title: Case C-312/00 P: Appeal brought on 17 August 2000 by the Commission of the European Communities against the judgment delivered on 8 June 2000 by the Fourth Chamber of the Court of First Instance of the European Communities in Joined Cases T-79/96, T-260/97 and T-117/98 between, on the one hand, Camar srl, applicant in Cases T-79/96, T-260/97 and T-117/98, and Tico srl, applicant in Case T-117/98, the applicant in Case T-79/96 being supported by the Italian Republic, and, on the other hand, the Commission of the European Communities, defendant in Cases T-79/96, T-260/97 and T-117/98, and the Council of the European Union, defendant in Case T-260/97, supported by the French Republic, intervener in Cases T-79/96 and T-260/97

text:
21.10.2000              EN                      Official Journal of the European Communities                                      C 302/17
      ascertaining whether or not the contracts for the lease or           No 2100/94, using the variety in question or has at least
      sale of those quotas are lawful, that those originally               — otherwise — used that variety on his holding?
      allocated to the transferor were inaccurately determined,
      for reasons for which the authorities are not responsible?
                                                                           (1) OJ L 227 of 1.9.1994, p. 1.
                                                                           (2) OJ L 173 of 25.7.1995, p. 14.
(2) Are the abovementioned provisions of Community law
      valid, in the light of Article 33 (ex Article 39) of the
      Treaty, in so far as they do not provide, in the case
      of subsequent verification of the individual reference
      quantities leased or sold, for the possibility of retrospec-
      tive allocation of the quota, correcting the quantities
      incorrectly stated in the notices on account of facts for
      which the authorities are not responsible?                           Appeal brought on 17 August 2000 by the Commission
                                                                           of the European Communities against the judgment deliv-
                                                                           ered on 8 June 2000 by the Fourth Chamber of the Court
                                                                           of First Instance of the European Communities in Joined
                                                                           Cases T-79/96, T-260/97 and T-117/98 between, on the
(1) OJ L 405 of 31.12.1992, p. 1.                                          one hand, Camar srl, applicant in Cases T-79/96, T-260/97
(2) OJ L 57 of 10.3.1993, p. 12. The number of this Regulation has         and T-117/98, and Tico srl, applicant in Case T-117/98,
    been corrected, since it was incorrectly cited in the request for a    the applicant in Case T-79/96 being supported by the
    preliminary ruling.                                                    Italian Republic, and, on the other hand, the Commission
                                                                           of the European Communities, defendant in Cases
                                                                           T-79/96, T-260/97 and T-117/98, and the Council of the
                                                                           European Union, defendant in Case T-260/97, supported
                                                                           by the French Republic, intervener in Cases T-79/96 and
                                                                                T-260/97
                                                                                (Case C-312/00 P)
                                                                                (2000/C 302/34)
                                                                           An appeal against the judgment delivered on 8 June 2000 by
Reference for a preliminary ruling by the Oberlandesge-                    the Fourth Chamber of the Court of First Instance of the
richt Frankfurt am Main by order of 1 August 2000 in the                   European Communities in Joined Cases T-79/96, T-260/97
case of Christian Schulin v Saatgut-Treuhandverwaltungs                    and T-117/98 between, on the one hand, Camar srl, applicant
                               GmbH                                        in Cases T-79/96, T-260/97 and T-117/98, and Tico srl,
                                                                           applicant in Case T-117/98, the applicant in Case T-79/96
                                                                           being supported by the Italian Republic, and, on the other
                         (Case C-305/00)                                   hand, the Commission of the European Communities, defend-
                                                                           ant in Cases T-79/96, T-260/97 and T-117/98, and the Council
                                                                           of the European Union, defendant in Case T-260/97, supported
                         (2000/C 302/33)                                   by the French Republic, intervener in Cases T-79/96 and
                                                                           T-260/97, was brought before the Court of Justice of the
                                                                           European Communities on 17 August 2000 by the Com-
Reference has been made to the Court of Justice of the                     mission of the European Communities, represented by Chris-
European Communities by order of 1 August 2000 by the                      topher Van der Hauwaert and Luca Visaggio, of its Legal
Oberlandesgericht (Higher Regional Court) Frankfurt am Main,               Service, acting as Agents, assisted by Alberto Dal Ferro, of the
which was received at the Court Registry on 11 August 2000,                Vicenza Bar, with an address for service in Luxembourg at the
for a preliminary ruling in the case of Christian Schulin v                office of Carlos Gómez de la Cruz, of its Legal Service, Wagner
Saatgut-Treuhandverwaltungs GmbH on the following ques-                    Centre, Kirchberg.
tion:
                                                                           The appellant claims that the Court should:
                                                                           —     set aside the contested judgment;
Are the provisions of Article 14(3), sixth indent, of Council
Regulation (EC) No 2100/94 of 27 July 1994(1), in conjunc-
tion with Article 8 of Commission Regulation (EC)                          and consequently:
No 1768/95 of 24 July 1995 (2), to be construed as meaning
that the owner of a plant variety which is protected under                 —     declare the application in Case T-79/96 unfounded;
Regulation No 2100/94 can require any farmer to provide the
information specified in the above provisions irrespective of              —     declare the application in Case T-260/97 unfounded,
whether there is anything to suggest that the farmer has carried                 including the claim for compensation for damage suf-
out any act, within the meaning of Article 13(2) of Regulation                   fered;
 ---pagebreak--- C 302/18                EN                    Official Journal of the European Communities                                    21.10.2000
—     declare inadmissible, alternatively unfounded, the appli-          Appeal brought on 18 August 2000 by Zino Davidoff SA
      cation in Case T-117/98;                                           and Davidoff & Cie SA against the judgment delivered on
                                                                         27 June 2000 by the Third Chamber of the Court of First
—     order the respondents to pay the costs of the present              Instance of the European Communities in Joined Cases
      proceedings and those of the proceedings before the                T-172/98 and T-175/98 to T-177/98 between Salamander
      Court of First Instance.                                           AG, Una Film ‘City Revue’ GmbH, Alma Media Group
                                                                         Advertising SA & Co. Partnership and Others, Zino
                                                                         Davidoff SA and Davidoff & Cie SA, supported by
                                                                         Markenverband eV, Manifattura Lane Gaetano Marzotto
Pleas in law and main arguments                                          & Figli SpA and Lancaster BV, and European Parliament
                                                                         and Council of the European Union, supported by Repub-
The first plea alleges infringement by the Court of First Instance       lic of Finland, Commission of the European Communities,
                                                                         United Kingdom of Great Britain and Northern Ireland
of the criteria governing the admissibility of the action in Case
                                                                                and French Republic
T-117/98. The measure which, it is claimed, the Commission
should have adopted, namely a regulation increasing the
Community quota for imports of bananas from third countries
or ACP countries, would necessarily have been a measure of                                      (Case C-313/00 P)
general, abstract application which could not have been
regarded as being of individual concern to the respondents.
                                                                                (2000/C 302/35)
The second plea alleges infringement of two of the conditions
governing the applicability of Regulation No 404/93 (1):
                                                                         An appeal against the judgment delivered on 27 June 2000 by
      The first part of the plea concerns the first condition laid       the Third Chamber of the Court of First Instance of the
                                                                         European Communities in Joined Cases T-172/98 and
      down by Article 30, namely that the difficulties facing an
                                                                         T-175/98 to T-177/98 between Salamander AG, Una Film
      operator must result from the transition from the old
      national regime to the new Community regime. The                   ‘City Revue’ GmbH, Alma Media Group Advertising SA & Co.
                                                                         Partnership and Others, Zino Davidoff SA and Davidoff &
      judgment infringed Community law, inasmuch as it did
                                                                         Cie SA, supported by Markenverband eV, Manifattura Lane
      not contain any analysis of the specific effects on the
      position of an applicant under the old regime which was            Gaetano Marzotto & Figli SpA and Lancaster BV, and European
                                                                         Parliament and Council of the European Union, supported by
      aimed at establishing whether the national regime would
                                                                         Republic of Finland, Commission of the European Communi-
      have guaranteed a solution to the difficulties facing such
      an applicant.                                                      ties, United Kingdom of Great Britain and Northern Ireland
                                                                         and French Republic, was brought before the Court of Justice
                                                                         of the European Communities on 18 August 2000 by Zino
      The second part concerns the criterion of the existence of         Davidoff SA and Davidoff & Cie SA, represented by Professor
      ‘difficulties threatening the existence of the undertaking’.       Rolf Wägenbaur, of the Brussels Bar, with an address for service
      The Court of First Instance expressly ruled that that              in Luxembourg at the Chambers of Arendt & Medernach,
      criterion was not a condition necessary for the application        8-10 Rue Mathias Hardt, B.P. 39, L-2010 Luxembourg.
      of Article 30, thereby violating the Community case-law
      in force, as observed by the Commission.
                                                                         The appellants claims that the Court should:
The third plea alleges infringement of one of the criteria
governing the applicability of Article 16(3) of Regulation
No 404/93, namely the need for the existence of difficulties in          1.    Set aside the judgment of the Court of First Instance of
supplying the Community. By declaring that ‘there is no need                   27 June 2000, in so far as it relates to the applicants and
for the applicants to prove the existence of an actual shortage                appellants, and reject the plea of inadmissibility;
of supplies to the Community market; instead, it is enough for
them to show that there is a risk of a shortage of supplies’, the
Court of First Instance contravened the letter and the spirit of
                                                                         2.    Consequently, declare the application of the applicants
the article in question, as interpreted by Community case-law
                                                                               and appellants admissible;
up until the present time. Moreover, the Court of First Instance
committed an error of law by maintaining, without providing
any reasons, that, where supplies to the Italian market alone
are affected, that must automatically affect supplies to the             3.    Uphold the application and consequently annul Directive
Community, thereby isolating a part of the Community                           98/43/EC of the European Parliament and of the Council
market.                                                                        of 6 July 1998 on the approximation of the laws,
                                                                               regulations and administrative provisions of the Member
                                                                               States relating to the advertising and sponsorship of
                                                                               tobacco products (OJ 1998 L 213, p. 9), at least in so far
(1) OJ L 47 of 25.2.1993, p. 1.
                                                                               as it prohibits or hinders sponsorship and advertising
                                                                               relating to brand names which were used before 30 July
                                                                               1998 for the advertising of products other than tobacco
                                                                               products;


