title: Case C-490/01: Action brought on 17 December 2001 by the Commission of the European Communities against the Kingdom of Sweden

text:
2.3.2002                EN                    Official Journal of the European Communities                                        C 56/5
4.    Is the conclusion of a contract preceded by advertising            Reference for a preliminary ruling by the Verwaltungsge-
      within the meaning of Article 13(3)(a) of the Convention           richt Stuttgart by order of 20 November 2001 in the case
      where the other party to the subsequent contract with              of Georgios Orfanopoulos, Natasha Orfanopoulos, Melina
      the consumer advertised his products by brochure in the            Orfanopoulos and Sofia Orfanopoulos against Land Ba-
      Contracting State of the consumer but did not advertise                                   den-Württemberg
      the products the consumer subsequently bought in it?
                                                                                (Case C-482/01)
5.    Is there a consumer contract within the meaning of
      Article 13 of the Convention where the seller makes an                                      (2002/C 56/10)
      offer by telephone from his own State to the buyer who
      lives in a different State, and the offer is not accepted but
      the buyer subsequently buys the product thus offered in
                                                                         Reference has been made to the Court of Justice of the
      response to a written offer?
                                                                         European Communities by order of the Verwaltungsgericht
                                                                         Stuttgart (Finance Court Stuttgart) of 20 November 2001,
6.    Does the consumer take the steps necessary for the                 received at the Court Registry on 13 December 2001, for a
      conclusion of the contract in his own State within the             preliminary ruling in the case of Georgios Orfanopoulos,
      meaning of Article 13(3)(b) of the Convention where an             Natasha Orfanopoulos, Melina Orfanopoulos and Sofia Orfa-
      offer is made to him in the State of his contracting               nopoulos against Land Baden-Württemberg on the following
      partner and he accepts that offer by telephone from his            questions:
      own State?
                                                                         1.   Is a restriction on the freedom of movement of a foreign
                                                                              EU national with many year’s residence in a host State,
                                                                              ordered on account of a criminal offence under the
                                                                              Betäubungsmittelgesetz (Law on Narcotics), in conformity
                                                                              with European Law in terms of Article 39(3) EC on
                                                                              grounds of public policy, public security or public health,
                                                                              where, on account of his personal conduct, there is a
                                                                              justified expectation that he will also commit future
                                                                              criminal offences and where the spouse of the EU national
Reference for a preliminary ruling by the Amtsgericht                         and his children cannot reasonably be expected to live in
Frankenthal (Pfalz), by order of that court of 11 October                     his State of origin?
    2001, in criminal proceedings against Felix Kapper
                                                                         2.   Does Article 9(1) of Council Directive 64/221/EEC(1) of
                                                                              25 February 1964 preclude national legislation which no
                          (Case C-476/01)                                     longer provides for objection proceedings in which an
                                                                              examination of expediency is also carried out in relation
                                                                              to a decision of an administrative authority to expel the
                           (2002/C 56/09)                                     holder of a residence permit from the national territory, if
                                                                              a special body which is independent of the administrative
                                                                              authority adopting the decision has not been established?
Reference has been made to the Court of Justice of the                   (1) OJ L 56, p. 850.
European Communities by order of the Amtsgericht (District
Court) Frankenthal (Pfalz) of 11 October 2001, received at the
Court Registry on 7 December 2001, for a preliminary ruling
in the criminal proceedings against Felix Kapper, on the
following question:
                                                                         Action brought on 17 December 2001 by the Commission
Does Article 1(2) of Council Directive 91/439/EEC (1) of                 of the European Communities against the Kingdom of
29 July 1991 on driving licences preclude a Member State                                             Sweden
from refusing to recognise a driving licence where, according
to its investigations, another Member State issued that licence                                  (Case C-490/01)
although the holder of the licence did not have his normal
residence there, and in appropriate cases is actual effect to be                                  (2002/C 56/11)
given to that provision in that regard?
                                                                         An action against the Kingdom of Sweden was brought
(1) OJ L 237, 1991, p. 1.                                                before the Court of Justice of the European Communities on
                                                                         17 December 2001 by the Commission of the European
                                                                         Communities, represented by M. Wolfcarius and C. Tufvesson,
                                                                         acting as Agents, with an address for service in Luxembourg.
 ---pagebreak--- C 56/6                   EN                    Official Journal of the European Communities                                         2.3.2002
The Commission claims that the Court should:                              1.    Is Directive 2001/37/EC (1) invalid, in whole or in part,
                                                                                by reason of:
1.    declare that by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with                    a.      the inadequacy of Articles 95 and/or 133 EC as a
      Council Directive 98/76/EC (1) of 1 October 1998                                  legal basis;
      amending Directive 96/26/EC (2) on admission to the
      occupation of road haulage operator and road passenger
      transport operator and mutual recognition of diplomas,                    b.      the use of Articles 95 and 133 EC as a dual legal
      certificates and other evidence of formal qualifications                          basis;
      intended to facilitate for these operators the right to
      freedom of establishment in national and international                    c.      infringement of the principle of proportionality;
      transport operations the Kingdom of Sweden has failed
      to fulfil its obligations under that directive.
                                                                                d.      infringement of Article 295 EC, the fundamental
2.    order the Kingdom of Sweden to pay the costs of the                               right to property and/or Article 20 of TRIPs;
      proceedings.
                                                                                e.      infringement of Article 253 EC and/or the duty to
                                                                                give reasons;
Pleas in law and main arguments                                                 f.      infringement of the principle of subsidiarity;
Under the binding provisions of Articles 10 and 249 EC                          g.      misuse of powers?
the Member States must take all appropriate measures to
implement directives in national law within the prescribed                2.    If it is valid, does Article 7 of Directive 2001/37/EC of the
period. The period prescribed in Article 2(1) of Directive                      Parliament and Council apply only to tobacco products
98/76/EC ended on 1 October 1999 without the Kingdom                            marketed within the European Community, or does it
of Sweden having adopted the necessary laws and other                           apply also to tobacco products packaged within the
provisions.                                                                     European Community for export to third countries?
(1) OJ L 277, 14.10.1998, p. 17.
(2) OJ L 124, 23.5.1996, p. 1.                                            (1) Directive 2001/37/EC of the European Parliament and of the
                                                                              Council of 5 June 2001 on the approximation of the laws,
                                                                              regulations and administrative provisions of the Member States
                                                                              concerning the manufacture, presentation and sale of tobacco
                                                                              products — Commission statement (OJ L 194, 18/07/2001,
                                                                              p. 26).
Reference for a preliminary ruling by the High Court
of Justice (England & Wales), Queen’s Bench Division
(Administrative Court), by order of that court dated
6 December 2001, in the case of The Queen on the
application of 1) British American Tobacco (Investments)
Ltd, 2) Imperial Tobacco Ltd against Secretary of State for
                                Health                                    Reference for a preliminary ruling by the Verwaltungsge-
                                                                          richt Stuttgart by order of that court of 4 December 2001
                                                                          in the case of Raffaele Oliveri against Land Baden-
                           (Case C-491/01)                                                             Württemberg
                            (2002/C 56/12)                                                           (Case C-493/01)
                                                                                (2002/C 56/13)
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division (Adminis-
trative Court) dated 6 December 2001, which was received at               Reference has been made to the Court of Justice of the
the Court Registry on 19 December 2001, for a preliminary                 European Communities by order of the Verwaltungsgericht
ruling in the case of The Queen on the application of 1) British          Stuttgart (Stuttgart Administrative Court) of 4 December 2001,
American Tobacco (Investments) Ltd, 2) Imperial Tobacco                   received at the Court Registry on 19 December 2001, for a
Ltd against Secretary of State for Health, on the following               preliminary ruling in the case of Raffaele Oliveri against Land
questions:                                                                Baden-Württemberg on the following questions:


