title: Action brought on 22 September 1997 by Società Eridania SpA and Others against the Council of the European Union (Case T-258/97)

text:
22 . 11 . 97          EN                  Official Journal of the European Communities                                    C 357/33
     'Administrative information' of 7 April 1986 (No 498 ),         Pleas in law and main arguments adduced in support:
     in so far as the contested decision was signed by a
     head of division posted in Luxembourg and not by the
     Director General for Personnel and Administration,
                                                                     The applicant was employed as a member of the
                                                                     defendant's staff at Ispra . After suffering a skiing accident
                                                                     in March 1982, he took early retirement on 1 March
— infringement of Article 25 ( 2 ) of the Staff Regulations          1986 on account of partial permanent invalidity. In May
     and of the principle 'non bis in idem', which is                1986 he applied for an increase in the percentage of his
     contained, in particular, in Article 86 ( 3 ) of the Staff      partial invalidity from 28% to 50/55% . After 10 years, in
     Regulations, and a manifest error of assessment, in so          April 1996, the applicant received, as a result, a 14%
     far as the defendant based its refusal to terminate the         increase in the degree of his partial invalidity which
     applicant's temporary secondment to the Publications            brought it up to a total of 42% , a compensation payment
     Office and to reinstate him in his usual duties in the          which was credited to his account on 25 April 1996 .
     Security Office on reasoning relating exclusively to the
     reprimand he received.                                          By his action, the applicant seeks compensation for the
                                                                     damage .suffered by him by reason of the length of time
The applicant claims, in that respect, that the effect of            which it took to process his claim, the period in question
refusing his request on those grounds was to impose a                having lasted from 14 May 1986 until 25 April 1996 , on
second penalty on him for conduct in respect of which                which latter date the payment was made to him.
a definitive disciplinary decision had been taken .
Furthermore, the contested decision implies that the                 The applicant claims compensation for the damage
responsibilities of an official within the Security Office are       suffered as a result of the delay, for the loss culpably
so sensitive that they require a higher level of morality            inflicted on him and for the damage caused by default.
than other departments of the Commission. According to
the applicant, that approach constitutes a manifest error
of assessment. In that respect, he points out that another           According to the applicant, an official who does not
official who was involved in the same disciplinary                   receive a compensation payment until many years after his
proceedings was able to remain in his post, despite the              accident is placed in a considerably worse position than
fact that he carried out very sensitive duties within the            an official in comparable circumstances who receives
'Euratom Security Control' Directorate and received the              payment of the compensation only a short time after the
same reprimand.                                                      accident. Such unequal treatment is in breach of the legal
                                                                     principle prohibiting discrimination. That principle, the
                                                                     counterpart formulation of which is the requirement of
                                                                     equal treatment, prevails over the Staff Regulations of
                                                                     officials of the European Communities, and in this
                                                                     particular case over Article 73 ( 2 ) thereof.
Action brought on 19 September 1997 by Hans C. Herold
   against the Commission of the European Communities                In so far as the defendant seeks to rely on that provision
                                                                     in opposition to the applicant's claim, the applicant will
                        ( Case T-257/97)                             plead that the defendant's obligations even extended to
                          ( 97/C 357/62 )                            securing an amendment to, or supplementation of, the
                                                                     Staff Regulations. Hitherto, however, it has not in fact
                                                                     made any attempt to do so .
               (Language of the case: German)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 19 September
1997 by Hans C. Herold, residing at Levanto (Italy ),                Action brought on 22 September 1997 by Societa Eridania
represented by Bernd Potthast, Hans-Josef Ruber and                  SpA and Others against the Council of the European
Albert Potthast, Rechtsanwalte, Cologne, with an address                                           Union
for service in Luxembourg at the Chambers of Ernest
Arendt, 8—10 Rue Mathias Hardt.                                                             ( Case T-258/97)
                                                                                ( 97/C 357/63 )
The applicant claims that the Court should:
                                                                                (Language of the case: Italian)
— annul the defendant's decision of 20 November 1996 ,
                                                                     An action against the Council of the European Union was
— order the defendant to pay to the applicant                         brought before the Court of First Instance of the European
     compensation in the sum of BF 1 057 567 together                 Communities on 22 September 1997 by Societa Eridania
      with 5 % interest from 26 October 1984,                         SpA whose registered office is at Genoa, and Industria
                                                                      Saccarifera Italiana Agroindustriale SpA, whose registered
                                                                      office is at Padua, of the Eridania Group, Societa Sadam
— order the defendant to pay the costs.                               Zuccherifici, a division of S.E.C.I. ( Societa Esercizi
 ---pagebreak--- C 357/34                 EN                   Official Journal of the European Communities                                   22 . 11 . 97
Commerciali Industrial^, whose registered office is at                   Instance of the European Communities on 23 September
Bologna, Societa Sadam Castiglionese SpA, whose                          1997 by Rui Teixeira Neves, represented by Adriano
registered office is at Bologna, of the Sadam Zuccherifici               Encarna^ao, of the Oporto Bar, with an address for
Group and Societa Zuccherificio del Molise SpA, whose                    service in Luxembourg at the applicant's address, 100 Rue
registered office is in Termoli, and Societa S.F.I. R. ( Societa         de Steinsel, L-7254 Bereldange.
Fondiaria Industriale Romagnola SpA), whose registered
office is at Cesena, represented by Bernard O'Connor,                    The applicant claims that the Court should:
Solicitor of the High Court of Ireland, Ivano Vigliotti and
Paolo Crocetta, of the Genoa Bar, with an address for
                                                                         — annul the decision of the appointing authority of
service in Luxembourg at the Chambers of Arsene                               20 January 1997 which imposed on the applicant the
Kronshagen, 12 Boulevard de la Foire.                                         disciplinary measure of relegation in step and
                                                                              accordingly order backdated payment of that part of
The applicants claim that the Court should:                                   the remuneration which he did not receive as a result
                                                                              of that decision together with default interest at 8% ,
— declare void or annul, pursuant to Articles 173 and
       174 of the EC Treaty, Regulation ( EC) No 1188/97 of              — order the defendant to pay to the applicant BF two
      25 June 1997, in so far as it concerns the applicants                   million by way of compensation for the non-material
      or, in the alternative, declare void or annul that                      damage caused by the contested decision,
      regulation erga omnes, in particular as regards
      Article 1 ( f),
                                                                         — order the defendant to pay all the costs, including
                                                                              those incurred by the applicant.
— declare inapplicable, pursuant to Article 184 of the EC
      Treaty, Regulation ( EEC ) No 1785/81 of 30 June
       1981 and subsequent amendments thereto, in so far as              Pleas in law and main arguments adduced in support:
       it concerns the applicants, in particular as regards
      Articles 3 ( 1 ), 5 ( 3 ) and 6 (2 ),                              The applicant objects to the way in which the appointing
                                                                         authority conducted the disciplinary proceedings which
— order the Council, pursuant to Article 178 and the                     resulted in the disciplinary measure challenged in the
       second paragraph of Article 215 of the EC Treaty, to              present case .
      make good all the damage caused to the applicants,
       taking into account accrued interest and currency                 In support of his application the applicant relies on the
       fluctuations,                                                     following:
— order the Council to pay the costs of the proceedings.                   1 . Gross and total breach of the principle of the division
                                                                               of powers .
Pleas in law and main arguments adduced in support:
                                                                          2 . Alteration and blatant manipulation of the content of
The pleas and main arguments are those relied on in Case                       the motion objected to, put forward in the Staff
T-l 68/95 Eridania and Others ('). More particularly, the                      General Assembly of 2 September 1995 .
applicants consider that the contested regulation is
unlawful on the grounds of belated adoption, inadequate                    3 . Error in law inasmuch as the applicant did not
statement of reasons, arbitrary classification of Italy as a                   conduct himself in a manner contrary to paragraph 1
deficit area and discrimination against the Italian sugar                      of Article 11 , paragraph 1 of Article 12 and Article 21
industry. They also claim that Regulation ( EEC ) No 1785/                     of the Staff Regulations but merely sought
81 of 30 June 1981 on the common organization of the                           scrupulously to comply with those provisions.
markets in the sugar sector ( 2 ) is in part inapplicable .
                                                                           4. The allegations against him are unlawful in that the
H OJ C 229 , 11 . 11 . 1995 , p. 6 .
( 2 ) OJ L 177, 1 . 7. 1981 , p . 4 .
                                                                                Court of First Instance did not complain that it had
                                                                                been offended.
                                                                           5 . Breach of the rights of the defence, of the principle
                                                                               audi alteram partem and of the principle of equality
                                                                               of arms, inasmuch as, first, the allegation was not
Action brought on 23 September 1997 by Rui Teixeira                            communicated to the applicant before the hearing of
          Neves against the Court of Justice of European                        3 October 1995 and, secondly, the party levelling the
                               Communities                                      accusation participated in the administrative
                                                                               committee's deliberations on the disciplinary
                            ( Case T-259/97 )                                  proceedings .
                              ( 97/C 357/64 )
                                                                           6 . Breach of the presumption of innocence, since guilt
                (Language of the case: Portuguese)                             was considered an irrebutable presumption and its
                                                                                mere challenge taken as an aggravating factor. In this
An action against the Court of Justice of the European                          regard the intention was to interfere with the
Communities was brought before the Court of First                               proceedings.


