the
An appeal against the judgment delivered on 6 March 2002
                                                                         Netherlands, represented by H.G. Sevenster, acting as agent.
by the Third Chamber, Extended Composition, of the Court of
First Instance of the European Communities in Joined Cases
T-92/00 and T-103/00 between Territorio Histórico de Álava
— Diputación Foral de Álava and Others and Commission of               The applicant claims that the Court should:
the European Communities was brought before the Court of
Justice of the European Communities on 21 May 2002 by
Territorio Histórico de Alava — Diputación Foral de Alava,             1.    Annul Commission Decision C(2002) 970 of 12 March
represented by Antonio Creus Carreras and Begoña Uriarte                      2002 reducing by 31,3 %, that is to say by
Valiente, Abogados, of Calle Velázquez no 63, Madrid.                         EUR 147 459 365, the assistance granted from the
                                                                               European Social Fund under Commission decisions
                                                                               approving certain programme documents for Com-
The appellant claims that the Court should:                                    munity structural measures in the Netherlands under
                                                                               objectives 1, 2, 3 and 5b;
1.    declare the present appeal admissible and consequently:
                                                                         2.    Order the Commission to pay the costs.
2.    set aside the judgment of the Court of First Instance of
      6 March 2002;
3.    itself give final judgment in the matter on the basis of the
      appellant’s pleadings at first instance and, in particular,        Pleas in law and main arguments
      annul the decision of the Commission of 22 December
      1999 inasmuch as the tax credit of 45 % of investment              —     Commission’s lack of competence: The Commission
      and the reduction of the taxable amount provided for by                  bases the financial sanction on an (alleged) infringement
      Alava regional legislation in respect of newly-established               of the obligation imposed on the Netherlands by
      undertakings does not constitute aid within the meaning                  Article 23 of Council Regulation (EEC) No 2082/93 (1) to
      of Article 87 EC or, if it should be deemed so to be, is                 establish an adequate management and control system in
      existing aid, pursuant to Article 88 EC and Article 1 of                 order to ensure the efficient implementation of the
      the State aid Rules;                                                     programmes. However, Article 24 of Regulation
                                                                               No 2082/93, on which the financial sanction at issue is
4.    in the alternative, refer the case back to the Court of First            based, does not refer to that obligation but merely
      Instance for judgment, if the Court of Justice should deem               authorises the Commission to reduce or suspend the
      that appropriate;                                                        assistance for the relevant operation or measure if an
                                                                               irregularity occurs ‘in respect of the operation or measure’.
5.    order the Commission to pay the costs in both sets of                    Thus, a financial correction, as referred to in that article,
      proceedings.                                                             may be applied only in the event of irregularities relating
                                                                               to implementation itself or to ‘the nature or conditions
                                                                               for the implementation’ of a (specific) operation or a
                                                                               (specific) measure. At most the financial correction may
                                                                               relate to the amounts established to have been unduly
Pleas in law and main arguments                                                paid; in that connection, therefore, each irregularity must
                                                                               be established individually. A financial correction cannot
                                                                               be based on general failings or defects in the management
are similar to those put forward in Case C-187/02 P.                           and control system governing the implementation of one
                                                                               or (as in this case) several operations or measures. Even if
                                                                               there is a defect in a management and control system,
                                                                               that does not mean that that shortcoming affects the
 ---pagebreak--- 10.8.2002               EN                  Official Journal of the European Communities                                         C 191/17
     ‘nature’ or the ‘conditions for the implementation’ of the              during which records must be kept with payment by
     operation or measure. It was only in Article 39 of Council              the Commission of the final balance confirms, in the
     Regulation No 1260/1999 (2) that the Commission                         Netherlands Government’s view, that in the preceding
     acquired competence in regard to financial corrections                  programme period that period was likewise coupled to
     which take account of ‘the extent and financial impli-                  the last payment by the Member States in respect of the
     cations of the shortcomings found in the management or                  specific project.
     control systems of the Member States’.
                                                                             If nevertheless at the time of the audit by the departmental
