title: Case C-250/05: Judgment of the Court (Second Chamber) of 26 October 2006 (reference for a preliminary ruling from the Hessisches Finanzgericht, Kassel (Germany)) — Turbon International GmbH, as universal successor in title to Kores Nordic Deutschland GmbH v Oberfinanzdirektion Koblenz (Common Customs Tariff — Tariff headings — Classification in the Combined Nomenclature of ink cartridges compatible with Epson Stylus Color printers — Inks (heading 3215) — Parts and accessories of machines of heading 8471 (heading 8473)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/15

         Judgment of the Court (Second Chamber) of 26 October 2006 (reference for a preliminary ruling from the Hessisches Finanzgericht, Kassel (Germany)) — Turbon International GmbH, as universal successor in title to Kores Nordic Deutschland GmbH v Oberfinanzdirektion Koblenz
   (Case C-250/05) (1)

   (Common Customs Tariff - Tariff headings - Classification in the Combined Nomenclature of ink cartridges compatible with Epson Stylus Color printers - Inks (heading 3215) - Parts and accessories of machines of heading 8471 (heading 8473)
   (2006/C 326/29)
   Language of the case: German
   Referring court
   Hessisches Finanzgericht, Kassel
   Parties to the main proceedings

      Applicant: Turbon International GmbH, as universal successor in title to Kores Nordic Deutschland GmbH

      Defendant: Oberfinanzdirektion Koblenz
   Re:
   Reference for a preliminary ruling — Hessisches Finanzgericht (Finance Court, Hesse), Kassel — Interpretation of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p.1) — Subheading No 3215 90 80 (‘Ink, other than printing ink, writing or drawing ink’) and Heading No 8473 (‘Parts and accessories of the machines of heading No 8471’, that is automatic data-processing machines and units thereof) — Ink cartridge
   Operative part of the judgment
   Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1734/96 of 9 September 1996, must be interpreted as meaning that an ink cartridge without an integrated print head consisting of plastic casing, foam, a metal screen, seals, tape seal, labels, ink and packing material, which, as regards both the cartridge and the ink, can only be used in a printer with the same characteristics as Epson Stylus Color inkjet printers, must be classified under Subheading 3215 90 80 of the Combined Nomenclature.

      (1)  OJ C 217, 3.9.2005.


title: Case T-96/07: Action brought on 23 March 2007 — Telecom Italia Media v Commission

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/32

         Action brought on 23 March 2007 — Telecom Italia Media v Commission
   (Case T-96/07)
   (2007/C 117/52)
   Language of the case: Italian
   Parties

      Applicant: Telecom Italia Media S.p.A. (Rome, Italy) (represented by: F. Bassan and S. Venturini, avvocati)

      Defendant: Commission of the European Communities
   Forms of order sought
   The applicant claims that the Court should:

               —

               annul the Commission's decision (C(2006) 6634 final) of 24 January 2007 relating to State aid C 52/2005 (ex NN88/2005, ex CP 101/2004), together with all prior, consequent and connected acts;

               —

               in the alternative, annul the Commission's decision (C(2006) 6634 final) in so far as it imposes on the Italian State a duty to recover the aid in accordance with the detailed rules set out therein;

               —

               in any case, order the Commission to pay the costs. With all consequences of law.

         Pleas in law and main arguments
   The present application contests the Commission's decision finding that the State aid providing subsidies for the purchase of digital decoders, introduced by the Italian Government for the years 2004 and 2005, is unlawful. It is emphasised in that regard that, by decision of the same date, the subsidies planned for the year 2006 for the purchase of digital decoders with open APIs (application program interfaces) was found to be lawful pursuant to Article 87(c) of the EC Treaty.
   According to the applicant, the difference between the lawful aid of the year 2006 and the unlawful aid of the years 2004 and 2005 lies in the fact that the latter expressly exclude financing for satellite TV decoders — which is thus excluded de iuris — whereas in the context of the 2006 aid it is excluded only de facto as a consequence of being the decoder chosen by the ‘closed ’SKY monopolistic platform.
   In support of the forms of order sought, the applicant alleges:

               —

                  Error of assessment by the defendant. On that point it is argued that:

                           —

                           the measure was needed in order to accelerate the transition to digital: the deadline fixed by law for the switch off (2006) was not (and, in any case, could not reasonably be regarded as such) peremptory.

                           —

                           the measure was not designed to take the place of an initiative that the broadcasters would have taken in any event. In fact, the broadcasters — by reason of the particular characteristics of the terrestrial digital market — had no interest in funding purchase of the decoders, because:

                                       (i)

                                       they are not vertically integrated with the producers of software or decoders;

                                       (ii)

                                       they do not have a business model based on monthly subscription payments, which enables the funding to be recovered over time;

                                       (iii)

                                       the terrestrial decoder can accept cards from a number of operators, in competition with one another;

                           —

                           the measure did not discriminate against satellite broadcasters, for two reasons. In the first place, because such broadcasters operate on a different market, mistakenly classed as single by the Commission. Secondly, because those broadcasters were already excluded de facto, since they had already — at the time of SKY (a monopolistic platform in Italy for satellite TV) — opted for a proprietary platform which uses a closed standard, and which does not therefore deserve support, in accordance with the position established by the Commission in the decision relating to the 2006 measure.

                           —

                           the period taken into consideration for the calculation of the effects of the measure on the market cannot be the full temporal arc spanning the years 2004 and 2005, since TIMedia advertised and marketed the first pay per view offer on the terrestrial digital market on 22 January 2005. As regards the dies ad quem, significance cannot but be attributed to the fact that, with effect from 1 September 2005, the subsidy was accorded to consumers only in the all digital areas or in the regions (Val D'Aosta and Sardinia) for which provision had been made for the transition to be completed ahead of time. The subsidy was limited at both the operational level and the territorial level. TIMedia could refund the aid, in that it has not generated additional profits in the relevant period. The costs are in fact higher than the revenue, as is normally the case during a start up phase. Besides, the Commission requires the quantification of the recovery to be determined on the basis of the additional profits generated by the extra viewers that the measure has attracted to pay per view terrestrial digital TV. Those profits are to be calculated by multiplying the average revenue from users by the estimated number of additional users. In truth, the additional profits are calculated by subtracting the additional costs from the additional revenues (not from the average revenue). The revenue generated by the additional user — who is rarely inclined to purchase pay per view events — is lower than the revenue generated by the user average.

               —

                  Infringement and misapplication of Articles 87(1) and 87(3)(c) of the EC Treaty in so far as the Commission has not shown that the measure distorts or threatens to distort competition, and accordingly constitutes State aid for the purposes of Article 87(1). Nor has the Commission shown how it can be possible that the exemption provided for in Article 87(3) applies to producers of decoders, but not also to television broadcasting networks, the latter being also, indirectly, beneficiaries which make use of those decoders.

               —

                  Internal inconsistency and inherent irrationality of the contested decision. On that point, it is emphasised that in the view of the Commission the measure is selective, referring only to certain indirect beneficiaries (the television broadcasting networks) and not to others (the decoder producers).


title: Case C-466/05: Reference for a preliminary ruling from the Tribunale di Lecce by order of that court of  6 December 2005  in criminal proceedings against Gianluca Damonte

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/3

         Reference for a preliminary ruling from the Tribunale di Lecce by order of that court of 6 December 2005 in criminal proceedings against Gianluca Damonte
   (Case C-466/05)
   (2006/C 74/07)
   Language of the case: Italian
   Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Lecce (Italy) of 6 December 2005, received at the Court Registry on 27 December 2005, for a preliminary ruling in criminal proceedings against Gianluca Damonte on the following question:

               Is Article 4(4 bis) of Law No 401/89 incompatible — with resultant effects on the domestic legal system — with the principles laid down in Articles 43 and 49 of the EC Treaty on establishment and freedom to provide cross-border services, also in light of the conflict between the interpretations in the decisions of the European Court of Justice (in particular in the judgment in Gambelli) and decision No 23271/04 of the Suprema Corte di Cassazione a Sezioni Unite (United Chambers of the Supreme Court of Cassation); in particular, clarification is sought as to the applicability in the Italian State of the criminal provisions set out in the charge brought?


