title: Case T-85/15: Judgment of the General Court of 16 May 2017 — AW v EUIPO — Pharma Mar (YLOELIS) (EU trade mark — Opposition proceedings — Application for EU word mark YLOELIS — Earlier EU word mark YONDELIS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/18

         Judgment of the General Court of 16 May 2017 — AW v EUIPO — Pharma Mar (YLOELIS)
   (Case T-85/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU word mark YLOELIS - Earlier EU word mark YONDELIS - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 221/22)
   Language of the case: English

      Parties

      Applicant: Alfa Wassermann SpA (AW) (Alanno, Italy), authorised to replace Alfa Wassermann Hungary Kft. (represented by: M. Best, U. Pfleghar and S. Schäffner, lawyers)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Pharma Mar, SA (Colmenar Viejo, Spain) (represented by: N. González-Alberto Rodríguez, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 18 December 2014 (Case R 1100/2014-1), relating to opposition proceedings between Pharma Mar and Alfa Wassermann Hungary.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Alfa Wassermann SpA (AW) to pay the costs.

      (1)  OJ C 118, 13.4.2015.


title: Case C-77/09: Judgment of the Court (Second Chamber) of 22 December 2010 (reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio (Italy)) — Gowan Comércio Internacional e Serviços Lda v Ministero della Salute (Plant protection products — Directive 2006/134/EC — Validity — Restrictions on the use of fenarimol as an active substance)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/3

         Judgment of the Court (Second Chamber) of 22 December 2010 (reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio (Italy)) — Gowan Comércio Internacional e Serviços Lda v Ministero della Salute
   (Case C-77/09) (1)

   (Plant protection products - Directive 2006/134/EC - Validity - Restrictions on the use of fenarimol as an active substance)
   2011/C 63/04
   Language of the case: Italian

      Referring court

   Tribunale amministrativo regionale del Lazio

      Parties to the main proceedings

      Applicant: Gowan Comércio Internacional e Serviços Lda

      Defendant: Ministero della Salute

      Re:

   Reference for a preliminary ruling — Tribunale Amministrativo Regionale del Lazio — Validity, as regards the limitations on the use of fenarimol as an active substance, of Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1)

      Operative part of the judgment

   Consideration of the question referred for a preliminary ruling has disclosed nothing to affect the validity of Commission Directive 2006/134/EC of 11 December 2006 amending Council Directive 91/414/EEC to include fenarimol as active substance.

      (1)  OJ C 102, 1.5.2009.


No C 208/38           EN                   Official Journal of the European Communities                               12 . 8 . 95
European Communities ordered the removal from the                     T-240/94 : Imre Czigany v. Commission of the European
register of Case T-228/94 : Anton Rusp v. Council of the              Communities .
European Union and Commission of the European
Communities .                                                         (M OJ No C 218 , 6 . 8 . 1994 .
(») OJ No C 218 , 6 . 8 . 1994 .
                                                                           Removal from the register of Case T-95/95 ( )
                                                                                ( 95/C 208/85 )
     Removal from the register of Case T-240/94 ( )                                 (Language of the case: French)
                          ( 95/C 208/ 84 )
                                                                      By order of 20 June 1995 the President of the Third
                                                                      Chamber of the Court of First Instance of the European
             (Language of the case: German)                           Communities ordered the removal from the register of Case
                                                                      T-95/95 : Didier Gambier v. Commission of the European
By order of 19 June 1995 the President of the Third                   Communities .
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case             (M OJ No C 159 , 24 . 6 . 1995 .


title: Case C-309/11: Judgment of the Court (Third Chamber) of 26 September 2013 — European Commission v Republic of Finland (Failure of a Member State to fulfil obligations — Taxation — VAT — Directive 2006/112/EC — Articles 306 to 310 — Special regime for travel agencies — Differences between language versions — National legislation providing for the application of the special regime to persons other than travellers — Concepts of ‘traveller’ and ‘client’ )

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/8

         Judgment of the Court (Third Chamber) of 26 September 2013 — European Commission v Republic of Finland
   (Case C-309/11) (1)

   (Failure of a Member State to fulfil obligations - Taxation - VAT - Directive 2006/112/EC - Articles 306 to 310 - Special regime for travel agencies - Differences between language versions - National legislation providing for the application of the special regime to persons other than travellers - Concepts of ‘traveller’ and ‘client’)
   2013/C 344/11
   Language of the case: Finnish

      Parties

      Applicant: European Commission (represented by: L. Lozano Placios and I. Koskinen, acting as Agents)

      Defendant: Republic of Finland (represented by: J. Heliskoski, acting as Agent)

      Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, T. Müller and J. Očková, acting as Agents); Hellenic Republic (represented by: E.-M. Mamouna, acting as Agent); Kingdom of Spain (represented by: S. Centeno Huerta, acting as Agent); French Republic (represented by: G. de Bergues and J.-S. Pilczer, acting as Agents); Republic of Poland (represented by: A. Kraińska, A. Kramarczyk, M. Szpunar and B. Majczyna, acting as Agents);

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation under which the special regime for taxation of travel agents applies to transactions carried out by travel agents for recipients other than travellers

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the European Commission to pay the costs incurred by the Republic of Finland;

               3.

               Orders the Czech Republic, the Hellenic Republic, the Kingdom of Spain, the French Republic and the Republic of Poland to bear their own costs.

      (1)  OJ C 252, 27.8.2011.


title: Case T-43/17: Action brought on 24 January 2017 — No Limits v EUIPO — Morellato (NO LIMITS)

text:
               27.3.2017

               EN

               Official Journal of the European Union

               C 95/17

         Action brought on 24 January 2017 — No Limits v EUIPO — Morellato (NO LIMITS)
   (Case T-43/17)
   (2017/C 095/26)
   Language in which the application was lodged: Italian

      Parties

      Applicant: No Limits International Investments SA (Bissone, Switzerland) (represented by: F. Canu, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Morellato SpA (Fratte di Santa Giustina in Colle, Italy)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: European Union word mark ‘NO LIMITS’ — European Union trade mark No 67 967

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 21 November 2016 in Case R 2007/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO and the intervener to pay the costs of the proceedings in Case R 2007/2015-5 before the Board of Appeal, of the proceedings in Case 2919C before the Cancellation Division, and of the proceedings before the General Court of the European Union.

      Pleas in law

               —

               Infringement and/or misapplication of Article 53(1) of Regulation No 207/2009 — error in the contested decision regarding the relevant date for the assessment of the invalidity of the EU trade mark;

               —

               Infringement and/or misapplication of Article 53 of Regulation No 207/2009 — absent, insufficient and contradictory reasoning with regard to the applicability to the EU trade mark of the findings made by the Corte d’Appello di Milano (Milan Court of Appeal, Italy) in judgment No 4425/2013, which has become final;

               —

               Absent, insufficient and contradictory reasoning with regard to the application of Article 54(2) of Regulation No 207/2009 to the EU trade mark;

               —

               Infringement and/or misapplication of Article 53 of Regulation No 207/2009 — erroneous and contradictory reasoning.


title: Case C-388/08 PPU: Judgment of the Court (Third Chamber) of 1 December 2008 (reference for a preliminary ruling from the Korkein oikeus — Finland) — Criminal proceedings against Artur Leymann, Aleksei Pustovarov (Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — Article 27 — European arrest warrant and surrender procedures between Member States — Specialty principle — Consent procedure)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/23

         Judgment of the Court (Third Chamber) of 1 December 2008 (reference for a preliminary ruling from the Korkein oikeus — Finland) — Criminal proceedings against Artur Leymann, Aleksei Pustovarov
   (Case C-388/08 PPU) (1)

   (Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - Article 27 - European arrest warrant and surrender procedures between Member States - Specialty principle - Consent procedure)
   (2009/C 44/38)
   Language of the case: Finnish
   Referring court
   Korkein oikeus
   Parties to the main proceedings
   Artur Leymann, Aleksei Pustovarov
   Re:
   Reference for a preliminary ruling — Korkein oikeus — Interpretation of Article 27(2), (3) and (4) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) — Description of the offence on which the prosecution is based altered in relation to the description on which the arrest warrant was based — Concept of ‘offence other than that for which he or she was surrendered’ — Whether or not necessary to initiate the consent procedure
   Operative part of the judgment

               1.

