title: Case C-438/13: Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 2 August 2013 — SC BCR Leasing IFN SA v Agenția Națională de Administrare Fiscală — Direcția generală de administrare a marilor contribuabili, Agenția Națională de Administrare Fiscală — Direcția generală de soluționare a contestațiilor

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/13

         Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 2 August 2013 — SC BCR Leasing IFN SA v Agenția Națională de Administrare Fiscală — Direcția generală de administrare a marilor contribuabili, Agenția Națională de Administrare Fiscală — Direcția generală de soluționare a contestațiilor
   (Case C-438/13)
   2013/C 325/22
   Language of the case: Romanian

      Referring court

   Curtea de Apel București

      Parties to the main proceedings

      Applicant: SC BCR Leasing IFN SA

      Defendants: Agenția Națională de Administrare Fiscală — Direcția generală de administrare a marilor contribuabili, Agenția Națională de Administrare Fiscală — Direcția generală de soluționare a contestațiilor

      Question referred

   May a situation involving goods under a financial leasing contract which, following termination of the contract as a result of the user’s breach, have not been recovered from the user by the leasing company, even though that company has instituted and followed the statutory procedures for recovery and, after termination, has not received any further amount for the use of the goods, be considered a supply of goods for consideration within the meaning of Article 16 of Directive 2006/[112]/EC (1) or, possibly, a supply of goods for consideration within the meaning of Article 18 of Directive 2006/[112]/EC?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Case C-156/01: Reference for a preliminary ruling by the Centrale Raad van Beroep by order of 21 March 2001 in the disputes between R. P. van der Duin and ANOZ Zorgverzekeringen UA and ANOZ Zorgverzekeringen UA and T.W. van Wegberg-van Brederode

text:
14.7.2001             EN                    Official Journal of the European Communities                                        C 200/39
Reference for a preliminary ruling by the Centrale Raad                Appeal brought on 12 April 2001 by the Federal Republic
van Beroep by order of 21 March 2001 in the disputes                   of Germany against the judgment delivered on 31 January
between R. P. van der Duin and ANOZ Zorgverzekering-                   2001 by the First Chamber of the Court of First Instance
en UA and ANOZ Zorgverzekeringen UA and T.W. van                       of the European Communities in Case T-156/98 between
                   Wegberg-van Brederode                               RJB Mining PLC and Commission of the European Com-
                                                                       munities, supported by RAG Aktiengesellschaft and Fed-
                                                                                eral Republic of Germany
                        (Case C-156/01)
                                                                                (Case C-157/01 P)
                        (2001/C 200/71)
                                                                                (2001/C 200/72)
Reference has been made to the Court of Justice of the
European Communities by order of 21 March 2001 by the
Centrale Raad van Beroep (Higher Social Security Court),               An appeal against the judgment delivered on 31 January 2001
which was received at the Court Registry on 10 April 2001,             by the First Chamber of the Court of First Instance of the
for a preliminary ruling in the disputes between R. P. van der         European Communities in Case T-156/98 RJB Mining PLC and
Duin and ANOZ Zorgverzekeringen UA, a mutual guarantee                 Commission of the European Communities, supported by
society, and ANOZ Zorgverzekeringen UA and T.W. van                    RAG Aktiengesellschaft and Federal Republic of Germany,
Wegberg-van Brederode on the following questions:                      was brought before the Court of Justice of the European
                                                                       Communities on 12 April 2001 by the Federal Republic of
                                                                       Germany, represented by Ministerialrat Wolf-Dieter Plessing,
1.   Does Article 22(1)(c) of Regulation (EEC) No 1408/71 (1)          Oberregierungsrat Dr Thomas Jürgensen, Bundesministerium
     also apply to (a member of the family of) a pensioner who         der Finanzen, and Martina Maier, Haarmann Hemmelrath,
     is entitled under Article 28 of Regulation No 1408/71 to          Paris.
     receive benefits from the institution of the place of
     residence, (in the present cases from the French or the
     Spanish sickness assurance funds respectively), those             The appellant
     benefits being chargeable to the institution competent in
     accordance with Article 28(2)(a) of Regulation                    1.    claims that the Court should set aside the judgment of
     No 1408/71, that is to say the Netherlands sickness                     the Court of First Instance of 31 January 2001
     assurance fund, in a situation in which the pensioner (or               [T-156/98 (1)] in so far as it held that the application was
     a member of his family) travels to the competent Member                 founded;
     State in order to receive medical treatment?
                                                                       2.    continues to seek the form of order sought at First
                                                                             Instance;
2.   If the answer to Question 1 is affirmative, which insti-
     tution is responsible for granting the authorisation
                                                                       3.    claims that the applicant at First Instance should be
     referred to in Article 22(1)(c) of Regulation No 1408/71?
                                                                             ordered to pay the costs of the appeal.
3.   If the answer to Question 1 is negative, do the provisions
     of Article 21 or those of Article 31 of Regulation
     No 1408/71 govern entitlement to benefits of (a member            Pleas in law and main arguments
     of the family) of a pensioner who is entitled under
     Article 28 of Regulation No 1408/71 to receive benefits
     from the institution of the place of residence, (in the           —     The Court of First Instance infringed Community law
     present cases from the French or the Spanish sickness                   because it declared the application admissible even
     assurance funds respectively), those benefits being charge-             though the applicant, not being in an actual or potential
     able to the institution competent in accordance with                    competitive position, cannot be regarded as individually
     Article 28(2)(a) of Regulation No 1408/71, that is to say               concerned by the contested decision and because the
     the Netherlands sickness assurance fund, in a situation                 applicant, inter alia in view of the commitment given by
     where the person concerned is staying in the territory of               RAG in the framework of the merger, had no interest in
     the competent State?                                                    bringing proceedings.
                                                                       —     The CFI misapplied Article 66(2) of the ECSC Treaty in
                                                                             that it incorrectly assumed that the Commission, when
                                                                             carrying out the analysis of competition under
                                                                             Article 66(2) ECSC, could not fail to examine whether,
(1) OJ 1996 L 323, p. 38.
                                                                             and if so to what extent, the financial and thus economic
                                                                             whether, and if so to what extent, the financial and thus
                                                                             economic power of the merged entity was strengthened
                                                                             by all the elements which might constitute State aid,
                                                                             in particular, however, benefits which may have been
                                                                             contained in the DEM 1 purchase price for SBW.


title: Case T-195/17: Action brought on 27 March 2017 — CeramTec v EUIPO — C5 Medical Werks (Shade of pink)

text:
               15.5.2017

               EN

               Official Journal of the European Union

               C 151/44

         Action brought on 27 March 2017 — CeramTec v EUIPO — C5 Medical Werks (Shade of pink)
   (Case T-195/17)
   (2017/C 151/57)
   Language in which the application was lodged: English

      Parties

      Applicant: CeramTec (Plochingen, Germany) (represented by: A. Renck and E. Nicolás Gómez, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: C5 Medical Werks (Grand Junction, Colorado, United States)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Figurative colour mark in pink — EU trade mark No 10 214 195

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 15 February 2017 in Case R 930/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO and the other party to the proceedings, should it intervene, to pay the costs.

      Plea in law

               —

               Infringement of Articles 59 and 83 of Regulation No 207/2009.


title: Case T-33/09: Action brought on 26 January 2009 — Portuguese Republic v Commission of the European Communities

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/30

         Action brought on 26 January 2009 — Portuguese Republic v Commission of the European Communities
   (Case T-33/09)
   (2009/C 82/53)
   Language of the case: Portuguese
   Parties

      Applicant: Portuguese Republic (represented by: L. Inez Fernandes and J. A. de Oliveira, Agents)

      Defendant: Commission of the European Communities
   Forms of order sought

               —

               as the main plea, annul Decision C(2008) 7419 of 25 November 2008, by which the Commission required the Portuguese Republic to make the penalty payment imposed on it by the judgment of the Court of Justice in Case C-70/06 with effect from 10 January 2008;

               —

               in the alternative, annul the decision referred to in so far as its effects extend beyond 29 January 2008;

               —

               order the Commission of the European Communities to pay all the costs or, if the amount of the penalty payment is merely reduced by the Court of Justice, order each party to bear its own costs.

