title: Judgment of the Court of 5 October 2000 in Case C-16/98: Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Directive 93/38/EEC — Public works contracts in the water, energy, transport and telecommunications sectors — Electrification and street lighting works in the département of the Vendée — Definition of work)

text:
C 335/20                 EN                     Official Journal of the European Communities                                         25.11.2000
Articles 3(c) and (g) of the EC Treaty (now, after amendment, Article                        JUDGMENT OF THE COURT
3(c) and (g) EC), 3a and 5 of the EC Treaty (now Articles 4 EC and
10 EC), the second paragraph of Article 7a of the EC Treaty (now,
after amendment, the second paragraph of Article 14 EC) and                                         of 5 October 2000
Articles 102a and 103 of the EC Treaty (now Articles 98 EC and
99 EC) do not preclude the application of national legislation
requiring publishers to impose on booksellers fixed prices for the         in Case C-16/98: Commission of the European Communi-
resale of books.                                                                                ties v French Republic (1)
(1) OJ C 71 of 13.3.1999.                                                  (Failure of a Member State to fulfil its obligations —
                                                                           Directive 93/38/EEC — Public works contracts in the
                                                                           water, energy, transport and telecommunications sectors —
                                                                           Electrification and street lighting works in the département
                                                                                of the Vendée — Definition of work)
                                                                                (2000/C 335/37)
                 JUDGMENT OF THE COURT
                           (Fifth Chamber)
                                                                                (Language of the case: French)
                         of 5 October 2000
in Case C-288/96: Federal Republic of Germany v Com-                       (Provisional translation; the definitive translation will be published
           mission of the European Communities (1)                                             in the European Court Reports)
(State aid — Operating aid — Guidelines in the fisheries                   In Case C-16/98: Commission of the European Communities
sector — Article 92(1) and (3)(c) of the EC Treaty (now,                   (Agents: H. van Lier and O. Couvert-Castéra) v French Republic
after amendment, Article 87(1) and (3)(c) EC) — Rights of                  (Agents: K. Rispal-Bellanger and P. Lalliot) — application for a
              the defence — Statement of reasons)                          declaration that, in the course of the procurement procedure
                                                                           initiated by the Syndicat Départemental d’Electrification de la
                           (2000/C 335/36)                                 Vendée in December 1994 for the award of a contract for
                                                                           electrification and street lighting work, the French Republic
                                                                           failed to fulfil its obligations under Articles 4(2), 14(1), (10)
                   (Language of the case: German)                          and (13), together with Articles 21, 24 and 25 of Council
                                                                           Directive 93/38/EEC of 14 June 1993 coordinating the pro-
                                                                           curement procedures of entities operating in the water, energy,
(Provisional translation; the definitive translation will be published     transport and telecommunications sectors (OJ 1993 L 199,
                    in the European Court Reports)                         p. 84) — the Court, composed of: G.C. Rodrı́guez Iglesias,
                                                                           President, J.C. Moitinho de Almeida, L. Sevón and R. Schintgen
                                                                           (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann,
In Case C-288/96: Federal Republic of Germany (Agent:                      J.-P. Puissochet, M. Wathelet and V. Skouris (Rapporteur),
B. Kloke with M. Schütte) v Commission of the European                     Judges; F.G. Jacobs, Advocate General; D. Louterman-Hubeau,
Communities (Agent: P.F. Nemitz with R.M. Bierwagen) —                     Principal Administrator, for the Registrar, has given a judgment
application for the annulment of Commission Decision                       on 5 October 2000, in which it:
96/563/EC of 29 May 1996 on aid from the Land of Lower
Saxony to the company JAKO Jadekost GmbH & Co. KG (OJ
1996 L 246, p. 43) — the Court (Fifth Chamber), composed                   1.    Declares that in so far as the French entities responsible for the
of: D.A.O. Edward (Rapporteur), President of the Chamber,                        tendering procedure for electrification contracts held in Vendée
J.C. Moitinho de Almeida, L. Sevón, J.-P. Puissochet and                        in December 1994
M. Wathelet, Judges; G. Cosmas, Advocate General; H.A. Rühl,
Principal Administrator, for the Registrar, has given a judgment                 —     split the work,
on 5 October 2000, in which it:
1.    Dismisses the application;                                                 —     did not publish in the Official Journal of the European
                                                                                Communities a call for competition for all the contracts
2.    Orders the Federal Republic of Germany to pay the costs.                         comprised in that work above the threshold laid down in
                                                                                Article 14(10), second subparagraph, last sentence,
                                                                                of Council Directive 93/38/EEC of 14 June 1993
(1) OJ C 354 of 23.11.1996.                                                            coordinating the procurement procedures of entities
                                                                                operating in the water, energy, transport and telecom-
                                                                                munications sectors but confined themselves to doing so
                                                                                for six of them only,
 ---pagebreak--- 25.11.2000               EN                      Official Journal of the European Communities                                           C 335/21
      —     did not communicate all the information required by             M. Wathelet and V. Skouris (Rapporteur), Judges; F.G. Jacobs,
            Annex XII to Directive 93/38 as regards the six calls for       Advocate General; D. Louterman-Hubeau, Principal Adminis-
            competition published in the Official Journal of the            trator, for the Registrar, has given a judgment on 5 October
            European Communities,                                           2000, in which it:
      —     did not communicate to the Commission the information           1.     Dismisses the application;
            required regarding the award of all the contracts comprised
            in that work above the threshold laid down in Article           2.     Orders the Commission of the European Communities to pay
            14(10), second subparagraph, last sentence, of Directive               the costs.
            93/38,
      the French Republic has failed to fulfil its obligations under        (1) OJ C 340 of 7.11.1998.
      Articles 4(2) and 14(1), (10) and (13) together with Articles
      21(1) and (5), 24(1) and (2) and 25(5) of that directive;
2.    Dismisses the remainder of the application;
3.    Orders the Commission of the European Communities and the
      French Republic to bear their own costs.
                                                                                JUDGMENT OF THE COURT
(1) OJ C 94 of 28.3.1998.
                                                                                of 5 October 2000
                                                                            in Case C-376/98: Federal Republic of Germany v Euro-
                                                                              pean Parliament and Council of the European Union (1)
                                                                            (Directive 98/43/EC — Advertising and sponsorship of
                 JUDGMENT OF THE COURT                                      tobacco products — Legal basis — Article 100a of the EC
                                                                                Treaty (now, after amendment, Article 95 EC))
                          of 5 October 2000
                                                                                (2000/C 335/39)
in Case C-337/98: Commission of the European Communi-
                      ties v French Republic (1)
                                                                                (Language of the case: German)
(Failure to fulfil obligations — Public procurement contracts
in the transport sector — Directive 93/38/EEC — Applica-
bility ratione temporis — Rennes urban district light railway               (Provisional translation; the definitive translation will be published
project — Contract awarded by negotiated procedure without                                      in the European Court Reports)
                   a prior call for competition)
                                                                            In Case C-376/98: Federal Republic of Germany (Agents:
                           (2000/C 335/38)                                  C.-D. Quassowski assisted by J. Sedemund) v European Parlia-
                                                                            ment (Agents: C. Pennera and N. Lorenz) and Council of the
                                                                            European Union (Agents: R. Gosalbo Bono, A. Feeney and
                     (Language of the case: French)                         S. Marquardt) supported by French Republic (Agents: initially
                                                                            J.-F. Dobelle and R. Loosli-Surrans, and then K. Rispal-Bellanger
                                                                            and R. Loosli-Surrans) and by Republic of Finland, (Agents:
(Provisional translation; the definitive translation will be published      H. Rotkirch and T. Pynnä) and by United Kingdom of Great
                    in the European Court Reports)                          Britain and Northern Ireland (Agents: M. Ewing and N. Paines)
                                                                            and by Commission of the European Communities (Agents:
In Case C-337/98: Commission of the European Communities                    I. Martı́nez del Peral and U. Wölker) — application for the
(Agent: M. Nolin) v French Republic (Agents: K. Rispal-                     annulment of Directive 98/43/EC of the European Parliament
Bellanger and A. Viéville-Bréville ) — application for a                    and of the Council of 6 July 1998 on the approximation of
declaration that, by its decision of 22 November 1996 to                    the laws, regulations and administrative provisions of the
award the turnkey contract for the Rennes urban district light              Member States relating to the advertising and sponsorship of
railway project to Matra-Transport, the French Republic has                 tobacco products (OJ 1998 L 213, p. 9) — the Court,
failed to fulfil its obligations under Council Directive                    composed of: G.C. Rodrı́guez Iglesias, President, J.C. Moitinho
93/38/EEC of 14 June 1993 coordinating the procurement                      de Almeida (Rapporteur), D.A.O. Edward, L. Sevón and
procedures of entities operating in the water, energy, transport            R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn,
and telecommunications sectors (OJ 1993 L 199, p. 84), and                  C. Gulmann, A. La Pergola, J.-P. Puissochet, P. Jann,
Articles 4(2) and 20(2)(c) thereof in particular — the Court,               H. Ragnemalm, M. Wathelet and F. Macken, Judges; N. Fennelly,
composed of: G.C. Rodrı́guez Iglesias, President, J.C. Moitinho             Advocate General; H. von Holstein, Deputy Registrar, and
de Almeida and L. Sevón (Presidents of Chambers),                          L. Hewlett, Administrator, for the Registrar, has given a
P.J.G. Kapteyn, J.-P. Puissochet, P. Jann, H. Ragnemalm,                    judgment on 5 October, in which it:


title: Case T-48/14: Action brought on 21 January 2014 — Pfizer v Commission and EMA

text:
               15.3.2014

               EN

               Official Journal of the European Union

               C 78/15

         Action brought on 21 January 2014 — Pfizer v Commission and EMA
   (Case T-48/14)
   2014/C 78/30
   Language of the case: English

      Parties

      Applicant: Pfizer Ltd (Sandwich, United Kingdom) (represented by: K. Bacon and M. Schaefer, Barristers, I. Dodds-Smith, C. Stothers and J. Mulryne, Solicitors)

      Defendants: European Commission and European Medicines Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Commission and of EMA contained in the letters of 11 November 2013 and of 15 November 2013 not to issue the compliance statement; and

               —

               Order the Commission and EMA to bear the costs of the application.

      Pleas in law and main arguments

   In support of the action, the applicant relies on one plea in law, alleging that in contending that the compliance statement, for the applicant’s marketing authorisation of medicinal product Vfend, cannot be issued until the studies set out in the paediatric investigation plan (‘PIP’) have been assessed for the purposes of the new prophylaxis indication, the EMA has misinterpreted Article 28(3) of the Paediatric Regulation (1).

      (1)  Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768/92, Directive 2001/20/EC, Directive 2001/83/EC and Regulation (EC) No 726/2004 (OJ L 378, p.1).


title: Case C-243/08: Judgment of the Court (Fourth Chamber) of 4 June 2009 (Reference for a preliminary ruling from the Budaörsi Városi Bíróság (Hungary)) — Pannon GSM Zrt v Erzsébet Sustikné Győrfi (Directive 93/13/EEC — Unfair terms in consumer contracts — Legal effects of an unfair term — Power of and obligation on the national court to examine of its own motion the unfairness of a term conferring jurisdiction — Criteria for assessment)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/19

         Judgment of the Court (Fourth Chamber) of 4 June 2009 (Reference for a preliminary ruling from the Budaörsi Városi Bíróság (Hungary)) — Pannon GSM Zrt v Erzsébet Sustikné Győrfi
   (Case C-243/08) (1)

   (Directive 93/13/EEC - Unfair terms in consumer contracts - Legal effects of an unfair term - Power of and obligation on the national court to examine of its own motion the unfairness of a term conferring jurisdiction - Criteria for assessment)
   2009/C 180/32
   Language of the case: Hungarian

      Referring court

   Budaörsi Városi Bíróság

      Parties to the main proceedings

      Applicant: Pannon GSM Zrt

      Defendant: Erzsébet Sustikné Győrfi

      Re:

   Reference for a preliminary ruling — Budaörsi Városi Bíróság — Interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Clause conferring jurisdiction on a court in the territorial jurisdiction of which the seller or supplier has his principal place of business — Power of the national court to examine of its own motion, and in the context of the examination of its own jurisdiction, whether the clause conferring jurisdiction is unfair — Criteria to be applied in determining whether the clause is unfair

      Operative part of the judgment

               1.

               Article 6(1) of Council Directive 93/13/EEC of 5 April 1993, on unfair terms in consumer contracts, must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand.

               2.

               The national court is required to examine, of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non-application. That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction.

               3.

               It is for the national court to determine whether a contractual term, such as that which is the subject-matter of the dispute in the main proceedings, satisfies the criteria to be categorised as unfair within the meaning of Article 3(1) of Directive 93/13. In so doing, the national court must take account of the fact that a term, contained in a contract concluded between a consumer and a seller or supplier, which has been included without being individually negotiated and which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business may be considered to be unfair.

      (1)  OJ C 247, 27.9.2008.


title: Action brought on 30 November 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-429/98)

text:
23.1.1999             EN                  Official Journal of the European Communities                                    C 20/23
reimbursed (less turnover tax), regardless of which                  Pleas in law and main arguments adduced in support:
purchaser receives the reimbursement (taxpayer or end
user) and how many people there are in the chain of
purchasers. There is no need to adjust the provisional               The mandatory nature of the provisions of the third
turnover since it is the retailer who is taxed on the net            paragraph of Article 189 and of the first paragraph of
value of the coupons which the end user presents to                  Article 5 of the EC Treaty is such as to oblige Member
obtain a price reduction when purchasing the goods. Thus             States to adopt the measures necessary for the
the applicable law on turnover tax in the Federal Republic           implementation of directives within the time-limit
of Germany, and in particular Paragraphs 10(1) and 17(1)             prescribed therein, and to communicate those measures to
of the Law on Turnover Tax, as it is to be applied                   the Commission forthwith. The time-limit in question
pursuant to the German Government's binding                          expired on 21 November 1996 but the Kingdom of
administrative notice of 15 April 1998, infringes Article 11         Belgium has not adopted the necessary measures.
Part 1 1(a) and Article 11 Part C 1 of the Sixth Directive,
since those provisions of that Directive give expression to
the principle that turnover taxes are to be neutral in that          (1) OJ L 319, 12.12.1994, p. 14.
the end result should not be that a taxpayer who, because
he has to pay tax on a higher amount than he received for
his supply, ultimately bears part of the turnover tax.
(1) OJ L 145, 13.6.1977, p. 1.
(2) Judgment in Case C-317/94 [1996] ECR I-5368.
                                                                     Action brought on 30 November 1998 by the Commission
                                                                     of the European Communities against the Grand Duchy of
                                                                                Luxembourg
                                                                                (Case C-430/98)
                                                                                (1999/C 20/39)
Action brought on 30 November 1998 by the Commission
of the European Communities against the Kingdom of                   An action against the Grand Duchy of Luxembourg was
                            Belgium                                  brought before the Court of Justice of the European
                       (Case C-429/98)                               Communities on 30 November 1998 by the Commission
                                                                     of the European Communities, represented by Pieter Jan
                        (1999/C 20/38)                               Kuijper, Legal Adviser, and Nicola Yerrell, a national civil
                                                                     servant on secondment to its Legal Service, acting as
                                                                     Agents, with an address for service in Luxembourg at the
                                                                     office of Carlos Gómez de la Cruz, Wagner Centre,
An action against the Kingdom of Belgium was brought                 Kirchberg.
before the Court of Justice of the European Communities
on 30 November 1998 by the Commission of the
European Communities, represented by Frank Benyon,                   The Commission of the European Communities claims
Legal Adviser, acting as Agent, with an address for service          that the Court should:
in Luxembourg at the Office of Carlos Gómez de la Cruz,
Wagner Centre, Kirchberg.
                                                                     (a) declare that, by failing to adopt and/or to
                                                                          communicate to the Commission the laws,
                                                                          regulations and administrative measures necessary in
The Commission of the European Communities claims                         order to comply with Council Directive 94/45/EC of
that the Court should:                                                    22 September 1994 on the establishment of a
                                                                          European Works Council or a procedure in
                                                                          Community-scale undertakings and Community-scale
                                                                          groups of undertakings for the purposes of informing
(1) declare that, by failing to adopt the laws, regulations
                                                                          and consulting employees (1), alternatively by failing
      and administrative measures necessary in order to
                                                                          to ensure the introduction by the social partners of
      comply with Council Directive 94/56/EC of
                                                                          the necessary measures by voluntary agreement, and
      21 November 1994 establishing the fundamental
                                                                          thus by failing to adopt and/or to communicate to
      principles governing the investigation of civil aviation
                                                                          the Commission the measures necessary in order to
      accidents and incidents (1), alternatively by failing to
                                                                          guarantee the results to be achieved under that
      communicate the measures taken in order to comply
                                                                          directive, the Grand Duchy of Luxembourg has failed
      therewith, the Kingdom of Belgium has failed to fulfil
                                                                          to fulfil its obligations under the EC Treaty; and
      its obligations under that directive;
                                                                     (b) order the Grand Duchy of Luxembourg to pay the
(2) order the Kingdom of Belgium to pay the costs.                        costs.