title: Case C-139/15 P: Appeal brought on 24 March 2015 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 20 January 2015 in Case T-109/12 Kingdom of Spain v Commission

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/18

         Appeal brought on 24 March 2015 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 20 January 2015 in Case T-109/12 Kingdom of Spain v Commission
   (Case C-139/15 P)
   (2015/C 155/20)
   Language of the case: Spanish

      Parties

      Appellant: European Commission (represented by: D. Recchia and S. Pardo Quintillán, acting as Agents)

      Other party to the proceedings: Kingdom of Spain

      Form of order sought

   The Commission claims that the Court should:

               —

               set aside the judgment of the General Court of 20 January 2015 in Case T-109/12 Spain v Commission;

               —

               refer the case back to the General Court for determination, and

               —

               order the Kingdom of Spain to pay the costs.

      Grounds of appeal and main arguments

   The appeal brought by the Commission concerns the judgment of the General Court of 20 January 2015 in Case T-109/12. By its judgment, the General Court annulled Commission Decision C(2011) 9992 of 22 December 2011 reducing the assistance from the Cohesion Fund granted to certain projects.
   The Commission relies on two grounds of appeal. Primarily, the Commission submits that the General Court committed an error of law in holding that the Commission had to adopt the decision on financial corrections within a period determined on the basis of the basic legislative act in force at the date of the hearing between the Commission and the Member State. In the alternative, the Commission submits that the General Court committed an error of law in holding that that the period imposed on the Commission for the adoption of the decision on financial corrections is a mandatory period, disregard for which constitutes infringement of an essential procedural requirement which invalidates a decision adopted outside that period.


title: Action brought on 3 July 1995 by Friedrich Engelking against the Council of the European Union and the Commission of the European Communities (Case T-138/95)

text:
No C 208/36           EN                   Official Journal of the European Communities                                   12 . 8 . 95
Lars Bo Rasmussen, residing at Dalheim ( Luxembourg ),                Jean-Noel Louis, Thierry Demaseure and Ariane Tornel, of
represented by Carlo Revoldini , of the Luxembourg Bar,               the Brussels Bar, with an address for service in Luxembourg
with an address for service at the latter 's Chambers, 180            at the offices of Fiduciaire Myson Sari, 1 Rue Glesener.
Route de Longwy.
                                                                      The applicant claims that the Court should :
The applicant claims that the Court should :
                                                                      — annul the decision of the Commission fixing Brussels as
— annul the Commission's decision not to promote him to                    the applicant's place of recruitment, together with all
    grade A 4 in the 1992 promotions exercise and, in so far               subsequent decisions,
    as is necessary, the Commission's rejection, dated
    3 March 1995 , of his complaint and its decision to               — order the defendant to pay the costs.
    promote to grade A 4 the officials on the list published in
    Administrative     Information      Bulletin   No   859   of
                                                                      Pleas in law and main arguments adduced in support:
    8 September 1994 ,
                                                                      The pleas in law and main arguments are the same as those
— order the Commission to pay damages by way of                       in Case T-33/95 (').
    compensation for the material and non-material damage
    suffered by the applicant, further and better particulars
    of which he reserves the right to provide during the              (M OJ No C 101 , 22 . 4 . 1995 .
    proceedings,
— order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:
                                                                      Action brought on 3 July 1995 by Friedrich Engelking
In support of his application, the applicant pleads                   against the Council of the European Union and the
infringement of Article 45 ( 1 ) of the Staff Regulations .                     Commission of the European Communities
                                                                                ( Case T-138/95 )
In that connection he submits that the Commission was                                           ( 95/C 208/76 )
unable to take his merits as an official in grade A 5 into
consideration, since there was no staff report on him for the
                                                                                (Language of the case: German)
period 1991 to 1993 .
Secondly, the applicant points out that the Commission                An action against the Council of the European Union and
compared his merits only with those of officials in                   the Commission of the European Communities was brought
Directorate-General       V     and  not  with    those  of  all      before the Court of First Instance of the European
Commission officials in grade A 5 who were eligible for               Communities on 3 July 1995 by Friedrich Engelking, of
promotion .                                                           Raddestorf, Federal Republic of Germany, represented by
                                                                      Bernd Meisterernst, Mechtild Düsing, Dietrich Manstetten,
Lastly, the applicant claims that promotions to grade A 4 are         Frank Schulze and Winfried Haneklaus , Rechtsanwälte,
not made on the basis of consideration of the comparative             Münster, with an address for service in Luxembourg at the
merits of the officials eligible for promotion but on the basis       Chambers of Dupong & Associés, 14a Rue des Bains .
of priority points which each Directorate-General has at its
disposal according to the number of officials eligible for            The applicant claims that the Court should :
promotion and which it may allocate as it wishes .
                                                                       1 . order the defendants to pay the applicant SLOM-II
                                                                            compensation for the period from 2 April 1984 to
                                                                            13 June 1991 in the amount of DM 110 021,93 together
                                                                            with interest at 8 % for the period from 19 May 1992,
                                                                            and order the defendants to pay the costs of the
                                                                            proceedings;
Action brought on 19 June 1995 by Peter Gammeltoft
  against the Commission of the European Communities
                                                                      2 . join the present application with the pending Case
                        ( Case T-132/95 )                                   T-77/93 Hülseberg and Others v. Council and
                          ( 95 /C 208/75                                    Commission and likewise stay the proceedings .
               (Language of the case: French)                         Pleas in law and main arguments adduced in support:
                                                                      The pleas in law and main arguments are similar to those in
An action against the Commission of the European                       Case T-20/94 .
Communities was brought before the Court of First
Instance of the European Communities on 19 June 1995 by
 Peter Gammeltoft, residing in Brussels, represented by


title: Case T-26/17: Action brought on 18 January 2017 — Jalkh v Parliament

text:
               6.3.2017

               EN

               Official Journal of the European Union

               C 70/28

         Action brought on 18 January 2017 — Jalkh v Parliament
   (Case T-26/17)
   (2017/C 070/37)
   Language of the case: French

      Parties

      Applicant: Jean-François Jalkh (Gretz-Armainvillers, France) (represented by: J.-P. Le Moigne, lawyer)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of 22 November 2016 taken by the European Parliament to waive the applicant’s parliamentary immunity and to adopt report No A8-3019/2016 of Mr [X];

               —

               order the European Parliament to pay to Mr Jalkh the sum of EUR 8 000 by way of compensation for the non-material damage suffered;

               —

               order the European Parliament to pay all the costs of the proceedings;

               —

               order the European Parliament to pay to Mr Jalkh, by way of reimbursement of recoverable costs, the sum of EUR 5 000.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of Article 9 of the Protocol on the privileges and immunities of the European Communities. The applicant is of the view that the Parliament misapplied the rules on immunity of Members of the French Parliament, and that it intentionally confuses Articles 8 and 9 of Protocol No 7 on the privileges and immunities of the European Union.

               2.

               Second plea in law, based on the necessary application of Article 9 of the Protocol on the privileges and immunities of the European Communities. According to the applicant, the statements and opinions expressed in Mr Le Pen’s speech on the Front National website came within the scope of the political activities of Mr Le Pen and the applicant.

               3.

               Third plea in law, alleging breach of the very concept of parliamentary immunity. The applicant takes the view that the European Parliament feigns ignorance of the fact that, in a democracy, parliamentary immunity offers a twofold immunity from legal proceedings: non-liability and freedom from criminal prosecution.