title: Case C-336/15: Request for a preliminary ruling from the Arbetsdomstolen (Sweden) lodged on 6 July 2015 — Unionen v Almega Tjänsteförbunden, ISS Facility Services AB

text:
               21.9.2015

               EN

               Official Journal of the European Union

               C 311/29

         Request for a preliminary ruling from the Arbetsdomstolen (Sweden) lodged on 6 July 2015 — Unionen v Almega Tjänsteförbunden, ISS Facility Services AB
   (Case C-336/15)
   (2015/C 311/34)
   Language of the case: Swedish

      Referring court

   Arbetsdomstolen

      Parties to the main proceedings

      Applicant: Unionen

      Defendants: Almega Tjänsteförbunden, ISS Facility Services AB

      Question referred

   Is it compatible with the Transfer of Undertakings Directive (1), after a year has elapsed following the transfer of an undertaking, on application of a provision in the transferee’s collective agreement which means that, where a certain contiguous length of service with a single employer is a condition for an extended notice period to be granted, not to take account of the length of service with the transferor, when the employees, under an identical provision in the collective agreement which applied to the transferor, had the right to have that length of service taken into account?

      (1)  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).


title: Case T-487/07: Action brought on 21 December 2007 — Imperial Chemical Industries v OHIM (FACTORY FINISH)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/58

         Action brought on 21 December 2007 — Imperial Chemical Industries v OHIM (FACTORY FINISH)
   (Case T-487/07)
   (2008/C 51/106)
   Language of the case: English
   Parties

      Applicant: Imperial Chemical Industries (ICI) plc (London, United Kingdom) (represented by: S. Malynicz, Barrister)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               The decision of the Fourth Board of Appeal dated 24 October 2007 in Case R 668/2007-4 shall be annulled.

               —

               The Office shall bear its own costs and pay those of the applicant.

         Pleas in law and main arguments

      Community trade mark concerned: The word mark ‘FACTORY FINISH’ for goods in class 2 — application No 4 538 518

      Decision of the examiner: Refusal of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Violation of Article 7(1)(c) of Council Regulation No 40/94, as ‘FACTORY FINISH’ is not descriptive, but an unusual juxtaposition of words resulting in a lexical invention, and violation of Article 7(1)(b) of Council Regulation No 40/94, as the mark applied for is not devoid of distinctive character.


title: Case T-157/10: Action brought on 8 April 2010 — Barilla v OHIM — Brauerei Schlösser (ALIXIR)

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/47

         Action brought on 8 April 2010 — Barilla v OHIM — Brauerei Schlösser (ALIXIR)
   (Case T-157/10)
   2010/C 148/76
   Language in which the application was lodged: English

      Parties

      Applicant: Barilla G. e R. Fratelli SpA (Parma, Italy) (represented by: A. Colmano, G. Sironi and A. Vanzetti, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Brauerei Schlösser GmbH (Düsseldorf, Germany)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 January 2010 in case R 820/2009-2;

               —

               Dismiss the opposition filed by the other party to the proceedings before the Board of Appeal against the registration of the Community trade mark concerned;

               —

               Alternatively, remit the case to the defendant so that it may dismiss the opposition; and

               —

               Order the defendant and the other party to the proceedings before the Board of Appeal to pay the costs incurred in these proceedings.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark “ALIXIR”, for goods, among others, in class 32

      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: German trade mark registration of the word mark “Elixeer”, for goods in class 32

      Decision of the Opposition Division: Upheld the opposition in its entirety

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009 as the Board of Appeal wrongly found that there was a likelihood of confusion between the trade marks concerned.


title: Case C-127/05: Judgment of the Court (Third Chamber) of 14 June 2007 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Social policy — Protection of the safety and health of workers — Directive 89/391/EEC — Article 5(1) — Employer's duty to ensure the safety and health of workers in every aspect related to the work — Employer's liability)

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/3

         Judgment of the Court (Third Chamber) of 14 June 2007 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
   (Case C-127/05) (1)

   (Failure of a Member State to fulfil obligations - Social policy - Protection of the safety and health of workers - Directive 89/391/EEC - Article 5(1) - Employer's duty to ensure the safety and health of workers in every aspect related to the work - Employer's liability)
   (2007/C 183/03)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: M.-J. Jonczy and N. Yerrell, Agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: C. Gibbs, Agent, D. Anderson, QC, and D. Barr, Barrister)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Article 5(1) and (4) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1) — National legislation restricting the duty on employers to ensure the safety and health of workers in every aspect related to work
   Operative part of the judgment

               1.

               Dismisses the action;

               2.

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

      (1)  OJ C 143, 11.6.2005.


title: Case T-390/10 P: Judgment of the General Court of 6 December 2012 — Füller-Tomlinson v European Parliament (Appeal — Public service — Members of the temporary staff — Social security — Occupational disease — Fixing of the proportion of invalidity attributable to occupational disease — Application of the European Guide for Assessment, for medical purposes, of Physical and Mental Impairments — Distortion of the facts — Reasonable time-limit)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/40

         Judgment of the General Court of 6 December 2012 — Füller-Tomlinson v European Parliament
   (Case T-390/10 P) (1)

   (Appeal - Public service - Members of the temporary staff - Social security - Occupational disease - Fixing of the proportion of invalidity attributable to occupational disease - Application of the European Guide for Assessment, for medical purposes, of Physical and Mental Impairments - Distortion of the facts - Reasonable time-limit)
   2013/C 26/76
   Language of the case: French

      Parties

      Appellant: Paulette Füller-Tomlinson (Brussels, Belgium) (represented by: L. Levi, lawyer)

      Other party to the proceedings: European Parliament (represented by: K. Zejdová and S. Seyr, acting as Agents)

      Re:

   Appeal against the judgment of the European Civil Service Tribunal (Third Chamber) of 1 July 2010 in Case F-97/08 Füller-Tomlinson v European Parliament [2010] ECR-SC I-A-1-0000 and II-A-1-0000 seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Paulette Füller-Tomlinson to bear her own costs and to pay those incurred by the European Parliament in the course of the present proceedings.

