title: Case T-366/15 P: Appeal brought on 9 July 2015 by Viara Todorova Androva against the judgment of the Civil Service Tribunal of 29 April 2015 in Case F-78/12, Todorova Androva v Council

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/16

         Appeal brought on 9 July 2015 by Viara Todorova Androva against the judgment of the Civil Service Tribunal of 29 April 2015 in Case F-78/12, Todorova Androva v Council
   (Case T-366/15 P)
   (2015/C 337/19)
   Language of the case: French

      Parties

      Appellant: Viara Todorova Androva (Rhode-Saint-Genèse, Belgium) (represented by M. Velardo, lawyer)

      Other party to the proceedings: Council of the European Union

      Form of order sought by the appellant

               —

               Set aside the judgment of 29 April 2015 in Case F-78/12 and the General Court itself rule in the action;

               —

               In the alternative, refer the case back to the Civil Service Tribunal;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on four pleas in law.

               1.

               First plea in law, alleging an error of law, since the Civil Service Tribunal (‘the CST’) took the view that Article 45 of the Staff Regulations of Officials of the European Union did not permit account to be taken, for the purposes of entry on the list of promotable officials, the seniority acquired as a member of the temporary staff.

               2.

               Second plea in law, alleging an error of law committed by the CST in that it held that the case was not covered by the case-law of the Court of Justice in the judgment of 8 September 2011 in Rosado Santana (C-177/10, ECR, EU:C:2011:557), but by that in the order of 7 March 2013 in Rivas Montes (C-178/12, EU:C:2013:150).

               3.

               Third plea in law, alleging an error of law, since the CST took the view that the plea alleging an infringement of the principle of equal treatment was inadmissible since it did not state the exact names of the candidates promoted in the place of the applicant.

               4.

               Fourth plea in law, alleging an error of law committed by the CST in that it held that the plea alleging infringement of the duty of care was inadmissible since there were discrepancies between the claim and the application.


title: Judgment of the Court (Fifth Chamber) of  15 December 2005  in Case C-252/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2002/22/EC — Electronic communications networks and services — Universal Service — Failure to transpose within the period prescribed)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/7

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 15 December 2005
   in Case C-252/04: Commission of the European Communities v Hellenic Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/22/EC - Electronic communications networks and services - Universal Service - Failure to transpose within the period prescribed)
   (2006/C 48/13)
   Language of the case: Greek
   In Case C-252/04 Commission of the European Communities (Agents: G. Zavvos and M. Shotter) v Hellenic Republic (Agent: N. Dafniou) — ACTION for a declaration of failure to fulfil obligations pursuant to Article 226 EC, brought on 14 June 2004 — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Silva de Lapuerta and P. Kūris (Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 15 December 2005, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), the Hellenic Republic has failed to fulfil its obligations under that directive.

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 201, 7.8.2004.


title: Case C-445/15: Reference for a preliminary ruling from High Court of Justice, Queen's Bench Division (Administrative Court) (United Kingdom) made on 17 August 2015 — The Queen on the application of Nutricia Limited v Secretary of State for Health

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/25

         Reference for a preliminary ruling from High Court of Justice, Queen's Bench Division (Administrative Court) (United Kingdom) made on 17 August 2015 — The Queen on the application of Nutricia Limited v Secretary of State for Health
   (Case C-445/15)
   (2015/C 354/27)
   Language of the case: English

      Referring court

   High Court of Justice, Queen's Bench Division (Administrative Court)

      Parties to the main proceedings

      Applicant: Nutricia Limited

      Defendant: Secretary of State for Health

      Questions referred

               1.

               In order for a product to be a dietary food for special medical purposes (‘FSMP’) within the definition set out in Article 1(2)(b) of Commission Directive 1999/21/EC on dietary foods for special medical purposes (1):

                           a.

                           Must it be the case, objectively, that:

                                       (i)

                                       all patients suffering from the particular disease, disorder or other medical condition for the dietary management of which the product is marketed (‘the Indicated Condition’) or

                                       (ii)

                                       a subgroup of such patients
                                       have a limited, impaired or disturbed capacity to take, digest, absorb, metabolise or excrete ordinary foodstuffs or certain nutrients contained therein or metabolites, or other medically-determined nutrient requirements that arise as a result of the Indicated Condition? Or

                           b.

                           Alternatively, is it also sufficient if the manufacturer intends that the product’s use should be ‘medically determined’ for the purpose of Article 1(2)(b) in the sense that: (i) the manufacturer intends the product to be used only under medical supervision by clinicians treating patients with the Indicated Condition, and (ii) a responsible supervising clinician could properly form a clinical judgment, on a patient-by-patient basis, that the use of such product would be an appropriate form of dietary management for some patients suffering from the Indicated Condition because the clinician reasonably considers such a patient to have particular nutritional requirements related to the Indicated Condition?

                           c.

                           If the answer to question 1(a)(ii) is ‘yes’, then (i) what proportion of patients with the Indicated Condition must have the relevant limited, impaired or disturbed capacity or other medically-determined nutrient requirements, or is there no minimum proportion, and (ii) is it necessary for that subgroup of patients to be identifiable in advance at the time when the product is marketed?

                           d.

                           If the answer to question 1(b) is ‘yes’, then what are the ‘particular nutritional requirements’ which the use of the product must be safe, beneficial and effective in meeting for the purposes of Article 3?

               2.

               As regards the phrase ‘whose dietary management cannot be achieved only by modification of the normal diet, by other foods for particular nutritional uses, or by a combination of the two’ in Article 1(2)(b), how should the potential for modification of the diet be assessed? In particular:

                           a.

                           Are considerations of safety and practicability of diet modification relevant in this assessment? If so, how are they to be taken into account?

                           b.

                           Is such potential for modification of the normal diet (and, if relevant, are considerations of safety and practicability) to be assessed:

                                       (i)

                                       Generically, and in advance, by reference to: (i) a typical person with a typical diet with the typical abilities of such a person to modify their diet; or (ii) a typical sufferer of the Indicated Condition, with the diet typical of such a sufferer, and the ability to modify diet typical of such a sufferer; or (iii) some other assumed set of patient characteristics?

                                       (ii)

                                       Individually and in the course of patient treatment, using the clinical judgment of the supervising clinician, such that it is enough if a manufacturer reasonably intends the product to be clinically useful because a supervising clinician may come to decide on reasonable patient-specific grounds (for instance, on patient-specific safety or practicability grounds) that the use of a FSMP may be clinically preferable to other forms of diet modification for some patients with the Indicated Condition? Or

                                       (iii)

                                       Otherwise, and if so how?

                           c.

                           Does ‘modification of the normal diet’ include the use of ‘food supplements’ within the meaning of Directive 2002/46/EC on the approximation of the laws of the Member States relating to food supplements, or of ‘fortified foods’ falling within Regulation (EC) No 1925/2006 on the addition of vitamins and minerals and of certain other substances to foods?

                           d.

                           Where a patient group suffering from a particular disease, disorder or other medical condition has difficulty remembering to eat a normal diet unless prompted, is a product designed to facilitate the consumption by such patients of nutrients which would form part of the normal diet capable of being a dietary food for medical purposes within Commission Directive 1999/21/EC on dietary foods for special medical purposes?