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 21 March 1997 in Case T-79/96 R: CAMAR S.r.l. v. Commission of the European Communities (Organization of the common market - Bananas - Application for interim measures - Request for delivery of import certificates)

text:
No C 199/24             EN                  Official Journal of the European Communities                                  28 . 6 . 97
Langenhagen ( Germany ), — LTU Lufttransport Unterneh                 1 . The application for interim measures is dismissed.
men GmbH & Co KG, having its registered office in
Düsseldorf ( Germany ) and Hapag-Lloyd Fluggesellschaft                2.   The costs are reserved.
mbH, having its registered office in Langenhagen
( Germany ), in its own behalf, represented by Gerrit
Schohe and Philipp von Dietze, Rechtsanwälte in Ham
burg, with an address for service in Luxembourg at the
Chambers of Marc Baden, 24, rue Marie-Adelaide, against
Commission of the European Communities (Agents:                             ORDER OF THE COURT OF FIRST INSTANCE
Anders Jessen, Paul Nemitz and Georg M. Berrisch ) —
                                                                                of 2 May 1997
application for the annulment of Decision C(95 ) 3319
final of the Commission of 29 November 1995 concerning                 in Case T-90/96: Automobiles Peugeot SA v. Commission
fiscal aid in the field of depreciation favouring German                             of the European Communities ( ] )
undertakings — the Court of First Instance ( Fourth                    (Competition — Action for annulment — Objection of
Chamber, Extended Composition), composed of K.                                                  inadmissibility)
Lenaerts, President, P. Lindh, J. Azizi, J. D. Cooke and M.
Jaeger, Judges; H. Jung, Registrar, made an order on                                             { 97/C 199/67)
 14 March 1997, the operative part of which is as follows:
                                                                                (Language of the case: French)
 1 . There is no need to give a decision.
                                                                       In Case T-90/96 : Automobiles Peugeot SA, established in
1 . The Commission shall pay all the costs.                            Paris, represented by Xavier de Roux, of the Paris Bar,
                                                                       with an address for service in Luxembourg at the
 (') OJ No C 145 , 18 . 5 . 1996 .                                     Chambers of Jacques Loesch, 8 Rue Zithe, v. Commission
                                                                       of the European Communities ( Agents: initially, Francisco
                                                                       Enrique Gonzalez Diaz and Guy Charrier and,
                                                                       subsequently, Guy Charrier alone ) — application for
                                                                       annulment of four letters from the Commission dated 3
                                                                        and 22 April 1996 purporting to reject requests by the
                 ORDER OF THE PRESIDENT                                 applicant that confidential treatment be accorded to
            OF THE COURT OF FIRST INSTANCE                             certain information supplied to the Commission in the
                         of 21 March 1997                              context of Article 11 of Regulation No 17 of the Council
                                                                        of 6 February 1962 : First Regulation implementing
 in Case T-79/96 R: CAMAR S.r.l . v. Commission of the                  Articles 85 and 86 of the Treaty ( OJ, English Special
                     European Communities                               Edition 1956-1962, p. 87) — the Court of First Instance
  (Organization of the common market — Bananas —                        ( Second Chamber ), composed of C. W. Bellamy, President,
 Application for interim measures — Request for delivery                and A. Kalogeropoulos and P. Lindh, Judges; H. Jung,
                       of import certificates)                          Registrar, made an order on 2 May 1997, the operative
                                                                        part of which is as follows:
                             97/C 199/66 )
                                                                        1 . The application is dismissed as inadmissible.
                  (Language of the case: Italian)
 In Case T-79/96 R: CAMAR S.r.l ., established in Florence,             2. The applicant is ordered to pay the costs.
 represented by Wilma Viscadini Dona, Mariano Paolin
  and Simonetta Dona, of the Padua Bar, with an address                 O OJ No C 233 , 10 . 8 . 1996 .
  for service in Luxembourg at the Chambers of Ernest
  Arendt, 8-10, rue Mathias Hardt, supported by Italian
  Republic ( Agents: Umberto Leanza and Pier Giorgio
  Ferri ), against Commission of the European Communities
  (Agent: Eugenio de March ), supported by French Republic
  ( Agents : Frederic Pascal and Catherine de Salins ) —                     ORDER OF THE COURT OF FIRST INSTANCE
  application brought under Article 186 of the EC Treaty                                       (Third Chamber)
  requesting the President of the Court of First Instance to                                  of 26 March 1997
  order the Commission to deliver to Camar, in respect of
  1997, certificates for the importation of bananas from                       in Case T-l 19/96: X v. European Parliament (')
  third countries and non-traditional ACP countries, for a               (Officials — Action for annulment — Prior administrative
  quantity equal to the difference between the quantity of                         complaint — Objection on admissibility)
  Somalian bananas which it may import and that which it
  imported during 1988 , 1989 and 1990 and, in the                                                 ( 97/C 199/68 )
  alternative, for all other measures which it may consider
  appropriate to prevent Camar from suffering irreparable                               (Language of the case: French)
  harm before judgment is delivered in the main proceedings
  — the President of the Court of First Instance made an                 In Case T-l 19/96 : X, official of the European Parliament,
  order on 21 March 1997, the operative part of which is as              residing in Brussels, represented by Jean-Noel Louis,
  follows :                                                              Thierry Demaseure and Ariane Tornel, of the Brussels Bar,


title: Case C-214/10: Judgment of the Court (Grand Chamber) of 22 November 2011 (reference for a preliminary ruling from the Landesarbeitsgericht Hamm — Germany) — KHS AG v Winfried Schulte (Organisation of working time — Directive 2003/88/EC — Right to paid annual leave — Lapse of right to paid annual leave not taken because of illness on the expiry of a period laid down by national rules)

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/8

      Judgment of the Court (Grand Chamber) of 22 November 2011 (reference for a preliminary ruling from the Landesarbeitsgericht Hamm — Germany) — KHS AG v Winfried Schulte
      (Case C-214/10) (1)

      (Organisation of working time - Directive 2003/88/EC - Right to paid annual leave - Lapse of right to paid annual leave not taken because of illness on the expiry of a period laid down by national rules)
      (2012/C 25/13)
      Language of the case: German

         Referring court

      Landesarbeitsgericht Hamm

         Parties to the main proceedings

         Applicant: KHS AG

         Defendant: Winfried Schulte

         Re:

      Reference for a preliminary ruling — Landesarbeitsgericht Hamm — Interpretation of Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9) — Right to payment in lieu of untaken paid annual leave of a worker who could not exercise his right to paid annual leave, on account of sick leave, during the reference period and whose unfitness for work persisted for several years until the end of his employment relationship — Collective agreement allowing payment in lieu of paid annual leave which has not been taken to be made only at the end of the employment relationship and providing that entitlement to paid annual leave which has not been taken because of illness lapses 15 months after the end of the reference period.

         Operative part of the judgment

      Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as not precluding national provisions or practices, such as collective agreements, which limit, by a carry-over period of 15 months on the expiry of which the right to paid annual leave lapses, the accumulation of entitlement to such leave of a worker who is unfit for work for several consecutive reference periods.

         (1)  OJ C 234, 28.8.2010.


title: Judgment of the Court of First Instance of 13 December 2000 in Joined Cases T-110/99 and T-260/99: F v European Parliament (Officials — Absences — Production of medical certificates — Failure by the person concerned to attend for medical check-ups — Sick leave deducted from annual leave entitlement — Action for annulment — Applications for compensation)