               4.

               Fourth plea in law, alleging failure to adhere to the consistent decision-making practice of the Committee on Legal Affairs of the European Parliament on:

                           —

                           freedom of expression

                           —

                              fumus persecutionis

               5.

               Fifth plea in law, alleging failure to respect Community legal certainty and frustration of legitimate expectations.

               6.

               Sixth plea in law, alleging breach of the independence of a Member of Parliament.

               7.

               Seventh plea in law, alleging breach of the provisions of the Rules of Procedure of the European Parliament on the procedure capable of leading to the disqualification of a Member of Parliament from holding office (second subparagraph of Rule 3(4) (new) of those Rules). In the applicant’s view, even though an additional penalty of ineligibility is provided for under French law for the offence with which he is charged, the French Government sent no opinion to the President of the Parliament regarding that offence, as the procedure requires, and no competent body of the Parliament (the President, the Legal Committee, the Assembly) has asked the French Government to provide an explanation in that regard. The failure to comply with that essential procedural requirement is sufficient to vitiate the report and the contested decision.

               8.

               Eighth plea in law, alleging breach of the applicant’s rights of defence. He states that he was not invited when the vote was being taken in the Parliament’s plenary session on the request to waive his immunity. He thus had only ten minutes to present his defence, in regard to two cases concerning him, before the Committee on Legal Affairs, after the close of its business, at approximately 18:00.

               9.

               Ninth plea in law, based on the absence of any basis for the charges or for the request for waiver of immunity. There is, he submits, no basis for the initial complaint and the charges pursued by the French prosecuting authorities against him. In that regard, he argues, the report adopted by the Parliament is doubly mendacious. The act of bringing judicial proceedings against the applicant, even though he has himself brought an end to the alleged offence, which he did not commit, and the decision to waive his parliamentary immunity have manifestly nothing to do with justice but are designed to denigrate, harm and persecute him and his movement.


title: Case T-178/14 R: Order of the President of the General Court of 10 June 2014 — Friedrich Wilhelms-Hütte Eisenguss v Commission (Interim measures — State aid — National promotion of electricity production from a renewable source — Commission decision to open formal investigation procedure into State aid — Application for suspension of operation of a measure — Urgency — Fumus boni juris)

text:
               22.9.2014

               EN

               Official Journal of the European Union

               C 329/16

         Order of the President of the General Court of 10 June 2014 — Friedrich Wilhelms-Hütte Eisenguss v Commission
   (Case T-178/14 R)
   ((Interim measures - State aid - National promotion of electricity production from a renewable source - Commission decision to open formal investigation procedure into State aid - Application for suspension of operation of a measure - Urgency - Fumus boni juris))
   2014/C 329/21
   Language of the case: German

      Parties

      Applicant: Friedrich Wilhelms-Hütte Eisenguss GmbH (Mullheim an der Ruhr, Germany) (represented by: H. Hofler, C. Kahle and V. Winkler, lawyers)

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

      Re:

   Application for suspension of the legal effects of the decision by which the Commission opened a formal investigation procedure in respect of State aid concerning the German law on renewable energy.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The judgment in Case T-178/14 R Friedrich Wilhelms-Hütte Eisenguss v Commission is set aside.

               3.

               Costs are reserved.


title: Case T-441/14: Action brought on 16 June 2014  — Brugg Kabel and Kabelwerke Brugg v Commission

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/36

         Action brought on 16 June 2014 — Brugg Kabel and Kabelwerke Brugg v Commission
   (Case T-441/14)
   2014/C 303/45
   Language of the case: German

      Parties

      Applicants: Brugg Kabel AG (Brugg, Switzerland), Kabelwerke Brugg AG Holding (Brugg) (represented by: A. Rinne, A. Boos and M. Lichtenegger, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul, pursuant to Article 264(1) TFEU, Article 1(2), Article 2(b) and, in so far as it concerns the applicants, Article 3 of the defendant’s decision of 2 April 2014 in Case AT.39610 — Power Cables;

               —

               In the alternative, reduce, in the discretion of the Court, pursuant to Article 261 TFEU and Article 31 of Regulation No 1/2003, the amount of the fine imposed on the applicants in Article 2(b) of the defendant’s decision of 2 April 2014 in Case AT.39610 — Power Cables;

               —

               In any event, order the defendant, pursuant to Article 87(2) of the Rules of Procedure of the Court, to pay the applicants’ costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the rights of the defence and the right to a fair hearing in that access to documents was refused and the requests for information and the statement of objections were written in English

                           —

                           The applicants submit in this respect, inter alia, that, as regards access to documents, the defendant ought to have treated the opinions of the other addressees regarding the notification of the statement of objections in the same way as other potentially exculpatory documents.

                           —

                           Further, in cases of single and repeated or single and continuous infringement, access to documents as regards the opinions of other participants on the notification of the statement of objections is the procedural counterpart to the allegation of infringements against other participants.

                           —

                           Furthermore, the applicants, as undertakings with their head offices in the German-speaking canton of Aargau (Switzerland), are entitled to conduct their correspondence with the defendant in German, since that is one of the defendant’s official languages and even one of its working languages.

               2.

               Second plea in law, alleging the defendant’s lack of competence as regards third country breaches which do not affect the EEA

                           —

                           It is claimed here that the merely arbitrary allegation of a single and repeated or single and continuous infringement is not sufficient to found the defendant’s competence as regards third country breaches. Rather, in such a case, the defendant ought also to have examined projects or conduct outside the EEA in detail as regards their direct, actual and foreseeable effects in the EEA.

               3.

               Third plea in law, alleging breach of the presumption of innocence by shifting and extending the standard of proof in the context of a single and repeated or single and continuous infringement

                           —

                           The infringements are not uniform, in particular in so far as land and sea cables are concerned. There is in fact no identity of goods and provision of services or of the working methods and only partial identity of the participating undertakings and natural persons. Furthermore, there is no complementarity of the infringements.

                           —

                           In respect of the start of the participation, but also in respect of its unbroken duration, the defendant ought to have provided individual, meaningful and consistent proof to each undertaking.

                           —

                           In the case of a merely partial and indirect participation in a single and repeated or single and continuous infringement, the defendant must prove in concrete terms that the undertaking concerned intended to participate in the achievement of each common goal and knew of all the otherwise unlawful conduct of the other participants in the context of the common plan or was able reasonably to foresee it. Since the defendant failed entirely or in part to show such proof, the applicants ought not, in that regard, to have been held liable for all the unlawful conduct.

               4.

               Fourth plea in law, alleging breach of the duty to investigate and the duty to state reasons by wrongfully establishing facts and falsifying evidence

                           —

                           In the applicants’ view, the decision rests on a series of factual assumptions, in respect of which the defendant has provided no meaningful and consistent proof. In particular, with regard to the supposed start of the applicants’ participation, the defendant has falsified evidence, drawn speculative conclusions and failed to consider alternative, equally plausible, explanations.

                           —

                           Further, the decision is contradictory, since it alleges a single and continuous infringement in the operative part but states grounds for a single and repeated infringement.

               5.

               Fifth plea in law, alleging infringement of the material rights by wrongful application of Article 101 TFEU and Article 53 of the EEA Agreement
               The defendant infringes Article 101 TFEU and Article 53 of the EEA Agreement in that it includes the applicants in agreements between other participating undertakings as regards the concept of the single and repeated or single and continuous infringement, in which, objectively, the applicants were not in a position to participate.

               6.

               Sixth plea in law, alleging a manifest error of assessment by incorrect calculation of the fine

                           —

                           The departure from the basic rule in paragraph 13 of the guidelines on the method of setting fines as regards the establishment of the reference year is arbitrary, since it is not sufficiently substantiated.

                           —

                           Further, it is contradictory and infringes the prohibition of ne bis in idem, in the assessment of the seriousness of the infringement in the context of the calculation of the basic amount to address a single and repeated or single and continuous infringement, the seriousness of which is assessed in a uniform manner at 15 %, and at the same time to establish a further penalty of 2 % in respect of the participation in certain aspects of this global cartel. The defendant ought to have had regard to the fact that the applicants were not responsible for the entire cartel when calculating the basic amount.

                           —

                           In designating the applicants as ancillary or accessory participants, the defendant should have based its claim on the actual role of the applicants in the global cartel, and not, however, on a random and meaningless amount of evidence.

