title: Case C-300/06: Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany)) — Ursula Voß v Land Berlin (Article 141 EC — Principle of equal pay for men and women — Civil servants — Overtime — Indirect discrimination against women employed part-time)

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/9

         Judgment of the Court (First Chamber) of 6 December 2007 (reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany)) — Ursula Voß v Land Berlin
   (Case C-300/06) (1)

   (Article 141 EC - Principle of equal pay for men and women - Civil servants - Overtime - Indirect discrimination against women employed part-time)
   (2008/C 22/16)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicant: Ursula Voß

      Defendant: Land Berlin
   Re:
   Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 141 of the EC Treaty — National legislation laying down, for both full-time and part-time workers, a reduction in the remuneration for overtime as against that received for normal working hours — Remuneration of a female part-time teacher, who is a civil servant, who works overtime (but not sufficient to bring the hours worked overall above the level of normal working hours for full-time civil servants), which is lower than that which would be received if the same number of hours were worked in the context of full-time employment — Indirect discrimination against female workers
   Operative part of the judgment
   Article 141 EC is to be interpreted as precluding national legislation on the remuneration of civil servants, such as that at issue in the main proceedings — which defines overtime, for both full-time civil servants and part-time civil servants, as hours worked over and above their normal working hours, and which remunerates those additional hours at a rate lower than the hourly rate applied to their normal working hours, so that part-time civil servants are less well paid than full-time civil servants in respect of hours which are worked over and above their normal working hours, but which are not sufficient to bring the number of hours worked overall above the level of normal working hours for full-time civil servants — where:

               —

               in the group of workers subject to that legislation, a considerably higher percentage of women is affected as compared with the percentage of men so affected;
               and

               —

               the difference in treatment is not justified by objective factors wholly unrelated to discrimination based on sex.

      (1)  OJ C 96, 22.4.2006.


title: Case T-476/09: Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER) (Community trade mark — Opposition proceedings — Application for Community figurative mark BRICO CENTER — Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/25

         Judgment of the General Court of 28 June 2011 — ATB Norte v OHIM — Bricocenter Italia (BRICO CENTER)
   (Case T-476/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark BRICO CENTER - Earlier Community figurative marks ATB CENTROS DE BRICOLAGE Brico Centro and CENTROS DE BRICOLAGE BricoCentro - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2011/C 232/43
   Language of the case: Italian

      Parties

      Applicant: ATB Norte, SL (Burgos, Spain) (represented initially by P. López Ronda, G. Macias Bonilla, H. Curtis-Oliver and G. Marín Raigal, and subsequently by F. Brandolini Kujman, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: O. Montalto and G. Mannucci, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bricocenter Italia Srl (Rozzano, Italy) (represented by: G. Ghidini, M. Mergati and C. Signorini, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 September 2009 (Case R 1006/2008-4) relating to opposition proceedings between ATB Norte, SL and Bricocenter Italia Srl.

      Operative part of the order

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 September 2009 (Case R 1006/2008-4) inasmuch as it upheld the appeal of Bricocenter Italia Srl before the Board of Appeal regarding the services of ‘advertising’, ‘business management’ and ‘business administration’ covered by the Community trade mark application;

               2.

               Dismisses the remainder of the action;

               3.

               Orders ATB Norte, SL, Bricocenter Italia and OHIM each to bear their own costs incurred during the proceedings before the General Court.

      (1)  OJ C 24, 30.1.2010.


title: Judgment of the Court of 7 June 2017 in Case E-18/16 — EFTA Surveillance Authority v Iceland (Failure by an EFTA State to fulfil its obligations — Failure to implement — Regulation (EU) No 98/2013 on the marketing and use of explosives precursors)

text:
               28.9.2017

               EN

               Official Journal of the European Union

               C 321/11

         JUDGMENT OF THE COURT
   of 7 June 2017
   in Case E-18/16
   EFTA Surveillance Authority v Iceland

      (Failure by an EFTA State to fulfil its obligations — Failure to implement — Regulation (EU) No 98/2013 on the marketing and use of explosives precursors)

   (2017/C 321/10)
   In Case E-18/16, EFTA Surveillance Authority v Iceland — APPLICATION for a declaration that Iceland has failed to adopt the measures necessary to make the Act referred to at point 12zzq of Chapter XV of Annex II to the Agreement on the European Economic Area (Regulation (EU) No 98/2013 of the European Parliament and of the Council of 15 January 2013 on the marketing and use of explosives precursors), as adapted to the Agreement by way of Protocol 1 thereto, part of its internal legal order as required by Article 7 of the Agreement, the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Benedikt Bogason (ad hoc), Judges, gave judgment on 7 June 2017, the operative part of which is as follows:
   The Court hereby:

               1.

               Declares that Iceland has failed to adopt the measures necessary to make the Act referred to at point 12zzq of Chapter XV of Annex II to the Agreement on the European Economic Area (Regulation (EU) No 98/2013 of the European Parliament and of the Council of 15 January 2013 on the marketing and use of explosives precursors), as adapted to the Agreement by way of Protocol 1 thereto, part of its internal legal order as required by Article 7 of the Agreement.

               2.

               Orders Iceland to bear the costs of the proceedings.


title: Case T-196/01: Action brought on 20 August 2001 by Aristotelio Panepistimio Thessalonikis against the Commission of the European Communities

text:
13.10.2001              EN                     Official Journal of the European Communities                                     C 289/35
—     order the Commission to pay the costs.                                    damage suffered by him, the sum of 10 000 euros,
                                                                                subject to increase or reduction during the course of the
                                                                                proceedings;
Pleas in law and main arguments                                           —     order the defendant to pay the costs in any event.
The pleas in law and main arguments are those relied upon in              Pleas in law and main arguments
Case T-178/01 Di Lenardo Adriano.
                                                                          In support of his action, the applicant invokes Articles 25 and
(1) OJ L 126, 8.5.2001, p. 6.                                             43 of the Staff Regulations, the general provisions for the
                                                                          implementation of Article 43 of the Staff Regulations and the
                                                                          principles of sound administration, the protection of legitimate
                                                                          expectations and legal certainty. The applicant further claims
                                                                          that there has been a misuse of powers.
Action brought on 7 August 2001 by Arnaldo Mellone
  against the Commission of the European Communities
                                                                          Action brought on 20 August 2001 by Aristotelio Panepis-
                          (Case T-187/01)                                 timio Thessalonikis against the Commission of the Euro-
                                                                                pean Communities
                          (2001/C 289/76)
                                                                                (Case T-196/01)
                    (Language of the case: French)                                                (2001/C 289/77)
An action against the Commission of the European Communi-                                    (Language of the case: Greek)
ties was brought before the Court of First Instance of the
European Communities on 7 August 2001 by Arnaldo Mel-                     An action against the Commission of the European Communi-
lone, residing in Brussels, represented by Eric Boigelot, avocat,         ties was brought before the Court of First Instance of the
with an address for service in Luxembourg.                                European Communities on 20 August 2001 by Aristotelio
                                                                          Panepistimio Thessalonikis (Aristotle University, Thessaloniki),
                                                                          represented by Dimos Nikopoulos, of the Thessaloniki Bar.
The applicant claims that the Court should:
                                                                          The applicant claims that the Court should:
—     annul the decision adopted by the appointing authority
      on 10 July 2000, whereby the applicant’s staff report for           —     annul Decision C (2001) 1284 of the European Com-
      the period from 1 July 1995 to 30 June 1997 were                          mission of 8 June 2001 withdrawing assistance granted
      declared definitive by the appeal assessor, and, in so far                to the Laboratory for Forest Genetics and Improvement
      as may be necessary, annul the note of 18 July 2000                       of Forest Species of the Aristotelio Panepistimio Thessa-
      rectifying the material error as to the period covered by                 lonikis by Commission Decision C (96) 2542 of 25 Sep-
      the report in question;                                                   tember 1996 concerning the grant of assistance by the
                                                                                EAGGF Guidance Section, pursuant to Council Regu-
—     annul the decision of 24 April 2001, received by the                      lation (EEC) No 4256/88, in connection with Project
      applicant on 7 May 2001, expressly rejecting his com-                     No 93.EL.06.023 entitled: pilot project relating to the
      plaint;                                                                   speeding-up of the replacement of forests destroyed by
                                                                                fire in Greece.
—     in consequence of those annulments, rule that the
      applicant’s staff report for the period from 1 July 1995            —     order the defendant to pay the costs.
      to 30 June 1997 is not definitive and should not, as it
      currently stands, be placed on the applicant’s personal
      file, or alternatively that it should be withdrawn pending          Pleas in law and main arguments
      completion of the proper, definitive staff report to be
      prepared;                                                           The applicant submits that the contested Commission decision
                                                                          infringes Article 24 of Regulation (EEC) No 4253/88 and the
—     order the defendant to pay to the applicant, by way of              principle of proportionality. In addition, the reasoning given
      compensation for the professional and non-material                  in the decision is not lawful or sufficient.


