title: Case C-279/01: Action brought on 16 July 2001 by the Commission of the European Communities against the Kingdom of Sweden

text:
1.9.2001                EN                     Official Journal of the European Communities                                        C 245/17
Action brought on 16 July 2001 by the Commission                          Article 6(2) provides that the Member States are to take
of the European Communities against the Kingdom of                        appropriate steps to avoid, in the special areas of conservation,
                             Sweden                                       the deterioration of natural habitats and the habitats of species
                                                                          as well as disturbance of the species for which the areas have
                                                                          been designated, in so far as such disturbance could be
                         (Case C-279/01)                                  significant in relation to the objectives of the Directive. The
                                                                          article presupposes that the Member States have measures at
                                                                          their disposal by which their authorities can stop an operation
                         (2001/C 245/30)                                  which may damage natural habitats and habitats of species or
                                                                          disturb the species for which the sites were designated. The
                                                                          Swedish rules notified contain no provisions which allow the
An action against the Kingdom of Sweden was brought before                authorities to stop an operation which may damage natural
the Court of Justice of the European Communities on 16 July               habitats and habitats of species or disturb the species for which
2001 by the Commission of the European Communities,                       the site was designated.
represented by Lena Ström, acting as Agent, with an address
for service in Luxembourg.
The Commission claims that the Court should:
                                                                          Article 6(3) lays down the procedure for the management of
—     declare that by failing to implement correctly in national          plans and projects which may affect the special areas of
      law Articles 4(5), 5(4), 6(2) to (4), 12, 15 and 16 of              conservation significantly. Those rules require complete and
      Council Directive 92/43/EEC (1) of 21 May 1992 on the               meticulous transposition into national legislation. The system
      conservation of natural habitats and of wild fauna and              of rules intended to incorporate Article 6(3) does not cover all
      flora as amended by Directive 97/62/EC (2) the Kingdom              the projects or plans outside the area which might be
      of Sweden has failed to fulfil its obligations under that           considered to have a significant effect on the area of conser-
      directive;                                                          vation. Nor does the Swedish legislation provide that all plans
                                                                          are to be assessed in accordance with Article 6(3).
—     order the Kingdom of Sweden to bear the costs.
Pleas in law and main arguments
                                                                          Article 6(4) provides for certain exceptions to the rules on
                                                                          protection of special conservation areas. If, in spite of a
                                                                          negative assessment of the implications for the site and in the
Article 4(5) provides that as soon as a site is placed on the list        absence of alternative solutions, a plan or project must
referred to in the third subparagraph of paragraph 2 it is to be          nevertheless be carried out for imperative reasons, the Member
subject to the rules in Article 6(2), (3) and (4). According to           States are to take all compensatory measures necessary to
the Swedish rules notified, the government or the authority               ensure that the overall coherence of Natura 2000 is protected.
which the government appoints is to keep a permanent register             For reasons of legal certainty, Article 6(4), since it is in the
of the natural sites which should be given protection in                  nature of an exception, must be reproduced verbatim in legally
accordance with international undertakings or national objec-             binding national rules. The Swedish legislation incorporating
tives for the protection of such sites. A site which is placed on         Article 6(4) does not meet that requirement of legal certainty
the register is to be given priority in future work on protection.        since the exceptions in the directive are not clearly reproduced
The National Environment Protection Board has been appoint-               in the Swedish legislation.
ed to hold the register. The fact that the National Environment
Protection Board keeps a register of natural sites which should
be protected does not in itself have the legal effect required by
Article 6(2), (3) and (4).
Article 5(4) provides that a site is to be covered by the                 Under Article 12(1) the Member States are to take the requisite
protection provided for by Article 6(2) during the bilateral              measures to establish a system of strict protection for the
consultation period initiated between a Member State and the              animal species listed in Annex IV(a) by introducing the
Commission under Article 5(1) and pending a Council decision              prohibitions listed in Article 12(1)(a) to (d). The Swedish
pursuant to Article 5(3). Under the Swedish rules the legal               legislation and the amendments introduced and included in it
protection under Article 6(2) does not take effect before a               do not cover all the species listed in Annex IV(a).
decision is taken to place the site on a special register. Nor is         Article 12(1)(b) to (d) lists certain activities which the Member
the protection which then takes effect sufficient to fulfil the           states are to prohibit. The Swedish legislation contains no
requirements of Article 6(2).                                             provisions which implement Article 12(1)(b) to (d) adequately.
 ---pagebreak--- C 245/18              EN                      Official Journal of the European Communities                                          1.9.2001
Under Article 12(4) the Member States are to establish a                 The applicant claims that the Court should:
system to monitor the incidental capture and killing of the
animal species listed in Annex IV(a). The Swedish legislation            —     Declare that, by failing to adopt and bring into force
does not cover all the species listed in Annex IV(a).                          within the prescribed period the laws, regulations and
                                                                               administrative provisions necessary to comply with
                                                                               Council Directive 98/18/EC (1) of 17 March 1998 on
Under Article 15 Member States are required to prohibit the                    safety rules and standards for passenger ships, the Portu-
use of methods and forms of capture etc listed in Annex VI of                  guese Republic has failed to fulfil its obligations under
the species listed in Annex Va, and in cases where, in                         the third paragraph of Article 249 of the EC Treaty and
accordance with Article 16, derogations are applied, of the                    Article 14 of Directive 98/18/EC;
species listed in Annex IVa. The right to derogate from the
prohibition in Article 15 is limited to the situations listed in         —     in the alternative, declare that, by failing to communicate
Article 16. Under Swedish law, however, the government and                     such measures to the Commission, the Portuguese Repub-
authorities have a right to investigate freely in certain cases                lic failed to fulfil its obligations under the same provisions;
where derogations are to be granted from the rules on                          and
prohibition laid down by Article 15.
                                                                         —     Order the Portuguese Republic to pay the costs.
Article 16(1) lists the situations in which it is possible to
derogate from the rules in Articles 12 to 14 and 15(a) and (b).          Pleas in law and main arguments
A general condition for allowing a derogation is that there is
no satisfactory alternative and that the derogation is not
detrimental to the maintenance of the populations of the                 The mandatory nature of the provisions of the third paragraph
species concerned at a favourable conservation status in their           of Article 249 requires Member States to adopt the measures
natural range. In addition, one of the reasons in Article 12(1)(a)       necessary to transpose directives addressed to them into their
to (e) must obtain. For reasons of legal certainty it is necessary       domestic law. Despite the expiry of that period, which is laid
that the situations and requirements set out in a rule on                down in Article 14(1) of Directive 98/18/EC, and despite the
derogation such as Article 16 be transposed verbatim into                specific notification requirement provided for in Article 4(2)
national rules or that there be a direct reference to the directive.     of the directive, the Portuguese Republic has not brought into
Under the Swedish legislation the government can allow                   force the necessary provisions and, in any event, has not
derogations on the basis of various considerations. The                  communicated them to the Commission.
Swedish rules on derogation therefore do not conform to
Article 16 and nor do they refer to those provisions in the
directive.                                                               (1) OJ 1998 L 144, p. 1.
(1) OJ L 206, 22.7.1992, p. 7.
(2) OJ L 305, 8.11.1997, p. 42.
                                                                         Action brought on 19 July 2001 by the Commission of
                                                                          the European Communities against the French Republic
                                                                                (Case C-286/01)
                                                                                (2001/C 245/32)
Action brought on 17 July 2001 by the Commission
of the European Communities against the Portuguese                       An action against the French Republic was brought before the
                             Republic                                    Court of Justice of the European Communities on 19 July
                                                                         2001 by the Commission of the European Communities,
                                                                         represented by P. Nemitz and B. Mongin, acting as Agents.
                         (Case C-282/01)
                                                                         The applicant claims that the Court should:
                        (2001/C 245/31)
                                                                         —     Declare that, by failing to adopt and bring into force
                                                                               within the prescribed period the laws, regulations and
An action against the Portuguese Republic was brought before                   administrative provisions necessary to comply with
the Court of Justice of the European Communities on 17 July                    Directive 98/10/EC (1), and in particular Article 6(3) and
2001 by the Commission of the European Communities,                            (4) and Articles 10, 21 and 26, the French Republic has
represented by Bernard Mongin and Francisco de Sousa Fialho,                   failed to fulfil its obligations under Article 32 of that
acting as Agents.                                                              directive and Article 249 of the EC Treaty; and


title: Case C-184/17 P: Appeal brought on 11 April 2017 by International Management Group (IMG) against the judgment of the General Court delivered on 2 February 2017 in Case T-381/15, IMG v Commission

text:
               29.5.2017

               EN

               Official Journal of the European Union

               C 168/29

         Appeal brought on 11 April 2017 by International Management Group (IMG) against the judgment of the General Court delivered on 2 February 2017 in Case T-381/15, IMG v Commission
   (Case C-184/17 P)
   (2017/C 168/38)
   Language of the case: French

      Parties

      Appellant: International Management Group (represented by: L. Levi, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the judgment of the General Court of 2 February 2017 in Case T-381/15;

               —

               Consequently, grant the appellant the benefit of its forms of order sought at first instance as reviewed, and therefore:

                           —

                           annul the Commission’s decision of 8 May 2015 denying IMG the status of an international organisation under the Financial Regulation,

                           —

                           order the defendant to pay compensation for the material and non-material harm estimated at EUR 28 million and EUR 1 respectively,

                           —

                           order the defendant to pay all the costs.