         Pleas in law and main arguments
   The applicant seeks annulment of the decision at issue, pursuant to Article 230 EC, on the ground that the Commission has infringed the EC Treaty or the legal rules relating to its application.
   The Commission infringed the EC Treaty or the legal rules relating to its application by requiring the applicant to make the daily penalty payment imposed on it by the Court of Justice in Case C-70/06 in respect of the period between 10 January and 17 July 2008, when the applicant had already fully complied with its obligation to transpose Directive 89/665/EEC (1).
   When the Court of Justice delivered its judgment in Case C-70/06 on 10 January 2008, ordering the applicant to make a penalty payment for every day of delay in implementing the measures necessary to comply with its judgment in Case C-275/03 Commission v Portugal [2004] ECR I-0000 — requiring the repeal of Decree-Law No 48051 of 21 November 1967 which makes the award of damages to persons injured by a breach of Community law relating to public contracts, or the national laws implementing it, conditional on proof of fault or fraud — the Portuguese Republic had already approved Law No 67/2007. That law repeals the decree-law referred to and approves the new system for the non-contractual liability of the State and other public bodies, and had been published by the Portuguese Republic on 31 December 2007 in the Diário da República (The Portuguese Official Journal), First Series, No 251. That law entered into force 30 days after its publication, that is to say on 30 January 2008.
   On 4 January 2008, the applicant notified that fact to the Court of Justice and requested that a copy of Law No 67/2007 be added to the file in Case C-70/06. However, due to the advanced stage of the proceedings, the Court of Justice could no longer take the fact in question into account, and delivered its judgment on 10 January 2008.
   Accordingly, the applicant submits that the penalty payment claimed may only relate to the period until 9 January 2008 or, in the worst case until 29 January 2008, as the date on which Law No 67/2007 entered into force does not coincide with the date of its publication. The Commission's claim is therefore completely unfounded in so far as it relates to subsequent periods.

      (1)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).


title: Case C-212/15: Request for a preliminary ruling from the Tribunalul Mureș (Romania) lodged on 8 May 2015 — ENEFI Energiahatekonysagi Nyrt v Direcția Generală Regională a Finanțelor Publice (DGRFP) Brașov — Administrația Județeană a Finanțelor Publice Mureș

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/4

         Request for a preliminary ruling from the Tribunalul Mureș (Romania) lodged on 8 May 2015 — ENEFI Energiahatekonysagi Nyrt v Direcția Generală Regională a Finanțelor Publice (DGRFP) Brașov — Administrația Județeană a Finanțelor Publice Mureș
   (Case C-212/15)
   (2015/C 262/05)
   Language of the case: Romanian

      Referring court

   Tribunalul Mureș

      Parties to the main proceedings

      Appellant: ENEFI Energiahatekonysagi Nyrt

      Respondent: Direcția Generală Regională a Finanțelor Publice (DGRFP) Brașov

      Questions referred

               1)

               For the interpretation of Article 4(1) and Article 4(2)(f) and (k) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (1), may the effects of the insolvency proceedings governed by the law of the State in which proceedings are opened include forfeiture of the right of a creditor, which has not taken part in the insolvency proceedings, to pursue its claim in another Member State or suspension of the enforcement of that claim in that other Member State?

               2)

               Is it relevant that the claim pursued by means of enforcement in a Member State other than the State in which the proceedings are opened is a fiscal claim?

      (1)  OJ 2000 L 160, p. 1.


title: Case T-28/12: Action brought on 21 January 2012 — PT Ecogreen Oleochemicals and Others v Council

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/29

         Action brought on 21 January 2012 — PT Ecogreen Oleochemicals and Others v Council
   (Case T-28/12)
   2012/C 73/57
   Language of the case: English

      Parties

      Applicants: PT Ecogreen Oleochemicals (Kabil-Batam, Indonesia), Ecogreen Oleochemicals (Singapore) Pte Ltd (Singapore, Republic of Singapore), Ecogreen Oleochemicals GmbH (Dessau-Rosslau, Germany) (represented by: F. Graafsma and J. Cornelis, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul the Council implementing Regulation (EU) No 1138/2011 of 8 November 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ L 293, 11.11.2011, p. 1), in so far as it applies to the applicants;

               —

               Order the Council of the European Union to pay the applicants’ costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging

                           —

                           infringement of Article 2(10)(i) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1) (hereafter referred to as ‘the basic Regulation’); in that the Council manifestly erred in its assessment, by rejecting the applicants’ claim, that PTEO and EOS constitute a single economic entity. As a result, the Council has deducted an impermissible notional commission pursuant to Article 2(10)(i) of the basic Regulation when determining the export price, since it is well-established jurisprudence that the existence of a single economic entity precludes such a deduction of a notional commission;

               2.

               As an alternative, second plea in law, alleging

                           —

                           that the inclusion of a notional profit margin of 5 % when making an adjustment pursuant to Article 2(10)(i) of the basic Regulation constitutes an impermissible interpretation of Article 2(10)(i) of the basic Regulation. Only the actual mark-up received by the trader can be deducted from the export price. This second, alternative plea, is only raised in the case the Court would find that the Council did not make a manifest error of assessment when rejecting the applicants’ claim that PTEO and EOS constitute a single economic entity.

      (1)  OJ L 343, 22.12.2009, p. 51


title: Case C-463/03: Reference for a preliminary ruling by the Bundesvergabeamt (Wien) by order of that Court of 27 October 2003 in the case of Kostmann GesmbH against Österreichische Bundesbahnen

text:
24.1.2004              EN                        Official Journal of the European Union                                        C 21/13
3.   Inasmuch as in the (railway) transport sector it is                 Reference for a preliminary ruling by the Landgericht
     exclusively the operation of networks that is governed by           Baden-Baden by order of that Court of 20 October 2003
     Directive 93/38/EEC (affirmation of Question 1): Does a             in the appeal brought by Albert Reiss Beteiligungsge-
     review authority have to refrain from applying a national                sellschaft mbH against Land Baden-Württemberg
     provision in which, contrary to the wording of Directive
     93/38/EEC, also the ‘provision of networks providing a                                      (Case C-466/03)
     service to the public in the field of transport by railway’
     is listed as a sectoral activity?                                                            (2004/C 21/23)
(1) OJ L 199, p. 84.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Landgericht Baden-
                                                                         Baden (Regional Court, Baden-Baden) of 20 October 2003,
                                                                         received at the Court Registry on 6 November 2003, for a
                                                                         preliminary ruling in the appeal brought by Albert Reiss
                                                                         Beteiligungsgesellschaft mbH against Land Baden-Württem-
Reference for a preliminary ruling by the Bundesverga-                   berg on the following question:
beamt (Wien) by order of that Court of 27 October 2003
in the case of Kostmann GesmbH against Österreichische                   Does Article 10(c) of Council Directive 69/335/EEC of 17 July
                          Bundesbahnen                                   1969 (1) concerning indirect taxes on the raising of capital, as
                                                                         amended by Council Directive 85/303/EEC of 10 June 1985 (2),
                         (Case C-463/03)                                 also encompass charges for the notarially attested transfer of
                                                                         shares in a private limited company?
                          (2004/C 21/22)
                                                                         (1) OJ L 249, p. 25.
                                                                         (2) OJ L 156, p. 23.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Wien) (Federal Procurement Office, Vienna) of 27 October
2003, received at the Court Registry on 4 November 2003,
for a preliminary ruling in the case of Kostmann GesmbH                  Reference for a preliminary ruling by the Finanzgericht
against Österreichische Bundesbahnen on the following ques-              München by order of that Court of 24 June 2003 in
tions:                                                                   the case of Ikegami Electronics (Europe) GmbH against
                                                                                Oberfinanzdirektion Nürnberg
1.   Is Article 2(2)(c) of Directive 93/38/EEC (1) to be inter-
     preted as meaning that, contrary to the other factual
     situations covered by Article 2(2) of the Directive, in the                                 (Case C-467/03)
     area of transport ‘merely’ the operation of networks is to
     be considered a sectoral activity?                                                           (2004/C 21/24)
2.   Which activities fall within the scope of ‘the operation of
     networks providing a service to the public in the field of          Reference has been made to the Court of Justice of the
     transport by railway’ under Article 2(2)(c) of Directive            European Communities by order of the Finanzgericht Mün-
     93/38/EEC? To what extent are, in particular, measures              chen (Finance Court, Munich) of 24 June 2003, received at the
     in the field of infrastructure to be subsumed under this            Court Registry on 6 November 2003, for a preliminary ruling
     heading? To what extent are such measures in the field of           in the case of Ikegami Electronics (Europe) GmbH against
     infrastructure to be classified under the heading ‘provision        Oberfinanzdirektion Nürnberg on the following question:
     of networks’?
                                                                         Is note 5 E of the Combined Nomenclature in the version of
3.   Inasmuch as in the (railway) transport sector it is
                                                                         Annex 1 to Regulation (EC) No 2031/2001 (1) of [6 August]
     exclusively the operation of networks that is governed by
                                                                         2001, amending Annex I to Council Regulation (EEC)
     Directive 93/38/EEC (affirmation of Question 1): Does a
                                                                         No 2658/87 on the tariff and statistical nomenclature and on
     review authority have to refrain from applying a national
                                                                         the Common Customs Tariff (OJ 2001 L 279) to be interpreted
     provision in which, contrary to the wording of Directive
                                                                         as meaning that video monitoring apparatus which stores
     93/38/EEC, also the ‘provision of networks providing a
                                                                         signals from several video cameras compressed on hard disks
     service to the public in the field of transport by railway’
                                                                         for reproduction on monitors performs a different function
     is listed as a sectoral activity?
                                                                         from that of data processing?
(1) OJ L 199, p. 84.                                                     (1) OJ L 279, p. 1.