title: Case T-289/16: Order of the General Court of 21 June 2017 — Inox Mare v Commission (Action for annulment — Regulation (EU, Euratom) No 883/2013 — External investigation conducted by OLAF — Report and recommendations — Measures not amenable to challenge — Inadmissible)

text:
               14.8.2017

               EN

               Official Journal of the European Union

               C 269/20

         Order of the General Court of 21 June 2017 — Inox Mare v Commission
   (Case T-289/16) (1)

   ((Action for annulment - Regulation (EU, Euratom) No 883/2013 - External investigation conducted by OLAF - Report and recommendations - Measures not amenable to challenge - Inadmissible))
   (2017/C 269/29)
   Language of the case: Italian

      Parties

      Applicant: Inox Mare Srl (Rimini, Italy) (represented by: R. Holzeisen, lawyer)

      Defendant: European Commission (represented by: initially, J. Baquero Cruz, D. Nardi and L. Grønfeldt, and, subsequently, J. Baquero Cruz and D. Nardi, acting as Agents)

      Re:

   Application based on Article 263 TFEU, seeking annulment of the Final Report of the European Anti-Fraud Office (OLAF) concerning external investigation OF/2013/0086/B1 (THOR(2015) 40189 of 26 November 2015), of the recommendation of the Director-General of OLAF with respect to that report (THOR(2015) 42057 of 9 December 2015) and of the prior and strictly related measures taken by OLAF

      Operative part of the order

               1.

               The action is dismissed as being inadmissible.

               2.

               Inox Mare Srl shall bear its own costs and pay those incurred by the European Commission.

      (1)  OJ C 270, 25.7.2016.


title: Case C-247/12: Judgment of the Court (Fifth Chamber) of 18 April 2013 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Meliha Veli Mustafa v Direktor na fond ‘Garantirani vzemania na rabotnitsite i sluzhitelite’ kam Natsionalnia osiguritelen institut (Protection of employees in the event of insolvency of their employer — Directive 80/987/EEC — Directive 2002/74/EC — Directive 2008/94/EC — Articles 2 and 3 — Obligation to provide a guarantee for employees’ claims — Possibility of limiting the guarantee to claims arising before the entry of the decision to open the insolvency proceedings in the register of companies — Decision to open the insolvency proceedings — Effects — Continuation of the employer’s activity)

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/7

         Judgment of the Court (Fifth Chamber) of 18 April 2013 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Meliha Veli Mustafa v Direktor na fond ‘Garantirani vzemania na rabotnitsite i sluzhitelite’ kam Natsionalnia osiguritelen institut
   (Case C-247/12) (1)

   (Protection of employees in the event of insolvency of their employer - Directive 80/987/EEC - Directive 2002/74/EC - Directive 2008/94/EC - Articles 2 and 3 - Obligation to provide a guarantee for employees’ claims - Possibility of limiting the guarantee to claims arising before the entry of the decision to open the insolvency proceedings in the register of companies - Decision to open the insolvency proceedings - Effects - Continuation of the employer’s activity)
   2013/C 164/11
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad

      Parties to the main proceedings

      Applicant: Meliha Veli Mustafa

      Defendant: Direktor na fond ‘Garantirani vzemania na rabotnitsite i sluzhitelite’ kam Natsionalnia osiguritelen institut

      Re:

   Request for a preliminary ruling — Varhoven administrativen sad — Interpretation of Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23), as amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 80/987/EEC (OJ 2002 L 270, p. 10) — Obligation on the Member States to provide for guarantees not only for employees’ salary claims existing at the time of the opening of the insolvency proceedings of the employer but also for claims that may arise at each stage of the insolvency proceedings

      Operative part of the judgment

   Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer must be interpreted as not requiring the Member States to provide guarantees for employees’ claims at every stage of the insolvency proceedings of their employer. In particular, it does not preclude Member States from providing a guarantee only for employees’ claims arising before the entry of the decision to open insolvency proceedings in the register of companies, even though that decision does not order the termination of the employer’s activities.

      (1)  OJ C 235, 4.8.2012.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 13 December 1995 in Case T-109/94: Windpark Groothusen GmbH & Co. Betriebs KG v. Commission of the European Communities (Financial support in the energy sector - Thermie programme - Obligation to state reasons - Opinion of the committee - Right to a hearing - Discretion)

text:
No C 31 / 18            EN                    Official Journal of the European Communities                                       3 . 2 . 96
2 . orders the applicants to pay the costs.                              Commission's decision of 13 January 1994 refusing the
                                                                         applicant financial support under the 1993 Thermie
t 1 ) OJ No C 172 , 23 . 6 . 1993 and OJ No C 209 , 3 . 8 . 1993 .       programme and for a direction to the Council to take a new
                                                                         decision — the Court of First Instance ( First Chamber),
                                                                         composed of H. Kirschner, acting as President,
                                                                         A. Kalogeropoulos and V. Tiili, Judges; J. Palacio Gonzalez,
                                                                         Administrator, for the Registrar, has given a judgment on
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                 13 December 1995 , in which it :
                         ( Third Chamber)                                1 . dismisses the action ;
                     of 13 December 1995
                                                                         2 . orders the applicant to pay the costs.
in Case T-85/94 ( 122 ): Commission of the European
           Communities v. Eugénio Branco Lda ( 1 )                       (') OJ No C 146 , 28 . 5 . 1994 .
(European Social Fund — Reduction in financial assistance
initially granted — Statement of reasons — Proceedings
         seeking to have a default judgment set aside)
                             ( 96/C 31 /41
                                                                          JUDGMENT OF THE COURT OF FIRST INSTANCE
              (Language of the case: Portuguese)                                                 of 14 December 1995
                                                                         in Case T-72/94 : Komninos Diamantaras v. Commission of
In Case T-85/94 ( 122 ): Commission of the European                                         the European Communities ( 1 )
Communities ( Agents : Francisco de Sousa Fialho and
Horstpeter Kreppel ) v. Eugenio Branco Lda , having its                  (Officials — Expatriation allowance — No habitual
registered office in Lisbon, represented by Bolota Belchior,             residence in the State in which the official is employed —
of the Bar of Vila Nova de Gaia , with an address for service            Article 4 (1) of Annex VII to the Staff Regulations of
in Luxembourg at the Chambers of Jacques Schroeder,                                                      officials)
6 Rue Heine — application for the setting aside of the                                                ( 96/C 31 /43 )
judgment given by default by the Court of First Instance on
12 January 1995 in Case T-85/94 Branco v. Commission                                         (Language of the case: Greek)
[ 1995 ] ECR 11-45 — the Court of First Instance (Third
Chamber ), composed of C. P. Briët, acting as President,                 In Case T-72/94 : Komninos Diamantaras, an official of the
C. W. Bellamy and J. Azizi, Judges; H. Jung, Registrar, has              Commission of the European Communities, residing in
given a judgment on 13 December 1995 , in which it:                      Brussels, represented by Athanassios D. Damis and Nikos
                                                                         E. Stavropoulos, of the Athens Bar, with an address for
 1 . dismisses the Commission 's application to have the                 service in Luxembourg, care of Emmanuel Kaïlis, 14 Rue
      judgment of 12 January 1995 set aside;                             Julien Vasque, Gasperich, v. Commission of the European
                                                                         Communities ( Agent: Dimitrios Gouloussis ) — application,
2 . orders the Commission to pay the costs.                              first, for the annulment of the decision of the Commission,
                                                                         communicated to the applicant by administrative note dated
f 1 ) OJ No C 120, 30 . 4 . 1994 .                                       22 February 1993 , refusing him the expatriation allowance,
                                                                         and, second, for an order requiring the Commission to pay
                                                                         the said allowance from the date of the applicant's entry into
                                                                         the service of the Commission — the Court of First Instance
                                                                         ( Fourth Chamber ), composed of K. Lenaerts, President, and
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                 R. Schintgen and P. Lindh, Judges; J. Palacio Gonzalez,
                     of 13 December 1995                                 Registrar, has given a judgment on 14 December 1995 , in
                                                                         which it :
in Case T-109/94: Windpark Groothusen GmbH & Co.
Betriebs KG v. Commission of the European                                 1 . annuls the decision of the Commission, communicated
                           Communities C )                                      by note of 22 February 1 993 , refusing the applicant the
 (Financial support in the energy sector — Thermie                              expatriation allowance;
programme — Obligation to state reasons — Opinion ofthe
        committee — Right to a hearing — Discretion)                     2 . orders the Commission to pay to the applicant the sums
                                                                                corresponding to that allowance from 1 November
                              { 96/C 31 /42 )
                                                                                1 992 , less the payments already made to him by way of
                                                                                expatriation allowance, together with default interest at
                (Language of the case: German)                                  the annual rate of 8% from the dates when those sums
                                                                                respectively fell due until actual payment thereof;
 In Case T-109/94 : Windpark Groothusen GmbH & Co .
 Betriebs KG, established at Groothusen-Krummhörn                         3 . orders the Commission to pay all of the costs.
 ( Germany ), represented by Professor Detlef Schumacher,
 Bremen, and Benno Grunewald, Rechtsanwalt, Bremen v.                     f 1 ) OJ No C 132 , 14 . 5 . 1994 .
 Commission of the European Communities ( Agent: Jürgen
 Grunwald ) — application for annulment of the