      (1)  OJ L 91, p. 29.


title: Case T-363/09: Action brought on 17 September 2009 — Longevity Health Products v OHIM — Gruppo Lepetit (RESVEROL)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/80

         Action brought on 17 September 2009 — Longevity Health Products v OHIM — Gruppo Lepetit (RESVEROL)
   (Case T-363/09)
   2009/C 267/143
   Language in which the application was lodged: English

      Parties

      Applicants: Longevity Health Products, Inc. (Nassau, The Bahamas) (represented by: J. Korab, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Gruppo Lepetit SpA (Lainate, Italy)

      Form of order sought

               —

               Admit the complaint filed by the applicant;

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 July 2009 in case R 1204/2008-2 and dismiss the request for a declaration of invalidity filed by the other party to the proceedings before the Board of Appeal with regard to Community trade mark 5 244 512; and

               —

               Order the defendant to bear the costs.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark “RESVEROL”, for goods and services in classes 3, 5 and 35

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

      Mark or sign cited: National trade mark registrations of the mark “LESTEROL” for goods in class 5

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation 207/2009 as the Board of Appeal wrongly held that there was a likelihood of confusion between the trade marks concerned.


title: Case C-110/07 P: Appeal brought on 27 February 2007 by Fédération nationale des syndicats d'exploitants agricoles (FNSEA), Fédération nationale bovine (FNB), Fédération nationale des producteurs de lait (FNPL) and Jeunes agriculteurs (JA) against the judgment delivered by the Court of First Instance (First Chamber) on 13 December 2006 in Joined Cases T-217/03 and T-245/03 FNCBV and Others v Commission

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/28

         Appeal brought on 27 February 2007 by Fédération nationale des syndicats d'exploitants agricoles (FNSEA), Fédération nationale bovine (FNB), Fédération nationale des producteurs de lait (FNPL) and Jeunes agriculteurs (JA) against the judgment delivered by the Court of First Instance (First Chamber) on 13 December 2006 in Joined Cases T-217/03 and T-245/03 FNCBV and Others v Commission
   (Case C-110/07 P)
   (2007/C 95/51)
   Language of the case: French
   Parties

      Appellants: Fédération nationale des syndicats d'exploitants agricoles (FNSEA), Fédération nationale bovine (FNB), Fédération nationale des producteurs de lait (FNPL), Jeunes agriculteurs (JA) (represented by: V. Ledoux and B. Néouze, avocats)

      Other parties to the proceedings: Fédération nationale de la coopération bétail et viande (FNCBV), Commission of the European Communities, French Republic
   Forms of Order sought

               —

               set aside the judgment of the Court of First Instance of 13 December 2006;

               —

               state that fines should not be imposed on the appellant federations;

               —

               in the alternative, reduce the amount of those fines;

               —

               order the European Commission to pay the costs relating to the interim proceedings and the main proceedings before the Court of First Instance, as well as the proceedings before the Court of Justice.

         Pleas in law and main arguments
   The appellants rely on four pleas in law in support of their appeal. Firstly, the appellants assert that the Court of First Instance misconstrued the evidence submitted for its consideration in that it omitted to take into account the two essential pieces of evidence demonstrating that the agreement of 24 October 2001 did not extend beyond 30 November 2001. Secondly, the appellants allege that the Court of First Instance misapplied Community law, as well as the consistent case-law of the Court, in holding that the Commission had not infringed the rights of the defence in failing to point out, in the statement of objections, that it was going to calculate the sum of the fines taking into account the cumulative turnover of the members of the appellant federations. Thirdly, they allege infringement of Article 15(2) of Council Regulation (EEC) No 17/62. In order to conclude that the fines imposed did not exceed the ceiling of 10 % of turnover, laid down in that article, the Court of First Instance took into account the cumulative turnover of the members of those federations, without the precise conditions and objectives laid down in the case-law being fulfilled. Finally, by their fourth plea in law, the appellants allege an infringement of the principle of non bis in idem, as well as a breach of the principle of proportionality, in that the Court of First Instance imposed, on each of the federations, a separate fine based on the cumulative turnover of members common to those federations. According to the appellants, in the present case only 1 federation can have a penalty imposed upon it, which takes into account the cumulative financial capacity of the common members of the appellant federations.


title: Case C-112/00: Reference for a preliminary ruling by the Beschlusses des Oberlandesgerichts Innsbruck by order of 1 February 2000 in the case of Eugen Schmidberger v Republic of Austria

