title: Case C-279/16 P: Appeal brought on 19 May 2016 by the Kingdom of Spain against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2016 in Case T-675/14 Spain v Commission

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/18

         Appeal brought on 19 May 2016 by the Kingdom of Spain against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2016 in Case T-675/14 Spain v Commission
   (Case C-279/16 P)
   (2016/C 279/25)
   Language of the case: Spanish

      Parties

      Appellant: Kingdom of Spain (represented by: M.J. García-Valdecasas Dorrego, Agent)

      Other parties to the proceedings: European Commission and Republic of Latvia

      Form of order sought

   The appellant claims that the Court should:

               —

               allow the present appeal and set aside the judgment of the General Court;

               —

               in the new judgment handed down annul Commission Implementing Decision 2014/458/EU of 9 July 2014, (1) on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), as regards the expenditure incurred by the Kingdom of Spain in the amount of EUR 2 713 208,07.

      Pleas in law and main arguments

               1.

                  An error of law based on a lack of statement of reasons in the judgment under appeal, in so far as the General Court was obliged to rule on the lack of statement of reasons in the Commission decision because the plea in question was formulated in a sufficiently clear and precise manner to enable the General Court to adopt a position.

               2.

                  An error of law as regards the scope of the obligation to state reasons because the reasoning relied on by the General Court is not compatible with the necessary clarity and lack of ambiguity which must characterise the reasoning in the Commission decision in order to satisfy the requirements of Article 296 TFEU. The reasoning of the measure was neither clear nor unambiguous, thereby infringing the Kingdom of Spain’s rights of defence.

               3.

                  A manifest distortion of the facts in so far as the General Court manifestly distorted the facts in finding in paragraph 55 of the judgment under appeal that ‘The Kingdom of Spain has not demonstrated that certain farms were not subject to any of the obligations in respect of which deficiencies were detected’. First, that statement is contrary to the nature of the cross-compliance system given that in that area only certain farms may pose a risk, and they are the ones to which the specific requirements in respect of which deficiencies have been detected are applied. Secondly, there was a manifest distortion of the facts because the Kingdom of Spain provided the Commission with specific data which shows how certain farms were not subject to the specific obligations.

               4.

                  An error of law in the interpretation of Article 31(2) of Regulation No 1290/2005 and with regard to the principle of proportionality in relation to the application of a flat-rate correction and the rejection of the correction proposed by the Kingdom of Spain.

                           4.1

                           An error of law in the interpretation of Article 31(2) because that provision requires that the financial damage caused is taken into account as an essential factor. Since that damage had been evaluated precisely by the Kingdom of Spain, flat-rate correction, which is a means available only where it was impossible to have recourse to a more appropriate method, should not have been used.

                           4.2

                           And an error of law in respect of the review of the principle of proportionality because the method used by the Commission produced a flat-rate correction some 530 % higher than the calculation put forward by the Kingdom of Spain. The Kingdom of Spain’s calculation took into account actual data of the penalties imposed in subsequent years in which the cross-compliance deficiencies had been corrected. The amount resulting from the flat-rate correction is absolutely disproportionate and the paying agencies must not meet the costs of corrections which are overvalued.

               5.

                  An error of law in the interpretation of Article 31(2) of Regulation No 1290/2005 and with regard to the principle of proportionality in so far as it was held that a flat-rate financial correction could be applied concurrently with a one-off financial correction in respect of the same budget line for 2008. First, in accordance with the document AGRI-2005-64043 no corrections are applied to amounts already corrected for the same grounds; secondly, under the case-law of the Court of Justice the concurrent application of corrections is only allowed when the risk incurred by the Fund cannot be covered by analytical corrections alone; lastly, a disproportionate and unjustified result has been produced since, if the flat-rate correction alone had been applied, the amount to be taken away would have been less than that resulting from applying both financial corrections concurrently.

      (1)  OJ 2014 L 205, p. 62.


title: Case C-547/12 P: Judgment of the Court (Ninth Chamber) of 7 November 2013 — Hellenic Republic v European Commission (Appeal — EAGGF — ‘Guarantee’ section — Clearance of the accounts of the paying agencies of certain Member States concerning expenditure financed by the EAGGF — Amounts which are recoverable from the Hellenic Republic following failure to recover within the period prescribed — Distortion of evidence)

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/15

         Judgment of the Court (Ninth Chamber) of 7 November 2013 — Hellenic Republic v European Commission
   (Case C-547/12 P) (1)

   (Appeal - EAGGF - ‘Guarantee’ section - Clearance of the accounts of the paying agencies of certain Member States concerning expenditure financed by the EAGGF - Amounts which are recoverable from the Hellenic Republic following failure to recover within the period prescribed - Distortion of evidence)
   2014/C 9/22
   Language of the case: Greek

      Parties

      Appellant: Hellenic Republic (represented by: I. Chalkias and S. Papaïoannou, acting as Agents)

      Other party to the proceedings: European Commission (represented by: H. Tserepa-Lacombe and D.Triantafyllou, acting as Agents)

      Re:

   Appeal brought against the judgment of the General Court (Second Chamber) of 10 October 2012 in Case T-158/09 Greece v Commission by which the General Court partially rejected an action for annulment of Commission Decision C(2009) 810 final of 13 February 2009 on the financial treatment to be applied, in the context of clearance of expenditure financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), in certain cases of irregularity by operators

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 26, 26.1.2013.


title: Case F-7/08: Action brought on 14 January 2008 — Schönberger v Parliament

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/69

         Action brought on 14 January 2008 — Schönberger v Parliament
   (Case F-7/08)
   (2008/C 64/114)
   Language of the case: German
   Parties

      Applicant: Peter Schönberger (Luxembourg, Luxembourg) (represented by: O. Mader, lawyer)

      Defendant: European Parliament
   The subject-matter and description of the proceedings
   Annulment of the Parliament's decision not to award the applicant a third service point in the context of his periodical report for 2003.
   Form of order sought

               —

               Annul the defendant's decision of 15 January 2007 not to award the applicant a third service point in the context of his periodical report for 2003 and its decision of 16 October 2007 rejecting the applicant's complaint against the decision of 15 January 2007;

               —

               Order the defendant to pay the costs.


title: Case C-565/14 P: Order of the Court (Sixth Chamber) of 13 September 2016 — Romonta GmbH v European Commission (Appeal — Environment — Directive 2003/87/EC — Article 10a — Scheme for greenhouse gas emission allowance trading — Transitional rules for harmonised free allocation of emission allowances from 2013 — Decision 2011/278/EU — National implementation measures submitted by the Federal Republic of Germany — Rejection of the registration of certain installations on the lists of installations receiving free allocations of emission allowances — Provision relating to cases of ‘undue hardship’ — Implementing powers of the Commission)

text:
               5.12.2016

               EN

               Official Journal of the European Union

               C 454/7

      Order of the Court (Sixth Chamber) of 13 September 2016 — Romonta GmbH v European Commission
      (Case C-565/14 P) (1)

      ((Appeal - Environment - Directive 2003/87/EC - Article 10a - Scheme for greenhouse gas emission allowance trading - Transitional rules for harmonised free allocation of emission allowances from 2013 - Decision 2011/278/EU - National implementation measures submitted by the Federal Republic of Germany - Rejection of the registration of certain installations on the lists of installations receiving free allocations of emission allowances - Provision relating to cases of ‘undue hardship’ - Implementing powers of the Commission))
      (2016/C 454/15)
      Language of the case: German

         Parties

         Appellant: Romonta GmbH (represented by: I. Zenke and M.-Y. Vollmer, Rechtsanwälte)

         Other party to the proceedings: European Commission (represented by: E. White, C. Hermes and K. Herrmann, acting as Agents)

         Operative part of the order

                  1.

                  The appeal is dismissed.

                  2.

                  Romonta GmbH is ordered to bear its own costs and to pay those incurred by the European Commission.