title: Case T-455/12: Action brought on 12 October 2012 — Zoo Sport v OHIM — K-2 (zoo sport)

text:
               22.12.2012

               EN

               Official Journal of the European Union

               C 399/25

         Action brought on 12 October 2012 — Zoo Sport v OHIM — K-2 (zoo sport)
   (Case T-455/12)
   2012/C 399/48
   Language in which the application was lodged: English

      Parties

      Applicant: Zoo Sport Ltd (Leeds, United Kingdom) (represented by: I. Rungg, lawyer)

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

      Other party to the proceedings before the Board of Appeal: K-2 Corp. (Seattle, United States)

      Form of order sought

   The applicant claims that the Court should:

               —

               Vary the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 August 2012 in case R 1395/2011-4, so as to reject the opposition in its entirety; and

               —

               Order the defendant to bear the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark in black and white ‘zoo sport’, for goods and services in classes 18, 25 and 35 — Community trade mark application No 8909293

      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 in opposition: Community trade mark registration No 5233119 for the word mark ‘ZOOT’, for goods in classes 9 and 25; Community trade mark registration No 4719316 for the figurative mark in black and white ‘SPORTS ZOOT SPORTS’, for goods and services in classes 25, 35, 36 and 41

      Decision of the Opposition Division: Upheld the opposition for part of the contested goods and services

      Decision of the Board of Appeal: Partially annulled the contested decision

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


title: Case C-142/05: Reference for a preliminary ruling from the Luleå tingsrätt by order of that court of 21 March 2005 in Åklagaren v Percy Mickelsson and Joakim Roos

text:
               11.6.2005

               EN

               Official Journal of the European Union

               C 143/23

         Reference for a preliminary ruling from the Luleå tingsrätt by order of that court of 21 March 2005 in Åklagaren v Percy Mickelsson and Joakim Roos
   (Case C-142/05)
   (2005/C 143/33)
   Language of the case: Swedish
   Reference has been made to the Court of Justice of the European Communities by decision of the Luleå tingsrätt (Sweden) of 21 March 2005, received at the Court Registry on 24 March 2005, for a preliminary ruling in the proceedings between Åklagaren and Percy Mickelsson and Joakim Roos on the following questions:

               1.

                           a)

                           Do Articles 28 to 30 EC preclude national provisions, such as those in the Swedish jet-ski regulations, prohibiting the use of personal watercraft other than on a general navigable waterway or waters in respect of which the local authority has issued rules permitting their use?

                           b)

                           In the alternative, do Articles 28 to 30 EC prevent a Member State from applying provisions of that kind in such a way as to prohibit the use of personal watercraft also on waters which have not yet been the subject of an investigation by the local authority of whether or not rules permitting their use in the area are to be issued?

               2.

               Does Directive 2003/44/EC (1) of the European Parliament and of the Council amending Directive 94/25/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft preclude such national provisions prohibiting the use of personal watercraft as set out above?

      (1)  of 16 June 2003, OJ L 214, 26.8.2003, p. 18.


title: Case C-603/13 P: Judgment of the Court (Fifth Chamber) of 21 January 2016 — Galp Energía España SA, Petróleos de Portugal (Petrogal) SA, Galp Energía SGPS SA v European Commission (Appeal — Article 81 EC — Agreements, decisions and concerted practices — Spanish market for penetration bitumen — Market sharing and price coordination — Excessive length of the proceedings before the General Court — Article 261 TFEU — Regulation (EC) No 1/2003 — Article 31 — Unlimited jurisdiction — Article 264 TFEU — Annulment, in whole or in part, of the Commission’s decision)

text:
               14.3.2016

               EN

               Official Journal of the European Union

               C 98/2

         Judgment of the Court (Fifth Chamber) of 21 January 2016 — Galp Energía España SA, Petróleos de Portugal (Petrogal) SA, Galp Energía SGPS SA v European Commission
   (Case C-603/13 P) (1)

   ((Appeal - Article 81 EC - Agreements, decisions and concerted practices - Spanish market for penetration bitumen - Market sharing and price coordination - Excessive length of the proceedings before the General Court - Article 261 TFEU - Regulation (EC) No 1/2003 - Article 31 - Unlimited jurisdiction - Article 264 TFEU - Annulment, in whole or in part, of the Commission’s decision))
   (2016/C 098/02)
   Language of the case: English

      Parties

      Appellants: Galp Energía España SA, Petróleos de Portugal (Petrogal) SA, Galp Energía SGPS SA (represented by: M. Slotboom, advocaat, and G. Gentil Anastácio, advogado)

      Other party to the proceedings: European Commission (represented by: C. Urraca Caviedes and F. Castillo de la Torre, acting as Agents, and by J. Rivas Andrés, avocat, and G. Eclair-Heath, Solicitor)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the General Court of the European Union of 16 September 2013 in Galp Energía España and Others v Commission (T-462/07, EU:T:2013:459) in so far as it fixes, in paragraph 3 of its operative part, the new amount of the fines imposed on GALP Energía España SA, Petróleos de Portugal SA and GALP Energía SGPS SA by taking account of the finding, made incorrectly by the General Court in the exercise of its unlimited jurisdiction in the grounds of that judgment, that GALP Energía España SA, Petróleos de Portugal SA and GALP Energía SGPS SA were aware of the participation of the other members of the cartel in the compensation mechanism and that they could also foresee the participation of those other members in the monitoring system, and, therefore, that the appellants could be held liable in that regard;

               2.

               Dismisses the appeal as to the remainder;

               3.

               Fixes the amount of the fine imposed jointly and severally on GALP Energía España SA and Petróleos de Portugal SA in Article 2 of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 EC (Case COMP/38.710 — Bitumen (Spain) at EUR 7,7 million, of which GALP Energía SGPS SA is held jointly and severally liable for EUR 5,72 million;

               4.

               Orders GALP Energía España SA, Petróleos de Portugal SA and GALP Energía SGPS SA to bear two thirds of the costs of the European Commission and to pay two thirds of their own costs incurred in the context of the appeal, and to bear their own costs relating to the proceedings at first instance;

               5.

               Orders the European Commission to bear one third of its own costs and to pay one third of those of GALP Energía España SA, Petróleos de Portugal SA and GALP Energía SGPS SA connected with the appeal proceedings, and to bear its own costs relating to the proceedings at first instance.

      (1)  OJ C 24, 25.1.2014.


title: Case T-121/15: Action brought on 6 March 2015 — Fortischem v Commission

text:
               1.6.2015

               EN

               Official Journal of the European Union

               C 178/15

         Action brought on 6 March 2015 — Fortischem v Commission
   (Case T-121/15)
   (2015/C 178/17)
   Language of the case: English

      Parties

      Applicant: Fortischem a.s. (Nováky, Slovakia) (represented by: C. Arhold, P. Hodál and M. Staroň, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Articles 1, 3, 4 and 5 of the decision of the European Commission of 15 October 2014 on State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ;

               —

               award the applicant the costs of the present action.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging breach of Article 107(1) TFUE
               It is submitted that the Commission’s decision that declaring the company Novácke chemické závody, a.s. v konkurze (‘NCHZ’) a strategic company within the meaning of the Slovak Law of 5 November 2009 on certain strategic measures regarding strategically important companies in bankruptcy (‘the Law’) constituted State aid within the meaning of Article 107(1) TFUE is in breach of that Article, since not all of its constituent elements are fulfilled.
               The applicant puts forward that the declaration did not cause a transfer of State resources, since there was no additional burden for the State compared to the situation that would have arisen had the usual insolvency rules been applied. Nor did it confer an economic advantage to NCHZ, since, first, creditors would have opted for continued operation in any way, and the temporary prohibition of lay-offs was only in favour of the State, not of the company. Second, the application of the Law passes the Market Economy Operator Test, since it was economically advantageous for the public creditors.
               Finally, the applicant submits that even if the Commission were right and the application of the Law were to be considered State Aid in favour of NCHZ, the Commission has committed a manifest error of assessment when calculating the amount of State aid.