title: Case C-594/16: Request for a preliminary ruling from the Consiglio di Stato — Italia lodged on 23 November 2016 — Enzo Buccioni v Banca d’Italia

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/13

         Request for a preliminary ruling from the Consiglio di Stato — Italia lodged on 23 November 2016 — Enzo Buccioni v Banca d’Italia
   (Case C-594/16)
   (2017/C 063/19)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Enzo Buccioni

      Defendant: Banca d’Italia

      Questions referred

               1.

               Is the principle of transparency, which is clearly set out in Article 15 of the [Treaty on the Functioning of the European Union], with its binding general objective, if construed as meaning that (that principle) may be regulated by the sources of law or equivalent provided for in Article 15(3), the content of which could suggest an excessively broad discretion that lacks foundation in a higher source of European law as regards the need to predetermine minimum principles from which there is no derogation, not at variance with the restrictive objective in European legislation concerning the supervision of the credit institutions, to such a degree that the principle of transparency itself is rendered ineffective, including in circumstances in which the interest in access is founded on vital interests of the applicant that are clearly comparable to the interests that constitute exceptions, in his favour, to the restrictions in the sector?

               2.

               As a result of this, must Article 22(2) and Article 27(1) of Regulation (EU) No 1024/2013 (1) of the Council of 15 October 2010, which confers on the European Central Bank specific supervisory tasks in relation to the credit institutions, be interpreted not as non-exceptional cases in which derogations from the non-accessibility of documents are permitted, but as provisions to be interpreted in the light of the broader objectives of Article 15 of the [Treaty on the Functioning of the European Union] and, as such, founded on a general legislative principle of European law according to which access cannot be restricted, following a reasonable and proportionate balancing of the needs of the credit institutions with the fundamental interests of a saver caught up in a case of burden sharing, depending on the relevant circumstances established by a supervisory authority with organisational tasks and responsibilities in the sector comparable to those of the European Central Bank?

               3.

               Consequently, must not Article 53 of Directive 2013/36/EU (2) of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (text with EEA relevance), and the provisions of national law that reflect it, be reconciled with the remaining rules and principles of European law, as set out in the first question, to the effect that access may be granted, where requested after the banking institution has been placed in compulsory liquidation, including where the request for access is not made exclusively in the context of civil or commercial proceedings that have actually been brought to protect the financial interests that have been prejudiced because the banking institution has been placed in compulsory liquidation, but also where the request is addressed to a judicial body authorised by the national State to safeguard the right of access and transparency, specifically in order to determine the actual possibility of bringing such civil or commercial proceedings, before they are in fact instituted, with a view to protecting in full the rights of defence and the right to bring proceedings, with specific reference to the request of a saver who has already suffered the effects of burden sharing in connection with the winding up of the credit institution with which he deposited his savings?

      (1)  OJ 2013 L 287, p. 63.

      (2)  OJ 2013 L 176, p. 338.


title: Case C-521/11: Judgment of the Court (Second Chamber) of 11 July 2013 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Amazon.com International Sales Inc., Amazon EU Sàrl, Amazon.de GmbH, Amazon.com GmbH, in liquidation, Amazon Logistik GmbH v Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH (Approximation of laws — Intellectual property — Copyright and related rights — Exclusive right of reproduction — Directive 2001/29/EC — Article 5(2)(b) — Fair compensation — Indiscriminate application with a possible right to recovery of the private copying levy intended to finance compensation — Payment of the revenue collected in part to rightholders and in part to social or cultural institutions — Double payment of the private copying levy in the context of a cross-border transaction)

text:
               31.8.2013

               EN

               Official Journal of the European Union

               C 252/10

         Judgment of the Court (Second Chamber) of 11 July 2013 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Amazon.com International Sales Inc., Amazon EU Sàrl, Amazon.de GmbH, Amazon.com GmbH, in liquidation, Amazon Logistik GmbH v Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH
   (Case C-521/11) (1)

   (Approximation of laws - Intellectual property - Copyright and related rights - Exclusive right of reproduction - Directive 2001/29/EC - Article 5(2)(b) - Fair compensation - Indiscriminate application with a possible right to recovery of the private copying levy intended to finance compensation - Payment of the revenue collected in part to rightholders and in part to social or cultural institutions - Double payment of the private copying levy in the context of a cross-border transaction)
   2013/C 252/15
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicants: Amazon.com International Sales Inc., Amazon EU Sàrl, Amazon.de GmbH, Amazon.com GmbH, in liquidation, Amazon Logistik GmbH

      Defendant: Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH

      Re:

   Request for a preliminary ruling — Oberster Gerichtshof — Interpretation of Articles 2 and 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Right of reproduction — Interpretation of the notion of ‘fair compensation’ under Article 5(2)(b) of Directive 2001/29/EC — Legislation of a Member State providing for the indiscriminate application of a private copying levy on all media for reproduction and for the repayment of that levy in the case of the export of the medium before its sale to a final consumer or in the case of reproduction authorised by the rightholder

      Operative part of the judgment

               1.

               Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that it does not preclude legislation of a Member State which indiscriminately applies a private copying levy on the first placing on the market in its territory, for commercial purposes and for consideration, of recording media suitable for reproduction, while at the same time providing for a right to reimbursement of the levies paid in the event that the final use of those media does not meet the criteria set out in that provision, where, having regard to the particular circumstances of each national system and the limits imposed by that directive, which it is for the national court to verify, practical difficulties justify such a system of financing fair compensation and the right to reimbursement is effective and does not make repayment of the levies paid excessively difficult;

               2.

               Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that, in the context of a system of financing of fair compensation under that provision by means of a private copying levy to be borne by persons who first place recording media suitable for reproduction on the market in the territory of the Member State concerned for commercial purposes and for consideration, that provision does not preclude the establishment by that Member State of a rebuttable presumption of private use of such media where they are marketed to natural persons, where the practical difficulties of determining whether the purpose of the use of the media in question is private justify the establishment of such a presumption and provided that the presumption established does not result in the imposition of the private copying levy in cases where the final use of those media clearly does not fall within the case referred to in that provision;

               3.

               Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that the right to fair compensation under that provision or the private copying levy intended to finance that compensation cannot be excluded by reason of the fact that half of the funds received by way of such compensation or levy is paid, not directly to those entitled to such compensation, but to social and cultural institutions set up for the benefit of those entitled, provided that those social and cultural establishments actually benefit those entitled and the detailed arrangements for the operation of such establishments are not discriminatory, which it is for the national court to verify;

               4.

               Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that the obligation undertaken by a Member State to pay, on the placing on the market, for commercial purposes and for consideration, of recording media suitable for reproduction, a private copying levy intended to finance the fair compensation under that provision may not be excluded by reason of the fact that a comparable levy has already been paid in another Member State.