               —

               Order the defendant to pay all the costs of the two proceedings.

      Pleas in law and main arguments

   In support of its appeal, the appellant relies on five pleas in law, alleging:

               —

               the first plea in law: infringement of the Rules of Procedure of the General Court, practical provisions for the implementation of the Rules of Procedure of the General Court and the rights of the defence; infringement of the defendant’s duty to state reasons; infringement of the first court’s obligation to state reasons and the distortion of the case;

               —

               the second plea in law: infringement of the 2012 Financial Regulation and the Delegated Financial Regulation, a manifest error of assessment, infringement of the first court’s obligation to state reasons, and distortion of the case;

               —

               the third plea in law, infringement of the rights of the defence; infringement of the first court’s obligation to state reasons, and distortion of the case;

               —

               the fourth plea in law, infringement of the principle of proportionality; infringement of the first court’s obligation to state reasons, and distortion of the case;

               —

               the fifth plea in law, infringement of the principle of legal certainty; infringement by the first court of its obligation to state reasons, and infringement of Article 61 of the 2012 Financial Regulation.

         Furthermore, the appellant disputes the decision of the General Court to reject its claim for damages as there were no errors.
   Finally, the appellant criticises the decision of the General Court to declare an opinion from the Commission’s Legal Service to be inadmissible and not to include it in the file.


title: Case C-179/10: Action brought on 9 April 2010 — European Commission v France

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/35

      Action brought on 9 April 2010 — European Commission v France
      (Case C-179/10)
      (2010/C 161/52)
      Language of the case: French

         Parties

         Applicant: European Commission (represented by: E. Gippini Fournier and K. Walkerová, acting as Agents)

         Defendant: French Republic

         Form of order sought

                  —

                  declare that, by failing to implement Commission Decision 2005/238/EC of 14 July 2004 concerning aid granted to the fisheries and aquaculture sector in Corsica from 1986 to 1999 (1) by recovering from the beneficiaries thereof aid declared unlawful and incompatible with the common market by Article 1 of that decision and by failing to inform the Commission of the measures taken to comply with that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 4 and 5 of that decision;

                  —

                  order the French Republic to pay the costs.

         Pleas in law and main arguments

      Pursuant to Article 4 of Commission Decision 2005/238/EC, France is required to inform the Commission, within two months of notification of that decision, of the measures taken to comply with it. In the present case, more than 5 years after the receipt of the Decision by the French authorities and despite seven reminders, the aid granted has not yet been recovered from the beneficiary firms and no effective measures have been taken to such effect. The defendant, furthermore, has not argued that it is absolutely impossible to implement that Decision.

         (1)  Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen (OJ 2005 L 74, p. 49).


title: Case T-442/13: Action brought on 20 August 2013 — Makhlouf v Council

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/39

         Action brought on 20 August 2013 — Makhlouf v Council
   (Case T-442/13)
   2013/C 325/65
   Language of the case: French

      Parties

      Applicant: Hafez Makhlouf (Damascus, Syria) (represented by: C. Rygaert and G. Karouni, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria;

               —

               order the Council of the European Union to pay the costs pursuant to Articles 87 and 91 of the Rules of Procedure of the General Court.

      Pleas in law and main arguments

   In support of the action, the applicant relies on seven pleas in law which are in essence identical or similar to those relied on in Case T-359/11 Makhlouf v Council. (1)

      (1)  OJ 2011 C 282, p.25.


title: Case T-58/05: Action brought on 3 February 2005 by Isabel Clara Centeno Mediavilla and Others against Commission of the European Communities

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/38

         Action brought on 3 February 2005 by Isabel Clara Centeno Mediavilla and Others against Commission of the European Communities
   (Case T-58/05)
   (2005/C 93/70)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 February 2004 by Isabel Clara Centeno Mediavilla, residing in Seville (Spain), and 16 others, represented by Georges Vandersanden, Laure Levi and Aurore Finchelstein, lawyers.
   The applicant claims that the Court should:

               —

               annul the classification in grade granted to the applicants in their recruitment decisions, in so far as that classification is based on Article 12(3) of Annex XIII to the new Staff Regulations;

               —

               in consequence, reconstitute the applicants' careers (including recognition of their experience in grade thus amended, their rights to promotion and their pension entitlement) on the basis of the grade in which they should have been appointed as stated in the competition notice following which they were placed on the reserve recruitment list, either in the grade appearing in that competition notice, or, corresponding to its equivalent according to the classification in the new Staff Regulations (and the appropriate step in accordance with the rules applicable before 1 May 2004), on the basis of the decision appointing them;

               —

               award the applicants default interest, based on the rate fixed by the European Central Bank, on all the sums corresponding to the difference between the salary corresponding to their classification in the recruitment decision and the classification to which they should have been entitled up to the date of the decision properly classifying them in grade;

               —

               order the Commission to pay the entire costs.

         Pleas in law and main arguments
   The applicants took part in competitions for recruitment as officials within the Commission and were place on the reserve recruitment list before 1 May 2004, the date on which Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (1) entered into force. The applicants were actually appointed after 1 May 2004 and were classified in grade and in step according to the transitional provisions of the new Staff Regulations, as set out in Article 12 of Annex XIII. The applicants state, first, that as a result they were classified in a lower grade than that set out in the competition notices and, second, that the new grades attributed to them no longer correspond to the former category A or B grades in which they were recruited.
   In support of their application, the applicants put forward, first of all, an objection of illegality in respect of Article 12 of Annex XIII. The applicants maintain that Article 12 of Annex XII to the new Staff Regulations fails to observe the principle of equal treatment and non-discrimination in that candidates who were successful in the same competition were treated differently as regards their classification in grade, depending on whether they were recruited before 1 May 2004 or after that date.
   They further claim that Article 12 of Annex XIII breaches Article 31 of the new Staff Regulations. In their submission, the grade that must be conferred on an official who has been recruited is, in accordance with Article 31, the grade indicated in the notice of the competition to which he was admitted. The grade conferred on the applicants upon their recruitment is different from the grade mentioned in the competition notice.
   The applicants also contend that article 12 of Annex XIII breaches Article 5 of the new Staff Regulations, the principle of equal treatment and non-discrimination and the principle of equivalence of post and grade. They claim that their posts were not reclassified according to the nature and level of the duties carried out from the aspect of each typical post and that, contrary to Article 5(5) of the new Staff Regulations, the applicants did not enjoy the same conditions of recruitment and career progression by comparison with the successful candidates in the same competition who were appointed before 1 May 2004.
   They also contend that Article 12 of Annex XIII infringes the principle lf legal certainty and the principle of non-retroactivity, the applicants' acquired rights and their legitimate expectation. They maintain that their rights in respect of their classification in grade came into existence when they appeared on the reserve recruitment list and that it is on the basis of that information that they may be assured that if they are appointed they will receive the classification in grade set out in the competition notice.
   The applicants claim, last, that, contrary to Article 10 of the new Staff Regulations, the Staff Committee was not consulted a second time when the Commission altered its initial proposal to amend the Staff Regulations and introduced the text the legality of which is disputed.
   In support of their action, the applicants also claim that there has been a breach of the principle of good administration, of the principle that an institution is to have regard for the welfare of its officials, of the principle of transparency, of the principle of legitimate expectations, of the principle of good faith, of the principle of equal treatment and non-discrimination and of the principle of equivalence of post and grade.

      (1)  OJ L 124, p. 1.


title: Case T-337/14: Judgment of the General Court of 22 April 2015 — Rezon v OHIM — mobile.international (mobile.de proMotor) (Community trade mark — Invalidity proceedings — Community word mark mobile.de proMotor — Prior national figurative mark mobile — Rejection of the application for a declaration of invalidity — Article 165(4)(b) of Regulation (EC) No 207/2009)

text:
               8.6.2015

               EN

               Official Journal of the European Union

               C 190/15

         Judgment of the General Court of 22 April 2015 — Rezon v OHIM — mobile.international (mobile.de proMotor)
   (Case T-337/14) (1)

   ((Community trade mark - Invalidity proceedings - Community word mark mobile.de proMotor - Prior national figurative mark mobile - Rejection of the application for a declaration of invalidity - Article 165(4)(b) of Regulation (EC) No 207/2009))
   (2015/C 190/18)
   Language of the case: German

      Parties

      Applicant: Rezon OOD (Sofia, Bulgaria) (represented by: P. Kanchev and T. Ignatova, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: mobile.international GmbH (Kleinmachnow, Germany)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 19 February 2014 (Case R 950/2013-1) concerning invalidity proceedings between Rezon OOD and mobile.international GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Rezon OOD to pay the costs.