text:
C 163/12                 EN                    Official Journal of the European Communities                                      10.6.2000
The Commission claims that the Court should:                                 notice has been given, may not be authorised, if it can also
                                                                             be held at a place away from the transit route with a
a) declare that, by not adopting and/or notifying to the                     comparable effect on public awareness, or by requiring it
      Commission the laws, regulations and administrative pro-               at least to be dispersed once this becomes possible?
      visions necessary to comply with Commission Directive
      97/65/EC (1) of 26 November 1997 adapting, for the third
      time, to technical progress Council Directive
      90/679/EEC (2) on the protection of workers from risks              2. Where, on account of the failure by a Member State to
      related to exposure to biological agents at work (seventh              indicate in its national provisions on freedom of assembly
      individual Directive within the meaning of Article 16(1) of            and the right to exercise it that, in the weighing of freedom
      Directive 89/391/EEC) (3), the Republic of Austria has                 of assembly against the public interest, the principles of
      failed to fulfil its obligations under Article 2(1) of that            Community law, primarily the fundamental freedoms and,
      directive;                                                             in this particular case, the provisions on the free movement
                                                                             of goods, are also to be observed, a political demonstration
b) order the Republic of Austria to pay the costs.                           of 28 hours’ duration is authorised and held which,
                                                                             in conjunction with a pre-existing national generally
                                                                             applicable ban on holiday driving, causes an essential intra-
Pleas in law and main arguments                                              Community goods transit route to be closed, inter alia, to
                                                                             the majority of heavy goods traffic for four days, with a
                                                                             short interruption of a few hours, does that failure
The pleas in law and main arguments correspond to those put                  constitute a sufficiently serious infringement of Com-
forward in Case C-105/00 (4); according to the Commission                    munity law in order to establish liability on the part of the
the time-limit for transposition expired on 30 June 1998                     Member State under the principles of Community law,
without Austria having adopted the necessary measures in full                provided that the other requirements for such liability are
for all sectors and at all State levels, in particular at Land level.        met?
( 1) OJ L 335, 6.12.1997, p. 17.
( 2) OJ L 374, 31.12.1990, p. 1.
( 3) OJ L 183, 29.6.1989, p. 1.                                           3. Where a national authority decides that there is nothing in
( 4) Commission v Portugal, notice not yet published in the Official         the provisions of Community law, in particular those
     Journal.                                                                concerning the free movement of goods and the general
                                                                             duty of cooperation and solidarity under Article 5 of the
                                                                             EC Treaty (now Article 10 EC), to preclude, and thus no
                                                                             ground on which to ban, a political demonstration of
                                                                             28 hours’ duration which, in conjunction with a pre-
                                                                             existing national generally applicable ban on holiday
                                                                             driving, causes an essential intra-Community goods transit
                                                                             route to be closed, inter alia, to the majority of heavy
                                                                             goods traffic for four days, with a short interruption of a
Reference for a preliminary ruling by the Beschlusses des                    few hours, does that decision constitute a sufficiently
Oberlandesgerichts Innsbruck by order of 1 February                          serious infringement of Community law in order to
2000 in the case of Eugen Schmidberger v Republic of                         establish liability on the part of the Member State liable
                               Austria                                       under the principles of Community law, provided that the
                                                                             other requirements for such liability are met?
                           (Case C-112/00)
                           (2000/C 163/20)
                                                                          4. Is the objective of an officially authorised political demon-
                                                                             stration, namely that of working for a healthy environment
Reference has been made to the Court of Justice of the                       and of drawing attention to the danger to public health
European Communities by order of 1 February 2000 by the                      caused by the constant increase in the transit traffic of
Oberlandesgericht (Higher Regional Court), Innsbruck, which                  heavy-goods vehicles to be deemed to be of a higher order
was received at the Court Registry on 24 March 2000, for a                   than the provisions of Community law on the free
preliminary ruling in the case of Eugen Schmidberger v                       movement of goods under Article 28 EC?
Republic of Austria on the following questions:
1. Are the principles of the free movement of goods under
      Article 30 et seq. of the EC Treaty (now Article 28 et              5. Is there already loss giving rise to a claim founded on State
      seq. EC), or other provisions of Community law, to be                  liability where the person incurring the loss can prove that
      interpreted as meaning that a Member State is obliged,                 he was in a position to earn income, in the present case
      either absolutely or at least as far as reasonably possible,           from the international transport of goods by means of the
      to keep major transit routes clear of all restrictions and             heavy-goods vehicles operated by him but rendered idle by
      impediments, inter alia, by requiring that a political                 the 28 hour demonstration, yet is unable to prove the loss
      demonstration to be held on a transit route, of which                  of a specific transport journey?
 ---pagebreak--- 10.6.2000              EN                    Official Journal of the European Communities                                            C 163/13
6. Should the reply to Question 4 be in the negative:                   Reference for a preliminary ruling from the Cour d’Appel
                                                                        de Paris (13th Chamber) in the case of Ministère Public v
    In order to comply with the obligation of cooperation and                                  Claude Laguillaumie
    solidarity incumbent under Article 5 of the EC Treaty (now
    Article 10 EC) on national authorities, in particular the                                    (Case C-116/00)
    courts, and with the principle of effectiveness, must
    application of national rules of substantive or procedural
    law curtailing the ability to assert claims which are well                                   (2000/C 163/22)
    founded under Community law, such as in the present
    case a claim founded on State liability, be deferred pending
                                                                        Reference has been made to the Court of Justice of the
    full elucidation of the substance of the claim at Community
                                                                        European Communities by request received at the Court
    law, if necessary following a reference to the Court of
                                                                        Registry on 27 March 2000 from the Cour d’Appel de Paris
    Justice for a preliminary ruling?
                                                                        (13th Chamber) for a preliminary ruling in the case of
                                                                        Ministère Public (Public Prosecutor) v Claude Laguillaumie.
                                                                        The Cour d’Appel de Paris (13th Chamber) asks the Court of
                                                                        Justice to rule on the compatibility of the decree of 1 April
                                                                        1992 and the ministerial decrees of 12 November 1992 and
                                                                        30 August 1996 authorising Eco Emballage SA and granting
                                                                        it exclusive rights in French territory to the reclamation of all
                                                                        products other than glass and medicines, with the principles
                                                                        laid down in Article 85 of the Treaty of Rome (now Article 81
Reference for a preliminary ruling by the Finanzgericht
                                                                        EC), Article 86 of the Treaty of Rome (now Article 82
Münster by order of 23 February 2000 in the case of
                                                                        EC), Directive 91/156/EEC (1) of 18 March 1991, Directive
Andreas Hoves Internationaler Transport-Service S.à.r.l.
                                                                        83/189/EEC (2) of 28 March 1983, Articles 30 and 36 of the
                      v Finanzamt Borken
                                                                        Treaty of Rome (now, after amendment, Articles 28 and 30
                                                                        EC) and Directive 94/62/EC (3) of 20 December 1994.
                         (Case C-115/00)
                                                                        (1) Council Directive 91/156/EEC of 18 March 1991 amending
                         (2000/C 163/21)                                    Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).
                                                                        (2) Council Directive 83/189/EEC of 28 March 1983 laying down a
                                                                            procedure for the provision of information in the field of technical
                                                                            standards and regulations (OJ 1983 L 109, p. 8).
Reference has been made to the Court of Justice of the
                                                                        (3) European Parliament and Council Directive 94/62/EC of
European Communities by order of 23 February 2000 by the                    20 December 1994 on packaging and packaging waste (OJ 1994
Finanzgericht Münster (Finance Court, Münster), which was                   L 365, p. 10).
received at the Court Registry on 27 March 2000, for a
preliminary ruling in the case of Andreas Hoves Internationaler
Transport-Service S.à.r.l. v Finanzamt Borken on the following
questions:
1. Does Article 6 of Council Regulation (EEC) No 3118/93
    of 25 October 1993 (OJ 1993 L 279, p. 1) preclude
    national rules which result in motor vehicle tax being
    charged for the use of commercial goods vehicles which
    are registered in another Member State of the European
    Union, for which a cabotage authorisation has been issued
                                                                        Action brought on 27 March 2000 by the Commission of
    in that Member State, which carry out cabotage operations
                                                                                the European Communities against Ireland
    in the Federal Republic of Germany and which have their
    regular base there?
                                                                                (Case C-117/00)
2. Does Article 5 of Council Directive 93/89/EEC of
    25 October 1993 (OJ 1993 L 279, p. 32), in cases like that                                   (2000/C 163/23)
    mentioned in Question 1, preclude national rules such as
    the second half of the second sentence of Paragraph 1(1)(2)
    of the Kraftfahrzeugsteuergesetz (KraftStG, Law on Motor            An action against Ireland was brought before the Court of
    Vehicle Tax) in conjunction with Paragraph 1(1)(3) of the           Justice of the European Communities on 27 March 2000 by
    KraftStG?                                                           the Commission of the European Communities, represented
                                                                        by Mr Richard Wainwright, Principal Legal Adviser, acting as
                                                                        agent, with an address for service at the office of Mr Carlos
                                                                        Gómez de la Cruz, a member of the Legal Service of the
                                                                        Commission, Wagner Centre, Kirchberg, Luxembourg.


title: Case T-80/08: Judgment of the Court of First Instance of 28 October 2009 — CureVac v OHIM — Qiagen (RNAiFect) (Community trade mark — Opposition proceedings — Application for the Community word mark RNAiFect — Earlier Community word mark RNActive — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/20

         Judgment of the Court of First Instance of 28 October 2009 — CureVac v OHIM — Qiagen (RNAiFect)
   (Case T-80/08) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark RNAiFect - Earlier Community word mark RNActive - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2009/C 297/28
   Language of the case: German

      Parties

      Applicant: CureVac GmbH (Tübingen, Germany) (represented by: F. Graf von Stosch, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Kicia and S. Schäffner, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Qiagen GmbH (Hilden, Germany) (represented by: initially E. Krings, and subsequently V. von Bomhard, A. Renck and T. Dolde, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 11 December 2007 (Case R 1219/2006-1) relating to opposition proceedings between CureVac GmbH and Qiagen GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders CureVac GmbH to pay the costs.

      (1)  OJ C 107, 26.4.2008.


title: Case C-156/03 P: Appeal brought on 4 April 2003 by the Commission of the European Communities against the judgment delivered on 28 January 2003 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-147/00 between Les Laboratoires Servier and the Commission of the European Communities