      (1)  OJ C 25, 28.1.2012.


title: Case T-151/07: Judgment of the General Court of 13 July 2011 — Kone and Others v Commission (Competition — Agreements, decisions and concerted practices — Market for the installation and maintenance of elevators and escalators — Decision finding an infringement of Article 81 EC — Bid-rigging — Market sharing — Price fixing)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/45

         Judgment of the General Court of 13 July 2011 — Kone and Others v Commission
   (Case T-151/07) (1)

   (Competition - Agreements, decisions and concerted practices - Market for the installation and maintenance of elevators and escalators - Decision finding an infringement of Article 81 EC - Bid-rigging - Market sharing - Price fixing)
   2011/C 269/99
   Language of the case: English

      Parties

      Applicants: Kone Oyj (Helsinki, Finland); Kone GmbH (Hanover, Germany); and Kone BV (Voorburg, Netherlands) (represented by: T. Vinje, Solicitor, D. Paemen, J. Schindler, B. Nijs, A. Tomtsis, lawyers, J. Flynn QC and D. Scannell, Barrister)

      Defendant: European Commission (represented by: É. Gippini Fournier and R. Sauer, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2007) 512 final of 21 February 2007 relating to a proceeding under Article 81 [EC] (Case COMP/E 1/38.823 — Elevators and Escalators) or, in the alternative, reduction of the amount of the fine imposed on the applicants.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Kone Oyj, Kone GmbH and Kone BV to pay the costs.

      (1)  OJ C 155, 7.7.2007.


title: Case F-51/07 RENV: Order of the Civil Service Tribunal of 23 September 2010 — Bui Van v Commission

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/60

         Order of the Civil Service Tribunal of 23 September 2010 — Bui Van v Commission
   (Case F-51/07 RENV) (1)

   ()
   2010/C 346/120
   Language of the case: French
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 170, 21.7.2007, p. 43.


title: Case C-142/99: Reference for a preliminary ruling by the Tribunal de Première Instance de Tournai by judgment of that court of 31 March 1999 in the case of Floridienne S.A. and Berginvest S.A. against the Belgian State

text:
C 204/26                EN                         Official Journal of the European Communities                                     17.7.1999
— The Portuguese legislation does not impose the obligation                   Reference for a preliminary ruling from the Pretura di
     to seek prior authorisation from the competent authorities               Treviso, Oderzo Division, by order of that court of 7
     for the operation of coal gasification and liquefaction                  April 1999, in the case of Giuseppe Busolin and Others
     plants, as provided for in Article 3(1) and point 1.3 of                 against Ispettorato Centrale Repressione Frodi — Ufficio
     Annex I to the directive. The fact that, possibly, there are             di Conegliano — Ministero delle Risorse Agricole, Ali-
     no coal gasification and liquefaction plants in Portugal at                                    mentari e Forestali
     the present time is irrelevant.
— The Portuguese legislation does not impose the obligation                                           (Case C-155/99)
     to seek prior authorisation from the competent authorities
     for the operation of plants for the manufacture of asbestos,
     as provided for in Article 3(1) and point 3.3 of Annex I to
     the directive.                                                                                (1999/C 204/48)
(1) OJ L 188 of 16 July 1984, p. 20.                                          Reference has been made to the Court of Justice of the
                                                                              European Communities, by order of the Pretura di Treviso,
                                                                              Oderzo Division, of 27 April 1999, for a preliminary ruling in
                                                                              the case of Giuseppe Busolin and Others against Ispettorato
                                                                              Centrale Repressione Frodi — Ufficio di Conegliano —
                                                                              Ministero delle Risorse Agricole, Alimentari e Forestali on the
                                                                              following questions:
                                                                              — whether the Commission’s decision to allocate the quantity
                                                                                for compulsory distillation between the various production
                                                                                regions for the wine year 1993/94 (as referred to in
Reference for a preliminary ruling by the Tribunal de                             Regulation (EC) No 343/94) (1) was invalid for infringe-
Première Instance de Tournai by judgment of that court                            ment of Article 39(11)(b) of Regulation (EEC)
of 31 March 1999 in the case of Floridienne S.A. and                              No 822/87(2) (as amended by Regulation (EEC)
           Berginvest S.A. against the Belgian State                              1972/87) (3) through failure to ascertain the existence of
                                                                                the statutory prerequisite under that same legislation,
                                                                                namely a significant difference between the quantities
                           (Case C-142/99)                                        available/normal consumption ratio for 1993/94 and the
                                                                                same ratio for the reference years 1981/82, 1982/83 and
                                                                                1983/84;
                           (1999/C 204/47)
Reference has been made to the Court of Justice of the                        — whether the Commission’s decision to allocate the quantity
European Communities by judgment of the Tribunal de                               for compulsory distillation between the various production
Première Instance, Tournai (Court of First Instance, Tournai)                     regions for the year 1993/94 (pursuant to Regulation (EC)
of 31 March 1999, received at the Court Registry on 21 April                      No 343/94) was valid, given that it appears to be defective
1999, for a preliminary ruling in the case of Floridienne S.A.                    for infringement of Article 190 (or for an ‘inadequate
and Berginvest S.A. v Belgian State on the following question:                    statement of reasons’) of the EC Treaty in that neither
                                                                                Regulation No 343/94 nor the measures and documents
                                                                                underlying refer to any assessment as to the existence of
                                                                                the statutory precondition that the ratio between quantities
‘Must share dividends and interest on loans always be excluded                    available and normal consumption for the year 1993/94
from the denominator of the fraction (1) used to calculate the                    should differ significantly from that for the reference years
deductible proportion, even where the company receiving such                      1981/82, 1982/83 and 1983/84;
dividends and interest has involved itself in the management of
the undertakings paying or allocating them, save in the exercise
of its rights as shareholder?’
                                                                              — whether Regulation (EC) No 343/94, requiring Italy to
                                                                                distil 12 150 000 hl, is invalid for infringement of the
                                                                                principle of reasonableness, manifest error and inconsist-
                                                                                ency in relation to the object pursued, in the light of the
(1) The fraction referred to in Article 19 of the Sixth Council Directive         system of calculation used by the Commission ... on
    77/388/EEC of 17 May 1977 on the harmonisation of the laws                    account of the unreasonableness and illogicality of the
    of the Member States relating to turnover taxes — Common
    system of value tax : uniform basis of assessment (OJ 1977 L 145,             updating of the percentage of 85 (4), comparing parameters
    p. 1).                                                                        that were entirely divorced from the reality of the wine
                                                                                market in 1993/94. Moreover, for the reasons and in the
                                                                                light of the calculations given above, the same rules also
                                                                                appear to be invalid as being discriminatory against Italy
                                                                                and thus in breach of the prohibition on discrimination in
                                                                                Article 40 of the EC Treaty;


title: Case T-40/02: Order of the Court of First Instance of 8 February 2007 — Capitalia, formerly Banca di Roma v Commission

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/53

         Order of the Court of First Instance of 8 February 2007 — Capitalia, formerly Banca di Roma v Commission
   (Case T-40/02) (1)

   (2007/C 82/111)

      Language of the case: Italian

   The President of the Fourth Chamber Extended Composition has ordered that the case be removed from the register.

      (1)  OJ C 109, 4.5.2002.


title: Case F-50/06: Action brought on  3 May 2006  — Lebedef-Caponi v Commission

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/27

         Action brought on 3 May 2006 — Lebedef-Caponi v Commission
   (Case F-50/06)
   (2006/C 154/62)
   Language of the case: French
   Parties

      Applicant: Maddalena Lebedef-Caponi (Senningerberg, Luxembourg) (represented by: G. Bounéou and F. Frabetti, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the applicant's career development report for the period 1.7.2001 to 31.12.2002;

               —

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

         Pleas in law and main arguments
   In support of her action, the applicant puts forward five pleas in law, alleging:

               —

               first, breach of Article 26 of the Staff Regulations;

               —

               second, breach of the general implementing provisions of Article 43 of the Staff Regulations;

               —

               third, breach of the principle of the prohibition of arbitrary process and of the principle of the prohibition of misuse of powers and breach of the obligation to state reasons;

               —

               fourth, breach of the principle of protection of legitimate expectations and of the rule patere legem quam ipse fecisti;

               —

               fifth, breach of the duty to have regard to the welfare of officials.