text:
7.4.2001                 EN                     Official Journal of the European Communities                                            C 108/17
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 13 December 2000                                                       of 12 December 2000
in Joined Cases T-110/99 and T-260/99: F v European                        in Case T-223/99: Luc Dejaiffe v Office for Harmonisation
                             Parliament (1)                                in the Internal Market (Trade Marks and Designs)
                                                                                (OHIM) (1)
(Officials — Absences — Production of medical certificates
— Failure by the person concerned to attend for medical
check-ups — Sick leave deducted from annual leave                          (Members of the temporary staff — Early termination of a
entitlement — Action for annulment — Applications for                      fixed-term contract of employment of a member of the
                             compensation)                                 temporary staff — Interests of the service — Manifest error
                                                                           of assessment — Misuse of powers — Non-contractual
                                                                                liability of the Community)
                           (2001/C 108/28)
                                                                                (2001/C 108/29)
                     (Language of the case: French)
                                                                                (Language of the case: French)
In Joined Cases T-110/99 and T-260/99: F, an official of the
European Parliament, residing at Bertrange (Luxembourg),
represented by L. Mosar, S. Kersch and P. Goergen, of the                  In Case T-223/99: Luc Dejaiffe, an official of the Commission
Luxembourg Bar, with an address for service in Luxembourg                  of the European Communities, residing at Nivelles (Belgium),
at the Chambers of Mr Mosar, 8 Rue Notre-Dame, v European                  represented by G. Vandersanden, of the Brussels Bar, with an
Parliament (Agent: M. Moore) — application, first, for annul-              address for service in Luxembourg at the offices of Fiduciaire
ment of three decisions of the Parliament deducting from the               Myson SARL, 30 Rue de Cessange, v Office for harmonisation
applicant’s annual leave entitlement absences on account of                in the Internal Market (Trade Marks and Designs) (OHIM)
sickness regarded as irregular and, second, for compensation               (Agents: O. Montaldo and J.P. Miranda de Sousa) — application
for the non-material damage allegedly resulting from those                 for annulment of the decision of the Office for Harmonisation
decisions and from the conduct of the Parliament — the Court               in the Internal Market (Trade Marks and Designs) of 21 Decem-
of First Instance (Second Chamber), composed of: J. Pirrung,               ber 1998 terminating the applicant’s contract as a member of
President, and A. Potocki and A.W.H. Meij, Judges; G. Herzig,              the temporary staff, for compensation for the damage suffered
Administrator, for the Registrar, has given a judgment on                  and for an order requiring the Office to re-establish the
13 December 2000, in which it:                                             applicant in his career — the Court of First Instance (Third
                                                                           Chamber), composed of: K. Lenaerts, President, and J. Azizi
1.    Dismisses as inadmissible the application for annulment in           and M. Jaeger, Judges; J. Palacio González, Administrator, for
      Case T-110/99, inasmuch as it is directed against the decision       the Registrar, has given a judgment on 12 December 2000, in
      of 28 January 1999;                                                  which it:
2.    Annuls the decisions of 16 September 1998 and 22 April               1.    Annuls the decision of the President of the Office for Harmonis-
      1999;                                                                      ation in the Internal Market (Trade Marks and Designs) of
                                                                                21 December 1998 terminating the applicant’s contract as a
                                                                                member of the temporary staff;
3.    Dismisses the applications for compensation;
                                                                           2.    Orders the Office for Harmonisation in the Internal Market
4.    Orders the Commission to bear its own costs and to pay one                 (Trade Marks and Designs) to pay to the applicant a sum
      half of the costs of the applicant;                                        corresponding, in respect of the period from 16 February 1999
                                                                                to 30 November 1999 inclusive, to the difference between the
                                                                                monthly salary which he would have received from the Office
5.    Orders the applicant to bear one half of her own costs.                    and that paid following his reinstatement in the Commission,
                                                                                less the termination compensation paid by the Office to the
                                                                                applicant pursuant to Article 47(1) of the Conditions of
                                                                                employment of other servants of the European Communities;
(1) OJ C 226 of 7.8.1999; OJ C 366 of 18.12.1999.
                                                                           3.    Orders the Office for Harmonisation in the Internal Market
                                                                                (Trade Marks and Designs) to pay to the applicant the token
                                                                                sum of 1 euro by way of compensation for the non-material
                                                                                damage suffered by him;


title: Case T-3/05: Action brought on 4 January 2005 by ReckittBenckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/22

         Action brought on 4 January 2005 by ReckittBenckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-3/05)
   (2005/C 69/41)
   Language of the case: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 4 January 2005 by ReckittBenckiser N.V., established in Hoofddorp (The Netherlands) represented by G.S.P. Vos, lawyer.
   The applicant claims that the Court should:

               —

               annul the contested decision of the Board of Appeal of the OHIM;

               —

               allow the registration of the Community trade mark application No 1 155 712;

               —

               order the OHIM to pay the costs in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

         Pleas in law and main arguments

               Community trade mark concerned:

               The three dimensional mark of a white and blue rectangular tablet with an oval red centre for goods in classes 1 and 3 (Chemical products for industrial purposes; bleaching preparations and other substances for laundry use and dishwashing,...) - application No 1 156 595

               Decision of the examiner:

               Rejection of the application

               Decision of the Board of Appeal:

               Dismissal of the appeal

               Pleas in law:

               Violation of Article 7(1)(b) of Council Regulation No 40/94


C 211/16              EN                Official Journal of the European Communities                                   22.7.2000
       Removal from the register of Case C-33/98 (1)               European Communities v United Kingdom of Great Britain
                                                                   and Northern Ireland.
                       (2000/C 211/27)
                                                                   (1) OJ C 34 of 5.2.2000.
By order of 26 January 2000 the President of the Court of
Justice of the European Communities has ordered the removal
from the register of Case C-33/98: Commission of the
European Communities v Federal Republic of Germany.
(1) OJ C 94 of 28.3.1998.                                                 Removal from the register of Case C-60/99 (1)
                                                                                (2000/C 211/31)
                                                                   By order of 20 March 2000 the President of the Court of
                                                                   Justice of the European Communities has ordered the removal
       Removal from the register of Case C-386/99 (1)              from the register of Case C-60/99 (reference for a preliminary
                                                                   ruling from the Supreme Court of Dublin): Carmen Proetta v
                       (2000/C 211/28)                             Andrew Neil.
By order of 29 February 2000 the President of the Court of         (1) OJ C 121 of 1.5.1999.
Justice of the European Communities has ordered the removal
from the register of Case C-386/99: Commission of the
European Communities v Federal Republic of Germany.
(1) OJ C 366 of 18.12.1999.
                                                                          Removal from the register of Case C-48/99 (1)
                                                                                (2000/C 211/32)
                                                                   By order of 30 March 2000 the President of the Sixth Chamber
       Removal from the register of Case C-385/98 (1)              of the Court of Justice of the European Communities has
                                                                   ordered the removal from the register of Case C-48/99:
                       (2000/C 211/29)                             Commission of the European Communities v Grand Duchy of
                                                                   Luxembourg.
By order of 15 March 2000 the President of the Fifth Chamber
of the Court of Justice of the European Communities has            (1) OJ C 100 of 10.4.1999.
ordered the removal from the register of Case C-385/98:
Commission of the European Communities v Italian Republic.
(1) OJ C 378 of 5.12.1998.
                                                                          Removal from the register of Case C-287/99 (1)
                                                                                (2000/C 211/33)
       Removal from the register of Case C-455/99 (1)              By order of 30 March 2000 the President of the Sixth Chamber
                                                                   of the Court of Justice of the European Communities has
                       (2000/C 211/30)                             ordered the removal from the register of Case C-287/99:
                                                                   Commission of the European Communities v Kingdom of
By order of 15 March 2000 the President of the Court of            Belgium.
Justice of the European Communities has ordered the removal
from the register of Case C-455/99: Commission of the              (1) OJ C 281 of 2.10.1999.


title: Case T-172/05: Judgment of the Court of First Instance of 10 October 2006 — Armacell v OHIM — nmc (ARMAFOAM) (Community trade mark — Opposition proceedings — Application to register Community word mark ARMAFOAM — Earlier Community word mark NOMAFOAM — Relative ground for refusal — Likelihood of confusion — Similarity of products and signs — Argument concerning the similarity of goods raised for the first time before the Court of First Instance)

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/16

         Judgment of the Court of First Instance of 10 October 2006 — Armacell v OHIM — nmc (ARMAFOAM)
   (Case T-172/05) (1)

   (Community trade mark - Opposition proceedings - Application to register Community word mark ARMAFOAM - Earlier Community word mark NOMAFOAM - Relative ground for refusal - Likelihood of confusion - Similarity of products and signs - Argument concerning the similarity of goods raised for the first time before the Court of First Instance)
   (2006/C 310/32)
   Language of the case: English
   Parties

      Applicant: Armacell Enterprise GmbH (Münster, Germany) (represented by: O. Spuhler, lawyer,)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: nmc SA (Raeren-Eynatten, Belgium) (represented by: P. Péters and T. de Haan, lawyers)
   Re:
   Action against the decision of the First Board of Appeal of OHIM of 23 February 2005 (Case R 552/2004-1) concerning opposition proceedings between nmc SA and Armacell Enterprise GmbH.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Armacell Enterprise GmbH to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and nmc SA.

      (1)  OJ C 171, 9.7.2005.


title: Case C-135/04: Actionbrought on 12 March 2004 by the Commission ofthe European Communities against the Kingdom of Spain

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/39

         Action brought on 12 March 2004 by the Commission of the European Communities against the Kingdom of Spain
   (Case C-135/04)
   (2004/C 106/68)
   An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 12 March 2004 by the Commission of the European Communities, represented by Michel Van Beek, Legal Adviser, and Gregorio Valero Jordano, member of its Legal Service, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare that, by allowing the practice of hunting migratory birds (woodpigeon – Columba palumbus) in Guipúzcoa, the Kingdom of Spain has failed to fulfil its obligations under Article 7(4) of Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds;

               —

               order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments:
   The hunting of returning migratory birds, ‘caza a contrapasa’, in this instance woodpigeon returning to their rearing grounds, entails a failure to comply with Article 7(4) of Directive 79/409.
   None of the reasons put forward by the Kingdom of Spain to justify the practice of that type of hunting in Guipúzcoa is acceptable:

               —

               adoption of a derogation from Article 7(4) on the basis of Article 9(1)(c) of the Directive, since in this case the condition that there is no other satisfactory solution, which must be met for the system of exceptions to apply properly, is not fulfilled.