                                                                             accountants service the period during which records had
                                                                             to be kept must be deemed not to have expired,
                                                                             infringement of Article 23(3) of Regulation No 2082/93
                                                                             does not warrant a full reduction in assistance.
—    Infringement of Article 24(2) of Regulation No 2082/93:                 On the basis of the data provided by the Netherlands
     To the extent to which the Commission is also authorised                Government in the context of the Article 24 procedure,
     to apply a financial correction in the event of a short-                viewed separately but also together, it is fully and in detail
     coming in the management and control system and                         proven that the reduction of 23,7 % made by the
     provided an interpretation of Article 24 of Regulation                  Commission is incorrect. The photocopies of the original
     No 2082/93 in its internal guidelines of 15 October                     decisions collated (by the external accountant in the
     1997, the Commission is bound from the point of view                    course of his auditing activities, including those made by
     of predictability and legal certainty by those guidelines               him) have the same evidentiary value as the original
     notified to the Member States concerning the approach                   decisions themselves. The alleged limited value of an
     to be followed in regard to financial corrections. The                  external audit does not affect the probative value of the
     Commission has not demonstrated that the shortcoming                    photocopies made by an external accountant and is not
     in the Netherlands system at that time, namely that the                 relevant in this context.
     external accountants ‘merely applied the normal national
     accountancy rules and did not check whether the relevant
     provision of Community law had been observed, such
     as the applicable regulations and certain programme               —     Infringement of the principles of proportionality and
     documents’, gave rise to the irregularity of the lack of any            protection of legitimate expectations: In view of the fact
     project administration or other documents. Since the                    that, after approval of the new management control
     irregularity of the lack of project administration is not of            system in May 1997, the Commission expressed no
     a systematic nature the Commission cannot extrapolate                   reservations in regard to the years 1994 to 1996, it
     the percentage figure of 23,7 % based on it.                            aroused the expectation that the requisite and appropriate
                                                                             corrective measures had already been adopted. The
                                                                             Netherlands Government was no longer required to
                                                                             expect that a correction in the form of an extrapolation
                                                                             could be applied on the basis of a shortcoming established
                                                                             by the Commission in the previous management and
                                                                             control system. It was only in the context of the Article 24
                                                                             procedure that the Commission’s interpretation of
—    Infringement of Article 23(3) of Regulation No 2082/93:                 Article 23(3) of Regulation No 2082/93 became apparent
     The allegation of a lack of project administration at the               together with the consequences attached by it to an
     time of the audit by the departmental accountants service               infringement of obligation there under, irrespective of the
     was in breach of Article 23(3) of Regulation No 2082/                   fact that at the time when the project was being carried
     93. In regard to the individual projects conducted and                  out it was being soundly administered. Those conse-
     completed in the years 1994 to 1996 the project                         quences go beyond what is appropriate and necessary in
     administration only had to keep available records for                   order to attain the objective of the obligation to keep
     three years following the last payment in respect of the                records (which was not clearly and plainly formulated in
     project. At the time of the audit by the departmental                   Regulation No 2082/93).
     accountants service in Summer 2000 that period had
     already expired.
                                                                       (1) Amending Regulation (EEC) No 4253/88 laying down provisions
                                                                           for implementing Regulation (EEC) No 2052/88 as regards
                                                                           coordination of the activities of the different structural funds
     In respect of the new programme period from 2000 to                   between themselves and with the operations of the European
     2006 Article 38(6) of Regulation No 1260/1999 now                     Investment Bank and the other existing financial instruments (OJ
                                                                           1993 L 193, p. 20).
     provides expressly and unambiguously that the support-            (2) OJ 1999 L 161, p. 1.
     ing documents must be kept available for a period of
     three years (...) following the payment by the Commission
     of the final balance in respect of any assistance. The
     fact that the Community legislature plainly intended
     unambiguously to couple commencement of the period