title: Case T-164/00: Action brought on 16 June 2000 by Carmelo Morello against the Commission of the European Communities

text:
C 247/34               EN                      Official Journal of the European Communities                                     26.8.2000
Pleas in law and main arguments                                           —     award the applicant the sum of 25 000 euros, or such
                                                                                greater or lesser sum as may be determined in the course
The applicant in the present case contests the decision of her                  of the proceedings, by way of compensation for his
immediate superior relieving her from the position of team                      having been rejected for that vacant post and, therefore,
leader in the Italian translation section.                                      the loss of a chance of promotion;
                                                                          —     order the Commission to pay all the costs.
In support of her claim, she puts forward the following pleas:
—     her immediate superior was not competent to adopt the               Pleas in law and main arguments
      contested measure, inasmuch as her appointment as team
      leader had been decided on by the Director of Translation
      himself;                                                            The applicant contests the rejection of his application for the
                                                                          post of Head of Unit, corresponding to Vacancy Notice
—     breach of essential procedural requirements, inasmuch as            COM/091/99 IV/E/2 ‘Basic industries’.
      the Staff Regulations Committee was not consulted;
                                                                          In support of his claim, the applicant pleads:
—     infringement of the rights of the defence, inasmuch as
      the applicant was not given an opportunity to express a             —     infringement of Article 25 of the Staff Regulations and of
      view before the contested measure was adopted;                            the obligation to state reasons;
—     breach of the obligation to state the reasons for measures.         —     infringement of Article 45 of the Staff Regulations, of the
                                                                                promotions procedure and of the principle of equal
                                                                                treatment;
                                                                          —     infringement of Article 7 of the Staff Regulations;
                                                                          —     the existence in the present case of a manifest error of
                                                                                assessment and misuse of powers.
Action brought on 16 June 2000 by Carmelo Morello
  against the Commission of the European Communities
                         (Case T-164/00)
                         (2000/C 247/60)
                                                                          Action brought on 19 June 2000 by Consorzio Industrie
                    (Language of the case: French)                        Fiammiferi (CIF) against the Commission of the European
                                                                                Communities
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 16 June                                     (Case T-165/00)
2000 by Carmelo Morello, residing in Brussels, represented by
Jacques Sambon and Pierre Paul van Gehuchten, of the Brussels                                      (2000/C 247/61)
Bar.
The applicant claims that the Court should:                                                  (Language of the case: Italian)
—     annul the Commission’s decision to appoint another
                                                                          An action against the Commission of the European Communi-
      official to post COM/091/99 IV/E/2 ‘Basic industries’,
                                                                          ties was brought before the Court of First Instance of the
      corresponding to an A5/A4 Head of Unit post;
                                                                          European Communities on 19 June 2000 by, Consorzio
                                                                          Industrie Fiammiferi (CIF), represented by Antonio Tizzano
—     annul the decision not to accept the applicant’s appli-             and Gian Michele Roberti, of the Naples Bar.
      cation for post COM/091/99 IV/E/2, being a Head of Unit
      post;
                                                                          The applicant claims that the Court should:
—     award the applicant the sum of 100 000 euros, or such
      greater or lesser sum as may be determined in the course            —     annul the decision of the European Commission con-
      of the proceedings, by way of compensation for the non-                   tained in the letter from the Secretariat General of 7 April
      material damage suffered by the applicant as a result of                  2000, refusing access to certain documents concerning
      the inappropriate or incomplete information compiled                      Commission proceedings in relation to the system of
      by the defendant in relation to the applicant’s individual                production and sale of matches in Italy;
      file, and the state of uncertainty and anxiety in which he
      has found himself regarding his professional future;                —     order the Commission to pay the costs.


title: Case T-528/13: Action brought on 30. September 2013 — Kenzo/OHIM — Tsujimoto (KENZO ESTATE)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/32

         Action brought on 30. September 2013 — Kenzo/OHIM — Tsujimoto (KENZO ESTATE)
   (Case T-528/13)
   2013/C 367/56
   Language in which the application was lodged: English

      Parties

      Applicant: Kenzo (Paris, France) (represented by: P. Roncaglia, G. Lazzeretti, F. Rossi and N. Parrotta, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Kenzo Tsujimoto (Osaka, Japan)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision in so far as it accepted International registration No. 1016724 designating the European Union for the mark ‘Kenzo Estate’ for: ‘Olive oil (for food); grape seed oil (for food); edible oils and fats; raisins; processed vegetables and fruits; frozen vegetables; frozen fruits; raw pulses; processed meat products; processed seafood’ in class 29; ‘Confectionery, bread and buns; wine vinegar; olive dressing; seasonings (other than spices); spices; sandwiches; pizzas; hot dogs (sandwiches); meat pies; ravioli’ in class 30; and ‘Grapes (fresh); olives (fresh); fruits (fresh); vegetables (fresh); seeds and bulbs’ in class 31;

               —

               order OHIM to pay the costs incurred by the applicant during these proceedings;

               —

               order Kenzo Tsujimoto to pay the costs incurred by the applicant in the proceedings.

      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 ‘KENZO ESTATE’ for goods and services in classes 29, 30, 31, 35, 41 and 43 — International Registration No W 1 016 724

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

      Mark or sign cited in opposition: Community trade mark ‘KENZO’ for goods in classes 3, 18 and 25

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal in part

      Pleas in law: Infringement of Article 8(5) of Council Regulation No 207/2009.


title: Case C-302/03: Action brought on 14 July 2003 by the Commission of the European Communities against the Italian Republic