               —

               historical and cultural traditions and social convention, since those are not reasons capable of justifying the derogations laid down in Article 9, given that they are not mentioned in that provision.

               —

               judgment of the Court of Justice in Case 252/85 Commission v France, since the judgment was given in relation to a derogation from Article 8(1) of the Directive relating to hunting methods.

      (1)  OJ L 103 of 25.4.1979.


title: Case C-568/07: Action brought on 21 December 2007 — Commission of the European Communities v Hellenic Republic

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/25

         Action brought on 21 December 2007 — Commission of the European Communities v Hellenic Republic
   (Case C-568/07)
   (2008/C 64/37)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: G. Zavvos and E. Traversa)

      Defendant: Hellenic Republic
   Form of order sought

               —

               declare that, by failing to take the necessary measures to comply with the judgment delivered by the Court of Justice on 21 April 2005 in Case C-140/03, the Hellenic Republic has failed to fulfil its obligations under Articles 43 EC and 48 EC;

               —

               order the Hellenic Republic to pay to the Commission a proposed penalty payment of EUR 70 956 for each day of delay in complying with the judgment which was delivered in Case C-140/03, from the day when judgment is delivered in the present case until the day when the judgment delivered in Case C-140/03 has been complied with;

               —

               order the Hellenic Republic to pay to the Commission a lump sum, the amount of which is a daily sum multiplied by the number of the days that the failure to fulfil obligations continues from the day when judgment was delivered in Case C-140/03 until the date on which judgment is delivered in the present case;

               —

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments

               1.

               In the judgment delivered by it on 21 April 2005 in Case C-140/03 Commission v Greece relating to restrictions concerning the opening and operation of opticians' shops in breach of Articles 43 EC and 48 EC, the Court of Justice of the European Communities:

                           ‘1.

                           [declared] that by enacting and maintaining in force Law No 971/79 on the exercise of the profession of optician and on shops for the sale of optical articles, which does not permit a qualified optician as a natural person to operate more than one optician's shop, the Hellenic Republic [had] failed to fulfil its obligations under Article 43 EC;

                           2.

                           [declared] that by enacting and maintaining in force Law No 971/79 and Law No 2646/98 on the development of a national social security system and other provisions, under which the establishment by a legal person of an optician's shop in Greece is subject to the following conditions:

                                       —

                                       authorisation for the establishment and operation of the optician's shop must have been granted to a recognised optician who is a natural person, the person holding the authorisation to operate the shop must hold at least 50 % of the company's share capital and must participate at least to that extent in the profits and losses of the company, and the company must be in the form of a collective or limited partnership, and

                                       —

                                       the optician in question may participate at most in one other company owning an optician's shop, subject to the condition that the authorisation for the establishment and operation of that shop is in the name of another authorised optician,

                                 the Hellenic Republic [had] failed to fulfil its obligations under Articles 43 EC and 48 EC;

                           3.

                           [ordered] the Hellenic Republic to pay the costs’.

               2.

               Article 228 EC provides that if the Court of Justice finds that a Member State has failed to fulfil an obligation under the Treaty, the State is to be required to take the necessary measures to comply with the judgment of the Court of Justice.

               3.

               By letter of 9 June 2005, the Commission of the European Communities requested the Greek Government to take measures to comply with the abovementioned judgment of the Court. In its letter, it also stated that Law No 3204/2003 could not constitute an adequate response to the Court's judgment, at least as regards the second claim, since under that Law the right to establish and operate an optician's shop continues to fall to a large degree to opticians.

               4.

               The Greek Government replied by letter of 11 August 2005. It stated that many provisions of Law No 971/79 had been amended and Article 27(4) of Law No 2646/98 had been repealed. More specifically, the new Article 6(6) of Law No 971/79 allowed natural persons holding a professional authorisation and companies and firms to operate more than one shop provided that management of the shop was entrusted to an optician possessing the relevant professional authorisation.

               5.

               The new Article 7(1) of Law No 971/79 allows companies and firms, whatever their legal form, to establish opticians' shops provided that: (i) as regards partnerships, the majority of partners and the manager, or the majority of managers, will be opticians possessing authorisation to pursue that profession; (ii) as regards private limited companies, more than half of the shareholders representing more than half of the share capital will be opticians possessing a professional authorisation; and (iii) as regards public limited companies, at least 51 % of the share capital will be owned by opticians who are citizens of countries of the European Union and possess the qualifications laid down by Law No 971/79 and by Presidential Decrees Nos 231/98 and 165/2000 as amended by Presidential Decree No 373/2001.

               6.

               The applicant submits that the new Article 7(1) of Law No 971/79 does not constitute an adequate response to the second claim. That article retains the requirement for opticians' shops to be owned by authorised opticians, inasmuch as they must either constitute the majority of the partners or hold the majority of the share capital.

               7.

               Consequently, there is always a restriction on the freedom of establishment in Greece of companies and firms of other Member States, in so far as they cannot in any event be the sole owners of an optician's shop. That restriction is not justified by the need to ensure a high level of public-health protection. As the Court states in Case C-140/03, this objective ‘may be achieved by measures which are less restrictive of the freedom of establishment both for natural and legal persons, for example by requiring the presence of qualified, salaried opticians or associates in each optician's shop, rules concerning civil liability for the actions of others, and rules requiring professional indemnity insurance’ (paragraph 35).

               8.

               Consequently, the Commission considers that, with the new Article 7(1) of Law No 971/79, the Hellenic Republic continues to breach its obligations under Articles 43 EC and 48 EC. The provisions enacted by the Hellenic Republic therefore amount to only partial compliance with the Court's judgment referred to in paragraph 1.

               9.

               On the basis of the foregoing, the Commission finds that the Hellenic Republic has not yet taken all the measures that are required for compliance with the Court's judgment in Case C-140/03 Commission v Greece, which concerns restrictions relating to the establishment and operation of opticians' shops, in breach of Articles 43 EC and 48 EC.


title: Case C-166/17: Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 3 April 2017 — Sportingbet PLC, Internet Opportunity Entertainment Ltd v Santa Casa da Misericórdia de Lisboa, Sporting Club de Braga, Sporting Club de Braga — Futebol, SAD

text:
               26.6.2017

               EN

               Official Journal of the European Union

               C 202/11

         Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 3 April 2017 — Sportingbet PLC, Internet Opportunity Entertainment Ltd v Santa Casa da Misericórdia de Lisboa, Sporting Club de Braga, Sporting Club de Braga — Futebol, SAD
   (Case C-166/17)
   (2017/C 202/17)
   Language of the case: Portuguese

      Referring court

   Supremo Tribunal de Justiça

      Parties to the main proceedings

      Appellants: Sportingbet PLC, Internet Opportunity Entertainment Ltd

      Respondents: Santa Casa da Misericórdia de Lisboa, Sporting Club de Braga, Sporting Club de Braga — Futebol, SAD

      Questions referred

               1.

               Does the concession granted to the casinos by [Decree-Law No 422/89 of 2 December 1989 (the Gaming Law)] amount to an infringement of the principles and economic freedoms laid down in the Treaty?

               2.

               Does the exclusive right granted to Santa Casa da Misericórdia de Lisboa by Decree-Law No 322/91 of 26 August 1991, as amended by Decree-Law No 469/99 of 6 November 1999, by Decree No 12790 of 30 November 1926, by Decree-Law No 40397 of 24 November 1955, by Decree-Law No 84/85 of 28 March 1985, as amended and [republished] by Decree-Law No 317/2002 of 17 December 2002 and Decree-Law No 282/2003 of 8 November 2003, amount to an infringement of the principles and economic freedoms laid down in the Treaty?

               3.

               Does Article 21 of the Código da Publicidade (Advertising Code) infringe the principles of freedom establishment and freedom to provide services, resulting also in discrimination between nationals of Member States, because the prohibitions, restrictions and privileges are not justified?

               4.

               Do [those prohibitions, restrictions and privileges] amount to an instance of arbitrary discrimination and a disguised restriction on trade between Member States, since they are not justified by any general interest?

               5.

               Does the exclusive right … granted to Santa Casa da Misericórdia de Lisboa in relation to advertising constitute an abuse of a dominant position under Community law?

               6.

               Are Articles 3 and 9 of [the Gaming Law] compatible with Community law?

               7.