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 19 June 1996 in Case T-573/93: Manuel Francisco Caballero Montoya v. Commission of the European Communities (Officials - Person treated as a dependent child - Article 2 (4) of Annex VII to the Staff Regulations - General implementing provisions - Unlawfulness - Misapplication - Retroactive effect)

text:
10 . 8 . 96            EN                    Official Journal of the European Communities                               No C 233/7
                                                       COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                 JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 19 June 1996                                                          of 21 June 1996
in Case T-573/93 : Manuel Francisco Caballero Montoya v.                in Case T-226/94: Paul Dischamp SA v. Commission of the
        Commission of the European Communities (')                                        European Communities (')
(Officials — Person treated as a dependent child —                       (Suspension of the buying-in of butter by the intervention
Article 2 (4) of Annex VII to the Staff Regulations —                                 agencies — Action for damages)
General implementing provisions — Unlawfulness —                                                  ( 96/C 233/ 13 )
            Misapplication — Retroactive effect)
                         ( 96/C 233 / 12 )
                                                                                (Language of the case: French)
               (Language of the case: Spanish)                          In Case T-226/94 : Paul Dischamp SA, established at Sayat
                                                                        ( France ), represented by François Vignancour, of the
                                                                        Clermont-Ferrand Bar, and Louis Schiltz, of the
                                                                        Luxembourg Bar, with an address for service in
In Case T-573/93 : Manuel Francisco Caballero Montoya ,
                                                                        Luxembourg at the latter's Chambers v . Commission of the
an official of the Commission of the European
                                                                        European Communities ( Agent : Gérard Rozet ) —
Communities, represented by Juan Ramon Iturriagagoitia
                                                                        application for compensation for the damage allegedly
Bassas, of the Madrid Bar, with an address for service in
                                                                        suffered by the applicant following suspension of the
Luxembourg at the Chambers of Marc Loesch, 8 Rue Zithe ,                arrangements for the buying-in of butter by the intervention
v . Commission of the European Communities ( Agents : Ana               agencies from 1 1 January 1991 to 26 February 1991 — the
Maria Alves Vieira and Blanca Rodriguez Galindo ) —
                                                                        Court of First Instance ( Fifth Chamber ), composed of: R.
application, primarily, for a declaration that the general              Schintgen , President, R. García-Valdecasas and J. Azizi ,
implementing provisions relating to persons treated as                  Judges; H. Jung, Registrar, has given a judgment on 21 June
dependent children , adopted by the Commission on                       1996 , in which it:
28 September 1989 , in particular Article 6 thereof and the
connected rules , are illegal and, in the alternative, for
annulment      of  the   decision   of     the   Commission    of
                                                                        1 , dismisses the application;
2 September 1993 rejecting the complaint lodged by the
applicant against the decision partially rejecting his request          2 , orders the applicant to pay the costs.
of 3 December 1992 for his two sons, M. J. and J. J. , to be
treated as dependent children — the Court of First Instance             (>) OJ No C 218 , 6 . 8 . 1994 .
( Second Chamber ), composed of: H. Kirschner, President,
and C. W. Bellamy and A. Kalogeropoulos, Judges; H. Jung,
Registrar, has given a judgment on 19 June 1996 , in which
it :
1 , annuls the decision of the Commission of 2 September                 JUDGMENT OF THE COURT OF FIRST INSTANCE
     1993 , notified to the applicant by letter of 6 September                                   of 21 June 1996
     1993 , rejecting his complaint against the decision of
                                                                        in Case T-41 /95 : Andrew Macrae Moat v . Commission of
     12 February 1993 , together with the latter decision ,
     inasmuch as, whilst those decisions acknowledged the                               the European Communities (')
     applicant's entitlement to the allowance for a person              (Officials — Action for damages — Implemention of a
     treated as a dependent child as regards the first of his           judgment annulling an appointment — Late completion of
     two sons, they refused to grant him that allowance in                                          staff report)
     respect of his second son;                                                                   ( 96/C 233/ 14 )
                                                                                (Language of the case: English)
2 , dismisses the remainder of the action;
                                                                        In Case T-41 /95 : Andrew Macrae Moat, a former official of
3 , orders the Commission to pay the costs.                             the Commission of the European Communities, represented
                                                                        initially by Jacques Verhaegen , of the Brussels Bar, and
                                                                        subsequently by Mark Clough, Barrister, of the Bar of
(') OJ No C 27, 28 . 1 . 1994 .                                         England and Wales, against Commission of the European
                                                                        Communities ( Agents : Thomas F. Cusack and Julian
                                                                        Currall ) — application for compensation for harm allegedly
                                                                        suffered by the applicant as a result of the failure to
                                                                        implement or delay in implementing the judgment of the


title: Case T-6/11 P: Judgment of the General Court of 14 December 2011 — Commission v Vicente Carbajosa and Others (Appeal — Staff case — Officials — Recruitment — Notice of competition — Open competition — Non-admission to the written test following the result obtained in the admission tests — Distribution of powers between EPSO and the selection board — Principle of the right to be heard)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/25

         Judgment of the General Court of 14 December 2011 — Commission v Vicente Carbajosa and Others
   (Case T-6/11 P) (1)

   (Appeal - Staff case - Officials - Recruitment - Notice of competition - Open competition - Non-admission to the written test following the result obtained in the admission tests - Distribution of powers between EPSO and the selection board - Principle of the right to be heard)
   2012/C 32/52
   Language of the case: French

      Parties

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

      Defendants: Isabel Vicente Carbajosa (Brussels, Belgium); Niina Lehtinen (Brussels); and Myriam Menchén (Brussels) (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal and D. Abreu Caldas, lawyers)

      Re:

   Appeal against the judgment of the Civil Service Tribunal (First Chamber) of 28 October 2010 in Case F-9/09 Vicente Carbajosa and Others v Commission [2010] ECRSC I-0000, seeking to have that judgment set aside in part.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the Civil Service Tribunal of 28 October 2010 in Case F-9/09 Vicente Carbajosa and Others v Commission in so far as it annuls the decisions of the European Personnel Selection Office (EPSO) not to admit Ms Isabel Vicente Carbajosa in respect of the competition EPSO/AD/117/08 and Ms Niina Lehtinen and Ms Myriam Menchén in respect of the competition EPSO/AD/116/08 onto the list of candidates invited to submit a full application.

               2.

               Annuls the decision of EPSO not to admit Ms Vicente Carbajosa in respect of the competition EPSO/AD/117/08 and Ms Lehtinen and Ms Menchén in respect of the competition EPSO/AD/116/08 onto the list of candidates invited to submit a full application.

               3.

               Orders Ms Vicente Carbajosa, Ms Lehtinen and Ms Menchén and the European Commission to bear their own costs.

      (1)  OJ C 72, 5.3.2011.


title: Case C-338/03: Reference for a preliminary ruling by the Tribunale Civile e Penale di Perugia — Ufficio per le indagini preliminari — by order of that Court of 12 June 2003 in the case against Alessandrello Rosario and Others