text:
C 213/20               EN                     Official Journal of the European Union                                          6.9.2003
Pleas in law and main arguments                                       2003 by the Commission of the European Communities,
                                                                      represented by M. van Beek and G. Valero Jordana, acting as
The appellants plead that the Court erred in finding that the         Agents, with an address for service in Luxembourg.
damage which they alleged arose from the fact of not
managing to import ACP bananas. In truth, the appellants
were complaining that in 1999 and 2000 they had not                   The applicant claims that the Court should:
obtained certificates to import bananas from non-member
countries despite their right to do so under their reference          1.    declare that, by failing to bring into force the laws,
quantity based exclusively on imports of bananas from non-                  regulations and administrative provisions needed in order
member countries. The appellants submit that the Court failed               to comply with Council Directive 1999/22/EC (1) relating
to take account of their arguments in support of their                      to the keeping of wild animals in zoos or, in any event,
application for damages.                                                    by failing to have informed the Commission of any
                                                                            such laws, regulations or administrative provisions, the
                                                                            Kingdom of Spain has failed to fulfil its obligations under
                                                                            that Directive;
                                                                      2.    order the Kingdom of Spain to pay the costs.
Reference for a preliminary ruling by the Conseil d’État,
Section d’Administration by judgment of that Court of
27 June 2003 in the case of Société Anonyme Glaxo-
                SmithKline against Belgian State
                                                                      Pleas in law and main arguments
                         (Case C-296/03)
                                                                      The period within which the directive was to be incorporated
                         (2003/C 213/34)
                                                                      into national law expired on 9 April 2002.
Reference has been made to the Court of Justice of the                (1 ) OJ L 94 of 9.4.1999, p. 24.
European Communities by judgment of the Conseil d’État,
Section d’Administration (Council of State, Administrative
Section) of 27 June 2003, received at the Court Registry on
8 July 2003, for a preliminary ruling in the case of Société
Anonyme GlaxoSmithKline against Belgian State on the fol-
lowing question:
Must the time-limit of 90 days, which may be extended for a
further 90 days, referred to in the first subparagraph of             Action brought on 14 July 2003 by the Commission of
Article 6(1) of Council Directive 89/105/EEC of 21 December             the European Communities against the Italian Republic
1988 relating to the transparency of measures regulating the
prices of medicinal products for human use and their inclusion
in the scope of national health insurance systems (1) be                                        (Case C-302/03)
considered to be a strict time-limit precluding, upon expiry,
the adoption of any decision, even where an initial decision
                                                                                (2003/C 213/36)
adopted timeously has been annulled?
( 1) OJ L 40 of 11.02.1989, p. 8.
                                                                      An action against the Italian Republic was brought before the
                                                                      Court of Justice of the European Communities on 14 July
                                                                      2003 by the Commission of the European Communities,
                                                                      represented by M. Van Beek and R. Amorosi, acting as Agents.
Action brought on 10 July 2003 by the Commission of
the European Communities against the Kingdom of Spain                 The applicant claims that the Court should:
                         (Case C-298/03)
                                                                      —     find that, by failing to adopt the laws, regulations
                                                                            and administrative provisions necessary to comply with
                         (2003/C 213/35)                                    Council Directive 1999/22/EC (1) of 29 March 1999
                                                                            relating to the keeping of wild animals in zoos or, in any
                                                                            event, by failing to communicate the same to the
An action against the Kingdom of Spain was brought before                   Commission the Italian Republic has failed to fulfil its
the Court of Justice of the European Communities on 10 July                 obligations under Article 9 of that directive;
 ---pagebreak--- 6.9.2003                  EN                       Official Journal of the European Union                                          C 213/21
—      order the Italian Republic to pay the costs.                        Action brought on 14 July 2003 by Commission of the
                                                                           European Communities against PROSECOM — Protecção,
                                                                                Segurança e Comunicações, Lda
Pleas in law and main arguments
                                                                                (Case C-304/03)
The time-limit for implementing the directive expired on
9 April 2002.                                                                                (2003/C 213/38)
( 1) OJ L 94 of 9.4.1999, p. 24.
                                                                           An action against PROSECOM — Protecção, Segurança e
                                                                           Comunicações, Lda. was brought before the Court of Justice of
                                                                           the European Communities on 14 July 2003 by the Com-
                                                                           mission of the European Communities, represented by R. Lyal
                                                                           and G. Braga da Cruz, acting as Agents, with an address for
                                                                           service in Luxembourg.
Action brought on 14 July 2003 by the Commission of
   the European Communities against the Italian Republic
                                                                           The applicant claims that the Court should:
                            (Case C-303/03)
                                                                           —     order the defendant to pay to the applicant
                            (2003/C 213/37)                                      EUR 111 605,10 (one hundred and eleven thousand six
                                                                                hundred and five euros and ten cents), composed of
                                                                                EUR 88 276 by way of capital, and EUR 23 329,10 by
                                                                                way of interest accrued between 15 November 1998 until
An action against the Italian Republic was brought before the                    30 June 2003, inclusive, at the rate of 5,50 % (until
Court of Justice of the European Communities on 14 July                          31 December 2002) and 7,50 % (from 1 January 2003);
2003 by the Commission of the European Communities,
represented by M. Konstantinidis and R. Amorosi, acting as
Agents.                                                                    —     order the defendant to pay EUR 18,14 (eighteen euros
                                                                                and fourteen cents) per day as interest calculated at the
                                                                                same rate from 1 July 2003, until full payment;
The applicant claims that the Court should:
                                                                           —     order the defendant to pay the costs of proceedings.
—      find that, by failing to adopt the laws, regulations
       and administrative provisions necessary to comply with
       Directive 2000/53/EC ( 1) of the European Parliament and
       of the Council of 18 September 2000 on end-of- life
       vehicles or, in any event, by failing to communicate the
       same to the Commission, the Italian Republic has failed             Pleas in law and main arguments
       to fulfil its obligations under Article 10 of that directive;
—      order the Italian Republic to pay the costs.                        Under the general terms and conditions of the contract,
                                                                           the signatories agreed, in the event that the total financial
                                                                           contribution by the Commission should prove to be less than
                                                                           the payment actually made, to return the difference forthwith
Pleas in law and main arguments                                            to the Commission. By failing to return forthwith the above-
                                                                           mentioned amounts which were given to it by the Com-
                                                                           mission, the defendant failed to fulfil its obligations under the
The time-limit for implementing the directive expired on                   contract. The total amount of costs accepted by the defendant
21 April 2002.                                                             found by the Commission after an audit was PTE 26 270 857,
                                                                           so that the Commission’s contribution was fixed at
                                                                           PTE 13 135 428 (ECU 68 686). In view of the fact that the
( 1) OJ L 269 of 21.10.2000, p. 34.                                        total received by the defendant was ECU 156 962, the
                                                                           amount overpaid which must be returned by the defendant is
                                                                           ECU 88 276. No payment has been made to date, so that the
                                                                           defendant is still in debt for the full amount. In addition to the


title: Case T-569/11: Action brought on 4 November 2011 — Gitana v OHIM — Rosenruist (GITANA)

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/22

         Action brought on 4 November 2011 — Gitana v OHIM — Rosenruist (GITANA)
   (Case T-569/11)
   2012/C 6/41
   Language in which the application was lodged: English

      Parties

      Applicant: Gitana SA (Pregny-Chambésy, Switzerland) (represented by: F. Benech, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Rosenruist — Gestão e serviços, Lda (Funchal, Madeira)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 4 August 2011 in case R 1825/2007-1, and authorise the registration of the Community trade mark application ‘GITANA’ No 3063344 for all the goods in classes 18 and 25; 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: The figurative mark ‘GITANA’, for goods and services in classes 14, 16, 18, 21, 24, 25, 34 to 36 and 38 — Community trade mark application No 3063344

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Community trade mark registration No 1609312 of the figurative mark ‘KITANA’, for goods in class 25; International trade mark registration No W00555706 of the figurative mark ‘KITANA’, for goods in classes 18 and 25; Italian trade mark registration No 531768 of the figurative mark ‘KITANA’, for goods in classes 18 and 25

      Decision of the Opposition Division: Partially rejected the Community trade mark application

      Decision of the Board of Appeal: Partially annulled the decision of the Opposition Division and dismissed the appeal for the remaining

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the existence of likelihood of confusion between the opposing marks.


title: Judgment of the Court of 23 October 2003 in Case C-191/01 P: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v Wm. Wrigley Jr. Company (Appeal — Community trade mark — Regulation (EC) No 40/94 — Absolute ground for refusal to register — Distinctive character — Marks consisting exclusively of descriptive signs or indications — Doublemint)