         (1)  OJ C 46, 9.2.2015.


title: Case T-462/05: Judgment of the Court of First Instance of 10 December 2008 — JTEKT v OHIM (IFS) (Community trade mark — Application for a Community word mark IFS — Absolute grounds for refusal — Not descriptive — Article 7(1)(c) of Regulation (EC) No 40/94)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/26

         Judgment of the Court of First Instance of 10 December 2008 — JTEKT v OHIM (IFS)
   (Case T-462/05) (1)

   (Community trade mark - Application for a Community word mark IFS - Absolute grounds for refusal - Not descriptive - Article 7(1)(c) of Regulation (EC) No 40/94)
   (2009/C 32/47)
   Language of the case: English
   Parties

      Applicant: JTEKT Corp., formerly Toyoda Koki Kabushiki Kaisha (Aichi-ken, Japan) (represented by: initially by J. Wachinger and M. Zöbisch, and subsequently by M. De Zorti, M. Koch and T. Grimm, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 14 September 2005 (Case R 1157/2004-1) concerning an application to register the word mark IFS as a Community trade mark.
   Operative part of the judgment
   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 September 2005 (Case R 1157/2004-1);

               2.

               Orders OHIM to bear its own costs and to pay those incurred by JTEKT Corp.

      (1)  OJ C 74, 25.3.2006.


title: Case C-428/04: Judgment of the Court (Third Chamber) of  6 April 2006  — Commission of the European Communities v Republic of Austria (Failure to fulfil obligations — Directive 89/391/EEC — Measures to encourage improvements in the safety and health of workers at work — Failure to notify implementing measures — Incorrect or inadequate implementation — Articles 2(1), 7(3), 8(2), 11(2)(c) and (d), 13(2)(b) and 18)

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/13

         Judgment of the Court (Third Chamber) of 6 April 2006 — Commission of the European Communities v Republic of Austria
   (Case C-428/04) (1)

   (Failure to fulfil obligations - Directive 89/391/EEC - Measures to encourage improvements in the safety and health of workers at work - Failure to notify implementing measures - Incorrect or inadequate implementation - Articles 2(1), 7(3), 8(2), 11(2)(c) and (d), 13(2)(b) and 18)
   (2006/C 143/24)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: V. Kreuschitz, N. Yerrell and H. Kreppel, Agents)

      Defendant: Republic of Austria (represented by: C. Pesendorfer, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Incomplete and incorrect transposition of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, the Law on the Rules governing Teachers in the Länder (Landeslehrer-Dienstrechtsgesetz), contrary to the requirements of Article 18(1) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, and by failing to implement, or to implement in full, Article 2(1), in respect of compulsory education teachers in the Tyrol, and Articles 7(3), 8(2), 11(2)(c) and (d) and 13(2)(b) of that directive, the Republic of Austria has failed to fulfil its obligations under those provisions of the Directive;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Republic of Austria to bear its own costs and five sixths of the costs of the Commission of the European Communities.

      (1)  OJ C 314, 18.12.2004.


title: Case C-536/09: Judgment of the Court (Seventh Chamber) of 16 June 2011 (reference for a preliminary ruling from the Upravno sodišče Republike Slovenije (Slovenia)) — Marija Omejc v Republika Slovenija (Common agricultural policy — Community aid schemes — Integrated administration and control system — Regulation (EC) No 796/2004 — Fact of preventing an on-the-spot check from being carried out — Definition — Farmer not living on the holding — Farmer’s representative — Definition)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/7

         Judgment of the Court (Seventh Chamber) of 16 June 2011 (reference for a preliminary ruling from the Upravno sodišče Republike Slovenije (Slovenia)) — Marija Omejc v Republika Slovenija
   (Case C-536/09) (1)

   (Common agricultural policy - Community aid schemes - Integrated administration and control system - Regulation (EC) No 796/2004 - Fact of preventing an on-the-spot check from being carried out - Definition - Farmer not living on the holding - Farmer’s representative - Definition)
   2011/C 232/11
   Language of the case: Slovene

      Referring court

   Upravno sodišče Republike Slovenije

      Parties to the main proceedings

      Applicant: Marija Omejc

      Defendant: Republika Slovenija

      Re:

   Reference for a preliminary ruling — Upravno sodišče Republike Slovenije — Interpretation of Article 23(2) Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18) — Concept of prevention of an on-the-spot check — Concept of the representative of the farmer, when the farmer does not reside on the farm

      Operative part of the judgment

               1.

               The expression ‘prevents an on-the-spot check from being carried out’ in Article 23(2) of Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, corresponds to an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States, to the effect that it includes, in addition to deliberate conduct, any act or omission ascribable to the negligence of the farmer or his representative which has the consequence of preventing an on-the-spot check from being carried out in full, where the farmer or his representative has not taken all measures which may reasonably be required of him in order to ensure that that check may be carried out in full.

               2.

               The rejection of the aid applications concerned, under Article 23(2) of Regulation No 796/2004, does not depend on the farmer or his representative being adequately informed of the part of the on-the-spot check that requires his cooperation.

               3.

               The concept of ‘representative’, referred to in Article 23(2) of Regulation No 796/2004, which is an autonomous concept of European Union law that must be given a uniform interpretation in all the Member States, must be interpreted as meaning that it includes, when on-the-spot checks are carried out, any adult having proper capacity, who lives on the holding and to whom the farmer entrusts at least part of the management of that agricultural holding, in so far as the farmer has clearly expressed his wish to give that person authority in order to represent him and, therefore, undertakes to assume responsibility for all that person’s acts and omissions.

               4.

               Article 23(2) of Regulation No 796/2004 must be interpreted as meaning that a farmer who does not live on the agricultural holding which he runs is not required to appoint a representative who may, as a rule, be found at any given moment on that holding.

      (1)  OJ C 63, 13.3.2010.


title: Case C-241/0l: Reference for a preliminary ruling from the Conseil d'État, Judicial Section, by decision of that court of 28 May 2001 in the case of National Farmers' Union against the General Secretariat of the French Government

text:
1.9.2001               EN                     Official Journal of the European Communities                                           C 245/7
The Commission claims that the Court should:                             Reference for a preliminary ruling from the Conseil
                                                                         d’État, Judicial Section, by decision of that court of 28 May
1.    declare that by applying Paragraph 4(1) Nr. 2(b) of the            2001 in the case of National Farmers’ Union against the
      Mineralölsteuergesetz (law on the taxation of mineral                     General Secretariat of the French Government
      oils) the Federal Republic of Germany has failed to fulfil
      its obligations under Council Directive 92/81/EEC of                                           (Case C-241/0l)
      19 October 1992 on the harmonisation of the structures
      of excise duties on mineral oils (1) inasmuch as it fails to
      charge excise duty on all mineral oils intended to be used                                    (2001/C 245/13)
      for heating;
                                                                         Reference has been made to the Court of Justice of the
2.    order the Federal Republic of Germany to pay the costs.            European Communities by decision of the Conseil d’État
                                                                         (French Council of State) Judicial Section, of 28 May 2001,
                                                                         received at the Court Registry on 22 June 2001, for a
                                                                         preliminary ruling in the case of National Farmers’ Union
                                                                         against the General Secretariat of the French Government on
Pleas in law and main arguments                                          the following questions:
                                                                         (1) whether, having regard to the legislative nature of Com-
The action concerns the rule laid down in Paragraph 4(1)                       mission Decision 98/692/EC of 25 November 1998 (1)
Nr. 2(b) of the German Mineralölsteuergesetz, and in particular                and Commission Decision 99/514/EC of 23 July 1999 (2),
the interpretation given to it in the Decree of the Bundesminis-               and notwithstanding the expiry of the time limit for
ter der Finanzen (Federal Minister of Finances) of 2 February                  challenging them, a Member State may validly invoke
1998 (III A 1 — V 0355 — 10/97). Under that decree,                            significant changes in the factual or legal circumstances
‘combustion’ was to be understood as meaning only the                          occurring after the expiry of that time-limit, where the
intentional use of the thermal value of a material, i.e. the total             changes in question are such as to cast doubt on the
or partial combustion of mineral oil for the production of heat                decisions’ validity;
to be transmitted wholly or partially to another material. That
other material, to which heat is transmitted, must thereby               (2) whether, at the date of the decisions taken by the French
acquire the character of a new carrier of energy or heat. The                  authorities, the abovementioned Commission decisions
use of the new heat carrier as a means of heating justifies the                were valid, having regard to the precautionary principle
conclusion that the mineral oil used to produce that heat                      laid down in Article 174 of the Treaty establishing the
carrier has been heated. In accordance with that interpretation,               European Community;
there is no ‘heating’ where the material receiving the energy
from the combustion is itself subjected to heat with a view to
the manufacture of a product and it thereby loses its material           (3) whether a Member State may draw from the provisions
characteristics. The same must therefore apply where the                       of Article 30 EC (formerly Article 36 of the EC Treaty)
flame comes into direct contact with the material to be                        the power to prohibit imports of agricultural products
worked/transformed or destroyed. Nor can there be ‘combus-                     and live animals, inasmuch as Directives 89/662/EEC (3)
tion’ where a pilot light is maintained with mineral oil in order              and 90/425/EEC (4) cannot be regarded as harmonising
to burn harmful gas emissions or where mineral oil is mixed                    the measures needed in order to attain the specific
in a combustion chamber with emissions that are to be                          objective of protecting the health and life of humans
destroyed and is completely consumed.                                          provided for by that article.
                                                                         (1) Commission Decision 98/692/EC of 25 November 1998
According to the Commission, that interpretation infringes                   amending Decision 98/256/EC as regards certain emergency
Article 2(2) of Directive 92/81. The words used in that                      measures to protect against bovine spongiform encephalopathy
provision, namely ‘intended for use ... as heating fuel’ must be             (OJ L 328 of 4.12.1998, p. 28).
interpreted independently and in the light of Community law.             (2) Commission Decision 1999/514/EC of 23 July 1999 setting the
The wording, purpose and system of the directive support the                 date on which dispatch from the United Kingdom of bovine
interpretation that ‘combustion’ must be interpreted in broad                products under the date-based export scheme may commence by
terms and that any consumption of mineral oil for heating                    virtue of Article 6(5) of Council Decision 98/256/EC (OJ L 195 of
must be regarded as a combustion. In particular, it appears to               28.7.1999, p. 42).
be irrelevant whether the heat produced is used indirectly by            (3) Council Directive 89/662/EEC of 11 December 1989 concerning
means of a heat carrier for the warming of an object, or                     veterinary checks in intra-Community trade with a view to the
                                                                             completion of the internal market (OJ L 395 of 30.12.1989,
directly, in order to initiate or continue a chemical or industrial
                                                                             p. 13).
process.                                                                 (4) Council Directive 90/425/EEC of 26 June 1990 concerning
                                                                             veterinary and zootechnical checks applicable in intra- Com-
                                                                             munity trade in certain live animals and products with a view to
                                                                             the completion of the internal market (OJ L 224 of 18.8.1990,
(1) OJ L 316, 31.10.1992, p. 12.                                             p. 29).