title: Case C-463/08: Order of the President of the Court of 10 March 2009 — Commission of the European Communities v Kingdom of Spain

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/35

         Order of the President of the Court of 10 March 2009 — Commission of the European Communities v Kingdom of Spain
   (Case C-463/08) (1)

   2009/C 141/71

      Language of the case: Spanish

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 327, 20.10.2008.


title: Case C-293/02: Reference for a preliminary ruling by the Royal Court of Jersey, Samedi Division, by order of that court dated 5 August 2002, in the case of Jersey Produce Marketing Organisation Ltd against 1) The States of Jersey and 2) Jersey Potato Export Marketing Board, Interveners: 1) Top Produce Limited and 2) Fairview Farm Ltd

text:
12.10.2002              EN                    Official Journal of the European Communities                                         C 247/5
4.    Are the provisions of Article 28 and 30 EC on the free             Pleas in law and main arguments
      movement of goods, applicable to Norway on the basis
      of Articles 8 to 16 of the European Economic Area
      Agreement (EEA Agreement), to be interpreted, with                 According to the Commission, current Greek legislation is not
      reference to the provisions contained in Council Decision          consistent with Regulation (EEC) No 3577/92. The fact that
      2000/766/EC and Commission Decision 2001/9 cited in                the regulation is of direct application and its provisions prevail
      question (1) above, as meaning that a Member State may             over national law does not release Member States from the
      not impose a requirement of zero error in a situation              obligation to repeal national provisions incompatible with
      such as that described in questions (1) and (2) above?             Community law.
( 1) OJ L 306 of 7.12.2000, p. 32.                                       As regards the classification of the ports of the Peloponnese as
( 2) OJ L 2 of 5.1.2001, p. 32.                                          island ports, the Commission points out that the Peloponnese
( 3) OJ L 109 of 26.4.1983, p. 8.                                        is separated from the rest of Greece by a man-made canal and
                                                                         is linked by road and rail with the rest of the country. It
                                                                         therefore accords with common sense, and also with the case-
                                                                         law of the Court of Justice (see Joined Cases C-15/98 and
                                                                         C-105/99 Italy and Sardegna Lines v Commission [2000] ECR
                                                                         I-8855, paragraph 55), for the Peloponnese to be considered
                                                                         part of mainland Greece.
Action brought on 9 August 2002 by the Commission of
the European Communities against the Hellenic Republic
                                                                         Finally, as regards island cabotage, the Commission submits
                                                                         that, while host State rules apply for regulating manning-
                          (Case C-288/02)                                related issues, those rules must not, however, in any event be
                                                                         contrary to Article 49 of the EC Treaty.
                          (2002/C 247/09)
                                                                         (1 ) OJ L 364, 12.12.1992, p. 7.
An action against the Hellenic Republic was brought before
the Court of Justice of the European Communities on 9 August
2002 by the Commission of the European Communities,
represented by K. Simonsson and M. Patakia, Legal Advisers,
with an address for service in Luxembourg. The applicant
claims that the Court should declare that by:                            Reference for a preliminary ruling by the Royal Court of
                                                                         Jersey, Samedi Division, by order of that court dated
—     expressly conferring the right to carry passengers between         5 August 2002, in the case of Jersey Produce Marketing
      Greek mainland ports solely upon Greek passenger ships             Organisation Ltd against 1) The States of Jersey and
      and the right to carry out tours with passenger ships of a         2) Jersey Potato Export Marketing Board, Interveners:
      gross tonnage exceeding 650 gt by way of island cabotage                 1) Top Produce Limited and 2) Fairview Farm Ltd
      solely upon Greek passenger ships,
—     requiring in the case of Community ships entered in a                                        (Case C-293/02)
      second or international register a certificate from the
      competent authority of the flag State declaring that that                                    (2002/C 247/10)
      ship is allowed to provide cabotage services,
—     considering that the Peloponnese constitues an island,
      and                                                                Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Royal Court of
—     applying to Community tankers, freighters, passenger               Jersey, Samedi Division, dated 5 August 2002, which was
      ships and tourist ships, and to cruise ships which carry           received at the Court Registry on 13 August 2002, for a
      out sea tours by way of island cabotage its rules as host          preliminary ruling in the case of Jersey Produce Marketing
      State relating to manning conditions, and requiring the            Organisation Ltd against 1) The States of Jersey and 2) Jersey
      shipowners to submit an application to the competent               Potato Export Marketing Board, Interveners: 1) Top Produce
      authorities for measurement of the gross tonnage of the            Limited and 2) Fairview Farm Ltd, on the following questions:
      ship, in order for the Greek authorities to calculate the
      basic composition of the crew,                                     1.     Is a statutory Scheme such as that which regulates the
                                                                                export of potatoes from Jersey to the United Kingdom to
the Hellenic Republic has failed to fulfil its obligations under                be considered as a measure having an effect equivalent to
Articles 1, 3 and 6 of Council Regulation (EEC) No 3577/92                      quantitative restrictions on exports, contrary to Article 29
of 7 December 1992 (1) applying the principle of freedom to                     EC, by reason of the fact that potatoes sent directly from
provide services to maritime transport within Member States                     Jersey to the United Kingdom may travel via another
(maritime cabotage).                                                            Member State but without leaving the carrying vessel?
 ---pagebreak--- C 247/6                EN                     Official Journal of the European Communities                                     12.10.2002
2.    Is a statutory Scheme such as that regulating the export           Furthermore, the Italian Government argues that, even if the
      of potatoes from Jersey to the United Kingdom to be                regulation were to be considered ‘substantive’, the fact that the
      considered incompatible with Articles 23, 25 and 28-29             Italian Government is not responsible for the withdrawal of
      EC in so far as it may affect trade between that island and        the amount of alcohol as a result of a judicial decision should
      the United Kingdom (together with Guernsey and the Isle            lead to the decision itself being considered a ‘case of force
      of Man) or may entail the imposition of charges arising            majeure’ which justifies replacing the product which was
      in connection with such trade?                                     withdrawn. In that case, precisely because the body responsible
                                                                         for payment is not at fault, there has been no failure to fulfil
                                                                         the obligation to assign the alcohol to the abovementioned
                                                                         stock nor, a fortiori, has their been any damage to the
                                                                         Community, whose sole interest is that Community stocks be
                                                                         maintained.
                                                                         Olive oil production aid
Action brought on 21 August 2002 by the Italian Republic
  against the Commission of the European Communities
                                                                         The flat-rate financial correction of 2 % of the expenditure
                         (Case C-297/02)                                 declared by Italy in respect of October 1997 to October 1998
                                                                         amounting in all to EUR 22 678 386,83 was applied as a
                                                                         result of the finding that the Italian authorities’ checks and
                                                                         inspections were inadequate. The finding was based on the
                         (2002/C 247/11)
                                                                         following three factors:
                                                                         —     belated notification of data relating to mill production by
                                                                               the paying agency AIMA (Azienda di Stato per gli
An action against the Commission of the European Communi-                      interventi nel mercato agricolo) to the inspection body
ties was brought before the Court of Justice of the European                   AGECONTROL;
Communities on 21 August 2002 by the Italian Republic,
represented by Umberto Leanza, acting as Agent, assisted by
Maurizio Fiorilli, avvocato dello Stato.                                 —     lack of coordination of the various inspections and checks
                                                                               between the paying agency and the inspection body;
The applicant claims that the Court should:                              —     inadequate analysis and assessment of the available
                                                                               information on risk factors.
—     annul decision C(2002) 2263 (1) def. of 28 July 2002 in
      so far as it provides with regard to Italy: — B.4.1. -ITALY
      — Investigation No 1999 (666) on alcohol correction to             By way of answer to the Commission’s criticisms, the Italian
      budget post 1622 in respect of 1998 financial year of              Government would submit the following:
      EUR — 4 085 724,85; — B.8.1. Olive oil production aid
      — Italy financial correction of EUR — 22 678 386,33
      for the financial years 1997, 1998 and 1999
                                                                         (a)   Coordination between AIMA and AGECONTROL
Pleas in law and main arguments
                                                                         The Agency has always sought to ask AIMA timeously
                                                                         and with the necessary precision for all the appropriate
The Commission takes the view that the proper application of             computerised data in order to allow it to carry out the checks
Regulation (EEC) No 3597/90 (2) requires that wherever there             required by the work schedules for each financial year, issuing
is stock missing in Community stocks the budget post must                reminders for such information when it was late in providing
automatically be adjusted without inquiring into the reasons             it. Moreover, AIMA has for some years entered formal
for the shortfall, the Member State being held objectively liable.       memoranda of understanding with the Agency with the aim
According to the Italian Government, such an interpretation              of ensuring a regular and orderly exchange of computerised
must be rejected because it does not conform with legal                  information with AGECONTROL. The claim that there was no
reasoning, or with the letter and spirit of the provision.               coordination is therefore unfounded.