               In order to establish whether the offence under consideration is an ‘offence other’ than that for which the person was surrendered within the meaning of Article 27(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, requiring the implementation of the consent procedure referred to in Article 27(3)(g) and 27(4) of that Framework Decision, it must be ascertained whether the constituent elements of the offence, according to the legal description given by the issuing State, are those in respect of which the person was surrendered and whether there is a sufficient correspondence between the information given in the arrest warrant and that contained in the later procedural document. Modifications concerning the time or place of the offence are allowed, in so far as they derive from evidence gathered in the course of the proceedings conducted in the issuing State concerning the conduct described in the arrest warrant, do not alter the nature of the offence and do not lead to grounds for non-execution under Articles 3 and 4 of the Framework Decision.

               2.

               In circumstances such as those in the main proceedings, a modification of the description of the offence concerning the kind of narcotics concerned is not such, of itself, as to define an ‘offence other’ than that for which the person was surrendered within the meaning of Article 27(2) of Framework Decision 2002/584.

               3.

               The exception provided for in Article 27(3)(c) of Framework Decision 2002/584 must be interpreted as meaning that, where there is an ‘offence other’ than that for which the person was surrendered, consent must be requested, in accordance with Article 27(4) of the Framework Decision, and obtained if a penalty or a measure involving the deprivation of liberty is to be executed. The person surrendered can be prosecuted and sentenced for such an offence before that consent has been obtained, provided that no measure restricting liberty is applied during the prosecution or when judgment is given for that offence. The exception in Article 27(3)(c) does not, however, preclude a measure restricting liberty from being imposed on the person surrendered before consent has been obtained, where that restriction is lawful on the basis of other charges which appear in the European arrest warrant.

      (1)  OJ C 272, 25.10.2008.


title: Case C-305/17: Request for a preliminary ruling from the Okresný súd Bratislava (Slovakia) lodged on 26 May 2017 — FENS spol. s r.o. v Slovak Republic — Úrad pre reguláciu sieťových odvetví

text:
               14.8.2017

               EN

               Official Journal of the European Union

               C 269/7

         Request for a preliminary ruling from the Okresný súd Bratislava (Slovakia) lodged on 26 May 2017 — FENS spol. s r.o. v Slovak Republic — Úrad pre reguláciu sieťových odvetví
   (Case C-305/17)
   (2017/C 269/10)
   Language of the case: Slovak

      Referring court

   Okresný súd Bratislava

      Parties to the main proceedings

      Applicant: FENS spol. s r.o.

      Defendant: Slovak Republic — Úrad pre reguláciu sieťových odvetví

      Questions referred

               1.

               Must Article 30 TFEU be interpreted as precluding a national rule such as Article 12(9) of the Nariadenie vlády Slovenskej republiky č. 317/2007 Z. z., ktorým sa ustanovujú pravidlá pre fungovanie trhu s elektrinou (Regulation No 317/2007 of the Government of the Slovak Republic laying down rules for the functioning of the market in electricity — ‘the regulation’) which introduces a specific pecuniary charge for the export of electricity from the territory of the Slovak Republic, regardless of whether that electricity is exported from Slovak territory to the Member States of the European Union or to third countries, in circumstances in which the electricity exporter fails to demonstrate that the electricity exported has been imported into the Slovak Republic, that is to say, a pecuniary charge levied solely on electricity generated in the Republic of Slovakia and exported from it?

               2.

               Does a pecuniary charge, such as the charge introduced by Article 12(9) of the [regulation], namely: a charge applied solely to electricity generated in the Slovak Republic and at the same time exported from the territory of the Slovak Republic, regardless of whether it is exported to third countries or to the Member States of the European Union, also constitute a charge having equivalent effect to a customs duty within the meaning of Article 28(1) TFEU?

               3.

               Is a national rule such Article 12(9) of the [regulation] compatible with the principle of free movement of goods laid down by Article 28 TFEU?


title: Appeal brought on 23 December 1996 by Glencore Grain Ltd, formerly Richco Commodities Ltd, against the judgment delivered on 24 September 1996 by the Court of First Instance of the European Communities in Case T-491/93 between Richco Commodities Ltd and the Commission of the European Communities (Case C-403/96 P)

text:
8 . 3 . 97             EN 1                 Official Journal of the European Communities                                    No C 74/11
Is Article 5 ( a ) of Council Regulation ( EEC ) No 2137/85            Appeal brought on 23 December 1996 by Glencore Grain
of 25 July 1985 on the European Economic Interest                      Ltd, formerly Richco Commodities Ltd, against the
Grouping ( EEIG ) O to be interpreted as meaning that,                 judgment delivered on 24 September 1996 by the Court of
apart from the additions of 'European Economic Interest                First Instance of the European Communities in Case
Grouping' or 'EEIG', the name or business name of an                   T-509/93     between Richco Commodities Ltd and the
EEIG may consist of a purely descriptive designation, even                      Commission of the European Communities
where internal law in principle precludes the use of such a                                     ( Case C-404/96 P)
name for the formation of a European Economic Interest
                                                                                97/C 74/21 )
Grouping ?
H OJ No L 199, 31 . 7 . 1985 , p . 1 .                                 An appeal against the judgment delivered on 24 September
                                                                       1996 by the Court of First Instance of the European
                                                                       Communities       in       Case      T-509/93  between   Richco
                                                                       Commodities Ltd and the Commission of the European
                                                                       Communities was brought before the Court of Justice of
                                                                       the European Communities on 23 December 1996 by
                                                                       Glencore Grain Ltd, formerly Richco Commodities Ltd,
Appeal brought on 23 December 1996 by Glencore Grain                   represented by P. V. F. Bos, J. G. A. van Zuuren and M. M.
Ltd, formerly Richco Commodities Ltd, against the                      Slotboom, of the Rotterdam Bar, with an address for
judgment delivered on 24 September 1996 by the Court of                service in Luxembourg at the Chambers of Marc Loesch,
First Instance of the European Communities in Case                      11 rue Goethe .
T-491 /93 between Richco Commodities Ltd and the
           Commission of the European Communities                      The appellant claims that the Court should:
                       ( Case C-403/96 P)
                                                                       — partially set aside the judgment of the Court of First
                           ( 97/C 74/20 )                                   Instance in Case T-509/93 , in so far as that judgment
                                                                            declares inadmissible Glencore's application for
                                                                            annulment of the Commission Decision of 10 June
 An appeal against the judgment delivered on 24 September                   1993 addressed to the SEIB under reference SG ( 93 )
 1996 by the Court of First Instance of the European                        D/ 11703 ,
 Communities        in   Case     T-491 /93   between     Richco
 Commodities Ltd and the Commission of the European                     — declare Glencore's application, referred to in the first
 Communities was brought before the Court of Justice of                     indent above, admissible,
 the European Communities on 23 December 1996 by
 Glencore Grain Ltd, formerly Richco Commodities Ltd,                   — order the Commission to pay all the costs, including
 represented by P. V. F. Bos, J. G. A. van Zuuren and M. M.                 those incurred in the proceedings before the Court of
 Slotboom, of the Rotterdam Bar, with an address for                        First Instance .
 service in Luxembourg at the Chambers of Marc Loesch,
 11 rue Goethe .                                                        Pleas in law and main arguments adduced in support:
                                                                        The pleas in law and main arguments are the same as in
 The appellant claims that the Court should :                           Case C-386/96 P (').
 — partially set aside the judgment of the Court of First               (') OJ No C 40, 8 . 2 . 1997, p . 10 .
       Instance in Case T-491 /93 , in so far as that judgment
       declares inadmissible Glencore 's application for
       annulment of the decision or at least the act of the
       Commission of 1 April 1993 addressed to the
       Vnesheconombank under reference SG ( 93 ) D/5397,
                                                                        Appeal brought on 23 December 1996 by Sveriges
                                                                        Betodlares Centralforening and Mr Sven Ake Henrikson
 — declare Glencore's application, referred to in the first             against the order made on 4 October 1996 by the First
       indent above, admissible,                                        Chamber of the Court of First Instance of the European
                                                                        Communities in Case T-l 97/95 between Sveriges
 — order the Commission to pay all the costs.                           Betodlares Centralforening and Mr Sven Ake Henrikson
                                                                             and the Commission of the European Communities
                                                                                ( Case C-409/96 P)
  Pleas in law and main arguments adduced in support:
                                                                                ( 97/C 74/22 )
  The pleas in law and main arguments are the same as in
  Case C-386/96 P ( M.                                                   An appeal against the order made on 4 October 1996 by
                                                                         the First Chamber of the Court of First Instance of the
                                                                         European     Communities           in  Case T-l 97/95  between
  H OJ No C 40, 8 . 2 . 1997, p . 10 .                                   Sveriges Betodlares Centralforening and Mr Sven Ake
                                                                         Henrikson and the Commission of the European
                                                                         Communities, was brought before the Court of Justice of


title: Case C-1/15: Action brought on 6 January 2015 — European Commission v Republic of Austria

text:
               2.3.2015

               EN

               Official Journal of the European Union

               C 73/19

      Action brought on 6 January 2015 — European Commission v Republic of Austria
      (Case C-1/15)
      (2015/C 073/26)
      Language of the case: German