               Are Articles 2 and 3 of Decree-Law No 282/2003 of 8 November 2003 compatible with the freedom of establishment and the freedom to provide services in the European Union, in so far as they grant an exclusive right to Santa Casa da Misericórdia de Lisboa to operate online gaming?

               8.

               The Portuguese State did not inform the European Commission of the technical regulations contained in [the Gaming Law]. Therefore, should such provisions be unenforceable and can individuals invoke that lack of enforceability?

               9.

               The Portuguese State did not inform the European Commission of the technical regulations contained in Decree-Law No 282/2003 of 8 November 2003. Therefore, are those provisions unenforceable as regards service providers in Portugal?


title: Judgment of the Court (Fifth Chamber) of 25 October 2001 in Case C-460/00: Commission of the European Communities v Hellenic Republic (Failure by a Member State to fulfil its obligations — Directive 96/48/EC — Interoperability of the trans-European high-speed rail system)

text:
8.12.2001                EN                     Official Journal of the European Communities                                             C 348/9
The interpretation given by the Court of Justice in Case 40/76             Article 68(2) of Council Regulation (EEC) No 1408/71 of 14 June
Kermaschek continues to hold good in relation to Article 2(1), in          1971 on the application of social security schemes to employed
conjunction with Articles 67 to 71a, of Regulation (EEC)                   persons, to self-employed persons and to members of their families
No 1408/71 of the Council of 14 June 1971 on the application of            moving within the Community, as amended and updated by Council
social security schemes to employed persons, to self-employed persons      Regulation (EC) No 118/97 of 2 December 1996, read in
and to members of their families moving within the Community, in           conjunction with Article 1(f)(i) thereof, precludes national rules, such
the version amended and updated by Council Regulation (EC)                 as those at issue in the main proceedings, under which receipt of a
No 118/97 of 2 December 1996, as amended by Council Regulation             higher rate of unemployment benefit is conditional on the unemployed
(EC) No 307/1999 of 8 February 1999.                                       person living together with the members of his family in the territory
                                                                           of the competent Member State.
(1) OJ C 233 of 12.8.2000.
                                                                           (1) OJ C 211 of 22.7.2000.
                  JUDGMENT OF THE COURT
                                                                                JUDGMENT OF THE COURT
                          (Third Chamber)
                                                                                (Fifth Chamber)
                        of 16 October 2001
                                                                                of 25 October 2001
in Case C-212/00 (reference for a preliminary ruling from
the Tribunal du travail de Mons): Salvatore Stallone v
             Office national de l’emploi (ONEM) (1)                        in Case C-460/00: Commission of the European Communi-
                                                                                ties v Hellenic Republic (1)
(Social security for migrant workers — Regulation (EEC)
No 1408/71 — Unemployment benefit — Condition of                           (Failure by a Member State to fulfil its obligations —
  living together with the dependent members of the family)                Directive 96/48/EC — Interoperability of the trans-Euro-
                                                                                pean high-speed rail system)
                           (2001/C 348/15)
                                                                                (2001/C 348/16)
                     (Language of the case: French)
                                                                                (Language of the case: Greek)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-212/00: reference to the Court under Article 234
EC from the Tribunal du travail de Mons (Labour Court, Mons)
(Belgium) for a preliminary ruling in the proceedings pending              In Case C-460/00: Commission of the European Communities
before that court between Salvatore Stallone and Office                    (Agents: M. Wolfcarius and M. Patakia) v Hellenic Republic
national de l’emploi (ONEM) — on the interpretation of                     (Agents: N. Dafniou and S. Chala) — application for a
Articles 1(f)(i) and 68(2) of Council Regulation (EEC)                     declaration that, by not adopting the laws, regulations and
No 1408/71 of 14 June 1971 on the application of social                    administrative provisions necessary to comply fully with
security schemes to employed persons, to self-employed                     Council Directive 96/48/EC of 23 July 1996 on the interop-
persons and to members of their families moving within the                 erability of the trans-European high-speed rail system (OJ
Community, as amended and updated by Council Regulation                    1996 L 235, p. 6), or, alternatively, by not communicating
(EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1)                     them to the Commission, within the prescribed period, the
— the Court (Third Chamber), composed of: C. Gulmann                       Hellenic Republic has failed to fulfil its obligations under the
(Rapporteur), acting for the President of the Third Chamber,               EC Treaty — the Court (Fifth Chamber), composed of: A. La
J.-P. Puissochet and J.N. Cunha Rodrigues, Judges; A. Tizzano,             Pergola, President of the Chamber, D.A.O. Edward, L. Sevón
Advocate General; D. Louterman-Hubeau, Head of Division,                   (Rapporteur) S. von Bahr and C.W.A. Timmermans, Judges;
for the Registrar, has given a judgment on 16 October 2001,                L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given
in which it has ruled:                                                     a judgment on 25 October 2001, in which it:
 ---pagebreak--- C 348/10               EN                     Official Journal of the European Communities                                     8.12.2001
1.   Declares that, by not adopting, within the prescribed period,            (c)    Are questions 1, 1(a) and 1(b) to be assessed
     the laws, regulations and administrative provisions necessary to                differently in the light of Articles 28 and 30 EC if
     comply fully with Council Directive 96/48/EC of 23 July 1996                    the imported medicines in question are medicines
     on the interoperability of the trans-European high-speed rail                   authorised in the importing State, which a pharmacy
     system, the Hellenic Republic has failed to fulfil its obligations              in an EU Member State previously obtained from
     under that Directive.                                                           wholesalers in the importing State?
2.   Orders the Hellenic Republic to pay the costs.                      2.   Is it compatible with Articles 28 and 30 EC for a national
                                                                              prohibition on advertising medicines by mail order,
                                                                              prescription medicines and medicines available only
(1) OJ C 45 of 10.2.2001.                                                     through pharmacies that are authorised in the State of
                                                                              origin but not the importing State to be interpreted so
                                                                              broadly that the Internet presentation of a pharmacy of
                                                                              an EU Member State, which in addition to presentation
                                                                              of its business describes individual medicines with their
                                                                              product name, prescription status, package size and price
                                                                              and at the same time offers the possibility of ordering
                                                                              those medicines by means of an on-line order form, is
                                                                              classified as prohibited advertising, with the result that
Reference for a preliminary ruling by the Landgericht                         cross-border orders of medicines by internet including
Frankfurt am Main by order of that court of 10 August                         delivery of those orders is at the very least made
2001 in the case of Deutscher Apothekerverband e.V.                           substantially more difficult?
        against DocMorris NV and Jacques Waterval
                                                                              (a)    Having regard to Article 1(3) of Directive
                         (Case C-322/01)                                             2000/31/EC (1) of 8 June 2000 (‘Directive on elec-
                                                                                tronic commerce’), do Articles 28 and 30 EC require
                                                                                the Internet presentation of a pharmacy of an EU
                         (2001/C 348/17)                                             Member State, as described above, or parts of that
                                                                                presentation, to be excluded from the definition of
                                                                                advertising to the general public for the purposes
                                                                                of Articles 1(3) and 3(1) of Council Directive
Reference has been made to the Court of Justice of the                               1992/28/EEC (2), of 31 March 1992 on the advertis-
European Communities by order of the Landgericht Frankfurt                           ing of medicinal products for human use, in order
am Main (Regional Court, Frankfurt am Main) of 10 August                             to make it practically possible to offer certain
2001, received at the Court Registry on 21 August 2001, for                          information society services?
a preliminary ruling in the case of Deutscher Apothekerver-
band e.V. v Doc Morris NV and Jacques Waterval on the                         (b) Can any restriction of the definition of advertising
following questions:                                                                 that may be required under Articles 28 and 30 EC
                                                                                be justified by the consideration that on-line order
1.   Are the principles of the free movement of goods under                          forms containing only the minimum information
     Article 28 et seq. of the Treaty infringed by national                          necessary for placing an order, and/or other parts of
     legislation which prohibits human medicines, which are                          the Internet presentation of a pharmacy of an EU
     required to be handled only through pharmacies, from                            Member State, are comparable with trade catalogues
     being imported commercially from other EU Member                                and/or price lists within the meaning of Article 1(4)
     States in mail-order business through authorised phar-                          of Directive 92/28/EEC?
     macies on the basis of individual orders placed by
     consumers over the Internet?                                        3.   If some aspects of the Internet presentation of a pharmacy
                                                                              of an EU Member State infringe provisions concerning
     (a)   Does such a national prohibition constitute a                      the advertising of medicines, is it to be inferred from
           measure having equivalent effect to a quantitative                 Articles 28 and 30 EC that cross-border trade in medicines
           restriction on imports within the meaning of                       which does take place with the help of such a presentation
           Article 28 of the EC Treaty?                                       must be regarded as legally permissible despite the
                                                                              prohibited advertising, in order more effectively to
                                                                              implement the principle of the free movement of goods
     (b) If it does, is Article 30 EC to be interpreted as                    across borders?
           meaning that a national prohibition designed to
           protect the health and life of humans is justified if,
           before prescription medicines are sent out, a doctor’s
           original prescription must have been produced to              (1) OJ L 178, 17.7.2000, p. 1.
           the pharmacy sending out the medicines? In such a             (2) OJ L 113, 30.4.1992, p. 13.
           situation, what requirements should be placed on
           that pharmacy as regards control of the order,
           packaging and receipt?


title: Case C-277/15: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 9 June 2015 — Servoprax GmbH v Roche Diagnostics Deutschland GmbH

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/28

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 9 June 2015 — Servoprax GmbH v Roche Diagnostics Deutschland GmbH
   (Case C-277/15)
   (2015/C 294/34)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Appellant on a point of law: Servoprax GmbH

      Respondent in the appeal on a point of law: Roche Diagnostics Deutschland GmbH

      Questions referred

               1.