text:
21.6.2003                EN                        Official Journal of the European Union                                            C 146/29
The Applicant claims that the Court should:                                The Appellant claims that the Court should:
1.    declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with               —     annul the judgment issued by the Court of First Instance
      Council Directive 1999/36/EC of 29 April 1999 on                           of 28 January 2003 in case T-147/00, Servier;
      transportable pressure equipment ( 1) and Commission
      Directive 2001/2/EC of 4 January 2001 adapting the
      latter directive to technical progress ( 2), or in any event         —     order the defendants to pay the costs.
      by failing to notify those provisions to it, Ireland has
      failed to fulfil its obligations under the Directives;
2.    order Ireland to pay the costs of this action.
                                                                           Pleas in law and main arguments
Pleas in law and main arguments
                                                                           a)    Fundamental misinterpretation of the division of powers
Article 249 EC, under which a directive shall be binding, as to                  First, the appellant submits that it is clear from the
the result to be achieved, upon each Member State, carries by                    assessment in the contested judgment that the Court
implication an obligation on the Member States to observe the                    of First Instance has fundamentally misinterpreted the
period for compliance laid down in the directive. That period                    division of powers between the Community and the
expired on 1 December 2000 and 1 July 2001 respectively                          Member States in relation to harmonisation as regards
without Ireland having enacted the provisions necessary to                       medicinal products for human use in general and to
comply with the directives referred to in the conclusions of                     Chapter III of Directive 75/319 ( 2) in particular.
the Commission.
                                                                                The Court of First Instance takes the view, referring to
                                                                                the judgment in T-74/00, Artegodan and others, that
( 1) OJ L 138, 1.6.1999, p. 20.                                                  Chapter III of Directive 75/319 provides both for ‘exclus-
( 2) OJ L 5, 10.1.2001, p. 4.                                                    ive competence of the Member States’ and for ‘exclusive
                                                                                competence of the Commission’ and that it is therefore
                                                                                necessary to determine whether there has been a ‘[transfer
                                                                                of] competence from the Member States concerned to
                                                                                the Community’.
                                                                                In taking this stance, the Court of First Instance fails
                                                                                to understand that the various provisions making up
Appeal brought on 4 April 2003 by the Commission of the                          Chapter III of Directive 75/319, including Articles 12 and
European Communities against the judgment delivered on                           15a, which are particularly at issue here, are all based on
28 January 2003 by the Second Chamber (Extended                                  a system of powers shared between the Member States
Composition) of the Court of First Instance of the                               and the Community. Chapter III thus gives Member States
European Communities in case T-147/00 between Les                                the right to initiate certain procedures for granting,
Laboratoires Servier and the Commission of the European                          varying or withdrawing marketing authorisations, and
                             Communities                                         lays on the Community, represented by the Commission,
                                                                                a duty to achieve harmonisation by way of decisions
                                                                                which the Member States are then required to implement.
                          (Case C-156/03 P)
                                                                           b)    Legal assessment based on a Commission decision which
                           (2003/C 146/49)                                       was not the subject of the dispute
                                                                                Still by way of a preliminary submission, the appellant
                                                                                would point out that the Commission decision
An appeal against the judgment delivered on 28 January 2003                      (C(2000)573) of 9 March 2000 (the ‘2000 decision’)
by the Second Chamber (Extended Composition) of the Court                        which was the subject of the appeal at first instance, is
of First Instance of the European Communities in case T-147/                     based on Article 15a(1) of Directive 75/319. However, it
00 (1) between Les Laboratoires Servier and the Commission                       must be noted that, rather than directly and specifically
of the European Communities, was brought before the Court                        interpreting this legal basis, the Court of First Instance
of Justice of the European Communities on 4 April 2003 by                        confines itself to examining Commission decision
the Commission of the European Communities, represented                          C(96)3608 final/1 of 9 December 1996 (the ‘1996
by R. Wainwright and H. Støvlbæk, acting as agents, with an                      decision’) and other provisions of Directive 75/319 in
address for service in Luxembourg.                                               order to interpret Article 15a by pure deduction.
 ---pagebreak--- C 146/30                EN                          Official Journal of the European Union                                        21.6.2003
       The Court of First Instance’s assessment in the contested            The applicant claims that the Court should:
       judgment relates exclusively to the Commission decision
       of 1996, although this decision is manifestly not the
       instrument contested at first instance.                              1.   annul, in the following calls for applications:
       It is clear that Article 12 of Directive 75/319, on which
       the 1996 decision is based, and which is examined by the                  —    call for applications for the position of Data-
       Court of First Instance, is not the legal basis for the 2000                   protection officer. Ref.: 03/EJ/07 (2003/C 34 A/01)
       decision.                                                                      OJ C 34 A of 13.2.2003;
       Moreover, Article 12 is essentially assessed by way of a
       comparison with Article 10(2) of Directive 75/319,
                                                                                —    call for applications for the position of Legal officer.
       although the latter does not form the legal basis for the
                                                                                Ref.: 03/EJ/11 (2003/C 34 A/05) OJ C 34 A of
       2000 decision either, or of the 1996 decision, examined
                                                                                13.2.2003;
       by the Court of First Instance.
       Thus, the Court of First Instance’s conclusion that the
       Commission was not competent to adopt the 2000                            —    call for applications for the position of Press officer.
       decision is based on an assessment relating to a decision                      Ref.: 03/EJ/13 (2003/C 34 A/07) OJ C 34 A of
       which was not contested at first instance and is founded                       13.2.2003;
       essentially on provisions, namely Articles 10 and 12 of
       Directive 75/319, which do not form the legal basis for
       the 2000 decision. In the appellant’s view, this assessment               —    call for applications for the position of Secretary to
       constitutes in itself a failure to define the status of                        the General Administration. Ref.: 03/EJ/14 (2003/
       Article 15a(1) of Directive 75/319 and thus a failure to                       C 34 A/08) OJ C 34 A of 13.2.2003;
       take account of it.
       In the appellant’s view, the two errors described above                   —    call for applications for the position of Librarian/
       are fundamental and linked to the extent that they vitiate                     Archivist. Ref.: 03/EJ/12 (2003/C 34 A/06) OJ C 34
       the entire legal assessment leading the Court of First                         A of 13.2.2003;
       Instance to deduce that the Commission was not com-
       petent to adopt the 2000 decision.
                                                                                —    call for applications for the position of Accounting
       Lastly, and solely in the alternative, the appellant main-                     officer. Ref.: 03/EJ/08 (2003/C 34 A/02) OJ C 34 A
       tains that the Court of First Instance’s reasoning to the                      of 13.2.2003;
       effect that Article 15a of Directive 75/319 does not cover
       marketing authorisations harmonised by way of the
       purely consultative procedure within the meaning of                       —    call for applications for the position of IT-informat-
       Articles 12 and 13 of the directive also constitutes a                         ics expert (webmaster) of the European judicial
       misinterpretation of that article.                                             network. Ref.: 03/EJ/09 (2003/C 34 A/03) OJ C 34 A
                                                                                of 13.2.2003,
( 1) OJ C 247, 26.8.2000, p. 29.
( 2) Second Council Directive 75/319/EEC of 20 May 1975 on the
     approximation of provisions laid down by Law, Regulation or                 the paragraph referring to the documents to be submitted
     Administrative Action relating to proprietary medicinal products            in English by applicants submitting their application in
     (OJ L 147, 9.6.1975, p. 13).                                                another language; and the paragraphs relating to the
                                                                                linguistic knowledge required of candidates, from each of
                                                                                the calls for applications set out below:
                                                                                —    in the call for applications for the position of Data-
                                                                                protection officer, as condition No 17: ‘Excellent
Action brought on 8 April 2003 by Kingdom of Spain                                    knowledge of English and French. Ability to work in
                          against Eurojust                                            other European Union languages would be an asset’.
                          (Case C-160/03)                                        —    in the call for applications for the position of Law
                                                                                officer, as condition No 19: ‘Excellent knowledge of
                          (2003/C 146/50)                                             English and French. Ability to work in other Euro-
                                                                                pean Union languages would be an asset’.
An action against Eurojust was brought before the Court of                       —    in the call for applications for the position of Press
Justice of the European Communities on 8 April 2003 by the                            officer, as condition No 12: ‘Ability to speak at least
Kingdom of Spain, represented by L. Fraguas Gadea, with an                            English and French. Knowledge of other official
address for service in Luxembourg.                                                    European Union languages would be an asset’.


title: Case T-535/13: Action brought on 7 October 2013 — Vakoma v OHIM — VACOM (VAKOMA)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/32

         Action brought on 7 October 2013 — Vakoma v OHIM — VACOM (VAKOMA)
   (Case T-535/13)
   2013/C 367/57
   Language in which the application was lodged: German

      Parties

      Applicant: Vakoma GmbH (Magdeburg, Germany) (represented by: P. Kazzer, lawyer)

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

      Other party to the proceedings before the Board of Appeal: VACOM Vakuum Komponenten & Messtechnik GmbH (Jena, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Reject opposition No B1 833 915 as unfounded by annulling the decision of the First Board of Appeal of OHIM of 1 August 2013 (Case R 0908/2012-1), which was notified to the applicant on 6 August 2013, and by annulling the decision of the Opposition Division of OHIM of 12 March 2012;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the figurative mark ‘VAKOMA’ for goods and services in Classes 7, 40 and 42 — Community trade mark application No 9 437 963

      Proprietor of the mark or sign cited in the opposition proceedings: VACOM Vakuum Komponenten & Messtechnik GmbH

      Mark or sign cited in opposition: the Community word mark ‘VACOM’ for goods in Classes 7, 9 and 42

      Decision of the Opposition Division: the opposition was upheld

      Decision of the Board of Appeal: the appeal was dismissed

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


title: Case T-243/06: Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (PROMAT)

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/18

         Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (PROMAT)
   (Case T-243/06)
   (2006/C 310/37)
   Language in which the application was lodged: German
   Parties

      Applicant: Promat GmbH (Ratingen, Germany) (represented by: J. Krenzel)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Puertas Proma, S.A.L.
   Form of order sought

               —

               amend the defendant's decision of 4 May 2006 (Ref. R 1059/2005-1) so as to allow the appeal in full;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant.