               2.

               Second plea in law, alleging an infringement of the obligation to conduct a diligent and impartial examination
               The applicant puts forward that the Commission had the duty, on the one hand, to inform the Slovak Government about the fact that it considered the level of detail of the ex-post-analysis submitted by the latter to be insufficient and, on the other hand, to indicate what additional information or clarification the Slovak Government had to provide. In addition, the applicant submits that the Commission failed to request information on final figures before taking a recovery decision.

               3.

               Third plea in law, alleging infringement of Article 296(2) TFUE and the obligation to state reasons
               The applicant submits that the Commission failed to provide any reasoning as to why in this specific case NCHZ would not have continued operating without the application of the Law as well as to address the Slovak Government’s arguments as to the economic interests of the public creditors in continued operation.

               4.

               Fourth plea in law, alleging an infringement of Articles 107(1) and 108(2) TFUE and Article 14(1) of the Procedural Regulation by extending the recovery aid to the Applicant
               The applicant puts forward that there was no State aid in its favour, since the sales price was at market rate. According to the applicant, the Commission’s argumentation and doubts as to whether the prices paid by Via Chem and subsequently by Fortishem for the NCHZ assets represented market prices is flawed for several reasons. It is submitted that first, as the burden of proof lies with the Commission, it is not sufficient for the Commission to express doubts. Second, since the sale was conducted within the scope of a bankruptcy procedure under the control of a bankruptcy court with the obligation to act in the interests of the creditors of the insolvent company, there is an assumption that the assets were sold at the highest price possible. Third, the tender procedure was open, transparent and unconditional and therefore guaranteed the highest price achievable on the market; the commitment option did not have any impact on sales price. Fourth, notwithstanding the fact that the conditions of the sale between Via Chem and Fortischem are not of any relevance due to the market price of the first sale, the sales price negotiated between private market economy operators is assumed to be a market price even without a tender procedure.
               The applicant further puts forward that it is obvious that the transfer of the NCHZ assets to Via Chem and later to the applicant cannot be considered an attempt to circumvent the Commission’s recovery decision for two reasons. First, the case is so far from the typical circumvention case that even the Commission admits that it has no evidence of the intention to evade recovery. Second, it nevertheless comes to the conclusion that there is economic continuity, so that it can extend the recovery to the applicant. However, the Commission’ conclusion follows a flawed analysis based on an incorrect interpretation of the individual criteria, a disregard for the burden of proof and a false understanding of the overall concept of economic continuity in State aid cases.
               Finally, the applicant submits that the Commission’s approach is economically destructive and unnecessary from a competition law perspective. According to the applicant, the Commission is trying to create new, much stricter case law, according to which the scope of the transaction shall be the decisive criterion, the sales price being at most an auxiliary criterion, if at all.

               5.

               Fifth plea in law, in the alternative, infringement of Articles 107(1), 108(2) TFUE and Article 14(1) of the Procedural Regulation by not limiting the extension of the Recovery Decision to 60 % of the alleged State aid

               6.

               Sixth plea in law, alleging an infringement of Article 296 TFUE by giving inadequate reasons with respect to the economic continuity
               The applicant puts forward that it follows from the observations made with respect to the first plea that he Commission’s reasoning is insufficient to enable the Court to conduct a judicial review of the contested decision, and that it is not possible for the applicant to understand the reasons that led the Commission to conclude on economic continuity.


title: Case F-25/08: Action brought on 22 February 2008 — Valero Jordana v Commission

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/34

         Action brought on 22 February 2008 — Valero Jordana v Commission
   (Case F-25/08)
   (2008/C 116/66)
   Language of the case: French
   Parties

      Applicant: Gregorio Valero Jordana (Brussels, Belgium) (represented by: M. van der Woude, lawyer)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   Annulment of the decision of 17 April 2007 inasmuch as does not award the applicant any additional priority points for the promotion year 2003.
   Form of order sought

               —

               Annul the decision of 17 April 2007 inasmuch as does not award the applicant any additional priority points for the promotion year 2003

               —

               Order the defendant to pay damages of EUR 5 000;

               —

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


title: Case T-414/09: Action brought on 14 October 2009 — Henkel v OHIM — JLO Holding (LIVE)

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/36

         Action brought on 14 October 2009 — Henkel v OHIM — JLO Holding (LIVE)
   (Case T-414/09)
   2009/C 312/59
   Language in which the application was lodged: German

      Parties

      Applicant: Henkel AG & Co. KGaA (Düsseldorf, Germany) (represented by: C. Milbradt, 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: JLO Holding Company LLC (Santa Monica, United States of America)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 July 2009 in case R 609/2008-1 insofar as it made an order for revocation of the Community trade mark No 984 245‘LIVE’ for the goods, soaps, perfumery, cosmetic products and make-up;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: the word mark ‘LIVE’ for goods in Class 3 (Community trade mark No 984 245)

      Proprietor of the Community trade mark: Henkel AG & Co. KGaA

      Applicant for the declaration of invalidity: JLO Holding Company LLC

      Decision of the Cancellation Division: Partial revocation of the Community trade mark

      Decision of the Board of Appeal: Partial annulment of the Cancellation Division's decision and partial revocation of the Community trade mark

      Pleas in law: Infringement of Articles 51(1)(a) and Article 51(2) of Regulation (EC) No 207/2009 (1), on the ground that it was proved that the trade mark at issue in the proceedings had been used in such a way as to preserve the rights of the proprietor for the product group, soups, perfumery, cosmetic products and make-up

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


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 300, 4.12.2004

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/29

         (2004/C 314/65)
   Last publication of the Court of Justice in the
         Official Journal of the European Union

         OJ C 300, 4.12.2004

   Past publications

      OJ C 273, 6.11.2004

      OJ C 262, 23.10.2004

      OJ C 251, 9.10.2004

      OJ C 239, 25.9.2004

      OJ C 228, 11.9.2004

      OJ C 217, 28.8.2004

   These texts are available on:

               EUR-Lex:http://europa.eu.int/eur-lex

               CELEX:http://europa.eu.int/celex


title: Case F-18/12: Order of the Civil Service Tribunal (1st Chamber) of 3 May 2016 — Aprili and Kilian v Commission (Civil service — Pensions — Article 11(2) of Annex VIII to the Staff Regulations — Pension rights acquired, prior to entering the service of the EU, under a national pension scheme — Transfer to the EU pension scheme — Proposal concerning the crediting of pensionable years, made by the appointing authority or the AECE, accepted by the person concerned — Withdrawal of that proposal — New proposal concerning the crediting of pensionable years based on new general implementing provisions — Objection of inadmissibility — Concept of an act having adverse effect — Article 83 of the Rules of Procedure)

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/40

         Order of the Civil Service Tribunal (1st Chamber) of 3 May 2016 — Aprili and Kilian v Commission
   (Case F-18/12) (1)

   ((Civil service - Pensions - Article 11(2) of Annex VIII to the Staff Regulations - Pension rights acquired, prior to entering the service of the EU, under a national pension scheme - Transfer to the EU pension scheme - Proposal concerning the crediting of pensionable years, made by the appointing authority or the AECE, accepted by the person concerned - Withdrawal of that proposal - New proposal concerning the crediting of pensionable years based on new general implementing provisions - Objection of inadmissibility - Concept of an act having adverse effect - Article 83 of the Rules of Procedure))
   (2016/C 222/52)
   Language of the case: French

      Parties

      Applicants: Sophie Aprili (Pont-à-Celles, Belgium) and Karin Kilian (Brussels, Belgium) (represented by: initially, D. de Abreu Caldas, A. Coolen, J.-N. Louis, É. Marchal and S. Orlandi, lawyers, then D. de Abreu Caldas, J.-N. Louis and S. Orlandi, lawyers, and lastly, J.-N. Louis, lawyer)

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

      Re:

   Application for annulment of the decisions to transfer the applicants’ pension rights, acquired prior to entering the service of the Commission, on the basis of the PMO’s recalculated proposal.

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Sophie Aprili and Karin Kilian shall bear their own costs and pay the costs incurred by the European Commission.