               In the case of an in vitro diagnostic medical device for self-testing blood sugar levels which has undergone a conformity assessment by the manufacturer in accordance with Article 9 of Directive 98/79/EC (1) in Member State A (specifically: in the United Kingdom), which bears the CE marking of conformity in accordance with Article 16 of that directive and which meets the essential requirements set out in Article 3 of, and Annex I to, that directive, is a third party required to subject that device to a new or additional conformity assessment in accordance with Article 9 of Directive 98/79/EC before it places the device on the market in Member State B (specifically: in the Federal Republic of Germany) in packaging which contains instructions in the official language of Member State B, which differs from the official language of Member State A (specifically: German as opposed to English) and the instructions for the use of which are enclosed in the official language of Member State B rather than in that of Member State A?

               2.

               Does it make any difference in this case whether the instructions for use enclosed by the third party correspond word-for-word to the information which the manufacturer of the device uses for the purpose of distribution in Member State B?

      (1)  Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices (OJ 1998 L 331, p. 1), as amended by Commission Directive 2011/100/EU of 20 December 2011 (OJ 2011 L 341, p. 50).


title: Case T-439/07: Action brought on 4 December 2007 — Coats Holdings v Commission

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/26

         Action brought on 4 December 2007 — Coats Holdings v Commission
   (Case T-439/07)
   (2008/C 37/42)
   Language of the case: English
   Parties

      Applicant: Coats Holdings Ltd (represented by: W. Sibree and C. Jeffs, Solicitors)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Articles 1(4) and 2(4) of the decision insofar as they relate to Coats;

               —

               in the alternative, annul or reduce the fine imposed on Coats by Article 2(4) of the decision; and

               —

               order the Commission to bear its own costs and those incurred by Coats.

         Pleas in law and main arguments
   The applicant seeks the annulment of Commission Decision C(2007) 4257 final of 19 September 2007 in Case COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners, by which the Commission found that the applicant, together with other undertakings, had infringed Article 81 EC by among others exchanging price information, fixing minimum prices and sharing markets.
   In support of its application, the applicant submits that the Commission's assessment of the evidence as a whole is vitiated by manifest errors of assessment. According to the applicant the Commission failed to prove to the requisite standard that the applicant was a party to a bilateral market-sharing agreement with Prym between January 1977 and July 1998.
   In the alternative, the applicant submits that the Commission failed to prove that any infringement continued beyond 19 September 1997 or failed to prove a single continuous infringement for the period to 15 July 1998 entitling the Commission to fine the applicant for an infringement lasting 21  years.
   The applicant further, alternatively, claims that the Commission infringed the applicant's fundamental procedural rights under Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms to examine or have examined witnesses against it in proceedings of a criminal nature.
   Finally, the applicant alleges, in the alternative, that the Commission erred in mechanically applying a multiplier of 215 % to the basic amount of the fine for a duration of 21  years, rather than exercising its discretion under the applicable fining guidelines.


title: Case C-608/14: Order of the Court (Ninth Chamber) of 7 May 2015 (request for a preliminary ruling from the Tribunalul Sibiu — Romania) — Elena Delia Pondiche v Statul român, Consiliul Naţional pentru Combaterea Discriminării (Reference for a preliminary ruling — Charter of Fundamental Rights of the European Union — Grant of dependent child allowances — Determining the applicable law according to the date of birth of the child and not according to the date of conception — No implementation of EU law — Clear lack of jurisdiction of the Court)

text:
               28.9.2015

               EN

               Official Journal of the European Union

               C 320/14

         Order of the Court (Ninth Chamber) of 7 May 2015 (request for a preliminary ruling from the Tribunalul Sibiu — Romania) — Elena Delia Pondiche v Statul român, Consiliul Naţional pentru Combaterea Discriminării
   (Case C-608/14) (1)

   ((Reference for a preliminary ruling - Charter of Fundamental Rights of the European Union - Grant of dependent child allowances - Determining the applicable law according to the date of birth of the child and not according to the date of conception - No implementation of EU law - Clear lack of jurisdiction of the Court))
   (2015/C 320/19)
   Language of the case: Romanian

      Referring court

   Tribunalul Sibiu

      Parties to the main proceedings

      Applicant: Elena Delia Pondiche

      Defendant: Statul român, Consiliul Naţional pentru Combaterea Discriminării

      Operative part of the order

   The Court of Justice of the European Union clearly has no jurisdiction to answer the questions referred by the Tribunalul Sibiu (Romania), by decision of 20 November 2014.

      (1)  OJ C 89, 16.3.2015.


title: JUDGMENT OF THE COURT of 30 June 1998 in Case C-394/96 (reference for a preliminary ruling from the House of Lords): Mary Brown v. Rentokil Initial UK Limited (formerly Rentokil Limited) (Equal treatment for men and women - Dismissal of a pregnant woman - Absences due to illness arising from pregnancy)

text:
C 278/6              EN                Official Journal of the European Communities                                       5.9.98
              JUDGMENT OF THE COURT                               after a stipulated number of weeks of continuous absence
                                                                  does not affect the answer given.
                      of 30 June 1998
                                                                  (1) OJ C 40, 8.2.1997.
in Case C-394/96 (reference for a preliminary ruling from
the House of Lords): Mary Brown v. Rentokil Initial UK
           Limited (formerly Rentokil Limited) (1)
(Equal treatment for men and women Ð Dismissal of a
pregnant woman Ð Absences due to illness arising from
                         pregnancy)
                       (98/C 278/09)                                             JUDGMENT OF THE COURT
                                                                                (Second Chamber)
                                                                                of 2 July 1998
                                                                  in Joined Cases C-225/95, C-226/95 and C-227/95
               (Language of the case: English)                    (reference for a preliminary ruling from the Diikitiko
                                                                  Protodikio, Athens): Anestis Kapasakalis and Others v.
                                                                                Greek State (1)
                                                                  (Directive 89/48/EEC Ð General system for the
                                                                  recognition of higher-education diplomas Ð Scope Ð
In Case C-394/96: reference to the Court under Article 177                Situation purely internal to a Member State)
of the EC Treaty from the House of Lords (United
                                                                                (98/C 278/10)
Kingdom) for a preliminary ruling in the proceedings
pending before that court between Mary Brown and
Rentokil Initial UK Limited (formerly Rentokil Limited)
Ð on the interpretation of Articles 2(1) and 5(1) of
Council Directive 76/207/EEC of 9 February 1976 on the                            (Language of the case: Greek)
implementation of the principle of equal treatment for
men and women as regards access to employment,
vocational training and promotion, and working
conditions (OJ L 39, 14.2.1976, p. 40) Ð the Court,
composed of: C. Gulmann, President of the Third and                 (Provisional translation; the definitive translation will be
Fifth Chambers, acting as President, H. Ragnemalm, M.                      published in the European Court Reports)
Wathelet and R. Schintgen (Presidents of Chambers), G. F.
Mancini, P. J. G. Kapteyn (Rapporteur), J. L. Murray,
D. A. O. Edward, J.-P. Puissochet, P. Jann and L. Sevón,
Judges; D. Ruiz-Jarabo Colomer, Advocate-General; H.              In Joined Cases C-225/95, C-226/95 and C-227/95:
Von Holstein, Deputy Registrar, for the Registrar, has            reference to the Court under Article 177 of the EC Treaty
given a judgment on 30 June 1998, in which it has ruled:          from the Diikitiko Protodikio (Administrative Court of
                                                                  First Instance), Athens, for a preliminary ruling in the
                                                                  proceedings pending before that court between Anestis
                                                                  Kapasakalis, Dimitris Skiathitis, Antonis Kougiankas and
                                                                  Greek State Ð on the interpretation of Council Directive
                                                                  89/48/EEC of 21 December 1988 on a general system for
Articles 2(1) and 5(1) of Council Directive 76/207/EEC of         the recognition of higher-education diplomas awarded on
9 February 1976, on the implementation of the principle           completion of professional education and training of at
of equal treatment for men and women as regards access            least three years' duration (OJ L 19, 24.1.1989, p. 16) Ð
to employment, vocational training and promotion, and             the Court (Second Chamber), composed of: R. Schintgen,
working conditions, preclude dismissal of a female worker         President of the Chamber, G. F. Mancini (Rapporteur) and
ant any time during her pregnancy for absences due to             G. Hirsch, Judges; C. O. Lenz, Advocate-General; L.
incapacity for work caused by illness resulting from that         Hewlett, Administrator, for the Registrar, has given a
pregnancy.                                                        judgment on 2 July 1998, in which it has ruled:
                                                                  A national of a Member State in a situation which is
                                                                  confined in all respects within that one Member State may
The fact that a female worker has been dismissed during           not rely on the rights conferred by Council Directive 89/
her pregnancy on the basis of a contractual term providing        48/EEC of 21 December 1988 on a general system for the
that the employer may dismiss employees of either sex             recognition of higher-education diplomas awarded on