title: Case T-263/16: Action brought on 25 May 2016 — Magnetrol International v Commission

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/32

         Action brought on 25 May 2016 — Magnetrol International v Commission
   (Case T-263/16)
   (2016/C 279/46)
   Language of the case: English

      Parties

      Applicant: Magnetrol International (Zele, Netherlands) (represented by: H. Gilliams and J. Bocken, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium;

               —

               in the alternative, annul Articles 2-4 of the Decision;

               —

               in any event, annul Articles 2-4 of that Decision in so far as these Articles (a) require recovery from entities other than the entities that have been issued an ‘excess profit ruling’ as defined in the Decision and (b) require the recovery of an amount equal to the beneficiary’s tax savings, without allowing Belgium to take into account an actual upwards adjustment by another tax administration;

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the Commission decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium alleges the existence of an aid scheme.

               2.

               Second plea in law, alleging a violation of Article 107 TFUE and of the duty to state reasons and manifest error of assessment in so far as the contested decision qualifies the purported scheme as a selected measure.

               3.

               Third plea in law, alleging a violation of Article 107 TFUE and of the duty to state reasons and manifest error of assessment in so far as the contested decision asserts that the purported scheme gives rise to an advantage.

               4.

               Fourth plea in law, alleging a violation of Article 107 TFUE, infringement of legitimate expectations, manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the contested decision orders Belgium to recover aid.


title: Case C-89/08 P: Appeal brought on 27 February 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Second Chamber, Extended Composition) delivered on 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/12

         Appeal brought on 27 February 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Second Chamber, Extended Composition) delivered on 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission
   (Case C-89/08 P)
   (2008/C 116/22)
   Languages of the case: French, English and Italian
   Parties

      Appellant: Commission of the European Communities (represented by: V. Di Bucci and N. Khan, Agents)

      Other parties to the proceedings: Ireland, French Republic, Italian Republic, Eurallumina SpA, Aughinish Alumina Ltd
   Form of order sought

               —

               set aside the judgment of the Court of First Instance of the European Communities (Second Chamber, Extended Composition) of 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission;

               —

               refer the cases back to the Court of First Instance for re-examination;

               —

               reserve the costs at both instances.

         Pleas in law and main arguments
   The appellant relies on six pleas in law in support of its appeal, alleging, on the one hand, the lack of jurisdiction of the Court of First Instance and procedural irregularities adversely affecting the interests of the Commission (first two pleas in law) and, on the other, breach of Community law in the area of State aid (third to sixth pleas).
   By its first plea, which has two parts, the appellant alleges the the Court of First Instance breached the principle that the subject-matter of an action is delimited in the application initiating proceedings and that it ruled ultra petita in so far as, at first instance, none of the appellants raised a plea in law alleging infringement of Article 1(b)(v) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (1). In addition, the plea raised of its own motion by the Court of First Instance is not a plea alleging failure to state reasons, which the Court may raise of its own motion, but a plea going to the substance, which is not based on the factual material included in the case-file.
   By its second plea, the appellant alleges that the Court of First Instance breached the general principles of audi alteram partem and respect for the rights of the defence, since it raised of its own motion a plea which had never been argued, nor even touched upon, in the course of the proceedings at first instance.
   By its third plea, which is comprised of three parts, the appellant claims that the Court of First Instance infringed Articles 230 EC and 253 EC in conjunction with Article 88 EC and the rules governing procedure for State aid cases.
   In that regard, the appellant claims, first, that the classification of the disputed measures as ‘new’ aid cannot be called into question in an action brought against the final decision of the Commission, as the Member States and the other interested parties could have contested, in relation to that point, the decision to open the formal investigation procedure. As the decision to open that procedure was not contested, it became definitive and, the final decision therefore constitutes, on that point, a merely confirmatory act which is not actionable.
   The appellant maintains, second, that the legality of an act should be assessed by reference to the factual and legal situation existing at the date on which the act was adopted. In the present case, nothing in the case-file suggests that the disputed national measures did not constitute aid at the time when they were introduced.
   Third, the appellant claims that, in any case, it is for the Member State and, where appropriate, for interested third parties — and not for the Commission — to prove that the aid is existing. In the absence of such proof, the Commission cannot be required to provide a statement of reasons in that regard.
   By its fourth plea, the appellant alleges infringement of Article 253 EC, in conjunction with Articles 87(1) EC and 88(1) EC, in so far as the Court of First Instance found a failure to state reasons in respect of the applicability of Article 1(b)(v) of Regulation No 659/1999, even though that article can apply only to measures which did not constitute aid at the time of their coming into force and that the Commission, in the decision which was contested at first instance, showed that the disputed measures have constituted aid ever since they were introduced. Moreover, none of the parties had shown that the common market had evolved so that measures which did not constitute aid at the time they came into force would become aid thereafter.
   By its fifth plea, the appellant alleges infringement of the same rules, and of Article 1(b)(v) of Regulation No 659/1999, in so far as the Court of First Instance imposed a specific obligation on the Commission to state reasons as regards the application of that article on account of statements made by the Council and the Commission. However, the appellant has shown, unequivocally, that in the light of the settled case-law of the Court, such statements cannot have any impact on the assessment of national measures regarding Community rules on State aid, the concepts of aid and existing aid being strictly objective concepts.
   By its sixth plea, the appellant claims, finally, that the Court of First Instance infringed Articles 88(1) and (2), and 253 EC, and Articles 4(4) and 6(1) of Regulation 659/1999 in so far as it annulled the decision of the Commission in its entirety, including that part of the decision which extended the formal investigation period beyond 31 December 2003. However, the Court of First Instance in no way explained how the alleged lack of reasoning in relation to the application of Article 1(b)(v) of Regulation No 659/1999 was sufficient to invalidate that aspect of the decision. Moreover, the Court of First Instance failed to have regard to the principle that, where a Member State does not provide any evidence to suggest that the disputed measures constitute existing aid, the Commission must treat those measures as new aid, within the procedural context laid down in Article 88(2) and (3) EC.