      (1)  OJ C 301, 6.11.2010.


title: Case T-370/14: Action brought on 23 May 2014 — Petropars and Others v Council

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/33

         Action brought on 23 May 2014 — Petropars and Others v Council
   (Case T-370/14)
   2014/C 261/58
   Language of the case: English

      Parties

      Applicants: Petropars Ltd (Teheran, Iran); Petropars International FZE (Dubai, United Arab Emirates); and Petropars UK Ltd (London, United Kingdom) (represented by: S. Zaiwalla, P. Reddy and Z. Burbeza, Solicitors, and R. Blakeley, Barrister)

      Defendant: Council of the European Union

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the March 2014 Decision;

               —

               annul the March 2014 Notice insofar as it applies to the applicants; and

               —

               order the Council to pay the applicants’ costs of this application.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the criteria for listing set out in Article 23(2)(d) of Regulation No 267/2012 (1) or Article 20(1)(c) of Decision 2010/413 (2) are not satisfied and that the Council committed a manifest error of assessment in determining that the criteria were met and remain met because the applicants are not owned or controlled by the National Iranian Oil Company (NIOC).

               2.

               Second plea in law, alleging that the criteria for listing are not met because the Council has not proved that NIOC financially supports the Iranian government.

               3.

               Third plea in law, alleging that the maintenance of the designation of the applicants is in any event in violation of their fundamental rights and freedoms, including their right to trade and to carry out their businesses and to peaceful enjoyment of their possessions and/or is in violation of the principle of proportionality. The applicants further allege that the continued listing represents a breach of the precautionary principle and of the principles of environmental protection and the protection of human health and safety, as it is likely to cause significant damage to the health and safety of ordinary Iranian workers and the environment.

               4.

               Fourth plea in law, alleging that the Council breached the applicants’ rights of defence by failing to conduct a full and adequate review of the applicants’ designation and properly to consider the observations presented to it.

      (1)  Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).

      (2)  Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39).


title: Case T-342/06: Order of the Court of First Instance of 17 June 2008 — Angiotech Pharmaceuticals v OHIM (VASCULAR WRAP)

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/36

         Order of the Court of First Instance of 17 June 2008 — Angiotech Pharmaceuticals v OHIM (VASCULAR WRAP)
   (Case T-342/06) (1)

   (2008/C 197/68)

      Language of the case: English

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

      (1)  OJ C 326, 30.12.2006.


title: Case C-610/14: Request for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 29 December 2014  — Helena Kolcunová v Provident Financial s. r. o.

text:
               13.4.2015

               EN

               Official Journal of the European Union

               C 118/13

         Request for a preliminary ruling from the Okresný súd Prešov (Slovakia) lodged on 29 December 2014 — Helena Kolcunová v Provident Financial s. r. o.
   (Case C-610/14)
   (2015/C 118/17)
   Language of the case: Slovak

      Referring court

   Okresný súd Prešov

      Parties to the main proceedings

      Applicant: Helena Kolcunová

      Defendant: Provident Financial s. r. o.

      Questions referred

               1.

               Must Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘Directive 93/13’) be interpreted as meaning that a service of ensuring the repayment of a consumer credit, the object of which is the cash acceptance of repayment instalments of the credit made by the consumer, constitutes the main subject-matter of performance in the case of a consumer credit or is it rather the main subject-matter of a specific contract?

               2.

               Must Council Directive 87/102/EEC (2) of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, as amended and supplemented by Directive 98/7/EC (3) of the European Parliament and of the Council of 16 February 1998, be interpreted as meaning that the APR includes also a payment for cash acceptance of repayment instalments of the credit, or part of it, if the payment substantially exceeds the unavoidable costs of that ancillary service, and must Article 14 of that directive be interpreted as meaning that it is a circumvention of the concept of APR if the payment for an ancillary service substantially exceeds the costs of the ancillary service and the payment is not included in the APR?

               3.

               Must Directive 93/13 be interpreted as meaning that it suffices, to satisfy the requirement of transparency of an ancillary service (assuming that it is an ancillary service and not the price or the payment for that credit) for which an administrative charge is paid, that the price of that administrative service (the administrative charge) is plain and intelligible, even if the object of performance of that administrative service is not defined?

               4.

               Must Article 4(1) of Directive 93/13 be interpreted as meaning that the mere fact that an administrative charge is included in the calculation of the APR signifies that this constitutes the price or payment of the credit and therefore precludes the court from exercising a power of review of such an administrative charge for the purposes of that directive?

               5.

               If the answer to Question 3 is that the object of the administrative service for which an administrative charge is to be paid is sufficiently transparent, in such a case does the administrative service, with all administrative work and functions coming into consideration, constitute the main subject-matter of the consumer credit?

               6.

               Must Article 4(2) of Directive 93/13 be interpreted as meaning that, for the purposes of that directive, the payment or price of the credit covers not only the interest but also the creditor’s charges (whether agreed to in the contract, in the general terms of sale or as part of the fees) and that no review can therefore be carried out of the proportionality of those charges in relation to the service provided for in return, because those charges constitute the payment or price of the credit?

      (1)  OJ 1993 L 95, p. 29.

      (2)  OJ 1987 L 42, p. 48.

      (3)  OJ 1998 L 101, p. 17.


title: Case C-203/15: Request for a preliminary ruling from the Kammarrätten i Stockholm (Sweden) lodged on 4 May 2015 — Tele2 Sverige AB v Post- och telestyrelsen

text:
               6.7.2015

               EN

               Official Journal of the European Union

               C 221/5

         Request for a preliminary ruling from the Kammarrätten i Stockholm (Sweden) lodged on 4 May 2015 — Tele2 Sverige AB v Post- och telestyrelsen
   (Case C-203/15)
   (2015/C 221/06)
   Language of the case: Swedish

      Referring court

   Kammarrätten i Stockholm

      Parties to the main proceedings

      Applicant: Tele2 Sverige AB

      Defendant: Post- och telestyrelsen

      Questions referred

               1)

               Is a general obligation to retain traffic data covering all persons, all means of electronic communication and all traffic data without any distinctions, limitations or exceptions for the purpose of combating crime (as described [below under points 1-6]) compatible with Article 15(1) of Directive 2002/58/EC (1), taking account of Articles 7, 8 and 15(1) of the Charter?

               2)

               If the answer to question 1 is in the negative, may the retention nevertheless be permitted where:

                           a)

                           access by the national authorities to the retained data is determined as [described below under paragraphs 7-24], and

                           b)

                           security requirements are regulated as [described below under paragraphs 26-31], and

                           c)

                           all relevant data are to be retained for six months, calculated as from the day the communication is ended, and subsequently deleted as [described below under paragraphs 25]?

      (1)  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37).


title: Case C-492/12: Reference for a preliminary ruling from the Conseil d’État (France) lodged on 5 November 2012 — Conseil national de l’ordre des médecins v Ministère des affaires sociales et de la santé

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/24

         Reference for a preliminary ruling from the Conseil d’État (France) lodged on 5 November 2012 — Conseil national de l’ordre des médecins v Ministère des affaires sociales et de la santé
   (Case C-492/12)
   2013/C 26/47
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Conseil national de l’ordre des médecins

      Defendant: Ministère des affaires sociales et de la santé

      Questions referred

               1.

               Does the specificity requirement for the profession of dental practitioner, laid down by Article 36 of Directive 2005/36/EC, (1) prevent the creation of a postgraduate university training course leading to a qualification which is common to medical students and dental students?

               2.

               Must the provisions of the Directive on specialties related to medicine be construed as meaning that disciplines such as those listed in point 3 of this decision (2) may not be included in a dental training course?

      (1)  Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).

      (2)  Namely, on the one hand, theoretical training in oral surgery including in particular training in surgery on the periapex and on odontogenic and non-odontogenic cysts of the jaws, pre-prosthetic and implant surgery, the study of benign tumour conditions, salivary conditions and orthodontic-surgical and orthognathic treatment, and on the other, practical training lasting at least three semesters in a specialist dentistry department and three semesters in a specialist maxillofacial department.


title: Case C-245/16: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy) lodged on 28 April 2016 — Nerea SpA v Regione Marche

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/13

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per le Marche (Italy) lodged on 28 April 2016 — Nerea SpA v Regione Marche
   (Case C-245/16)
   (2016/C 279/18)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per le Marche

      Parties to the main proceedings

      Applicant: Nerea SpA

      Defendant: Regione Marche

      Questions referred

               1.

               First of all, does Article 1(7)(c) of Regulation No 800/2008 (1) concern only those procedures that may be opened by administrative or judicial authorities of the Member States of their own motion (in Italy, for example, insolvency procedures) or does it also concern procedures that may be opened only at the request of the economic operator concerned (as is the case in the national law for an arrangement with creditors)? The question arises because the provision refers to ‘being the subject of’ collective insolvency proceedings.