title: Case C-681/16: Request for a preliminary ruling from the Landgericht Düsseldorf (Germany) lodged on 27 December 2016 — Pfizer Ireland Pharmaceuticals, Operations Support Group v Orifarm GmbH

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/30

         Request for a preliminary ruling from the Landgericht Düsseldorf (Germany) lodged on 27 December 2016 — Pfizer Ireland Pharmaceuticals, Operations Support Group v Orifarm GmbH
   (Case C-681/16)
   (2017/C 104/44)
   Language of the case: German

      Referring court

   Landgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Pfizer Ireland Pharmaceuticals, Operations Support Group

      Defendant: Orifarm GmbH

      Questions referred

               1.

               Can the holder of a supplementary protection certificate that was issued to it for the Federal Republic of Germany rely on the specific mechanism to prevent the importation of products into the Federal Republic of Germany from the accession States the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia, Slovakia, Bulgaria, Romania … and Croatia (Annex IV to the 2003 Act of Accession, OJ 2003 L 236, p. 797, as amended in OJ 2004 L 126, p. 4, for Estonia, Latvia, Lithuania, Poland, Slovenia, Hungary, Slovakia, the Czech Republic; Part I of Annex V to the 2005 Act of Accession, OJ 2005 L 157, p. 268, for Romania and Bulgaria; Annex IV to the 2011 Act of Accession, OJ 2012 L 112, p. 60, for Croatia) if the supplementary protection certificate was applied for in the Federal Republic of Germany at a point in time at which the laws for obtaining such a supplementary protection certificate already existed in the respective accession States but could not be applied for by, or issued to, the holder of the supplementary protection certificate issued for the Federal Republic of Germany because the basic patent required for the issuing of the supplementary protection certificate did not exist in the accession State?

               2.

               Does it make any difference to the answer to Question 1 if it was merely at the time of the filing of the application for the basic patent issued for the Federal Republic of Germany that such protection through a basic patent could not be obtained in the accession State but, by the time of publication of the application on which the basic patent issued for the Federal Republic of Germany was based, it could be so obtained?

               3.

               Can the holder of a supplementary protection certificate that was issued to it for the Federal Republic of Germany rely on the specific mechanism to prevent the importation of products into the Federal Republic of Germany from the accession States the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia, Slovakia, Bulgaria, Romania … and Croatia if those products are imported after the expiry of the term of the supplementary protection certificate stipulated in the original decision to grant the patent but before the expiry of the six-month extension of the term of the supplementary protection certificate that was granted to it on the basis of Regulation (EC) No 1901/2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768/92, Directive 2001/20/EC, Directive 2001/83/EC and Regulation (EC) No 726/2004 (1)?

               4.

               Does it make any difference to the answer to Question 3, in the case of Croatia, that, on account of the accession of Croatia in 2013, the specific mechanism did not come into force until after the entry into force of Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768/92, Directive 2001/20/EC, Directive 2001/83/EC and Regulation (EC) No 726/2004 on 26 January 2007 — unlike in the other Member States which acceded prior to 26 January 2007, namely the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia, Slovakia, Bulgaria [and] Romania …?

      (1)  Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768/92, Directive 2001/20/EC, Directive 2001/83/EC and Regulation (EC) No 726/2004; OJ 2006 L 378, p. 1.


title: Case C-530/15: Request for a preliminary ruling from the Conseil d’État (France) lodged on 8 October 2015 — Melitta France SAS and Others v Ministère de l’Écologie, du Développement durable et de l'Énergie

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/23

         Request for a preliminary ruling from the Conseil d’État (France) lodged on 8 October 2015 — Melitta France SAS and Others v Ministère de l’Écologie, du Développement durable et de l'Énergie
   (Case C-530/15)
   (2015/C 414/29)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Melitta France SAS, Cofresco Frischhalteprodukte GmbH & Co. KG, Délipapier, Gopack SAS, Industrie Cartarie Tronchetti SpA, Industrie Cartarie Tronchetti Ibérica, SL, Kimberly-Clark SAS, Lucart France, Paul Hartmann AG, SCA Hygiène Products, SCA Tissue France SAS, Group’Hygiène syndicat professionnel

      Defendant: Ministère de l’Écologie, du Développement durable et de l'Énergie

      Question referred

   The Court is asked to decide whether by including ‘roll cores’ (rolls, tubes, cylinders) around which flexible material, such as paper or plastic film, is wound and sold to consumers in the examples of packaging, Commission Directive 2013/2/EU of 7 February 2013 (1) has misconstrued the term ‘packaging’, as defined in Article 3 of Directive 94/62/EC of 20 December 1994, (2) and exceeded the scope of the authorisation granted to the European Commission in respect of its implementing powers.

      (1)  Commission Directive 2013/2/EU of 7 February 2013 amending Annex I to Directive 94/62/EC of the European Parliament and of the Council on packaging and packaging waste (OJ 2013 L 37, p. 10).

      (2)  European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste (OJ 1994 L 365, p. 10).


title: Case C-413/08 P: Appeal brought on 22 September 2008 by Lafarge SA against the judgment delivered by the Court of First Instance (Third Chamber) on 8 July 2008 in Case T-54/03 Lafarge SA v Commission of the European Communities

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/11

         Appeal brought on 22 September 2008 by Lafarge SA against the judgment delivered by the Court of First Instance (Third Chamber) on 8 July 2008 in Case T-54/03 Lafarge SA v Commission of the European Communities
   (Case C-413/08 P)
   (2008/C 327/19)
   Language of the case: French
   Parties

      Appellant: Lafarge SA (represented by: A. Winckler, F. Brunet, E. Paroche and H. Kanellopoulos, avocats)

      Other parties to the proceedings: Commission of the European Communities, Council of the European Union
   Form of order sought

               —

               Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2008 in Case T-54/03 Lafarge SA v Commission and, granting the form of order sought at first instance, consequently annul, on the basis of Article 229 of the EC Treaty, Article 61 of the Statute of the Court of Justice and Article 17 of Council Regulation No 17/62 (1), now Article 31 of Council Regulation No 1/2003 (2), Commission Decision No 2005/471/EC of 27 November 2002 (3), in so far as it imposed a fine on the appellant;

               —

               in the alternative, set aside in part the judgment of the Court of First Instance in Case T-54/03 Lafarge SA v Commission and, granting the form of order sought at first instance, consequently reduce the amount of the fine imposed by the Commission on the appellant in Decision No 2005/471/EC of 27 November 2002;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The appellant relies on six grounds in support of its appeal.
   By its first ground, the appellant company submits that the Court of First Instance distorted the sense of the facts presented for its assessment, in so far as it held that the Commission had been able validly to establish the very existence of the infringements by reference to a context in which information was, allegedly, unlawfully exchanged on a world-wide basis, which resulted in restricting competition and stabilising the plasterboard market.
   By its second ground, the appellant pleads infringement of the rules governing the burden of proof, the principle of presumption of innocence and its corollary, the in dubio pro reo principle, in that the Court of First Instance considered that the Commission had established that the appellant had participated in a single, complex, continuous infringement, without there even being any evidence capable of establishing the existence and duration of the infringement.
   By its third ground, the appellant contends that the Court of First Instance infringed the obligation to state adequate grounds and the principle of equal treatment, in so far as it confirmed the Commission's view that a number of items of evidence was sufficient for the purpose of establishing that the appellant had committed the infringement, whereas that same evidence had been regarded as insufficient for the purpose of establishing the same infringement on the part of a competing company.
   By its fourth ground, the appellant submits that the Court of First Instance infringed the principles of proportionality and equal treatment, in so far as it failed to review the starting amount of the fine imposed, which was set by the Commission without taking account of Lafarge's turnover or its market share by comparison with those of its competitors.
   By its fifth ground, the appellant contends that the Court of First Instance committed a number of errors of law and infringed its duty to state adequate grounds, in so far as it held that the Commission was justified in increasing the fine imposed on the appellant on the ground of repeated infringement, whereas there was no legal basis or any definitive finding in that regard capable of justifying such an increase. In so doing, the Court of First Instance also infringed the general principle that penalties must have a proper legal basis as well as the principles of legal certainty and the sound administration of justice.
   Lastly, by its sixth and final ground, the appellant submits that the Court of First Instance erred in law by finding that the Commission was justified in increasing the starting amount of the fine by way of a deterrent, whereas it should have taken account of the final amount of that fine in order to determine whether it was appropriate to increase the fine on such a basis.