text:
1.11.2003                EN                           Official Journal of the European Union                                           C 264/15
1.   Council Directive 93/104/EC of 23 November 1993 concern-                 Penale di Perugia — Ufficio per le indagini preliminari —
     ing certain aspects of the organisation of working time must be          (District Civil and Criminal Court, Perugia — Preliminary
     interpreted as meaning that on-call duty (‘Bereitschaftsdienst’)         Investigations Section) of 12 June 2003, received at the Court
     performed by a doctor where he is required to be physically              Registry on 1st August 2003, for a preliminary ruling in the
     present in the hospital must be regarded as constituting in its          case against Alessandrello Rosario and Others on the following
     totality working time for the purposes of that directive even            questions:
     where the person concerned is permitted to rest at his place of
     work during the periods when his services are not required with
     the result that that directive precludes legislation of a Member
     State which classifies as rest periods an employee’s periods of
                                                                              1.   With reference to the duty of each Member State to adopt
     inactivity in the context of such on-call duty.
                                                                                ‘appropriate penalties’ for the infringements established
                                                                                by the first and fourth directives (Directive 68/151/
2.   Directive 93/104 must also be interpreted as meaning that:                    EEC (1) and Directive 78/660/EEC (2)), must the directives
                                                                                themselves and in particular the combined provisions of
     —      in circumstances such as those in the main proceedings,                Article 44(3)(g) of the EC Treaty, Articles 2(1)(f) and 6 of
            that directive precludes legislation of a Member State                 the first directive (Directive 68/151/EEC) and Article 2(2),
            which, in the case of on-call duty where physical presence             (3) and (4) of the fourth directive (Directive 78/660/EEC),
            in the hospital is required, has the effect of enabling, in            as consolidated by Directive 83/349 (3) and Directive 90/
            an appropriate case by means of a collective agreement or              605 (4), be interpreted as meaning that that legislation
            a works agreement based on a collective agreement, an                  precludes a law of a Member State which, in amending
            offset only in respect of periods of on-call duty during               the system of penalties already in force in respect of
            which the worker has actually been engaged in professional             company law offences concerning the infringement of the
            activities;                                                            obligations imposed in order to safeguard the principle of
                                                                                public and accurate information on companies, lays
                                                                                down a sanctionative system which in the specific
     —      in order to come within the derogating provisions set out              instance is not informed by the criteria of effectiveness,
            in Article 17(2), subparagraph 2.1(c)(i) of the directive,             proportionality and dissuasiveness of the sanctions
            a reduction in the daily rest period of 11 consecutive hours           imposed in order to ensure that that principle is upheld?
            by a period of on-call duty performed in addition to
            normal working time is subject to the condition that
            equivalent compensating rest periods be accorded to the
            workers concerned at times immediately following the
            corresponding periods worked;                                     2.   Must those directives and, in particular, Article 44(3)(g)
                                                                                of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
                                                                                (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
     —      furthermore, in no circumstances may such a reduction in
                                                                                fourth directive (Directive 78/660/EEC), as consolidated
            the daily rest period lead to the maximum weekly working
                                                                                by Directive 83/349 and Directive 90/605), be interpreted
            time laid down in Article 6 of the directive being exceeded.
                                                                                as meaning that that legislation precludes a law of a
                                                                                Member State which does not make it a punishable
                                                                                offence for companies to infringe obligations concerning
(1) OJ C 156 of 29.6.2002.                                                         disclosure and the provisions of accurate information on
                                                                                certain company documents (including the balance sheet
                                                                                and the profit and loss account) where the disclosure
                                                                                of false company accounts or the failure to provide
                                                                                information result in a distortion of the financial results
                                                                                for a given period, or a distortion in the net assets, which
                                                                                does not exceed a certain percentage threshold?
Reference for a preliminary ruling by the Tribunale Civile
e Penale di Perugia — Ufficio per le indagini preliminari                     3.   Must those directives and, in particular, Article 44(3)(g)
— by order of that Court of 12 June 2003 in the case                               of the EC Treaty, Articles 2(1)(f) and 6 of the first directive
          against Alessandrello Rosario and Others                                 (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
                                                                                fourth directive (Directive 78/660/EEC), as consolidated
                           (Case C-338/03)                                         by Directive 83/349 and Directive 90/605), be interpreted
                                                                                as meaning that that legislation precludes a law of a
                                                                                Member State which does not make it a punishable
                           (2003/C 264/25)                                         offence for companies to infringe obligations concerning
                                                                                disclosure and the provision of accurate information
                                                                                where statements are made which, although aimed at
                                                                                deceiving members or the public with a view to securing
                                                                                an unjust profit, are the consequence of estimated
Reference has been made to the Court of Justice of the                             valuations which, taken individually, depart from actual
European Communities by order of the Tribunale Civile e                            values to an extent not greater than a certain threshold?
 ---pagebreak--- C 264/16                 EN                         Official Journal of the European Union                                            1.11.2003
4.    Irrespective of progressive limits or thresholds, must                (3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
      those directives and, in particular, Article 44(3)(g) of the              the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ
      EC Treaty, Articles 2(1)(f) and 6 of the first directive                  L 193 of 18.7.1983, p. 1).
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the           (4) Council Directive 90/605/EEC of 8 November 1990 amending
                                                                                Directive 78/660/EEC on annual accounts and Directive 83/349/
      fourth directive (Directive 78/660/EEC), as consolidated                  EEC on consolidated accounts as regards the scope of those
      by Directive 83/349 and Directive 90/605), be interpreted                 Directives (OJ L 317 of 16.11.1990, p. 60).
      as meaning that that legislation precludes a law of a
      Member State which does not make it a punishable
      offence for companies to infringe obligations concerning
      disclosure and the provision of accurate information
      where the false statements or the fraudulent omissions
      and, thus, the disclosures and statements which do not
      give a true and fair view of the company’s assets and
      liabilities and financial position do not distort ‘to an              Reference for a preliminary ruling by the Tribunale di
      appreciable extent’ the company’s assets, liabilities and             Cagliari — Sezione Civile — by order of that Court of
      financial position (even though it is for the national                29 April 2003 in the case of Giuseppe Atzeni and Others
      legislature to define the concept of ‘appreciable distor-                       against Regione Autonoma della Sardegna
      tion’?
                                                                                (Case C-346/03)
5.    Must those directives and, in particular, Article 44(3)(g)
      of the EC Treaty, Articles 2(1)(f) and 6 of the first directive                                 (2003/C 264/26)
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
      fourth directive (Directive 78/660/EEC), as consolidated
      by Directive 83/349 and Directive 90/605), be interpreted
                                                                            Reference has been made to the Court of Justice of the
      as meaning that that legislation precludes a law of a
                                                                            European Communities by order of the Tribunale di Cagliari
      Member State which, in response to an infringement by
                                                                            — Sezione Civile (Cagliari District Court — Civil Chamber) of
      companies of those obligations concerning disclosure
                                                                            29 April 2003, received at the Court Registry on 6 August
      and the provision of accurate information imposed on
                                                                            2003, for a preliminary ruling in the case of Giuseppe Atzeni
      them in order to safeguard ‘the interests of both members
                                                                            and Others against Regione Autonoma della Sardegna on the
      and third parties’, allows only members and creditors to
                                                                            following questions on the validity of Commission Decision
      seek imposition of a penalty, thereby excluding third
                                                                            No 612/97 (1), with regard to the following defects:
      parties from any general and effective protection?
                                                                            (a)   lack of competence of the Commission to adopt the
                                                                                contested decision inasmuch as it infringes Article 32 of
6.    Must those directives and, in particular, Article 44(3)(g)                  the Treaty on European Union in conjunction with
      of the EC Treaty, Articles 2(1)(f) and 6 of the first directive             Articles 33, 34, 35, 36, 37 and 38 thereof;
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
      fourth directive (Directive 78/660/EEC), as consolidated              (b) infringement of the rules which govern the procedure
      by Directive 83/349 and Directive 90/605), be interpreted                   provided for in Article 88(1) of the Treaty on European
      as meaning that that legislation precludes a law of a                       Union;
      Member State which, in response to the infringement by
      companies of those obligations concerning disclosure                  (c)   infringement of the rules which govern the procedure
      and the provision of accurate information imposed on                        provided for in Article 88(2) and (3) of the Treaty on
      them in order to safeguard ‘the interests of both members                   European Union;
      and third parties’, provides for prosecution machinery and
      a sanctionative system which are markedly differentiated,
                                                                            (d) failure to provide a statement of reasons as required
      whereby the possibility of the imposition of a punishment
                                                                                by Article 253 of the Treaty on European Union in
      upon complaint being made, together with more serious
                                                                                conjunction with Articles 88(3) and 87(1) thereof;
      and effective penalties, is reserved solely for infringements
      occasioning loss to members and creditors?
                                                                            (e)   infringement and misapplication of Council Regulation
                                                                                No 797/85 (2) on improving the efficiency of agricultural
                                                                                structures;
(1) First Council Directive 68/151/EEC of 9 March 1968 on co-               (f)   infringement of and failure to observe ‘practice for aid to
    ordination of safeguards which, for the protection of the interests           farms in difficulty’ and the ‘Community guidelines on
    of members and others, are required by Member States of                       State aid for rescuing and restructuring firms in difficulty’.
    companies within the meaning of the second paragraph of
    Article 58 of the Treaty, with a view to making such safeguards
    equivalent throughout the Community (English special edition...:
                                                                            (1) OJ L 248 of 11.9.1997, p. 27.
    Series-I I Chapter 1968(I), p. 41).
                                                                            (2) OJ L 93 of 30.3.1985, p. 1.
(2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on
    Article 54 (3) (g) of the Treaty on the annual accounts of certain
    types of companies (OJ L 222 of 14.8.1978, p. 11).