      (1)  OJ 1999 L 83, p. 1.


title: Case T-34/04: Actionbrought on 28 January 2004 by Plus WarenhandelsgesellschaftmbH against the Office for Harmonisation in the Internal Market (Trade Marksand Designs)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/68

         Action brought on 28 January 2004 by Plus Warenhandelsgesellschaft mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-34/04)
   (2004/C 106/139)
   Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 28 January 2004 by Plus Warenhandelsgesellschaft mbH, Mülheim an der Ruhr (Germany), represented by B. Piepenbrink, lawyer.
   Joachim Bälz and Friedmar Hiller, Stuttgart (Germany), were also parties to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the decision of the Second Board of appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 November 2003 (Case R 620/2002-2) and cancel the registration of the mark ‘Turkish Power’ sought in Application No 1 873 561;

               —

               order the Office to pay the costs.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               Joachim Bälz and Friedmar Hiller

               Community trade mark sought:

               The figurative mark ‘Turkish power’ for goods in Classes 3, 25, 28, 32, 33 and 34 (inter alia, tobacco, smokers' articles, matches) – Application No 1 873 561

               Proprietor of mark or sign cited in the opposition proceedings:

               The applicant (formerly Tengelmann Warenhandelsgesellschaft)

               Mark or sign cited in opposition.

               The German word mark ‘POWER’ for goods in Class 34 (inter alia, tobacco, smokers' articles, matches)

               Decision of the Opposition Division:

               Rejection of the opposition

               Decision of the Board of Appeal:

               Dismissal of the applicant's appeal

               Pleas in law:

                           —

                           The Board of Appeal erred in law in its application of Article 8(1)(b) of Regulation (EC) No 40/94.

                           —

                           Not only does the mark cited in opposition have, in itself, normal distinctive character but it has also been reinforced by extensive use as a mark.

                           —

                           There is a likelihood of confusion given that the distinctive components of the opposed marks are identical.


Avis juridique important

|

E1994P0006

Action brought on 13 June 1994 by Reinhard Helmers against the EFTA Surveillance Authority and the Kingdom of Sweden (Case E-6/94)

Official Journal C 051 , 02/03/1995 P. 0005 - 0005

Action brought on 13 June 1994 by Reinhard Helmers against the EFTA Surveillance Authority and the Kingdom of Sweden (Case E-6/94) (95/C 51/06)An action against the EFTA Surveillance Authority and the Kingdom of Sweden was brought before the EFTA Court on 13 June 1994 by Reinhard Helmers, residing in Lund, Sweden.The applicant claims that the Court should:1. order the Government of Sweden to:(a) and its discrimination against the applicant;(b) reinstal the applicant in his original position at Lund University;(c) pay the applicant accumulated compensation in accordance with a collective contract;(d) pay the appropriate social insurance and pension contributions; and(e) pay interest in accordance with the Swedish law on interest;2. declare that the EFTA Surveillance Authority has infringed Article 37, second and third paragraphs, of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by failing to decide on the applicant's complaint within two months of it being lodged with the Authority;3. declare void the decision of the EFTA Surveillance Authority of 20 July 1994 to close the applicant's case against the Governement of Sweden concerning unjustified discrimination as being outside the scope of the Authority's duty of surveillance, in accordance with Article 36, fourth paragraph, of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.


title: Case T-383/14: Order of the General Court of 1 December 2016 — Europower v Commission (Public works contracts — Tendering procedure — Construction of a gas-turbine tri-generation power plant and associated maintenance — Rejection of a tenderer’s bid — Withdrawal of the contested act — No need to adjudicate)

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/33

         Order of the General Court of 1 December 2016 — Europower v Commission
   (Case T-383/14) (1)

   ((Public works contracts - Tendering procedure - Construction of a gas-turbine tri-generation power plant and associated maintenance - Rejection of a tenderer’s bid - Withdrawal of the contested act - No need to adjudicate))
   (2017/C 022/45)
   Language of the case: Italian

      Parties

      Applicant: Europower SpA (Milan, Italy) (represented by: G. Cocco and L. Salomoni, lawyers)

      Defendant: European Commission (represented initially by: L. Cappelletti, F. Moro and L. Di Paolo, and subsequently by L. Di Paolo and F. Moro, acting as Agents)

      Intervener in support of the defendant: CPL Concordia Soc. coop. (Concordia Sulla Secchia, Italy) (represented by: A. Penta, lawyer)

      Re:

   Action, first, on the basis of Article 263 TFEU and seeking the annulment of the Commission decision of 3 April 2014 rejecting the tender submitted by the applicant in the context of the call for tenders JRC IPR 2013 C04 0031 OC, concerning the construction of a gas-turbine tri-generation power plant and associated maintenance (OJ 2013/S 137-237146) on the site of the Joint Research Centre (JRC) at Ispra (Italy), of the Commission decision awarding the contract to CPL Concordia, of any other related prior or subsequent act including the actual decision approving the contract and the contract itself, and of the Commission decision refusing to disclose to the applicant the documents in the call for tenders and, secondly, on the basis of Article 268 TFEU and seeking compensation in respect of the harm allegedly suffered by the applicant.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the present action.

               2.

               The form of order sought by CPL Concordia Soc. coop. seeking dismissal of the application for a declaration that there is no need to adjudicate is rejected as manifestly inadmissible.

               3.

               The European Commission shall bear its own costs and shall pay those incurred by Europower SpA, including those relating to the interlocutory proceedings.

               4.

               CPL Concordia shall bear its own costs, relating both to the present proceedings and to the interlocutory proceedings.

      (1)  OJ C 235, 21.7.2014.


title: Case C-41/08: Action brought on 5 February 2008 — Commission of the European Communities v Czech Republic

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/17

         Action brought on 5 February 2008 — Commission of the European Communities v Czech Republic
   (Case C-41/08)
   (2008/C 92/32)
   Language of the case: Czech
   Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek and P. Ondrůšek, acting as Agents)

      Defendant: Czech Republic
   Form of order sought
   The Commission asks the Court to:

               —

               declare that, in so far as the Czech Republic has failed to adopt (all) the laws, regulations and administrative provisions necessary to comply with Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (1), or in any case has failed to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 12 of that directive and Article 54 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded;

               —

               declare that, in so far as the Czech Republic has failed to adopt (all) the laws, regulations and administrative provisions necessary to comply with Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes (2), or in any case has failed to inform the Commission thereof, the Czech Republic has failed to fulfil its obligations under Article 3 of that directive and Article 54 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded;

               —

               order the Czech Republic to pay the costs.

         Pleas in law and main arguments
   The period prescribed for implementing the directive in the domestic legal order expired on 30 April 2004.

      (1)  OJ 1986 L 225, p. 40.

      (2)  OJ 1997 L 46, p. 20.


title: Case C-4/02: Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order of 12 November 2001 in the case of Hilde Schönheit against the City of Frankfurt am Main