         Parties

         Applicant: European Commission (represented by: F. Erlbacher and A. Aresu, acting as Agents)

         Defendant: Republic of Austria

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare that, by adopting and maintaining Paragraph 1(2)(1), Paragraph 2(1)(9), Paragraph 10(3)(4), Paragraph 14 in conjunction with Paragraph 14a and Paragraph 14b as well as Paragraph 21(1) and Paragraph 21a of the Bundesgesetz über die Niederlassung und den Aufenthalt in Österreich (Federal Law on establishment and residence in Austria), the Republic of Austria has failed to fulfil its obligations under Article 41(1) of the Additional Protocol (1) and Article 13 of Decision No 1/80;

                  —

                  order the Republic of Austria to pay the costs.

         Pleas in law and main arguments

      Some of the provisions of the Federal Law on establishment and residence in Austria are incompatible with EU law, in so far as they concern Turkish nationals. Those include, in particular:

                  —

                  the duty of the applicant to make the initial application to enter Austrian territory to the competent local representing authority abroad and to await the decision abroad;

                  —

                  the fixing of a minimum age of 21 years for the application for a right of residence under the title of family reunification;

                  —

                  the proof of knowledge of the German language upon submission of the initial application for a residence permit and the introduction of an ‘integration agreement’.

            The Republic of Austria’s objection that, by a circular letter of the Bundesministerium für Inneres (Federal Ministry of the Interior), it instructed the establishment and residence authorities to subject applications from Turkish nationals to a case-by-case examination in conformity with EU law cannot remedy the infringement of the obligations under Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80.

         (1)  Regulation (EEC) No 2760/72 of the Council of 19 December 1972 concluding the Additional Protocol and also the Financial Protocol signed on 23 November 1970 and annexed to the Agreement establishing an Association between the European Economic Community and Turkey and relating to the measures to be adopted to bring them into force; OJ 1972 L 293, p. 1.


title: Case C-368/11: Order of the Court (Eighth Chamber) of 16 February 2012 (reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere — Italy) — Criminal proceedings against Raffaele Arrichiello (Article 104(3), first subparagraph, of the Rules of Procedure — Freedom of establishment — Freedom to provide services — Betting and gaming — Collection of bets on sporting events — Licensing requirement — Consequences of an infringement of European Union law in the awarding of licences — Award of 16300 additional licences — Principle of equal treatment and the obligation of transparency — Principle of legal certainty — Protection of holders of earlier licences — National legislation — Mandatory minimum distances between betting outlets — Whether permissible — Cross-border activities analogous to those engaged in under the licence — Prohibition under national legislation — Whether permissible)

text:
               26.5.2012

               EN

               Official Journal of the European Union

               C 151/13

         Order of the Court (Eighth Chamber) of 16 February 2012 (reference for a preliminary ruling from the Tribunale di Santa Maria Capua Vetere — Italy) — Criminal proceedings against Raffaele Arrichiello
   (Case C-368/11) (1)

   (Article 104(3), first subparagraph, of the Rules of Procedure - Freedom of establishment - Freedom to provide services - Betting and gaming - Collection of bets on sporting events - Licensing requirement - Consequences of an infringement of European Union law in the awarding of licences - Award of 16 300 additional licences - Principle of equal treatment and the obligation of transparency - Principle of legal certainty - Protection of holders of earlier licences - National legislation - Mandatory minimum distances between betting outlets - Whether permissible - Cross-border activities analogous to those engaged in under the licence - Prohibition under national legislation - Whether permissible)
   2012/C 151/22
   Language of the case: Italian

      Referring court

   Tribunale di Santa Maria Capua Vetere

      Criminal proceedings against

   Raffaele Arrichiello

      Re:

   Reference for a preliminary ruling — Tribunale di Santa Maria Capua Vetere — Free movement of persons — Freedom to provide services — Activity of collecting bets — Domestic legislation making the exercise of that activity conditional upon the obtaining of a public security authorisation and permit — Protection afforded to persons obtaining authorisations and permits by means of award procedures that unlawfully excluded other operators from the same sector — Whether compatible with Articles 43 EC and 49 EC

      Operative part of the order

               1.

               Articles 43 EC and 49 EC and the principles of equal treatment and effectiveness must be interpreted as precluding a Member State which, in breach of European Union law, has excluded a category of operators from the award of licences to engage in a particular economic activity and which seeks to remedy that breach by putting out to tender a significant number of new licences, from protecting the market positions acquired by the existing operators, by providing inter alia that a minimum distance must be observed between the establishments of new licence holders and those of existing operators.

               2.

               Articles 43 EC and 49 EC must be interpreted as precluding the imposition of penalties for engaging in the organised activity of collecting bets without a licence or police authorisation on persons who are linked to an operator which was excluded, in breach of European Union law, from an earlier tendering procedure, even following the new tendering procedure intended to remedy that breach of European Union law, in so far as that tendering procedure and the subsequent award of new licences have not in fact remedied the exclusion of that operator from the earlier tendering procedure.

               3.

               It follows from Articles 43 EC and 49 EC, the principle of equal treatment, the obligation of transparency and the principle of legal certainty that the conditions and detailed rules of a tendering procedure such as that at issue in the case before the referring court and, in particular, the provisions concerning the withdrawal of licences granted under that tendering procedure, such as those laid down in Article 23(2)(a) and (3) of the model contract between the Independent Authority for the Administration of State Monopolies and the successful tenderer for the licence for betting on events other than horse races, must be drawn up in a clear, precise and unequivocal manner, a matter which it is for the referring court to verify.

      (1)  OJ C 282, 24.9.2011.


title: Case T-218/03: Action brought on 13 June 2003 by Cathal Boyle against the Commission of the European Communities