      (1)  OJ C 138, 12/5/2012, p. 34.


title: Case C-246/09: Judgment of the Court (Second Chamber) of 8 July 2010 (reference for a preliminary ruling from the Landesarbeitsgericht Hamburg (Germany)) — Susanne Bulicke v Deutsche Büro Service GmbH (Directive 2000/78/EC — Articles 8 and 9 — National procedure for the enforcement of obligations under the Directive — Period within which a claim must be lodged — Principles of equivalence and effectiveness — Principle of non-reduction of an earlier level of protection)

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/13

         Judgment of the Court (Second Chamber) of 8 July 2010 (reference for a preliminary ruling from the Landesarbeitsgericht Hamburg (Germany)) — Susanne Bulicke v Deutsche Büro Service GmbH
   (Case C-246/09) (1)

   (Directive 2000/78/EC - Articles 8 and 9 - National procedure for the enforcement of obligations under the Directive - Period within which a claim must be lodged - Principles of equivalence and effectiveness - Principle of non-reduction of an earlier level of protection)
   2010/C 234/19
   Language of the case: German

      Referring court

   Landesarbeitsgericht Hamburg

      Parties to the main proceedings

      Applicant: Susanne Bulicke

      Defendant: Deutsche Büro Service GmbH

      Re:

   Reference for a preliminary ruling — Landesarbeitsgericht Hamburg — Interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) and of general principles of Community law — Prohibition of discrimination on the basis of the age at the time of hiring — National legislation laying down a time-limit of two months from receipt of the rejection of the job application, or knowledge of the discrimination, within which to bring an action seeking damages and/or compensation

      Operative part of the judgment

               1.

               The primary law of the European Union and Article 9 of 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 a national procedural rule under which a victim of discrimination in recruitment on grounds of age must make a claim against the perpetrator of that discrimination within two months in order to obtain compensation for pecuniary or non-pecuniary damage, provided:

                           —

                           firstly, that that time-limit is not less favourable than that applicable to similar domestic actions in employment law,

                           —

                           secondly, that the fixing of the point from which that time-limit starts to run does not render practically impossible or excessively difficult the exercise of rights conferred by the Directive.

                     It is for the national court to ascertain whether those two conditions are met.

               2.

               Article 8 of the Directive must be interpreted as not precluding a national procedural rule, adopted in order to implement the Directive, which has the effect of amending earlier legislation which provided for a time-limit for claiming compensation for discrimination on grounds of sex.

      (1)  OJ C 244, 10.10.2009.


title: Case T-315/11: Order of the General Court of 24 May 2012 — Fortress Participations v OHIM — FIG and Fortress Investment Group (FORTRESS) (Community trade mark — Invalidity proceedings — Withdrawal of the application for a declaration of invalidity — No need to adjudicate)

text:
               7.7.2012

               EN

               Official Journal of the European Union

               C 200/17

         Order of the General Court of 24 May 2012 — Fortress Participations v OHIM — FIG and Fortress Investment Group (FORTRESS)
   (Case T-315/11) (1)

   (Community trade mark - Invalidity proceedings - Withdrawal of the application for a declaration of invalidity - No need to adjudicate)
   2012/C 200/35
   Language of the case: English

      Parties

      Applicant: Fortress Participations BV (Rotterdam, Netherlands) (represented, initially, by: L.J. van de Braak, avocat, B. Ladas, Solicitor, and S. Malynicz, Barrister, then, by: L.J. van de Braak, S. Malynicz, R. Black, Solicitor, and V. Baxter, Solicitor)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: V. Melgar, Agent)

      Other parties to the proceedings before the Board of Appeal of OHIM intervening before the General Court: FIG LLC (New York, United States); and Fortress Investment Group (UK) Ltd (London, United Kingdom) (represented by: J. Gray and R. Mallinson, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 8 March 2011 (Case R 355/2009-2) relating to invalidity proceedings between FIG LLC and Fortress Investment Group (UK), on the one hand, and Fortress Participations BV, on the other.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               The applicant is ordered to bear its own costs and those incurred by the defendant. The interveners are ordered to bear their own costs.

      (1)  OJ C 238, 13.8.2011.


title: Case T-447/10: Judgment of the General Court of 17 October 2012 — Evropaïki Dynamiki v Court of Justice (Public service contracts — Tender procedure — Provision of services for the maintenance, development and support of computer applications — Rejection of the applicant’s tenders and award of the contracts to another tenderer — Selection criteria — Award criteria — Obligation to state reasons — Non-contractual liability)

text:
               1.12.2012

               EN

               Official Journal of the European Union

               C 373/5

         Judgment of the General Court of 17 October 2012 — Evropaïki Dynamiki v Court of Justice
   (Case T-447/10) (1)

   (Public service contracts - Tender procedure - Provision of services for the maintenance, development and support of computer applications - Rejection of the applicant’s tenders and award of the contracts to another tenderer - Selection criteria - Award criteria - Obligation to state reasons - Non-contractual liability)
   2012/C 373/08
   Language of the case: English

      Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

      Defendant: Court of Justice of the European Union (represented by: T. Lefèvre, Agent)

      Re:

   Application, first, for annulment of the decision of the Court of Justice of 12 July 2010 by which it rejected the applicant’s tenders for lots 1 and 2 in invitation to tender CJ 7/09 of 11 November 2009 for the maintenance, development and support of computer applications (OJ 2009, S 217-312293) and of all further related decisions of the Court of Justice, including the decision to award the respective contracts to the successful contractors, and second, for damages.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Court of Justice of the European Union of 12 July 2010 rejecting the tenders submitted by Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in tender procedure CJ 7/09 of 11 November 2009 for the maintenance, development and support of computer applications and awarding the contracts to other tenderers;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Court of Justice to pay the costs.

      (1)  OJ C 346, 18.12.2010.


title: JUDGMENT OF THE COURT of 12 November 1996 in Case C-201/94 (reference for a preliminary ruling from the High Court of Justice, Queen's Bench Division): The Queen v. The Medicines Control Agency, ex parte: Smith & Nephew Pharmaceuticals Ltd and Primecrown Ltd v. The Medicines Control Agency (Proprietary medicinal products - Parallel imports - Direct effect of Directive 65/65/EEC - Marketing authorization)