               2.

               If were to be concluded that Regulation No 800/2008 concerns all collective proceedings, then, with specific reference to the instrument of an arrangement with creditors as a going concern under Article 186a of Royal Decree No 267/1942, must Article 1(7)(c) of Regulation No 800/2008 be interpreted as meaning that the mere fact that the requirements for opening collective proceedings exist in relation to an operator who applies for assistance from the structural funds prevents such financing being granted, or requires the administering national authority to withdraw the financing already granted or, on the contrary, that the situation of difficulty must be appraised in the specific case, bearing in mind, for instance, the timing of the procedure, the economic operator’s honouring of the undertakings given and any other relevant factor?

      (1)  Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General block exemption Regulation) (OJ 2008 L 214, p. 3).


title: Order of the Court of First Instance of 18 November 2003 In Case T-383/02, G.D. Searle LLC against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Application for a declaration of invalidity — Relative ground for invalidity — Amicable settlement — No need to adjudicate)

text:
20.3.2004               EN                         Official Journal of the European Union                                          C 71/29
       ORDER OF THE COURT OF FIRST INSTANCE                                ORDER OF THE PRESIDENT OF THE COURT OF FIRST
                                                                                INSTANCE
                      of 18 November 2003                                                         of 28 November 2003
                                                                           in Case T-200/03 R: V v Commission of the European
                                                                                Communities
In Case T-383/02, G.D. Searle LLC against Office for
Harmonisation in the Internal Market (Trade Marks and
                       Designs) (OHIM) (1)                                 (Application for interim relief — Application for stay of
                                                                           execution — Dismissal for inadequate performance —
                                                                                Urgency)
(Community trade mark — Application for a declaration of                                               (2004/C 71/55)
invalidity — Relative ground for invalidity — Amicable
              settlement — No need to adjudicate)
                                                                                (Language of the case: French)
                           (2004/C 71/54)
                                                                           In Case T-200/03 R: V, an official of the defendant, residing in
                                                                           Overijse (Belgium), represented by C. Mourato, lawyer, against
                                                                           the Commission of the European Communities (Agent: J. Cur-
                   (Language of the case: English)                         rall) — application for stay of execution of the Commission’s
                                                                           decision of 10 March 2003 to dismiss the applicant due to
                                                                           inadequate performance — the President of the Court of First
                                                                           Instance made an order on 28 November 2003, the operative
                                                                           part of which is as follows:
                                                                           1.     The application for interim relief is dismissed.
In Case T-383/02, G.D. Searle LLC, established in Skokie,
Illinois (United States of America), represented by W.A. Hoyng,
lawyer, against Office for Harmonisation in the Internal Market            2.     Costs are reserved.
(Trade Marks and Designs) (OHIM), (Agents: G. Schneider and
T. Eichenberg), the intervener before the Court of First
Instance being Phyto-Esp SL, established in Saragossa (Spain),
represented by S.H. Poelmann-Teijgeler, lawyer: Action
brought against the decision of the First Board of Appeal of
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 1 October 2002 (Case R 627/2001-1)                   ORDER OF THE PRESIDENT OF THE COURT OF FIRST
relating to proceedings between G.D. Searle LLC and Phyto-                                               INSTANCE
Esp SL for a declaration of invalidity, the Court of First Instance
(First Chamber), composed of: B. Vesterdorf, President, P. Men-                                   of 25 November 2003
gozzi and M.E. Martins Ribeiro, Judges; H. Jung, Registrar, has
made an order on 18 November 2003, the operative part of                   in Case T-339/03 R: Gabrielle Clotuche v Commission of
which is as follows:                                                                           the European Communities
                                                                           (Application for interim relief — Officials — Decision
1.    There is no need to adjudicate.                                      reassigning the applicant to the post of Principal Adviser —
                                                                                Urgency — None)
2.    The applicant shall pay its own costs and those incurred by                                      (2004/C 71/56)
      OHIM.
                                                                                (Language of the case: French)
3.    The intervener shall pay its own costs.
                                                                           In Case T-339/03 R: Gabrielle Clotuche, official of the
                                                                           Commission of the European Communities, residing in Brus-
(1) OJ C 44 of 22.2.2003.                                                  sels (Belgium), represented by P.-P. Van Gehuchten, G. Demez
                                                                           and J. Sambon, lawyers, with an address for service in
                                                                           Luxembourg, against the Commission of the European Com-
                                                                           munities (Agents: J. Currall and H. Kraemer) — application,
                                                                           first, for stay of execution of the decision of 9 July 2003 to


title: Case T-66/15: Order of the General Court of 9 September 2015 — Alsharghawi v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in Libya — Action for failure to act — Council’s position — Subject-matter of the action ceasing to exist — No need to adjudicate)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/41

         Order of the General Court of 9 September 2015 — Alsharghawi v Council
   (Case T-66/15) (1)

   ((Common foreign and security policy - Restrictive measures taken in view of the situation in Libya - Action for failure to act - Council’s position - Subject-matter of the action ceasing to exist - No need to adjudicate))
   (2015/C 381/49)
   Language of the case: French

      Parties

      Applicant: Bashir Saleh Bashir Alsharghawi (Johannesburg (South Africa) (represented by: E. Moutet, lawyer)

      Defendant: Council of the European Union (represented by: V. Piessevaux and A. Vitro, acting as Agents)

      Re:

   Declare, on the basis of Article 265 TFEU, that the Council unlawfully refrained from re-examining its decision to include the applicant’s name on the list of persons and entities covered by the restrictive measures taken in view of the situation in Libya.

      Operative part of the order

               1.

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

               2.

               The Council of the European Union shall pay the costs.

      (1)  OJ C 146, 4.5.2015.


title: Case C-313/09: Order of the President of the Court of 15 January 2010 — European Commission v Republic of Austria

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/34

         Order of the President of the Court of 15 January 2010 — European Commission v Republic of Austria
   (Case C-313/09) (1)

   2010/C 100/50

      Language of the case: German

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

      (1)  OJ C 256, 24.10.2009.


title: Case T-301/07: Action brought on 5 August 2007 — Lumenis v OHIM (FACES)

text:
               20.10.2007

               EN

               Official Journal of the European Union

               C 247/35

         Action brought on 5 August 2007 — Lumenis v OHIM (FACES)
   (Case T-301/07)
   (2007/C 247/58)
   Language of the case: English
   Parties

      Applicant: Lumenis Ltd (Yokneam, Israel) (represented by: S. Malynicz, Barrister, B. Gerber, Solicitor)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               The decision of the Second Board of Appeal dated 1 June 2007 in Case R 1532/2006-2 shall be annulled;

               —

               the Office shall bear its own costs and pay those of the applicant.

         Pleas in law and main arguments

      Community trade mark concerned: The international word mark ‘FACES’ for goods in class 10 — International registration No W0874799

      Decision of the examiner: Refused registration in whole

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: In support of its claims, the applicant advances the following grounds:
   First, the applicant claims that the Board failed to analyse distinctiveness in relation to all the goods applied for;
   Second, according to the applicant, the Board's finding that promotion and marketing in the trade commonly employs facial photographs was unsupported and, in any event, relevant, if at all, to Article 7(1)(b) or Article 7(1)(c);
   Third, the applicant contends that the Board failed to analyse the aptness of the term FACES as a descriptive indication in relation to the goods concerned;
   Fourth, the applicant submits that the Board committed an error of law by imposing a requirement that the mark be striking, imaginative or creative in order to avoid the objections under Article 7(1)(b) CTMR.