      (1)  Council Regulation No 17 of 7 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ English Special Edition 1959-1962, p. 87.

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

      (3)  Commission Decision of 27 November 2002 in Case COMP/E-1/37.152 — Plasterboard (OJ 2005 L 166, p. 8).


title: Case T-257/07 R II: Order of the President of the Court of First Instance of 30 October 2008 — France v Commission (Application for interim measures — Health measures — Regulation (EC) No 999/2001 — Eradication of certain transmissible spongiform encephalopathies — Regulation (EC) No 746/2008 — Application for suspension of operation — Prima facie case — Urgency — Balancing of interests)

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/26

         Order of the President of the Court of First Instance of 30 October 2008 — France v Commission
   (Case T-257/07 R II)
   (Application for interim measures - Health measures - Regulation (EC) No 999/2001 - Eradication of certain transmissible spongiform encephalopathies - Regulation (EC) No 746/2008 - Application for suspension of operation - Prima facie case - Urgency - Balancing of interests)
   (2008/C 327/48)
   Language of the case: French
   Parties

      Applicant: French Republic (represented by: E. Belliard, R. Loosli-Surrans, A.-L. During and G. de Bergues, acting as Agents)

      Defendant: Commission of the European Communities (represented by: M. Nolin and A. Bordes, acting as Agents)

      Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by: C. Gibbs and I. Rao, later by I. Rao, acting as Agents, assisted by T. Ward, barrister)
   Re:
   Application for suspension of the operation of Commission Regulation (EC) No 746/2008 of 17 June 2008 amending Annexe VII to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (OJ 2008 L 202, p. 11), in so far as it introduces, into Chapter A of Annex VII point 2.3(b)(iii), point 2.3(d) and point 4
   Operative part of the order

               1.

               The Annex to Commission Regulation (EC) No 746/2008 of 17 June 2008 amending Annexe VII to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies is suspended until judgment has been given in the main action in so far as it introduces, into Chapter A of Annex VII to Regulation (EC) No 999/2001 of 22 May 2001 point 2.3(b)(iii), point 2.3(d) and point 4;

               2.

               Costs are reserved.


title: Case T-135/08: Judgment of the General Court of 13 September 2010 — Schniga v CPVO — Elaris and Brookfield New Zealand (Gala Schnitzer) (Plant varieties — Application for a Community plant variety right for the Gala Schnitzer apple variety — Technical examination — Discretion of the CPVO — Objections — Article 55(4) of Regulation (EC) No 2100/94)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/26

         Judgment of the General Court of 13 September 2010 — Schniga v CPVO — Elaris and Brookfield New Zealand (Gala Schnitzer)
   (Case T-135/08) (1)

   (Plant varieties - Application for a Community plant variety right for the Gala Schnitzer apple variety - Technical examination - Discretion of the CPVO - Objections - Article 55(4) of Regulation (EC) No 2100/94)
   2010/C 301/42
   Language of the case: English

      Parties

      Applicant: Schniga GmbH (Bolzano, Italy) (represented by: G. Würtenberger and R. Kunze, lawyers)

      Defendant: Community Plant Variety Office (CPVO) (represented by: B. Kiewiet and M. Ekvad, Agents)

      Other parties to the proceedings before the Board of Appeal of the CPVO, interveners before the General Court: Elaris SNC (Angers, France), and Brookfield New Zealand Ltd (Havelock North, New Zealand) (represented by: M. Eller, lawyer)

      Re:

   ACTION against the decision of the Board of Appeal of the CPVO of 21 November 2007 (Cases A 003/2007 and A 004/2007), concerning the grant of a Community plant variety right for the Gala Schnitzer plant variety.

      Operative part of the judgment

   The Court

               1.

               Annuls the decision of the Board of Appeal of the Community Plant Variety Office (CPVO) of 21 November 2007 (Cases A 003/2007 and A 004/2007);

               2.

               Orders the CPVO to bear its own costs and to pay those incurred by Schniga GmbH;

               3.

               Orders Elaris SNC and Brookfield New Zealand Ltd to bear their own costs.

      (1)  OJ C 142, 7.6.2008.


title: Case C-420/15: Judgment of the Court (Fifth Chamber) of 31 May 2017 (request for a preliminary ruling from the Tribunal de première instance francophone de Bruxelles — Belgium) — Criminal proceedings against U (Reference for a preliminary ruling — Article 45 TFEU — Freedom of movement for workers — Obligation to register a vehicle belonging to a person resident in Belgium and intended to be used in Italy)

text:
               31.7.2017

               EN

               Official Journal of the European Union

               C 249/3

         Judgment of the Court (Fifth Chamber) of 31 May 2017 (request for a preliminary ruling from the Tribunal de première instance francophone de Bruxelles — Belgium) — Criminal proceedings against U
   (Case C-420/15) (1)

   ((Reference for a preliminary ruling - Article 45 TFEU - Freedom of movement for workers - Obligation to register a vehicle belonging to a person resident in Belgium and intended to be used in Italy))
   (2017/C 249/04)
   Language of the case: French

      Referring court

   Tribunal de première instance francophone de Bruxelles

      Party in the main, criminal proceedings

   U

      Operative part of the judgment

   Article 45 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the case in the main proceedings, in accordance with which a worker residing there is required to register in that Member State a motor vehicle which he owns, but which is already registered in another Member State and is intended essentially for use in that latter State.

      (1)  OJ C 346, 19.10.2015.


title: Case T-54/02: Action brought on 28 February 2002 by Vereins- und Westbank AG against the Commission of the European Communities