title: Case C-295/02: Reference for a preliminary ruling by the Niedersächsisches Oberverwaltungsgericht by order of that Court of 1 August 2002 in the administrative-law case of Mrs Gisela Gerken against Amt für Agrarstruktur Verden

text:
26.10.2002             EN                   Official Journal of the European Communities                                     C 261/5
3.    Are the administrative and control procedures for the            Is the amount of aid also to be reduced under the second
      reduction in excise duty which is possible under                 indent of Article 10(2)(a) of Regulation (EEC) No 3887/92 (1)
      Article 8(2)(f) of Directive 92/81/EEC governed by               where the special premium for male bovine animals applied
      Article 8(8) of Directive 92/81/EEC without the appli-           for when this provision of Community law was in force cannot
      cation of a marker or by Article 1(1) of Directive 95/60/        for legal reasons be granted to the farmer but where in the
      EC ( 2)?                                                         words of Article 44(1) of Regulation (EC) No 2419/2001 (2),
                                                                       the farmer submitted factually correct information or can
                                                                       show otherwise that he was not at fault?
4.    If the third question should be answered to the effect that
      the Member States which exercise the power under
      Article 8(2)(f) of Directive 92/81/EEC are obliged, in
      an instance comparable to the present case, to grant             (1 ) OJ L 391, 31.12.1992, p. 36.
                                                                       (2 ) OJ L 327, 12.12.2001, p. 11.
      reductions in duty also in the form of a refund of excise
      duty, is a reduction in excise duty for agricultural works
      contrary to the freedom to provide services if the
      reduction is linked to a marking procedure under
      Article 1(1) of Directive 95/60/EC that is not applied in
      this context by other Member States, which on the
      contrary impose excise-duty penalties in the case of
      markings for which no provision is made under their
      legal systems?
                                                                       Action brought on 21 August 2002 by the Italian Republic
5.    If the answer to the fourth question should be in the               against the Commission of the European Communities
      affirmative, does the breach of the freedom to provide
      services mean that liability to pay duty is expunged, or
                                                                                (Case C-298/02)
      would the claimant, in order to achieve exemption from
      duty, be obliged to ask for unmarked mineral oil and
      apply for a refund of excise duty in the Member State in                                 (2002/C 261/09)
      which it obtains marked gas oil at a reduced rate of duty?
( 1) OJ L 316, 31.10.1992, p. 12.
( 2) OJ L 291, 6.12.1995, p. 46.                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of Justice of the European
                                                                       Communities on 21 August 2002 by the Commission of the
                                                                       European Communities, represented by Umberto Leanza,
                                                                       acting as Agent, assisted by Maurizio Fiorilli, avvocato dello
                                                                       Stato.
                                                                       The applicant claims that the Court should:
Reference for a preliminary ruling by the Niedersächsi-                —     annul Commission decision No 2281 (1) of 26 June
sches Oberverwaltungsgericht by order of that Court of                       2002 in so far as it makes a financial correction of
1 August 2002 in the administrative-law case of Mrs Gisela                   EUR 12 253 816 in respect of account headings B1-
        Gerken against Amt für Agrarstruktur Verden                          1512-001 and B1-1512-004 so far as concerns Italy.
                         (Case C-295/02)
                                                                       Pleas in law and main arguments
                         (2002/C 261/08)
                                                                       Aid for peaches and pears intended for the production of fruit
                                                                       salad — financial correction
Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony, Higher Administrat-              According to the Commission, during the 1995-96, 1996-
ive Court) of 1st August 2002, received at the Court Registry          97 and 1997-98 marketing years, aid was granted for a final
on 19 August 2002, for a preliminary ruling in the administrat-        product which did not conform to the definitions contained in
ive-law case of Mrs Gisela Gerken against Amt für Agrar-               Regulations (EEC) No 1558/91 (2) and (EC) No 504/97 (3). The
struktur (Office for Agriculture) Verden on the following              two regulations provided for the payment of aid for whole or
question:                                                              sliced peaches and pears provided that they had undergone


title: Case C-670/16: Request for a preliminary ruling from the Verwaltungsgericht Minden (Germany) lodged on 29 December 2016 — Tsegezab Mengesteab v Bundesrepublik Deutschland

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/28

         Request for a preliminary ruling from the Verwaltungsgericht Minden (Germany) lodged on 29 December 2016 — Tsegezab Mengesteab v Bundesrepublik Deutschland
   (Case C-670/16)
   (2017/C 104/42)
   Language of the case: German

      Referring court

   Verwaltungsgericht Minden

      Parties to the main proceedings

      Applicant: Tsegezab Mengesteab

      Defendant: Bundesrepublik Deutschland

      Questions referred

               1.

               May an asylum applicant claim a transfer of responsibility to the requesting Member State by reason of the expiry of the period for making the take charge request (third subparagraph of Article 21(1) of Regulation No 604/2013 (1))?

               2.

               If Question 1 is to be answered in the affirmative: may an asylum applicant claim a transfer of responsibility even if the requested Member State is still willing to take charge of him?

               3.

               If Question 2 is to be answered in the negative: can it be inferred from the express consent or the deemed consent (Article 22(7) of Regulation No 604/2013) of the requested Member State that the requested Member State is still willing to take charge of the asylum applicant?

               4.

               Can the two-month period provided for in the second subparagraph of Article 21(1) of Regulation No 604/2013 end after the expiry of the three-month period provided for in the first subparagraph of Article 21(1) of Regulation No 604/2013 if the requesting Member State allows more than one month to pass after the beginning of the three-month period before it makes a request to the Eurodac database?

               5.

               Is an application for international protection deemed to have been lodged for the purposes of Article 20(2) of Regulation No 604/2013 when a certificate of registration as an asylum seeker is first issued or only when a formal asylum application is recorded? In particular:

                           (a)

                           Is the certificate of registration as an asylum seeker a form or a report within the meaning of Article 20(2) of Regulation No 604/2013?

                           (b)

                           Is the competent authority within the meaning of Article 20(2) of Regulation No 604/2013 the authority responsible for receiving the form or for preparing the report or the authority responsible for the decision on the asylum application?

                           (c)

                           Has a report prepared by the authorities reached the competent authority even if that authority was informed of the main content of the form or the report, or must the original or a copy of the report be communicated to it for that purpose?

               6.

               Can delays between the first request for asylum or the first issue of a certificate of registration as an asylum seeker and the submission of a take charge request lead to a transfer of responsibility to the requesting Member State by analogous application of the third subparagraph of Article 21(1) of Regulation No 604/2013 or require the requesting Member State to exercise its right to assume responsibility pursuant to the first subparagraph of Article 17(1) of Regulation No 604/2013?

               7.

               If Question 6 is to be answered in the affirmative in respect of either alternative: from what time can there be considered to be an unreasonable delay in submitting a take charge request?

               8.

               Does a take charge request in which the requesting Member State indicates only the date of entry into the requesting Member State and the date of submission of the formal asylum application, but not also the date of the first request for asylum or the date of first issue of a certificate of registration as an asylum seeker, comply with the time limit provided for in the first subparagraph of Article 21(1) of Regulation No 604/2013, or is such a request ‘ineffective’?