text:
C 109/18              EN                   Official Journal of the European Communities                                        4.5.2002
Appeal brought on 6 June 2001 by G. Ojha against the                  Reference for a preliminary ruling by the Landesgericht
judgment delivered on 6 arch 2001 by the First Chamber                für Zivilrechtsachen Vienna by order of that court of
of the Court of First Instance of the European Communi-               12 October 2001 in the case of Prof. Monika Herbstrith v
ties in Case T-77/99 Ojha v Commission of the European                                      Republic of Austria
                         Communities
                                                                                (Case C-430/01)
                       (Case C-284/01 P)
                                                                                (2002/C 109/31)
                        (2002/C 109/29)
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Landesgericht für
                                                                      Zivilrechtssachen Wien (Vienna Higher Civil Court) of
An appeal against the judgment delivered on 6 March 2001              12 October 2001 which was received at the Court Registry on
by the First Chamber of the Court of First Instance of the            6 November 2001, for a preliminary ruling in the case of Prof.
European Communities in Case T-77/99 (1)Ojha v Commission             Monika Herbstrith v Republic of Austria on the following
of the European Communities was brought before the Court              questions:
of Justice of the European Communities on 6 June 2001 by
G. Ojha. By order of 22 November 2001 the Court of Justice            1.    Did the conduct described above, viz. the failure to
(First Chamber) dismissed the appeal and ordered Mr Ojha to                 appoint a candidate despite her professional qualifi-
bear his own costs.                                                         cations, infringe a provision of directly applicable Com-
                                                                            munity law and if so, which provision?
                                                                      2.    If the answer to question 1 is in the affirmative:
(1) OJ C 161 of 2.6.2002, p. 16.
                                                                            Does the infringed provision of directly applicable Com-
                                                                            munity law give the plaintiff in the original proceedings a
                                                                            legal right?
                                                                      3.    If the answer to question 2 is in the affirmative:
                                                                            Does the request for a preliminary ruling provide the
                                                                            European Court of Justice with all the information it needs
                                                                            to determine whether in the circumstances described as
Appeal brought on 23 July 2001 by Smanor SA and                             to the original proceedings the national body clearly and
Monique and Hubert Ségaud against the order made on                         significantly exceeded its discretionary powers, or does it
4 July 2001 by the First Chamber of the Court of First                      leave it to the Austrian court requesting the preliminary
Instance of the European Communities in Case T-123/01                       ruling to answer this question?
between the parties bringing the present appeal and the
        Commission of the European Communities
                       (Case C-291/01 P)
                        (2002/C 109/30)                               Reference for a preliminary ruling by the Verwaltungsge-
                                                                      richt Frankfurt am Main by order of 12 November 2001
                                                                      in the case of Hilde Schönheit against the City of Frankfurt
                                                                                am Main
An appeal against the order made on 4 July 2001 by the First                                    (Case C-4/02)
Chamber of the Court of First Instance of the European
Communities in Case T-123/01 between the parties bringing
the present appeal and the Commission of the European                                         (2002/C 109/32)
Communities was brought before the Court of Justice of the
European Communities on 23 July 2001 by Smanor SA and
Monique and Hubert Ségaud. By order of 22 November 2001
the Court of Justice (First Chamber) dismissed the appeal and         Reference has been made to the Court of Justice of the
ordered each of the applicants to bear their own costs.               European Communities by order of the Verwaltungsgericht
                                                                      (Administrative Court) Frankfurt am Main of 12 November
                                                                      2001, received at the Court Registry on 9 January 2002, for a
                                                                      preliminary ruling in the case of Hilde Schönheit against the
                                                                      City of Frankfurt am Main on the following questions:
 ---pagebreak--- 4.5.2002              EN                     Official Journal of the European Communities                                        C 109/19
1.   Is the grant of an old-age pension under the provisions            6.   Can the discrimination which may initially be established
     of the German law on pensions for civil servants subject                in regard to calculation of the pensions of older part-time
     to Article 119 of the EC Treaty, now superseded by                      civil servants as a proportion of final salary be justified in
     Article 141(1) and (2) EC, in conjunction with Directive                the nature of a legitimate aim as necessary where that
     86/378/EEC (1), or to the provisions of Directive                       discrimination is intended, as it were, to offset a minimum
     79/7/EEC (2)?                                                           pension acquired during the first ten years of service with
                                                                             no account being taken of the reduction in working time,
                                                                             although the benefits of civil servants’ pensions are met
                                                                             solely from general budgetary resources without any
                                                                             contribution by female officials? As justification for
                                                                             necessity, if appropriate on an ancillary basis, can refer-
                                                                             ence be made to the fact that pension benefits are in the
2.   Do benefits under the law on pensions for civil servants                nature of maintenance support and to their characteristic
     constitute a scheme under Article 6(1)(h) of Directive                  as a traditional principle of the professional civil service
     86/378/EEC with the consequence that, irrespective of                   under Article 33(5) of the Basic Law (Grundgesetz)?
     financing by budgetary resources, it is legitimate to take
     into account actuarial factors or analogous matters in
     order to differentiate levels of benefit?
3.   Are the matters required to justify the indirect discrimi-
     nation on the ground of sex initially established under
                                                                        7.   If such discrimination is deemed to be necessary as
     Article 2(2) of Directive 97/80/EC (3) applicable in the
                                                                             determined under Question 6, can a reduction in the rate
     case of Article 119 of the EC Treaty (now Article 141(1)
                                                                             of pension for older female and male officials with
     and (2) EC, irrespective of whether a question arises in
                                                                             entitlement to benefits far above the minimum pension
     judicial proceedings as to relaxation of the burden of
                                                                             in respect of at least 10 reckonable years of service be
     proof or whether that question is of no significance under
                                                                             still regarded as reasonable (proportionate), if the amount
     the principle applicable to judicial proceedings of official
                                                                             of such reduction is calculated on a linear basis by
     establishment of facts?
                                                                             reference not only to the extent of reduced working time
                                                                             but also to the duration of full-time employment in
                                                                             relation to that of part-time employment although,
                                                                             for older female and male civil servants, the possibly
                                                                             disproportionately favourable grant of a minimum pen-
                                                                             sion acquired without account being taken of the
4.   Is an apparently neutral criterion in a legal provision to              reduction of their working time is no longer possible?
     be judged as to its necessity solely on the basis of the                Would it not in this context be (more) reasonable to
     motives and grounds for enactment which are apparent                    abandon the disproportionate reduction in the rate of
     from the legislative process, in particular where the                   pension for lifelong and more senior female and male
     existence of such grounds is documented in the procedure                officials and instead for there merely to be a proportionate
     leading to adoption of the legislation and demonstrably                 reduction in the minimum pension?
     constituted the relevant reason for the enactment?
5.   In so far as regard may in addition (Q.4) also be had to
     other legitimate aims of the legislation as justificatory
     grounds within the meaning of Article 2(2) of Directive
     97/80/EC, or under the case law of the Court of Justice            8.   Where the numbers of budgetary and established posts
     on the establishment of indirect discrimination on the                  remain unchanged, can additional personnel costs
     ground of sex, can a national court in that connection of               incurred in the recruitment of additional persons by an
     its own motion establish legitimate aims for a provision                expansion of part-time employment, in contrast to the
     of law and in a proper case use them to justify a                       hitherto predominant full-time employment, justify the
     distinguishing criterion, in particular where its reasoning             necessity of imposing these costs on part-time employees
     in that regard is founded on considerations inherent                    by way of a disproportionate reduction in their rate of
     in the legal system? Can it also do so, where such                      pension, as occurred under the second and third clauses
     considerations are not discernibly reflected in the grounds             of the first sentence of Paragraph 14(1) of the BeamtenVG
     for the enactment documented in the course of the                       in the version thereof applicable until 31 December
     legislative procedure?                                                  1991?
 ---pagebreak--- C 109/20              EN                     Official Journal of the European Communities                                        4.5.2002
9.   Is it reasonable for such costs to be taken into account as        4.   Is an apparently neutral criterion in a legal provision to
     a matter of necessity (Q. 8) if the burden of additional                be judged as to its necessity solely on the basis of the
     staff-administration costs is imposed solely on earlier                 motives and grounds for enactment which are apparent
     part-time employees, hence predominantly women, even                    from the legislative process, in particular where the
     though the expansion of part-time employment oppor-                     existence of such grounds is documented in the procedure
     tunities at the time of the legislative amendment in that               leading to adoption of the legislation and demonstrably
     regard as a matter of priority pursued the objective of                 constituted the relevant reason for the enactment?
     reducing general unemployment by the partial absorption
     of surplus male and female applicants to the public
     service?
                                                                        5.   In so far as regard may in addition (Q.4) also be had to
                                                                             other legitimate aims of the legislation as justificatory
(1) OJ L 225, p. 40.                                                         grounds within the meaning of Article 2(2) of Directive
(2) OJ L 6, p. 24.                                                           97/80/EC, or under the case law of the Court of Justice
(3) OJ L 14, p. 6.                                                           on the establishment of indirect discrimination on the
                                                                             ground of sex, can a national court in that connection of
                                                                             its own motion establish legitimate aims for a provision
                                                                             of law and in a proper case use them to justify a
                                                                             distinguishing criterion, in particular where its reasoning
                                                                             in that regard is founded on considerations inherent
                                                                             in the legal system? Can it also do so, where such
                                                                             considerations are not discernibly reflected in the grounds
Reference for a preliminary ruling by the Verwaltungsge-                     for the enactment documented in the course of the
richt Frankfurt am Main by order of 12 November 2001                         legislative procedure?
      in the case of Silvia Becker against Land Hessen
                          (Case C-5/02)                                 6.   Can the discrimination which may initially be established
                                                                             in regard to calculation of the pensions of older part-time
                        (2002/C 109/33)                                      civil servants as a proportion of final salary be justified in
                                                                             the nature of a legitimate aim as necessary where that
                                                                             discrimination is intended, as it were, to offset a minimum
                                                                             pension acquired during the first ten years of service with
                                                                             no account being taken of the reduction in working time,
Reference has been made to the Court of Justice of the
                                                                             although the benefits of civil servants’ pensions are met
European Communities by order of the Verwaltungsgericht
                                                                             solely from general budgetary resources without any
(Administrative Court) Frankfurt am Main of 12 November
                                                                             contribution by female officials? As justification for
2001, received at the Court Registry on 10 January 2002, for
                                                                             necessity, if appropriate on an ancillary basis, can refer-
a preliminary ruling in the case of Silvia Becker against Land
                                                                             ence be made to the fact that pension benefits are in the
Hessen on the following questions:
                                                                             nature of maintenance support and to their characteristic
                                                                             as a traditional principle of the professional civil service
1.   Is the grant of an old-age pension under the provisions                 under Article 33(5) of the Basic Law (Grundgesetz)?
     of the German law on pensions for civil servants subject
     to Article 119 of the EC Treaty, now superseded by
     Article 141(1) and (2) EC, in conjunction with Directive
     86/378/EEC (1), or to the provisions of Directive
                                                                        7.   If such discrimination is deemed to be necessary as
     79/7/EEC (2)?
                                                                             determined under Question 6, can a reduction in the rate
                                                                             of pension for older female and male officials with
2.   Do benefits under the law on pensions for civil servants                entitlement to benefits far above the minimum pension
     constitute a scheme under Article 6(1)(h) of Directive                  in respect of at least 10 reckonable years of service be
     86/378/EEC with the consequence that, irrespective of                   still regarded as reasonable (proportionate), if the amount
     financing by budgetary resources, it is legitimate to take              of such reduction is calculated on a linear basis by
     into account actuarial factors or analogous matters in                  reference not only to the extent of reduced working time
     order to differentiate levels of benefit?                               but also to the duration of full-time employment in
                                                                             relation to that of part-time employment although,
3.   Are the matters required to justify the indirect discrimi-              for older female and male civil servants, the possibly
     nation on the ground of sex initially established under                 disproportionately favourable grant of a minimum pen-
     Article 2(2) of Directive 97/80/EC (3) applicable in the                sion acquired without account being taken of the
     case of Article 119 of the EC Treaty (now Article 141(1)                reduction of their working time is no longer possible?
     and (2) EC, irrespective of whether a question arises in                Would it not in this context be (more) reasonable to
     judicial proceedings as to relaxation of the burden of                  abandon the disproportionate reduction in the rate of
     proof or whether that question is of no significance under              pension for lifelong and more senior female and male
     the principle applicable to judicial proceedings of official            officials and instead for there merely to be a proportionate
     establishment of facts?                                                 reduction in the minimum pension?