text:
20.4.2002              EN                    Official Journal of the European Communities                                          C 97/17
In addition, the applicant claims that the Commission, when             The applicant claims that the Court should:
fixing the amount of the fine, failed to take account of the size
of the undertakings concerned, and that it imposed two
separate fines on the applicant in the ‘citric acid’ and ‘sodium        —     annul the contested decision C(2001) 3693 final of the
gluconate’ cases (1), although both products belong to the same               Commission of the European Communities of 11 Decem-
family of products and it would have been proper to deal with                 ber 2001 in Case COMP/E-1/37.919 (ex 37.391) — Bank
them together. The applicant submits that the fine imposed on                 charges for currency exchange within the Euro zone —
the applicant is highly excessive and that the Commission                     Germany, in so far as it imposes a fine on the applicant;
applied the 10 % maximum prescribed by Article 15(2) of
Regulation 17/62 in different ways in cases based on similar
                                                                        —     alternatively, cancel or, in the further alternative, reduce
facts, which severely prejudiced the applicant’s position. That
                                                                              the fine imposed on the applicant;
course of action violated the principle of proportionality, the
Commission’s guidelines, and its own practice. Moreover, that
method results in discrimination against small and medium-              —     order the Commission to pay the costs.
sized undertakings, and therefore violates the general principle
of equal treatment and the principle of the individual assess-
ment of fines.
                                                                        Pleas in law and main arguments
The applicant further claims that, when calculating the fine,
the Commission refused to take into account the fact that fines
had already been imposed in the USA and Canada in respect
of the same state of affairs, which amounts to an error of              The applicant is contesting the defendant’s decision C(2001)
assessment.                                                             3693 of 11 December 2001, adopted in a procedure under
                                                                        Article 81 of the EC Treaty concerning Case COMP/E-1/37.919
                                                                        (ex 37.391) — Bank charges for currency exchange within the
Finally, the applicant submits that its right to be heard in            Euro zone — Germany.
accordance with the law has been violated, since the Com-
mission did not give it access to the entire investigation file. In
addition, due to the protracted length of the procedure, the
lawful growth of the undertaking had a detrimental effect on            The contested decision of the defendant of 11 December 2001,
the applicant by increasing the potential range of the fine.            which was notified in Hamburg, Germany, on 19 December
Moreover, as a result of the slow conduct of the procedure, the         2001, is unlawful.
applicant was subject to the new, significantly harsher, practice
of the Commission in the imposition of fines.
                                                                        It constitutes an infringement of the EC Treaty and of the
(1) See Commission Decision C(2001) 2931 final of 2 October 2001        rules of law relating to its application (second paragraph of
    which is being contested by the applicant in Case T-312/01          Article 230 of the EC Treaty), and should therefore be annulled.
    Jungbunzlauer v Commission (not yet published).                     The defendant bases its decision on an incorrect view of the
                                                                        facts. The applicant participated only by chance in the
                                                                        decisive foreign exchange dealers’ meeting which took place
                                                                        on 15 October 1997. That meeting did not fulfil the criteria
                                                                        for an agreement in restraint of competition within the
                                                                        meaning of Article 81 of the EC Treaty.
Action brought on 28 February 2002 by Vereins- und
Westbank AG against the Commission of the European                      The defendant’s contrary findings were based on an insufficient
                           Communities                                  and prejudiced ascertainment of the facts, and on a grossly
                                                                        erroneous assessment of the evidence.
                          (Case T-54/02)
                          (2002/C 97/31)                                The administrative procedure did not correspond to the
                                                                        requirements of Community law, inasmuch as the applicant’s
                                                                        rights of defence, its right to a fair hearing and its right to
                  (Language of the case: German)                        inspect the file were consistently infringed.
An action against the Commission of the European Communi-               Moreover, the decision was reached in a manner which
ties was brought before the Court of First Instance of the              infringed essential procedural requirements within the mea-
European Communities on 28 February 2002 by Vereins- und                ning of the second paragraph of Article 230 of the EC Treaty;
Westbank AG, of Hamburg, represented by Josef Lothar                    in particular, the defendant failed to give a sufficient statement
Schulte, Michael Ewen and Alexandra Neus, lawyers.                      of reasons for the decision.
 ---pagebreak--- C 97/18                 EN                     Official Journal of the European Communities                                    20.4.2002
The defendant misused its powers within the meaning of the                In support of his claims, the applicant pleads:
second paragraph of Article 230 of the EC Treaty. In carrying
out its procedure, it was not seeking to put an end to                    —     infringement of Article 11(2) of Annex VIII to the Staff
infringements of the competition rules but to lower the charges                 Regulations;
for the conversion of foreign currencies.
                                                                          —     infringement of the general provisions for the implemen-
                                                                                tation of Article 11(2) of Annex VIII to the Staff Regula-
The amount of the fine was also such as to render it unlawful.                  tions;
The defendant did not correctly apply the relevant principles
for the calculation of fines.                                             —     infringement of the principles of equal treatment and
                                                                                non-discrimination.
Action brought on 25 February 2002 by Peter Finch                         Action brought on 1 March 2002 by Léopold Radauer
  against the Commission of the European Communities                                against the Council of the European Union
                           (Case T-55/02)                                                          (Case T-67/02)
                           (2002/C 97/32)                                                          (2002/C 97/33)
                    (Language of the case: French)                                           (Language of the case: French)
                                                                          An action against the Council of the European Union was
An action against the Commission of the European Communi-                 brought before the Court of First Instance of the European
ties was brought before the Court of First Instance of the                Communities on 1 March 2002 by Léopold Radauer, residing
European Communities on 25 February 2002 by Peter Finch,                  in Brussels, represented by Georges Vandersanden and Laure
residing in Luxembourg, represented by Jean-Noël Louis,                   Levi, avocats.
lawyer, with an address for service in Luxembourg.
                                                                          The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                          —     annul the defendant’s decision of 17 April 2001 fixing at
—     annul the Commission’s decision concerning the crediting                  3 years, 10 months and 10 days the number of years of
      of years of pensionable service under the Staff Regulations               pensionable service to be taken into account for the
      to be taken into account pursuant to Article 11(2) of                     applicant’s Community pension following the transfer of
      Annex VIII to the Staff Regulations in consequence of the                 his pension rights acquired in Austria prior to his entry
      transfer to the Community pension scheme of the                           into the service of the European Communities and, in so
      pension rights acquired by the applicant prior to his entry               far as necessary, annul the Council decision, dated
      into service;                                                             15 November 2001, to reject the applicant’s complaint
                                                                                of 17 July 2001;
—     order the defendant to pay the costs.
                                                                          —     order the defendant to fix again, on an amended legal
                                                                                basis and in a manner devoid of any illegality, the years
                                                                                of pensionable service to be taken into account for the
Pleas in law and main arguments                                                 applicant’s Community pension following the transfer of
                                                                                his pension rights acquired in Austria;
The applicant, an official of the defendant institution who,
prior to his entry into service, had worked in France, Belgium            —     order the defendant to pay all of the costs.
and the Netherlands and acquired pension rights under
various pension schemes in those countries, is contesting the
calculation contained in the contested decision, which relates            Pleas in law and main arguments
to the crediting of all of the transferred rights. More specifically,
the applicant is contesting the fact that the appointing                  The single plea in law raised is the same as that in Case
authority took the date of his establishment as the reference             T-204/01 Maria-Luise Lindorfer v Council of the European
date and not the date of his entry into service.                          Union (OJ C 317, 10.11.2001, p. 32).


title: Case T-4/08: Order of the Court of First Instance of 29 January 2009 — EMSA v Portugal

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/35

         Order of the Court of First Instance of 29 January 2009 — EMSA v Portugal
   (Case T-4/08) (1)

   (2009/C 82/61)

      Language of the case: Portuguese

   The President of the Fourth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 183, 19.7.2008.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 16 December 1997 in Case C-104/96 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Coöperatieve Rabobank 'Vecht en Plassengebied' BA v. Erik Aarnoud Minderhoud (receiver in bankruptcy of Mediasafe BV) (Company law - First Directive 68/151/EEC - Scope - Representation of a company - Conflict of interests - Lack of authority of a director to enter into a binding transaction on behalf of the company)

text:
7.2.98                 EN                 Official Journal of the European Communities                                       C 41/7
to the Treaty on European Union Ð the Court (Sixth                   1968 on coordination of safeguards which, for the
Chamber) composed of: R. Schintgen, President of the                 protection of the interests of members and others, are
Second Chamber, acting as President of the Sixth                     required by Member States of companies within the
Chamber, G. F. Mancini (Rapporteur), P. J. G. Kapteyn,               meaning of the second paragraph of Article 58 of the
J. L. Murray and G. Hirsch, Judges; G. Cosmas,                       Treaty, with a view to making such safeguards equivalent
Advocate-General; L. Hewlett, Administrator, gave a                  throughout the Community (OJ, English Special Edition
judgment on 11 December 1997, the operative part of                  1968 (I), p. 41) Ð the Court (Sixth Chamber), composed
which is as follows:                                                 of: H. Ragnemalm (Rapporteur), President of the
                                                                     Chamber, G. F. Mancini and P. J. G. Kapteyn, Judges; A.
                                                                     La Pergola, Advocate-General; L. Hewlett, Administrator,
1. Periods of service completed by part-time workers                 for the Registrar, has given a judgment on 16 December
     who have suffered indirect discrimination based on sex          1997, in which it has ruled:
     must be taken into account as from 8 April 1976, the
     date of the judgment in Case C-43/75 Defrenne, for
     the purposes of calculating the additional benefits to          The rules governing the enforceability as against third
     which they are entitled.                                        parties of acts done by members of company organs in
                                                                     circumstances where there is a conflict of interests with
                                                                     the company fall outside the normative framework of the
2. Community law precludes the application, to a claim               First Council Directive 68/151/EEC of 9 March 1968 on
     based on Article 119 of the EC Treaty for recognition           coordination of safeguards which, for the protection of the
     of the claimants' entitlement to join an occupational           interests of members and others, are required by Member
     pension scheme, of a national rule under which such             States of companies within the meaning of the second
     entitlement, in the event of a successful claim, is             paragraph of Article 58 of the Treaty, with a view to
     limited to a period which starts to run from a point in         making such safeguards equivalent throughout the
     time two years prior to commencement of proceedings             Community, and are matters for the national legislature.
     in connection with the claim.
                                                                     (1) OJ C 145, 18.5.1996.
(1) OJ C 269, 14.9.1996.
                                                                                JUDGMENT OF THE COURT
                JUDGMENT OF THE COURT
                                                                                of 18 December 1997
                        (Sixth Chamber)
                                                                     in Case C-129/96 (reference for a preliminary ruling from
                     of 16 December 1997                             the Belgian Conseil d'EÂtat): Inter-Environnement Wallonie
in Case C-104/96 (reference for a preliminary ruling from                             ASBL v. ReÂgion Wallonne (1)
the Hoge Raad der Nederlanden): Coöperatieve Rabobank                (Directive 91/156/EEC Ð Period for transposition Ð
Vecht en Plassengebied' BA v. Erik Aarnoud Minderhoud                               Effects Ð Definition of waste)
         (receiver in bankruptcy of Mediasafe BV) (1)
                                                                                (98/C 41/12)
(Company law Ð First Directive 68/151/EEC Ð Scope Ð
Representation of a company Ð Conflict of interests Ð
Lack of authority of a director to enter into a binding                             (Language of the case: French)
            transaction on behalf of the company)
                          (98/C 41/11)
                                                                       (Provisional translation; the definitive translation will be
                                                                              published in the European Court Reports)
                 (Language of the case: Dutch)
                                                                     In Case C-129/96: reference to the Court under Article 177
  (Provisional translation; the definitive translation will be       of the EC Treaty by the Belgian Conseil d'EÂtat for a
          published in the European Court Reports)                   preliminary ruling in the proceedings pending before that
                                                                     court between Inter-Environnement Wallonie ASBL and
                                                                     ReÂgion Wallonne Ð on the interpretation of Articles 5
In Case C-104/96: reference to the Court under Article 177           and 189 of the EEC Treaty and Article 1(a) of Council
of the EC Treaty from the Hoge Raad der Nederlanden                  Directive 75/442/EEC of 15 July 1975 on waste (OJ L 194,
(Supreme Court of the Netherlands) for a preliminary                 25.7.1975, p. 39), as amended by Council Directive 91/
ruling in the proceedings pending before that court                  156/EEC of 18 March 1991 (OJ L 78, 26.3.1991, p. 32)
between Coöperatieve Rabobank Vecht en Plassengebied'               Ð the Court composed of: G. C. Rodríguez Iglesias,
BA and Erik Aarnoud Minderhoud (receiver in bankruptcy               President, C. Gulmann, H. Ragnemalm and R. Schintgen,
of Mediasafe BV) Ð on the interpretation of Article 9(1)             Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
of the First Council Directive 68/151/EEC of 9 March                 Almeida, P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward,