                           —

                           The reduction in the fine of 5 % is too small and does not properly reflect the different impact of the cartel organisers and main participants and the only very minor participation of the applicants.


title: Case T-469/13: Action brought on 30 August 2013 — Generics (UK) v Commission

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/45

         Action brought on 30 August 2013 — Generics (UK) v Commission
   (Case T-469/13)
   2013/C 325/73
   Language of the case: English

      Parties

      Applicant: Generics (UK) Ltd (Potters Bar, United Kingdom) (represented by: I. Vandenborre and T. Goetz, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul in whole or in part the Commission’s Decision C(2013) 3803 final of 19 June 2013, in case COMP/39.226, finding that the applicant committed a single and continuous infringement of Article 101 TFEU from 24 January 2002 to 1 November 2003 by entering into two patent settlement agreements;

               —

               Alternatively, annul or reduce substantially the level of the fine imposed; and

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission errs in its assessment of the content, the purpose and the context of the Settlement Agreements:

                           —

                           The Decision’s findings are based on a wrong and speculative interpretation of the Settlement Agreements and on highly selective excerpting of the contemporaneous records. The Decision disregards or misconstrues evidence that clearly demonstrates that the Settlement Agreements remained within the scope of Lundbeck’s validly issued patents, and were concluded against the background of a genuine patent dispute.

               2.

               Second plea in law, alleging that the Commission errs in law in ignoring the existence of validly issued patents and equating the Settlement Agreements to market sharing agreements:

                           —

                           The Decision’s finding that the Settlement Agreements constitute a restriction of competition by object ignores the existence of validly issued patents which the applicant had to take into account. The Decision errs in finding that patents have exclusionary powers only once they have been confirmed in litigation, that patent litigation is essential to the competitive process and that a duty existed for the applicant to litigate or exhaust all other options before concluding the Settlement Agreements.

               3.

               Third plea in law, alleging that the Commission errs both in law and in its assessment of the facts in concluding that the payments provided for under the Settlement Agreements were ‘decisive’ for the finding of a by object infringement:

                           —

                           There is no legal or factual basis for the Commission’s finding that the mere inclusion in the Settlement Agreements of a payment to the applicant was sufficient to establish the existence of a by object infringement. The Commission has failed to meet its burden of proof.

               4.

               Fourth plea in law, alleging that the Commission commits an error in law and in its assessment of the facts in ignoring the relevant factual and legal context in which the Settlement Agreements were concluded:

                           —

                           The Commission has ignored factors critical to the assessment of the Settlement Agreements including relevant law on patent litigation, contemporaneous records discussing the patent litigation and damages risk for the applicant, and the Commission’s own findings in relation to the average duration of patent litigation. The Commission has failed to meet its burden of proof.

               5.

               Fifth plea in law, alleging that the Commission errs in finding that the Settlement Agreements do not qualify for an exemption under Article 101(3) TFEU:

                           —

                           The Commission fails to undertake an analysis of the relevant, reliable and credible arguments and evidence submitted by the applicant which demonstrate that the Settlement Agreements permitted the applicant to launch almost 18 years prior to the expiry of Lundbeck’s key patent.

               6.

               Sixth plea in law, alleging that the Decision violates the principle of proportionality:

                           —

                           The Decision violates the principle of proportionality by condemning the Settlement Agreements which constituted the least burdensome means of pursuing legitimate goals.

               7.

               Seventh plea in law, alleging that the Decision is inadequately reasoned contrary to Article 296 TFEU:

                           —

                           The Decision is inadequately reasoned contrary to Article 296 TFEU in that it assumes the existence of that which was incumbent upon the Commission to prove.

               8.

               Eighth plea in law, alleging that the Decision infringes an essential procedural requirement:

                           —

                           The Decision infringes the applicant’s right of defence by introducing new allegations and evidence without providing the applicant with an opportunity to be heard.

               9.

               Ninth plea in law, alleging that the Commission has failed to demonstrate that the applicant committed the alleged infringement intentionally or negligently:

                           —

                           The facts at issue raise novel and complex issues for which there was no precedent at the time when the Settlement Agreements were concluded. There is no basis for a finding that what the Commission alleges is an infringement, was committed in negligent or intentional violation of the law.


title: Judgment of the Court (Fourth Chamber) of 1 July 2004 in Case C-331/03: Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Directive 2000/53/EC — Failure to transpose within the period prescribed)

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/9

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 1 July 2004
   in Case C-331/03: Commission of the European Communities v French Republic (1)

   (Failure of a Member State to fulfil its obligations - Directive 2000/53/EC - Failure to transpose within the period prescribed)
   (2004/C 217/16)
   Language of the case: French
   In Case C-331/03: Commission of the European Communities (Agents: M. Konstantinidis and F. Simonetti) v French Republic (Agent: G. de Bergues and E. Puisais) — application for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles (OJ 2000 L 269, p. 34) and, in any event, by failing to notify them to the Commission, the French Republic has failed to fulfil its obligations under that directive — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, President of the Chamber, F. Macken (Rapporteur) and K. Lenaerts, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 1 July 2004, the operative part of which is as follows:

               1.

               By failing, within the period prescribed, to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles, the French Republic has failed to fulfil its obligations under that directive;

               2.

               The French Republic is ordered to pay the costs.

      (1)  OJ C 213 of 6.9.2003.


title: Case C-597/14 P: Judgment of the Court (First Chamber) of 21 July 2016 — European Union Intellectual Property Office v Xavier Grau Ferrer, Juan Cándido Rubio Ferrer, Alberto Rubio Ferrer (Appeal — EU trade mark — Regulation (EC) No 207/2009 — Article 76(2) — Regulation (EC) No 2868/95 — Rule 50(1), third subparagraph — Figurative mark — Opposition by the proprietor of the earlier trade mark — Proof of the existence, validity and extent of the protection of the earlier trade mark — Consideration by the Board of Appeal of evidence submitted out of time — Rejection of the opposition by the Board of Appeal)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/5

         Judgment of the Court (First Chamber) of 21 July 2016 — European Union Intellectual Property Office v Xavier Grau Ferrer, Juan Cándido Rubio Ferrer, Alberto Rubio Ferrer
   (Case C-597/14 P) (1)

   ((Appeal - EU trade mark - Regulation (EC) No 207/2009 - Article 76(2) - Regulation (EC) No 2868/95 - Rule 50(1), third subparagraph - Figurative mark - Opposition by the proprietor of the earlier trade mark - Proof of the existence, validity and extent of the protection of the earlier trade mark - Consideration by the Board of Appeal of evidence submitted out of time - Rejection of the opposition by the Board of Appeal))
   (2016/C 343/06)
   Language of the case: Spanish

      Parties

      Appellant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas and A. Folliard-Monguiral, acting as Agents)

      Other parties to the proceedings: Xavier Grau Ferrer, Juan Cándido Rubio Ferrer, Alberto Rubio Ferrer

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal.

               2.

               Orders the European Union Intellectual Property Office (EUIPO) to pay the costs.

      (1)  OJ C 89, 16.3.2015.


title: Case F-52/05 RENV: Judgment of the Civil Service Tribunal (First Chamber) of 2 October 2012 — Q v Commission (Civil service — Referral back to Tribunal after setting aside — Administration’s duty to provide assistance — Psychological harassment — Provisional removal from post — Reparation for non-material damage — Career development reviews — Justified absences on the ground of sickness — Failure to take into account)

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/28

         Judgment of the Civil Service Tribunal (First Chamber) of 2 October 2012 — Q v Commission
   (Case F-52/05 RENV)
   (Civil service - Referral back to Tribunal after setting aside - Administration’s duty to provide assistance - Psychological harassment - Provisional removal from post - Reparation for non-material damage - Career development reviews - Justified absences on the ground of sickness - Failure to take into account)
   2013/C 38/51
   Language of the case: French

      Parties

      Applicant: Q (Domsjö, Sweden) (represented by: S. Rodrigues and Y. Minatchy, lawyers)

      Defendant: European Commission (represented by: initially D. Martin, B. Eggers and V. Joris, subsequently by V. Joris and G. Berscheid, acting as Agents)

      Re:

   Civil service — First, annulment of the Commission’s decision refusing the request for assistance submitted by the applicant under Article 24 of the Staff Regulations concerning psychological harassment to which she claims to have been subject and an application for damages and, secondly, annulment of her career development review for 2003 (formerly T-252/05) — Case T-80/09 P referred back after appeal

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the career development reviews drawn up for the periods from 1 January to 31 October and from 1 November to 31 December respectively;

               2.