text:
4.10.2003             EN                          Official Journal of the European Union                                           C 239/9
Action brought on 6 June 2003 by Aneo AB against the                      Action brought on 13 June 2003 by Cathal Boyle against
      Office for Harmonisation in the Internal Market                            the Commission of the European Communities
                        (Case T-201/03)                                                            (Case T-218/03)
                        (2003/C 239/12)                                                            (2003/C 239/13)
                  (Language of the case: English)
                                                                                (Language of the case: English)
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the              An action against the Commission of the European Communi-
European Communities on 6 June 2003 by Aneo AB, Märsta,                   ties was brought before the Court of First Instance of the
Sweden, represented by Mrs R. Almaraz Palmero, lawyer.                    European Communities on 13 June 2003 by Cathal Boyle,
                                                                          Killybegs, (Ireland), represented by P. Gallagher and A. Collins,
                                                                          Barristers, and D. Barry, Solicitor.
The applicant claims that the Court should:
—     annul the Decision of the Fourth Board of Appeal at                 The applicant claims that the Court should:
      OHIM of 21 February 2003 in case R 883/2001-4;
                                                                          —     annul the decision contained in Article 2 of Commission
—     order the Office for Harmonisation in the Internal Market                 Decision of 4 April 2003 on the requests received by the
      (OHIM) to permit registration of the term TIVAS as a                      Commission to increase in MAGP IV objectives to take
      Community Trademark in respect of the services in                         into account improvements on safety, navigation at sea,
      classes 09, 10 and 42 for which registration has been                     hygiene, product quality and working conditions for
      refused;                                                                  vessels of more than 12 m in length overall notified
                                                                                under document number C(2003) 1113 to reject a safety
—     order the OHIM to refund the appeal fee to the applicant                  capacity application for a proposed new vessel to replace
                                                                                the MFV Marie Dawn;
—     order the Office to pay the costs of the dispute, including
      those relating to the procedure before the Board of                 —     order the Commission to pay the costs of these proceed-
      Appeal.                                                                   ings.
Pleas in law and main arguments                                           Pleas in law and main arguments
The Community trade           ‘TIVAS’ -        Application      No
mark concerned:               2025716                                     The applicant sought to replace his fishing vessel with a new
                                                                          vessel, adding some distinct safety elements that required an
Products or services:         Products in classes 9 (computers            increase of gross tonnage. The application for an increase in
                              and peripherial devices thereto             tonnage was submitted by Ireland to the European Com-
                                                                          mission, who rejected it in the contested decision ( 1).
                              and computer software for anaes-
                              thesia and intensive care), 10
                              (Medical apparatus and instru-
                              ments for anaesthesia and inten-            In support of its application, the applicant invokes, in the first
                              sive care) and 42 (medical-techni-          place, absence of power of the Commission. According to the
                              cal development and research)               applicant, the Commission’s powers under Decision 97/413 (2)
                                                                          concerning the objectives and detailed rules for restructuring
Challenged       Decision     Refusal of the application by the           the Community fisheries are limited. The applicant submits
before the Board of           examiner                                    that Article 4(2) of Decision 97/413 imposes an obligation on
Appeal:                                                                   the Commission to determine applications for increases on a
                                                                          case-by-case basis and that the only issues the Commission
Grounds submitted:            Infringement of Artice 7(1)(b) and          may consider in making its decision are whether the increase
                              (c) of Council Regulation (CE)              in capacity results exclusively from safety improvements and
                              No 40/94                                    whether it increases the fishing effort of the vessel. According
                                                                          to the applicant, the Commission therefore had no power
                                                                          under Article 4(2) of Decision 97/413 to adopt certain other
                                                                          criteria referred to in Article 1 of the contested Decision.
 ---pagebreak--- C 239/10                   EN                         Official Journal of the European Union                                        4.10.2003
The applicant furthermore invokes a breach of the duty to                     Pleas in law and main arguments
state reasons and a breach of the principle of equal treatment.
In this last respect, the applicant submits that a difference
appears to have been made between all applications for new                    The applicant invokes the same pleas in law as in Case T-218/
replacement vessels and two applications for new replacement                  03 (1).
vessels for the ‘Angela’ and ‘Pembroke’.
                                                                              (1 ) See p. 9 of this Official Journal.
( 1) 2003/245/EC: Commission Decision of 4 April 2003 on the
     requests received by the Commission to increase MAGP IV
     objectives to take into account improvements on safety, navi-
     gation at sea, hygiene, product quality and working conditions
     for vessels of more than 12 m in length overall (notified under
     document number C(2003) 1113) (OJ L 90, p. 48).
( 2) 97/413/EC: Council Decision of 26 June 1997 concerning the
     objectives and detailed rules for restructuring the Community
     fisheries sector for the period from 1 January 1997 to 31 Decem-         Action brought on 13 June 2003 by Cavankee Fishing
     ber 2001 with a view to achieving a balance on a sustainable             Company Limited against the Commission of the Euro-
     basis between resources and their exploitation (OJ L 175, p. 27).                                  pean Communities
                                                                                (Case T-220/03)
                                                                                (2003/C 239/15)
                                                                                (Language of the case: English)
Action brought on 13 June 2003 by Mullglen Limited
   against the Commission of the European Communities
                                                                              An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
                             (Case T-219/03)                                  European Communities on 13 June 2003 by Cavankee Fishing
                                                                              Company Limited, Greencastle, (Ireland), represented by P. Gal-
                                                                              lagher and A. Collins, Barristers, and D. Barry, Solicitor.
                            (2003/C 239/14)
                                                                              The applicant claims that the Court should:
                      (Language of the case: English)
                                                                              —      annul the decision contained in Article 2 of Commission
                                                                                Decision of 4 April 2003 on the requests received by the
                                                                                Commission to increase in MAGP IV objectives to take
                                                                                into account improvements on safety, navigation at sea,
An action against the Commission of the European Communi-                            hygiene, product quality and working conditions for
ties was brought before the Court of First Instance of the
                                                                                vessels of more than 12 m in length overall notified
European Communities on 13 June 2003 by Mullglen Limited,                            under document number C(2003) 1113 to reject a safety
Killybegs, (Ireland), represented by P. Gallagher and A. Collins,                    capacity application to lengthen the MFV Fr McGee and
Barristers, and D. Barry, Solicitor.
                                                                                for a proposed new vessel to replace the MFV Fr McGee;
                                                                              —      order the Commission to pay the costs of these proceed-
The applicant claims that the Court should:                                          ings.
—       annul the decision contained in Article 2 of Commission
        Decision of 4 April 2003 on the requests received by the
        Commission to increase in MAGP IV objectives to take                  Pleas in law and main arguments
        into account improvements on safety, navigation at sea,
        hygiene, product quality and working conditions for
        vessels of more than 12 m in length overall notified                  The applicant invokes the same pleas in law as in Case T-218/
        under document number C(2003) 1113 to reject a safety                 03 (1).
        capacity application for a proposed new vessel to replace
        the MFV Pacelli.
                                                                              (1 ) See p. 9 of this Official Journal.
—       order the Commission to pay the costs of these proceed-
        ings.


title: Case C-260/05 P: Appeal brought on 20 June 2005 by Sniace SA against the judgment delivered on 14 April 2005 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-88/01 between Sniace SA and the Commission of the European Communities

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/22

         Appeal brought on 20 June 2005 by Sniace SA against the judgment delivered on 14 April 2005 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-88/01 between Sniace SA and the Commission of the European Communities
   (Case C-260/05 P)
   (2005/C 193/34)
   Language of the case: Spanish
   An appeal against the judgment delivered on 14 April 2005 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-88/01 between Sniace SA and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 20 June 2005 by Sniace SA, represented by D.J. Baró Fuentes, abogado.
   The appellant claims that the Court of Justice should:

               (1)

               annul the judgment of 14 April 2005 of the Court of First Instance in Case T-88/01;

               (2)

               allow the claims made at first instance or, if appropriate, refer the case back to the Court of First Instance for the latter to give a decision on the merits of the case;

               (3)

               allow the appellant's request for measures of organisation of procedure made on 16 October 2001, and the request for the parties to appear in person, for witnesses to give evidence and for an expert's report, made by the appellant on 20 April 2001;

               (4)

               order the respondent (the defendant at first instance) to pay the costs.

         Pleas in law and main arguments
   In support of its claims the appellant pleads:

               1.

               An error of law in that the appellant's application was held to be inadmissible because it had not adduced pertinent reasons to show that the contested decision might adversely affect its legitimate interests by seriously jeopardising its position on the market. Here, the Court of First Instance fell into various errors of assessment of the information in the file, in particular in relation to direct competition between the cellulose fibres (lyocell, sub-standards of lyocell and proviscose) manufactured and marketed by the undertaking which is the recipient of the State aid and the cellulose fibres (viscose) manufactured and marketed by the appellant. Both fibres compete for certain uses and applications on the same market. Likewise, the Court of First Instance failed to make a proper assessment of various matters in the file that constituted legal evidence of the existence of a set of specific circumstances identifying the appellant (closed circle of addressees and over-capacity on the market for cellulose fibres etc.). Finally, the Court of First Instance made an incorrect assessment of the matters in the file that prove the considerable adverse effect on the appellant's position on the market.

               2.

               An error of law in that the application was declared inadmissible because the appellant was not individually concerned, having played only a minor role in the pre-litigation procedure. On this point, the European Commission gave the appellant notice to submit comments as an interested third party for the purposes of Article 88(2) EC. The appellant made effective use of its procedural rights and submitted comments directed at the aid granted to Lenzing Lyocell. Nonetheless, that participation could serve no practical purpose because the Commission considered it expedient not to reveal certain information during the administrative procedure.

               3.