title: Case C-68/07: Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 12 February 2007 — Kerstin Sundelind Lopez v Miquel Enrique Lopez Lizazo

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/23

         Reference for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 12 February 2007 — Kerstin Sundelind Lopez v Miquel Enrique Lopez Lizazo
   (Case C-68/07)
   (2007/C 82/40)
   Language of the case: Swedish
   Referring court
   Högsta domstolen
   Parties to the main proceedings

      Applicant: Kerstin Sundelind Lopez

      Defendant: Miquel Enrique Lopez Lizazo
   Question referred
   The respondent in a case concerning divorce is neither resident in a Member State nor a citizen of a Member State. May the case be heard by a court in a Member State which does not have jurisdiction under Article 3 (1) [of the Brussels II Regulation], even though a court in another Member State may have jurisdiction by application of one of the rules on jurisdiction set out in Article 3?

      (1)  Council Regulation (EC) No 2201/2003 of 27 November 2003, OJ L 338, p. 1.


title: Joined Cases C-256/13 and C-264/13: Judgment of the Court (Third Chamber) of 4 September 2014 (requests for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Provincie Antwerpen v Belgacom NV van publiek recht (C-256/13), Mobistar NV (C-264/13) (Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/20/EC — Article 6 — Conditions attached to the general authorisation and to the rights of use for radio frequencies and for numbers, and specific obligations — Article 13 — Fees for rights of use and rights to install facilities — Regional legislation making undertakings liable to pay a tax on places of business)

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/16

      Judgment of the Court (Third Chamber) of 4 September 2014 (requests for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Provincie Antwerpen v Belgacom NV van publiek recht (C-256/13), Mobistar NV (C-264/13)
      (Joined Cases C-256/13 and C-264/13) (1)

      ((Reference for a preliminary ruling - Electronic communications networks and services - Directive 2002/20/EC - Article 6 - Conditions attached to the general authorisation and to the rights of use for radio frequencies and for numbers, and specific obligations - Article 13 - Fees for rights of use and rights to install facilities - Regional legislation making undertakings liable to pay a tax on places of business))
      (2014/C 395/19)
      Language of the case: Dutch

         Referring court

      Hof van beroep te Antwerpen

         Parties to the main proceedings

         Appellant: Provincie Antwerpen

         Respondents: Belgacom NV van publiek recht (C-256/13), Mobistar NV (C-264/13)

         Operative part of the judgment

      Articles 6 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) must be interpreted as not precluding operators providing electronic communications networks or services from being subject to a general tax on establishments, on account of the presence on public or private property of cellular telephone communication masts, pylons or antennae which are necessary for their activity.

         (1)  OJ C 207, 20.7.2013.


title: Judgment of the Court of First Instance of 7 May 2003 in Case T-278/01: Eric den Hamer against Commission of the European Communities (Officials — Staff report — Action for annulment — Action for damages)