text:
 25 . 1 . 97          1 EN                 Official Journal of the European Communities                                    No C 26/3
                 JUDGMENT OF THE COURT                                       support of claims for the reimbursement of sums
                                                                             levied before 1 6 July 1 992 by way of droit additionnel
                          (Fifth Chamber)                                    on goods from non-member countries which are not
                       of 7 November 1996                                    linked to the Community by a special agreement,
                                                                             except by claimants who have initiated legal
in Case C-126/94 (reference for a preliminary ruling from                   proceedings or raised an equivalent claim before that
the Tribunal d'Instance, Paris XII): Société Cadi Surgelés                   date. This also applies to sums levied on such goods
and Others v. Ministre des Finances and Directeur général                    before that date by way of octroi de mer to the extent
                          des douanes (')                                   that the levying of such sums is declared unlawful in
                                                                            application of this judgment.
(Free movement of goods — Common Customs Tariff —
Common commercial policy — Fiscal rules applicable to
French overseas departments — Goods from non-member                   I 1 ) OJ No C 188 , 9 . 7. 1994.
                               countries)
                            ( 97/C 26/04 )
                  (Language of the case: French)
                                                                                JUDGMENT OF THE COURT
                                                                                of 12 November 1996
  (Provisional translation; the definitive translation will be
            published in the European Court Reports)
                                                                      in Case C-201/94 ( reference for a preliminary ruling from
                                                                     the High Court of Justice, Queen's Bench Division ): The
                                                                      Queen v. The Medicines Control Agency, ex parte: Smith
In Case C-126/94: reference to the Court pursuant to                  & Nephew Pharmaceuticals Ltd and Primecrown Ltd v.
Article 177 of the EC Treaty from the Tribunal d'Instance                            The Medicines Control Agency (' )
(District Court), Paris XII for a preliminary ruling in the
proceedings pending before that court between, on the one             (Proprietary medicinal products — Parallel imports —
hand, Societe Cadi Surgelés, Societe Sofrigu, Societe Sofroi         Direct effect of Directive 65/65/EEC — Marketing
and Societe Sofriber, and, on the other, Ministre des                                             authorization)
Finances and Directeur general des douanes — on the
interpretation of Articles 9, 12, 113 and 227 ( 2 ) of the EC                                      ( 97/C 26/05 )
Treaty — the Court ( Fifth Chamber), composed of: J. C.
Moitinho de Almeida, President of the Chamber, C.
Gulmann, D. A. O. Edward ( Rapporteur), J. -P. Puissochet
and M. Wathelet, Judges; G. Tesauro, Advocate-General;                                 (Language of the case: English)
H. von Holstein, Assistant Registrar, for the Registrar, has
given a judgment on 7 November 1996 , in which it has
ruled :
                                                                     In Case C-201/94: reference to the Court pursuant to
                                                                     Article 177 of the EC Treaty from the High Court of
1 . It is incompatible with the EC Treaty to levy a                  Justice, Queen 's Bench Division, United Kingdom, for a
      customs duty or a charge having equivalent effect              preliminary ruling in the proceedings pending before that
      which has been unilaterally introduced by a Member             court between The Queen and The Medicines Control
      State after the introduction of the Common Customs             Agency, ex parte: Smith & Nephew Pharmaceuticals Ltd
      Tariff on 1 July 1968 on goods imported directly from           and Primecrown Ltd and The Medicines Control Agency
      non-member countries which are not linked to the               — on the interpretation of Council Directive 65/65/EEC
      Community by a special agreement. However, the                  of 26 January 1965 on the approximation of provisions
      Treaty does not preclude the levying of a charge                laid down by law, regulation or administrative action
      having equivalent effect to a customs duty on imports           relating to proprietary medicinal products (2), as amended
      which, having regard to all its essential characteristics,      in particular by Council Directive 87/21 /EEC of
      must be regarded as a charge already in existence on            22 December 1986 ( 3 ), and of the obligations associated
      1 July 1968, provided that the level at which it is             with the authorization of proprietary medicinal products
      levied has not been raised. Where the level has been           — the Court, composed of: G. C. Rodriguez Iglesias,
      raised, only the amount by which it has been raised             President, J. C. Moitinho de Almeida, J. L. Murray
      must be regarded as incompatible with the Treaty.               ( Rapporteur) and L. Sevón (Presidents of Chambers ), C. N.
                                                                      Kakouris, P. J. G. Kapteyn, D. A. O. Edward, P. Jann and
                                                                      H. Ragnemalm, Judges; P. Leger, Advocate-General; D.
                                                                      Louterman-Hubeau, Principal Administrator, for the
2 . The Treaty provisions relating to customs duties and              Registrar, has given a judgment on 12 November 1996 , in
      charges having equivalent effect cannot be relied on in         which it has ruled :
 ---pagebreak--- No C 26 /4                EN                    Official Journal of the European Communities                                      25 . 1 . 97
1 . ( a ) When a competent authority of a Member State                                      JUDGMENT OF THE COURT
            concludes that a proprietary medicinal product
                                                                                ( Second Chamber )
            covered by a marketing authorization in another
            Member State and a proprietary medicinal product                                     of 14 November 1996
            for which it has already issued a marketing
            authorization are manufactured by independent                  in Case C-305/94 (reference for a preliminary ruling from
             companies pursuant to agreements concluded with               the Tribunal du Travail, Brussels): Claude Rotsart de
             the same licensor and that those two products,                Hertaing v. J. Benoidt SA, in liquidation, and IGC
            although not identical in all respects, have at                                      Housing Service SA (*)
             least been manufactured according to the same
             formulation and using the same active ingredient              (Safeguarding of employees ' rights in the event of transfers
            and that they also have the same therapeutic                   of undertakings, businesses or parts of businesses —
             effects, it must treat the imported proprietary                Transfer to the transferee of the rights and obligations
             medicinal product as being covered by                 the     arising from a contract of employment — Date of
             latter marketing authorization unless there           are                                     transfer)
             countervailing considerations relating to             the                                  ( 97/C 26/06 )
             effective protection of the life and health            of
             humans .
                                                                                (Language of the case: French)
        (b) If the competent authority concludes that the
             proprietary medicinal product to be imported does
             not satisfy those criteria, a new marketing
             authorization is required. That authorization can                (Provisional translation; the definitive translation will be
             be issued only in accordance with the conditions                         published in the European Court Reports)
             laid down in Articles 3 and 4 of Council
             Directive 65/65/EEG of 26 January 1965 on the
             approximation of provisions laid down by law,                  In Case C-305/94 : reference to the Court pursuant to
             regulation or administrative action relating to                Article 177 of the EC Treaty from the Tribunal du Travail
             proprietary medicinal products, as amended in                  ( Labour Court), Brussels, for a preliminary ruling in the
             particular by Council Directive 87/21 /EEC of                  proceedings pending before that court between Claude
              22 December 1986.                                             Rotsart de Hertaing and J. Benoidt SA, in liquidation, and
                                                                            IGC Housing Service SA — on the interpretation of
                                                                            Council Directive 77/187/EEC of 14 February 1977 on
                                                                            the approximation of the laws of the Member States
 2 . The fact that the grantor of the licences in respect of                relating to the safeguarding of employees' rights in the
        the two proprietary medicinal products in question is               event of transfers of undertakings, businesses or parts of
        situated outside the European Community does not                    businesses (2 ) — the Court ( Second Chamber ), composed
        affect the answer given above.                                      of: G. F. Mancini, President of the Chamber ( Rapporteur),
                                                                            J. L. Murray and G. Hirsch, Judges; C. O. Lenz,
                                                                            Advocate-General; R. Grass, Registrar, has given a
                                                                            judgment on 14 November 1996 , in which it has ruled:
 3 . The holder of an original marketing authorization
         issued pursuant to the procedure referred to in
         Directive 65/65/EEC may rely on the provisions of                   1 . Article 3 (1 ) of Council Directive 77/187/EEC of
         that Directive, as amended in particular by Directive                    14 February 1977 on the approximation of the laws
         87/21 /EEC, and specifically on Article 5 thereof, in                    of the Member States relating to the safeguarding
         proceedings before a national court in order to                          of employees ' rights in the event of transfers of
         challenge the validity of an authorization issued by the                 undertakings, businesses or parts of businesses is
         competent national authority on the basis of Directive                   to be interpreted as meaning that the contracts
         65/65/EEC, as amended, to one of its competitors for                     of employment and employment relationships existing
         a proprietary medicinal product bearing the same                         on the date of the transfer of an undertaking between
         name. The same applies where the authorization,                          the transferor and the workers employed in the
         although issued under another procedure laid down at                     undertaking transferred are automatically transferred
         national level, should have been issued on the basis of                  from the transferor to the transferee by the mere fact
         the Directive.
                                                                                of the transfer of the undertaking, despite the contrary
                                                                                intention of the transferor or transferee and despite the
                                                                                latter's refusal to fulfil his obligations.
  (!) OJ No C 275 , 1 . 10 . 1994 .
  (2 ) Official Journal , English Special Edition 1965— 1966 , p. 20 .
  ( 3 ) OJ No L 15 , 17. 1 . 1987, p . 36 .
                                                                              2 . The transfer of the contracts of employment and
                                                                                employment relationships pursuant to Article 3 (1 ) of
                                                                                Directive 77/187/EEC necessarily takes place on the
                                                                                date of the transfer of the undertaking and cannot be


title: Case T-497/13: Action brought on 16 September 2013 — Boston Scientific Neuromodulation v OHIM (PRECISION SPECTRA)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/62

         Action brought on 16 September 2013 — Boston Scientific Neuromodulation v OHIM (PRECISION SPECTRA)
   (Case T-497/13)
   2013/C 344/114
   Language of the case: English

      Parties

      Applicant: Boston Scientific Neuromodulation Corp. (Valencia, United States) (represented by: P. Rath and W. Festl-Wietek, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 May 2013 given in Case R 2099/2012-5;

               —

               Declare Community trade mark application 009725912 to be eligible for registration; and

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘PRECISION SPECTRA’ for goods and services in Classes 9 and 10 — Community trade mark application No 9 725 912

      Decision of the Examiner: Partially refused the CTM application

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of 7(1)(b), (c) and 65(2) CTMR.


title: Case C-75/11: Action brought on 21 February 2011 — European Commission v Republic of Austria

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/13

         Action brought on 21 February 2011 — European Commission v Republic of Austria
   (Case C-75/11)
   2011/C 130/23
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: V. Kreuschitz and D. Roussanov, Agents)

      Defendant: Republic of Austria

      Forms of order sought

               —

               declare that the Republic of Austria has failed to fulfil its obligations under Article 18 TFEU in conjunction with Articles 20 and 21 TFEU and Article 24 of Directive 2004/38/EC (1) of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, by granting reduced fares on means of public transport in principle only to students in respect of whom Austrian family assistance is granted;

               —

               order the Republic of Austria to pay the costs.