title: Case T-827/16: Action brought on 24 November 2016 — QB v ECB

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/53

         Action brought on 24 November 2016 — QB v ECB
   (Case T-827/16)
   (2017/C 022/72)
   Language of the case: French

      Parties

      Applicant: QB (Frankfurt-am-Main, Germany) (represented by: L. Levi, lawyer)

      Defendant: European Central Bank

      Form of order sought

               —

               Declare the present action admissible and well founded;

         In consequence:

               —

               Annul the staff report for 2015 and the decision of 15 December 2015, served on 7 January 2016, refusing the applicant the benefit of a salary progression;

               —

               In so far as necessary, annul the decisions of 2 May 2016 and 15 September 2016 rejecting the applicant’s administrative appeal and claim respectively;

               —

               Order the defendant to pay damages in respect of the non-pecuniary harm valued ex aequo et bono at EUR 15 000;

               —

               Order the defendant to pay all the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the General Instructions on the preparation of staff reports and of the procedure, infringement of the rights of the defence and infringement of the duty of care, committed by the defendant in adopting the staff report for 2015 (‘the contested staff report’). The applicant raises the following complaints in particular:

                           —

                           the lack of dialogue and the infringement of the rights of the defence;

                           —

                           the contested staff report does not set out any suggestions for improvement or set any objectives in the manner required by the General Instructions for the preparations of staff reports, which constitutes an infringement of the duty of care;

                           —

                           the lack of any intervention by an uninvolved supervisor.

               2.

               Second plea in law, alleging infringement of the rules of objectivity and impartiality and infringement of Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’) vitiating the contested staff report.

                           —

                           The applicant is of the opinion that the particular circumstances of the present case show that the reporting officers, and particularly the second reporting officers, were not capable of fulfilling their role objectively and impartially.

               3.

               Third plea in law, alleging a manifest error. The applicant has set out evidence which renders the assessments of the facts in the contested staff report implausible.

               4.

               Fourth plea in law, alleging that the decision of 15 December 2015 refusing the applicant the benefit of a salary progression is based on an unlawful staff report.

               5.

               Fifth plea in law, alleging infringement of the 2015 guidelines and the procedure and infringement of Article 41 of the Charter in that the decision of 15 December 2015 does not state any reasons and the applicant was not heard in advance.


title: Case T-210/04: Action brought on 1 June 2004 by Andreas Mausolf against Europol

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/24

         Action brought on 1 June 2004 by Andreas Mausolf against Europol
   (Case T-210/04)
   (2004/C 201/48)
   Language of the case: Dutch
   An action against Europol was brought before the Court of First Instance of the European Communities on 1 June 2004 by Andreas Mausolf, represented by M.F. Baltussen and P. de Casparis.
   The applicant claims that the Court should:

               —

               annul the rejection by Europol of 1 March 2004 of the applicant's complaint against the decision of 2 January 2003 and, at the same time, annul the contested decision of 2 January 2003;

               —

               order Europol to grant the applicant another additional salary increment with effect from 1 July 2002;

               —

               order Europol to pay that increment to the applicant within 48 hours of delivery of the judgment to be given in this case, together with the interest due thereon at the statutory rate prescribed by Netherlands law;

               —

               order Europol to reimburse the applicant for the costs incurred by him in these proceedings.

         Pleas in law and main arguments:
   In support of his application, the applicant alleges infringement of Article 29 of the Europol Staff Regulations, submits that Europol exceeded the limits of its discretion and alleges infringement of the principle of the protection of legitimate expectations.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 17 October 1996 in Case C-64/95 (reference for a preliminary ruling by the Finanzgericht des Landes Brandenburg): Konservenfabrik Lubella Friedrich Büker GmbH & Co. KG v. Hauptzollamt Cottbus (Common organization of the market in fruit and vegetables - Protective measures - Sour cherries)