title: Action brought on 21 August 1996 by Gaetano Aquilino against the Council of the European Union (Case T-130/96)

text:
No C 318/18            EN                 Official Journal of the European Communities                                     26 . 10 . 96
The contested decision is based solely on the assertion that         Communities on 21 August 1996 by Gaetano Aquilino,
the period from 25 November 1994 ( date of receipt of                residing at Havre ( Belgium ), represented by Nicolas Lhoest,
notification ) and 31 December 1994 was insufficient for a           of the Brussels Bar, with an address for service in
substantive examination of the aid granted and that after            Luxemburg at the offices of Fiduciaire Myson, 1 rue
31 December 1994 the Commission 'no longer had the                   Glesener .
authority' to determine the compatibility of an aid project
with Article 5 of the Code .
                                                                     The applicant claims that the Court should:
The applicant considers that the contested decision should
be annulled on the following grounds :                               — annul the Commission 's note of 25 October 1995
— the Commission 's contention that it had insufficient
                                                                         communicating the decision to recover 91 working days
                                                                         from the applicant's salary for unjustified absences
    time to determine the compatibility of the aid in question           between 9 March 1994 and 15 February 1995 ,
    with the common market is incorrect, and is grossly
    discriminatory against the applicant company by
    comparison with other steel undertakings ( EKO-Stahl ).          — order the Council to reimburse the applicant in full in
    It is clear from the actual wording of Article 5 of the              respect of sums deducted from his salary in
    Code that that provision is concerned solely with the                implementation of the Council's decision of 25 October
    substantive aspects of the question whether aid is in                1995 , together with the interest due from the respective
    conformity with the Code . It makes no mention                       dates of deduction,
    whatsoever of time limits within which the Commission
    must take decisions . Rather it provides that the general        — order the Council to pay the costs of the proceedings in
    exemption for regional aid in East Germany must cease                their entirety.
    at the end of 1994 . The Code nowhere prohibits the
    Commission from making a finding after 31 December
    1994 as to the substantive compatibility of aid exempted         Pleas in law and main arguments adduced in support
    pursuant to Article 5 ,
— the Commission's argument that it could not                        The applicant, an official in grade D 1 , contests the
    retrospectively determine the compatibility of the aid in        appointing authority's decision to deem unauthorized
    question with the common market is invalid,                      certain absences which, in his view, were covered by a
                                                                     medical certificate issued in the prescribed manner, and to
— the Commission abused its discretionary powers by                  recover from his salary the amount corresponding to the
    failing to take into consideration the legal interests of the    period of allegedly unjustified absences .
    applicant company or its legitimate expectations with
    regard to the substantive compatibility of the aid with          The applicant points out that, in the course of his duties, he
    the Code,                                                        was obliged over the years to carry and manhandle a large
                                                                     number of packages, to walk long distances and often to
— the decision infringes Articles 5 and 15 of the ECSC               remain in a standing position . Those forms of activity are
    Treaty . Contrary to the judgments of the Court of               not advisable for people who, like the applicant, suffer from
   Justice in the Boussac and Tubermeuse cases, the                  back problems. That is why on several occasions both the
    Commission has treated a mere alleged non-observance             doctors who treated him and the administration 's medical
    of a time-limit as a ground for demanding repayment of           officer called on the Council to find the applicant a job for
    aid which was substantively compatible with the                  which he was physically suited . No action was taken on
    common market in steel . There is no adequate statement          those suggestions .
    of reasons to explain why the Commission could not still
    determine the compatibility of the aid with Article 5 of
    the Code after 31 December 1994 , if all the necessary           The applicant points out above all that his absences were
    conditions were satisfied before that date .                     always circumstantiated by medical certificates. However,
                                                                     as from March 1994 the Council began to describe them as
                                                                     unjustified , although no medical examination cast doubt on
                                                                     the validity of those certificates, the institution itself did not
                                                                     think it necessary to have the applicant undergo a fresh
                                                                     medical examination and the Invalidity Committee was
                                                                     never convened .
Action brought on 21 August 1996 by Gaetano Aquilino
         against the Council of the European Union
                        ( Case T-130/96 )
                                                                     The applicant argues that the Council infringed Articles 59
                                                                     and 60 of the Staff Regulations, and acted in breach of the
                          ( 96/C 318/34 )                            principle that acts must be accompanied by a statement of
                                                                     reasons and contrary to its duty to have regard for the
                (Language of the case: French)                       welfare of officials .
An action against the Council of the European Union was
brought before the Court of First Instance of the European


title: Case T-409/16: Action brought on 31 July 2016 — Makhlouf v Council

text:
               10.10.2016

               EN

               Official Journal of the European Union

               C 371/12

         Action brought on 31 July 2016 — Makhlouf v Council
   (Case T-409/16)
   (2016/C 371/14)
   Language of the case: French

      Parties

      Applicant: Ehab Makhlouf (Damascus, Syria) (represented by: E. Ruchat, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the applicant’s action admissible and well founded;

               —

               consequently, annul Decision (CFSP) 2016/850 of 27 May 2016 and the subsequent measures implementing it, in so far as they relate to the applicant;

               —

               order the Council of the European Union to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on five pleas in law which are essentially identical or similar to those relied on in Case T-410/16, Makhlouf v Council.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 9 June 1998 in Case T-176/97: Alan Hick v Economic and Social Committee of the European Communities (Officials - Promotion - Official made available to work in the department in which he was previously employed - Secondment in the interests of the service - Misuse of powers)