      Pleas in law and main arguments

   Union citizens have the right to move freely within the territory of the Member States subject to the conditions and limits defined by the Treaties and by the measures adopted thereunder. In so far as Union citizens exercise that right they must in principle be treated in the same way as citizens of the host Member State.
   The linkage of the fare reduction for students at issue in the present dispute to the receipt of family assistance in Austria is by nature such as to disadvantage nationals of other Members States compared to Austrian citizens and therefore infringes the principle of equal treatment of Union citizens and a Member State’s own nationals.
   Contrary to the view of the Austrian Government, the price reduction does not constitute a contribution in kind to compensate for family burdens, as it is clearly a benefit which can be claimed only by matriculated students at a college or university.
   The unequal treatment of students whose parents cannot claim Austrian family assistance is also not covered by the exception contained in Article 24(2) of Directive 2004/38, according to which a host Member State may in certain circumstances refuse to grant aid for studies consisting in student grants or student loans to students from other Member States.
   Exceptions from the equality principle must be interpreted strictly. Therefore reduced travel fares for students cannot be regarded as aid for studies consisting in student grants or student loans. The exclusion of students whose parents do not receive Austrian family assistance from the fare reduction at issue in the present case therefore infringes European Union law.

      (1)  OJ 2004 L 158, p. 77.


title: Case T-406/11: Action brought on 29 July 2011 — Prosegur Compañía de Seguridad v Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/40

         Action brought on 29 July 2011 — Prosegur Compañía de Seguridad v Commission
   (Case T-406/11)
   2011/C 282/76
   Language of the case: Spanish

      Parties

      Applicant: Prosegur Compañía de Seguridad, S.A. (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro and M. Muñoz de Juan, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Admit and uphold the request for the taking of evidence;

               —

               admit and uphold the grounds for annulment set out in this application;

               —

               annul Article 1(1) of the Decision insofar as it declares that Article 12(5) of the Spanish Law on corporation tax comprises elements of State aid;

               —

               alternatively, annul Article 1(1) of the Decision insofar as it declares that Article 12(5) of the Spanish Law on corporation tax comprises elements of State aid when applied to shareholding acquisitions that involve acquisition of control;

               —

               alternatively, annul Article 4 of the Decision insofar as it applies the recovery order to transactions concluded prior to publication in the OJEU of the final Decision to which this action refers;

               —

               alternatively, annul Article 1(1) and, alternatively, Article 4 of the Decision insofar as it refers to transactions carried out in Argentina, Peru and Colombia;

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The present action is directed against Commission Decision C(2010) 9566, of 12 January 2011, on the tax amortisation of financial goodwill for foreign shareholding acquisitions.
   The pleas and main arguments are those already put forward in Case T-399/11, Banco de Santander and Santusa Holding v Commission.


title: Case T-616/13: Judgment of the General Court of 20 January 2015 — Aic v OHIM — ACV Manufacturing (Heat exchanger inserts) (Community design — Invalidity proceedings — Registered Community design representing a heat exchanger insert — Ground for invalidity — Lack of visibility of part of a complex product — Article 4(2) and Article 25(1)(b) of Regulation (EC) No 6/2002)

text:
               2.3.2015

               EN

               Official Journal of the European Union

               C 73/27

      Judgment of the General Court of 20 January 2015 — Aic v OHIM — ACV Manufacturing (Heat exchanger inserts)
      (Case T-616/13) (1)

      (Community design - Invalidity proceedings - Registered Community design representing a heat exchanger insert - Ground for invalidity - Lack of visibility of part of a complex product - Article 4(2) and Article 25(1)(b) of Regulation (EC) No 6/2002)
      (2015/C 073/35)
      Language of the case: English

         Parties

         Applicant: Aic S.A. (Gdynia, Poland) (represented by: J. Radłowski, Legal Adviser)

         Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

         Other party to the proceedings before the Board of Appeal of OHIM: ACV Manufacturing (Seneffe, Belgium)

         Re:

      Action brought against the decision of the Third Board of Appeal of OHIM of 10 September 2013 (Case R 293/2012-3), relating to invalidity proceedings between ACV Manufacturing and Aic S.A.

         Operative part of the judgment

      The Court:

                  1)

                  Dismisses the action;

                  2)

                  Orders Aic S.A. to pay the costs.

         (1)  OJ C 24, 25.1.2014.


title: Case T-49/12: Order of the General Court of 12 March 2013 — Lafarge v Commission

text:
               18.5.2013

               EN

               Official Journal of the European Union

               C 141/26

         Order of the General Court of 12 March 2013 — Lafarge v Commission
   (Case T-49/12) (1)

   2013/C 141/49
   Language of the case: French
   The President of the Seventh Chamber (extended composition) has ordered that the case be removed from the register.

      (1)  OJ C 109, 14.4.2012.


title: Case T-118/00: Action brought on 3 May 2000 by The Procter & Gamble Company against the Office for Harmonization in the Internal Market.

text:
8.7.2000              EN                     Official Journal of the European Communities                                     C 192/21
Action brought on 3 May 2000 by The Procter & Gamble                    European Communities on 3 May 2000 by The Procter &
Company against the Office for Harmonization in the                     Gamble Company, represented by C.J.J.C. van Nispen and
                        Internal Market.                                G. Kuipers of De Brauw Blackstone Westbroek, The Hague,
                                                                        Netherlands.
                        (Case T-117/00)
                                                                        The applicant claims that the Court should:
                        (2000/C 192/38)
                                                                        — annul Decision R516/1999-1 of the First Board of Appeal
                                                                            of the OHIM of 3 March 2000, in so far as it finds that the
                  (Language of the case: English)                           Mark does not satisfy the conditions as laid down in
                                                                            Article 7(1)(b) of Regulation No 40/94; and
An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the            — order the OHIM to pay the costs.
European Communities on 3 May 2000 by The Procter &
Gamble Company, represented by C.J.J.C. van Nispen and
                                                                        Pleas in law and main arguments
G. Kuipers of De Brauw Blackstone Westbroek, The Hague,
Netherlands.
                                                                        Trademark concerned:          Three dimensional trademark in
                                                                                the form of tablets — Application
The applicant claims that the Court should:
                                                                                No 954404
— annul Decision R509/1999-1 of the First Board of Appeal               Product or Service:           Products in Class 3 of the Nice
    of the OHIM of 8 March 2000, in so far as it finds that the                                       Agreement (in particular, washing
    Mark does not satisfy the conditions as laid down in                                              and bleaching preparations for
    Article 7(1)(b) of Regulation No 40/94; and                                                       laundry use; preparations for the
                                                                                washing of dishes, soaps)
— order the OHIM to pay the costs.
                                                                        Contested        decision     Refusal of registration by the
Pleas in law and main arguments                                         before the Board of           examiner
                                                                        Appeal:
Trademark concerned:          Three dimensional trademark in            Grounds for appeal:           Infringement of Article 7(1)(b) of
                              the form of tablets — Application                                       Regulation 40/94.
                              No 954099
Product or Service:           Products in Class 3 of the Nice
                              Agreement (in particular, washing
                              and bleaching preparations for
                              laundry use; preparations for the
                              washing of dishes, soaps)
                                                                        Action brought on 3 May 2000 by The Procter & Gamble
Contested        decision     Refusal of registration by the            Company against the Office for Harmonization in the
before the Board of           examiner                                                          Internal Market.
Appeal:
                                                                                (Case T-119/00)
Grounds for appeal:           Infringement of Article 7(1)(b) of
                              Regulation 40/94.                                                 (2000/C 192/40)
                                                                                (Language of the case: English)
                                                                        An action against the Office for Harmonization in the Internal
                                                                        Market was brought before the Court of First Instance of the
Action brought on 3 May 2000 by The Procter & Gamble                    European Communities on 3 May 2000 by The Procter &
Company against the Office for Harmonization in the                     Gamble Company, represented by C.J.J.C. van Nispen and
                        Internal Market                                 G. Kuipers of De Brauw Blackstone Westbroek, The Hague,
                                                                        Netherlands.
                        (Case T-118/00)
                                                                        The applicant claims that the Court should:
                        (2000/C 192/39)
                                                                        — annul Decision R519/1999-1 of the First Board of Appeal
                                                                            of the OHIM of 29 February 2000, in so far as it finds that
                  (Language of the case: English)                           the Mark does not satisfy the conditions as laid down in
                                                                            Article 7(1)(b) of Regulation No 40/94; and
An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the            — order the OHIM to pay the costs.


title: Case T-6/11 P: Appeal brought on 5 January 2011 by the European Commission against the judgment of the Civil Service Tribunal delivered on 28 October 2010 in Case F-9/09 Vicente Carbajosa and Others v Commission

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/24

         Appeal brought on 5 January 2011 by the European Commission against the judgment of the Civil Service Tribunal delivered on 28 October 2010 in Case F-9/09 Vicente Carbajosa and Others v Commission
   (Case T-6/11 P)
   2011/C 72/40
   Language of the case: French

      Parties

      Appellant: European Commission (represented by: J. Currall and B. Eggers, Agents)

      Other parties to the proceedings: Isabel Vicente Carbajosa (Brussels, Belgium), Niina Lehtinen (Brussels) and Myriam Menchen (Brussels)

      Form of order sought by the appellant

   The appellant claims that the Court should:

               —

               set aside the judgment of the Civil Service Tribunal of 28 October 2010 in Case F-9/09 Vicente Carbajosa and Others v Commission;

               —

               refer the case back to the Civil Service Tribunal so that it may examine the grounds raised by the appellant seeking to have the judgment set aside;

               —

               reserve the costs.