      (1)  OJ C 245, 28.7.2014.


title: Case C-144/16: Judgment of the Court (Sixth Chamber) of 1 February 2017 (request for a preliminary ruling from the Tribunal Judicial da Comarca de Setúbal — Portugal) — Município de Palmela v Autoridade de Segurança Alimentar e Económica (ASAE) — Divisão de Gestão de Contraordenações (Reference for a preliminary ruling — Procedures for the provision of information in the field of technical standards and regulations and of rules on Information Society services — Directives 83/189/EEC and 98/34/EC — Draft technical regulation — Notifying the European Commission — Obligations of Member States — Infringement — Consequences)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/21

         Judgment of the Court (Sixth Chamber) of 1 February 2017 (request for a preliminary ruling from the Tribunal Judicial da Comarca de Setúbal — Portugal) — Município de Palmela v Autoridade de Segurança Alimentar e Económica (ASAE) — Divisão de Gestão de Contraordenações
   (Case C-144/16) (1)

   ((Reference for a preliminary ruling - Procedures for the provision of information in the field of technical standards and regulations and of rules on Information Society services - Directives 83/189/EEC and 98/34/EC - Draft technical regulation - Notifying the European Commission - Obligations of Member States - Infringement - Consequences))
   (2017/C 104/31)
   Language of the case: Portuguese

      Referring court

   Tribunal Judicial da Comarca de Setúbal

      Parties to the main proceedings

      Applicant: Município de Palmela

      Defendant: Autoridade de Segurança Alimentar e Económica (ASAE) — Divisão de Gestão de Contraordenações

      Operative part of the judgment

   Article 8(1) of Directive 83/189/EEC of the Council of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, and Article 8(1) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that the penalty of unenforceability of a technical regulation which has not been notified, such as Article 16(1) and (2) of the Regulamento que estabelece as condições de segurança a observar na localização, implantação, conceção e organização funcional dos espaços de jogo e recreio, respetivamente, equipamento e superfícies de impacto (Regulation on the mandatory safety requirements regarding the localisation, implementation, design and functional organisation of play and recreation areas and their equipment and impact surfaces), annexed to Decreto-Lei No 379/97 (Decree-Law No 379/97), of 27 December 1997, as amended by Decreto-Lei No 119/2009 (Decree-Law No 119/2009), of 19 May 2009, applies only to that technical regulation and not to the entire legislative text in which it is contained.

      (1)  OJ C 211, 13.6.2016.


title: Case T-461/05: Action brought on  30 December 2005  — L' Oréal/OHIM

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/26

         Action brought on 30 December 2005 — L' Oréal/OHIM
   (Case T-461/05)
   (2006/C 74/50)
   Language in which the application was lodged: English
   Parties

      Applicant: L'Oréal S.A. (Paris, France) [represented by: X. Buffet Delmas d'Autane, lawyer]

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

      Other party/parties to the proceedings before the Board of Appeal: Revlon (Suisse) S.A. (Schlieren, Switzerland)
   Form of order sought

               —

               Annulment of the decision of the Fourth Board of Appeal of the OHIM of 17 October 2005 regarding the appeal R 0806/2002-4 relating to Opposition Proceedings No B 214 694 (Community trade mark Application No 1 011 014);

               —

               Order for all costs incurred in relation to all proceedings in this matter (in particular, the costs of the action and the appeal) to be awarded against the OHIM.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘FLEXI TOUCH’ for goods in class 3

      Proprietor of the mark or sign cited in the opposition proceedings: Revlon (Suisse) S.A.

      Mark or sign cited: The national word mark ‘FLEX’ for goods in classes 3 and 34

      Decision of the Opposition Division: Opposition upheld in its entirety

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Articles 15 and 43(2) of Council Regulation No 40/94 as the evidence filed by Revlon (Suisse) S.A. cannot be considered valid proof of genuine use of the word mark ‘FLEX’ during the relevant period, neither in the UK nor in France
   Infringement of Article 8(1)(b) of the Regulation as there is no similarity between the conflicting trade marks and consequently no likelihood of confusion.


title: Case C-383/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening v Minister van Sociale Zaken en Werkgelegenheid

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/1

         Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening v Minister van Sociale Zaken en Werkgelegenheid
   (Case C-383/06)
   (2006/C 310/03)
   Language of the case: Dutch
   Referring court
   Raad van State (Netherlands)
   Parties to the main proceedings

      Applicant: Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening

      Defendant: Minister van Sociale Zaken en Werkgelegenheid
   Question(s) referred

               1.

                           a)

                           Can a Member State or an administrative authority of that State derive a power directly — that is to say without a basis in national law — from a regulation?

                           b)

                           If so, does Article 23(1) of Regulation No 4253/88 (1) of 19 December 1988 laying down provisions for implementing Regulation No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Regulation No 2082/93 (‘the coordination regulation’), confer the power, having regard to the fixing of the subsidy, to recover amounts of subsidy unduly paid, on the basis that Article 23 of the coordination regulation requires the Member States to do so where there is irregularity or negligence within the meaning of that article?

               2.

               If not, does Article 10 EC, read in conjunction with Article 249 thereof, mean that a national provision such as Article 4.57 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) — under which amounts of subsidy or advances unduly paid may be recovered — must be interpreted in conformity with the regulation?

               3.

               If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations?

               4.

                           a)

                           If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether national principles of legal certainty and the protection of legitimate expectations can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate interests which are to be complied with when applying the coordination regulation.

                           b)

                           In applying the Community legal principles of legal certainty and legitimate expectations, is it of significance that the Member State granting the subsidy is itself responsible for the fact that the subsidy recipient has failed to fulfil the subsidy obligations which flow from the relevant part of Community law?

      (1)  OJ L 374, p. 1.


title: Case C-290/15: Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 15 June 2015 — Patrice d’Oultremont, Henri Tumelaire, François Boitte, Éoliennes à tout prix? ASBL v Walloon Region

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/23

         Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 15 June 2015 — Patrice d’Oultremont, Henri Tumelaire, François Boitte, Éoliennes à tout prix? ASBL v Walloon Region
   (Case C-290/15)
   (2015/C 279/28)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Patrice d’Oultremont, Henri Tumelaire, François Boitte, Éoliennes à tout prix? ASBL

      Defendant: Walloon Region

      Question referred

   Are Articles 2(a) and 3(2)(a) of Directive 2001/42/EC (1) on the assessment of the effects of certain plans and programmes on the environment to be interpreted to the effect that a regulatory order containing various provisions on the installation of wind turbines, including measures on safety, inspection, site restoration and financial collateral and permitted noise levels set having regard to town and country planning zones, such provisions setting a framework for the grant of administrative consent allowing a developer to install and operate installations which are automatically subject under national law to an assessment of their effects on the environment, must be considered to be a ‘plan or programme’ within the meaning of those articles?