text:
C 171/24                 EN                         Official Journal of the European Union                                      19.7.2003
D. Lopez Garrido, lawyer, with an address for service in                         JUDGMENT OF THE COURT OF FIRST INSTANCE
Luxembourg, against European Parliament (Agents: M. Gòmez
Leal and J.F. De Wachter) — application for annulment, first,                                          of 7 May 2003
of the decision of 27 June 2001 of the selection board for
Competition PE/90/A not to admit the applicant to that                      in Case T-327/01: Luciano Lavagnoli against Commission
competition and, second, of the notice relating to that                                     of the European Communities ( 1)
competition — the Court of First Instance (Second Chamber),
composed of N.J. Forwood, President, J. Pirrung and
A.W.H. Meij, Judges; B. Pastor, Deputy Registrar; has given a               (Officials — Delay in drawing up staff report — Action for
                                                                                damages)
judgment on 22 May 2003 in which it:
                                                                                (2003/C 171/38)
1.     Dismisses the application;
2.     Orders the parties to bear their own costs.                                               (Language of the case: French)
( 1) OJ C 3, 5. 1. 2002.                                                    In Case T-327/01: Luciano Lavagnoli, official of the Com-
                                                                            mission of the European Communities, residing in Berchem
                                                                            (Luxembourg), represented by G. Bounéou and F. Frabetti,
                                                                            lawyers, with an address for service in Luxembourg, against
                                                                            Commission of the European Communities (Agents: J. Currall
                                                                            and L. Lozano Palacios) — application for payment of damages
                                                                            in compensation for non-material damage caused by the delay
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                in drawing up a definitive staff report for the period 1 July
                                                                            1997 to 30 June 1999 — the Court of First Instance
                            of 7 May 2003                                   (single judge: Mr Pirrung); J. Palacio González, Principal
                                                                            Administrator, for the Registrar; has given a judgment on
                                                                            7 May 2003 in which it:
in Case T-278/01: Eric den Hamer against Commission of
                   the European Communities (1)
                                                                            1.     Orders the Commission to pay the applicant the sum of
                                                                                EUR 2 000;
(Officials — Staff report — Action for annulment — Action
                             for damages)                                   2.     Dismisses the remainder of the application;
                           (2003/C 171/37)                                  3.     Orders the Commission to pay the costs.
                     (Language of the case: French)                         (1 ) OJ C 56, 2. 3. 2002.
In Case T-278/01: Eric den Hamer, official of the Commission
of the European Communities, residing in Malines (Belgium),
represented by N. Lhoëst, lawyer, with an address for service
in Luxembourg, against Commission of the European Com-                           JUDGMENT OF THE COURT OF FIRST INSTANCE
munities (Agents: C. Berardis-Kayser and A. Dal Ferro) —
application, first, for annulment of the decision adopting the                                        of 20 May 2003
staff report of the applicant for the period 1995-1997 and,
second, for payment of damages in compensation for damage                   in Case T-179/02: Jan Pflugradt against European Central
caused inter alia by the delay in drawing up that report — the                                             Bank (1)
Court of First Instance (single judge: Mr Pirrung); D. Christens-
en, Administrator, for the Registrar; has given a judgment on               (Staff of the European Central Bank — Performance
7 May 2003 in which it:                                                                    appraisal — Action for annulment)
1.     Orders the Commission to pay the applicant the sum of                                          (2003/C 171/39)
       EUR 3 000;
                                                                                (Language of the case: German)
2.     Dismisses the remainder of the application;
3.     Orders the Commission to pay the costs.
                                                                            In Case T-179/02: Jan Pflugradt, residing in Frankfurt am Main
                                                                            (Germany), represented by N. Pflüger, with an address for
( 1) OJ C 3, 5. 1. 2002.                                                    service in Luxembourg, against European Central Bank
                                                                            (Agents: V. Saintot, T. Gilliams and B. Wägenbaur) — appli-
                                                                            cation for annulment of the appraisal of the applicant’s


title: Judgment of the Court (First Chamber) of  6 October 2005  in Case C-9/04: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in criminal proceedings against Geharo BV (Directive 88/378/EEC — Toys — Directive 91/338/EEC — Maximum cadmium content permitted)

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/5

      JUDGMENT OF THE COURT

   (First Chamber)
   of 6 October 2005
   in Case C-9/04: Reference for a preliminary ruling from the Hoge Raad der Nederlanden in criminal proceedings against Geharo BV (1)

   (Directive 88/378/EEC - Toys - Directive 91/338/EEC - Maximum cadmium content permitted)
   (2005/C 296/10)
   Language of the case: Dutch
   In Case C-9/04: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 23 December 2003, received at the Court on 12 January 2004, in criminal proceedings against Geharo BV — the Court (First Chamber) composed of P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), N. Colneric, K. Schiemann and E. Levits, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 6 October 2005, in which it:
   Declares that, the second sentence of Article 1 of Council Directive 91/338/EEC of 18 June 1991 amending for the 10th time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations is to be interpreted as meaning that it does not preclude the prohibition in that Directive of the marketing of products with a cadmium content in excess of an authorised maximum amount from applying to toys covered by Council Directive 88/378/EEC of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys.

      (1)  OJ C 59, 06.03.2004.


title: Case C-532/11: Judgment of the Court (First Chamber) of 15 November 2012 (reference for a preliminary ruling from the Oberlandesgericht Köln — Germany) — Susanne Leichenich v Ansbert Peffekoven, Ingo Horeis (Directive 77/388/EEC — VAT — Exemptions — Article 13B(b) — Leasing or letting of immovable property — Houseboat, without a system of propulsion, permanently attached alongside a riverbank — Leasing of the houseboat, including the landing stage, the plot of land and the area of water contiguous therewith — Exclusive use for the permanent operation of a restaurant-discotheque — Single supply)

text:
               12.1.2013

               EN

               Official Journal of the European Union

               C 9/21

         Judgment of the Court (First Chamber) of 15 November 2012 (reference for a preliminary ruling from the Oberlandesgericht Köln — Germany) — Susanne Leichenich v Ansbert Peffekoven, Ingo Horeis
   (Case C-532/11) (1)