               As a subsidiary matter, breach of the fundamental right of effective legal protection. The Court of First Instance's decision to declare the action inadmissible, without undertaking any evaluation of the merits of the case, constitutes an infringement of the right to a fair hearing and a denial of justice. It implies a retrograde step in Community case-law which has made more flexible the conditions on which third parties concerned in proceedings concerning State aid may bring an action.

               4.

               As a further subsidiary matter, infringement of Community law. This plea may in turn be divided into two parts. First, breach of the principle of procedural equality, given that comparative examination supports the conclusion that the Fifth Chamber (Extended Composition) of the Court of First Instance afforded different treatment to two comparable situations. Second, infringement of Articles 64 and 65 of the Rules of Procedure of the Court of First Instance, in that the Court of First Instance did not grant the request for measures of organisation of procedure and for evidence sought at first instance by the appellant.


title: Order of the Court of First Instance of 29 September 2003 in Case T-183/01: Alza Corporation v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Amicable settlement — No need to adjudicate)

text:
13.12.2003              EN                          Official Journal of the European Union                                            C 304/29
3.    The interveners are to bear their own costs.                                ORDER OF THE COURT OF FIRST INSTANCE
(1) OJ C 166 of 30.5.1998.                                                                       of 30 September 2003
                                                                            in Case T-182/02: Uni-Pharma Kleon Tsetis Farmakeftika
                                                                            Ergastiria Anonimos Viomichaniki kai Emporiki Eteria
                                                                            against Office for Harmonisation in the Internal Market
                                                                                (Trade Marks and Designs) (OHIM) (1)
       ORDER OF THE COURT OF FIRST INSTANCE
                                                                            (Community trade mark — Opposition — Amicable settle-
                                                                                ment — Not necessary to give judgment)
                      of 29 September 2003
in Case T-183/01: Alza Corporation v Office for Harmon-                                             (2003/C 304/54)
isation in the Internal Market (Trade Marks and Designs)
                             (OHIM) (1)
                                                                                (Language of the case: French)
(Community trade mark — Opposition — Amicable settle-
                 ment — No need to adjudicate)
                          (2003/C 304/53)                                   In Case T-182/02: Uni-Pharma Kleon Tsetis Farmakeftika
                                                                            Ergastiria Anonimos Viomichaniki kai Emporiki Eteria (Uni-
                    (Language of the case: English)                         Pharma ABEE), established in Kato Kifisia, Attica (Greece),
                                                                            represented by M. Bra and E. Gioti-Manthou, lawyers, with
                                                                            an address for service in Luxembourg, against Office for
                                                                            Harmonisation in the Internal Market (Trade Marks and
                                                                            Designs) (OHIM) (Agents: O. Montalto, E. Joly and O. Wael-
In Case T-183/01, Alza Corporation, established in Mountain                 broeck), with BIOFARMA S.A., established in Neuilly-sur Seine
View, California (United States of America), represented by                 (France) and represented by V. Gil Vega and A. Ruiz López,
M. Edenborough, lawyer, with an address for service in                      lawyers, intervening before the Court of First Instance —
Luxembourg, v Office for Harmonisation in the Internal                      action brought against the decision of the Fourth Board of
Market (Trade Marks and Designs) (OHIM) (Agent: S. Laitinen),               Appeal of the Office for Harmonisation in the Internal Market
the intervener before the Court of First Instance being: HEXAL              (Trade Marks and Designs) of 27 February 2002 (Case R 725/
AG, established in Holzkirchen (Germany), represented by A.                 2000-4) relating to opposition proceedings between Uni-
Spranger, lawyer: ACTION brought against the decision of the                Pharma Kleon Tsetis Farmakeftika Ergastiria Anonimos Vio-
Second Board of Appeal of the Office for Harmonisation in                   michaniki kai Emporiki Eteria (Uni-Pharma ABEE) and
the Internal Market (Trade Marks and Designs) of 23 May                     BIOFARMA S.A. — the Court of First Instance (Fourth
2001 (Case R 321/1999-2) relating to opposition proceedings                 Chamber), composed of V. Tiili, President, P. Mengozzi and
between Alza Corporation and Hexal AG, the Court of First                   M. Vilaras, Judges; H. Jung, Registrar, made an order on
Instance (Fourth Chamber), composed of: V. Tiili, President,                30 December 2003, the operative part of which is as follows:
P. Mengozzi and M. Vilaras, Judges; H. Jung, Registrar, has
made an order on 29 September 2003, the operative part of
which is as follows:                                                        1.   It is no longer necessary to give judgment on the present
                                                                                application.
1.    There is no longer any need to adjudicate on this action.
                                                                            2.   The applicant shall bear its own costs and those of OHIM.
2.    The applicant shall bear its own costs, as well as those of the
      defendant.
                                                                            3.   The intervener shall bear its own costs.
3.    The intervener shall bear its own costs.
                                                                            (1) OJ C 202, 24.8.2002.
(1 ) OJ C 317 of 10.11.2001.


title: Case T-112/09: Action brought on 19 March 2009 — Icebreaker v OHIM — Gilmar (ICEBREAKER)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/41

         Action brought on 19 March 2009 — Icebreaker v OHIM — Gilmar (ICEBREAKER)
   (Case T-112/09)
   2009/C 113/83
   Language in which the application was lodged: English

      Parties

      Applicants: Icebreaker Ltd (Wellington, New Zealand) (represented by: L. Prehn, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Gilmar SpA (San Giovanni in Marignano (Rimini), Italy)

      Form of order sought

               —

               Reverse the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2009 in case R 1536/2007-4 and approve for registration for goods in class 25 the Community trade mark concerned; and

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘ICEBREAKER’, for goods in classes 9, 24 and 25 — application No 3 205 523

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

      Mark or sign cited: Italian trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; International trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; Spanish trade mark registration of the word mark ‘ICEBERG’ for goods in class 25; Italian trade mark registration of the word mark ‘ICE’ for goods in class 25; International trade mark registration of the word mark ‘ICE’ for goods in class 25

      Decision of the Opposition Division: Partially allowed the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 40/94 as the Board of Appeal wrongly concluded that there is a likelihood of confusion between the trade marks concerned.


title: Case T-196/00: Action brought on 26 July 2000 by Luc Verheyden against the Commission of the European Communities

text:
C 302/26              EN                     Official Journal of the European Communities                                    21.10.2000
Action brought on 26 July 2000 by Thomas Cook Group                     Action brought on 26 July 2000 by Luc Verheyden against
Limited and Interpayment Services Limited against the                          the Commission of the European Communities
         Commission of the European Communities
                                                                                (Case T-196/00)
                        (Case T-195/00)
                                                                                (2000/C 302/65)
                        (2000/C 302/64)
                                                                                (Language of the case: French)
                  (Language of the case: English)
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
An action against the Commission of the European Communi-               European Communities on 26 July 2000 by Luc Verheyden,
ties was brought before the Court of First Instance of the              residing at Angera (Italy), represented by Eric Boigelot, of the
European Communities on 26 July 2000 by Thomas Cook                     Brussels Bar.
Group Limited and Interpayment Services Limited, represented
by Claude Delcorde and Edward Kling of Dechert Price &
Rhoads, Brussels.                                                       The applicant claims that the Court should:
                                                                        —     annul the decision not to promote the applicant, during
The applicants claim that the Court should:                                   the course of the 1999 promotions procedure, to gra-
                                                                              de A 4 in a correspondingly higher step, in accordance
                                                                              with the Staff Regulations and with retroactive effect
—     order, pursuant to the second paragraph of Article 288                  from 10 October 1989, as results from the exclusion of
      EC, the Commission to make good the damage caused                       his name from the list of persons promoted, which
      to the applicants by paying them the sum of GBP                         was published in ‘Administrative Notices’ No 1082 of
      25,5 million;                                                           13 August 1999;
—     order interest to be paid on the said sum at the annual           —     order the payment, by way of compensation for non-
      rate of 6 % from the date of judgment until the date of                 material damage, of the sum of BEF 500 000
      payment; and                                                            (12 394,68 euro), together with interest at the rate of 8 %
                                                                              per annum from the date of the judgment to be delivered
                                                                              until payment in full;
—     order the Commission to pay the costs of the application.
                                                                        —     order the defendant to pay all the costs.
Pleas in law and main arguments
                                                                        Pleas in law and main arguments
The applicants claim that the sign which the Commission
adopted as the sign for the euro is substantially similar to one        The applicant in the present case objects to the fact that he was
of their own registered logos. The Commission’s use and                 not promoted to grade A 4 during the period corresponding to
inducement of third parties to use the euro sign amounts thus           1999.
to a trade mark infringement. The Commission failed to avoid
the evisceration of the logo and thus violated the principle of
respect for vested rights, the principle of the protection of           In support of his claims, he asserts that the appointing
legitimate expectations and the principles of non-discrimi-             authority infringed the second paragraph of Article 25 and
nation and of proportionality. Moreover, the Commission’s               Articles 43 and 45 of the Staff Regulations, as well as the
failure constitutes an unlawful expropriation of the applicants’        general principles of equality, the duty to have regard for the
property.                                                               welfare and interests of officials, the protection of legitimate
                                                                        expectations and the obligation to state reasons, by failing to
                                                                        take into account his merits and the extremely lengthy period
To the extent that the Commission acted lawfully, the burden            for which he has occupied his present grade, and that this has
of that action falls disproportionately and unfairly on the             placed him in a totally abnormal administrative situation, both
applicants and constitutes a ‘Sonderopfer’ and ‘rupture d’égalité       in view of the career prospects normally open to all officials in
devant les charges publiques’ giving rise to compensation.              a position identical or comparable to his and in the light of his
                                                                        objective expectations and merits.