      (1)  Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).


title: Judgment of the Court of First Instance of 20 November 2002 in Case T-251/00: Lagardère SCA and Canal+ SA v Commission of the European Communities (Competition — Regulation (EEC) No 4064/89 — Modification of a decision declaring a concentration compatible with the common market — Restrictions directly related and necessary to the implementation of the concentration ("Ancillary restrictions") — Action for annulment — Challengeable acts — Legal interest in bringing proceedings — Legal certainty — Legitimate expectations — Reasons)

text:
C 19/30                  EN                       Official Journal of the European Communities                                     25.1.2003
Case T-178/00, J. Fernández Martín, V. Saintot and B. Wägen-                 Economic Area Agreement (Case COMP/JV 40 Canal+/Lagard-
baur, and, in Case T-341/00, V. Saintot, T. Gulliams and                     ère and COMP/JV 47 Canal+/Lagardère/Liberty Media), the
Wägenbaur): Application for annulment of the applicant’s                     Court of First Instance (Third Chamber, Extended Compo-
performance appraisal report for 1999, in Case T-178/00, and                 sition), composed of M. Jaeger, President, R. García-Valdecasas,
for annulment of the note of 28 June 2000 from the Director-                 K. Lenaerts, P. Lindh and J. Azizi, Judges; J. Palacio González,
General of the Directorate-General for Information Systems                   Administrator, for the Registrar, gave a judgment on 20 Nov-
(DG IS) of the European Central Bank concerning the duties                   ember 2002, in which it:
allocated to the applicant, in Case T-341/00, the Court of First
Instance (Fifth Chamber), composed of: J.D. Cooke, President,
R. García-Valdecasas and P. Lindh, Judges; D. Christensen,                   1.     annuls the Commission’s decision of 10 July 2000 amending
Administrator, for the Registrar, has given a judgment on                           the decision of the Commission of 22 June 2000 declaring a
22 October 2002, in which it:                                                       concentration compatible with the common market and with
                                                                                the European Economic Area Agreement (Case COMP/JV
                                                                                40 Canal+/Lagardère and COMP/JV 47 Canal+/Lagardère/
1.     Orders that Cases T-178/00 and T-341/00 shall be joined                      Liberty Media);
       for the purposes of the judgment;
2.     Dismisses the applications in Cases T-178/00 and T-341/00;            2.     orders the defendant to pay the costs.
3.     Orders the parties to bear their own costs.
                                                                             (1 ) OJ C 335 of 25.11.2000.
( 1) OJ C 259 of 9.9.2000.
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
     JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 20 November 2002                                                            of 23 October 2002
in Case T-251/00: Lagardère SCA and Canal+ SA v                              in Case T-388/00: Institut für Lernsysteme GmbH v Office
        Commission of the European Communities ( 1)                          for Harmonisation in the Internal Market (Trade Marks
                                                                                and Designs) (OHIM) (1)
(Competition — Regulation (EEC) No 4064/89 — Modifi-
cation of a decision declaring a concentration compatible
                                                                             (Community trade mark — Opposition procedure — Earlier
with the common market — Restrictions directly related
                                                                             figurative mark containing the acronym ILS — Application
and necessary to the implementation of the concentration
                                                                             for Community word mark ELS — Proof of use of earlier
(‘Ancillary restrictions’) — Action for annulment — Chal-
                                                                             mark — Article 43(2) and (3) of Regulation (EC) No 40/94
lengeable acts — Legal interest in bringing proceedings —
                                                                             and Rule 22 of Regulation (EC) No 2868/95 — Relative
    Legal certainty — Legitimate expectations — Reasons)
                                                                             ground for refusal — Article 8(1)(b) of Regulation (EC)
                                                                                No 40/94 — Statement of reasons)
                            (2003/C 19/55)
                                                                                (2003/C 19/56)
                    (Language of the case: French)
                                                                                (Language of the case: English)
In Case T-251/00: Lagardère SCA, established in Paris, rep-
resented by A. Winckler, avocat, with an address for service in
Luxembourg, Canal+ SA, established in Paris, represented
by J.-P. de La Laurencie and P.-M. Louis, avocats, against                   In Case T-388/00, Institut für Lernsysteme GmbH, established
Commission of the European Communities (Agents: W. Wils                      in Hamburg (Germany), represented by J. Schneider and
and F. Lelièvre) — application for annulment of the Com-                     A. Buddee, lawyers, with an address for service in Luxembourg,
mission’s decision of 10 July 2000 amending the decision of                  v Office for Harmonisation in the Internal Market (Trade Marks
the Commission of 22 June 2000 declaring a concentration                     and Designs) (OHIM) (Agents: A. von Mühlendahl, A. di Carlo
compatible with the common market and with the European                      and O. Waelbroeck), the other party to the proceedings before


               7.7.2007

               EN

               Official Journal of the European Union

               C 155/19

         Conduct of the activities of the Court of First Instance between 1 and 17 September 2007
   (2007/C 155/35)
   At its Plenary Meeting of 6 June 2007, the Court of First Instance took note of the fact that, by reason of the Court vacation, the taking of the oath before the Court of Justice by four new Members of the Court of First Instance will take place only after the end of that vacation. Consequently, in accordance with the third paragraph of Article 5 of the Statute of the Court of Justice, until the new Members of the Court of First Instance take up their duties:

               —

               the President of the Court of First Instance will be Mr Vesterdorf;

               —

               the Presidents of the Chambers of five Judges will be Mr Jaeger, Mr Pirrung, Mr Vilaras and Mr Legal, Presidents of Chambers;

               —

               the President of the First Chamber will be Mr Cooke, President of Chamber;

               —

               the decision of 14 January 2006 (OJ 2006 C 10, p. 19) on the composition of the Appeal Chamber and the assignment of cases to that Chamber, the decision of 5 July 2006 (OJ 2006 C 190, p. 14) on the composition of the Grand Chamber and the designation of the Judge replacing the President of the Court of First Instance as the Judge hearing applications for interim measures and the decision of 15 January 2007 (OJ 2007 C 42, p. 22) on the assignment of Judges to Chambers and the criteria for the assignment of cases will continue to apply.


title: Case C-6/16: Request for a preliminary ruling from the Conseil d’État (France) lodged on 6 January 2016 — Holcim France SAS, successor in law to Euro Stockage v Ministre des finances et des comptes publics

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/24

         Request for a preliminary ruling from the Conseil d’État (France) lodged on 6 January 2016 — Holcim France SAS, successor in law to Euro Stockage v Ministre des finances et des comptes publics
   (Case C-6/16)
   (2016/C 106/26)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Appellants: Holcim France SAS, successor in law to Euro Stockage, Enka SA

      Respondent: Ministre des finances et des comptes publics

      Questions referred

               1.

               If the national legislation of a Member State uses in domestic law the option offered by Article 1(2) of Directive 90/435/EEC of 23 July 1990, (1) is there scope for review of the measures or agreements adopted in order to give effect to that option under EU primary law?

               2.

               Must the provisions of Article 1(2) of that Directive, which confer upon Member States broad discretion to determine which provisions are ‘required for the prevention of fraud or abuse’, be interpreted as precluding a Member State from adopting a mechanism aimed at excluding from the benefit of the exemption the dividends distributed to a legal person controlled directly or indirectly by one or more residents of States that are not members of the Union, unless that legal person provides proof that the principal purpose or one of the principal purposes of the chain of interests is not to benefit from the exemption?

               3.

                           (a)

                           If the compatibility with EU law of the ‘anti-abuse’ mechanism mentioned above should have to be assessed having regard to the provisions of the Treaty too, must it be examined, having regard to the purpose of the legislation at issue, in the light of the provisions of Article 43 of the Treaty establishing the European Community, now Article 49 of the Treaty on the Functioning of the European Union, even though the company receiving the dividend distribution is controlled directly or indirectly, as a result of a chain of interests which has among its principal purposes the benefit of the exemption, by one or more residents of third States that may not avail themselves of freedom of establishment?

                           (b)

                           If the answer to the preceding question is not affirmative, must that compatibility be examined in the light of the provisions of Article 56 of the Treaty establishing the European Community, now Article 63 of the Treaty on the Functioning of the European Union?

               4.

               Must the provisions cited above be interpreted as precluding national legislation from excluding from the exemption from withholding tax the dividends paid by a company in one Member State to a company established in another Member State, if those dividends are received by a legal person controlled directly or indirectly by one or more residents of States that are not members of the European Union, unless that legal person establishes that the principal purpose or one of the principal purposes of that chain of interests is not to benefit from the exemption?

      (1)  Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6).


title: Case C-355/08 P: Appeal brought on 30 July 2008 by WWF-UK Ltd against the order of the Court of First Instance (Eighth Chamber) delivered on 2 June 2008 in Case T-91/07, WWF-UK Ltd v Council of the European Union

text:
               11.10.2008

               EN

               Official Journal of the European Union

               C 260/10

         Appeal brought on 30 July 2008 by WWF-UK Ltd against the order of the Court of First Instance (Eighth Chamber) delivered on 2 June 2008 in Case T-91/07, WWF-UK Ltd v Council of the European Union
   (Case C-355/08 P)
   (2008/C 260/18)
   Language of the case: English
   Parties

      Appellant: WWF-UK Ltd (represented by: R. Stein, Solicitor, P. Sands and J. Simor, Barristers)

      Other parties to the proceedings: Council of the European Union, Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               quash the Order of 5 June 2008 and declare WWF's application to the Court of First Instance (‘CFI’ ) admissible;

               —

               order the Council and Commission to pay WWF's costs before this Court and the Court of First Instance.

         Pleas in law and main arguments

               1)

               The CFI wrongly held that WWF's entitlement as a member of the RAC to be involved in the decision making procedure and the obligation on the Council to consider its views prior to adoption of the relevant measures were not sufficient to distinguish it ‘individually’ for the purposes of Article 230 EC Treaty. The CFI wrongly considered that WWF did not have procedural rights, holding that these belonged solely to the RAC and not to its members.