      Community trade mark concerned: the word mark ‘PROMAT’ for goods and services in Classes 1, 3, 6 to 12, 14, 16 to 17, 20 to 22, 25 and 37 (Application No 932 202).

      Proprietor of the mark or sign cited in the opposition proceedings: Puertas Proma, S.A.L

      Mark or sign cited in opposition: in particular, the figurative mark ‘PROMA’ for goods and services in Classes 6, 20 and 39 (Community trade mark No 239 384), the opposition being directed against the application in respect of Classes 6 and 20.

      Decision of the Opposition Division: Opposition partially upheld.

      Decision of the Board of Appeal: Appeal partially dismissed.

      Pleas in law: breach of Article 8(1)(a) and (b) of Regulation (EC) No 40/94 (1), on the ground that neither the opposing signs nor the opposing goods are similar. Therefore there is no likelihood of confusion between the opposing marks.

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


title: Case T-209/08: Action brought on 4 June 2008 — Stichting Administratiekantoor Portielje v Commission

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/30

         Action brought on 4 June 2008 — Stichting Administratiekantoor Portielje v Commission
   (Case T-209/08)
   (2008/C 197/52)
   Language of the case: Dutch
   Parties

      Applicant: Stichting Administratiekantoor Portielje (Rotterdam, Netherlands) (represented by: D. Van hove, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 EC (Case COMP/38.543 — International removal services), notified to the applicant on 25 March 2008, in so far as it is addressed to the applicant;

               —

               in the alternative, annul Article 2(e) of the Decision, in so far as it is addressed to the applicant, in accordance with the fourth and/or fifth plea in law, and reduce the fine imposed under Article 2 accordingly, in so far as it concerns the applicant;

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   By its first plea in law, the applicant submits that the Decision infringes Article 81 EC and Article 23(2) of Regulation No 1/2003 (1), as the Commission failed properly to establish that the applicant is an undertaking within the meaning of those provisions.
   By its second plea in law, the applicant submits that the decision infringes Article 81(1) EC and Article 23(2) of Regulation No 1/2003, as the Commission wrongly, in light of the facts, attributed Gosselin's conduct to the applicant.
   By its third plea in law, the applicant submits that the decision infringes Article 81 EC. In the first branch of this plea, the applicant charges the Commission with having failed properly to establish that the conduct of which Gosselin could be accused is to be regarded as a significant restriction of competition for the purposes of Article 81 EC. In the second branch, the applicant charges the Commission with having failed properly to establish that the agreement to which Gosselin was a party could have an appreciable effect on trade between the Member States.
   By its fourth plea in law, the applicant submits that the decision infringes Article 23 of Regulation No 1/2003, Article 15(2) of Regulation No 17/62 (2) and the Guidelines on the method of setting fines (3). Those provisions were contravened by the finding as to the gravity of the infringement, the finding as to the value of sales with regard to the calculation of the basic amount of the fine imposed on Gosselin and, finally, by the refusal to take account of mitigating circumstances with respect to Gosselin in the calculation of the fine.
   Finally, by its fifth plea in law, the applicant submits that there was a breach of the principle of equal treatment, in particular, in the determination of the gravity of the infringement and the value of sales, factors which were taken into account in the calculation of the fine.

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

      (2)  Council Regulation No 17 of 6 February 1962; First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p. 87).

      (3)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (Text with EEA relevance) (OJ 2006 C 210, p. 2).


title: Case T-166/04: Judgment of the Court of First Instance of 31 January 2007 — C v Commission (Officials — Enforcement of a judgment of the Court of First Instance — Action for annulment — No need to adjudicate — Action for damages — Breach of administrative duty — Loss of opportunity)

text:
               24.3.2007

               EN

               Official Journal of the European Union

               C 69/17

         Judgment of the Court of First Instance of 31 January 2007 — C v Commission
   (Case T-166/04) (1)

   (Officials - Enforcement of a judgment of the Court of First Instance - Action for annulment - No need to adjudicate - Action for damages - Breach of administrative duty - Loss of opportunity)
   (2007/C 69/40)
   Language of the case: French
   Parties

      Applicant: C (Brussels, Belgium) (represented by: J. Sambon, P.-P. Van Gehuchten and P. Reyniers, lawyers)

      Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and L. Lozano Palacios, Agents)
   Re:
   Firstly, application for annulment of the implied decision to reject the applicant's application for enforcement of the judgment delivered by the Court of First Instance on [confidential] (2) in Case [confidential] and, in so far as necessary, the decision to reject the applicant's complaint of 12 February 2004 and, secondly, application for compensation for material and non-material damage allegedly suffered.
   Operative part of the judgment
   The Court:

               1.

               Declares that there is no need to adjudicate on the claim for annulment.

               2.

               Orders the Commission to pay the applicant, Mr C, the sum of EUR 15 000.

               3.

               Orders the Commission to pay the costs.

      (1)  OJ C 179, 10.7.2004.

      (2)  Confidential information omitted.


title: Case C-60/03: Reference for a preliminary ruling by the Bundesarbeitsgericht by order of that Court of 6 November 2002 in the case of Wolff & Müller GmbH & Co.KG against José Filipe Pereira Félix

text:
10.5.2003              EN                        Official Journal of the European Union                                           C 112/9
4.     If Question 2 is answered in the negative:                        Action brought on 26 February 2003 by the Commission
                                                                         of the European Communities against the Italian Republic
       Does the content of the reference for a preliminary ruling,
       together with the supporting documents, afford the
       Court, in the light of its judgment in Case C-392/93
                                                                                (Case C-83/03)
       British Telecommunications [1996] ( 2), sufficient infor-
       mation to answer the question of whether the
       implementing provisions described fall within the scope
       for discretion afforded to the national legislator under                                    (2003/C 112/17)
       Council Directive 89/105/EEC of 21 December 1998
       relating to the transparency of measures regulating the
       prices of medicinal products for human use and their
       inclusion in the scope of national health insurance
       systems or does the Court leave it to the referring court
       to answer this question?                                          An action against the Italian Republic was brought before the
                                                                         Court of Justice of the European Communities on 26 February
                                                                         2003 by the Commission of the European Communities,
( 1) European Court Reports 2001 p. I-09285.                             represented by Antonio Aresu and Roberto Amorosi, acting as
( 2) European Court Reports 1996 p. I-01631.                             Agents.
                                                                         The applicant claims that the Court should:
                                                                         a)     find that the Italian Republic has failed to fulfil its
                                                                                obligations under Article 4(2) of Council Directive 85/
Reference for a preliminary ruling by the Bundesarbeits-                        337/EEC (1) of 27 June 1985 on the assessment of the
gericht by order of that Court of 6 November 2002 in the                        effects of certain public and private projects on the
case of Wolff & Müller GmbH & Co.KG against José Filipe                         environment in as much as it failed properly to determine
                           Pereira Félix                                        whether a project for the construction of a tourist port at
                                                                                Fassacesia (Chieti) — a project covered by Annex II to the
                                                                                directive — warranted the commencement of a procedure
                          (Case C-60/03)                                        to assess its impact on the environment, and
                         (2003/C 112/16)                                 b)     order the Italian Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesarbeitsgericht
(Federal Labour Court) of 6 November 2002, received at the               Pleas in law and main arguments
Court Registry on 14 February 2003, for a preliminary ruling
in the case of Wolff & Müller GmbH & Co.KG against José
Filipe Pereira Félix on the following question:
                                                                         The Italian authorities have given the Commission no expla-
                                                                         nation of the reasons for which they took the view that there
Does Article 49 EC (formerly Article 59 of the EC Treaty)                was no need for an environmental impact assessment, in
preclude a national system whereby, when subcontracting the              accordance with Article 4(2) of Directive 85/337/EEC, to be
conduct of building work to another undertaking, a building              carried out in relation to a project for the construction of a
contractor becomes liable, in the same way as a guarantor who            tourist port in Fassacesia (Chieti).
has waived benefit of execution, for the obligation on that
undertaking or that undertaking’s subcontractors to pay the
minimum wage to a worker or to pay contributions to a
communal scheme for parties to a collective agreement where              It is therefore unclear whether the characteristics of the project
the minimum wage means the sum payable to the worker                     were considered with reference to its possible impact on fauna
after tax, social security contributions, payments towards the           and flora and on the landscape. The fact that the area in
promotion of employment or other such social insurance                   question has not been proposed as a Site of Community
payments have been deducted (net pay), if the safeguarding of            Importance is all the more reason why the project’s impact on
workers’ pay is not the primary objective of the legislation or          fauna and flora and on the landscape should have been taken
is merely a subsidiary objective?                                        into consideration. Moreover, the fact that this point was
                                                                         considered only after building permission had already been
                                                                         granted is further indication that the procedure followed was
                                                                         incoherent, to say the least.