text:
 21 . 12 . 96           EN |               Official Journal of the European Communities                                   No C 388/ 1
                                                                   I
                                                            (Information)
                                               COURT OF JUSTICE
                                                        COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                Article 27 (2) of the Convention of 27 September 1968 on
                         (Fifth Chamber)                              jurisdiction and the enforcement of judgments in civil and
                                                                      commercial matters, as amended by the Convention of
                       of 10 October 1996                             9 October 1978 relating to the accession of the Kingdom
in Case C-78/95 (reference for a preliminary ruling from              of Denmark, Ireland and the United Kingdom of Great
the Hoge Raad der Nederlanden ): Bernardus Hendrikman                 Britain and Northern Ireland, applies to judgments given
 and Maria Feyen v. Magenta Druck & Verlag GmbH (')                   against a defendant who was not duly served with, or
                                                                      notified of, the document instituting proceedings in
 (Brussels Convention — Interpretation of Article 27 (2) —            sufficient time and who was not validly represented during
Recognition of a decision — Definition of a defendant in              those proceedings, albeit the judgments given were not
                      default of appearance)                          given in default of appearance because someone
                          ( 96/C 388/01 )                             purporting to represent the defendant appeared before the
                                                                      court first seised.
                  (Language of the case: Dutch)                       (•) OJ No C 119 , 13 . 5 . 1995 .
  (Provisional translation; the definitive translation will be
            published in the European Court Reports)
In Case C-78/95 : reference to the Court pursuant to the
                                                                                JUDGMENT OF THE COURT
Protocol of 3 June 1971 on the interpretation by the
Court of Justice of the Convention of 27 September 1968                                         (Fifth Chamber)
on jurisdiction and the enforcement of judgments in civil                                   of 17 October 1996
and commercial matters from the Hoge Raad der
Nederlanden ( Supreme Court of the Netherlands ) for a                in Case C-64/95 ( reference for a preliminary ruling by the
preliminary ruling in the proceedings pending before that             Finanzgericht des Landes Brandenburg): Konservenfabrik
court between Bernardus Hendrikman and Maria Feyen,                   Lubella    Friedrich      Büker    GmbH     &    Co.   KG     v.
and Magenta Druck & Verlag GmbH — on the                                                 Hauptzollamt Cottbus ( ! )
interpretation of Article 27 ( 1 ) and ( 2 ) and Article 29 of
the Convention of 27 September 1968 on jurisdiction and               (Common organization of the market in fruit and
the enforcement of judgments in civil and commercial                       vegetables — Protective measures — Sour cherries)
matters ( OJ No L 299, 31 . 12 . 1972, p. 32 ), as amended                                       ( 96/C 388/02 )
by the Convention of 9 October 1978 relating to the
accession of the Kingdom of Denmark, Ireland and the
United Kingdom of Great Britain and Northern Ireland                                 (Language of the case: German)
( OJ No L 304, 30 . 10 . 1978 , p. 1 and, for the amended
text, p. 77), the Court ( Fifth Chamber), composed of: J. C.
Moitinho de Almeida , President of the Chamber, C.                      (Provisional translation; the definitive translation will be
Gulmann, D. A. O. Edward, P. Jann ( Rapporteur) and M.                         published in the European Court Reports)
Wathelet, Judges; F. G. Jacobs, Advocate-General; L.
Hewlett, Administrator, for the Registrar, gave a judgment
on 10 October 1996 , the operative part of which is as               In Case C-64/95 : reference by the Finanzgericht des Landes
follows :                                                            Brandenburg ( Finance Court of Land Brandenburg ) for
 ---pagebreak--- No C 388/2           LEN                    Official Journal of the European Communities                                         21 . 12 . 96
a preliminary ruling in the proceedings pending before                 1 . declares that, by failing to adopt within the prescribed
that Court between Konservenfabrik Lubella Friedrich                         period the measures necessary in order to comply with
Bilker GmbH & Co. KG and Hauptzollamt Cottbus on                             Council Directive 90/219/EEC of 23 April 1990 on
the validity of Commission Regulation (EEC ) No 1932/93                      the contained use of genetically modified micro
of 16 July 1993 establishing protective measures as                          organisms, and Council Directive 90/220/EEC of
regards the import of sour cherries ( OJ No L 174, 17. 7.                    23 April 1990 on the deliberate release into the
1993 , p. 35 ) — the Court (Third Chamber ), composed of:                    environment of genetically modified organisms, the
J. C. Moitinho de Almeida, President of the Chamber, C.                      Grand Duchy of Luxembourg has failed to fulfil its
Gulmann, D. A. O. Edward, J. -P. Puissochet ( Rapporteur)                    obligations under Articles 22 and 23 of those
and P. Jann, Judges; M. B. Elmer, Advocate-General; R.                       Directives respectively;
Grass, Registrar, gave a judgment on 17 October 1996,
the operative part of which is as follows:
                                                                       2 . orders the Grand Duchy of Luxembourg to pay the
                                                                             costs .
 Consideration of the questions referred to the Court has
disclosed no factor of such a kind as to affect the validity           ( i ) OJ No C 315 , 2.5 . 11 . 1995 .
of Commission Regulation (EEC) No 1932/93 establishing
protective measures as regards the import of sour cherries.
 (!) OJ No C 101 , 22 . 4 . 1995 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Sixth Chamber)
                                                                                of 24 October 1996
                JUDGMENT OF THE COURT                                  in     Case    C-325/95 :        Commission       of the   European
                                                                                Communities v. Ireland C1 )
                           (Fifth Chamber)
                                                                        (Failure of a Member State to fulfil obligations —
                        of 17 October 1996                             Directives 91/67/EEC, 91/492/EEC, 91/493/EEC and 92/
 in     Case C-3 12/95 : Commission of the European                     48/EEC — Failure to transpose within the prescribed
        Communities v. Grand Duchy of Luxembourg 0 )                                                     period)
                                                                                ( 96/C 388/04 )
 (Failure to fulfil obligations — Council Directives 90/219/
  EEC and 90/220/EEC — Genetically modified organisms)
                                                                                (Language of the case: English)
                            ( 96/C 388/03 )
                                                                        In Case C-325/95 : Commission of the European
                  (Language of the case: French)                        Communities ( Agent: Carmel O'Reilly) v. Ireland ( Agent:
                                                                        Michael A. Buckley ) — application for a declaration that,
                                                                        by failing to bring into force the laws, regulations or
    (Provisional translation; the definitive translation will be        administrative provisions necessary to comply with:
            published in the European Court Reports)
                                                                        — Council Directive 91/67/EEC of 28 January 1991
                                                                              concerning the animal health conditions governing the
 In Case C-312/95 : Commission of the European                                placing on the market of aquaculture animals and
  Communities ( Agent: Frank Benyon) v. Grand Duchy of                        products ( OJ No L 46 , 19 . 2 . 1991 , p. 1 ),
  Luxembourg (Agent: Nicolas Schmidt) — application for a
  declaration that, by failing to adopt within the prescribed
  period the measures necessary in order to comply with                 — Council Directive 91 /492/EEC of 15 July 1991 laying
  Council Directive 90/219/EEC of 23 April 1990 on the                        down the health conditions for the production and the
  contained use of genetically modified micro-organisms ( OJ                  placing on the market of live bivalve molluscs ( OJ No
  No L 117, 8 . 5 . 1990, p. 1 ), and Council Directive 90/                   L 268 , 24 . 9 . 1991 , p. 1 ),
  220/EEC of 23 April 1990 on the deliberate release into
  the environment of genetically modified organisms ( OJ No             — Council Directive 91/493/EEC of 22 July 1991 laying
  L 117, 8 . 5 . 1990, p. 15 ), the Grand Duchy of                            down the health conditions for the production and the
  Luxembourg has failed to fulfil its obligations under                       placing on the market of fishery products ( OJ No
  Articles 22 and 23 of those Directives respectively and                     L 268 , 24 . 9 . 1991 , p. 15 ), and
  under Articles 5 and 189 of the EC Treaty, the Court
  ( Fifth Chamber), composed of: J. C. Moitinho de
  Almeida, President of the Chamber, L. Sevon                           — Council Directive 92/48/EEC of 16 June 1992 laying
  ( Rapporteur), C. Gulmann, D. A. O. Edward and M.                           down the minimum hygiene rules applicable to fishery
  Wathelet, Judges; A. La Pergola, Advocate-General; R.                       products caught on board certain vessels in accordance
  Grass, Registrar, has given a judgment on 17 October                        with Article 3 ( 1 ) ( a ) ( i ) of Directive 91/493/EEC ( OJ
  1 996 in which it:                                                          No L 187, 7 . 7. 1992, p. 41 ),


title: Case T-425/16: Judgment of the General Court of 22 March 2017 — Hoffmann v EUIPO (European Union trade mark — Application for EU word mark Genius — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/40

         Judgment of the General Court of 22 March 2017 — Hoffmann v EUIPO
   (Case T-425/16) (1)

   ((European Union trade mark - Application for EU word mark Genius - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 144/54)
   Language of the case: German

      Parties

      Applicant: Karl Hoffmann (Bad Schwalbach, Germany) (represented by: C. Jonas, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: D. Walicka, agent)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 31 May 2016 (Case R 1631/2015-5), concerning an application for registration of the word sign Genius as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Karl Hoffmann to pay the costs.

      (1)  OJ C 343, 19.9.2016.


title: Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-404/02 (reference for a preliminary ruling from the High Court of Justice of England and Wales (Chancery Division): Nichols plc v Registrar of Trade Marks (Trade marks — Directive 89/104/EEC — Article 3(1)(b) — Trade mark comprising a common surname — Distinctive character — Impact of Article 6(1)(a) on assessment)

text:
               6.11.2004

               EN

               Official Journal of the European Union

               C 273/6

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 16 September 2004
   in Case C-404/02 (reference for a preliminary ruling from the High Court of Justice of England and Wales (Chancery Division): Nichols plc v Registrar of Trade Marks (1)

   (Trade marks - Directive 89/104/EEC - Article 3(1)(b) - Trade mark comprising a common surname - Distinctive character - Impact of Article 6(1)(a) on assessment)
   (2004/C 273/11)
   Language of the case: English
   In Case C-404/02: reference for a preliminary ruling under Article 234 EC, from the High Court of Justice of England and Wales, Chancery Division, (United Kingdom), made by decision of 3 September 2002, registered at the Court on 12 November 2002, in the proceedings between Nichols plc and Registrar of Trade Marks — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, R. Schintgen and N. Colneric, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it has ruled:
   In the context of Article 3(1)(b) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, the assessment of the existence or otherwise of the distinctive character of a trade mark constituted by a surname, even a common one, must be carried out specifically, in accordance with the criteria applicable to any sign covered by Article 2 of that directive, in relation, first, to the products or services in respect of which registration is applied for and, second, to the perception of the relevant consumers. The fact that the effects of registration of the trade mark are limited by virtue of Article 6(1)(a) of that directive has no impact on that assessment.

      (1)  OJ C 7, 11.1.2003.


title: Case F-17/05 REV: Judgment of the Civil Service Tribunal (3rd Chamber) of 15 June 2011 — de Brito Sequeira Carvalho v Commission (Civil service — Application for revision of a judgment — No new facts — Application inadmissible)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/47

         Judgment of the Civil Service Tribunal (3rd Chamber) of 15 June 2011 — de Brito Sequeira Carvalho v Commission
   (Case F-17/05 REV)
   (Civil service - Application for revision of a judgment - No new facts - Application inadmissible)
   2011/C 252/98
   Language of the case: French

      Parties

      Applicant: José Antonio de Brito Sequeira Carvalho (Brussels, Belgium) (represented by: N. Kanyonga Mulumba and M. Boury, lawyers)

      Defendant: European Commission (represented by: D. Martin, Agent)

      Re:

   Action by the applicant for revision of a judgment delivered by the Third Chamber of the Civil Service Tribunal on 13 December 2006 in Case F-17/05

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the application as inadmissible;

               2.

               Orders Mr. de Brito Sequeira Carvalho to pay all the costs.