   (Directive 77/388/EEC - VAT - Exemptions - Article 13B(b) - Leasing or letting of immovable property - Houseboat, without a system of propulsion, permanently attached alongside a riverbank - Leasing of the houseboat, including the landing stage, the plot of land and the area of water contiguous therewith - Exclusive use for the permanent operation of a restaurant-discotheque - Single supply)
   2013/C 9/33
   Language of the case: German

      Referring court

   Oberlandesgericht Köln

      Parties to the main proceedings

      Applicant: Susanne Leichenich

      Defendant: Ansbert Peffekoven, Ingo Horeis,

      Interveners in support of the defendants: Dr. Leyh, Dr. Kossow & Dr. Ott KG, Wirtschaftsprüfungsgesellschaft, Steuerberatungsgesellschaft

      Re:

   Reference for a preliminary ruling — Oberlandesgericht Köln — Interpretation of Article 13(B)(b) of the Sixth Directive 77/388/EEC 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) — Scope of the VAT exemption provided for under that provision for the leasing or letting of immovable property — Leasing of an area of water and a boat intended for commercial use as a restaurant and nightclub

      Operative part of the judgment

               1.

               On a proper interpretation of Article 13B(b) of the 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, the concept of the leasing or letting of immovable property includes the leasing of a houseboat, including the space and the landing stage contiguous therewith, which is fixed by attachments which are not easily removable to the bank and bed of a river, stays in a demarcated and identifiable location in the river water and is exclusively used, according to the terms of the leasing contract, for the permanent operation of a restaurant-discotheque at that location. That leasing constitutes a single exempt supply, without it being necessary to distinguish between the leasing of the houseboat and that of the landing stage.

               2.

               Such a houseboat does not constitute a vehicle within the meaning of Article 13B(b), point 2, of the Sixth Directive 77/388.

      (1)  OJ C 25, 28.1.2012.


title: Case T-467/13: Action brought on 28 August 2013 — Arrow Group and Arrow Generics v Commission

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/32

         Action brought on 28 August 2013 — Arrow Group and Arrow Generics v Commission
   (Case T-467/13)
   2013/C 313/62
   Language of the case: English

      Parties

      Applicants: Arrow Group ApS (Roskilde, Denmark); and Arrow Generics Ltd (London, United Kingdom) (represented by: S. Kon, C. Firth, and C. Humpe, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Annul Articles 1, 2 and 3 of Commission decision C(2013) 3803 final of 19 June 2013 in Case COMP/39226 — Lundbeck insofar as they pertain to Arrow; or

               —

               In the alternative annul Article 2 of Commission decision C(2013) 3803 final of 19 June 2013 in Case COMP/39226 — Lundbeck insofar as it imposes a fine on Arrow in respect of the UK and Danish Agreements; or

               —

               In the further alternative annul Article 2 of Commission decision C(2013) 3803 final of 19 June 2013 in Case COMP/39226 — Lundbeck insofar as it imposes a fine on Arrow in respect of the Danish Agreement and reduce the fine accordingly; or

               —

               In the final alternative reduce the fine imposed pursuant to Article 2 of Commission decision C(2013) 3803 final of 19 June 2013 in Case COMP/39226 — Lundbeck; and

               —

               Order the Commission to pay Arrow’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission has infringed essential procedural requirements in the process leading to the adoption of the Decision, by failing (i) to open proceedings and pursue its investigation with a reasonable timeframe, (ii) to provide timely and proper access to file and (iii) to issue a supplementary statement of objections.

               2.

               Second plea in law, alleging that the Commission has failed to prove to the requisite legal standard that Arrow and Lundbeck were potential competitors when entering into each of the Agreements.

               3.

               Third plea in law, alleging that the Commission has failed to prove to the requisite legal standard that each of the Agreements had the object of restricting competition contrary to Article 101 TFEU.

               4.