               2)

               The CFI erroneously considered that even assuming ‘standing’, judicial protection would not be aimed at safeguarding WWF's procedural rights and did not therefore require judicial protection. That is an incorrect approach to the question of standing. Providing ‘direct and individual’ concern can be shown, the Applicant is entitled to challenge the ‘legality of the relevant measure’, which is what WWF seeks to do in this case. WWF is not confined to challenging a failure in the procedure, as the CFI suggest.

               3)

               The CFI's decision is vitiated by procedural unfairness. The CFI closed the proceedings after receiving the intervention of the Commission dated 21 November 2007, despite having agreed on 27 September 2007 that WWF should have the opportunity to respond to any Commission observations. WWF was refused permission to send observations in response. WWF nevertheless sent in submissions but these were not considered by CFI prior to it reaching its determination, which makes no reference to WWF's submissions in response to the Commission. Accordingly, there has been a serious breach of natural justice and fair procedure by CFI.


title: Case F-62/15: Judgment of the Civil Service Tribunal (Third Chamber) of 5 February 2016 –Clausen and Kristoffersen v Parliament (Civil service — Retired officials — Retirement pensions — Article 64 of the Staff Regulations — Weightings — Annual update of weightings — Article 65(2) of the Staff Regulations — Interim update — Articles 3, 4 and 8 of Annex XI to the Staff Regulations — Sensitivity threshold — Change in the cost of living — Article 65(4) of the Staff Regulations — Decision by the legislature not to update the weightings for 2013 and 2014 — Scope — Regulation No 1416/2013 — Over-estimation of the weighting for Denmark — Reduction of the weighting through the interim update mechanism — Misuse of powers)

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/49

         Judgment of the Civil Service Tribunal (Third Chamber) of 5 February 2016 –Clausen and Kristoffersen v Parliament
   (Case F-62/15) (1)

   ((Civil service - Retired officials - Retirement pensions - Article 64 of the Staff Regulations - Weightings - Annual update of weightings - Article 65(2) of the Staff Regulations - Interim update - Articles 3, 4 and 8 of Annex XI to the Staff Regulations - Sensitivity threshold - Change in the cost of living - Article 65(4) of the Staff Regulations - Decision by the legislature not to update the weightings for 2013 and 2014 - Scope - Regulation No 1416/2013 - Over-estimation of the weighting for Denmark - Reduction of the weighting through the interim update mechanism - Misuse of powers))
   (2016/C 106/59)
   Language of the case: French

      Parties

      Applicants: Svend Leon Clausen (Jyllinge, Denmark) and Niels Kristoffersen (Køge, Denmark) (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European Parliament (represented by: E. Taneva and L. Deneys, acting as Agents)

      Re:

   Application for annulment of the decisions to reduce the weighting applicable to the pensions of the applicants, who are resident in Denmark, as is apparent from their pension receipts for June 2014, and a claim for compensation for the non-material damage which they claim to have suffered as a result of the different and contradictory information used to support the contested decisions.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders Mr Clausen and Mr Kristoffersen to bear their own costs and to pay the costs incurred by the European Parliament.

      (1)  OJ C 213, 29.6.2015, p. 49.


title: Case T-501/12: Action brought on 19 November 2012 — Farmaceutisk Laboratorium Ferring v OHIM — Tillotts Pharma (OCTASA)

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/61

         Action brought on 19 November 2012 — Farmaceutisk Laboratorium Ferring v OHIM — Tillotts Pharma (OCTASA)
   (Case T-501/12)
   2013/C 26/121
   Language in which the application was lodged: English

      Parties

      Applicant: Farmaceutisk Laboratorium Ferring A/S (Copenhagen, Denmark) (represented by: I. Fowler, Solicitor, A. Renck and J. Fuhrmann, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Tillotts Pharma AG (Ziefen, Switzerland)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 6 September 2012 in case R 1214/2011-4; and.

               —

               Order that the costs of the proceedings be borne by the Defendant, or — in the event that the other party to the proceedings before the Board of Appeal intervenes on the side of the Defendant — that they be borne jointly by the Defendant and the Intervener.

      Pleas in law and main arguments

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

      Community trade mark concerned: The word mark ‘OCTASA’, for goods in class 5 — Community trade mark application No 8169881

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: Austrian trade mark registration No 102370 for the word mark ‘PENTASA’, for among others goods in class 5; Hungarian trade mark registration No 136836 for the word mark ‘PENTASA’, for goods in class 5; Italian trade mark registration No 40977 C/81 for the word mark ‘PENTASA’, for among others goods in class 5; Polish trade mark registration No 71634 for the word mark ‘PENTASA’, for goods in class 5; Slovak trade mark registration No 175482 for the word mark ‘PENTASA’, for goods in class 5; Swedish trade mark registration No 173377 for the word mark ‘PENTASA’, for among others goods in class 5; French trade mark registration No 1699236 for the word mark ‘PENTASA’, for among others goods in class 5; Irish trade mark registration No 107207 for the word mark ‘PENTASA’, for goods in class 5; Czech trade mark registration No 182567 for the word mark ‘PENTASA’, for goods in class 5

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

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation No 207/2009.


title: Judgment of the Court (Sixth Chamber) of 27 January 2000 in Case C-23/98 (reference for a preliminary ruling from the Hoge Raad der Nederlanden, Netherlands): Staatssecretaris van Financiën v J. Heerma (Sixth VAT Directive — Transactions between a partner and a partnership)

text:
C 79/2                   EN                       Official Journal of the European Communities                                          18.3.2000
the interpretation of Article 30 of the EC Treaty (now, after                Article 4(1) of the Sixth Council Directive (77/388/EEC) of 17 May
amendment, Article 28 EC) — the Court (Fifth Chamber),                       1977 on the harmonisation of the laws of the Member States
composed of: D.A.O. Edward, President of the Chamber,                        relating to turnover taxes — Common system of value added tax:
L. Sevón (Rapporteur), J.-P. Puissochet, P. Jann and M. Wathe-              uniform basis of assessment is to be interpreted as meaning that,
let, Judges; A. La Pergola, Advocate General; R. Grass, Registrar,           where a person’s sole economic activity, within the meaning of that
has given a judgment on 13 January 2000, in which it has                     provision, consists in the letting of an item of tangible property to a
ruled:                                                                       company or a partnership, such as a partnership governed by
                                                                             Netherlands law, of which he is a member, that letting must be
Article 30 of the EC Treaty (now, after amendment, Article 28 EC)            regarded as an independent activity within the meaning of that
precludes national legislation which provides that bakers, butchers          provision.
and grocers may not make sales on rounds in a given administrative
district, such as an Austrian Verwaltungsbezirk, unless they also            (1) OJ C 94 of 28.3.1998.
pursue their commercial activity at a permanent establishment
situated in that administrative district or in an adjacent municipality,
where they offer for sale the same goods as they do on rounds.
(1) OJ C 278 of 5.9.1998.
                                                                                JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                                                                                of 27 January 2000
                  JUDGMENT OF THE COURT
                                                                             in Case C-164/98 P: DIR International Film Srl and Others
                                                                                v Commission of the European Communities (1)
                          (Sixth Chamber)
                                                                             (MEDIA Programme — Criteria for the grant of loans —
                         of 27 January 2000                                           Discretionary power — Statement of reasons)
in Case C-23/98 (reference for a preliminary ruling from                                                (2000/C 79/04)
the Hoge Raad der Nederlanden, Netherlands): Staatsse-
              cretaris van Financiën v J. Heerma (1)
                                                                                (Language of the case: English)
(Sixth VAT Directive — Transactions between a partner and
                            a partnership)                                   In Case C-164/98 P, DIR International Film Srl, established in
                                                                             Rome (Italy), Nostradamus Enterprises Ltd, established in
                           (2000/C 79/03)                                    London (United Kingdom),Union PN Srl, established in Rome,
                                                                             United International Pictures BV, established in Amsterdam
                                                                             (Netherlands), United International Pictures AB, established
                     (Language of the case: Dutch)                           in Stockholm (Sweden), United International Pictures APS,
                                                                             established in Copenhagen (Denmark), United International
                                                                             Pictures A/S, established in Oslo (Norway), United Inter-
                                                                             national Pictures EPE, established in Athens (Greece), United
(Provisional translation; the definitive translation will be published
                                                                             International Pictures OY, established in Helsinki (Finland),
                    in the European Court Reports)                           and United International Pictures y Cı́a SRC, established
                                                                             in Madrid (Spain), represented by A. Vandencasteele and
In Case C-23/98: reference to the Court under Article 177 of                 O. Speltdoorn, of the Brussels Bar, with an address for service
the EC Treaty (now Article 234 EC) by the Hoge Raad der                      in Luxembourg at the Chambers of E. Arendt, 8-10 Rue
Nederlanden, (Netherlands), for a preliminary ruling in the                  Mathias Hardt, appeal against the judgment of the Court of
proceedings pending before that court between Staatssecretaris               First Instance of the European Communities (First Chamber)
van Financiën and J. Heerma — on the interpretation of                       of 19 February 1998 in Joined Cases T-369/94 and T-85/95
Article 4(1) of the Sixth Council Directive (77/388/EEC) of                  DIR International Film and Others v Commission [1998] ECR
17 May 1977 on the harmonisation of the laws of the Member                   II-357, seeking to have that judgment set aside, the other party
States relating to turnover taxes — Common system of value                   to the proceedings being The Commission of the European
added tax: uniform basis of assessment (OJ 1977 L 145, p. 1)                 Communities, represented by K. Banks — the Court (Sixth
— the Court (Sixth Chamber), composed of: P.J.G. Kapteyn,                    Chamber), composed of: R. Schintgen, President of the Second
acting for the President of the Sixth Chamber, G. Hirsch                     Chamber, acting as President of the Sixth Chamber, G. Hirsch
(Rapporteur) and H. Ragnemalm, Judges, Advocate General:                     (Rapporteur) and H. Ragnemalm, Judges, Advocate General,
G. Cosmas, Registrar: H.A. Rühl, Principal Administrator, has                S. Alber; L. Hewlett, Administrator for the Registrar, has given
given a judgment on 27 January 2000 in which it has ruled:                   a judgment on 27 January 2000, in which it:


title: Case T-686/14: Action brought on 22 September 2014 — Italy v Commission

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/60

      Action brought on 22 September 2014 — Italy v Commission
      (Case T-686/14)
      (2014/C 395/73)
      Language of the case: Italian

         Parties

         Applicant: Italian Republic (represented by: G. Galluzzo, avvocato dello Stato, and G. Palmieri, Agent)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul, in so far as it is contested in the present action and in so far as it was imposed against Italy, Implementing Decision C (2014) 4479 of the European Commission of 9 July 2014, notified on 10 July 2014, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD);

                  —

                  revoke the flat-rate financial correction relating to tomato processing aid for the 2008 financial year, totalling EUR 1 399 293,78;

                  —

                  revoke the one-off financial correction for the irregularity ‘Lack of information on the undertaken recovery actions’, totalling EUR 2 362 005,73;

                  —

                  revoke the one-off financial correction for the irregularity ‘Non-reporting in Annex III’, totalling EUR 1 460 976,88.

         Pleas in law and main arguments

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

                  1.

                  First plea in law: (i) failure to comply with essential procedural requirements (Article 253 EC) owing to a failure to state adequate reasons and (ii) breach of the principle of proportionality.

                              —

                              It is submitted that the flat-rate financial correction relating to tomato processing aid for the 2008 financial year is contrary to: (i) Article 31 of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1) and (ii) Articles 28 and 31 of Commission Regulation (EC) No 1535/2003 of 29 August 2003 laying down detailed rules for applying Council Regulation (EC) No 2201/96 as regards the aid scheme for products processed from fruit and vegetables (OJ 2003 L 218, p. 14). By that plea, the applicant challenges the application of the financial corrections imposed by the contested decision, corresponding to 5 % of the expenditure incurred, maintaining that those corrections were imposed despite evidence that there had been no appreciable financial damage.

                              —

                              The applicant also disputes the quantification of that correction, since the actual amount set is disproportionate and clearly illogical, being significantly higher than any damage potentially resulting from the conduct imputed to the Italian authorities.

                  2.

                  Second plea in law: (i) misrepresentation of the facts and (ii) failure to comply with essential procedural requirements (Article 253 EC) owing to a failure to state adequate reasons.

                              —

                              This plea concerns the financial correction, amounting in total to EUR 1 460 976,88, imposed because the Italian State supposedly failed to indicate an alleged irregularity in the table set out in Annex III to Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD. The Italian Government submits in that regard that it had been documented that the aid granted was not irregular, and there was therefore no need to add any notes to the table set out in Annex III.

                  3.

                  Third plea in law: breach of the principle of proportionality.

                              —

                              In that regard, the applicant submits that the financial correction for the irregularity ‘Non-reporting in Annex III’, relating to the entirety of the aid, based on a failure to send documents, is significantly higher than any damage potentially resulting from the conduct imputed to the Italian authorities.

                  4.

                  Fourth plea in law: (i) infringement of Article 6(3) of the Treaty on European Union; (ii) breach of the principle of res judicata; (iii) infringement of Article 32(8)(b) of Regulation (EC) No 1290/2005 and (iv) breach of the principle of proportionality.

                              —

                              This plea concerns the financial correction, amounting in total to EUR 2 362 005,73, imposed because the Italian State had not provided information on the recovery actions undertaken. The applicant claims in that regard that the Commission decided without reason that it was able to overrule a final judicial decision establishing that the aid had been legitimately allocated. Moreover, the Italian Government noted the delivery of a criminal court judgment absolving the aid recipient. Those facts showed that there was no reason for taking steps to recover that aid and, accordingly, that all the necessary information had been provided. In addition, that correction, which relates to the entirety of the aid, is significantly higher than any damage potentially resulting from the conduct imputed to the Italian authorities.


title: Case T-368/11: Action brought on 8 July 2011 — Polyelectrolyte Producers Group e.a./Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/28

         Action brought on 8 July 2011 — Polyelectrolyte Producers Group e.a./Commission
   (Case T-368/11)
   2011/C 282/58
   Language of the case: English

      Parties

      Applicants: Polyelectrolyte Producers Group (Brussels, Belgium), SNF SAS (Andrezieux Boutheon, France) and Travetanche Injection SPRL (Brussels, Belgium) (represented by: K. Van Maldegem and R. Cana, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the Commission Regulation (EU) No 366/2011 of 14 April 2011 amending Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) as regards Annex XVII (Acrylamide) (OJ 2011 L 101, p. 12);

               —

               Order the Commission to pay the cost and expenses.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging

                           —

                           that the contested Regulation contains manifest errors of appraisal in so far as the European Commission, firstly, relied on information that is not relevant, under the applicable legal framework, for the exposure of human beings and the environment in the EU, and, secondly, failed to identify risks resulting from acrylamide grouting, as per relevant applicable requirements, relying instead on information concerning the use of a different substance; as a result, the adoption of the said Regulation does not meet the conditions imposed by the relevant legal provisions;

               2.

               Second plea in law, alleging

                           —

                           that the contested Regulation infringes the principle of proportionality;

               3.

               Third plea in law, alleging

                           —

                           that the contested Regulation is inadequately reasoned, contrary to Article 296 TFEU.


title: Case T-212/07: Action brought on 15 June 2007 — Harman International Industries v OHIM — Becker (Barbara Becker)

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/40

         Action brought on 15 June 2007 — Harman International Industries v OHIM — Becker (Barbara Becker)
   (Case T-212/07)
   (2007/C 183/76)
   Language in which the application was lodged: English
   Parties

      Applicant: Harman International Industries, Inc. (Northridge, USA) (represented by: M. Vanhegan, Barrister)

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

      Other party to the proceedings before the Board of Appeal: Barbara Becker (Miami, USA)
   Form of order sought

               —

               Annulment of paragraph 1 of the First Board of Appeal's decision of 7 March 2007 (Case R 502/2006-1), by which the decision of the Opposition Division of 15 February 2005 was annulled;

               —

               an order that the Community trade mark application No 2 939 072 be refused in its entirety;

               —

               an order that the defendant pays the applicant its costs incurred before the Board of Appeal and the Court of First Instance.