               Orders the European Commission to pay the sum of EUR 10 000 to Q;

               3.

               Declares that the European Commission must bear its own costs incurred in the proceedings before the General Court and in the two sets of proceedings before the Tribunal and orders the European Commission to pay three-quarters of the costs incurred by Q in the two sets of proceedings before the Tribunal;

               4.

               Declares that Q must bear her own costs incurred in the proceedings before the General Court and one quarter of her costs incurred in the two sets of proceedings before the Tribunal.


title: Case C-98/99: Reference for a preliminary ruling by the Bundessozialgericht by order of 15 October 1998 in the case of Mohamad Nasser v. Landeshauptstadt Stuttgart

text:
C 160/8                EN                     Official Journal of the European Communities                                        5.6.1999
Reference for a preliminary ruling by the Bundessozial-                  2. If the answer to question 1 is in the affirmative:
gericht by order of 15 October 1998 in the case of Hassan
              Osseili v. Bundesanstalt für Arbeit                             Does Regulation (EEC) No 1408/71 also apply to stateless
                                                                              workers and to members of their families who have
                          (Case C-97/99)                                      travelled directly to a Member State from a non-member
                                                                              country and have not moved within the Community?
                         (1999/C 160/17)
                                                                         (1) JO L 149, 5.7.1971, p. 2; OJ, English Special Edition 1971 (II),
Reference has been made to the Court of Justice of the                       p. 416.
European Communities by order of 15 October 1998 from
the Bundessozialgericht (Federal Social Court), which was
received at the Court Registry on 17 March 1999, for a
preliminary ruling in the case of Hassan Osseili v. Bundesan-
stalt für Arbeit on the following questions:
1. Does Council Regulation (EEC) No 1408/71 (1) of 14 June
     1971 on the application of social security schemes to               Action brought on 17 March 1999 by the Italian Republic
     employed persons, to self-employed persons and to mem-              against Council of the European Union and Commission
     bers of their families moving within the Community apply                            of the European Communities
     to stateless persons and to members of their families if
     such persons have no right of free movement under the                                        (Case C-100/99)
     Treaty of 25 March 1957 establishing the European
     Community, as amended by the Treaty of 7 February 1992
     on the European Union?                                                                       (1999/C 160/19)
2. If the answer to question 1 is in the affirmative:                    An action against the Council of the European Union and the
                                                                         Commission of the European Communities was brought
     Does Regulation (EEC) No 1408/71 also apply to stateless            before the Court of Justice of the European Communities on
     workers and to members of their families who have                   17 March 1999 by the Italian Republic, represented by
     travelled directly to a Member State from a non-member              Umberto Leanza, acting as Agent, assisted by Danilo Del
     country and have not moved within the Community?                    Gaizo, Avvocato dello Stato, with an address for service in
                                                                         Luxembourg at the Italian Embassy, 5 rue Marie-Adelaïde.
(1) JO L 149 , 5.7.1971, p. 2; OJ, English Special Edition 1971 (II),
    p. 416.                                                              The applicant claims that the Court of Justice should:
                                                                         — annul the contested regulations (1)
                                                                         — order the Council and the Commission to pay the costs.
                                                                         Pleas in law and main arguments
Reference for a preliminary ruling by the Bundessozial-
gericht by order of 15 October 1998 in the case of
       Mohamad Nasser v. Landeshauptstadt Stuttgart                      1.     The amendment to Article 4 of Regulation (EC)
                                                                         No 2799/98, contained in Article 2 of Regulation (EC)
                          (Case C-98/99)                                 No 2800/98, applies to the participating Member States the
                                                                         same prohibition provided for in respect of the non-
                                                                         participating Member States to grant compensatory aid for
                         (1999/C 160/18)                                 prices and amounts other than those referred to in Article 5 of
                                                                         Regulation (EC) No 2799/98 that does not exceed appreciable
Reference has been made to the Court of Justice of the                   revaluation of 2,6 %.
European Communities by order of 15 October 1998 from
the Bundessozialgericht (Federal Social Court), which was                That requirement constitutes, by its undifferentiated nature, a
received at the Court Registry on 17 March 1999, for                     distortion to the disadvantage of the participating currencies,
a preliminary ruling in the case of Mohamad Nasser v.                    in particular those which can show an ‘appreciable’ income
Landeshauptstadt Stuttgart on the following questions:                   loss in converting to the euro, and is contrary to the principles
                                                                         and objectives of the common agricultural policy, and in
1. Does Council Regulation (EEC) No 1408/71 (1) of 14 June               particular to Articles 39 and 40 of the Treaty and to the
     1971 on the application of social security schemes to               principle of proportionality.
     employed persons, to self-employed persons and to mem-
     bers of their families moving within the Community apply
     to stateless persons and to members of their families if            2.     The second complaint concerns the way in which
     such persons have no right of free movement under the               the compensatory mechanism provided for in Article 4 of
     Treaty of 25 March 1957 establishing the European                   Regulation (EC) No 2799/98 has been applied, in particular as
     Community, as amended by the Treaty of 7 February 1992              regards the determination of the flat-rate income loss which,
     on the European Union?                                              for certain products, is unjustified and unfair.


title: Case T-130/15: Action brought on 19 March 2015 — Intesa Sanpaolo v OHIM (WAVE TO PAY)

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/35

         Action brought on 19 March 2015 — Intesa Sanpaolo v OHIM (WAVE TO PAY)
   (Case T-130/15)
   (2015/C 155/42)
   Language of the case: Italian

      Parties

      Applicant: Intesa Sanpaolo SpA (Turin, Italy) (represented by: P. Pozzi and F. Cecchi, lawyers)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community figurative mark containing the word elements ‘WAVE TO PAY’ — Application for registration No 12 258 141

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 19 January 2015 in Case R 1864/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that there was a breach and incorrect application of Article 7(1)(b) and (c) and (2) of Regulation No 207/2009;

               —

               declare that there was a breach of Article 75 of Regulation No 207/2009, and also that there were contradictions in the contested decision; and consequently

                           —

                           annul the contested decision;

                           —

                           order OHIM to pay the costs.

      Pleas in law

   The pleas in law and main arguments are the same as those relied on in Case T-129/15.


title: Case T-125/06: Action brought on  3 May 2006  — Centro Studi A. Manieri v Council of the European Union

text:
               3.6.2006

               EN

               Official Journal of the European Union

               C 131/49

         Action brought on 3 May 2006 — Centro Studi A. Manieri v Council of the European Union
   (Case T-125/06)
   (2006/C 131/90)
   Language of the case: Italian
   Parties

      Applicant(s): Centro Studi A. Manieri (Rome, Italy) (represented by: Carlo Forte, Mario Forte and Giannicola Forte, lawyers)

      Defendant(s): Council of the European Union
   Form of order sought

               —

               Annul the decision of the General Secretariat of the Council of the European Union of 16 January 2006 to withdraw the restricted invitation to tender UCA-459/03 for full crèche management and, at the same time to accept the proposal of the Office for infrastructure and logistics (OIB) of the European Commission for the supply of the same services;

               —

               Assess the damage suffered by the applicant on an equitable basis:

               —

               Order the Council to pay the costs.

         Pleas in law and main arguments
   This action has been brought against the decision of the Secretary-General of the defendant to withdraw the invitation to tender launched in the autumn of 2003 by contract notice 2003/S 209-187862 by restricted procedure for the full management of a crèche. The reason for the decision is alleged to be the acceptance of a proposal by the Office for infrastructure and logistics (OIB) of the Commission regarding the management of the crèche in question. That proposal was judged to be much more advantageous than the applicant's tender, particularly as regards the contractual conditions offered to the staff, the economies of scale and the optimisation of the available resources.
   In support of its claims the applicant relies on pleas of:

               —

               Breach of the principles of transparency and equal treatment, in so far as the contested measure, a decision to bring the service which was the subject of the procedure under internal management, was adopted without being advertised or opened up to competition.

               —

               Breach of Article 86(1) EC in that it is inconceivable that there should be a system which requires Member States not to maintain in force a national system which allows the award of contracts for public services without competition while the Community institutions are allowed to conduct themselves in such a manner.