title: Case C-124/03: Reference for a preliminary ruling by the College van Beroep voor het bedrĳfsleven by judgment of that Court of 11 March 2003 in the case of (1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal Expeditiebedrĳf BV against Rĳksdienst voor de Keuring van Vee en Vlees

text:
C 124/8                EN                        Official Journal of the European Union                                           24.5.2003
listing (including in the first category the listing of priority         2(b) In the event that Article 2(4) of Directive 92/46/EEC also
sites) with the result that, in order to ensure the effectiveness              refers to semifinished products, according to which
of the directive, where a Member State identifies a site of                    criteria must it be determined whether milk or a milk
Community importance sustaining priority natural habitat                       product forms an essential part of a product, either in
types or species, there must be considered to be an obligation                 terms of quantity or for characterization of those prod-
to carry out an assessment of plans and projects with a                        ucts, as referred to in Article 2(4) of Directive 92/46/EEC?
significant effect on the site even before the Commission draws
up the draft list of sites or adopts the final version of that list
pursuant to Article 21 of the directive and, in fact, with effect        (1 ) OJ L 268 [1992], p. 1.
from the drawing up of the national list?
( 1) OJ L 206 of 22.7.1992, p. 7.
                                                                         Action brought on 20 March 2003 by the Commission of
                                                                         the European Communities against the Federal Republic
                                                                                of Germany
                                                                                (Case C-126/03)
Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court                                            (2003/C 124/14)
of 11 March 2003 in the case of (1) Artrada (Freezone)
NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal
Expeditiebedrijf BV against Rijksdienst voor de Keuring
                        van Vee en Vlees                                 An action against the Federal Republic of Germany was
                                                                         brought before the Court of Justice of the European Communi-
                                                                         ties on 20 March 2003 by the Commission of the European
                         (Case C-124/03)                                 Communities, represented by Klaus Wiedner, of the Com-
                                                                         mission’s Legal Service, acting as Agent, with an address for
                         (2003/C 124/13)                                 service in Luxembourg.
                                                                         The Commission claims that the Court should:
Reference has been made to the Court of Justice of the                   —     Declare that, by reason of the fact that the contract for
European Communities by judgment of the College van Beroep                     waste transport concluded by the City of Munich was
voor het bedrijfsleven (Administrative Court for Trade and                     awarded without compliance with the notification
Industry) of 11 March 2003, received at the Court Registry on                  requirements laid down in Article 8, in conjunction with
20 March 2003, for a preliminary ruling in the case of                         Articles 15(2) and 16(1), of Directive 92/50 (1), the
(1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac.                       Federal Republic of Germany has failed to fulfil its
Meisner Internationaal Expeditiebedrijf BV against Rijksdienst                 obligations under that directive; and
voor de Keuring van Vee en Vlees (Netherlands Livestock and
Meat Inspectorate) on the following questions:                           —     Order the Federal Republic of Germany to pay the costs
                                                                               of the proceedings.
1(a) Must the term ‘milk for the manufacture of milk-based
      products’ in Article 2(2) of Directive 92/46/EEC (1) be
      interpreted as meaning that it (also) includes milk con-
      stituents of a product which also contains other non-milk          Pleas in law and main arguments
      constituents and where the milk constituent cannot be
      separated from the non-milk constituents?
                                                                         If — as is the case with the Municipality of the City of Munich
                                                                         — the conditions for the existence of a body governed by
1(b) If the answer to question 1(a) is affirmative: must                 public law are met, there is no need under the directive to
      Article 22 of Directive 92/46/EEC be interpreted as                draw a distinction, in the case of every requested provision of
      meaning that in the case of imports from non-Member                services, as to whether such services are provided in the general
      States that directive is applicable only to the milk               interest and are commercial in nature. It is for that reason
      constituent of a product and thus not to the product of            irrelevant that, in the present case, the City of Munich, in
      which it is a constituent?                                         connection with the provision of a service for a third party,
                                                                         burns waste in its own incineration plant and does not effect
2(a) Does the concept of ‘milk-based products’ in Article 2(4)           the transport to that plant itself but relies on a private
      of Directive 92/46/EEC concern only finished products              undertaking to do so. If a public body tenders successfully for
      or also semifinished products which must undergo further           a contract but is obliged to subcontract out certain services in
      processing before they can be offered for sale to the              order to ensure provision of the overall service, that public
      consumer?                                                          body must apply the procedures set out in Directive 92/50.