      (1)  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31).


title: Case C-488/07: Reference for a preliminary ruling from Court of Session (Scotland), Edinburgh (United Kingdom) made on 5 November 2007 — Royal Bank of Scotland plc v The Commissioners of Her Majesty's Revenue & Customs

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/9

         Reference for a preliminary ruling from Court of Session (Scotland), Edinburgh (United Kingdom) made on 5 November 2007 — Royal Bank of Scotland plc v The Commissioners of Her Majesty's Revenue & Customs
   (Case C-488/07)
   (2008/C 8/16)
   Language of the case: English
   Referring court
   Court of Session (Scotland), Edinburgh
   Parties to the main proceedings

      Applicant: Royal Bank of Scotland plc

      Defendan: The Commissioners of Her Majesty's Revenue & Customs
   Questions referred

               1.

               Does the second paragraph of Article 19(1) of the Sixth VAT Directive 77/388/EEC (1) require the proportion deductible by a taxable person under Article 17(5) to be determined on an annual basis, fixed as a percentage and rounded up to a figure not exceeding the next unit where:

                           a.

                           that proportion is a proportion which has been determined for a sector of the business of the taxable person in accordance with either item (a) or (b) of the third subparagraph of Article 17(5); and/or

                           b.

                           that proportion is a proportion which has been determined on the basis of the use of all or part of goods and services by the taxable person in accordance with item (c) of the third subparagraph of Article 17(5); and/or

                           c.

                           that proportion is a proportion which has been determined in respect of all goods and services used by the taxable person for all transactions referred to in the first paragraph of Article 17(5), in accordance with item (d) of the third subparagraph thereof?

               2.

               Does the second subparagraph of the said Article 19(1) permit Member States to require the proportion deductible by a taxable person under Article 17(5) to be rounded up to a figure other than the next highest whole number?

      (1)  OJ L 145 p. 1.


title: Case C-281/13 P: Appeal brought on 22 May 2013 by Lord Inglewood and Others against the judgment of the General Court (Fourth Chamber) delivered on 13 March 2013 in Joined Cases T-229/11 and T-276/11 Inglewood and Others v Parliament

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 226/3

         Appeal brought on 22 May 2013 by Lord Inglewood and Others against the judgment of the General Court (Fourth Chamber) delivered on 13 March 2013 in Joined Cases T-229/11 and T-276/11 Inglewood and Others v Parliament
   (Case C-281/13 P)
   (2013/C 226/06)
   Language of the case: French

      Parties

      Appellants: Lord Inglewood and Others (represented by: S. Orlandi, J.-N. Louis, D. Abreu Caldas, lawyers)

      Other party to the proceedings: European Parliament

      Form of order sought

               —

               order

                           —

                           that the judgment of the General Court of the European Union (Fourth Chamber) of 13 March 2013 in Joined Cases T-229/11 and T-276/11 Inglewood and Others v Parliament is annulled;

               —

               ruling again, order:

                           —

                           that the Decision of the Bureau of the European Parliament increasing the retirement age from 60 to 63 and abolishing the special methods of obtaining a pension, either early or in the form of a lump sum;

                           —

                           that the contested decisions are annulled;

                           —

                           the Parliament to pay the costs of the two proceedings.

      Pleas in law and main arguments

   The appellants bring an appeal against the judgment of the General Court, by which the latter dismissed their action for annulment of the decisions of the European Parliament refusing to grant them their voluntary additional pension, early, at the age of 60 or in part in the form of a lump sum.
   In the first place, the appellants allege an error of law by the General Court, to the effect that the contested decisions infringed their acquired rights or rights pending insolvency in the circumstances fixed and accepted at the time they took up office.
   In the second place, the General Court erred in law by disregarding the plea alleging infringement of Article 27(2) of the Statute for Members, although that provision states that acquired rights and future entitlements are to be maintained. The decision of 1 April 2009 adversely affects the appellants’ acquired rights, that is to say the rights to request an early pension or to receive it at the age of 60 or, as the case may be, in part in the form of a lump sum.
   In the third place, the General Court also erred in law by ruling that the Statute for Members was not applicable since it entered into force after the decision of general application of 1 April 2009, whereas the individual decisions which are the subject-matter of the appeals were taken after that date.
   In the fourth place, the General Court erred in law by rejecting the plea alleging infringement of the principle of equal treatment while the appellants could legitimately expect to receive their pension, according to the conditions fixed and applied during a substantial part of the payment of their contributions or on the day they ended their activities, more than those who enjoyed derogations, that is to say, those who were still carrying on activities and had reached the age of 60 prior to the entry into force, on 14 July 2009, of the decision of 1 April 2009.
   In the last place, the General Court erred in law by rejecting the plea alleging infringement of the principle of proportionality after holding that only 10 % of the members bear the consequences of the financial crisis and the predictable effects of a temporary fund, which is destined to disappear.


title: Case C-79/13: Judgment of the Court (Fourth Chamber) of 27 February 2014 (request for a preliminary ruling from the Arbeidshof te Brussel (Belgium)) — Federaal agentschap voor de opvang van asielzoeker v Selver Saciri, Danijela Dordevic, Danjel Saciri, represented by Selver Saciri and Danijela Dordevic, Sanela Saciri, represented by Selver Saciri and Danijela Dordevic, Denis Saciri, represented by Selver Saciri and Danijela Dordevic, Openbaar Centrum voor Maatschappelijk Welzijn van Diest (Directive 2003/9/EC — Minimum standards for the reception of asylum seekers in the Member States — Article 13(1) — Time-limits for material reception conditions — Article 13(2) — Provisions on material reception conditions — Guarantees — Article 13(5) — Setting and grant of minimum reception conditions for asylum seekers — Size of the aid granted — Article 14 — Modalities for material reception conditions — Saturation of the reception facilities — Referral to national social protection systems — Provision of the material reception conditions in the form of financial allowances)

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/14

         Judgment of the Court (Fourth Chamber) of 27 February 2014 (request for a preliminary ruling from the Arbeidshof te Brussel (Belgium)) — Federaal agentschap voor de opvang van asielzoeker v Selver Saciri, Danijela Dordevic, Danjel Saciri, represented by Selver Saciri and Danijela Dordevic, Sanela Saciri, represented by Selver Saciri and Danijela Dordevic, Denis Saciri, represented by Selver Saciri and Danijela Dordevic, Openbaar Centrum voor Maatschappelijk Welzijn van Diest
   (Case C-79/13) (1)

   ((Directive 2003/9/EC - Minimum standards for the reception of asylum seekers in the Member States - Article 13(1) - Time-limits for material reception conditions - Article 13(2) - Provisions on material reception conditions - Guarantees - Article 13(5) - Setting and grant of minimum reception conditions for asylum seekers - Size of the aid granted - Article 14 - Modalities for material reception conditions - Saturation of the reception facilities - Referral to national social protection systems - Provision of the material reception conditions in the form of financial allowances))
   2014/C 112/16
   Language of the case: Dutch

      Referring court

   Arbeidshof te Brussel

      Parties to the main proceedings

      Applicant: Federaal agentschap voor de opvang van asielzoeker

      Defendants: Selver Saciri, Danijela Dordevic, Danjel Saciri, represented by Selver Saciri and Danijela Dordevic, Sanela Saciri, represented by Selver Saciri and Danijela Dordevic, Denis Saciri, represented by Selver Saciri and Danijela Dordevic, Openbaar Centrum voor Maatschappelijk Welzijn van Diest

      Re:

   Request for a preliminary ruling — Arbeidshof te Brussel — Interpretation of Articles 13(1), (2) and (5) and 14(1), (3), (5) and (8) of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18) — Grant of financial assistance — Obligations of the Member States — Saturation of national reception structures for accommodating asylum seekers.

      Operative part of the judgment

               1.