               —

               Misapplication of the provisions cited as the legal basis of the contested decision: section 4 of the specification and Article 101 of the Financial Regulation, in so far as the withdrawal of the invitation cited by the Council was not intended to recommence the procedure.

               —

               Breach of the obligation to state reasons and error of assessment of the facts, as regards the correctness of the criteria supporting the choice of the proposal of the OIB.

               —

               Breach of Articles 43 and 49 EC. It is argued on this point that the OIB is not a department of the Council and it does not have any control over it. It follows that it is not possible in the circumstances of this case to rely on the case-law according to which the application of the public procurement procedures is precluded if the control exercised over the concessionaire by the concession-granting public authority is similar to that which the authority exercises over its own departments and if, at the same time, that entity carries out the essential part of its activities with the controlling authority.


title: Case C-459/13: Order of the Court (Ninth Chamber) of 17 July 2014 (request for a preliminary ruling from the Najvyšší súd — Slovakia) — Milica Široká v Úrad verejného zdravotníctva Slovenskej republiky (Reference for a preliminary ruling — Protection of public health — National legislation imposing an obligation to vaccinate minor children — Right of parents to refuse that vaccination — Article 168 TFEU — Charter of Fundamental Rights of the European Union — Articles 33 and 35 — Implementation of EU law — None — Clear lack of jurisdiction of the Court)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/29

         Order of the Court (Ninth Chamber) of 17 July 2014 (request for a preliminary ruling from the Najvyšší súd — Slovakia) — Milica Široká v Úrad verejného zdravotníctva Slovenskej republiky
   (Case C-459/13) (1)

   ((Reference for a preliminary ruling - Protection of public health - National legislation imposing an obligation to vaccinate minor children - Right of parents to refuse that vaccination - Article 168 TFEU - Charter of Fundamental Rights of the European Union - Articles 33 and 35 - Implementation of EU law - None - Clear lack of jurisdiction of the Court))
   2014/C 315/46
   Language of the case: Slovak

      Referring court

   Najvyšší súd

      Parties to the main proceedings

      Appellant: Milica Široká

      Respondent: Úrad verejného zdravotníctva Slovenskej republiky

      Operative part of the order

   The Court of Justice of the European Union clearly has no jurisdiction to answer the questions referred by the Najvyšší súd Slovenskej republiky (Slovakia), by decision of 6 August 2013 in Case C-459/13.

      (1)  OJ C 344, 23.11.2013


title: Case T-281/02: Action brought on 18 September 2002 by Norma Lebensmittelfilialbetrieb GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 274/36               EN                     Official Journal of the European Communities                                    9.11.2002
—     in the alternative, reduce the fine imposed by Article 3 of        Finally, the Commission has disregarded the presumption of
      the Decision;                                                      innocence, as it gave information to the economic press about
                                                                         the expected amount of the fine even before the decision was
                                                                         taken and that information was even published. An unbiased
—     order the Commission to pay the costs.                             decision was thus no longer possible.
Pleas in law and main arguments
                                                                         Action brought on 18 September 2002 by Norma Le-
                                                                         bensmittelfilialbetrieb GmbH & Co. KG against the Office
The applicant contests the Decision of the Commission by                 for Harmonisation in the Internal Market (Trade Marks
which a fine of EUR 118 125 000 was imposed on the                                                 and Designs)
applicant for breach of Article 81(1) EC. The Commission
claimed that the applicant and other undertakings concerned
— various producers of methionine — took part in a                                               (Case T-281/02)
continuous agreement and/or concerted practice. According
to the Commission’s findings, the applicant took part in such
arrangements from February 1986 until February 1999.                                             (2002/C 274/63)
                                                                                (Language of the case: German)
The applicant submits that in setting the fine the Commission
did not correctly assess the duration of the infringement. The
Commission assumed that the breach lasted from 1986 until
1999. In so doing it disregarded the fact that the agreements            An action against the Office for Harmonisation in the Internal
ended in 1988, and that a fresh decision to enter into                   Market (Trade Marks and Designs) was brought before the
agreements was made only in 1992. The Commission has not                 Court of First Instance of the European Communities on
proved that there was a single continuous breach as it alleged.          18 September 2002 by Norma Lebensmittelfilialbetrieb GmbH
Furthermore, the Commission made several errors in setting               & Co KG, Nürnberg (Germany), represented by S. Rojahn and
the basic amount of the fine. In assessing the breach as a               St. Freytag, lawyers.
‘particularly serious breach’ of Article 81(1) EC it incorrectly
assessed the findings required as to the specific effect on the
relevant market. This must be viewed as an error of assessment           The applicant claims that the Court should:
and the Commission is thereby in breach of its own guidelines
on setting fines.
                                                                         —     annul the decision of the Third Board of Appeal of the
                                                                               Office for Harmonisation in the Internal Market (Trade
                                                                               Marks and Designs) of 3 July 2002 (1);
The applicant also submits that the Commission based the fine
imposed on Degussa AG on the size of the undertaking in                  —     order the defendant to pay the costs.
2001 and thereby disregarded the fact that, since the ending
of the anti-competitive agreements Degussa has been involved
in two mergers of undertakings. The Commission should have
based its decision on the fine solely on the turnover of the part
of the current undertaking which corresponds to the former               Pleas in law and main arguments
Degussa AG Frankfurt am Main. In that respect the Com-
mission infringed the principle of liability.                            Community trade mark         Word mark ‘Mehr für Ihr Geld’ —
                                                                         applied for:                 application No 1669167
                                                                         Goods or services:           Goods and services of Classes 3,
The applicant submits, moreover, that the Commission’s                                                29, 30 and 35 (inter alia, bleach-
method of setting the fine did not meet the constitutional                                            ing preparations and other sub-
requirement of certainty. In the Commission’s use of Article 15                                       stances for laundry use, meat, cof-
of Regulation No 17/62 the invalidity of this basis for                                               fee and marketing)
authorisation is clear as it gives the Commission an unlimited
authority to impose fines, which is not consistent with the              Decision        contested    Refusal of registration by the
principles concerning the certainty of legal consequences of             before the Board of          examiner
unlawful acts.                                                           Appeal:
 ---pagebreak--- 9.11.2002              EN                       Official Journal of the European Communities                                       C 274/37
Decision of the Board of       Decision of the examiner set aside          Pleas in law and main arguments
Appeal:                        in so far as it applies to services in
                               Class 35. Dismissal of the remain-
                               der of the appeal.
                                                                           The applicant contests Commission Decision C(2002) 2315,
Pleas in law:                  —     Infringement of Article               of 26 June 2002.
                                     7(1)(c) of Regulation (EC)
                                     No 40/94 ( 2);
                               —     Infringement of Article
                                     7(1)(b) of Regulation (EC)            The applicant is active in the building materials sector. In
                                     No 40/94.                             1999, the applicant and Franz Haniel & Cie GmbH acquired
                                                                           from Ruhrkohle AG its shares in certain factories which were
                                                                           members of the ‘Coöperatieve verkoop en produktievereniging
                                                                           van kalkzandsteenproducenten’ (CVK), a co-operative organ-
( 1) Case R 239/2002-3.                                                    ization for Dutch calcium silicate producers. According to the
( 2) Council Regulation (EC) No 40/94 of 20 December 1993 on the           contested Decision, the applicant and Franz Haniel thereby
     Community trade mark (OJ 1994 L 11, p. 1).                            gained joint control of CVK. The Decision further states that
                                                                           the second set of commitments offered by the applicant and
                                                                           Franz Haniel are sufficient to ensure that the concentration
                                                                           would be compatible with the common market.
                                                                           In support of its application, the applicant submits that the
                                                                           Commission has infringed Article 3 of Council Regulation
                                                                           No 4064/89 (1). According to the applicant, the Commission
Action brought on 11 September 2002 by Cementbouw                          erred in concluding that the applicant and Franz Haniel have
Handel & Industrie B.V. against the Commission of the                      joint control of CVK. The applicant furthermore claims that
                     European Communities                                  the Commission did not provide sufficient evidence for this
                                                                           conclusion and failed to give reasons for it, in breach of
                                                                           Article 253 of the EC Treaty.
                          (Case T-282/02)
                         (2002/C 274/64)                                   The applicant also submits that the Commission has infringed
                                                                           Article 2 of Regulation No 4064/89. According to the
                                                                           applicant, the Commission erred in concluding that the
                   (Language of the case: English)                         transaction under which the shares in Ruhrkohle AG were
                                                                           acquired by the applicant and Franz Haniel led to a dominant
                                                                           position for CVK on the market for building materials for
                                                                           load-bearing walls in the Netherlands. Nor, the applicant
                                                                           claims, did the Commission provide sufficient evidence in
                                                                           support of this conclusion or provide a statement of its reasons
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 for it, in breach of Article 253 of the EC Treaty.
European Communities on 11 September 2002 by
Cementbouw Handel & Industrie B.V., Amsterdam, Nether-
lands, represented by W. Knibbeler, Advocaat and
O. W. Brouwer, Advocaat.                                                   The applicant finally claims that Article 3 and 8(2) of
                                                                           Regulation 4064/89 were misapplied, and the principle of
                                                                           proportionality was breached by the Commissions failure to
                                                                           accept the first set of commitments submitted by the applicant
The applicant claims that the Court should:                                and Franz Haniel.
—      annul Article 1 of the contested Decision;
                                                                           (1 ) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
—      annul Article 2 of the contested Decision;                               the control of concentrations between undertakings (OJ L 395,
                                                                                p. 1) (republished in OJ 1990, L 257, p. 13).
—      annul Article 3 of the contested Decision;
—      order the Commission to pay the costs.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 15 May 1996 in Case T-326/94: Konstantinos Dimitriadis v. Court of Auditors of the European Communities (Official - Staff report - Damages)