title: Case T-308/03: Action brought on 8 September 2003 by Valérie Wiame against the Commission of the European Communities

text:
C 264/38              EN                         Official Journal of the European Union                                        1.11.2003
The applicant claims that the Court should:                              Action brought on 8 September 2003 by Valérie Wiame
                                                                           against the Commission of the European Communities
—     annul the Decision of the Fourth Board of Appeal of the                                    (Case T-308/03)
      Office for Harmonisation in the Internal Market (Trade
      Marks and Designs) in Case R 52/2002-4 of 12 May
      2003 in so far as paragraph 2 of the decision dismisses                                    (2003/C 264/67)
      the appeal for the goods ‘jewellery’ and ‘bags for sports
      equipment, suitable for carrying objects’;                                            (Language of the case: French)
—     order the defendant to pay the costs.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 8 September 2003 by Valérie
                                                                         Wiame, residing in Enghien (Belgium), represented by S. Orlan-
                                                                         di, A. Coolen, J. Louis and E. Marchal, lawyers, with an address
                                                                         for service in Luxembourg.
Pleas in law and main arguments
                                                                         The applicant claims that the Court of First Instance should:
                                                                         —     Annul the Commission’s decision of 22 July 2002 laying
Applicant for Com-           Kaufring AG                                       down the detailed rules for the engagement of the
munity trade mark:                                                             applicant as a member of the temporary staff on the
                                                                               ground that the contract was unlawfully based on
                                                                               Article 2(b) of the Conditions of Employment of Other
Community trade mark         Figurative mark ‘UNICA’ inter alia                Servants of the European Communities for a fixed period
sought:                      for goods in Classes 14, 22, 23, 24               from 1 July 2002 to 31 March 2003 inclusive;
                             and 28 — Application No 41244
                                                                         —     Order the defendant to pay the costs.
Proprietor of mark or        The applicant
sign cited in the oppo-
sition proceedings:                                                      Pleas in law and main arguments
Mark or sign cited in        German word mark ‘UNI CAT’                  The applicant worked for the Commission as a member of its
opposition:                  (No 2070 215 for goods in                   temporary staff until 31 March 2002. The applicant states
                             Class 25 (clothing, head cover-             that, in the light of specific assurances from her superiors as
                             ings)                                       to the renewal of her contract, she continued to perform the
                                                                         permanent duties assigned to her in the European public
                                                                         service from 1 April 2002 to 30 June 2002. On 22 July 2002,
Decision of the Oppo-        Partial rejection of the opposition         the Commission drew up a new contract as a member of the
sition Division:                                                         temporary staff for the period from 1 July 2002 to 31 March
                                                                         2003 inclusive. That contract was based on Article 2(b) of the
                                                                         Conditions of Employment of Other Servants of the European
Decision of the Board of     Annulment of the Decision in                Communities (‘the Conditions’).
Appeal:                      relation to ‘artificial textile fibres’
                             (Class 22) and ‘yarns and threads,
                             for textile use’ (Class 23). For the        As a result of the applicant’s complaint, the Commission paid
                             rest, dismissal of the applicant’s          her a sum equal to three months’ basic salary by way of
                             appeal                                      compensation, but refused to give her a contract for an
                                                                         indefinite period pursuant to Article 2(a) of the Conditions.
Pleas in law:                Infringement of Article 8(1)(b) of
                             Regulation (EC) No 40/94                    In support of her application the applicant alleges breach of
                                                                         Articles 2 and 8 of the Conditions, breach of the principle of
                                                                         legitimate expectations and breach of the duty to have regard
                                                                         for the welfare of officials.


title: Case T-254/13: Action brought on 6 May 2013 — Stayer Ibérica/OHIM — Korporaciya Masternet (STAYER)

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/40

         Action brought on 6 May 2013 — Stayer Ibérica/OHIM — Korporaciya ‘Masternet’ (STAYER)
   (Case T-254/13)
   2013/C 207/68
   Language in which the application was lodged: English

      Parties

      Applicant: Stayer Ibérica, SA (Pinto, Spain) (represented by: S. Rizzo, lawyer)

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

      Other party to the proceedings before the Board of Appeal: ZAO Korporaciya ‘Masternet’ (Moscow, Russia)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision in so far as it upholds the appeal in part and declares the CTM registration No 4675881 invalid for the following goods:

                           —

                           Class 7: Equipment and tools; parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries; marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of equipment included in Class 7.

                           —

                           Class 8: Hand held abrasive items (wheels and grinding wheels).

               —

               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 figurative mark ‘STAYER’ — Community trade mark registration No 4 675 881

      Proprietor of the Community trade mark: The applicant

      Applicant for the declaration of invalidity of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Grounds for the application for a declaration of invalidity: The grounds for the request for a declaration of invalidity were those of Article 53(1)(a) in conjunction with Article 8(1)(b) of Council Regulation No 207/2009

      Decision of the Cancellation Division: Rejected the request for invalidity in its entirety

      Decision of the Board of Appeal: Partially upheld the appeal.

      Pleas in law: Infringement of Articles 76(2), 15 and 8(1)(b) of Council Regulation No 207/2009.


title: Case C-464/14: Judgment of the Court (Fifth Chamber) of 24 November 2016 (request for a preliminary ruling from the Tribunal Tributário de Lisboa — Portugal) — SECIL — Companhia Geral de Cal e Cimento SA v Fazenda Pública (Reference for a preliminary ruling — Free movement of capital — Articles 63 to 65 TFEU — EC-Tunisia Association Agreement — Articles 31, 34 and 89 — EC-Lebanon Association Agreement — Articles 31, 33 and 85 — Corporation tax — Dividends received by a company established in the Member State of the beneficiary company — Dividends received from a company established in a non-member State which is party to the association agreement — Difference of treatment — Restriction — Justification — Efficacy of fiscal supervision — Possibility of relying on Article 64 TFEU in relation to the EC-Tunisia and EC-Lebanon association agreements)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/5

         Judgment of the Court (Fifth Chamber) of 24 November 2016 (request for a preliminary ruling from the Tribunal Tributário de Lisboa — Portugal) — SECIL — Companhia Geral de Cal e Cimento SA v Fazenda Pública
   (Case C-464/14) (1)

   ((Reference for a preliminary ruling - Free movement of capital - Articles 63 to 65 TFEU - EC-Tunisia Association Agreement - Articles 31, 34 and 89 - EC-Lebanon Association Agreement - Articles 31, 33 and 85 - Corporation tax - Dividends received by a company established in the Member State of the beneficiary company - Dividends received from a company established in a non-member State which is party to the association agreement - Difference of treatment - Restriction - Justification - Efficacy of fiscal supervision - Possibility of relying on Article 64 TFEU in relation to the EC-Tunisia and EC-Lebanon association agreements))
   (2017/C 030/05)
   Language of the case: Portuguese

      Referring court

   Tribunal Tributário de Lisboa

      Parties to the main proceedings

      Applicant: SECIL — Companhia Geral de Cal e Cimento SA

      Defendant: Fazenda Pública

      Operative part of the judgment

               1.

               Articles 63 and 65 TFEU must be interpreted as meaning that:

                           —

                           a company established in Portugal which receives dividends from companies established in Tunisia and Lebanon respectively may rely on Article 63 TFEU in order to challenge the tax treatment of dividends in that Member State based on legislation which is not intended to apply exclusively to situations in which the beneficiary company has a decisive influence on the distributing company;

                           —

                           legislation such as that at issue in the main proceedings, according to which a company which is a resident of a Member State may deduct in full or in part, from its taxable amount, dividends received where the dividends are distributed by a company which is resident in the same Member State, but cannot make such a deduction where the distributing company is resident in a non-member State, constitutes a restriction on the movement of capital between Member States and non-member States which is in principle prohibited by Article 63 TFEU;

                           —

                           the refusal to grant a full or partial deduction from the taxable amount in respect of the dividends received, pursuant to Article 46(1) and (8) of the Código do Imposto sobre o Rendimento das Pessoas Coletivas (Corporation Tax Code), in the version in force in 2009, may be justified by overriding reasons in the public interest based on the need to ensure the effectiveness of fiscal supervision where it proves impossible, for the tax authorities of the Member State in which the beneficiary company is resident, to obtain information from the non-member State in which the company distributing those dividends is resident, allowing those authorities to verify whether the condition that the latter company be subject to tax is satisfied;

                           —

                           the refusal to grant a partial deduction in accordance with Article 46(11) of the Corporation Tax Code, in that version, cannot be justified by overriding reasons in the general interest based on the need to ensure the effectiveness of fiscal supervision where that provision may be applied to situations in which the tax liability of the distributing company in the State in which it is resident cannot be verified, a matter which it is for the referring court to determine.

               2.