text:
25.7.98               EN                Official Journal of the European Communities                                 C 234/27
by Jean-NoeÈl Louis, Thierry Demaseure and Ariane                  1. Dismisses the application as unfounded;
Tornel, of the Brussels Bar, with an address for service in
Luxembourg at the offices of Fiduciaire Myson SaÁrl, 30            2. Orders the parties to bear their own costs.
Rue de Cessange, v European Parliament (Agent: Yannis
Pantalis) Ð application for annulment of the decision of           (1) OJ C 252 of 16.8.1997.
the European Parliament not to promote the applicant to
grade C 3 in the course of the 1996 promotion procedure
Ð the Court of First Instance (Fourth Chamber),
composed of: P. Lindh, President, and K. Lenaerts and
J. D. Cooke, Judges; J. Palacio GonzaÂlez, Administrator,
for the Registrar, has given a judgment on 11 June 1998,                ORDER OF THE COURT OF FIRST INSTANCE
in which it:
                                                                                of 14 May 1998
                                                                   in Case T-262/97: Anthony Goldstein v Commission of
1. Annuls the decision of the Parliament not to promote                            the European Communities (1)
     the applicant to grade C 3 in the course of the 1996                (Action for damages Ð Manifest inadmissibility)
     promotions procedure;
                                                                                (98/C 234/54)
                                                                                (Language of the case: English)
2. Orders the Parliament to pay the costs.
                                                                   In Case T-262/97, Anthony Goldstein, residing in London,
( ) OJ C 228 of 26.7.1997.
 1                                                                 represented by Raymond St John Murphy, Solicitor, 3
                                                                   Kings Bench Walk, Inner Temple, London, against
                                                                   Commission of the European Communities (Agent:
                                                                   Richard Lyal) Ð application, in substance, for
                                                                   compensation for the damage alleged to have been caused
                                                                   to the applicant by the Commission's failure to adopt the
                                                                   interim measures he had requested in the context of a
                                                                   complaint against certain anticompetitive practices lodged
   JUDGMENT OF THE COURT OF FIRST INSTANCE                         under Article 3(2) of Council Regulation No 17 of
                       of 9 June 1998                              6 February 1962, First Regulation implementing
                                                                   Articles 85 and 86 of the Treaty (OJ, English Special
in Case T-176/97: Alan Hick v Economic and Social                  Edition 1959Ð1962, p. 87) Ð the Court of First Instance
        Committee of the European Communities (1)                  (Third Chamber), composed of V. Tiili, President, C. P.
                                                                   BrieÈt and A. Potocki, Judges; H. Jung, Registrar, made an
(Officials Ð Promotion Ð Official made available to                order on 14 May 1998, the operative part of which is as
work in the department in which he was previously                  follows:
employed Ð Secondment in the interests of the service Ð
                      Misuse of powers)                            1. The application         is  dismissed    as   manifestly
                        (98/C 234/53)                                   inadmissible.
                                                                   2. The applicant shall pay the costs.
               (Language of the case: French)
                                                                   (1) OJ C 370 of 6.12.1997.
In Case T-176/97: Alan Hick, an official of the Economic
and Social Committee of the European Communities,
represented by Jean-NoeÈl Louis, Thierry Demaseure and
Ariane Tornel, of the Brussels Bar, with an address for                          ORDER OF THE PRESIDENT
service in Luxembourg at the offices of Fiduciaire Myson                    OF THE COURT OF FIRST INSTANCE
SaÁrl, 30 Rue de Cessange, v Economic and Social
Committee of the European Communities (Agents: MoiseÂs                                    of 26 May 1998
Bermejo Garde and Denis Waelbroeck) Ð application for              in Case T-60/98 R: Ecord Consortium for Russian
annulment of Decision No 439/96 A of the Economic and               Cooperation v Commission of the European Communities
Social Committee of 30 September 1996 promoting Mr J.
                                                                   (Interim measures Ð Application for interim measures Ð
to grade A 3 and appointing him Head of the Division for
                                                                             Commission decision rejecting a tender)
social, family, educational and cultural affairs within
Directorate B Ð Consultative work, and of the decision of                                  (98/C 234/55)
the same date rejecting the applicant's application for that
post Ð the Court of First Instance (Fifth Chamber),                               (Language of the case: French)
composed of: J. Azizi, President, and R. García-Valdecasas
and M. Jaeger, Judges; A. Mair, Administrator, for                 In Case T-60/98 R: Ecord Consortium for Russian
the Registrar, has given a judgment on 9 June 1998, in             Cooperation, comprising the following members: Danagro
which it:                                                          Adviser A/S, established at Glostrup (Denmark), Plunkett


title: Case T-221/17: Action brought on 15 April 2017 — Mémora Servicios Funerarios v EUIPO — Chatenoud (MEMORAME)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/47

         Action brought on 15 April 2017 — Mémora Servicios Funerarios v EUIPO — Chatenoud (MEMORAME)
   (Case T-221/17)
   (2017/C 239/59)
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Mémora Servicios Funerarios SLU (Zaragoza, Spain) (represented by: C. Marí Aguilar and J. Gallego Jiménez, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Georges Chatenoud (Thiviers, France)

      Details of the proceedings before EUIPO

      Applicant for the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: European Union word mark ‘MEMORAME’ – Application for registration No 12 929 071

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 10/02/2017 in Case R 1308/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of EUIPO of 10 February 2017 in Case R 1308/2016-4 which in part granted the application for EU trade mark No 12929071 ‘MEMORAME’ and, consequently, reject in its entirety EU trade mark application No 12929071 ‘MEMORAME’;

               —

               order EUIPO to pay the costs incurred by the applicant in accordance with Article 87(2) and (3) of the Rules [of Procedure of the General Court of 2 May 1991].

      Pleas in law

               —

               Infringement of Article 8(1)(b and (5) of Regulation No 207/2009.

               —

               The applicant submits that the Board of Appeal of EUIPO did not properly take into account the high degree of recognition enjoyed by the earlier mark ‘MEMORA’ in the European Union.


title: Joined Cases T-37/15 and T-38/15: Judgment of the General Court of 15 December 2016 — Abertis Telecom Terrestre and Telecom Castilla-La Mancha v Commission (State aid — Digital television — Aid for the deployment of digital terrestrial television in remote and less-urbanised areas of Castilla-La Mancha — Decision declaring the aid incompatible with the internal market — Concept of an undertaking — Economic activity — Advantage — Service of general economic interest — Distortion of competition — Article 107(3)(c) TFEU — New aid)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/28

         Judgment of the General Court of 15 December 2016 — Abertis Telecom Terrestre and Telecom Castilla-La Mancha v Commission
   (Joined Cases T-37/15 and T-38/15) (1)

   ((State aid - Digital television - Aid for the deployment of digital terrestrial television in remote and less-urbanised areas of Castilla-La Mancha - Decision declaring the aid incompatible with the internal market - Concept of an undertaking - Economic activity - Advantage - Service of general economic interest - Distortion of competition - Article 107(3)(c) TFEU - New aid))
   (2017/C 038/37)
   Language of the case: Spanish

      Parties

      Applicants: Abertis Telecom Terrestre, SA (Barcelona, Spain), Telecom Castilla-La Mancha, SA (Toledo, Spain) (represented by: initially, J. Buendía Sierra, A. Lamadrid de Pablo, A. Balcells Cartagena and M. Bolsa Ferruz, and subsequently J. Buendía Sierra, A. Lamadrid de Pablo and M. Bolsa Ferruz, lawyers)

      Defendant: European Commission (represented by: É. Gippini Fournier, P. Němečková and B. Stromsky, acting as Agents)

      Intervener in support of the defendant: SES Astra (Betzdorf, Luxembourg) (represented by: F. González Díaz, F. Salerno and V. Romero Algarra, lawyers)

      Re:

   Application based on Article 263 TFEU and seeking the annulment of Commission Decision C(2014) 6846 final of 1 October 2014 on State aid SA.27408 ((C 24/2010) (ex NN 37/2010, ex CP 19/2009)) implemented by the authorities of Castilla-La Mancha for the deployment of digital terrestrial television in remote and less urbanised areas of Castilla-La Mancha, as amended by Decision C(2015) 7193 final of 20 October 2015 correcting certain errors contained in Decision C(2014) 6846 final.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Abertis Telecom Terrestre, SA and Telecom Castilla-La Mancha, SA to bear their own costs and to pay those incurred by the European Commission and by SES Astra.

      (1)  OJ C 89, 16.3.2015.


title: Case T-210/14: Judgment of the General Court of 26 February 2016 — Mederer GmbH v OHIM — Cadbury Netherlands International Holdings (Gummi Bear-Rings) (Community trade mark — Opposition proceedings — International registration designating the European Community — Figurative mark Gummi Bear-Rings — Earlier national figurative mark GUMMY — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               4.4.2016

               EN

               Official Journal of the European Union

               C 118/23

         Judgment of the General Court of 26 February 2016 — Mederer GmbH v OHIM — Cadbury Netherlands International Holdings (Gummi Bear-Rings)
   (Case T-210/14) (1)

   ((Community trade mark - Opposition proceedings - International registration designating the European Community - Figurative mark Gummi Bear-Rings - Earlier national figurative mark GUMMY - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 118/24)
   Language of the case: English

      Parties

      Applicant: Mederer GmbH (Fürth, Germany) (represented by: C. Sachs and O. Ruhl, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: V. Melgar and H. Kunz, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Cadbury Netherlands International Holdings BV (Breda, Netherlands) (represented by: A. Padial Martinez, lawyer)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 16 December (Case R 225/2013-5), concerning opposition proceedings between Cadbury Netherlands International Holdings B V and Mederer GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mederer GmbH to pay the costs.

      (1)  OJ C 245, 28.7.2014.