title: Case T-225/11: Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG)

text:
               2.7.2011

               EN

               Official Journal of the European Union

               C 194/18

         Action brought on 21 April 2011 — Caventa AG v OHIM — Anson’s Herrenhaus (BERG)
   (Case T-225/11)
   2011/C 194/29
   Language in which the application was lodged: German

      Parties

      Applicant(s): Caventa AG (Rekingen, Switzerland) (represented by: J. Krenzel, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Anson’s Herrenhaus KG (Düsseldorf, Germany)

      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 10 February 2011 in Case R 740/2010-1;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Caventa AG.

      Community trade mark concerned: Figurative mark ‘BERG’ for goods in Classes 25 and 28 (Application No 7 124 084).

      Proprietor of the mark or sign cited in the opposition proceedings: Anson’s Herrenhaus KG.

      Mark or sign cited in opposition: Word mark ‘Christian Berg’ for goods and services in Classes 3, 18, 25 and 35 (Community trade mark No 3 383 676), the opposition being directed against registration for goods in Classes 25 and 28.

      Decision of the Opposition Division: Opposition upheld.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, (1) since there is no likelihood of confusion between the marks in question.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (Consolidated Version) (OJ 2009 L 78, p. 1).


title: Order of the Court of First Instance of 4 June 2003 in Case T-224/99: The European Council of Transport Users ASBL and Others v Commission of the European Communities (Actions for annulment — Action become devoid of purpose — No need to adjudicate)

text:
C 213/34               EN                          Official Journal of the European Union                                             6.9.2003
Judges; J. Plingers, Administrator, for the Registrar, has given a         inland waterway (OJ, English Special Edition 1968 (I), p. 302),
judgment on 3 April 2003, in which it:                                     concerning the revised version of the Trans-Atlantic Confer-
                                                                           ence Agreement (TACA), the Court of First Instance (Third
                                                                           Chamber), composed of: K. Lenaerts, President, J. Azizi and
1.    Dismisses the application;                                           M. Jaeger, Judges; H. Jung, Registrar, has made an order on
                                                                           4 June 2003, the operative part of which is as follows:
2.    Orders the applicant to bear its own costs and to pay those
      incurred by the Commission and SEB;
                                                                           1.    There is no need to adjudicate on the action.
3.    Orders De’Longhi to bear its own costs;
                                                                           2.    The parties shall bear their own costs.
4.    Orders the French Republic to bear its own costs.
                                                                           (1 ) OJ C 6 of 8.1.2000.
( 1) OJ C 169 of 13.7.2002.
       ORDER OF THE COURT OF FIRST INSTANCE                                       ORDER OF THE COURT OF FIRST INSTANCE
                          of 4 June 2003                                                             of 13 May 2003
in Case T-224/99: The European Council of Transport                        in Case T-97/01 DEP, Christos Gogos v Commission of
Users ASBL and Others v Commission of the European                                           the European Communities (1)
                         Communities (1)
                                                                                (Taxation of recoverable costs)
(Actions for annulment — Action become devoid of purpose
                     — No need to adjudicate)
                                                                                (2003/C 213/67)
                         (2003/C 213/66)
                                                                                (Language of the case: Greek)
                   (Language of the case: English)
                                                                           In Case T-97/01 DEP, Christos Gogos, an official of the
In Case T-224/99, The European Council of Transport Users                  Commission of the European Communities, represented by
ASBL, established in Brussels, The Freight Transport Associ-               C. Tagaras, lawyer, v Commission of the European Communi-
ation, established in Tunbridge Wells (United Kingdom),                    ties (Agents: H. Tserepa-Lacombe and J. Currall) — application
Association des Utilisateurs de Transport de Fret (AUTF),                  for taxation of costs to be paid by the defendant to the
established in Paris, and Industrieförbundet, established in               applicant following the order of the Court of First Instance of
Stockholm, represented by M. Clough QC, with an address for                21 October 2002 in Case T-97/01 Gogos v Commission (not
service in Luxembourg, v Commission of the European                        published in the Reports of Cases) — the Court of First
Communities (Agent: R. Lyal), supported by Atlantic Container              Instance (Second Chamber), composed of: N.J. Forwood,
Line AB, established in Göteborg (Sweden), Hapag-Lloyd AG,                 President, J. Pirrung and A.W.H. Meij, Judges; H. Jung, Registrar,
established in Hamburg (Germany), Mediterranean Shipping                   made an order on 13 May 2003 the operative part of which is
Company SA, established in Geneva (Switzerland), A.P. Møller-              as follows:
Mærsk Line, established in Copenhagen, Nippon Yusen Kaisha,
established in Tokyo (Japan), Orient Overseas Container Line
(UK) Ltd, established in London and P & O Nedlloyd Container               The total amount of costs recoverable by the applicant in Case T-97/
Line Ltd, established in London, represented by J. Pheasant and            01 is fixed at EUR 11 000
M. Levitt, Solicitors, with an address for service in Luxembourg:
Application for annulment of the decision of the Commission,
communicated to the applicants by letter of 6 August 1999,                 (1 ) OJ C 186 of 30.6.01.
not to raise serious doubts, within the meaning of Article 12
of Council Regulation (EEC) No 1017/68 of 19 July 1968
applying rules of competition to transport by rail, road and


title: Case T-146/04: Judgment of the Court of First Instance of  22 December 2005  — Gorostiaga Atxalandabaso v Parliament (Rules governing the payment of expenses and allowances to Members of the European Parliament — Review of use of allowances — Justification of expenses — Recovery of a debt by offsetting)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/28

         Judgment of the Court of First Instance of 22 December 2005 — Gorostiaga Atxalandabaso v Parliament
   (Case T-146/04) (1)

   (Rules governing the payment of expenses and allowances to Members of the European Parliament - Review of use of allowances - Justification of expenses - Recovery of a debt by offsetting)
   (2006/C 48/53)
   Language of the case: French
   Parties

      Applicant: Koldo Gorostiaga Atxalandabaso (Saint-Pierre-d'Irube, France) (represented by: D. Rouget, lawyer)

      Defendant: European Parliament (represented by H. Krück, C. Karamarcos and D. Moore, Agents)

      Intervener in support of the defendant: Kingdom of Spain (represented by its Agent)
   Application for
   Annulment of the decision of the Secretary-General of the European Parliament of 24 February 2004 concerning the recovery of sums paid to the applicant as parliamentary expenses and allowances
   Operative part of the judgment
   The Court:

               1)

               Annuls the decision of the Secretary-General of the European Parliament of 24 February 2004 concerning the recovery of sums paid to the applicant as parliamentary expenses and allowances in so far as it provides that the sum owed by the applicant will be recovered by offsetting.

               2)

               Dismisses the remainder of the application.

               3)

               Orders the applicant, the Parliament and the Kingdom of Spain to bear their own costs.