               Article 64(1) TFEU must be interpreted as meaning that:

                           —

                           in so far as the adoption of the tax benefit scheme for contractual investments established in Article 41(5)(b) of the Estatuto dos Beneficios Fiscais (Tax Advantages Scheme), in the version in force in 2009 and the scheme provided for in Article 42 of that law for dividends from the Portuguese-speaking African Countries and Timor-Leste, have not changed the legal framework for the tax treatment of dividends from Tunisia and Lebanon, the adoption of those schemes has not affected the classification, as an existing restriction, of the exclusion of dividends paid by companies established in those non-member States countries from the possibility of benefiting from a full or partial deduction;

                           —

                           a Member State waives the power provided for in Article 64(1) TFEU where, without formally repealing or amending the existing rules, it concludes an international agreement, such as an association agreement, which provides, in a provision with direct effect, for a liberalisation of a category of capital referred to in Article 64(1) TFEU; such a change in the legal framework must therefore be deemed to amount, in its effects on the possibility of invoking Article 64(1) TFEU, to the introduction of new legislation, based on a logic different from that of the existing legislation.

               3.

               Article 34(1) of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, signed in Brussels on 17 July 1995 and approved on behalf of the European Community and the European Coal and Steel Community by Decision 98/238/EC, ECSC of the Council and of the Commission of 26 January 1998, must be interpreted as meaning that:

                           —

                           it has direct effect and may be relied on in a situation such as that at issue in the main proceedings in which a company resident in Portugal receives dividends from a company resident in Tunisia as a result of the direct investment which it has made in the distributing company, in order to challenge the tax treatment reserved for the those dividends in Portugal;

                           —

                           legislation, such as that at issue in the main proceedings, according to which a company which is a resident of a Member State may deduct in full or in part, from its taxable amount, dividends received where the dividends are distributed by a company which is resident in the same Member State, but cannot make such a deduction where the distributing company is resident in Tunisia, constitutes a restriction on the free movement of capital, prohibited in principle as regards direct investment and, in particular, the repatriation of the proceeds of those investments, by Article 34(1) of that agreement;

                           —

                           the effect of that provision is not limited, in a situation such as that at issue in the main proceedings, by Article 89 of that agreement;

                           —

                           the refusal to grant, pursuant to Article 46(1) and (8) of the Corporation Tax Code, in the version in force in 2009, a full or partial deduction of the dividends received from the beneficiary company’s taxable amount may be justified by overriding reasons in the public interest relating to the need to preserve the effectiveness of fiscal supervision where it is impossible for the tax authorities of the Member State in which the beneficiary company is resident to obtain information from the Republic of Tunisia, in which the company distributing such dividends is resident, in order to allow it to be verified that the condition relating to the tax liability of the company distributing those dividends is satisfied;

                           —

                           the refusal to grant such a partial deduction in accordance with Article 46(11) of the Corporation Tax Code, in that version, cannot be justified by overriding reasons in the public interest relating to the need to preserve the effectiveness of fiscal supervision, where that provision can be applied in situations in which the distributing company’s tax liability in Tunisia, in which that company is resident, cannot be verified, a matter which it is for the referring court to determine.

               4.

               Article 31 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, signed in Luxembourg on 17 June 2002 and approved on behalf of the European Community by Council Decision 2006/356/EC of 14 February 2006, must be interpreted as meaning that:

                           —

                           it has direct effect;

                           —

                           a situation, such as that at issue in the main proceedings, concerning the tax treatment of dividends stemming from direct investments in Lebanon by a person resident in Portugal, falls within the situation referred to in Article 33(2) of that agreement; consequently, Article 33(1) of that agreement does not preclude Article 31 thereof from being relied on in the present case;

                           —

                           legislation, such as that at issue in the main proceedings, according to which a company which is a resident of a Member State may deduct in full or in part, from its taxable amount, dividends received where the dividends are distributed by a company which is resident in the same Member State, but cannot make such a deduction where the distributing company is resident in Lebanon, constitutes a restriction on the free movement of capital, prohibited in principle by Article 31 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part;

                           —

                           the effect of that provision is not limited, in a situation such as that at issue in the main proceedings, by Article 85 of that agreement;

                           —

                           the refusal to grant, pursuant to Article 46(1) and (8) of the Corporation Tax Code, in the version in force in 2009, a full or partial deduction from the beneficiary company’s taxable amount of the dividends received may be justified by overriding reasons in the public interest relating to the need to preserve the effectiveness of fiscal supervision where it is impossible for the tax authorities of the Member State in which the beneficiary company is resident to obtain information from the Republic of Lebanon, the State in which the companies distributing such dividends are resident, allowing it to be verified that the condition relating to the tax liability of the company distributing those dividends is satisfied;

                           —

                           the refusal to grant such a partial deduction in accordance with Article 46(11) of the Corporation Tax Code, in that version, cannot be justified by overriding reasons in the public interest based on the need to preserve the effectiveness of fiscal supervision, where that provision can be applied in situations in which the distributing company’s liability to tax in Lebanon, where that company is resident, cannot be verified, a matter which it is for the referring court to determine.

               5.

               As regards the consequences for the case at issue in the main proceedings, of the interpretation of Articles 63 to 65 TFEU and the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, and the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part:

                           —

                           where the authorities of the Member State in which the beneficiary company is resident can obtain information from the Republic of Tunisia, the State in which the company paying the dividends is resident, allowing them to verify that the condition relating to the tax liability of the company distributing these dividends is satisfied, Articles 63 and 65 TFEU and Article 34(1) of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, preclude the refusal to grant, pursuant to Article 46(1) or Article 46(8) of the Corporation Tax Code, in the version in force in 2009, a full or partial deduction from the taxable amount of the company receiving the dividends distributed, and the Portuguese Republic may not rely, in this respect, on Article 64(1) TFEU;

                           —

                           Articles 63 and 65 TFEU and Article 34(1) of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, and Article 31 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part preclude the refusal to grant, pursuant to Article 46(11) of the Corporation Tax Code, in the version in force in 2009, a partial deduction from the taxable amount of the company receiving the dividends distributed, where that provision may be applied in situations in which the tax liability of the distributing companies in Tunisia and Lebanon, where those companies are resident, cannot be verified, a matter which it is for the referring court to determine, and the Portuguese Republic may not rely on Article 64(1) TFEU in that regard;

                           —

                           the amounts collected in breach of Union law must be repaid, with interest, to the taxpayer.

      (1)  OJ C 34, 2.2.2015.


title: Case C-561/08 P: Appeal brought on 19 December 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Seventh Chamber) delivered on 15 October 2008 in Case T-160/04 Potamianos v Commission

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/37

         Appeal brought on 19 December 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Seventh Chamber) delivered on 15 October 2008 in Case T-160/04 Potamianos v Commission
   (Case C-561/08 P)
   (2009/C 44/62)
   Language of the case: French
   Parties

      Appellant: Commission of the European Communities (represented by: J. Currall and D. Martin, Agents)

      Other party to the proceedings: Gerasimos Potamianos
   Form of order sought

               —

               Set aside the judgment of the Court of First Instance of 15 October 2008 in Case T-160/04;

               —

               Declare Mr Potamianos's action inadmissible;

               —

               Rule that each of the parties is to bear their own costs as regards both the appeal proceedings and the proceedings before the Court of First Instance of the European Communities.

         Pleas in law and main arguments
   By its appeal, the Commission is challenging the categorisation by the Court of First Instance of the notification sent to the respondent informing him of the non-renewal of his contract of employment as a temporary servant. The Court of First Instance interpreted that notification as a separate decision of the appointing authority. It is, however, clear from the case-law of the Court of Justice and, in particular, Case C-417/05 P Fernández Gómez, that such a notification has merely informative value, with only the terms of the contract stating that the contract will not be renewed upon expiry amounting to an act adversely affecting a party. As that contract was not challenged within the periods prescribed by the Staff Regulations, the Court of First Instance should have dismissed the action as inadmissible.
   In disregarding that case-law, the Court of First Instance therefore created a situation of legal uncertainty for the Civil Service Tribunal and for the Commission and other institutions which have concluded contracts similar to that at issue in the present case.


title: Case C-416/14: Request for a preliminary ruling from the Commissione Tributaria Regionale di Mestre-Venezia (Italy) lodged on 3 September 2014 — Fratelli De Pra SpA and SAIV SpA v Agenzia Entrate — Direzione Provinciale Ufficio Controlli Belluno and Agenzia Entrate — Direzione Provinciale Ufficio Controlli Vicenza

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/12

         Request for a preliminary ruling from the Commissione Tributaria Regionale di Mestre-Venezia (Italy) lodged on 3 September 2014 — Fratelli De Pra SpA and SAIV SpA v Agenzia Entrate — Direzione Provinciale Ufficio Controlli Belluno and Agenzia Entrate — Direzione Provinciale Ufficio Controlli Vicenza
   (Case C-416/14)
   (2014/C 431/19)
   Language of the case: Italian

      Referring court

   Commissione Tributaria Regionale di Mestre-Venezia

      Parties to the main proceedings

      Appellants: Fratelli De Pra SpA and SAIV SpA

      Respondents: Agenzia Entrate — Direzione Provinciale Ufficio Controlli Belluno and Agenzia Entrate — Direzione Provinciale Ufficio Controlli Vicenza

      Questions referred

               1.