title: Judgment of the Court of First Instance of 13 March 2003 in Case T-125/01: José Martí Peix, SA v Commission of the European Communities (Fisheries — Community financial aid — Reduction of aid — Limitation — Reasonable period — Principle of proportionality)

text:
C 146/38                 EN                          Official Journal of the European Union                                        21.6.2003
                                                           COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                  2.     Dismisses the remainder of the application.
                          of 13 March 2003                                   3.     Each of the parties shall bear its own costs.
in Case T-340/00: Comunità Montana della Valnerina v                         (1 ) OJ C 4 of 6.1.2001.
        Commission of the European Communities ( 1)
(EAGGF — Withdrawal of financial assistance — Article 24
of Regulation (EEC) No 4253/88 — Principles of pro-
portionality and legal certainty — Statement of reasons —
                          Right to be heard)
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                           (2003/C 146/68)
                                                                                of 13 March 2003
                     (Language of the case: Italian)
                                                                             in Case T-125/01: José Martí Peix, SA v Commission of
                                                                                the European Communities (1)
In Case T-340/00: Comunità Montana della Valnerina, rep-
resented by E. Cappelli and P. De Caterini, lawyers, with an
address for service in Luxembourg, supported by Italian                      (Fisheries — Community financial aid — Reduction of
Republic (Agents: U. Leanza and G. Aiello), against Com-                     aid — Limitation — Reasonable period — Principle of
mission of the European Communities (Agents: C. Cattabriga                                               proportionality)
and M. Moretto) — application for the annulment of Com-
mission Decision C(2000) 2388 of 14 August 2000 with-                                                   (2003/C 146/69)
drawing the financial assistance granted to the Comunità
Montana della Valnerina by Commission Decision C(93) 3182
of 10 November 1993 concerning grant of a contribution                                           (Language of the case: Spanish)
from the EAGGF, Guidance Section, pursuant to Council
Regulation (EEC) No 4256/88 of 19 December 1988 laying
down provisions for implementing Regulation (EEC) No 2052/
88 as regards the EAGGF, Guidance Section (OJ 1988 L 374,                    In Case T-125/01: José Martí Peix, SA, established in Huelva
p. 25), in connection with Project No 93.IT.06.016 entitled                  (Spain), represented by J.-R. García-Gallardo Gil-Fournier and
‘Pilot demonstration project for forestry, agricultural and food             D. Domínguez Pérez, lawyers, against Commission of the
programmes in marginal hill areas (France, Italy)’ — the Court               European Communities (Agents: initially L. Visaggio and
of First Instance (Third Chamber), composed of K. Lenaerts,                  J. Guerra Fernández, and subsequently S. Pardo Quintillán and
President, J. Azizi and M. Jaeger, Judges; J. Palacio González,              J. Guerra Fernández) — application for annulment of the
Principal Administrator, for the Registrar, has given a judgment             Commission decision of 19 March 2001 reducing the aid
on 13 March 2003, in which it:                                               granted to José Martí Peix SA by Commission Decision
                                                                             C(91) 2874 final/11 of 16 December 1991, as amended by
1.    Annuls Commission Decision C(2000) 2388 of 14 August                   Commission Decision C(93) 1131 final/4 of 12 May 1993, for
      2000 withdrawing the financial assistance of the European              a project to create a joint enterprise in the fisheries sector —
      Agricultural Guidance and Guarantee Fund granted to the                the Court of First Instance (Third Chamber), composed of
      Comunità Montana della Valnerina by Commission Decision                K. Lenaerts, President, and J. Azizi and M. Jaeger, Judges;
      C(93) 3182 of 10 November 1993 concerning grant of a                   B. Pastor, Deputy Registrar, has given a judgment on 13 March
      contribution from the EAGGF, Guidance Section, pursuant to             2003, in which it:
      Council Regulation (EEC) No 4256/88 of 19 December 1988
      laying down provisions for implementing Regulation (EEC)               1.     Dismisses the application;
      No 2052/88 as regards the EAGGF, Guidance Section (OJ
      1988 L 374, p. 25), in connection with Project
                                                                             2.     Orders the applicant to pay the costs.
      No 93.IT.06.016 entitled ‘Pilot demonstration project for
      forestry, agriculture and food production in marginal hill areas
      (France, Italy)’, in so far as the Commission did not limit its
                                                                             (1 ) OJ C 245 of 1.9.2001.
      demand for repayment of the contribution to the sums
      corresponding to the part of the project which, under the award
      decision, were to be carried out by the applicant itself.


title: Case C-432/14: Judgment of the Court (Seventh Chamber) of 1 October 2015 (request for a preliminary ruling from the Conseil de prud’hommes de Paris — France) — O v Bio Philippe Auguste SARL (Reference for a preliminary ruling — Social policy — Principles of equal treatment and non-discrimination on grounds of age — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(1) and 2(2)(a) — Difference in treatment on grounds of age — Whether situations comparable — Grant of a payment, on the expiry of a fixed-term employment contract, intended to compensate for insecurity — Exclusion of young people working during their school holidays or university vacations)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/10

         Judgment of the Court (Seventh Chamber) of 1 October 2015 (request for a preliminary ruling from the Conseil de prud’hommes de Paris — France) — O v Bio Philippe Auguste SARL
   (Case C-432/14) (1)

   ((Reference for a preliminary ruling - Social policy - Principles of equal treatment and non-discrimination on grounds of age - Directive 2000/78/EC - Equal treatment in employment and occupation - Article 2(1) and 2(2)(a) - Difference in treatment on grounds of age - Whether situations comparable - Grant of a payment, on the expiry of a fixed-term employment contract, intended to compensate for insecurity - Exclusion of young people working during their school holidays or university vacations))
   (2015/C 381/11)
   Language of the case: French

      Referring court

   Conseil de prud’hommes de Paris

      Parties to the main proceedings

      Applicant: O

      Defendant: Bio Philippe Auguste SARL

      Operative part of the judgment

   The principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which an end-of-contract payment, paid in addition to an employee’s salary on the expiry of a fixed-term employment contract where the contractual relationship is not continued in the form of a contract for an indefinite period, is not payable in the event that the contract is concluded with a young person for a period during his school holidays or university vacation.