      (1)  OJ C 168, 26.6.2004.


title: Case T-323/03: Judgment of the Court of First Instance of 10 July 2006 — La Baronia de Turis v OHIM — Baron Philippe de Rothschild (LA BARONNIE) (Community trade mark — Opposition proceedings — Application for Community word mark LA BARONNIE — Previous national word mark BARONIA — Proof of use of earlier mark — Evidence produced for the first time before the Board of Appeal — Admissibility — Scope of the examination conducted by the Boards of Appeal — Articles 62 and 74 of Regulation (EC) No 40/94)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/35

         Judgment of the Court of First Instance of 10 July 2006 — La Baronia de Turis v OHIM — Baron Philippe de Rothschild (LA BARONNIE)
   (Case T-323/03) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark LA BARONNIE - Previous national word mark BARONIA - Proof of use of earlier mark - Evidence produced for the first time before the Board of Appeal - Admissibility - Scope of the examination conducted by the Boards of Appeal - Articles 62 and 74 of Regulation (EC) No 40/94)
   (2006/C 224/75)
   Language of the case: French
   Parties

      Applicant: La Baronia de Turis, Cooperativa Valenciana (Turis, Spain) (represented by: J. Carreño Moreno, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Petrequin and A. Folliard-Monguiral, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Baron Philippe de Rothschild SA (Pauillac, France) (represented by: K. Manhaeve, lawyer)
   Re:
   Action brought against the decision of the Second Board of Appeal of OHIM of 9 July 2003 (R 57/2003-2) concerning the opposition proceedings between Baronia de Turis, Cooperativa Valenciana and Baron Philippe de Rothschild SA
   Operative part of the judgment
   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2003 (Case R 57/2003-2);

               2.

               Dismisses as inadmissible the application of the applicant, La Baronia de Turis, Cooperativa Valenciana, seeking refusal to register the Community trade mark in question;

               3.

               Dismisses the application of the intervener, Baron Philipe de Rothschild SA, that the opposition be declared inadmissible, in so far as it is based on Article 8(4) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark;

               4.

               Dismisses the action as to the remainder.

      (1)  OJ C 275, 15.11.2003.


title: References for a preliminary ruling from the Marknadsdomstolen by three decisions of that court of 7 February 1995 in the case of Konsumentombudsmannen v. De Agostini (Svenska) Förlag AB and in the case of Konsumentombudsmannen v. TV-Shop i Sverige AB (Cases C-34/95, C-35/95 and C-36/95)

text:
No C 101/2             PEN                   Official Journal of the European Communities                                       22 . 4 . 95
1 , a motor vehicle tax applied without distinction to                        (a ) what if any temporal limitation is to be placed upon
      vehicles assembled or manufactured in the Member                              such invalidity and/or upon its effects ?
      State where it is levied and to both new and used
      imported vehicles is not a customs duty or a charge                     ( b) In the circumstances of this case, is a national
      having an effect equivalent thereto within the meaning                        competent authority prohibited by Community law
      of Articles 9 and 12 of the EC Treaty;                                        from enforcing a provision of domestic legislation
                                                                                requiring health inspections at slaughterhouses to
                                                                                be carried out by or under the supervision of
2, it is incompatible with Article 95 of the EC Treaty for a                        veterinary surgeons when that provision purports
      Member State to levy on second-hand cars from other                           to implement Directive 64/433/EEC as amended
      Member States a tax which, calculated without taking                          but which also has or purports to have another,
      the vehicle's actual depreciation into account, exceeds                       independent legal basis in national law ?
      the residual tax incorporated in the value of similar
      second-hand motor vehicles already registered in the
      national territory.                                               4. Is it contrary to Articles 39 and/or 40 ( 3 ) of the EC
                                                                              Treaty, or the general principles of equality and/or
                                                                              proportionality, for the costs of health inspections by
f 1 ) OJ No C 231 , 27. 8 . 1993 .                                            veterinary surgeons of animals intended for slaughter to
                                                                              be borne by the slaughterhouse at which the animals are
                                                                              to be slaughtered ?
                                                                        (!) OJ No L 121 , 29 . 7. 1964, p. 2012 .
                                                                        (2) OJ No L 268 , 24. 9 . 1991 , p. 69.
Reference for a preliminary ruling by the High Court of
Justice (England), Bristol Mercantile Court, by order of that
court of 20 January 1995 , in the case of Woodspring District
               Council against Bakers of Nailsea Ltd
                                                                        References for a preliminary ruling from the
                           (Case C-27/95 )                              Marknadsdomstolen by three decisions of that court of
                            ( 95/C 101/03 )                             7 February 1995 in the case of Konsumentombudsmannen
                                                                        v. De Agostini ( Svenska) Fôrlag AB and in the case of
                                                                             Konsumentombudsmannen v. TV-Shop i Sverige AB
Reference has been made to the Court of Justice of the
                                                                                (Cases C-34/95 , C-35/95 and C-36/95 )
European Communities by an order of the High Court of
Justice ( England ), Bristol Mercantile Court, of 20 January                                      ( 95/C 101/04 )
1995 , which was received at the Court Registry on
6 February 1995 , for a preliminary ruling in the case of               References have been made to the Court of Justice of the
Woodspring District Council against Bakers of Nailsea Ltd,              European Communities by three decisions of the
on the following questions:                                             Marknadsdomstolen [Market Court] of 7 February 1994,
                                                                        which were received at the Court Registry on 1 3 February
                                                                        1995 , for a preliminary ruling in the case of
1 , is a private party in the circumstances of this case                Konsumentombudsmannen [Consumers' Ombudsman] v.
      entitled to rely in the national court upon Articles 39 and       De Agostini ( Svenska ) AB ( Case C-34/94 ) and in the cases of
      40 ( 3 ) of the EC Treaty, and/or the general principles of       Konsumentombudsmannen v,. TV-Shop i Sverige AB ( Cases
      proportionality and equal treatment, as grounds for               C-35/95 and C-36/95 ) on the following questions :
      challenging the validity of Community legislation ?
                                                                        are Article 30 or Article 59 of the Treaty or Directive
2. Is Council Directive 64/433/EEC of 26 June 1964 on                   89/552/EEC (*) of 3 October 1989 to be interpreted as:
      health problems affecting intra-Community trade in
      fresh meat (*) as amended and replaced by Council
      Directive 91 /497/EEC of 29 July 1991 amending and
                                                                        (a ) preventing a Member State from taking action against
      consolidating Directive 64/433/EEC on health problems
                                                                               television advertisements which an advertiser arranges
                                                                               to have broadcast from another Member State (in all
      affecting intra-Community trade in fresh meat to extend                  three cases );
      it to the production and marketing of fresh meat ( 2)
      invalid, having regard to Articles 39 and 40 ( 3 ) of the EC
      Treaty and the general principle of proportionality, in so        ( b ) precluding application of Article 11 ( 1 ) of the Radiolag
      far as it requires and/or permits Member States to                        ( 1966:755 ) prohibiting advertisements directed at
      require health inspections at slaughterhouses to be                      children (in Case C-34/95 only)?
      carried out by veterinary surgeons and/or in so far as it
      requires ante-mortem inspections to be carried out?               (!) OJ No L 298 , 17. 10 . 1989, p . 23 .
3 . If the answer to question 2 is in the affirmative:


title: Judgment of the Court of First Instance of 21 April 2005 in Case T-269/02 PepsiCo, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for Community word mark RUFFLES — Earlier national trade mark RIFFELS — Even earlier national trade mark RUFFLES — Coexistence and equivalence between national trade marks and Community trade marks)

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/12

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 21 April 2005
   in Case T-269/02 PepsiCo, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark RUFFLES - Earlier national trade mark RIFFELS - Even earlier national trade mark RUFFLES - Coexistence and equivalence between national trade marks and Community trade marks)
   (2005/C 155/23)
   Language of the case: English
   In Case T-269/02: PepsiCo, Inc., established in Purchase, New York (United States), represented by E. Armijo Chávarri, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: initially J. Novais Gonçalves and J. Crespo Carrillo, subsequently A. von Mühlendahl and J. Novais Gonçalves), the other party to the proceedings before the OHIM Board of Appeal, intervening before the Court of First Instance, being Intersnack Knabber-Gebäck GmbH & Co. KG, formerly Convent Knabber-Gebäck GmbH & Co. KG, established in Cologne (Germany), represented by M. Schaeffer, lawyer — action brought against the decision of the First Board of Appeal of OHIM of 10 June 1002 (Case R 114/2000-1) relating to opposition proceedings between PepsiCo, Inc. and Intersnack Knabber-Gebäck GmbH & Co. KG, — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 21 April 2005, in which it:

               1.