               Article 13(5) of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers must be interpreted as meaning, where a Member State has opted to grant the material reception conditions in the form of financial allowances or vouchers, that those allowances must be provided from the time the application for asylum is made, in accordance with the provisions of Article 13(1) of that directive, and must meet the minimum standards set out in Article 13(2) thereof. That Member State must ensure that the total amount of the financial allowances covering the material reception conditions is sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence, enabling them in particular to find housing, having regard, if necessary, to the preservation of the interests of persons having specific needs, pursuant to Article 17 of that directive. The material reception conditions laid down in Article 14(1), (3), (5) and (8) of Directive 2003/9 do not apply to the Member States where they have opted to grant those conditions in the form of financial allowances only. Nevertheless, the amount of those allowances must be sufficient to enable minor children to be housed with their parents, so that the family unity of the asylum seekers may be maintained.

               2.

               Directive 2003/9 must be interpreted as meaning that it does not preclude, where the accommodation facilities specifically for asylum seekers are overloaded, the Member States from referring the asylum seekers to bodies within the general public assistance system, provided that that system ensures that the minimum standards laid down in that directive as regards the asylum seekers are met.

      (1)  OJ C 114, 20.4.2013.


title: Case T-287/14 R: Order of the President of the General Court of 4 September 2014 — Schaeffler Technologies v Commission (Application for interim measures — State aid — National support for the generation of renewable electricity — Commission decision to open the State aid formal investigation procedure — Application for suspension of operation of a measure — Prima facie case)

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/24

         Order of the President of the General Court of 4 September 2014 — Schaeffler Technologies v Commission
   (Case T-287/14 R)
   ((Application for interim measures - State aid - National support for the generation of renewable electricity - Commission decision to open the State aid formal investigation procedure - Application for suspension of operation of a measure - Prima facie case))
   (2014/C 431/41)
   Language of the case: German

      Parties

      Applicant: Schaeffler Technologies GmbH & Co. KG (Herzogenaurach, Germany) (represented by: T. Volz and B. Wißmann, lawyers)

      Defendant: European Commission (represented by: T. Maxian Rusche and R. Sauer, Agents)

      Re:

   Application to suspend the legal effects of the decision by which the Commission opened the State aid formal investigation procedure concerning the German law on renewable energy.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case T-322/09: Action brought on 14 August 2009 — Al-Faqih and MIRA v Council and Commission

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/47

         Action brought on 14 August 2009 — Al-Faqih and MIRA v Council and Commission
   (Case T-322/09)
   2010/C 113/77
   Language of the case: English

      Parties

      Applicants: Saad Al-Faqih and Movement for Islamic Reform in Arabia (London, United Kingdom), (represented by: J. Jones, Barrister and A. Raja, Solicitor)

      Defendants: Council of the European Union and European Commission

      Form of order sought

               —

               annul in whole or in part Council Regulation (EC) No 881/2002 (1), as amended by the Commission Regulation (EC) No 14/2005 (2), No 492/2007 (3), and No 1190/2005 (4), and/or annul the Commission Regulation No 14/2005, No 492/2007, and No 1190/2005 insofar as they are of direct and individual concern to the applicants; and

               —

               order the Council and/or the Commission to pay the applicants’ costs.

      Pleas in law and main arguments

   By means of its application, the applicants seek, pursuant to Article 230 EC, the annulment of Council Regulation No 881/2002 imposing certain specific restrictive certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and Taliban, as amended by the Commission Regulations (EC) No 14/2005 of 5 January 2005, No 492/2007 of 3 May 2007, and 1190/2005 of 20 July 2005 and/or the annulment of Commission Regulations (BC) No 14/2005, No 492/2007, and 1190/2005, insofar as they relate to the applicants.
   The applicants were included in the consolidated list of the United Nations Sanctions Committee of individuals and entities allegedly associated with Usama bin Laden, Al-Qaida and Taliban network, whose funds and other financial resources are to be frozen. Consequently, the European Commission adopted Regulations (EC) No 14/2005 and 1190/2005 which added the applicants names in Annex I to the Council Regulation (EC) No 881/2002 listing persons, groups and entities covered by the freezing of funds and economic resources within the EU. The entry of the first applicant, Mr. Al-Faqih, was later amended by the Commission Regulation (EC) 492/2007.
   In support of their action, the applicants rely on the following pleas in law:

               The applicants argue that the freezing of their funds provided by the contested regulations infringes their fundamental human rights, namely their right to be heard and the right to effective judicial review, as they have never been informed by the Council and/or the Commission of the reasons for their inclusion in Annex I to the Council Regulation (EC) No 881/2002 and have never received any evidence justifying the imposition of restrictive measures. The applicants therefore have not had any opportunity to defend themselves and challenge the listing decisions before the European judiciary.

               The applicants further submit that their right to respect for property has been infringed since the indefinite restrictions of such right caused by freezing of their funds amount to a disproportionate and intolerable interference with this fundamental human right.

      (1)  Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ L 139, p.9)

      (2)  Commission Regulation (EC) No 14/2005 of 5 January 2005 amending for the 42nd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 (OJ L 5, p.10)

      (3)  Commission Regulation (EC) No 492/2007 of 3 May 2007 amending for the 75th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 (OJ L 116, p. 5)

      (4)  Commission Regulation (EC) No 1190/2005 of 20 July 2005 amending for the 48th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 (OJ 193, p. 27)


title: Judgment of the Court of 6 March 2003 in Case C-41/00 P: Interporc Im- und Export GmbH v Commission of the European Communities (Appeals — Decision 94/90/ECSC, EC, Euratom — Access to documents — Documents held by the Commission and emanating from the Member States or third countries — Authorship rule)

text:
26.4.2003               EN                           Official Journal of the European Union                                               C 101/1
                                                                          I
                                                                   (Information)
                                                      COURT OF JUSTICE
                                                               COURT OF JUSTICE
Request by the Council of the European Union for an                          against the judgment of the Court of First Instance of the
           Opinion pursuant to Article 300(6) EC                             European Communities (First Chamber, Extended Compo-
                                                                             sition) in Case T-92/98 Interporc v Commission [1999] ECR
                           (Opinion 1/03)                                    II-3521, seeking to have that judgment set aside in part, the
                                                                             other party to the proceedings being: Commission of the
                          (2003/C 101/01)                                    European Communities (Agent: U. Wölker), the Court, compo-
                                                                             sed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet,
The Court of Justice of the European Communities has received                R. Schintgen and C.W.A. Timmermans, Presidents of Cham-
a request for an Opinion pursuant to Article 300(6) EC, lodged               bers, C. Gulmann, D.A.O. Edward, A. La Pergola (Rapporteur),
at the Court Registry on 10 March 2003 by the Council of the                 P. Jann, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
European Union, represented by J. Schutte and J.-P. Hix, acting              Judges; P. Léger, Advocate General; R. Grass, Registrar, has
as Agents.                                                                   given a judgment on 6 March 2003, in which it:
The Council of the European Union asks the Court of Justice                  1.    Dismisses the appeal;
to reply to the following question:
                                                                             2.    Orders Interporc Im- und Export GmbH to pay the costs.
Does conclusion of the new Lugano Convention on jurisdiction
and the recognition and enforcement of judgments in civil and                (1 ) OJ C 149 of 27.5.2000.
commercial matters, as provided for at points 8 to 12 of this
document, fall entirely within the Community’s exclusive
competence or is competence shared between the Community
and the Member States?
                                                                                JUDGMENT OF THE COURT
                 JUDGMENT OF THE COURT                                                                (Sixth Chamber)
                         of 6 March 2003                                                              of 6 March 2003
in Case C-41/00 P: Interporc Im- und Export GmbH v                           in Case C-240/00: Commission of the European Communi-
       Commission of the European Communities ( 1)                                             ties v Republic of Finland ( 1)
(Appeals — Decision 94/90/ECSC, EC, Euratom — Access
                                                                             (Directive 79/409/EEC — Protection of wild birds and their
to documents — Documents held by the Commission and
                                                                                habitats — Special protection areas)
emanating from the Member States or third countries —
                          Authorship rule)
                                                                                (2003/C 101/03)
                          (2003/C 101/02)
                                                                                (Language of the case: Finnish)
                   (Language of the case: German)
                                                                             (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                          in the European Court Reports)
                   in the European Court Reports)
In Case C-41/00 P, Interporc Im- und Export GmbH, estab-                     In Case C-240/00, Commission of the European Communities
lished in Hamburg (Germany), (Agent: G.M. Berrisch): Appeal                  (Agents: E. Paasivirta and R.B. Wainwright) v Republic of


title: Case C-352/11: Action brought on 5 July 2011 — European Commission v Republic of Austria

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/26

         Action brought on 5 July 2011 — European Commission v Republic of Austria
   (Case C-352/11)
   2011/C 252/48
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: G. Wilms and A. Alcover San Pedro, Agents)

      Defendant: Republic of Austria

      Form of order sought

               —

               Declare that, by failing to grant permits in accordance with Articles 6 and 8 of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (IPPC Directive), to reconsider or if necessary renew and check compliance with existing permits, in order to ensure that all existing installations are operated in accordance with the requirements of Articles 3, 7, 9, 10 and 13, 14(a) and (b) and Article 15(2) of the IPPC Directive, the Republic of Austria has failed to fulfil its obligations under Article 5(1) of the IPPC directive;

               —

               Order the Republic of Austria to pay the costs.