      (1)  OJ C 431, 1.2.2014.


title: Case C-325/11: Reference for a preliminary ruling from the Sąd Rejonowy w Koszalinie (Republic of Poland), lodged on 28 June 2011 — Krystyna Alder and Ewald Alder v Sabina Orłowska and Czesław Orłowski

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/29

         Reference for a preliminary ruling from the Sąd Rejonowy w Koszalinie (Republic of Poland), lodged on 28 June 2011 — Krystyna Alder and Ewald Alder v Sabina Orłowska and Czesław Orłowski
   (Case C-325/11)
   2011/C 269/56
   Language of the case: Polish

      Referring court

   Sąd Rejonowy w Koszalinie

      Parties to the main proceedings

      Claimants: Krystyna Alder, Ewald Alder

      Defendants: Sabina Orłowska, Czesław Orłowski

      Question referred

   Are Article 1(1) of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (1) and Article 18 of the Treaty on the Functioning of the European Union to be interpreted as meaning that it is permissible to place in the case file, deeming them to have been effectively served, court documents which are addressed to a party whose place of residence or habitual abode is in another Member State, if that party has failed to appoint a representative who is authorised to accept service and is resident in the Member State in which the court proceedings are being conducted?

      (1)  Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).


title: Case F-104/09: Action brought on 21 December 2009 — Canga Fano v Council

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/51

         Action brought on 21 December 2009 — Canga Fano v Council
   (Case F-104/09)
   2010/C 37/81
   Language of the case: French

      Parties

      Applicant: Diego Canga Fano (Brussels, Belgium) (represented by: S. Rodriguez and C. Bernard-Glanz, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Application for annulment of the defendant’s decision not to include the applicant on the list of officials promoted to Grade AD 13 under the 2009 promotion procedure.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the appointing authority’s decision not to include the applicant on the list of officials promoted to grade AD 13 under the 2009 promotion procedure;

               —

               annul, so far as necessary, the appointing authority’s decision rejecting the applicant’s complaint;

               —

               order the appointing authority to pay the applicant a sum fixed on equitable principles at EUR 150 000, in respect of compensation for the non-material harm suffered, plus default interest at the legal rate from the date on which it became payable, and a sum fixed on equitable principles at EUR 50 00, in respect of compensation for the harm to his career, plus default interest at the legal rate from the date on which it became payable;

               —

               order the Council to pay the costs.


title: Case T-10/07: Action brought on 8 January 2007 — FVB v OHIM — FVD (FVB)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/35

         Action brought on 8 January 2007 — FVB v OHIM — FVD (FVB)
   (Case T-10/07)
   (2007/C 56/67)
   Language in which the application was lodged: German
   Parties

      Applicant: FVB Gesellschaft für Finanz- und Versorgungsberatung mbH (Osnabrück, Germany) (represented by: P. Koehler, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: FVD Gesellschaft für Finanzplanung und Vorsorgemanagement Deutschland mbH
   Form of order sought

               —

               Alter the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) in appeal case R 1343/2005-4 of 6 November 2006 so as to annul the decision of 12 September 2005 on opposition No B 549 362 of the Finanz- und Versorgungsdienstgesellschaft für Finanzberatung und Versorgemanagement mbH against application No 2 126 175 and to reject the opposition;

               —

               Order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘FVB’ for services in Classes 35 and 36 (Application No 2 126 175).

      Proprietor of the mark or sign cited in the opposition proceedings: FVD Gesellschaft für Finanzplanung und Vorsorgemanagement Deutschland mbH.

      Mark or sign cited in opposition: The German word mark ‘FVD’ for services in Class 36, the opposition being brought against the registration in Class 36.

      Decision of the Opposition Division: Opposition granted, partial rejection of the application.

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

      Pleas in law: The contested decision infringes Article 8(1)(b) of Regulation (EC) No 40/94 (1) since there is no likelihood of confusion between the opposing marks.

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


title: Case C-108/04: Reference for a preliminary ruling by the Sala de lo Social del Tribunal Superior de Justicia de Galicia by order of that Court of 19 January 2004 in the case of Divina Cortiñas Yáñez against Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/31

         Reference for a preliminary ruling by the Sala de lo Social del Tribunal Superior de Justicia de Galicia by order of that Court of 19 January 2004 in the case of Divina Cortiñas Yáñez against Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social
   (Case C-108/04)
   (2004/C 94/71)
   Reference has been made to the Court of Justice of the European Communities by order of the Sala de lo Social del Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia, Social Division) of 19 January 2004, received at the Court Registry on 1 March 2004, for a preliminary ruling in the case of Divina Cortiñas Yáñez against Instituto Nacional de la Seguridad Social and Tesorería General de la Seguridad Social on the following questions:

               1.

               Is it contrary to the provisions of Directive 79/7/EEC (1) of 19 December 1978, and in particular Article 4 thereof, for a provision of national law to require in order to join a special social security scheme for agricultural workers, in addition to fulfilling the general conditions, that where the worker is married the income derived from the activities covered by that scheme should be that couple's main source of income, in that it is the most substantial?

               2.

               Is it contrary to the provisions of Directive 79/7/EEC of 19 December of 1978, and in particular Article 4 thereof, for a provision of national law to require that for the spouse of an agricultural worker to join another social security scheme the worker must prove that the income derived from the activity covered by the Agricultural Workers' Special Social Security Scheme is greater than that of his or her spouse, so that, if it is not so proven, there is a presumption that that income is less?

      (1)  OJ L 6 of 10.01.1979, p. 24.


title: Case T-233/01: Action brought on 26 September 2001 by Daniel Callebaut against the Commission of the European Communities

text:
C 331/32               EN                    Official Journal of the European Communities                                     24.11.2001
Action brought on 25 September 2001 by Territorio                       Action brought on 26 September 2001 by Daniel Calle-
Histórico de Guipúzcoa — Excma. Diputación de Guipúz-               baut against the Commission of the European Communi-
coa, and the Comunidad autónoma del Paı́s Vasco —                                                      ties
Gobierno Vasco against Commission of the European
                          Communities
                                                                                (Case T-233/01)
                         (Case T-232/01)
                                                                                (2001/C 331/53)
                         (2001/C 331/52)
                                                                                (Language of the case: French)
                  (Language of the case: Spanish)
                                                                        An action against the Commission of the European Communi-
An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
ties was brought before the Court of First Instance of the
                                                                        European Communities on 26 September 2001 by Daniel
European Communities on 25 September 2001 by the Territo-
                                                                        Callebaut, residing in Mondorf-les-Bains, Luxembourg, rep-
rio Histórico de Guipúzcoa — Excma. Diputación de Guipúz-
                                                                        resented by Jean-Noël Louis and Véronique Peere, avocats,
coa, and the Comunidad autónoma del Paı́s Vasco — Gobierno
                                                                        with an address for service in Luxembourg.
Vasco, Guipúzcoa (Spain), represented by Ramón Falcón,
lawyer.
                                                                        The applicant claims that the Court should:
The applicants claim that the Court should:
                                                                        —     annul the Commission decision not to promote the
—     annul in its entirety the decision of the Commission                    applicant to Grade B 2 in the 2000 promotions,
      which is contested in this action, in the alternative, annul
      Article 3 of that decision,
                                                                        —     order the defendant to pay the costs.
—     order the Commission to pay the costs.
                                                                        Pleas in law and main arguments
Pleas in law and main arguments
The applicants contest Commission Decision of 11 July 2001              The applicant in the present case challenges the refusal of the
declaring incompatible with the common market the tax                   appointing authority to promote him in the promotions for
reductions arising from Article 26 of Norma Foral (Regional             2000.
Law) No 7/1996 of 4 July 1996, on corporation tax (Boletı́n
Oficial de Guipúzcoa of 17 July 1996), which provides for a
reduction of 99 %, 75 %, 50 % and 25 % of the basis for
assessment of the aforementioned tax applicable during the              In support of his claim, he invokes:
four first tax years for undertakings which set up business in
the Territorio Histórico de Guipúzcoa with effect from the
entry into force of the Law, provided that they have disbursed          —     Breach of Articles 26 and 45 of the Staff Regulations;
capital amounting to more than ESP 20 million
(EUR 120 202), invest more than ESP 80 million
(EUR 430 810) and create more than 10 new jobs.                         —     Infringement of the audi alteram partem principle and
                                                                              infringement of the principles of equal treatment,
                                                                              entitlement to pursue a career, and sound administration;
The pleas in law and main arguments put forward by the
applicants are identical with those put forward in Case                 —     Existence in this case of a manifest error of assessment.
T-227/01.