               Dismisses the application;

               2.

               Orders the applicant to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

               3.

               Orders the intervener to bear its own costs.

      (1)  OJ C 261 of 26.10.2002


title: Case C-374/99: Action brought on 7 October 1999 by the Kingdom of Spain against the Commission of the European Communities

text:
18.12.1999             EN                    Official Journal of the European Communities                                         C 366/17
On a proper construction of Article 1 thereof, is Council                        lation; is it relevant whether in this operation there is
Regulation (EC) No 3295/94 of 22 December 1994 laying                            an intention to bring the goods — inter alia through
down measures to prohibit the release for free circulation,                      completion of the operation — into circulation within
export, re-export or entry for a suspensive procedure of                         the Community contrary to the Community pro-
counterfeit and pirated goods (Official Journal of the European                  visions; or
Communities L 341 of 30 December 1994) also applicable to
situations in which goods of the type specified therein are, in             (c) should the words ‘cease to be covered’ be construed as
the course of transit between two countries not belonging to                     referring to the totality of the operations which result
the European Community, temporarily detained by the cus-                         in the goods being brought into circulation within the
toms authorities in a Member State on the basis of that                          Community otherwise than in a regular manner?
regulation, at the request of a holder of rights who claims that
his rights have been infringed and whose undertaking has                2. If the answer to the first question is in accordance with
its registered office in a Member State of the European                     heading (c), where does this cessation occur: does it occur
Community?                                                                  in the place where the first irregular operation is carried
                                                                            out, or in the place where a subsequent operation is carried
                                                                            out, in particular the place where the goods — in the
                                                                            present case following breaking of the seals — are unloaded
                                                                            from the means of transport?
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that court of 23 June 1999
in the case of Liberexim B.V. v Inspecteur Belasting-                   Action brought on 7 October 1999 by the Kingdom of
                dienst/Douane District Arnhem                           Spain against the Commission of the European Communi-
                                                                                ties
                         (Case C-371/99)
                                                                                (Case C-374/99)
                         (1999/C 366/27)                                                           (1999/C 366/28)
Reference has been made to the Court of Justice of the                  An action against the Commission of the European Communi-
European Communities by judgment of the Hoge Raad der                   ties was brought before the Court of Justice on 7 October
Nederlanden (Supreme Court of the Netherlands) of 23 June               1999 by the Kingdom of Spain, represented by Mónica
1999, received at the Court Registry on 4 October 1999, for a           López-Monı́s Gallego, Abogado del Estado, with an address for
preliminary ruling in the case of Liberexim B.V. v Inspecteur           service in Luxembourg at the Spanish Embassy, 4-6 Boulevard
Belastingdienst/Douane District Arnhem (Tax Inspector-                  E. Servais.
ate/Arnhem Customs District) on the following questions:
                                                                        The applicant claims that the Court of Justice should:
1. What is to be understood by the words ‘cease to be
    covered’ (‘onttrekken’) by the external transit arrangements        — Annul the Commission’s decision of 28 July 1999
    within the meaning of Article 7(3) of the Sixth Directive, if           amending Decision 99/187/EC (1) as regards the financial
    such cessation does not occur in a regular manner — that                adjustments imposed on the Kingdom of Spain and
    is to say, otherwise than by the goods being declared for               contested in the application, and
    free circulation:
                                                                        — order the defendant institution to pay the costs.
    (a) is this the first operation which, in relation to the
         goods, is carried out contrary to any provision connec-        Pleas in law and main arguments
         ted with those arrangements, and is it relevant whether
         in this operation there is an intention to bring the
         goods — inter alia through completion of the oper-             The Kingdom of Spain challenges the contested decision as
         ation — into circulation within the Community con-             regards the financial adjustments imposed in the following
         trary to that provision; or                                    sectors:
    (b) does such cessation occur (only) once the goods — in
         the present case following breaking of the seals —             1. A i d f o r t h e c o n s u m p t i o n o f o l i v e o i l
         have been unloaded from the means of transport
         without compliance with the obligation to produce the          PTE 6 206 113 141 corresponding to an adjustment of 10 %
         goods with documentation at the office of destination          of the expenditure incurred by Spain for the 1994 and 1995
         in accordance with Article 22(1) of the transit regu-          financial years.
 ---pagebreak--- C 366/18              EN                      Official Journal of the European Communities                                   18.12.1999
Such a large adjustment, amounting to 10 % of the entire                 — the principle of sound administration;
expenditure declared by Spain, contained in the contested
decision is not in any way justified pursuant to the general             — in the alternative, breach of the principle of pro-
Community law principle of proportionality. The system for                    portionality.
monitoring aid for the consumption of olive oil is an altogether
reliable system and the basic checks demanded by Community
legislation have been properly carried out. In particular, as            (1) OJ L 61 of 10.3.1999, p. 37.
recognised by the Conciliation Body itself, the importance of
the risk of any losses for the EAGGF may be non-existent. In
any event, in the contested decision the Commission goes
counter to its own measures in taking into consideration the
application of sanctions and the proper supervision of the
procedures (although Spain considers itself to have acted
correctly without infringing Community law) in its communi-
cation on guidelines for the calculation of the budgetary
implications in preparing the Decision on the clearance of the           Action brought on 7 October 1999 by the Kingdom of
accounts of the EAGGF, Guarantee Section, on the basis of                Spain against the Commission of the European Communi-
auxiliary and not basic cheeks. That should, of itself, lead in                                           ties
any event to a much smaller adjustment than that imposed in
the decision.
                                                                                (Case C-375/99)
                                                                                (1999/C 366/29)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice on 7 October
2. P r e m i u m s f o r s h e e p o r g o a t s                         1999 by the Kingdom of Spain, represented by Mónica
                                                                         López-Monı́s Gallego, Abogado del Estado, with an address for
                                                                         service in Luxembourg at the Spanish Embassy, 4-6 Boulevard
                                                                         E. Servais.
A total of PTE 159 802 819 corresponding to an adjustment
of 5 % of the payments made in the provinces of Palencia,                The applicant claims that the Court of Justice should:
Salamanca, Orense and Castellón and of 2 % of the payments
made in the province of Lugo in the financial years 1994 and             — Annul the Commission’s decision of 28 July 1999, exclud-
1995 for the marketing year 1993. The higher amounts                          ing from Community financing certain expenditure by the
considered by the Commission also include payments made in                    Member States in respect of the financial adjustments
1993, a financial year which had already been cleared by                      imposed on the Kingdom of Spain and contested in the
Decision 97/33/EC of 23 April 1997 and Decision 97/608/EC                     application;
of 30 July 1997 in which distinct penalties were imposed for
various reasons, no sum being separated for subsequent                   — order the defendant institution to pay the costs.
clearance.
                                                                         Pleas in law and main arguments
In general, breach of the following principles of Community
                                                                         The Kingdom of Spain expresses its disagreement with the
law:
                                                                         flat-rate adjustment amounting to 5 % of the expenditure
                                                                         declared and with the way in which the Commission’s staff
                                                                         acted, for the following reasons:
— principle of the right to a hearing: this principle has
     been breached in all the adjustments contested in the               (A) Since the financial adjustment was not calculated in the
     application. It was formally observed, but the Com-                      formal notification on the ground that it was subject to
     mission’s replies are in practice confined to repetition of              the sending of further information, it was not possible to
     the same points, without contradiction or rebuttal of the                know whether the conditions laid down in Commission
     arguments put forward;                                                   Decision 94/442/EC (1) in order to seek the intervention of
                                                                              the Conciliation Body had been satisfied.
                                                                         (B) The formal notification document states that, because of
— lack of evidence of the wrongful conduct attributed to the                  the laxity of the implementing legislation in the Member
     Member State: the Commission based the adjustments                       State, it was proposed in the clearance of the accounts for
     either on circumstantial factors or suspicions, or on data               the financial years 1996 and 1997 to impose a financial
     rebutted or corrected by the Spanish authorities;                        adjustment of 5 % of the expenditure declared by Spain