         Pleas in law and main arguments

      Applicant for the Community trade mark: Barbara Becker

      Community trade mark concerned: The Community work mark ‘Barbara Becker’ for goods in Class 9 — application No 2 939 072

      Proprietor of the mark or sign cited in the opposition proceedings: Harman International Industries, Inc

      Mark or sign cited: The Community word marks ‘BECKER’ and ‘BECKER ONLINE PRO’ for goods in Class 9

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

      Decision of the Board of Appeal: Upheld the appeal and rejected the opposition

      Pleas in law: Infringement of Articles 8(1)(b) and 8(5) of Council Regulation 40/94 (‘CTMR’).
   The applicant claims that the Board erred in its application of Article 8(1)(b) CTMR in finding that there was no conceptual similarity between the applicant's mark ‘BECKER’ and the sign applied for by ‘Barbara Becker’, and hence no likelihood of confusion. Furthermore, the applicant submits that the Board erred in law in its application of Article 8(5) CTMR in finding that there was no link between the sign applied for by ‘Barbara Becker’ and the Community trade mark of its own.


title: Case C-109/11: Judgment of the Court (Fourth Chamber) of 25 April 2013 — European Commission v Czech Republic (Failure of a Member State to fulfil obligations — Taxation — Directive 2006/112/EC — Articles 9 and 11 — National legislation authorising persons not subject to taxation to be part of a VAT group)

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/5

         Judgment of the Court (Fourth Chamber) of 25 April 2013 — European Commission v Czech Republic
   (Case C-109/11) (1)

   (Failure of a Member State to fulfil obligations - Taxation - Directive 2006/112/EC - Articles 9 and 11 - National legislation authorising persons not subject to taxation to be part of a VAT group)
   2013/C 171/08
   Language of the case: Czech

      Parties

      Applicant: European Commission (represented by: R. Lyal, D. Triantafyllou, K. Walkerová and P. Němečková, Agents)

      Defendant: Czech Republic (represented by: M. Smolek, T. Müller and J. Očková, Agents)

      Interveners in support of the defendant: Kingdom of Denmark (represented: initially by C. Vang, then by V. Pasternak Jørgensen, Agents), Ireland (represented by: D. O’Hagan, Agent, assisted by G. Clohessy, SC, and by N. Travers, BL), Republic of Finland (represented by: H. Leppo and S. Hartikainen, Agents), United Kingdom of Great Britain and Northern Ireland (represented by: H. Walker, Agent, assisted by M. Hall, QC)

      Re:

   Failure of a Member State to fulfil obligations — Breach of Articles 9 and 11 of Council Directive 2006/112/EC of 28 November 2006, on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation authorising persons not subject to taxation to be part of a VAT group

      Operative part

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the European Commission to pay the costs;

               3.

               Orders the Kingdom of Denmark, Ireland, the Republic of Finland and the United Kingdom of Great Britain and Northern Ireland to bear their own respective costs.

      (1)  OJ C 160, 28.5.2011.


title: Removal from the register of C-186/95

text:
No C 166/ 12           EN                   Official Journal of the European Communities                                    31 . 5 . 97
Article 23 ( 2 ) ( relating to fire protection equipment) —                       Removal from the register of C-205/90 ( ] )
technical regulations within the meaning of Article 1 ( 5 )                                        ( 97/C 166/24 )
of Directive 83/ 189/EEC .
                                                                       By order of 20 February 1997 the President of the Court
(') OJ No L 109 , 1983 , p . 8 .                                       of Justice of the European Communities has ordered the
                                                                       removal from the register of Case C-205/90 ( reference for
                                                                       a preliminary ruling from the Rechtbank van Koophandel
                                                                       te Kortrijk ): Les Assurances du Credit Namur SA v.
                                                                       1 . PVBA 'Bowy' and 2 . G. Decoopman .
                                                                       ( 1 ) OJ No C 212, 25 . 8 . 1990 .
Reference for a preliminary ruling by the VAT and Duties
Tribunal, London, by direction of that court of 7 April
1997, in the case of The Institute of the Motor Industry
      against the Commissioners of Customs and Excise
                          Case C-149/97 )
                                                                                Removal from the register of C- 126/96 (')
                          ( 97/C 166/23 )
                                                                                ( 97/C 166/25
Reference has been made to the Court of Justice of the                 By order of 25 February 1997 the President of the Court
European Communities by direction of the VAT and                       of Justice of the European Communities has ordered the
Duties Tribunal of 7 April 1997, which was received at                 removal from the register of Case C-126/96 ( reference for
the Court Registry on 17 April 1997, for a preliminary                 a preliminary ruling from Her Majesty's Court of Session
ruling in the case of The Institute of the Motor Industry              in Scotland, Edinburgh ): Marie Brizard and Roger
against the Commissioners of Customs and Excise, on the                International SA v. William Grant & Sons ( International )
                                                                       Ltd and William Grant & Sons Ltd .
following question :
                                                                       (!) OJ No C 180 , 22 . 6 . 1996 .
'In the light of the findings of fact in paragraph 3—19 and
21 of the Decision of the Tribunal and in circumstances of
the sort found in paragraph 21 (which is summarized
below ), are the services supplied by such an association,
being a non-profit-making organization, exempt from VAT
as falling within the scope of Article 13A.1 ( 1 ) of the                         Removal from the register of C-133/96 ( ')
Sixth Directive ( J ) by virtue of the following words:                                            ( 97/C 166/26 )
                                                                       By order of 25 February 1997 the President of the Court
"(...) organizations with aims of a (...) trade-union (...)            of Justice of the European Communities has ordered the
nature (...)"?                                                         removal from the register of Case C-133/96 ( reference for
                                                                       a preliminary ruling from the Corte di Appello di Anco
                                                                       na ): Ministero delle Finanze dello Stato v. Foods Import
Paragraph 21 , in summary, states that the association is a            Sri dei Flli Monti .
voluntary association of individuals comprising of
employees in the retail motor industry. The primary                    (') OJ No C 180 , 22 . 6 . 1996 .
purposes of the association are the improvement of the
standards of its members at work, the improvement of
career structures within the         different   sectors    of the
industry and the consequent enhancement of the public
perception of the industry and the people working within
it. The association seeks to achieve these ends by                                Removal from the register of C-186/95 (')
responding to the requirements of the industry for skills at                                       ( 97/C 166/27 )
all levels, by validating courses ( run by other institutions )
that teach those skills, by making awards on completion
of those courses and by grading its members, by                        By order of 27 February 1997 the President of the Court
disseminating information designed to keep its members                 of Justice of the European Communities has ordered the
up to date with developments in the industry and in their              removal from the register of Case C-186/95 (reference
skills and by keeping a job placement register.'                       for a preliminary ruling from the Pretura Circondariale
                                                                       di Roma, Sezione Distaccata di Castelnuovo di Porto ):
 O Directive 77/388/EEC of the Council of 17 May 1977 on the
                                                                       criminal proceedings against Luciano Iommi, Giovanni
    harmonization of the laws of the Member States relating to          Carnovale, Franco De Bonis, Giorgio Iommi and Antonio
    turnover taxes — Common system of value added tax :                Iommi .
    uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977, p. 1 ).
                                                                        (') OJ No C 208 , 12 . 8 . 1995 .


title: Case C-594/13: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 21 November 2013 — ‘go fair’ Zeitarbeit OHG v Finanzamt Hamburg-Altona

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/3

      Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 21 November 2013 — ‘go fair’ Zeitarbeit OHG v Finanzamt Hamburg-Altona
      (Case C-594/13)
      (2014/C 71/06)
      Language of the case: German

         Referring court

      Bundesfinanzhof

         Parties to the main proceedings

         Applicant:‘go fair’Zeitarbeit OHG

         Defendant: Finanzamt Hamburg-Altona

         Questions referred

                  1.

                  On the interpretation of Article 132(1)(g) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax:

                              (a)

                              Can a Member State exercise the discretion it enjoys in the context of recognising a body as being devoted to social wellbeing in such a way that, while it recognises persons who provide their services to social security funds and care funds, it does not also recognise State-examined care workers who provide their services directly to persons in need of care?

                              (b)

                              If State-examined care workers are to be recognised as being devoted to social wellbeing, does the recognition of a temporary work agency which hires out State-examined care workers to recognised care establishments (host establishments) follow from the recognition of the staff hired out?

                  2.

                  On the interpretation of Article 134(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax:
                  Is the supply of State-examined care workers, as a transaction closely linked to welfare and social security work, essential to the provision of care services to the host establishment (user undertaking), if the host establishment cannot operate without staff?