title: Case C-383/02: Action brought on 24 October 2002 by the Commission of the European Communities against the Italian Republic

text:
7.12.2002              EN                   Official Journal of the European Communities                                       C 305/17
could harm the environment, and in particular without risk to          2002, received at the Court Registry on 23 October 2002, for
water, air, soil and plants and animals, without causing a             a preliminary ruling in the case of Association Comité
nuisance through noise or odours and without adversely                 économique régional agricole fruits et légumes de Bretagne
affecting the countryside or places of special interest.               (CERAFEL) against François Faou and GAEC de Kerlidou on
                                                                       the following question:
In the present case, the Italian Republic has not adopted any          Can a Member State, without infringing the principle of non-
appropriate measure to ensure that waste deposited in the Via          discrimination, apply Article 15b(1) and (8) of Regulation
Granciara disposal site in Castelliri is recovered or disposed         (EEC) No 1035/72 of the Council of 18 May 1972 (1) by
of without endangering human health and without using                  making certain production and marketing rules mandatory for
procedures or methods which could harm the environment.                producers who are established in the district of a Board and
Consequently, it has failed to fulfil its obligations under            who are not members of it and by making them liable for all
Article 4 of the directive.                                            or part of the fees paid by member producers, without
                                                                       distinguishing according to whether or not those non-member
                                                                       producers are part of a production sector regulated by law,
Article 8 of the directive provides that Member States are to          which, as in the case of the organic production sector, would
ensure that any holder of waste has it handled by a private or         make the Board’s measures irrelevant or of merely occasional
public waste collector or by an undertaking which carries out          and marginal interest for them.
the operations listed in Annex II A or B of the directive, or
recovers or disposes of it himself in accordance with the
provisions of the directive. To that end, the owners or                (1 ) Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on
managers of disposal sites are regarded as holders within the               the common organization of the market in fruit and vegetables
meaning of Article 8.                                                       (OJ L 118 of 20.5.1972, p. 1).
The Italian Republic has failed to adopt the necessary measures
to ensure that the holder of waste deposited in the disposal
site at Castelliri (Frosinone) has such waste handled by a
private or public collector or an undertaking carrying out the
operations provided for in Annex II A or II B to the directive.
Consequently, it has failed to fulfil its obligations under
Article 8 of the directive.
                                                                       Action brought on 24 October 2002 by the Commission
                                                                       of the European Communities against the Italian Republic
( 1) OJ L 194 of 25.7.1975, p. 39.
( 2) OJ L 78 of 26.3.1991, p. 32.
                                                                                (Case C-383/02)
                                                                                (2002/C 305/32)
                                                                       An action against the Italian Republic was brought before the
Reference for a preliminary ruling by the Cour d’appel de
                                                                       Court of Justice of the European Communities on 24 October
Caen, chambres réunies by judgment of that Court of
                                                                       2002 by the Commission of the European Communities,
17 October 2002 in the case of Association Comité
                                                                       represented by Minas Konstantinidis and Roberto Amorosi,
économique régional agricole fruits et légumes de
                                                                       acting as Agents.
Bretagne (CERAFEL) against François Faou and GAEC de
                              Kerlidou
                                                                       The applicant claims that the Court should:
                         (Case C-381/02)
                                                                       1.     declare that, by failing to adopt the necessary measures
                         (2002/C 305/31)                                      to ensure that waste deposited in the disposal sites at
                                                                              Rodano (Milan) is recovered or disposed of without
                                                                              endangering human health and without using procedures
                                                                              or methods which could harm the environment, and by
                                                                              failing to adopt the measures necessary to ensure that the
Reference has been made to the Court of Justice of the                        holder of waste deposited in the disposal sites at Rodano
European Communities by judgment of the Cour d’appel de                       (Milan) has such waste handled by a private or public
Caen (Court of Appeal, Caen) chambres réunies of 17 October                   collector or an undertaking carrying out the operations
 ---pagebreak--- C 305/18               EN                       Official Journal of the European Communities                                    7.12.2002
      provided for in Annex II A or II B to Directive 75/442/                      Removal from the register of Case C-246/99 ( 1)
      EEC (1), as amended by Directive 91/156/EEC (2), or
      himself recovers or disposes of such waste, the Italian
      Republic has failed to fulfil its obligations under Articles 4                                (2002/C 305/33)
      and 8 of that directive;
2.    order the Italian Republic to pay the costs.
                                                                           By order of 11 September 2002 the President of the Court of
                                                                           Justice of the European Communities ordered the removal
                                                                           from the register of Case C-246/99: Commission of the
                                                                           European Communities v Kingdom of Denmark.
Pleas in law and main arguments
                                                                           (1 ) OJ C 246 of 28.8.1999.
The first paragraph of Article 4 of the directive provides that
Member States are to adopt the necessary measures to ensure
that waste is recovered or disposed of without endangering
human health and without using processes or methods which
could harm the environment, and in particular without risk to
water, air, soil and plants and animals, without causing a
nuisance through noise or odours and without adversely
                                                                                Removal from the register of Case C-434/00 ( 1)
affecting the countryside or places of special interest.
                                                                                (2002/C 305/34)
In the present case, the Italian Republic has not adopted any
appropriate measure to ensure that waste deposited in the
Rodano disposal site is recovered or disposed of without
endangering human health and without using procedures or                   By order of 24 September 2002 the President of the Court of
methods which could harm the environment. Consequently, it                 Justice of the European Communities ordered the removal
has failed to fulfil its obligations under Article 4 of the                from the register of Case C-434/00 (Reference for a preliminary
directive.                                                                 ruling by the Hoge Raad der Nederlanden): G. Cuomo.
                                                                           (1 ) OJ C 28 of 27.1.2001.
In addition, Article 8 of the directive provides that Member
States are to ensure that any holder of waste has it handled by
a private or public waste collector or by an undertaking which
carries out the operations listed in Annex II A or B of the
directive, or recovers or disposes of it himself in accordance
with the provisions of the directive. To that end, the owners
or managers of disposal sites are regarded as holders within
the meaning of Article 8.
                                                                                Removal from the register of Case C-120/01 ( 1)
The Italian Republic has failed to adopt the necessary measures
to ensure that the holder of waste deposited in the Rodano                                          (2002/C 305/35)
disposal site has such waste handled by a private or public
collector or an undertaking carrying out the operations
provided for in Annex II A or II B to the directive. Conse-
quently, it has failed to fulfil its obligations under Article 8 of        By order of 9 September 2002 the President of the Court of
the directive.                                                             Justice of the European Communities ordered the removal
                                                                           from the register of Case C-120/01: Commission of the
                                                                           European Communities v Ireland.
( 1) OJ L 194 of 25.7.1975, p. 39.
( 2) OJ L 78 of 26.3.1991, p. 32.
                                                                           (1 ) OJ C 150 of 19.5.2001.


title: Case T-364/06: Action brought on 6 December 2006 — Xinhui Alida Polythene v Council

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/28

         Action brought on 6 December 2006 — Xinhui Alida Polythene v Council
   (Case T-364/06)
   (2007/C 20/43)
   Language of the case: English
   Parties

      Applicant: Xinhui Alida Polythene Ltd (Xinhui, China) (represented by: C. Munro, Solicitor)

      Defendant: Council of the European Union
   Form of order sought

               —

               Annulment, pursuant to Article 230 of the Treaty of the European Union, of Council Regulation 1425/2006 of 25 September 2006 imposing a definitive anti-dumping duty on imports of certain plastic sacks and bags originating in the People's Republic of China and Thailand, and terminating the proceeding on imports of certain plastic sacks and bags originating in Malaysia; and

               —

               order the Council to pay the costs of the appellant in the present proceedings.

         Pleas in law and main arguments
   The applicant seeks the annulment of Council Regulation (EC) No 1425/2006 of 25 September 2006 imposing a definitive anti-dumping duty on imports of certain plastic sacks and bags originating in the People's Republic of China and Thailand, and terminating the proceeding on imports of certain plastic sacks and bags originating in Malaysia (1).
   The applicant contends that the Council has infringed essential procedural requirements and misused its powers by adopting the contested regulation without properly considering the underlying proceedings conducted by the Commission.
   According to the applicant, the Commission i) did not properly examine the standing of the complainants and/or failed to make a proper determination of their standing, ii) considered irrelevant information and/or failed to take available information into account, iii) made an inadequate assessment of the injury to the relevant Community industry, iv) failed to establish that there was a Community interest in imposing duties on imports, and v) infringed the applicant's rights of defence.
   The applicant alleges that this amounts to an abuse of powers.