text:
No C 180/28            EN                 Official Journal of the European Communities                                    22 . 6 . 96
                                                    COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                             Eric Boigelot, of the Brussels Bar, with an address for service
                         of 8 May 1996                               in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du
in Case T-19/95 : Adia Interim SA v . Commission of the
                                                                     Fort Rheinsheim, v. European Parliament (Agents : Gregorio
                                                                     Garzón Clariana and Manfred Peter) — application for
                   European Communities ( J )                        annulment of the decision, based on Article 50 of the Staff
 (Public service contract — Agency staff — Tender vitiated           Regulations of officials of the European Communities,
 by a calculation error — Statement ofreasons ofthe decision         retiring the applicant from service — the Court of First
rejecting the tender — No obligation for the contracting             Instance (Third Chamber ), composed of: C. P. Briët,
              authority to contact the tenderer)                     President, and B. Vesterdorf and A. Potocki, Judges; H.
                          ( 96/C 180/73 )                            Jung, Registrar, has given a judgment on 14 May 1996 , in
                                                                     which it :
                 (Language of the case: French)
                                                                      1 . Dismisses the action as inadmissible in so far as it
In Case T-19/95 : Adia Interim SA, having its registered                  requests the Court to issue directions to the European
office in Brussels, represented by Vincent Thiry, of the Liège            Parliament.
Bar , Christian Jacobs, Rechtsanwalt, Bremen, Hans
Joachim Prieß and Klaus Heinemann, Rechtsanwälte,
Cologne, with an address for service in Luxembourg at the            2 . Annuls the decision retiring the applicant from service,
Chambers of Tom M. Gilliams, 47 Grand-Rue, v.                             which was communicated to the applicant by letters
Commission of the European Communities ( Agents:                          from the President of the Parliament of 30 November
Xénophon A. Yataganas and Hendrik van Lier ) —                            1994 and 19 December 1994 .
application for annulment of the Commission decision,
communicated to the applicant on 5 December 1994,
informing it that the tender which it submitted in response          3 . Orders the Parliament to pay the costs.
to invitation to tender No 94/21/IX.C.1 on the supply of
agency staff had been rejected, and for annulment of the
Commission's decision, communicated to the applicant on              P ) OJ No C 137, 3 . 6 . 1995 .
21 December 1994 , awarding the contracts in question to
the companies Ecco , Gregg and Manpower — the Court of
First Instance ( Fourth Chamber), composed of: K. Lenaerts,
President, P. Lindh and J. D. Cooke, Judges, Registrar: B.
Pastor, Principal Administrator, has given a judgment on
8 May 1996 , in which it:
 1 . Dismisses the application.                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 15 May 1996
2 . Orders the applicant to pay the costs.                           in Case T-326/94 : Konstantinos Dimitriadis v. Court of
                                                                              Auditors of the European Communities (^
(') OJ No C 87, 8 . 4 . 1995 .
                                                                                (Official — Staff report — Damages)
                                                                                ( 96/C 180/75 )
                                                                                (Language of the case: Greek)
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 14 May 1996                              In Case T-326/94 : Konstantinos Dimitriadis, an official of
in Case T-82/95 : Carmen Gómez de Enterría y Sánchez v.             the Court of Justice of the European Communities and
                    European Parliament ( 1 )                       formerly an official of the Court of Auditors of the
(Officials  — Retirement — Article 50 of the Staff                  European Communities, residing in Luxembourg,
Regulations — Protection of the interests of the official           represented by Markos Papazisis of the Salonika Bar, with
                             concerned)                             an address for service in Luxembourg at the applicant's
                         ( 96/C 180/74 )                            residence, 4A Boulevard Grand-Duchesse Charlotte, against
                                                                    the Court of Auditors of the European Communities
                                                                    ( Agents : Jean-Marie Stenier, Christos Komninos and Paolo
                (Language of the case: French)                      Giusta ) — application for the annulment of the applicant's
                                                                    staff report of 13 July 1994 and compensation for the
In Case T-82/95 : Carmen Gomez de Enterría y Sanchez, a             damage allegedly suffered — the Court of First Instance
former official of the European Parliament, represented by          ( Fifth Chamber ), composed of R. Schintgen ( President of the
 ---pagebreak--- 22. 6 . 96          EN                    Official Journal of the European Communities                              No C 180/29
Chamber), R. Garcia-Valdecasas and J. Azizi, Judges; H.                            ORDER OF THE PRESIDENT
Jung, Registrar, has given a judgment on 15 May 1996 , in                     OF THE COURT OF FIRST INSTANCE
which it :                                                                               of 29 March 1996
                                                                     in Case T-24/96 R: U. v. European Centre for the
1 . Dismisses the application.                                                  Development of Vocational Training
                                                                                ( 96/C 180/77 )
2 . Orders the parties to bear their own costs.
                                                                                (Language of the case: German)
H OJ No C 331 , 26 . 11 . 1994 .
                                                                     In Case T-24/96 R: U, an official of the European Centre for
                                                                     the Development of Vocational Training, residing in Berlin,
                                                                     represented by Frank Montag, Rechtsanwalt, Brussels, with
                                                                     an address for service in Luxembourg at the Chambers of
                                                                     Aloyse May, 31 Grand-Rue , v. European Centre for the
                                                                     Development of Occupational Training (Agent: Bertrand
JUDGMENT OF THE COURT OF FIRST INSTANCE                              Wägenbaur ) — application, first, for suspension of
                                                                     operation of the defendant's decision transferring the
                        of 21 May 1996                               applicant to Thessaloniki and, second, for an order that the
in Case T-153/95 , Raymond Kaps v. Court of Justice of the           applicant's posting in the Commission's office in Berlin be
                  European Communities (*)                           maintained for the time being — the President of the Court
(Officials — Competition — Selection board — Oral test —             of First Instance made an order on 29 March 199 6 , the
Decision ofselection board not to enter the applicant on the         operative part of which is as follows :
reserve list — Scope of the duty to state reasons — Scope of
                         judicial review)
                          ( 961C 180/76 )                            1 . The suspension granted by the order of the President of
                                                                         the Court of First Instance of 29 February 1996 is
                                                                         renewed up to and including 12 April 1996. Until that
                (Language of the case: French)                           date, the applicant's posting in Berlin is to continue;
In Case T-153/95 : Raymond Kaps, an official of the Court            2 . The remainder ofthe application for interim measures is
of Justice of the European Communities, residing in                      dismissed:
Schifflange, represented by Jean-Noël Louis, Thierry
Demaseure, Véronique Leclercq and Ariane Tornel, all of
the Brussels Bar, with an address for service in Luxembourg          3.  The costs are reserved.
at the offices of Fiduciaire Myson Sari, 1 Rue Glesener,
against the Court of Justice of the European Communities
( Agent: Timothy Millett ) — application for the annulment
of the selection board's decisions in the internal competition
by tests No CJ 51 /93 awarding the applicant marks for his
written and oral tests which did not qualify him for entry on
the reserve list and, in so far as necessary, the annulment of
the defendant's decision not to enter the applicant on the
reserve list of Competition No CJ 51/93 and of the decision
of the complaints committee of 15 May 1995 rejecting the             Action brought on 22 March 1996 by Eyckeler & Malt AG
applicant's complaint — the Court of First Instance ( Fifth            against the Commission of the European Communities
Chamber ), composed of R. Schintgen ( President of the                                     ( Case T-42/96 )
Chamber ), R. Garcia-Valdecasas and J. Azizi , Judges; B.                                    ( 96/C 180/78 )
Pastor, Principal Administrator, for the Registrar, has given
a judgment on 21 May 1996 , in which it:
                                                                                (Language of the case: German)
1 . Dismisses the application.
                                                                     An action against the Commission of the European
2 . Orders the parties to bear their own costs.                      Communities was brought before the Court of First
                                                                     Instance of the European Communities on 22 March 1 996
                                                                     by Eyckeler & Malt AG, of Hilden ( Federal Republic of
C ) OJ No C 248 , 23 . 9 . 1995 .                                    Germany ), represented by Dietrich Ehle and Volker Schiller,
                                                                     Rechtsanwälte , Cologne, with an address for service in
                                                                     Luxembourg at the Chambers of Marc Lucius, 6 Rue Michel
                                                                     Welter .