text:
C 304/2                  EN                              Official Journal of the European Union                                        13.12.2003
Community, as amended and updated by Council Regulation                                           JUDGMENT OF THE COURT
(EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1),
and on the interpretation of Articles 49 EC and 50 EC, the
Court (Fifth Chamber), composed of: C.W.A. Timmermans,
President of the Fourth Chamber, acting for the President of                                            of 23 October 2003
the Fifth Chamber, A. La Pergola (Rapporteur), P. Jann, S. von
Bahr and A. Rosas, Judges; D. Ruiz-Jarabo Colomer, Advocate
General; M.-F. Contet, Principal Administrator, for the Regis-
trar, has given a judgment on 23 October 2003, in which it                       in Case C-191/01 P: Office for Harmonisation in the
has ruled:                                                                       Internal Market (Trade Marks and Designs) (OHIM) v
                                                                                Wm. Wrigley Jr. Company (1)
                                                                                (Appeal — Community trade mark — Regulation (EC)
1.    Consideration of the first part of the question has disclosed no           No 40/94 — Absolute ground for refusal to register —
      factor of such a kind as to affect the validity of Article 22(1)(c)(i)     Distinctive character — Marks consisting exclusively of
      of Regulation (EEC) No 1408/71 of the Council of 14 June                          descriptive signs or indications — Doublemint)
      1971 on the application of social security schemes to employed
      persons, to self-employed persons and to members of their
      families moving within the Community, as amended and
      updated by Council Regulation (EC) No 118/97 of 2 December                                          (2003/C 304/03)
      1996.
                                                                                (Language of the case: English)
2.    The second subparagraph of Article 22(2) of Regulation
      No 1408/71, as amended and updated by Regulation No 118/
      97, must be interpreted as meaning that the authorisation to
      which that provision refers may not be refused where it is
      apparent, first, that the treatment in question is among the
      benefits provided for by the legislation of the Member State on            In Case C-191/01 P, Office for Harmonisation in the Internal
      whose territory the person concerned resides and, secondly, that           Market (Trade Marks and Designs) (OHIM) (Agents: V. Melgar
      treatment which is the same or equally effective cannot be                 and S. Laitinen), with an address for service in Luxembourg,
      obtained without undue delay in that Member State.                         supported by Federal Republic of Germany (Agents: A. Dittrich
                                                                                and B. Muttelsee-Schön) with an address for service in
                                                                                Luxembourg, and by United Kingdom of Great Britain and
                                                                                Northern Ireland (Agent: J. E. Collins, assisted by D. Alexander)
3.    Articles 49 EC and 50 EC must be interpreted as not precluding             with an address for service in Luxembourg: Appeal against the
      legislation of a Member State, such as that at issue in the main           judgment of the Court of First Instance of the European
      proceedings, which, first, makes reimbursement of the cost of              Communities (Second Chamber) of 31 January 2001 in Case
      hospital care provided in a Member State other than that in                T-193/99 Wrigley v OHIM (DOUBLEMINT) [2001] ECR II-
      which the insured person’s sickness fund is established con-               417, seeking to have that judgment set aside, in which the
      ditional upon prior authorisation by that fund and, secondly,              Court of First Instance annulled the decision of the First Board
      makes the grant of that authorisation subject to the condition             of Appeal of the Office for Harmonisation in the Internal
      that it be established that the insured person could not receive           Market (Trade Marks and Designs) of 16 June 1999 (Case R
      within the territory of the Member State where the fund is                 216/1998-1) dismissing the appeal brought by Wm. Wrig-
      established the treatment appropriate to his condition. However,           ley Jr. Company against the refusal to register the word
      authorisation may be refused on that ground only if treatment              DOUBLEMINT as a Community trade mark, the other party to
      which is the same or equally effective for the patient can be              the proceedings being: Wm. Wrigley Jr. Company, established
      obtained without undue delay in the territory of the Member                in Chicago, Illinois (United States of America), represented by
      State in which he resides.                                                 M. Kinkeldey, Rechtsanwalt, with an address for service in
                                                                                Luxembourg, the Court, composed of: V. Skouris, President,
                                                                                P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodri-
                                                                                gues and A. Rosas (Presidents of Chambers), D.A.O. Edward,
                                                                                A. La Pergola, J.-P. Puissochet (Rapporteur), R. Schintgen,
                                                                                F. Macken, N. Colneric and S. von Bahr, Judges; F.G. Jacobs,
(1) OJ C 95 of 24.3.2001.                                                        Advocate General; H. von Holstein, Deputy Registrar, has
                                                                                given a judgment on 23 October 2003, in which it:
                                                                                1.    Sets aside the judgment of the Court of First Instance of the
                                                                                European Communities of 31 January 2001 in Case T-193/
                                                                                99 Wrigley v OHIM (DOUBLEMINT);
 ---pagebreak--- 13.12.2003               EN                           Official Journal of the European Union                                                C 304/3
2.    Refers the case back to the Court of First Instance;                    2.    The connections which must link films in order that they can
                                                                                come within the exception laid down for ‘series’ by Article 11(3)
3.    Reserves the costs.                                                           of Directive 89/552 must relate to the content of the films
                                                                                concerned, such as, for example, the development of the same
                                                                                story from one episode to another or the reappearance of one or
(1) OJ C 200 of 14.07.2001.
                                                                                more characters in different episodes.
                                                                              (1) OJ C 289 of 13.10.2001.
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)
                        of 23 October 2003
                                                                                JUDGMENT OF THE COURT
in Case C-245/01 (Reference for a preliminary ruling from
the Niedersächsisches Oberverwaltungsgericht): RTL
Television GmbH v Niedersächsische Landesmedienan-                                                   of 21 October 2003
                 stalt für privaten Rundfunk (1)
                                                                              In Joined Cases C-261/01 and C-262/01 (Reference for a
(Directive 89/552/EEC — Article 11(3) — Television broad-                     preliminary ruling from the Hof van Beroep te Antwer-
casting — Television advertising — Advertising breaks in                      pen): Belgische Staat v Eugene Van Calster, Felix Cleeren
          audiovisual works — Definition of ‘series’)                         (C-261/01) and between Belgische Staat and Openbaar
                                                                                Slachthuis NV (C-262/01) (1)
                           (2003/C 304/04)
                                                                              (Aid financed by parafiscal charges — Compulsory charges
                   (Language of the case: German)                             to finance a fund for animal health and livestock production
                                                                              — Retroactive effect of the charges — Validity of a
(Provisional translation; the definitive translation will be published        Commission decision concerning State aid — Powers of the
                    in the European Court Reports)                                                        Commission)
                                                                                (2003/C 304/05)
In Case C-245/01: Reference to the Court under Article 234
EC by the Niedersächsisches Oberverwaltungsgericht (Ger-
many) for a preliminary ruling in the proceedings pending                                         (Language of the case: Dutch)
before that court between RTL Television GmbH and Nieder-
sächsische Landesmedienanstalt für privaten Rundfunk, on the
interpretation of Article 11(3) of Council Directive 89/552/                  (Provisional translation; the definitive translation will be published
EEC of 3 October 1989 on the coordination of certain                                             in the European Court Reports)
provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of television
broadcasting activities (OJ 1989 L 298, p. 23), as amended by
Directive 97/36/EC of the European Parliament and of the                      In Joined Cases C-261/01 and C-262/01: Reference to the
Council of 30 June 1997 (OJ 1997 L 202, p. 60), the                           Court under Article 234 EC by the Hof van Beroep te
Court (Fifth Chamber), composed of: C.W.A. Timmermans                         Antwerpen (Belgium) for a preliminary ruling in the proceed-
(Rapporteur), President of the Fourth Chamber, acting for the                 ings pending before that court between Belgische Staat and
President of the Fifth Chamber, D.A.O. Edward and P. Jann,                    Eugene Van Calster, Felix Cleeren (C-261/01) and between
Judges; F.G. Jacobs, Advocate General; M.-F. Contet, Principal                Belgische Staat and Openbaar Slachthuis NV (C-262/01), on
Administrator, for the Registrar, has given a judgment on                     the interpretation of Community law, in particular of
23 October 2003, in which it has ruled:                                       Article 93 of the EC Treaty (now Article 88 EC) and Article 173
                                                                              of the EC Treaty (now, after amendment, Article 230 EC) and
1.    Films which have been made for television and which provide,            of the Commission Decision of 9 August 1996 relating to aid
      from their conception, for breaks for the insertion of advertising      measure No N 366/96, the Court, composed of: V. Skouris,
      are covered by the term ‘films made for television’ in                  President, P. Jann, C.W.A. Timmermans (Rapporteur), C. Gul-
      Article 11(3) of Council Directive 89/552/EEC of 3 October              mann, J.N. Cunha Rodrigues and A. Rosas (Presidents of
      1989 on the coordination of certain provisions laid down by             Chambers), D.A.O. Edward, A. La Pergola, J.-P. Puissochet,
      law, regulation or administrative action in Member States               R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges;
      concerning the pursuit of television broadcasting activities, as        F.G. Jacobs, Advocate General; H. von Holstein, Deputy
      amended by Directive 97/36/EC of the European Parliament                Registrar, has given a judgment on 21 October 2003, in which
      and of the Council of 30 June 1997.                                     it has ruled:


title: Case T-357/05: Order of the Court of First Instance of 5 July 2006 — Comunidad Autónoma de Valencia/Commission (Cohesion Fund — Representation by a lawyer — Manifest inadmissibility)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/45

         Order of the Court of First Instance of 5 July 2006 — Comunidad Autónoma de Valencia/Commission
   (Case T-357/05) (1)

   (Cohesion Fund - Representation by a lawyer - Manifest inadmissibility)
   (2006/C 224/97)
   Language of the case: Spanish
   Parties

      Applicant: Comunidad Autónoma de Valencia — Generalitat Valenciana (Spain) (represented by J.-V. Sánchez-Tarazaga Marcelino)

      Defendant: Commission of the European Communities (represented by: L. Escobar Guerrero and A. Weimar, Agents)
   Re:
   Annulment of Commission Decision C (2005) 1867 final of 27 June 2005, concerning the reduction of the assistance initially granted from the Cohesion Fund to Project Group No 97/11/61/028, concerning the collection and treatment of waste waters on the Mediterranean coast of the Comunidad Autónoma de Valencia (Spain).
   Operative part of the order

               (1)

               The action is dismissed as being manifestly inadmissible.

               (2)

               There is no need to adjudicate on the application to intervene.

               (3)

               The applicant shall bear its own costs, as well as those of the Commission, with the exception of the costs relating to the application to intervene.

               (4)

               The applicant, the Commission and the Comunidad autónoma de Andalucia — Junta de Andalucia shall bear their own costs relating to their respective applications to intervene.