      Pleas in law and main arguments

   Pursuant to the provisions of the IPPC Directive, (1) since 30 October 2007‘existing installations’ within the meaning of that directive require a permit.
   According to the information currently available to the Commission, at the relevant time not all of those ‘existing installations’ situated in the Republic of Austria are in possession of the necessary permit.

      (1)  Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (OJ 2008 L 24, p. 8)


title: Case C-546/12 P: Appeal brought on 28 November 2012 by Ralf Schräder against the judgment delivered by the General Court (Second Chamber) on 18 September 2012 in Joined Cases T-133/08, T-134/08, T-177/08 and T-242/09 Ralf Schräder v Community Plant Variety Office

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/12

         Appeal brought on 28 November 2012 by Ralf Schräder against the judgment delivered by the General Court (Second Chamber) on 18 September 2012 in Joined Cases T-133/08, T-134/08, T-177/08 and T-242/09 Ralf Schräder v Community Plant Variety Office
   (Case C-546/12 P)
   2013/C 38/15
   Language of the case: German

      Parties

      Appellant: Ralf Schräder (represented by: T. Leidereiter, W-A. Schmidt, Rechtsanwälte)

      Other parties to the proceedings: Community Plant Variety Office (CPVO), Jørn Hansson

      Form of order sought

               —

               set aside the judgment of the General Court (Second Chamber) of 18 September 2012, so far as concerns the decision in Case T-242/09 and the decision on costs;

               —

               grant the claim made at first instance for annulment of the decision of the Board of Appeal of the CPVO of 23 January 2009 (Case A 010/2007);

               —

               order the CPVO to bear all the appellant’s costs arising from the present proceedings, the proceedings in Joined Cases T-133/08, T-134/08, T-177/08 and T-242/09 before the General Court and the prior proceedings before the Board of Appeal of the CPVO.

      Pleas in law and main arguments

               I.

               By the first plea, the appellant submits that the General Court erred in law in proceeding on the basis that in appeal proceedings before the CPVO concerning rejection of an application for cancellation of a Community variety the facts are not to be examined by the CPVO of its own motion. The appellant sees in this an infringement of the rules on the burden of proof and taking of evidence that are applicable in proceedings before the Board of Appeal and a resulting infringement of the General Court’s duty of review, as well as an infringement of the appellant’s rights to a fair hearing, good administration and an effective remedy.

               II.

               By the second plea, the appellant criticises the General Court’s finding that an entitlement to measures of inquiry exists in proceedings before the CPVO only if the party has adduced at least some evidence in support of its application in that regard. Here the appellant complains of infringement of the rules concerning the burden of proof and taking of evidence, denial of the right to be heard and distortion of the facts and the evidence even if it is assumed that the burden of proof rests with the appellant.

               III.

               By the third plea, the appellant submits that the General Court erred in law in assuming a fact to be ‘well known’ when, according to the appellant, it is an ‘incorrect fact’, that is to say a fact that is non-existent. Here the appellant pleads infringement of the General Court’s duty of review of legality and alleges distortion of facts and evidence.

               IV.

               By the fourth plea, the appellant contends that the General Court made legally incorrect findings on the burden of presentation and of proof in alleging that the appellant adduced no evidence for its submissions concerning the effect of growth regulators. In this connection the appellant pleads that the judgment is contradictory, that the General Court failed to conduct a review of legality and that the grounds stated by the General Court are deficient.

               V.

               By the fifth plea, the appellant criticises the finding of the General Court that the characteristic ‘attitude of shoots’ of an Osteospermum variety was not included in the examination of distinctness or did not determine that examination. This constitutes an infringement of Articles 7 and 20 of the regulation (1) and an impermissible extension of the subject-matter of the dispute, and the General Court’s decision infringes the prohibition on taking decisions by surprise. Furthermore, the right to be heard was denied.

               VI.

               By the sixth plea, the appellant contests the General Court’s finding that the ‘attitude of shoots’ of a plant variety is to be determined on the basis of relative criteria, that is to say, in relation to other plants forming part of the examination concerned. According to the appellant, this amounts to distortion of facts, infringement of the regulation, an impermissible extension of the subject-matter of the dispute and infringement of the General Court’s duty to conduct a comprehensive review of legality. The decision is therefore contradictory.

      (1)  Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).


title: Case T-664/15: Action brought on 13 November 2015 — Borg v Parliament

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/77

         Action brought on 13 November 2015 — Borg v Parliament
   (Case T-664/15)
   (2016/C 048/85)
   Language of the case: English

      Parties

      Applicant: Jacob Borg (St. Julian’s, Malta) (represented by: N. Pirc Musar, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul decision A(2015)8486 C of the European Parliament of 15 September 2015 rejecting the applicant’s confirmatory application for access to certain documents relating to information on Members’ of the European Parliament travel expenses, subsistence allowances, general expenditure allowances and staffing arrangements expenses;

               —

               order the Parliament to pay the applicant’s costs pursuant to Articles 134 and 140 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      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 a violation of Article 4(1)(b) of Regulation 1049/2001 (1) in conjunction with Article 8(b) of Regulation 45/2001 (2), since the personal data requested are not protected under Community legislation

               2.

               Second plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 in conjunction with Article 8(b) of Regulation 45/2001, as the access to the requested information was refused, although the conditions for disclosure were met

               3.

               Third plea in law, alleging a violation of the general obligation, under Articles 2 and 4 of Regulation 1049/2001 in conjunction with Article 6(3) of Regulation 1049/2001, to conduct an examination of each individual document

               4.

               Fourth plea in law, alleging a violation of Article 4(6) of Regulation 1049/2001, as the refusal to grant partial access to the requested documents was not justified

               5.

               Fifth plea in law, alleging a violation of the duty to state reasons as required by Articles 7(1) and 8(1) of Regulation 1049/2001, as the Parliament failed to address all the applicant’s arguments

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

      (2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).


title: Case T-261/15: Judgment of the General Court of 19 April 2016 — Spirig Pharma v EUIPO (Daylong) (EU trade mark — Application for EU figurative trade mark Daylong — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/28

         Judgment of the General Court of 19 April 2016 — Spirig Pharma v EUIPO (Daylong)
   (Case T-261/15) (1)

   ((EU trade mark - Application for EU figurative trade mark Daylong - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2016/C 191/36)
   Language of the case: French

      Parties

      Applicant: Spirig Pharma AG (Egerkingen, Switzerland) (represented by: T. de Haan and P. Péters, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: V. Melgar and J. Crespo Carrillo, acting as Agents)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 24 March 2015 (Case R 2455/2014-4), concerning an application for registration of the figurative sign Daylong as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Spirig Pharma AG to pay the costs.