title: Case T-100/15: Action brought on 27 February 2015 — Dextro Energy v Commission

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/31

         Action brought on 27 February 2015 — Dextro Energy v Commission
   (Case T-100/15)
   (2015/C 155/37)
   Language of the case: German

      Parties

      Applicant: Dextro Energy GmbH & Co. KG (Krefeld, Germany) (represented by: Rechtsanwälte M. Hagenmeyer and T. Teufer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission Regulation (EU) 2015/8 of 6 January 2015 refusing to authorise certain health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health (OJ 2015 L 3, p. 6);

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law.
   First plea in law, alleging an infringement of Article 18(4) of Regulation No 1924/2006 (1)

   The applicant claims that there are no grounds to justify the refusal to authorise the five health claims which have nonetheless received five favourable scientific assessments from the European Food Safety Authority. Those five health claims neither infringe generally accepted nutrition and health principles, nor convey a conflicting and confusing message to consumers. They are also neither ambiguous nor misleading.
   Second plea in law, alleging a lack of proportionality
   The applicant claims that, in view of the favourable opinion of the European Food Safety Authority on the applicant’s five health claims, the absolute ban on advertising resulting from the rejection of those health claims was disproportionate.
   Third plea in law, alleging an infringement of the principle of equality
   The applicant submits that the defendant has refused to authorise scientifically uncontested health claims despite having authorised similar health claims in the past.
   Fourth plea in law, alleging a failure to provide sufficient grounds
   Finally, the applicant claims that the contested regulation does not provide sufficient grounds; it cannot be discerned whether the defendant took into account the arguments of the applicant and of the public, nor whether it even carried out an independent appraisal of those arguments.

      (1)  Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (OJ 2006 L 404, p. 9).


title: Order of the Court (Sixth Chamber) of 21 March 2002 in Case C-447/01 (reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien): DLD Trading Company Import-Export, spol. s.r.o. v Republic of Austria (Preliminary ruling — Inadmissibility)

text:
C 191/14                EN                       Official Journal of the European Communities                                        10.8.2002
1.    The action is dismissed.                                              The question referred for a preliminary ruling by the Landesgericht
                                                                            für Zivilrechtssachen Wien by decision of 5 November 2001 is
                                                                            inadmissible.
2.    The Federal Republic of Germany is ordered to pay the costs.
                                                                            (1) OJ C 84, 6.4.2002.
(1) OJ C 348 of 8.12.2001.
                                                                            Action brought on 22 March 2002 by the Commission of
                                                                            the European Communities against the Federal Republic
                                                                                of Germany
                    ORDER OF THE COURT
                                                                                (Case C-107/02)
                         (Sixth Chamber)
                                                                                (2002/C 191/25)
                         of 21 March 2002
                                                                            An action against the Federal Republic of Germany was
in Case C-447/01 (reference for a preliminary ruling
                                                                            brought before the Court of Justice of the European Communi-
from the Landesgericht für Zivilrechtssachen Wien): DLD
                                                                            ties on 22 March 2002 by the Commission of the European
Trading Company Import-Export, spol. s.r.o. v Republic
                                                                            Communities, represented by Götz zur Hausen, legal adviser
                            of Austria (1)
                                                                            to the Commission of the European Communities, with an
                                                                            address for service in Luxembourg at the office of Luis Escobar
                                                                            Guerrero, of the Commission’s Legal Service, Wagner Centre
             (Preliminary ruling — Inadmissibility)                         C 254, Kirchberg.
                          (2002/C 191/24)                                   The applicant claims that the Court should:
                   (Language of the case: German)                           1.    declare that, by failing to adopt, or in any event to
                                                                                forward to the Commission, the laws, regulations and
                                                                                administrative provisions necessary to comply with
                                                                                Council Directive 96/29/Euratom (1) of 13 May 1996
(Provisional translation; the definitive translation will be published            laying down basic safety standards for the protection of
                   in the European Court Reports)
                                                                                the health of workers and the general public against the
                                                                                dangers arising from ionising radiation, in respect of the
                                                                                clean-up of waste, the construction and clean-up of
                                                                                uranium-ore extraction sites and the operation of radio-
                                                                                logical installations, the Federal Republic of Germany has
In Case C-447/01: reference to the Court under Article 234                        failed to fulfil its obligations under that directive;
EC from the Landesgericht für Zivilrechtssachen Wien (Austria)
for a preliminary ruling in the proceedings pending before
                                                                            2.    order the Federal Republic of Germany to pay the costs.
that court between DLD Trading Company Import-Export,
spol. s.r.o. and Republic of Austria — first, as to whether
Austrian provisions infringe Community law in that they limit
travellers’ duty-free allowance to EUR 75 or EUR 100 when
coming from certain countries as well as certain quantitative               Pleas in law and main arguments
restrictions in regard to the relief from turnover tax and excise
duty on tobacco products and, secondly, as to the conditions
in which a Member State may be liable for damage suffered by                It follows from the binding nature of directives pursuant to
an individual as a result of infringements of Community law                 Article 161, third paragraph, EAEC and under Article 192,
— the Court (Sixth Chamber), composed of: F. Macken,                        first paragraph, EAEC that the Member States to whom the
President of the Chamber, N. Colneric, R. Schintgen (Rappor-                directive is addressed are required to transpose the provisions
teur), V. Skouris and J.N. Cunha Rodrigues, Judges; S. Alber,               of the directive into national law in such a way that, from the
Advocate General; R. Grass, Registrar, has made an order on                 expiry of the period prescribed for transposition of that
21 March 2002, in which it has ruled:                                       directive, those provisions take full practical effect.


title: Case C-540/08: Judgment of the Court (Grand Chamber) of 9 November 2010 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG v Österreich -Zeitungsverlag GmbH (Directive 2005/29/EC — Unfair commercial practices — National legislation laying down a prohibition in principle on commercial practices making the offer of bonuses to consumers subject to the purchase of goods or services)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/3

         Judgment of the Court (Grand Chamber) of 9 November 2010 (reference for a preliminary ruling from the Oberster Gerichtshof (Austria)) — Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG v ‘Österreich’ -Zeitungsverlag GmbH
   (Case C-540/08) (1)

   (Directive 2005/29/EC - Unfair commercial practices - National legislation laying down a prohibition in principle on commercial practices making the offer of bonuses to consumers subject to the purchase of goods or services)
   2011/C 13/04
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG

      Defendant:‘Österreich’ -Zeitungsverlag GmbH

      Re:

   Preliminary ruling — Oberster Gerichtshof (Austria) — Interpretation of Articles 3(1) and 5(2) and (5) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22) — National legislation prohibiting publishers of periodicals from announcing, offering or giving bonuses to consumers free of charge with periodicals and from offering such bonuses with goods sold or services supplied, without taking into account whether the commercial practice in question is misleading or aggressive — Legislation with the objective not only of protecting consumers but also of maintaining the diversity of the press and protecting weaker competitors — Concept of unfair commercial practice

      Operative part of the judgment

               1.

               Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘the Unfair Commercial Practices Directive’) must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which lays down a general prohibition on sales with bonuses and is not only designed to protect consumers but also pursues other objectives;

               2.

               The possibility of participating in a prize competition, linked to the purchase of a newspaper, does not constitute an unfair commercial practice within the meaning of Article 5(2) of Directive 2005/29, simply on the ground that, for at least some of the consumers concerned, that possibility of participating in a competition represents the factor which determines them to buy that newspaper.

      (1)  OJ C 69, 21.03.2009.