               Fourth plea in law, alleging that the Commission has infringed the principles of proportionality, nullum crimen nulla poena sine lege, and legal certainty in imposing a fine on Arrow.

               5.

               Fifth plea in law, alleging in the alternative that the Commission has erred in characterising the UK Agreement and the Danish Agreement as a single continuous infringement of Article 101 TFEU and has infringed Article 25 of Regulation 1/2003 (1) by imposing a fine on Arrow in respect of the Danish Agreement following the expiry of the limitation period for the imposition of fines.

               6.

               Sixth plea in law, alleging in the further alternative, that the Commission has committed errors in calculating the amount of the fine by imposing a fine which is disproportionate to the gravity of the alleged infringements of Article 101 TFEU.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty


title: Case T-47/13: Action brought on 30 January 2013 — Goldsteig Käsereien Bayerwald v OHIM — Vieweg (goldstück)

text:
               23.3.2013

               EN

               Official Journal of the European Union

               C 86/25

         Action brought on 30 January 2013 — Goldsteig Käsereien Bayerwald v OHIM — Vieweg (goldstück)
   (Case T-47/13)
   2013/C 86/41
   Language in which the application was lodged: German

      Parties

      Applicant: Goldsteig Käsereien Bayerwald GmbH (Cham, Germany) (represented by: S. Biagosch, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Christin Vieweg (Sonneberg, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 November 2012 in Case R 2589/2011-1;

               —

               Order OHIM to bear its own costs and to pay those incurred by the applicant.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Christin Vieweg

      Community trade mark concerned: the figurative mark including the word element ‘goldstück’ for goods in Classes 29 and 30 — Community trade mark application No 9 153 677

      Proprietor of the mark or sign cited in the opposition proceedings: the applicant

      Mark or sign cited in opposition: the word mark ‘GOLDSTEIG’ for goods and services in Classes 29 and 43

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the Opposition Division’s decision was annulled and the applicant’s opposition was rejected

      Pleas in law: Infringement of Article 8(1)(b) of Regulation No 207/2009


title: Case C-242/17: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 8 May 2017 — Legatoria Editoriale Giovanni Olivotto (LEGO) SpA v Gestore dei servizi energetici (GSE) SpA and Others

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/15

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 8 May 2017 — Legatoria Editoriale Giovanni Olivotto (LEGO) SpA v Gestore dei servizi energetici (GSE) SpA and Others
   (Case C-242/17)
   (2017/C 283/21)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Appellant: Legatoria Editoriale Giovanni Olivotto (LEGO) SpA

      Respondents: Gestore dei servizi energetici (GSE) SpA, Ministero dell’Ambiente e della Tutela del Territorio e del Mare, Ministero dello Sviluppo Economico, Ministero delle Politiche Agricole e Forestali

      Questions referred

               1.

               Does EU law, and more specifically Article 18(7) of Directive 2009/28/EC, (1) in conjunction with Commission Decision 2011/438/EU of 19 July 2011, (2) preclude national provisions, such as the Ministerial Decree of 23 January 2012, and in particular Articles 8 and 12 thereof, which impose specific requirements that are both different from and more extensive than the requirements which are satisfied by signing up to a voluntary scheme which is the subject of a decision of the European Commission adopted in accordance with Article 18(4) of Directive 2009/28/EC?

               2.

               If the answer to Question (a) is in the negative, must economic operators which are involved in the product supply chain, even though their role is merely that of a trader or intermediary and they do not possess physical availability of the product in question, be held to be subject to the provisions of EU law cited in Question (a)?

      (1)  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).

      (2)  Commission Implementing Decision of 19 July 2011 on the recognition of the ‘International Sustainability and Carbon Certification’ scheme for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council (OJ 2011 L 190, p. 79).


title: Case C-287/09: Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Aduo Pisaneschi v Istituto nazionale della previdenza sociale (INPS)

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/9

         Reference for a preliminary ruling from the Corte d’appello di Roma (Italy) lodged on 24 July 2009 — Aduo Pisaneschi v Istituto nazionale della previdenza sociale (INPS)
   (Case C-287/09)
   2009/C 233/15
   Language of the case: Italian