               With regard to terminal equipment for a terrestrial mobile radio communication service, are the following provisions of national legislation compatible with EU law (Directives 1999/5/EC, (1) 2002/19/EC, (2) 2002/20/EC, (3) 2002/21/EC (4) and 2002/22/EC (5)):

                           —

                           Article 2(4) of Decree-Law No 4/2014 (subsequently converted into Law No 50/2014);

                           —

                           Article 160 of Legislative Decree No 259/2003;

                           —

                           Article 21 of the Tariff annexed to Presidential Decree No 641/1972;

                     which, equating terminal equipment with radio stations, require a user to obtain a general authorisation and to be issued with a special licence for a radio station, and deem those activities to be chargeable events?
               Accordingly, with specific reference to the use of terminal equipment, is the obligation imposed by the Italian State on users to obtain a general authorisation and a licence for a radio station compatible with EU law when the placing on the market, the free movement and the putting into service of terminal equipment is already comprehensively governed by EU instruments (Directive 1999/5/EC) which do not lay down any requirement for general authorisation and/or for a licence?
               Additionally, are the general authorisation and the licence required under national legislation compatible with EU law despite the following facts:

                           —

                           a general authorisation is a measure which is not for a user of terminal equipment, but rather for businesses involved in the provision of electronic communications networks and services (Articles 1, 2 and 3 of Authorisation Directive 2002/20/EC);

                           —

                           a licence is intended to grant individual rights to use radio frequencies and to use numbers, which are clearly not related to the use of terminal equipment;

                           —

                           the EU legislation does not impose any obligation to obtain a general authorisation or to be issued with a licence for terminal equipment;

                           —

                           Article 8 of Directive 1999/5/EC provides that Member States ‘shall not prohibit, restrict or impede the placing on the market and putting into service in their territory of apparatus bearing the CE marking’;

                           —

                           a radio station is different — in substantive terms and in terms of its mode of regulation, as well as by its very nature — from terminal equipment for a terrestrial mobile radio communication service?

               2.

               Are the following provisions of national legislation compatible with EU law (Directive 1999/5/EC and Directive 2002/20/EC, in particular Article 20 thereof):

                           —

                           Article 2(4) of Decree-Law No 4/2014 (subsequently converted into Law No 50/2014);

                           —

                           Article 160 of Legislative Decree No 259/2003;

                           —

                           Article 21 of the Tariff annexed to Presidential Decree No 641/1972;

                           —

                           Article 3 of Ministerial Decree No 33/1990;

                     on the basis of which

                           —

                           the contract referred to in Article 20 of Directive 2002/22/EC — established between a manager and a user, designed to regulate commercial relations between consumers or end users and one or more firms which provide the connection or services concerned — may ‘in itself’ constitute a document which is equivalent to a general authorisation and/or licence for a radio station, without any intervention, activity or supervision on the part of the public administrative authorities;

                           —

                           the contract must also include details of the type of terminal equipment and the corresponding certification (not provided for under Article 8 of Directive 1999/5/EC)?

               3.

               Are Article 2(4) of Decree-Law No 4/2014 (subsequently converted into Law No 50/2014), Article 160 of Legislative Decree No 259/2003 and Article 21 of the Tariff annexed to Presidential Decree No 641/1972, read together, compatible with EU law in providing that only one particular category of users — namely, anyone holding a contract technically referred to as ‘a subscription’ — is obliged to have a general authorisation and accordingly a licence for a radio station, while no general authorisation or licence is required in the case of other persons using electronic communications services on the basis of a contract, simply because their contract is referred to by a different name (pay-as-you-go or top-up service)?

               4.

               Does Article 8 of Directive 1999/5/EC preclude national legislation such as the provisions referred to in Article 2(4) of Decree-Law No 4/2014 (subsequently converted into Law No 50/2014), namely, Article 160 of Legislative Decree No 259/2003 and Article 21 of the Tariff annexed to Presidential Decree No 641/1972, which envisages:

                           —

                           administrative activity resulting in the grant of a general authorisation and licence for a radio station;

                           —

                           the payment of a government licence charge in connection with such activity;

                     that being conduct which could constitute a restriction on the putting into service, use and free movement of terminal equipment?

      (1)  Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (OJ 1999 L 91, p. 10).

      (2)  Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7).

      (3)  Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21).

      (4)  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).

      (5)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).


title: Case T-581/11: Judgment of the General Court of 23 October 2013 — Dimian v OHIM — Bayer Design Fritz Bayer (Baby Bambolina) (Community trade mark — Invalidity proceedings — Figurative Community trade mark Baby Bambolina — Earlier unregistered national trade mark Bambolina — Relative ground for refusal — No use in trade of a sign of more than mere local significance — Article 8(4) and Article 53(1)(c) of Regulation (EC) No 207/2009)

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/9

         Judgment of the General Court of 23 October 2013 — Dimian v OHIM — Bayer Design Fritz Bayer (Baby Bambolina)
   (Case T-581/11) (1)

   (Community trade mark - Invalidity proceedings - Figurative Community trade mark Baby Bambolina - Earlier unregistered national trade mark Bambolina - Relative ground for refusal - No use in trade of a sign of more than mere local significance - Article 8(4) and Article 53(1)(c) of Regulation (EC) No 207/2009)
   2013/C 359/14
   Language of the case: English

      Parties

      Applicant: Dimian AG (Nuremberg, Germany) (represented by: P. Pozzi and G. Ghisletti, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Bayer Design Fritz Bayer GmbH & Co. KG (Michelau, Germany) (represented by: J. Pröll, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 3 August 2011 (Case R 1822/2010-2), relating to invalidity proceedings between Dimian AG and Bayer Design Fritz Bayer GmbH & Co. KG

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Dimian AG to pay the costs.

      (1)  OJ C 25, 28.1.2013.


title: Case C-205/06: Action brought on  5 May 2006  — Commission of the European Communities v Republic of Austria

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/17

         Action brought on 5 May 2006 — Commission of the European Communities v Republic of Austria
   (Case C-205/06)
   (2006/C 165/30)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: H. Støvlbæk and B. Martenczuk, acting as Agents)

      Defendant: Republic of Austria
   Form of order sought

               —

               declare that, by not taking suitable measures to eliminate incompatibilities in relation to the provisions concerning transfers in the bilateral investment agreements with Korea, Cape Verde, China, Malaysia, the Russian Federation and Turkey, the Republic of Austria has failed to fulfil its obligations under second paragraph of Article 307 of the EC Treaty;

               —

               order the Republic of Austria to pay the costs.