      (1)  OJ 2006 L 270, p. 4.


title: Case T-490/15: Action brought on 21 August 2015 — SGP Rechtsanwälte v OHIM — Verlag Friedrich Oetinger (tolino)

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/44

         Action brought on 21 August 2015 — SGP Rechtsanwälte v OHIM — Verlag Friedrich Oetinger (tolino)
   (Case T-490/15)
   (2015/C 337/49)
   Language in which the application was lodged: German

      Parties

      Applicant: SGP Rechtsanwälte Hero, Langbein, Zwecker PartGmbB (Munich, Germany) (represented by: K. Köklü, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Verlag Friedrich Oetinger GmbH (Hamburg, Germany)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: The applicant

      Trade mark at issue: Community word mark ‘tolino’ — Application for registration No 11 651 288

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 11 June 2015 in Case R 2042/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-571/14: Order of the President of the Court of 11 April 2016 (request for a preliminary ruling from the Rechtbank Noord-Holland — Netherlands) — Timberland Europe BV v Inspecteur van de Belastingdienst, kantoor Rotterdam Rijnmond

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/23

         Order of the President of the Court of 11 April 2016 (request for a preliminary ruling from the Rechtbank Noord-Holland — Netherlands) — Timberland Europe BV v Inspecteur van de Belastingdienst, kantoor Rotterdam Rijnmond
   (Case C-571/14) (1)

   (2016/C 279/31)
   Language of the case: Dutch
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 73, 2.3.2015.


title: Case T-88/05: Judgment of the Court of First Instance of 8 February 2007 — Quelle v OHIM — Nars Cosmetics (NARS) (Community trade mark — Opposition proceedings — Application for the figurative Community trade mark NARS — Earlier figurative national marks including the word element MARS — Relative ground for refusal — Likelihood of confusion — Absence of similarity between the signs — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/36

         Judgment of the Court of First Instance of 8 February 2007 — Quelle v OHIM — Nars Cosmetics (NARS)
   (Case T-88/05) (1)

   (Community trade mark - Opposition proceedings - Application for the figurative Community trade mark NARS - Earlier figurative national marks including the word element MARS - Relative ground for refusal - Likelihood of confusion - Absence of similarity between the signs - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2007/C 82/80)
   Language of the case: English
   Parties

      Applicant: Quelle AG (Fürth, Germany) (represented by: H. Lindner, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Nars Cosmetics, Inc. (New York, United States) (represented by: M. de Justo Bailey, lawyer)
   Re:
   Action for annulment of the decision of the Second Board of Appeal of OHIM of 17 December 2004 (Case R 379/2004-2) relating to opposition proceedings between Quelle AG and Nars Cosmetics, Inc.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 155, 25.6.2005.


title: Case C-323/10: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 5 July 2010 — Gebr. Stolle GmbH & Co. KG v Hauptzollamt Hamburg-Jonas

text:
               9.10.2010

               EN

               Official Journal of the European Union

               C 274/5

         Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 5 July 2010 — Gebr. Stolle GmbH & Co. KG v Hauptzollamt Hamburg-Jonas
   (Case C-323/10)
   ()
   2010/C 274/06
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: Gebr. Stolle GmbH & Co. KG

      Defendant: Hauptzollamt Hamburg-Jonas

      Question referred

   Does a carcase in subheading 0207 12 90 (1) have to be completely drawn (= without residue), so that it is detrimental for tariff classification purposes if, after going through a mechanical gutting process, a carcase is still left, for example, with part of the guts or trachea?

      (1)  OJ 1999 L 338, p. 1.


title: Reference for a preliminary ruling by the Amtsgericht, Heinsberg, by decision of that court of 13 February 1998 in the proceedings for an administrative fine against Josef Corsten (Case C-58/98)

text:
2.5.98               EN                 Official Journal of the European Communities                                   C 137/11
Court of First Instance of the European Communities in             Reference for a preliminary ruling by the Amtsgericht,
Case T-178/94 between Associación Telefónica de                    Heinsberg, by decision of that court of 13 February 1998
Mutualistas and the Commission of the European                     in the proceedings for an administrative fine against Josef
Communities was brought before the Court of Justice of                                         Corsten
the European Communities on 26 February 1998 by
                                                                                (Case C-58/98)
Associación Telefónica de Mutualistas (ATM), represented
by Juan Eugenio Blanco Rodríguez and Bernardo Vicente                                       (98/C 137/22)
HernaÂndez Bataller, of the Madrid Bar, with an address
for service in Luxembourg at the Chambers of Loesch &
Wolter, 11, rue Goethe.
                                                                   Reference has been made to the Court of Justice of the
The appellant claims that the Court should:                        European Communities by decision of the Amtsgericht
                                                                   (Local Court), Heinsberg, of 13 February 1998, received
                                                                   at the Court Registry on 27 February 1998, for a
1. quash the judgment of the Court of First Instance (1);
                                                                   preliminary ruling in the proceedings for an administrative
                                                                   fine against Josef Corsten on the following question:
2. uphold in their entirety the claims put forward at first
    instance.
                                                                   Is it compatible with Community law on the freedom to
Pleas in law and main arguments adduced in support:
                                                                   provide services for a Netherlands undertaking, which in
                                                                   the Netherlands satisfies all the conditions for carrying on
Ð lack of jurisdiction of the Court of First Instance on
                                                                   a commercial activity, to have to satisfy further, albeit
    the ground of exceeding the bounds of its jurisdiction:
                                                                   purely formal, conditions (in this case entry in the register
    the contested judgment makes a number of statements
                                                                   of manual trades) in order to carry on that activity in
    concerning Spanish law which, in the view of the
                                                                   Germany?
    appellants, are neither lawful or referred to in the
    pleadings, nor is it open to the Court of First Instance
    to give such reasons for judgment,
Ð irregularities in the procedure before the Court of First
    Instance which are to the detriment of the appellant's
    interests (inadequate statement of reasons),
                                                                   Reference for a preliminary ruling by the Tribunale
Ð breach of Community law by the Court of First                    Ordinario, Milan, by order of that court of 12 February
    Instance in that it misinterpreted the fourth paragraph        1998 in the case of Butterfly Music Srl against Carosello
    of Article 173 of the EC Treaty: ATM does have an              Edizioni Musicali e Discografiche Cemed Srl and FIMI,
    interest in bringing proceedings inasmuch as the                           Federazione Industria Musicale Italiana
    categorisation of the financial assistance provided by                                 (Case C-60/98)
    the Kingdom of Spain in favour of CompanÄia
    Telefónica de EspanÄa SA (TESA) as State aid                                            (98/C 137/23)
    incompatible with the common market, and any order
    to repay it, undoubtedly benefits ATM, as an entity
    acting on behalf of its members, since the reduced             Reference has been made to the Court of Justice of the
    social charges would have to be reimbursed in                  European Communities by an order of the Tribunale
    accordance with Spanish law, that is to say, first by          Ordinario, Milan, of 12 February 1998, which was
    TESA to the Spanish public authorities, in order for           received at the Court Registry on 2 March 1998, for a
    the latter to pay the Institución Telefónica de                preliminary ruling in the case of Butterfly Music Srl
    Previsión, and finally to benefit those of ATM's               against Carosello Edizioni Musicali e Discografiche
    members on whose behalf ATM acted,                             Cemed Srl and FIMI, Federazione Industria Musicale
                                                                   Italiana, on the following question.
Ð breach of Community law by the Court of First
    Instance, inasmuch as the interpretation was erroneous
    and the judgment was inconsistent with the applicant's
                                                                   Whether the interpretation of Article 10 of Council
    submissions concerning the possible infringement of
                                                                   Directive 93/98/EEC of 29 October 1993 harmonising the
    Article 92 of the EC Treaty: in order to ascertain
                                                                   term of protection of copyright and certain related
    whether or not trade had been affected, there should
                                                                   rights (1), in particular where it provides for the adoption
    first have been a finding as to whether or not aid had
                                                                   of the necessary provisions to protect in particular
    been granted contrary to Article 92 of the EC Treaty
                                                                   acquired rights of third parties', is compatible with
    before deciding that the appellant did not have an
                                                                   Article 17(4) of Law No 52 of 6 February 1996, as
    interest in bringing proceedings, which the appellant
                                                                   amended by Law No 650 of 23 December 1996.
    considers to be an inconsistency in the contested
    judgment.
                                                                   (1) OJ L 290, 24.11.1993, p. 9.
( ) OJ C 55, 20.2.1998, p. 25.
 1