      Referring court

   Corte d’appello di Roma

      Parties to the main proceedings

      Applicant: Aduo Pisaneschi

      Defendant: Istituto nazionale della previdenza sociale (INPS)

      Questions referred

   The Court of Justice is asked to give a preliminary ruling under Article 234 EC as to whether Articles 17, 39 and 42 EC, and the relevant provisions of Regulation No 1408/71, must be interpreted as meaning that the principle that all insurance periods must be aggregated for the purposes of entitlement to the right to benefits, and of the acquisition and maintenance of that right — a principle implemented through the adoption, by the Council, of Regulation No 1408/71 — applies in all cases where the aggregation and pro rata mechanism must be used for the purposes of recognising the right to a given benefit, with the result that account must be taken to that end both of the insurance periods completed under the legislation of each Member State, and of those completed under the social insurance scheme applicable to employees of the Community institutions.


title: Case T-428/03: Order of the Court of First Instance of 12 September 2008 — Keinhorst v Commission (Staff case — Officials — Interlocutory judgment — No need to adjudicate)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/34

         Order of the Court of First Instance of 12 September 2008 — Keinhorst v Commission
   (Case T-428/03) (1)

   (Staff case - Officials - Interlocutory judgment - No need to adjudicate)
   (2008/C 301/55)
   Language of the case: French
   Parties

      Applicant: Gerhard Keinhorst (Overijse, Belgium) (represented by: N. Lhoëst, lawyer)

      Defendant: Commission of the European Communities (represented initially by C. Berardis-Kayser and L. Lozano Palacios, and subsequently by C. Berardis-Kayser and H. Krämer, Agents)
   Re:
   First, application for annulment of the Commission's decisions of 23 December 2002 and 14 April 2003 altering the applicant's classification in grade, in so far as they fix his classification in step on recruitment in step 1 of Grade A6, fix 5 October 1995 as the date on which the decisions were to have pecuniary effect and did not re-establish the applicant's career grade, and an application for annulment of the Commission's decisions of 4 September and 24 November 2003 rejecting the applicant's complaints and, second, an application for compensation for the damage allegedly caused.
   Operative part of the order

               1.

               There is no longer any need to adjudicate on this action.

               2.

               The Commission shall pay all the costs.

      (1)  OJ C 47, 21.2.2004.


title: Case T-252/03: Action brought on 7 July 2003 by Fédération Nationale de l'Industrie et des Commerces en Gros des Viandes (FNICGV) against Commission of the European Communities