      (1)  OJ C 245, 27.7.2015.


title: Case C-557/12: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 3 December 2012 — KONE AG, Otis GmbH, Schindler Aufzüge und Fahrtreppen GmbH, Schindler Liegenschaftsverwaltung GmbH, ThyssenKrupp Aufzüge GmbH v ÖBB-Infrastruktur AG

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/5

         Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 3 December 2012 — KONE AG, Otis GmbH, Schindler Aufzüge und Fahrtreppen GmbH, Schindler Liegenschaftsverwaltung GmbH, ThyssenKrupp Aufzüge GmbH v ÖBB-Infrastruktur AG
   (Case C-557/12)
   2013/C 71/09
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Appellants: KONE AG, Otis GmbH, Schindler Aufzüge und Fahrtreppen GmbH, Schindler Liegenschaftsverwaltung GmbH, ThyssenKrupp Aufzüge GmbH

      Respondent: ÖBB-Infrastruktur AG

      Question referred

   Is Article 101 TFEU (Article 81 EC, Article 85 of the EC Treaty) to be interpreted as meaning that any person may claim from members of a cartel damages also for the loss which he has been caused by a person not party to the cartel who, benefiting from the protection of the increased market prices, raises his own prices for his products more than he would have done without the cartel (umbrella pricing), so that the principle of effectiveness laid down by the Court of Justice of the European Union requires grant of a claim under national law?


title: Judgment of the Court of First Instance of 8 July 1999 in Case T-163/98: The Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Community mark - Term 'Baby-Dry' - Absolute ground for refusal - Extent of review by the Boards of Appeal - Extent of review by the Court of First Instance)

text:
C 281/14              EN                       Official Journal of the European Communities                                     2.10.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               decision refusing to grant the applicant the benefits provided
                                                                          for by the Staff Regulations of officials in respect of partial
                         of 19 July 1999                                  permanent invalidity resulting from an accident suffered by
                                                                          him when he was contractually bound to the institution as an
                                                                          outside contractor and, in the alternative, for damages — the
  in Case T-20/98: Q v Council of the European Union (1)                  Court of First Instance (Third Chamber), composed of M. Jae-
                                                                          ger, President, and K. Lenaerts and J. Azizi, Judges; A. Mair,
(Officials — Actions for annulment — Recovery of sums                     Administrator, for the Registrar, has given a judgment on
overpaid — Article 23 of Annex X to the Staff Regulations)                19 July 1999, in which it:
                                                                          1. Dismisses the application;
                        (1999/C 281/26)
                                                                          2. Orders the parties to bear their own costs.
                   (Language of the case: French)
                                                                          (1) OJ C 209 of 4.7.1998.
In Case T-20/98: Q, an official of the Council of the European
Union, represented by Jean-Noël Louis, Ariane Tornel and
Françoise Parmentier, of the Brussels Bar, with an address for
service in Luxembourg at Fiduciaire Myson S.à r.l., 30 Rue de
Cessange, against Council of the European Union (Agents:
Martin Bauer and Denis Waelbroeck) — application for
annulment of the decisions of the Council of 12 March and
13 June 1997 ordering the applicant to repay sums overpaid                    JUDGMENT OF THE COURT OF FIRST INSTANCE
by way of accommodation expenses to which are entitled
members of staff posted to non-Member States — the Court                                            of 8 July 1999
of First Instance (First Chamber), composed of B. Vesterdorf,
President, J. Pirrung and M. Vilaras, Judges; H. Jung, Registrar,         in Case T-163/98: The Procter & Gamble Company v
gave a judgment on 19 July 1999, in which it:                             Office for Harmonisation in the Internal Market (Trade
                                                                                Marks and Designs) (1)
1. Dismisses the application.
                                                                          (Community mark — Term ‘Baby-Dry’ — Absolute ground
2. Orders the parties to bear their own costs.
                                                                          for refusal — Extent of review by the Boards of Appeal —
                                                                                Extent of review by the Court of First Instance)
(1) OJ 1998 C 94.
                                                                                (1999/C 281/28)
                                                                                (Language of the case: French)
                                                                          In Case T-163/98: The Procter & Gamble Company, having its
                                                                          registered office at Cincinnati, Ohio (United States of America),
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               represented by Thierry van Innis, of the Brussels Bar, with an
                                                                          address for service in Luxembourg at the Chambers of
                         of 19 July 1999                                  Katia Manhaeve, 56-58 rue Charles Martel v Office for
                                                                          Harmonisation in the Internal Market (Trade Marks and
in Case T-74/98: Luciano Mammarella v Commission of                       Designs) (Agents: Oreste Montalto and Fernando López de
                 the European Communities (1)                             Rego) — appeal against the decision of the First Board of
                                                                          Appeal of the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) of 31 July 1998 (Case R
(Official — Social security — Invalidity pension — Outside                35/1998-1), which was notified to the applicant on 7 August
contractor bound by contract to the institution — Works                   1998 — the Court of First Instance (Second Chamber),
                contract systematically renewed)                          composed of: A. Potocki, President, C.W. Bellamy and
                                                                          A.W.H. Meij, Judges; H. Jung, Registrar, has given a judgment
                        (1999/C 281/27)                                   on 8 July 1999, in which it held:
                                                                          1. The decision of the First Board of Appeal of the Office for
                   (Language of the case: Italian)                             Harmonisation in the Internal Market (Trade Marks and
                                                                               Designs) of 31 July 1998 (Case R 35/1998-1) is annulled.
In Case T-74/98: Luciano Mammarella, an official of the
                                                                          2. The parties shall bear their own costs.
Commission, residing at Biandronno (Italy), represented by
Giuseppe Marchesini, of the Vicenza Bar, with an address for
service in Luxembourg at the Chambers of Ernest Arendt,                   (1) OJ C 1 of 4.1.1999.
8-10 Rue Mathias Hardt, v Commission of the European
Communities (Agents: Gianluigi Valsesia and Alberto Dal
Ferro) — application for annulment of the Commission’s


title: Case C-140/13: Request for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany) lodged on 20 March 2013 — Annett Altmann and Others v Bundesanstalt für Finanzdienstleistungsaufsicht

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/22

         Request for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany) lodged on 20 March 2013 — Annett Altmann and Others v Bundesanstalt für Finanzdienstleistungsaufsicht
   (Case C-140/13)
   2013/C 156/35
   Language of the case: German

      Referring court

   Verwaltungsgericht Frankfurt am Main

      Parties to the main proceedings

      Applicant: Annett Altmann and Others

      Defendant: Bundesanstalt für Finanzdienstleistungsaufsicht

      Questions referred

               1.

               Is it compatible with European Union law for mandatory obligations of secrecy which are incumbent on the national authorities responsible for supervising financial services undertakings and which are based on relevant acts of European Union law (in this case, Directive 2004/109/EC, (1) Directive 2006/48/EC (2) and Directive 2009/65/EC (3)) and have been transposed accordingly into national law, as in the Federal Republic of Germany by Paragraph 9 of the Kreditwesengesetz (Law on the Activities of Credit Institutions) and Paragraph 8 of the Wertpapierhandelsgesetz (Law on Securities Trading), to be capable of being breached by the application and interpretation of a provision of national procedural law such as Paragraph 99 of the VwGO?

               2.

               Can a supervisory authority such as the German Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Office for the Supervision of Financial Services) rely, as against a person who has applied to it under the German national Law on Freedom of Information for access to information concerning a particular financial services provider, on obligations of secrecy incumbent upon it inter alia under European Union law, as laid down in Paragraph 9 of the Kreditwesengesetz and Paragraph 8 of the Wertpapierhandelsgesetz, even in circumstances where the essential business concept of the company which offered financial services but has since been dissolved on grounds of insolvency and is in liquidation consisted in large-scale investment fraud and the wilful harming of investors’ interests and the responsible executives of the company have been sentenced by final judgment to terms of several years’ imprisonment?

      (1)  Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (OJ 2004 L 390, p. 38).

      (2)  Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) (Text with EEA relevance) (OJ 2006 L 177, p. 1).

      (3)  Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (Text with EEA relevance) (OJ 2009 L 302, p. 32).