      Pleas in law and main arguments

   The appellant puts forward two grounds in support of the appeal.

               1.

               First ground of appeal, alleging infringement of the obligation to state reasons, the rights of the defence and the principle of legal certainty inasmuch as the Civil Service Tribunal upheld a plea which was not raised in the case at issue, or of the Tribunal's own motion, but in another case.

               2.

               Second ground of appeal, alleging in the alternative infringement of Articles 1, 5 and 7 of Annex III to the Staff Regulations of officials of the European Union and of decisions creating the European Personnel Selection Office (EPSO), as well as infringement of the obligation to state reasons inasmuch as the Civil Service Tribunal wrongly held that EPSO did not have the power to admit the persons concerned onto the list of candidates invited to submit a full application after the pre-selection phase.


title: Judgment of the Court (Sixth Chamber) of 16 January 2001 in Case C-40/98: Commission of the European Communities v Tecnologie Vetroresina SpA (TVR) (Arbitration clause — Non-performance of contract)

text:
C 161/4                   EN                      Official Journal of the European Communities                                           2.6.2001
e Penale di Genova (District Court, Genoa), Italy, for a                     the Commission — the Court (Sixth Chamber), composed of:
preliminary ruling in the proceedings pending before that                    C. Gulmann (Rapporteur), President of the Chamber,
court between Siples Srl, in lı̀quidation, and Ministero delle               J.-P. Puissochet and R. Schintgen, Judges; D. Ruiz-Jarabo
Finanze, Servizio della Riscossione dei Tributi — Concessione                Colomer, Advocate General; H.A. Rühl, Principal Adminis-
Provincia di Genova — San Paolo Riscossioni Genova SpA —                     trator, for the Registrar, has given a judgment on 16 January
on the interpretation of Article 244 of Council Regulation                   2001, in which it:
(EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code (OJ 1992 L 302, p. 1) — the Court                     1.    Orders Tecnologie Vetroresina SpA (TVR) to pay the Com-
(Fifth Chamber), composed of: A. La Pergola, President of the                      mission of the European Communities the sum of
Chamber, M. Wathelet, D.A.O. Edward, P. Jann (Rapporteur)                          EUR 211 307 , together with interest at the agreed rate from
and L. Sevón, Judges; D. Ruiz-Jarabo Colomer, Advocate                            21 December 1991 until the debt is paid in full;
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 11 January 2001, in which it has                     2.    Dismisses the remainder of the application;
ruled:
                                                                             3.    Orders Tecnologie Vetroresina SpA (TVR) to pay the costs.
Article 244 of Council Regulation (EEC) No 2913/92 of 12 October
1992 establishing the Community Customs Code is to be interpreted
as meaning that it confers the power to suspend implementation of a          (1) OJ C 137 of 2.5.1998.
contested decision exclusively on the customs authorities. However,
that provision does not limit the power of the judicial authorities
seised of a dispute pursuant to Article 243 of that regulation to order
such suspension in order to comply with their obligation to ensure
the full effectiveness of Community law.
(1) OJ C 246, 28.8.1999.
                                                                                JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                                                                                of 16 January 2001
                   JUDGMENT OF THE COURT                                     in Case C-41/98: Commission of the European Communi-
                                                                                ties v Tecnologie Vetroresina SpA (TVR) (1)
                           (Sixth Chamber)
                                                                                (Arbitration clause — Non-performance of contract)
                          of 16 January 2001
                                                                                (2001/C 161/08)
in Case C-40/98: Commission of the European Communi-
          ties v Tecnologie Vetroresina SpA (TVR) (1)
                                                                                (Language of the case: Italian)
     (Arbitration clause — Non-performance of contract)
                            (2001/C 161/07)                                  (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                      (Language of the case: Italian)
                                                                             In Case C-41/98: Commission of the European Communities
                                                                             (Agents: E. de March and A. Dal Ferro) v Teenologie Vetroresina
                                                                             SpA (TVR) (Agent: G. Merla) — application by the Commission
(Provisional translation; the definitive translation will be published       under Article 181 of the EC Treaty (now Article 238 EC) for
                     in the European Court Reports)                          an order requiring Tecnologie Vetroresina SpA, first, to
                                                                             reimburse an advance payment of ECU 77 558,80 made by
In Case C-40/98: Commission of the European Communities                      the Commission under Contract No BREU-0114-I(A), together
(Agents: E. de March and A. Dal Ferro) v Tecnologie Vetroresina              with interest at the agreed rate from 1 February 1990, and,
SpA (TVR) (Agent: G. Merla) — application by the Commission                  second, to pay damages of ECU 7 700 in respect of the harm
under Article 181 of the EC Treaty (now Article 238 EC)                      sustained by the Commission — the Court (Sixth Chamber),
against Tecnologie Vetroresina SpA for reimbursement of the                  composed of: C. Gulmann (Rapporteur), President of the
sum of ECU 211 307 advanced by the Commission under                          Chamber, J.-P. Puissochet and R. Schintgen, Judges; D. Ruiz-
Contract No 3440/1/0/187/91/6-BCR-I(30), together with                       Jarabo Colomer, Advocate General; H.A. Rühl, Principal
interest at the agreed rate from 21 December 1991, and                       Administrator, for the Registrar, has given a judgment on
damages of ECU 20 000 in respect of the harm sustained by                    16 January 2001, in which it:


title: Case C-426/05: Judgment of the Court (Second Chamber) of  21 February 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Tele2 Telecommunication GmbH v Telekom-Control-Kommission (Electronic communications — Networks and services — Common regulatory framework — Articles 4 and 16 of Directive 2002/21/EC (Framework Directive) — Appeals — Administrative market analysis procedure)

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/3

         Judgment of the Court (Second Chamber) of 21 February 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Tele2 Telecommunication GmbH v Telekom-Control-Kommission
   (Case C-426/05) (1)

   (Electronic communications - Networks and services - Common regulatory framework - Articles 4 and 16 of Directive 2002/21/EC (Framework Directive) - Appeals - Administrative market analysis procedure)
   (2008/C 92/04)
   Language of the case: German
   Referring court
   Verwaltungsgerichtshof
   Parties to the main proceedings

      Applicant: Tele2 Telecommunication GmbH

      Defendant: Telekom-Control-Kommission
   Re:
   Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Articles 4(1) and 16(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) — Market analysis proceedings — Meaning of person ‘affected’ or ‘concerned’ (‘betroffen’) — National legislation that only an undertaking to which the decision imposing, amending or withdrawing specific regulatory obligations is addressed has the capacity of ‘party affected’, to the exclusion of competitors
   Operative part of the judgment

               1)

               The terms user ‘affected’ or undertaking ‘affected’ for the purposes of Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and the term party ‘affected’ within the meaning of Article 16(3) of that directive must be interpreted as being applicable not only to an undertaking (formerly) having significant power on the relevant market which is subject to a decision of a national regulatory authority taken in the context of a market analysis procedure referred to in Article 16 of that directive and which is the addressee of that decision, but also to users and undertakings in competition with such an undertaking which are not themselves addressees of that decision but the rights of which are adversely affected by it;

               2)

               A provision of national law which, in the context of non-adversarial market analysis proceedings, grants party status only to undertakings (formerly) having significant power on the relevant market and in respect of which specific regulatory obligations are imposed, amended or withdrawn is not, in principle, contrary to Article 4 of Directive 2002/21. However, it is for the national court to ensure that national procedural law guarantees the safeguarding of the rights which users and undertakings in competition with an undertaking (formerly) having significant power on the relevant market derive from the Community legal order in a manner which is not less favourable than that in which comparable domestic rights are safeguarded and which does not prejudice the effectiveness of the legal protection of those users and undertakings guaranteed in Article 4 of Directive 2002/21.

      (1)  OJ C 22, 28.1.2006.