text:
C 213/40               EN                          Official Journal of the European Union                                             6.9.2003
Action brought on 7 July 2003 by Fédération Nationale                      processors agreed on a temporary ban on imports and the
de l’Industrie et des Commerces en Gros des Viandes                        application of a fair schedule of purchase prices, in exchange
(FNICGV) against Commission of the European Communi-                       for lifting the blockades on abattoirs.
                                ties
                                                                           In support of its action, the applicant claims that there was an
                         (Case T-252/03)
                                                                           absence of consent and an absence of freedom at the stage of
                                                                           concluding the agreement, which in its submission constitutes
                         (2003/C 213/78)                                   a ground for exempting it from liability for implementing the
                                                                           agreement. It claims to have been under duress characterised
                                                                           by threats and violence on the part of farmers against the
                    (Language of the case: French)                         applicant’s members, failure on the part of the French public
                                                                           authorities to take action to maintain order and strong pressure
                                                                           on the part of the Minister for Agriculture. The applicant
                                                                           further claims that it was unable to complain of the pressure
An action against the Commission of the European Communi-                  brought to bear on its members, since the Minister for
ties was brought before the Court of First Instance of the                 Agriculture had initiated, encouraged and permitted the con-
European Communities on 7 July 2003 by the Fédération                      clusion of the agreement. Last, the applicant states that it had
Nationale de l’Industrie et des Commerces en Gros des Viandes              no economic interest in concluding the agreement.
(FNICGV), whose registered office is in Paris, represented
by Pierre Abegg, lawyer, with an address for service in
Luxembourg.                                                                Finally, the applicant claims that the fact that the Commission
                                                                           acknowledged in the decision at issue that the applicant acted
                                                                           under duress whilst ordering it to pay a fine means that the
The applicant claims that the Court should:                                statement of reasons in the decision is contradictory.
primarily:
                                                                           The applicant also pleads infringement of Article 15(2) of
                                                                           Regulation No 17 (1) as regards reduction of the fine. The
—     annul the fine imposed by the Commission in its decision             applicant relies in that regard on infringement of the principle
      of 2 April 2003;                                                     of proportionality and of the obligation to state reasons. The
                                                                           applicant points out that the amount of the fine is also liable
                                                                           to impair freedom of trade union activity, since the applicant’s
in the alternative:                                                        budget no longer allows it to represent the interests of its
                                                                           members.
—     significantly reduce the amount of the fine imposed by
      the Commission in its decision of 2 April 2003;
                                                                           (1 ) EEC Council: Regulation No 17: First Regulation implementing
                                                                                Articles 85 and 86 of the Treaty (English Special Edition 1959-
in any event:                                                                   1962, p. 87).
—     order the European Commission to pay all the costs.
Pleas in law and main arguments
                                                                           Action brought on 8 July 2003 by José Manuel López
The applicant seeks annulment or reduction of the fine                     Cejudo against Commission of the European Communi-
imposed on it by the Commission decision of 2 April 2003 in
                                                                                ties
Case COMP/C.38.279/F3 — French bovine meat, relating to
an infringement of Article 81(1) EC in the form of an
agreement intended to suspend imports of bovine meat into                                           (Case T-254/03)
France and to set a minimum price for certain categories of
beasts.
                                                                                (2003/C 213/79)
The applicant states that, during the second mad cow crisis,
certain cattle breeders encountered experienced an unpre-                                      (Language of the case: French)
cedented crisis in October 2001. In France, groups of breeders
blockaded abattoirs, mounted demonstrations and stopped
trucks to check the origin of the meat and destroy non-French
meat. Subsequently, at the prompting of the French Minister                An action against the Commission of the European Communi-
for Agriculture, the federations representing breeders and                 ties was brought before the Court of First Instance of the


title: Case F-42/12: Order of the Civil Service Tribunal (3rd Chamber) of 4 May 2016 — Bouvret v Commission (Civil service — Officials — Pensions — Article 11(2) of Annex VIII to the Staff Regulations — Pension rights acquired, prior to entering the service of the EU, under a national pension scheme — Transfer to the EU pension scheme — Proposal concerning the crediting of pensionable years, accepted by the person concerned, based on new general implementing provisions — Objection of inadmissibility — Concept of an act having adverse effect — Article 83 of the Rules of Procedure)

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/42

         Order of the Civil Service Tribunal (3rd Chamber) of 4 May 2016 — Bouvret v Commission
   (Case F-42/12) (1)

   ((Civil service - Officials - Pensions - Article 11(2) of Annex VIII to the Staff Regulations - Pension rights acquired, prior to entering the service of the EU, under a national pension scheme - Transfer to the EU pension scheme - Proposal concerning the crediting of pensionable years, accepted by the person concerned, based on new general implementing provisions - Objection of inadmissibility - Concept of an act having adverse effect - Article 83 of the Rules of Procedure))
   (2016/C 222/54)
   Language of the case: French

      Parties

      Applicant: Florence Bouvret (Brussels, Belgium) (represented by: initially, D. de Abreu Caldas, A. Coolen, J.-N. Louis, E. Marchal and S. Orlandi, lawyers, then D. de Abreu Caldas, J.-N. Louis and S. Orlandi, lawyers, and lastly, J.-N. Louis, lawyer)

      Defendant: European Commission (represented by: initially, D. Martin and J. Baquero Cruz, Agents, then J. Currall and G. Gattinara, Agents, then G. Gattinara, Agent, and lastly, G. Gattinara and F. Simonetti, Agents)

      Re:

   Application for annulment of the proposal to transfer the applicant’s pension rights acquired prior to entering the service of the Commission on the basis of calculations taking into account the new GIP entering into force after the applicant had submitted her application for the transfer.

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Florence Bouvret shall bear her own costs and pay the costs incurred by the European Commission.

      (1)  OJ C 184, 23/6/2012, p. 25.