      (1)  OJ C 281 of 12.11.2005.


title: Case: T-149/99: Action brought on 21 June 1999 by Mrs Helga Weber against the Commission of the European Communities

text:
28.8.1999               EN                     Official Journal of the European Communities                                      C 246/41
Pleas in law and main arguments                                           — annul the decision of the Commission of the European
                                                                              Communities of 26 March 1999 (Decision C(1999) 760
                                                                              final) by which it rejected the request made by the Kingdom
The applicant contests Commission Decision C (1999) 541 of                    of Belgium, for the benefit of Miller NV, seeking a waiver
4 March 1999, which reduces the contribution made to one                      of post-clearance recovery of import duties in respect of
of its subsidiaries by the Commission under Commission                        television sets imported from Turkey during the period
Decision C (93) 3401 of 26 November 1992 concerning grant                     from 5 June 1991 to 26 February 1992 or the remission
of the EAGGF, Guidance Section, contribution under Council                    of those duties;
Regulation (EEC) No 4256/88 (1), in connection with Project
No 92.IT.06.057 entitled ‘Action in the form of a pilot                   — order the Commission to pay the costs.
demonstrative project for the reduction of production costs
and fertiliser costs in sunflower cultivation’.
                                                                          Pleas in law and main arguments
The pleas in law and main arguments are the same as those in
                                                                          — Infringement of the rights of the defence:
Case T-141/99 Vela s.r.l. v Commission.
                                                                              By not allowing Miller NV to inspect the administrative
                                                                              file, the Commission infringed an essential procedural
( 1) Council Regulation (EEC) No 4256/88 of 19 December 1988
     laying down provisions for implementing Regulation (EEC) No              requirement and failed to respect Miller’s rights of defence.
     2052/88 as regards the EAGGF Guidance Section (OJ L 337 of
     24.12.1994, p. 11).                                                  — Infringement of Article 5(2) of Regulation No 1697/79:
                                                                              The Commission wrongly concluded in the contested
                                                                              decision (1) that there was no question in the present
                                                                              case of any error having been made by the competent
                                                                              authorities, and (2) that Miller NV had not acted in good
                                                                              faith, in accordance with Article 5(2) of Regulation No
                                                                              1697/79.
                                                                          — Infringement of the first paragraph of Article 13 of
Action brought on 18 June 1999 by Miller NV against the
          Commission of the European Communities                              Regulation No 1430/79:
                                                                              The Commission wrongly found in the contested decision
                           (Case T-147/99)                                    that the first of the conditions for the application of the
                                                                              first paragraph of Article 13 — namely, the existence of
                                                                              special circumstances — had not been met in the present
                          (1999/C 246/81)                                     case.
                                                                          — Failure to comply with the obligation to provide a
                     (Language of the Case: Dutch)                            statement of reasons (Article 253 EC).
                                                                          — In the alternative, breach of the principle of pro-
An action against the Commission of the European Communi-                     portionality:
ties was brought before the Court of First Instance of the
European Communities on 18 June 1999 by Miller NV,                            By requiring Miller NV to pay import duties in an amount
established at Willebroek (Belgium), represented by Y. Van                    greater than the countervailing charge, the Commission
Gerven and I. Bernaerts, of the Brussels Bar, with an address                 committed a breach of the principle of proportionality.
for service in Luxembourg at the Chambers of M. Loesch, 11
Rue Goethe.
The applicant claims that the Court should:
— order the Commission to produce all documents on which
                                                                          Action brought on 21 June 1999 by Mrs Helga Weber
      it based its contested decision, together with all documents
                                                                            against the Commission of the European Communities
      — including those of an administrative nature — relating
      to this matter, including, for example, those which
      prompted it to organise a mission to Turkey in 1993 for                                      (Case: T-149/99)
      the purposes of carrying out an investigation into the issue
      of ATR certificates for television sets, the results of that                                 (1999/C 246/82)
      mission and the reports drawn up in relation to it, any
      correspondence on that subject between the Commission
      and the Member States and between the Commission and                                  (Language of the case: German)
      the Turkish authorities, etc., in order that the same may be
      examined by the Court, and require those documents also             An action against the Commission of the European Communi-
      to be produced to Miller NV, in order to enable the latter          ties was brought before the Court of First Instance of the
      to examine whether it may use them by way of further                European Communities on 21 June 1999 by Mrs Helga Weber,
      support for its application in the present case and the pleas       Köln, represented by Anja Bornemann of Leinen & Derichs,
      advanced therein;                                                   Avenue d’Auderghem, Brussels.
 ---pagebreak--- C 246/42                EN                      Official Journal of the European Communities                                     28.8.1999
The applicant claims that the Court should:                                represented by Piero A. M. Ferrari, Aurelio Pappalardo and Pier
                                                                           Francesco Meneghini, of the Roma, Trapani and Milan Bars,
    declare that                                                           with an address for service in Luxembourg at the Chambers of
                                                                           Alain Lorang, 51 Rue Albert Premier.
    1. the applicant is entitled to a survivor’s pension based
          on 35 % of a Grade A 6/8 salary with annual adjust-
          ments,                                                           The applicant claims that the Court of First Instance should:
    2. the applicant is not bound to repay the amount of                   — annul Commission Decision C (1999) 532 of 4 March
          DM 40 518 .61 pursuant to the Commission’s decision                   1999 or, in the alternative, reduce the amount of the grant
          of 21 September 1998,                                                 to be repaid to the Commission to such extent as may be
                                                                                decided in the course of the proceedings;
    and order the applicant to pay the costs of the proceedings.
                                                                           — order the Commission to pay the costs.
Pleas in law and main arguments
                                                                           Pleas in law and main arguments
The applicant, who was divorced from her husband, a
Community official who died in 1973, and was entitled to be
maintained by him from that time, receives a widow’s                       The applicant contests Commission Decision C (1999) 532 of
pension from the Commission. The applicant claims that the                 4 March 1999, which reduces the contribution made to one
Commission has already committed numerous administrative                   of its subsidiaries by the Commission under Commission
errors in her case on previous occasions.                                  Decision C (93) 3395 of 26 November 1992 concerning grant
                                                                           of the EAGGF, Guidance Section, contribution under Council
                                                                           Regulation (EEC) No 4256/88 (1), in connection with Project
The Commission informed her by letter of 20 August 1998                    No 92.ES.06.031 entitled ‘Demonstrative project for the
that her monthly pension payment had been incorrect since                  multiple optimisation of Vetiver (Vetiveria Zizanioides) A in the
February 1994 and did not correspond to the decision in the                Mediterranean area’.
relevant amendment notice, pursuant to which she is entitled
to a survivor’s pension of 26.56498 %, not 35 %, of a Grade
A 6/8 salary. She was therefore informed that this oversight               The pleas in law and main arguments are the same as those in
would be corrected in the statement for September 1998 and                 Case T-141/99 Vela s.r.l. v Commission.
that the situation with regard to the overpaid sums would be
regularized.
                                                                           (1) Council Regulation (EEC) No 4256/88 of 19 December 1988
                                                                               laying down provisions for implementing Regulation (EEC) No
The applicant claims that the Commission misapplied the                        2052/88 as regards the EAGGF Guidance Section (OJ L 337 of
provisions cited by her of Article 41 of Annex VIII to the Staff               24.12.1994, p. 11).
Regulations and Article 85 of the Staff Regulations. As was
correctly pointed out in the notice of complaint, the amount
of a pension may be reassessed in the event of an error or
omission in the calculation thereof. In exercising that discre-
tion, it is imperative that the Commission weigh up its interests
against those of the person concerned, which it did not do.
Furthermore, a lawful administrative act conferring a benefit
may not be annulled and even an unlawful administrative act
may only be annulled within a reasonable time.
                                                                           Action brought on 21 June 1999 by Tecnagrind s.l. —
                                                                           Tecnologias Agrarias e Industriales — against Commission
                                                                                of the European Communities
                                                                                (Case T-151/99)
Action brought on 21 June 1999 by Tecnagrind s.l. against                                          (1999/C 246/84)
          Commission of the European Communities
                         (Case T-150/99)                                                      (Language of the case: Italian)
                         (1999/C 246/83)                                   An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 21 June 1999 by Tecnagrind s.l.
                    (Language of the case: Italian)                        — Tecnologias agrarias e industralIes — represented by
                                                                           Piero A. M. Ferrari, Aurelio Pappalardo and Pier Francesco
An action against the Commission of the European Communi-                  Meneghini, of the Roma, Trapani and Milan Bars, with an
ties was brought before the Court of First Instance of the                 address for service in Luxembourg at the Chambers of Alain
European Communities on 21 June l 999 by Tecnagrind s.l.,                  Lorang, 51 Rue Albert Premier.