         Pleas in law and main arguments
   Article 307 of the EC Treaty requires the Member States to take all appropriate steps to eliminate the incompatibilities established with the EC Treaty of the agreements concluded by them prior to 1 January 1958 or before accession to the European Community.
   The Commission considers that the provisions on the free transfer of investment related payments in the bilateral investment agreements which the Republic of Austria concluded with Korea, Cape Verde, China, Malaysia, the Russian Federation and Turkey before its accession to the European Community are incompatible with the EC Treaty. This is because they do not allow the Republic of Austria to apply restrictions on capital or payments which the Council of the European Union may adopt on the basis of Articles 57(2), 59 and 60(1) of the EC Treaty.
   The Austrian Government's argument that the way in which it votes in the Council is not predetermined by the agreements is irrelevant. The only relevant issue is whether the Republic of Austria can carry out — in conformity with its obligations under international law — the restrictive measures in a particular case. The provisions of the Austrian investment agreements in dispute show that this is not the case. Likewise, the argument that Austria alone cannot prevent the Council from adopting a decision by a qualified majority is not decisive for the same reason.
   Since, in the present case, an incompatibility with the EC Treaty exists, Austria is under an obligation to take appropriate steps to eliminate it. If no other means are available, however, Austria could — according to the case-law of the Court of Justice — be obliged to abrogate the agreement at issue.


title: Case C-38/14: Judgment of the Court (Fourth Chamber) of 23 April 2015 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Subdelegación del Gobierno en Gipuzkoa — Extranjería v Samir Zaizoune (Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — Articles 6(1) and 8(1) — National legislation providing, in the event of illegal staying, for either a fine or removal, depending on the circumstances)

text:
               22.6.2015

               EN

               Official Journal of the European Union

               C 205/8

         Judgment of the Court (Fourth Chamber) of 23 April 2015 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Subdelegación del Gobierno en Gipuzkoa — Extranjería v Samir Zaizoune
   (Case C-38/14) (1)

   ((Reference for a preliminary ruling - Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - Articles 6(1) and 8(1) - National legislation providing, in the event of illegal staying, for either a fine or removal, depending on the circumstances))
   (2015/C 205/11)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

      Parties to the main proceedings

      Appellant: Subdelegación del Gobierno en Gipuzkoa — Extranjería

      Respondent: Samir Zaizoune

      Operative part of the judgment

   Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, in particular, Articles 6(1) and Article 8(1), read in conjunction with Article 4(2) and (3), must be interpreted as precluding legislation of a Member State such as that at issue in the main proceedings, which provides, in the event of third-country nationals illegally staying in the territory of that Member State, depending on the circumstances, for either a fine or removal, since the two measures are mutually exclusive.

      (1)  OJ C 93, 29.3.2014.


title: Case C-278/05: Judgment of the Court (Second Chamber) of 25 January 2007 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division, United Kingdom) — Carol Marilyn Robins and Others v Secretary of State for Work and Pensions (Protection of employees in the event of the employer's insolvency — Directive 80/987/EEC — Transposition — Article 8 — Supplementary company or inter-company pension schemes — Old-age benefits — Protection of rights conferring immediate entitlement — Extent of protection — Liability of a Member State by reason of the incorrect transposition of a directive — Conditions)

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/6

         Judgment of the Court (Second Chamber) of 25 January 2007 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division, United Kingdom) — Carol Marilyn Robins and Others v Secretary of State for Work and Pensions
   (Case C-278/05) (1)

   (Protection of employees in the event of the employer's insolvency - Directive 80/987/EEC - Transposition - Article 8 - Supplementary company or inter-company pension schemes - Old-age benefits - Protection of rights conferring immediate entitlement - Extent of protection - Liability of a Member State by reason of the incorrect transposition of a directive - Conditions)
   (2007/C 56/09)
   Language of the case: English
   Referring court
   High Court of Justice of England and Wales, Chancery Division
   Parties in the main proceedings

      Applicants: Carol Marilyn Robins and Others

      Defendant: Secretary of State for Work and Pensions
   Re:
   Interpretation of Article 8 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) — Extent of the obligation to protect rights conferring on employees immediate or prospective entitlement to old-age benefits
   Operative part of the judgment

               1)

               On a proper construction of Article 8 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, where the employer is insolvent and the assets of the supplementary company or inter-company pension schemes are insufficient, accrued pension rights need not necessarily be funded by the Member States themselves or be funded in full.

               2)

               A system of protection such as that at issue in the main proceedings is incompatible with Article 8 of Directive 80/987.

               3)

               If Article 8 of Directive 80/987 has not been properly transposed into domestic law, the liability of the Member State concerned is contingent on a finding of manifest and grave disregard by that State for the limits set on its discretion.

      (1)  OJ C 243, 1.10.2005.


title: Case C-129/14 PPU: Judgment of the Court (Grand Chamber) of 27 May 2014 (request for a preliminary ruling from the Oberlandesgericht Nürnberg — Germany) — Criminal proceedings against Zoran Spasic (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — Charter of Fundamental Rights of the European Union — Articles 50 and 52 — Ne bis in idem principle — Convention Implementing the Schengen Agreement — Article 54 — Penalty which ‘has been enforced’ or which is ‘actually in the process of being enforced’ )

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/13

         Judgment of the Court (Grand Chamber) of 27 May 2014 (request for a preliminary ruling from the Oberlandesgericht Nürnberg — Germany) — Criminal proceedings against Zoran Spasic
   (Case C-129/14 PPU) (1)

   ((Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - Charter of Fundamental Rights of the European Union - Articles 50 and 52 - Ne bis in idem principle - Convention Implementing the Schengen Agreement - Article 54 - Penalty which ‘has been enforced’ or which is ‘actually in the process of being enforced’))
   2014/C 253/17
   Language of the case: German

      Referring court

   Oberlandesgericht Nürnberg

      Party in the main proceedings

   Zoran Spasic

      Re:

   Request for a preliminary ruling — Oberlandesgericht Nürnberg — Interpretation of Article 54 of the Convention Implementing the Schengen Agreement in conjunction with Article 50 of the Charter of Fundamental Rights — ‘Ne bis in idem’ principle — Condition that the penalty has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party — Person having been convicted and penalised by a custodial sentence and a fine for the same facts in another Member State, but not having served his prison sentence.

      Operative part of the judgment

               1)

               Article 54 of the Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990 and entered into force on 26 March 1995, which makes the application of the ne bis in idem principle subject to the condition that, upon conviction and sentencing, the penalty imposed ‘has been enforced’ or is ‘actually in the process of being enforced’, is compatible with Article 50 of the Charter of Fundamental Rights of the European Union, in which that principle is enshrined.

               2)

               Article 54 of that convention must be interpreted as meaning that the mere payment of a fine by a person sentenced by the self-same decision of a court of another Member State to a custodial sentence that has not been served is not sufficient to consider that the penalty ‘has been enforced’ or is ‘actually in the process of being enforced’ within the meaning of that provision.

      (1)  OJ C 151, 19.5.2014.


title: Case T-107/06: Action brought on 5 April 2006 — INET ELLAS — ELEKTRONIKI IPIRESIA PLIROFORION E.P.E. v Commission of the European Communities

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/22

         Action brought on 5 April 2006 — INET ELLAS — ELEKTRONIKI IPIRESIA PLIROFORION E.P.E. v Commission of the European Communities
   (Case T-107/06)
   (2006/C 190/40)
   Language of the case: Greek
   Parties

      Applicant: INET HELLAS — ELEKTRONIKI IPIRESIA PLIROFORION E.P.E. (Athens, Greece) (represented by: B. Khatzopoulos, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The Court is asked to:

               —

               annul European Commission document No. INFSO/A3/VS D(2006)703641/31.1.2006;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant maintains that the contested document is unlawful because it wrongly assumes that registration of the domain name co.eu. on the Web is prohibited by the rules of Community law. In fact, however, no Community provision prohibits registration of the domain name co.eu. To the contrary, Regulation No 40/94 requires its registration.


title: Case T-323/14: Action brought on 7 May 2014 — Bankia/OHIM — Banco ActivoBank (Portugal) (Bankia)

text:
               11.8.2014

               EN

               Official Journal of the European Union

               C 261/25

         Action brought on 7 May 2014 — Bankia/OHIM — Banco ActivoBank (Portugal) (Bankia)
   (Case T-323/14)
   2014/C 261/48
   Language in which the application was lodged: English

      Parties

      Applicant: Bankia, SA (Valencia, Spain) (represented by: F. De Barba, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Banco ActivoBank (Portugal), SA (Lisboa, Portugal)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Chamber of the Board of Appeal of 14 February 2014 in cases R 649/2013-2 and R 744/2013-2, so that the Community trade mark application no1 0 1 25  284‘BANKIA’ be granted for all the goods and services;

               —

               Condemn the opponent and/or the OHIM to pay the costs incurred by the applicant/appellant in connection with this appeal.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark containing the word element ‘Bankia’ for goods and services in Classes 9, 16, 35, 36, 38, 41 and 45 — Community trade mark application no1 0 1 25  284

      Proprietor of the mark or sign cited in the opposition proceedings: Banco ActivoBank (Portugal), SA

      Mark or sign cited in opposition: The national word mark ‘BANKY’ for services in Class 36

      Decision of the Opposition Division: The opposition was partially upheld

      Decision of the Board of Appeal: The appeal of BANKIA S.A. was dismissed and the appeal of Banco ActivoBank (Portugal), SA partially upheld, rejecting the contested trade mark for a wider range of services

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