title: Case T-516/14 P: Appeal brought on 9 July 2014 by Christodoulos Alexandrou against the judgment of the Civil Service Tribunal of 14 May 2014 in Case F-140/12, Alexandrou v Commission

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/57

         Appeal brought on 9 July 2014 by Christodoulos Alexandrou against the judgment of the Civil Service Tribunal of 14 May 2014 in Case F-140/12, Alexandrou v Commission
   (Case T-516/14 P)
   2014/C 292/70
   Language of the case: French

      Parties

      Appellant: Christodoulos Alexandrou (Luxembourg, Luxembourg) (represented by R. Duta, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   The applicant claims that the Court should:

               —

               without prejudice to any pleas in law and in fact and evidence offered in support to be produced and supplied later, declare the present appeal formally admissible and well founded;

               —

               consequently, reverse if not set aside the judgment under appeal on the basis of the claims set out;

               —

               if necessary, refer the case back to the Civil Service Tribunal for it to give judgment in accordance with the judgment to be given on the appeal;

               —

               order the European Commission to pay all the costs of both sets of proceedings.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on three pleas in law.

               1.

               First plea in law, alleging that the Civil Service Tribunal refused to assess the applicant’s arguments based on Regulation No 1049/2001 (1) and, in particular, Article 9(4) thereof.

               2.

               Second plea in law, alleging misapplication of the judgment of 29 June 2011 in Angioi v Commission, F-7/07, ECR-SC, EU:F:2011:97, inasmuch as this is a restrictive, obsolete line of case-law inapplicable to non-paper-based competitions.
               In the alternative, if the judgment in Angioi v Commission should be found to be applicable, the applicant considers that he satisfies the criteria established by that case-law.

               3.

               Third plea in law, alleging failure by the Civil Service Tribunal to apply Article 44(2) of the Rules of Procedure of the Civil Service Tribunal.

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


title: Case T-172/06: Order of the Court of First Instance (First Chamber) of 26 June 2008 — Expasa v OHMI — Gallardo Blanco (H)

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/24

         Order of the Court of First Instance (First Chamber) of 26 June 2008 — Expasa v OHMI — Gallardo Blanco (H)
   (Case T-172/06) (1)

   (2008/C 247/48)

      Language of the case: Spanish

   The President of the Court of First Instance (First Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 190, 12.8.2006.


title: Case C-27/11: Judgment of the Court (Eighth Chamber) of 7 June 2012 (reference for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Anton Vinkov v Nachalnik Administrativno-nakazatelna deynost (Reference for a preliminary ruling — Non-recognition in national law of the right to a judicial remedy in respect of decisions imposing a financial penalty and the deduction of points for certain breaches of road traffic regulations — Purely internal situation — Inadmissibility of the reference)

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/3

         Judgment of the Court (Eighth Chamber) of 7 June 2012 (reference for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Anton Vinkov v Nachalnik Administrativno-nakazatelna deynost
   (Case C-27/11) (1)

   (Reference for a preliminary ruling - Non-recognition in national law of the right to a judicial remedy in respect of decisions imposing a financial penalty and the deduction of points for certain breaches of road traffic regulations - Purely internal situation - Inadmissibility of the reference)
   2012/C 217/05
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Sofia-grad

      Parties to the main proceedings

      Applicant: Anton Vinkov

      Defendant: Nachalnik Administrativno-nakazatelna deynost

      Re:

   Reference for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Article 82(1)(a) TFEU and Article 91(1)(c) TFEU and Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ 2005 L 76, p. 16) — Interpretation of Articles 47, 48 and 52 of the Charter of Fundamental Rights of the European Union — Compatibility with EU law of national rules excluding the right to bring an action before a court challenging decisions relating to financial penalties following administrative offences in road traffic cases amounting to BGN 50

      Operative part of the judgment

   The reference for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria), made by decision of 27 December 2010 (Case C-27/11), is inadmissible.

      (1)  OJ C 145, 14.5.2011.


title: Case C-332/14: Judgment of the Court (Fourth Chamber) of 9 June 2016 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft GbR v Finanzamt Krefeld (Reference for a preliminary ruling — Taxation — Value added tax — Directive 77/388/EEC — Third subparagraph of Article 17(5) — Field of application — Deduction of input tax — Goods and services used for both taxable and exempt transactions (mixed-use goods and services) — Determination of the assignation of goods and services purchased for the construction, use, conservation and maintenance of a building that serves to carry out, in part, transactions in respect of which VAT is deductible and, in part, transactions in respect of which VAT is not deductible — Amendment of the national legislation laying down the method of calculating the deductible proportion — Article 20 — Adjustment of deductions — Legal certainty — Legitimate expectations)

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/6

         Judgment of the Court (Fourth Chamber) of 9 June 2016 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft GbR v Finanzamt Krefeld
   (Case C-332/14) (1)

   ((Reference for a preliminary ruling - Taxation - Value added tax - Directive 77/388/EEC - Third subparagraph of Article 17(5) - Field of application - Deduction of input tax - Goods and services used for both taxable and exempt transactions (mixed-use goods and services) - Determination of the assignation of goods and services purchased for the construction, use, conservation and maintenance of a building that serves to carry out, in part, transactions in respect of which VAT is deductible and, in part, transactions in respect of which VAT is not deductible - Amendment of the national legislation laying down the method of calculating the deductible proportion - Article 20 - Adjustment of deductions - Legal certainty - Legitimate expectations))
   (2016/C 296/09)
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Wolfgang und Dr. Wilfried Rey Grundstücksgemeinschaft GbR

      Defendant: Finanzamt Krefeld

      Operative part of the judgment

               1.

               Article 17(5) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that, where a building is used in order to carry out certain output transactions in respect of which value added tax is deductible and others in respect of which it is not, the Member States are not required to prescribe that the input goods and services used for the construction, acquisition, use, conservation or maintenance of that building must, in a first stage, be assigned to those various transactions when such assignation is difficult to carry out, in order that, in a second stage, only the deduction entitlement due in respect of those of the goods and services which are used both for certain transactions in respect of which value added tax is deductible and for others in respect of which it is not is determined by applying a turnover-based allocation key or, provided that this method guarantees a more precise determination of the deductible proportion, on the basis of floor area.

               2.

               Article 20 of Sixth Directive 77/388, as amended by Directive 95/7, must be interpreted as requiring value-added-tax deductions made in respect of goods or services falling within Article 17(5) of that directive to be adjusted following the adoption, during the adjustment period in question, of a value-added-tax allocation key used to calculate those deductions that departs from the method provided for by the directive for determining the deduction entitlement.

               3.

               The general principles of EU law of legal certainty and of the protection of legitimate expectations must be interpreted as not precluding applicable national legislation which does not expressly prescribe an input tax adjustment, within the meaning of Article 20 of the Sixth Directive, as amended by Directive 95/7, following amendment of the value-added-tax allocation key used to calculate certain deductions or lay down transitional arrangements although the input tax allocation applied by the taxable person in accordance with the allocation key applicable before that amendment had been recognised as generally reasonable by the supreme court.

      (1)  OJ C 329, 22.9.2014.