         (1)  OJ 2006 L 347, p. 1.


title: Case T-613/13: Action brought on 20 November 2013 — alfavet Tierarzneimittel v OHIM — Millet Innovation (Epibac)

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/23

         Action brought on 20 November 2013 — alfavet Tierarzneimittel v OHIM — Millet Innovation (Epibac)
   (Case T-613/13)
   2014/C 39/40
   Language in which the application was lodged: German

      Parties

      Applicant: alfavet Tierarzneimittel GmbH (Neumünster, Germany) (represented by: U. Bender, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Millet Innovation SA (Loriol sur Drome, France)

      Form of order sought

   The applicant claims that the Court should:

               —

               alter the decision of the Fourth Board of Appeal of 6 September 2013 (Case R 1253/2012-4) in such a way that the opposition is rejected, and

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: word mark ‘Epibac’ for goods in Classes 3, 5 and 31 — Community trade mark application No 6861124

      Proprietor of the mark or sign cited in the opposition proceedings: Millet Innovation SA

      Mark or sign cited in opposition: Word marks ‘EPITACT’ for goods in Classes 3, 5 and 10

      Decision of the Opposition Division: the opposition was upheld in part

      Decision of the Board of Appeal: the appeal was dismissed in part

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


title: Case T-558/14: Action brought on 24 July 2014 — Research Engineering & Manufacturing v OHIM — Nedschroef Holding (TRILOBULAR)

text:
               6.10.2014

               EN

               Official Journal of the European Union

               C 351/17

         Action brought on 24 July 2014 — Research Engineering & Manufacturing v OHIM — Nedschroef Holding (TRILOBULAR)
   (Case T-558/14)
   2014/C 351/21
   Language in which the application was lodged: English

      Parties

      Applicant: Research Engineering & Manufacturing, Inc. (Middletown, United States) (represented by: S. Malynicz, Barrister, K. Gilbert and M. Gilbert, Solicitors)

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

      Other party to the proceedings before the Board of Appeal: Nedschroef Holding BV (Helmond, Netherlands)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 May 2014 given in Case R 442/2013-4;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: Community trade mark registration No 668 566

      Proprietor of the Community trade mark: The applicant

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

      Grounds for the application for a declaration of invalidity: Absolute grounds for invalidity pursuant to Article 52(1)(a) CTMR in conjuction with Article 7(1)(b) and (c)

      Decision of the Cancellation Division: Rejected the request for declaration of invalidity

      Decision of the Board of Appeal: Annulled the contested decision and declared the Community trade mark invalid

      Pleas in law: Infringement of Articles 7(1)(b) and 7(1)(c) CTMR.


title: Case C-346/06: Reference for a preliminary ruling from the Oberlandesgericht Celle (Germany) lodged on 11 August 2006 — Rechtsanwalt Dr Dirk Rüffert, as the liquidator of the assets of Objekt und Bauregie GmbH & Co KG v Land Niedersachsen

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/22

         Reference for a preliminary ruling from the Oberlandesgericht Celle (Germany) lodged on 11 August 2006 — Rechtsanwalt Dr Dirk Rüffert, as the liquidator of the assets of Objekt und Bauregie GmbH & Co KG v Land Niedersachsen
   (Case C-346/06)
   (2006/C 294/38)
   Language of the case: German
   Referring court
   Oberlandesgericht Celle
   Parties to the main proceedings

      Applicant: Rechtsanwalt Dr Dirk Rüffert, as the liquidator of the assets of Objekt und Bauregie GmbH & Co KG

      Defendant: Land Niedersachsen
   Question referred
   Does it amount to an unjustified restriction on the freedom to provide services under the EC Treaty if a public contracting authority is required by statute to award contracts for building services only to undertakings which, when lodging a tender, undertake in writing to pay their employees, when performing those services, at least the remuneration prescribed by the collective agreement in force at the place where those services are performed?


title: Case F-103/07: Judgment of the Civil Service Tribunal (Second Chamber) of 4 September 2008 — Duta v Court of Justice (Staff case — Temporary staff — Recruitment — Legal secretary — Article 2(c) of the CEOS — Act adversely affecting an official — Relationship of trust)

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/58

         Judgment of the Civil Service Tribunal (Second Chamber) of 4 September 2008 — Duta v Court of Justice
   (Case F-103/07) (1)

   (Staff case - Temporary staff - Recruitment - Legal secretary - Article 2(c) of the CEOS - Act adversely affecting an official - Relationship of trust)
   (2008/C 313/105)
   Language of the case: French
   Parties

      Applicant: Radu Duta (Luxembourg, Luxembourg) (represented by: F. Krieg, lawyer)

      Defendant: Court of Justice of the European Communities (represented by: M. Schauss, Agent)
   Re:
   Application for, first, annulment of the decision of 4 June 2007 of the committee of the Court of First Instance (CFI) authorised to rule on complaints, rejecting the applicant's candidature for a position as legal secretary in the chambers of a judge of the CFI and, secondly, an application for the symbolic sum of EUR one by way of damages for the harm suffered.
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 315, 22.12.2007, p. 45, and OJ C 79, 29.3.2008, p. 39 (corrigendum).


title: Case C-8/04: Reference for a preliminary ruling by the Gerechtshof Herzogenbusch by judgment of that Court of 8 January 2004 in the case of E. Bujura against Inspecteur van de Belastingdienst Limburg / Kantoor Buitenland, Heerlen

text:
6.3.2004               EN                       Official Journal of the European Union                                               C 59/17
Article 15                                                              Does a foreign taxpayer resident in a Member State, such as
                                                                        Germany, who is not entitled to the benefits afforded by the
Article 15 of the Directive, which requires the introduction of         Netherlands-Germany Tax Convention because he does not
a general prohibition on indiscriminate capture and killing has         satisfy the condition, laid down in that regard, that he receive
been implemented by regulation 41 of the C(NH)R 1994,                   at least 90% of his income in the Netherlands, have the right,
regulation 36(2) of the C(NH)R(NI)1995 and section 17V(2)               by virtue of EC law, to receive from the Netherlands the tax-
of the NPO 1991. These provisions make it an offence to use             free allowance and tax credit for income tax in the calculation
any of the means of capture and killing listed in Annex VI(a)           of his income from savings and investments if a foreign
and Annex VI(b) of the Directive. The Commission considers              taxpayer who in resident in another Member State, in this case
that this transposition method fails to incorporate a general           Belgium, has the right to such benefits in the calculation of his
prohibition as is required by Article 15.                               income from savings and investments by virtue of the
                                                                        Netherlands-Belgium Tax Convention (and the decision of the
                                                                        State Secretary for Finance of 21 February 2002, No CPP
                                                                        2001/2745, BNB 2002/164) despite the fact that he does not
Article 16                                                              receive at least 90 % of his income in the Netherlands?
Article 16(1) of the Directive permits derogations from the
prohibitions under Articles 12, 13, 14 and 15(a) and (b) of the
Directive in certain circumstances. Such derogations are subject
to two pre-conditions in the opening paragraph of
Article 16(1), namely that there is no satisfactory alternative
and that the derogation is not detrimental to the maintenance
of the populations of the species concerned at a favourable
conservation status in their natural range. The Commission
                                                                        Reference for a preliminary ruling by the Hoge Raad der
considers that the national measures providing for these
                                                                        Nederlanden by judgment of that Court of 23 December
derogations do not adequately transpose these pre-conditions.
                                                                               2003 in the case of in the criminal case against
                                                                                Geharo B.V.
Application of the Directive beyond territorial waters
                                                                                (Case C-9/04)
The Commission considers that the Directive applies beyond
the territorial waters. Specifically, the United Kingdom has
failed to transpose the obligations to designate special areas of                                   (2004/C 59/28)
conservation under Article 4 of the Directive and to provide
species protection under Article 12 of the Directive inasmuch
as the transposing legislation does not apply beyond the
United Kingdom’s territorial waters.                                    Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of the Hoge Raad
(1) of 21 May 1992 (OJ 1992 L 206, p. 7).                               der Nederlanden (Supreme Court of the Netherlands) of
                                                                        23 December 2003, received at the Court Registry on 12 Janu-
                                                                        ary 2004, for a preliminary ruling in the case of in the criminal
                                                                        case against Geharo B.V. on the following question:
                                                                        Does the second sentence of Article 1 of Directive 91/338/
Reference for a preliminary ruling by the Gerechtshof                   EEC (1) (cadmium directive) preclude the application of the
Herzogenbusch by judgment of that Court of 8 January                    rules in that directive regarding the cadmium content of
2004 in the case of E. Bujura against Inspecteur van de                 (finished) products and components, as set out in the Annex
  Belastingdienst Limburg / Kantoor Buitenland, Heerlen                 thereto, to toys within the meaning of Directive 88/378/
                                                                        EEC (2) (toy safety directive)?
                          (Case C-8/04)
                                                                        (1) Council Directive 91/338/EEC of 18 June 1991 amending for the
                         (2004/C 59/27)                                     10th time Directive 76/769/EEC on the approximation of the
                                                                            laws, regulations and administrative provisions of the Member
                                                                            States relating to restrictions on the marketing and use of certain
                                                                            dangerous substances and preparations (OJ L 186 of 12.07.1991,
Reference has been made to the Court of Justice of the                      p. 59 — Corrigendum in OJ L 253, 10.9.1991, p. 26).
European Communities by judgment of the Gerechtshof                     (2) Council Directive 88/378/EEC of 3 May 1988 on the approxi-
Herzogenbusch (s-Hertogenbosch Regional Court of Appeal)                    mation of the laws of the Member States concerning the safety of
of 8 January 2004, received at the Court Registry on 12 January             toys (OJ L 187 of 16.07.1988, p. 1).
2004, for a preliminary ruling in the case of E. Bujura
against Inspecteur van de Belastingdienst Limburg / Kantoor
Buitenland, Heerlen on the following question: