title: Case T-325/99: Action brought on 17 November 1999 by Generale Conserve Spa against the Commission of the European Communities

text:
C 63/24               EN                      Official Journal of the European Communities                                     4.3.2000
Action brought on 15 November 1999 by Garage en                          — order the Commission to pay to the applicant the sum of
Tankstation Milder V.O.F. against the Commission of the                      FF 20 000 in respect of the unrecoverable expenditure
                    European Communities                                     which he was obliged to incur in the defence of his
                                                                             interests.
                        (Case T-321/99)
                                                                         Pleas in law and main arguments
                         (2000/C 63/47)
                                                                         The applicant submits that the Commission unlawfully failed
                   (Language of the case: Dutch)                         to reply to the request which he had made to it for access to
                                                                         certain documents, thereby infringing Article 232 EC (ex
                                                                         Article 175) and Commission Decision 94/90/ECSC, EC,
An action against the Commission of the European Communi-
                                                                         Euratom (1) of 8 February 1994 on public access to Com-
ties was brought before the Court of First Instance of the
                                                                         mission documents.
European Communities on 15 November 1999 by Garage en
Tankstation Milder V.O.F., of Gendt (Netherlands), represented
by M.J.C. Deriks, of the Rotterdam Bar.                                  (1) OJ L 46 of 18.2.1994, p. 58.
The applicant claims that the Court should:
(a) annul the Commission’s decision [C(1999) 2539 final] (1)
    of 20 July 1999 concerning State aid granted by the
    Netherlands to 633 service stations in the region bordering
    Germany;
                                                                         Action brought on 17 November 1999 by Generale
(b) order the Commission to pay the costs.                               Conserve Spa against the Commission of the European
                                                                                Communities
Pleas in law and main arguments                                                                  (Case T-325/99)
The pleas in law and main arguments are the same as in Cases                                      (2000/C 63/49)
T-273/99 to T-278/99.
(1) OJ L 280 of 30.10.1999, p. 87.                                                          (Language of the case: Italian)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 17 November 1999 by Generale
                                                                         Conserve Spa, with Carlo Cigolini and Giuseppe Durazzo, of
                                                                         the Genoa Bar, and Mathis Hengel, of the Luxembourg Bar,
                                                                         with an address for service in Luxembourg at the latter’s
Action brought on 16 November 1999 by Karl L. Meyer                      Chambers, 12 Avenue de la Porte Neuve.
  against the Commission of the European Communities
                                                                         The applicant claims that the Court should:
                        (Case T-322/99)
                                                                         — annul the contested decision;
                         (2000/C 63/48)
                                                                         — order the Commission to pay the costs of the proceedings.
                   (Language of the case: French)
                                                                         Pleas in law and main arguments
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               The applicant contests the Commission decision of 17 June
European Communities on 16 November 1999 by Karl                         1999 rejecting its application for exemption from the post-cle-
L. Meyer, domiciled in Raiatea (French Polynesia), represented           arance recovery of customs duties in respect of 9 IM4
by Jean-Dominique des Arcis, of the Papeete Bar, with an                 certificates — representing a total of ITL 330 517 600 —
address for service in Luxembourg c/o M. Pakowski, 20-22                 relating to 9 consignments of processed and tinned tuna
Avenue Emile Reuter.                                                     deriving from raw material declared as being of Turkish origin
                                                                         but later regarded as being of third-country origin on the
The applicant claims that the Court should:                              ground that the Turkish supplier allegedly failed to keep raw
                                                                         material of Turkish or Community origin separate from stocks
— rule that Commission DG VIII has infringed Article 175 of              of third-country origin and it was impossible therefore to issue
    the EC Treaty;                                                       the related ATR 1 certificates.
 ---pagebreak--- 4.3.2000                 EN                    Official Journal of the European Communities                                       C 63/25
According to the applicant, that decision is vitiated on the              Action brought on 22 November 1999 by Anthony
grounds put forward in a separate application for annulment               Goldstein against the Commission of the European Com-
of a similar decision (Case T-179/99 Sud Pesca Srl) (1). With                                         munities
specific reference to the present case, the applicant alleges the
following:                                                                                (Case T-328/99)
                                                                                (2000/C 63/50)
— failure to comply with essential procedural requirements:
     the Genoa customs authority directly issued new claims                                 (Language of the case: English)
     for recovery of the duties without any inter partes procedure
     and without making any checks via the Turkish authorities.
     At the same time, the customs authority stated that the              An action against the Commission of the European Communi-
     claims were intended solely to stop time running and                 ties was brought before the Court of First Instance of the
     suggested that traders apply for non-subsequent entry in             European Communities on 22 November 1999 by Anthony
     the accounts. It also told the various subordinate customs           Goldstein, represented by Raymond St John Murphy, Solicitor,
     offices not to release subsequent imports of a similar kind          of 61 Fleet Street, London EC4Y 1JU, United Kingdom.
     unless security was lodged, in accordance with the deferred
     taxation procedure, pending the outcome of such claims.              The applicant claims that the Court should:
     In so doing, the Italian customs authorities acted in breach
     of the right to appeal revised customs claims;                       — order the defendant to adopt all measures necessary to
                                                                               protect the professional reputation of the applicant;
                                                                          — order the defendant to pay damages in the amount of EUR
— the checks made by the Commission’s inspectors cannot                        400 000 to the applicant;
     be relied upon — as regards the finding of third-country
     origin on which the customs claims rely — in so far as               — order the defendant to bear the costs.
     they were carried out unilaterally and have been challenged
     by the exporter;
                                                                          Pleas in law and main arguments
                                                                          In 1995 the applicant submitted to the Commission under
— lack of direct, or even indirect or putative, evidence as to            Article 3(2) of Council Regulation No 17 an application for a
     the non-Turkish origin of the product imported by the                finding that the General Council of the Bar, an authority in the
     applicant;                                                           field of the provision of legal services in the United Kingdom,
                                                                          had infringed Articles 81 and 82 EC. At the same time it
                                                                          requested the Commission to adopt interim measures. The
                                                                          applicant now seeks compensation for the damage occasioned
                                                                          to him by the unlawful failure of the Commission to adopt the
— the conditions precluding subsequent entry in the accounts              interim measures requested.
     are satisfied, in so far as the importer has shown good faith
     and complied with the legislation in force, and the customs
     authorities have acted — albeit passively — in error.
The applicant also challenges the reference in the contested              Action brought on 22 November 1999 by Emma Bonino
decision to the concept of commercial risk.                                       and Others against the European Parliament
                                                                                (Case T-329/99)
                                                                                (2000/C 63/51)
( 1) OJ C 281 of 2.10.1999, p. 29.
                                                                                (Language of the case: Italian)
                                                                          An action against the European Parliament was brought before
                                                                          the Court of First Instance of the European Communities on
                                                                          22 November 1999 by Emma Bonino and Others, with
                                                                          Antonio Tizzano and Gian Michele Roberti, of the Naples Bar,
                                                                          with an address for service in Brussels at 36 Place du Grand
                                                                          Sablon.


title: Case C-570/13: Judgment of the Court (Fifth Chamber) of 16 April 2015 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Karoline Gruber v Unabhängiger Verwaltungssenat für Kärnten, EMA Beratungs- und Handels GmbH, Bundesminister für Wirtschaft, Familie und Jugend (Reference for a preliminary ruling — Environment — Directive 2011/92/EU — Assessment of the effects of certain public and private projects on the environment — Construction of a retail park — Binding effect of an administrative decision not to carry out an environmental impact assessment — No public participation)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/8

         Judgment of the Court (Fifth Chamber) of 16 April 2015 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Karoline Gruber v Unabhängiger Verwaltungssenat für Kärnten, EMA Beratungs- und Handels GmbH, Bundesminister für Wirtschaft, Familie und Jugend
   (Case C-570/13) (1)

   ((Reference for a preliminary ruling - Environment - Directive 2011/92/EU - Assessment of the effects of certain public and private projects on the environment - Construction of a retail park - Binding effect of an administrative decision not to carry out an environmental impact assessment - No public participation))
   (2015/C 198/10)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Karoline Gruber

      Defendants: Unabhängiger Verwaltungssenat für Kärnten, EMA Beratungs- und Handels GmbH, Bundesminister für Wirtschaft, Familie und Jugend

      Operative part of the judgment

   Article 11 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment must be interpreted as precluding national legislation, such as that at issue in the main proceedings, pursuant to which an administrative decision declaring that a particular project does not require an environmental impact assessment, which is binding on neighbours who were precluded from bringing an action against that administrative decision, where those neighbours, who are part of the ‘public concerned’ within the meaning of Article 1(2) of that directive, satisfy the criteria laid down by national law concerning ‘sufficient interest’ or ‘impairment of a right’. It is for the referring court to verify whether that condition is fulfilled in the case before it. Where it is so fulfilled, that court must hold that the administrative decision not to carry out such an assessment is not binding on those neighbours.

      (1)  OJ C 24, 25.1.2014.


title: JUDGMENT OF THE COURT of 5 May 1998 in Case C-180/96: United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities, supported by Council of the European Union (Agriculture - Animal health - Emergency measures against bovine spongiform encephalopathy - 'Mad cow disease')

text:
4.7.98                EN                Official Journal of the European Communities                                      C 209/9
Consideration of the question referred has disclosed no            4. Orders the Council of the European Union to bear its
factor capable of affecting the validity of Article 1 of                own costs.
Commission Decision 96/239/EC of 27 March 1996 on
emergency measures to protect against bovine spongiform            (1) OJ C 197 of 6.7.1996.
encephalopathy.
(1) OJ C 197 of 6.7.1996.
                                                                                JUDGMENT OF THE COURT
                                                                                of 5 May 1998
                                                                   in Case C-386/96 P: SocieÂteÂ Louis Dreyfus & Cie v.
              JUDGMENT OF THE COURT                                        Commission of the European Communities (1)
                       of 5 May 1998
                                                                   (Emergency assistance given by the Community to the
in Case C-180/96: United Kingdom of Great Britain and              States of the former Soviet Union Ð Loan Ð
Northern Ireland v. Commission of the European                     Documentary credit Ð Action for annulment Ð
Communities, supported by Council of the European                              Admissibility Ð Directly concerned')
                          Union (1)
                                                                                (98/C 209/18)
(Agriculture Ð Animal health Ð Emergency measures
against bovine spongiform encephalopathy Ð Mad cow                                (Language of the case: French)
                           disease')
                        (98/C 209/17)                                (Provisional translation; the definitive translation will be
                                                                             published in the European Court Reports)
               (Language of the case: English)
                                                                   In Case C-386/96 P: SocieÂteÂ Louis Dreyfus & Cie, a
                                                                   company incorporated under French law, established in
In Case C-180/96: United Kingdom of Great Britain and              Paris, represented by Robert Saint-Esteben, of the Paris
Northern Ireland (Agents: Lindsey Nicoll, assisted by              Bar, with an address for service in Luxembourg at the
Nicholas Lyell, Paul Lasok and David Anderson) v.                  Chambers of Aloyse May, 31 Grand-Rue Ð appeal
Commission of the European Communities (Agents: Dierk              against the judgment of the Court of First Instance of the
Booû and James Macdonald Flett), supported by Council              European Communities (Third Chamber) of 24 September
of the European Union (Agents: Arthur Brautigam and                1996 in Case T-485/93 Dreyfus v. Commission [1996]
Moyra Sims) Ð application for annulment of Commission              ECR II-1101, seeking to have that judgment set aside, the
Decision 96/239/EC of 27 March 1996 on emergency                   other party to the proceedings being the Commission of
measures to protect against bovine spongiform                      the European Communities represented by Marie-JoseÂ
encephalopathy (OJ L 78 of 28.3.1996, p. 47) and of                Jonczy, Legal Adviser, and Nicholas Khan Ð the Court,
certain other acts of the Commission Ð the Court,                  composed of: G. C. Rodríguez Iglesias, President,
composed of: G. C. Rodríguez Iglesias, President, C.               C. Gulmann, H. Ragnemalm, M. Wathelet (Rapporteur)
Gulmann, H. Ragnemalm, M. Wathelet, R. Schintgen                   and R. Schintgen (Presidents of Chambers), G. F. Mancini,
(Presidents of Chambers), G. F. Mancini, J. C. Moitinho            J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray,
de Almeida, J. L. Murray, D. A. O. Edward, J.-P.                   D. A. O. Edward, J.-P. Puissochet, G. Hirsch and P. Jann,
Puissochet, G. Hirsch, P. Jann and L. Sevón (Rapporteur),          L. Sevón and K. M. Ioannou, Judges, Advocate General:
Judges; G. Tesauro, Advocate General; L. Hewlett,                  A. La Pergola, Registrar: D. Louterman-Hubeau, Principal
Administrator, for the Registrar, has given a judgment on          Administrator, has given a judgment on 5 May 1998, in
5 May 1998, in which it:                                           which it:
1. Declares the action brought by the United Kingdom of            1. Annuls the judgment of the Court of First Instance of
    Great Britain and Northern Ireland inadmissible in so               24 September 1996 in Case T-485/93 Dreyfus v.
    far as it seeks annulment of the Commission's                       Commission in so far as it dismisses as inadmissible
    statements of position of 10 April, 13 April and 8 May              the action for annulment brought by Louis Dreyfus &
    1996.                                                               Cie.
2. Dismisses the action brought by the United Kingdom              2. Refers the case back to the Court of First Instance for
    of Great Britain and Northern Ireland in so far as it               judgment on the substance.
    seeks annulment of Commission Decision 96/239/EC
    of 27 March 1996 on emergency measures to protect              3. Reserves costs.
    against bovine spongiform encephalopathy.
                                                                   (1) OJ C 40 of 8.2.1997.
3. Orders the United Kingdom of Great Britain and
    Northern Ireland to pay the costs.


title: Action brought on 29 May 1998 by the Commission of the European Communities against the Republic of Austria (Case C-205/98)

text:
C 234/20               EN                 Official Journal of the European Communities                                     25.7.98
Action brought on 29 May 1998 by the Commission of                   on 29 May 1998 by the Commission of the European
 the European Communities against the Hellenic Republic              Communities, represented by Laura Pignataro, of its Legal
                        (Case C-204/98)                              Service, and Dr Andreas Buschmann, a national expert
                                                                     with its Legal Service, with an address for service in
                         (98/C 234/38)                               Luxembourg at the office of Carlos Gómez de la Cruz, of
                                                                     its Legal Service, Wagner Centre, Kirchberg.
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 29 May 1998 by the Commission of the European                     The applicant claims that the Court should:
Communities, represented by M. Patakia and B. Mongin,
both of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of
its Legal Service, Wagner Centre, Kirchberg.                         1. Declare that, by raising from 1 July 1995 and from
                                                                          1 February 1996 the tolls for the whole Brenner
The Commission claims that the Court should:                              motorway, a transit route through Austria used
                                                                          predominantly by goods vehicles of over 12 tonnes
                                                                          from other Member States, the Republic of Austria
Ð declare that, by not adopting, and by not                               has infringed Article 7(b) of Directive 93/89/EEC (1);
     communicating to the Commission, within the
     prescribed period the laws, regulations and
     administrative provisions necessary to comply with
     Commission Directive 94/38/EC of 26 June 1994                   2. Declare that the Republic of Austria has infringed
     amending Annexes C and D to Council Directive 92/                    Article 7(h) of Directive 93/89/EEC, since it has not
     51/EEC of 18 June 1992 on a second general system                    imposed the said tolls only to cover the costs of
     for the recognition of professional education and                    constructing, operating and developing the Brenner
     training (1), the Hellenic Republic has failed to fulfil its         motorway;
     obligations under the EC Treaty and that directive;
Ð order the Hellenic Republic to pay the costs.
                                                                     3. Order the Republic of Austria to pay the costs.
Pleas in law and main arguments adduced in support:
Under the third paragraph of Article 189 of the EC Treaty,           Pleas in law and main arguments adduced in support:
directives are binding, as to the result to be achieved,
upon each Member State to which they are addressed.
Under the first paragraph of Article 5 of the EC Treaty,             By judgment of 5 July 1995 in Case C-21/94 (2) the Court
Member States are to take all appropriate measures,                  of Justice annulled Directive 93/89/EEC but preserved its
whether general or particular, to ensure fulfilment of the           effects until the adoption of a new directive by the
obligations arising out of the Treaty or resulting from              Council.
action taken by the institutions of the Community. Those
provisions require the Member States to make their
legislation consistent with Community directives within
the periods which those directives lay down. The period              Ð Infringement of Article 7(b) of the directive: Raising
laid down by Article 3(1) of Directive 94/38/EC expired                   the tolls only for the whole Brenner motorway
on 1 October 1994 without the Hellenic Republic having                    (Innsbruck to the Brenner frontier) and only for goods
adopted the laws, regulations and administrative                          vehicles with more than three axles, while the rates for
provisions necessary to comply with that directive.                       the part sections and short section and for goods
                                                                          vehicles with not more than three axles have remained
(1) OJ L 217 of 23.8.1994, p. 8.                                          unchanged, constitutes an indirect difference of
                                                                          treatment on the grounds of the nationality of the
                                                                          road user. It affects primarily transit traffic, 94 % of
                                                                          which is carried out by foreign-registered goods
                                                                          vehicles and only 6 % by Austrian-registered goods
                                                                          vehicles. According to the Austrian Government, c.
Action brought on 29 May 1998 by the Commission of                        82 % of goods vehicles affected by the abolition of the
                                                                          reduced rates for the whole route on the occasion of
the European Communities against the Republic of
                             Austria                                      the first toll increase were registered in other EU
                                                                          States. For heavy goods traffic as a whole (transit and
                        (Case C-205/98)                                   bilateral traffic), the heavy goods vehicles affected by
                         (98/C 234/39)                                    the toll increases consist, according to Austrian
                                                                          information, of c. 84 % foreign vehicles. The part
                                                                          sections of the Brenner motorway and the section
An action against the Republic of Austria was brought                     from Innsbruck to Matrei and back, on the other
before the Court of Justice of the European Communities                   hand, which are not affected by the toll increases, are
 ---pagebreak--- 25.7.98                 EN                 Official Journal of the European Communities                                C 234/21
     naturally used predominantly by goods vehicles in                Reference for a preliminary ruling from the Landesarbeits-
     regional and local traffic, registered in Austria. For           gericht (Regional Labour Court) Mecklenburg-Vorpom-
     traffic on those part sections, significantly, there has         mern by order of that court of 16 April 1998 in the case of
     not even been an adjustment for inflation.                        Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern
                                                                                (Case C-207/98)
                                                                                (98/C 234/40)
     There is also an indirect difference of treatment on
     grounds of the nationality of the carrier in the fact
     that the two toll increases together apply only to
     goods vehicles of more than three axles, whereas for
     goods vehicles of up to three axles no toll increases            Reference has been made to the Court of Justice of the
     have been introduced even for the whole Brenner                  European Communities by an order of the Landesarbeits-
     motorway route, since in the latter category vehicles of         gericht Mecklenburg-Vorpommern of 16 April 1998,
     Austrian registration are clearly dominant. The                  which was received at the Court Registry on 2 June 1998,
     different treatment cannot be justified on the basis of          for a preliminary ruling in the case of Silke-Karin
     greater wear on the roads, since not only the number             Mahlburg v Land Mecklenburg-Vorpommern on the
     of axles but also factors such as the total tonnage in           following question:
     proportion to the number of axles, the axle load and
     the suspension system of the driving axles play a
     decisive role in this respect.
                                                                      Is there unlawful discrimination on grounds of sex within
                                                                      the meaning of Article 2(1) of Directive 76/207/EEC of
                                                                      9 February 1976 (1) where an employer does not employ
     Finally, the Brenner motorway toll system also                   an applicant in a vacant post, which she is qualified to
     indirectly differentiates according to the origin and            hold, because she is pregnant and cannot from the outset
     destination of goods vehicles. The imposition of quite           and for the duration of her pregnancy be employed in the
     disproportionately high tolls on the whole route as              post, which is intended to be occupied permanently,
     opposed to the part sections affects especially transit          because of a prohibition on employment under the
     traffic, that is, traffic whose origin and destination are       Mutterschutzgesetz (Maternity Law)?
     both outside Austria. The converse applies to the
     exemption from the toll increase of goods vehicles of
                                                                      (1) OJ L 39 of 14.2.1976, p. 40.
     not more than three axles.
Ð Infringement of Article 7(h) of the directive: Under
     Article 7(h) of the directive, toll increases must be
     related to increased costs of the toll roads themselves.
     In the present case this is quite evidently the case only
     to a very limited extent. The operating company's                Reference for a preliminary ruling from the Landgericht
     expenditure on the Brenner motorway, according to                Potsdam by order of that court of 27 April 1998 in the
     information from the Austrian Government, has partly             case of Berliner Kindl Brauerei AG against Andreas
     fallen considerably in recent years, yet in the same                                          Siepert
     period markedly higher toll income has been received.
                                                                                (Case C-208/98)
     The      Austrian      Government      wrongly    adduces
     expenditure by the financing company ASFINAG for                                         (98/C 234/41)
     other motorways and expressways in Austria. The
     term network' in Article 7(h) of the directive, in the
     context of the provisions relating to tolls, can only
     mean those roads for whose use tolls are lawfully
     charged. Since Austria levies a general user charge for          Reference has been made to the Court of Justice of the
     motor vehicles with a maximum permitted weight of                European Communities by order of the Landgericht
     not less than 12 tonnes (fourth indent of Article 2 of           Potsdam (Regional Court, Potsdam) of 27 April 1998,
     the directive), that means in the present case only the          received at the Court registry on 2 June 1998, for a
     Brenner motorway itself, in so far as it is to be                preliminary ruling in the case of Berliner Kindl Brauerei
     regarded as a series of bridges, tunnels and mountain           AG v Andreas Siepert on the following question:
     passes'.
(1) OJ L 279 of 12.11.1993, p. 32.                                    Does a contract of guarantee concluded by a natural
(2) [1995] ECR I-1827.                                                person not acting in the course of a trade or profession
                                                                      fall within the scope of Council Directive 87/102/EEC of
                                                                      22 December 1986 for the approximation of the laws,
                                                                      regulations and administrative provisions of the Member
                                                                      States concerning consumer credit (OJ L 42 of 12.2.1987,


title: Case C-463/02: Action brought on 23 December 2002 by Commission of the European Communities against the Kingdom of Sweden

text:
C 55/10                 EN                        Official Journal of the European Union                                            8.3.2003
Article 20 of Legislative Decree No 18/99 relates to contracts                  failed to fulfil its obligations under Article 11 of the Sixth
of employment under various organisational arrangements or                      Council Directive 77/388/EC ( 2) of 17 May 1977 on the
contractual conditions in force on 19 November 1998. Such                       harmonisation of the laws of the Member States relating
contracts concern staff working for users which carry out self-                 to turnover taxes — Common system of value added tax:
handling services, which are different from those defined in                    uniform basis of assessment; and
the directive. Those contracts remain in force and unchanged
until expiry; however, they may not be for longer than 6 years.
In actual fact, undertakings with ‘various organisational                 2.    Order Sweden to pay the costs.
arrangements’ are in practice authorised to act as self-handling
operators alongside other self-handling operators and service
suppliers.
The directive provides a clear definition for groundhandling              Pleas in law and main arguments
services operators — groundhandling for third parties and
users which carry out self-handling operations. Entities which
do not fulfil the ‘self-handling’ criteria laid down in Article 2(f)
may only operate groundhandling services for third parties.               The three conditions for inclusion of a subsidy in the taxable
Furthermore, Article 7(2) and Article 11(2) of the directive lay          amount are satisfied. It is clear from Regulation No 603/95
down the specific procedures to follow when appointing self-              that only the undertaking which processes fresh fodder can be
handling operators and suppliers of groundhandling services               granted aid and not producers of fresh fodder, and that the
for third parties. In light of the foregoing considerations,              processing undertaking both enters into a sales agreement
Article 20 appears to infringe those obligations.                         with undertakings which consume dried fodder (supply of
                                                                          goods) and processing agreements with producers of fresh
                                                                          fodder (supply of services). In the present case there is no
( 1) OJ 1996 L 272, p. 36.                                                doubt that the intervention body which pays the aid in
( 2) OJ 1977 L 61, p. 26.                                                 accordance with Regulation No 603/95 is a third person in
( 3) OJ 1998 L 201, p. 88.                                                relation to the processing undertaking and the buyer and that
( 4) OJ 2001 L 82, p. 16.                                                 this intervention takes place in accordance with a procedure
                                                                          for the award of public subsidies.
                                                                          Article 11 A point 1(a) of the Sixth Directive would be
                                                                          interpreted excessively narrowly if only types of aid which are
                                                                          calculated on the basis of the product price are included in the
                                                                          taxable amount for VAT. By its general reference to ‘subsidies
Action brought on 23 December 2002 by Commission                          directly linked to the price of [the taxable] supplies’, the
of the European Communities against the Kingdom of                        Community legislature actually intended to include in the
                              Sweden                                      taxable amount for VAT all aid which is directly linked to the
                                                                          price of the goods or services, ie the subsidies which directly
                                                                          influence the size of the supplier’s remuneration. Those
                          (Case C-463/02)                                 subsidies must, in turn, be directly linked to or have a causal
                                                                          connection with precisely indicated or quantifiable supplies of
                                                                          goods or services, ie the aid paid, if and to the extent that the
                           (2003/C 55/18)                                 goods or services are actually sold on the market. That is why
                                                                          the subsidy has a direct influence on the product’s sale price
                                                                          and that clearly shows the underlying idea that subsidies
                                                                          should be included in the taxable amount for VAT, on the
                                                                          basis of a non-restrictive interpretation of Article 11 A
An action against the Kingdom of Sweden was brought                       point 1(a) of the Sixth Directive and in accordance with the
before the Court of Justice of the European Communities on                general purpose of the article, namely taxation of all the
23 December 2002 by the Commission of the European                        remuneration paid in whole or in part by a person, no matter
Communities, represented by E. Traversa and K. Simonsson,                 who, and which is actually received by the supplier as a
acting as Agents, with an address for service in Luxembourg.              consequence of the sale of the goods or services.
The Commission claims that the Court should:
                                                                          (1 ) OJ L 63, 21.3.1995, p. 1.
                                                                          (2 ) OJ L 145, 13.6.1977, p. 1.
1.    Declare that, by failing to levy value added tax on the
      amount of aid paid under Council Regulation (EC)
      No 603/95 ( 1) of 21 February 1995 on the common
      organisation of the market in dried fodder, Sweden has


title: Case T-572/15: Action brought on 25 September 2015 — Aldi v OHIM — Rouard (GOURMET)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/64

         Action brought on 25 September 2015 — Aldi v OHIM — Rouard (GOURMET)
   (Case T-572/15)
   (2015/C 389/72)
   Language in which the application was lodged: German

      Parties

      Applicant: Aldi GmbH & Co. KG (Mülheim an der Ruhr, Germany) (represented by: C. Fürsen und N. Bertram, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Pierre-André Rouard (Madrid, Spain)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark with the word element ‘GOURMET’ — Application No 10 509 446

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 24 July 2015 in Case R 1985/2013-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM to pay the costs.

      Pleas in law

               —

               Infringement of Article 63 of Regulation No 207/2009 in conjunction with Rule 20(7) of Regulation No 2868/95;

               —

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


title: Judgment of the Court (Sixth Chamber) of 16 October 2003 in Case C-433/02: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Directive 92/100/EEC — Copyright — Remuneration of authors in the event of public lending of their literary or artistic works)

text:
C 289/10                EN                           Official Journal of the European Union                                            29.11.2003
1.   Declares that, by failing to adopt all the laws, regulations and        2.   Orders the Kingdom of Belgium to pay the costs.
     administrative provisions necessary to comply with Council
     Directive 1999/31/EC of 26 April 1999 on the landfill of
     waste, the United Kingdom of Great Britain and Northern                 (1) OJ C 19 of 25.1.2003.
     Ireland has failed to fulfil its obligations under Article 18 of
     the Directive;
2.   Orders the United Kingdom of Great Britain and Northern
     Ireland to pay the costs.
(1) OJ C 19 of 25.1.2003.                                                                     JUDGMENT OF THE COURT
                                                                                (Third Chamber)
                                                                                of 16 October 2003
                 JUDGMENT OF THE COURT                                       in Case C-29/03: Commission of the European Communi-
                                                                             ties v Instituto Tecnológico para a Europa Comunitária
                         (Sixth Chamber)                                                                   (ITEC) (1)
                       of 16 October 2003                                    (Arbitration clause — Non-performance of contract —
                                                                                Recovery of moneys advanced — Procedure in default)
in Case C-433/02: Commission of the European Communi-
                 ties v Kingdom of Belgium (1)                                                          (2003/C 289/19)
(Failure by a Member State to fulfil its obligations —                                         (Language of the case: Portuguese)
Directive 92/100/EEC — Copyright — Remuneration of
authors in the event of public lending of their literary or
                                                                             (Provisional translation; the definitive translation will be published
                           artistic works)
                                                                                in the European Court Reports)
                         (2003/C 289/18)
                    (Language of the case: French)                           In Case C-29/03, Commission of the European Communities
                                                                             (Agents: G. Braga da Cruz and C. Giolito) v Instituto Tecnoló-
                                                                             gico para a Europa Comunitária (ITEC), a private establishment
(Provisional translation; the definitive translation will be published       established in Lisbon (Portugal): Application by the Com-
                   in the European Court Reports)                            mission under Article 238 EC to recover EUR 62 236,65
                                                                             advanced by it to the defendant in relation to performance of
                                                                             Contract No IN10278I 20364/0, together with default interest,
In Case C-433/02, Commission of the European Communities                     the Court (Third Chamber), composed of: J.-P. Puissochet,
(Agent: K. Banks) v Kingdom of Belgium (Agent: A. Snoecx):                   President of the Chamber, F. Macken and J.N. Cunha Rodrigues
Application for a declaration that, by failing to apply the                  (Rapporteur), Judges; S. Alber, Advocate General; R. Grass,
provisions on the public lending right provided for in Council               Registrar, has given a judgment on 16 October 2003, in which
Directive 92/100/EEC of 19 November 1992 on rental right                     it:
and lending right and on certain rights related to copyright in
the field of intellectual property (OJ 1992 L 346, p. 61), the               1.   Orders Instituto Tecnológico para a Europa Comunitária (ITEC)
Kingdom of Belgium has failed to fulfil its obligations under                     to repay to the Commission of the European Communities the
Articles 1 and 5 of that directive, the Court (Sixth Chamber),                    sum of EUR 62 236,65, together with default interest at the
composed of: J.-P. Puissochet, President of the Chamber,                          rate prescribed by Portuguese law, calculated in accordance with
R. Schintgen, C. Gulmann (Rapporteur), V. Skouris and                             the provisions of Portaria No 263/99 of 12 April 1999 until
J.N. Cunha Rodrigues, Judges; P. Léger, Advocate General;                         30 April 2003 and Portaria No 291/2003 of 8 April 2003
R. Grass, for the Registrar, has given a judgment on 16 October                   as from 1 May 2003, until the debt is paid in full;
2003, in which it:
                                                                             2.   Orders Instituto Tecnológico para a Europa Comunitária (ITEC)
1.   Declares that, by failing to apply the provisions on the public              to pay the costs.
     lending right provided for in Council Directive 92/100/EEC of
     19 November 1992 on rental right and lending right and on
     certain rights related to copyright in the field of intellectual        (1) OJ C 70 of 22.3.2003.
     property, the Kingdom of Belgium has failed to fulfil its
     obligations under Articles 1 and 5 of that directive;


title: Case C-249/09: Reference for a preliminary ruling from the Tartu Ringkonnakohus (Estonia) lodged on 7 July 2009 — Novo Nordisk A/S v Ravimiamet

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/22

         Reference for a preliminary ruling from the Tartu Ringkonnakohus (Estonia) lodged on 7 July 2009 — Novo Nordisk A/S v Ravimiamet
   (Case C-249/09)
   2009/C 220/44
   Language of the case: Estonian

      Referring court

   Tartu Ringkonnakohus

      Parties to the main proceedings

      Applicant: Novo Nordisk AS

      Defendant: Ravimiamet

      Questions referred

               1.

               Must Article 87(2) of Directive 2001/83/EC (1) of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (as amended and supplemented) be interpreted as extending also to quotations taken from medical journals or other scientific works which are included in advertisements for medicinal products directed to persons qualified to prescribe medicines?

               2.

               Must Article 87(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (as amended and supplemented) be interpreted as prohibiting the publication in advertisements for medicinal products of claims which conflict with the summary of product characteristics, but not requiring that all the claims in advertisements for medicinal products must be included in the summary of product characteristics or be derivable from information in the summary?

      (1)  OJ 2001 L 311, p. 67.


title: Action brought on 23 June 1997 by Philippe Godts against the Commission of the European Communities (Case T-185/97)

text:
16 . 8 . 97            EN                   Official Journal of the European Communities                                 No C 252/37
Finally, the 1997 Scheme is biased entirely in favour of the           subsequent extension of his contract, given the guidelines
incumbent French producers and their suppliers, who have               that the Commission was proposing to adopt concerning
already benefited substantially by the measures declared               temporary staff ( undertakings of 23 February and
illegal and incompatible in December 1996 ( but still in               16 March 1994 ). This action was brought following the
force today). In the result, France is levying discriminatory          refusal of the applicant's request that the Commission
taxation on imported production and the 1997 Scheme                    should apply to him its former policy, contained in its
accordingly cannot be given an exemption under                         decision of 18 March 1992, authorizing the extension of
Article 92 ( 3 ) (c ).                                                 temporary servants' contracts up to a maximum duration
                                                                       of five years .
In all these respects, the Commission has also failed to
comply with the duty to adduce sufficient reasons in its               The applicant makes the following pleas in law in support
decisions laid down in Article 190 of the Treaty.                      of his action :
                                                                       — disregard, in so far as he was concerned, of the duty
                                                                            to pay due regard to the welfare of officials,
Action brought on 23 June 1997 by Philippe Godts
    against the Commission of the European Communities                 — disregard of the principles of the protection of
                                                                            legitimate expectations and of non-retrospectivity, and
                         ( Case T-l 85/97)                                  the unenforceability against him of the Commission's
                           ( 97/C 252/79 )                                  decision of 16 March 1994 . Under that decision, new
                                                                            contracts are to be concluded, on an interim basis and
                                                                            pending a definitive decision on the reorientation of
                  (Language of the case: French)
                                                                            the whole of the Commission's policy on temporary
                                                                            servants, for a duration of three years with no
An action against the Commission of the European                            guarantee of extension or of the opportunity to
 Communities was brought before the Court of First                          participate in an internal competition. In so far as that
 Instance of the European Communities on 23 June 1997                       decision reduces the rights of temporary servants
 by Philippe Godts, residing in Brussels, represented by                    acknowledged by the Commission in its previous
 Nicolas Lhoest, of the Brussels Bar, with an address for                   selection notices published in 1993 , the applicant
 service in Luxembourg at the offices of Fiduciaire Myson                   maintains that it cannot be enforced against him,
 Sari, 30 Rue de Cessange.
 The applicant claims that the Court should:                            — disregard of the principle of equality of treatment, in
                                                                            that in this case temporary servants recruited before
                                                                             16 March 1994, unlike those recruited afterwards,
 — annul the Commission's decision of 1 August 1996,                         continue   to  benefit   without   restriction from  the
      expressly rejecting his request that he be allowed to                  principles contained in the Commission's decision of
      benefit from possible extension of his contract, up to a               18 March 1992 . It cannot reasonably be claimed that
      total of five years,                                                   the objective position of temporary servants recruited
                                                                             before and after that date is identical . Most of them
 — declare       the   Commission       decision    adopted    on            submitted their candidacy following the same pre
      13 November 1996 unlawful in so far as it limits all                   selection notices, which referred to the possibility of
      temporary staff contracts falling under Article 2 ( a ) of             an extension of their contracts up to a duration of five
      the Conditions of Employment of Other Servants to a                    years ,
      maximum duration of three years, with a possibility of
      extension for a maximum of one year,
                                                                        — infringement of Articles 27 and 29 of the Staff
                                                                             Regulations inasmuch as, with its new policy, the
 — order the Commission to pay the costs.                                    Commission     restricted   the   recruitment   base  for
                                                                             competitions to become established officials in a way
 Pleas in law and main arguments adduced in support:                         contrary to the interests of the service,
 The applicant entered the Commission's service in                      — illegality of the Commission's decision of 13 November
  October 1994, as a member of the temporary staff. Both                      1996 limiting the duration of temporary contracts to
  the selection notice, which appeared in the administrative                 three years, with a possible maximum extension of
  information sheet of 10 September 1993 and in the press,                    one year. The applicant considers that, by adopting
  and the information communicated to him concerning the                     that decision, the Commission renounced a right
  status of members of the temporary staff and details of the                 conferred upon it by Article 8 of the Conditions
  method of recruiting them expressly stipulated that the                     of Employment of Other Servants to conclude
  duration of contractrs, limited to three years, could be                    employment contracts for an indefinite period.
  extended up to a total of five years . However, by letters of
  23 and 30 September 1994, the Commission told the
  applicant that no guarantee could be given as to the


title: Case C-345/07: Order of the President of the Court of 12 December 2007 — Commission of the European Communities v Hellenic Republic

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/32

         Order of the President of the Court of 12 December 2007 — Commission of the European Communities v Hellenic Republic
   (Case C-345/07) (1)

   (2008/C 64/49)

      Language of the case: Greek

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 211, 8.7.2007.


title: Case F-3/05: Order of the Civil Service Tribunal (Second Chamber) of  15 May 2006  — Schmit v Commission (Community officials — Promotion — Assessment — Time-limit for complaint — Interest in bringing proceedings — Inadmissibility)

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/33

         Order of the Civil Service Tribunal (Second Chamber) of 15 May 2006 — Schmit v Commission
   (Case F-3/05) (1)

   (Community officials - Promotion - Assessment - Time-limit for complaint - Interest in bringing proceedings - Inadmissibility)
   (2006/C 165/65)
   Language of the case: French
   Parties

      Applicant: Nadine Schmit ((Ispra, Italy) (represented by: P.-P. Van Gehuchten, P. Jadoul and Ph. Reyniers, lawyers)

      Defendant: Commission of the European Communities (represented by: J. Currall and L. Lozano Palacios, Agents)
   Re:
   First, application for annulment of the decision of 3 December 2003 by which the Commission did not include the applicant among the officials promoted in the 2003 procedure; second, application for annulment of the decision according to which the applicant's competence, performance and conduct in the service were not the subject of a career development report for the 2001-2002 period; third, application for damages for the losses allegedly caused as a result of those decisions.
   Operative part of the order

               1.

               The action is dismissed as inadmissible;

               2.

               The parties are ordered to bear their own costs.

      (1)  OJ C 6 of 8.1.2005 (case initially registered before the Court of First Instance of the European Communities under Case T-419/04 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).


title: Case T-235/09: Action brought on 17 June 2009 — Commission v Edificios Inteco

text:
               12.9.2009

               EN

               Official Journal of the European Union

               C 220/33

         Action brought on 17 June 2009 — Commission v Edificios Inteco
   (Case T-235/09)
   2009/C 220/70
   Language of the case: Spanish

      Parties

      Applicant: Commission of the European Communities (represented by: G. Valero Jordana, acting as Agent)

      Defendant: Edificios Inteco, SL (Valladolid, Spain)

      Form of order sought

               —

               Order the defendant to repay the applicant EUR 157 238,07, plus the sum of EUR 81 686,22 of interest due until 1 June 2009 and daily interest for late payment at the rate of EUR 21,73796 per day accrued from 2 June 2009 until the full amount of the debt has been repayed;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

   The European Commission requests the partial repayment of the payments made to Edificios Inteco, S.L. within the framework of a contract concerning the project ‘Energy — Comfort 2000 Phase I’ relating to the construction of a commercial and business centre in the city of Valladolid (Spain) which was annulled by the Commission.
   In support of its claims the Commission submits that the defendant failed to meet its contractual obligations.


title: Case C-240/09: Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 3 July 2009 — Lesoochranárske Zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/3

         Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 3 July 2009 — Lesoochranárske Zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky
   (Case C-240/09)
   2009/C 233/05
   Language of the case: Slovak

      Referring court

   Najvyšší súd Slovenskej republiky

      Parties to the main proceedings

      Applicant: Lesoochranárske Zoskupenie VLK

      Defendant: Ministerstvo životného prostredia Slovenskej republiky

      Questions referred

               1.

               Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, given that the principal objective pursued by that international treaty is to change the classic definition of locus standi by according the status of a party to proceedings to the public, or the public concerned, as having the direct effect of an international treaty (‘self-executing effect’) in a situation where the European Union acceded to that international treaty on 17 February 2005 but to date has not adopted Community legislation in order to transpose the treaty concerned into Community law?

               2.

               Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, which has become a part of Community law, as having the direct applicability or direct effect of Community law within the meaning of the settled case-law of the Court of Justice?

               3.

               If the answer to the first of the second question is in the affirmative, is it then possible to interpret Article 9(3) of the Aarhus Convention, given the principal objective pursued by that international treaty, as meaning that it is necessary also to include within the concept ‘act of a public authority’ an act consisting in the delivery of decisions, that is to say, that the right of public access to judicial hearings intrinsically also includes the right to challenge the decision of an administrative body, the unlawfulness of which lies in its effect on the environment?


title: Case C-144/14: Judgment of the Court (Seventh Chamber) of 9 July 2015 (request for a preliminary ruling from the Tribunalul Maramureș — Romania) — Cabinet Medical Veterinar Dr. Tomoiagă Andrei v Direcția Generală Regională a Finanțelor Publice Cluj Napoca prin Administrația Județeană a Finanțelor Publice Maramureș (Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Articles 273 and 287 — Obligation to register a taxable person for VAT purposes — Whether veterinary services are taxable — Principle of legal certainty — Principle of protection of legitimate expectations)

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/7

         Judgment of the Court (Seventh Chamber) of 9 July 2015 (request for a preliminary ruling from the Tribunalul Maramureș — Romania) — Cabinet Medical Veterinar Dr. Tomoiagă Andrei v Direcția Generală Regională a Finanțelor Publice Cluj Napoca prin Administrația Județeană a Finanțelor Publice Maramureș
   (Case C-144/14) (1)

   ((Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Articles 273 and 287 - Obligation to register a taxable person for VAT purposes - Whether veterinary services are taxable - Principle of legal certainty - Principle of protection of legitimate expectations))
   (2015/C 294/09)
   Language of the case: Romanian

      Referring court

   Tribunalul Maramureș

      Parties to the main proceedings

      Applicant: Cabinet Medical Veterinar Dr. Tomoiagă Andrei

      Defendant: Direcția Generală Regională a Finanțelor Publice Cluj Napoca prin Administrația Județeană a Finanțelor Publice Maramureș

      Operative part of the judgment

               1.

               The first paragraph of Article 273 of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009, does not require Member States to register of their own motion a taxable person for the purposes of collecting value added tax solely on the basis of tax returns, other than those relating to value added tax, where those returns would have made it possible to establish that the taxable person had exceeded the exemption threshold for value added tax.

               2.

               The principles of legal certainty and protection of legitimate expectations do not preclude a tax authority from deciding that veterinary services are subject to value added tax in circumstances such as those in the main proceedings, provided that that decision is based on clear rules and the practice of that authority was not such as to create in the mind of a reasonably prudent economic operator a reasonable expectation that value added tax would not be applied to those services, that being a matter for the referring court to establish.

      (1)  OJ C 212, 7.7.2014.


title: Case C-247/07: Judgment of the Court (Fifth Chamber) of 4 December 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil its obligations — Directive 2003/35/EC — Drawing up of certain plans and programmes relating to the environment — Public participation — Failure to transpose within the prescribed period)

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/3

         Judgment of the Court (Fifth Chamber) of 4 December 2008 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
   (Case C-247/07) (1)

   (Failure of a Member State to fulfil its obligations - Directive 2003/35/EC - Drawing up of certain plans and programmes relating to the environment - Public participation - Failure to transpose within the prescribed period)
   (2009/C 19/05)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: M. Konstantinidis and D. Lawunmi, Agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: V. Jackson, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the measures necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

               2.

               Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

      (1)  OJ C 170, 21.7.2007.


title: Reference for a preliminary ruling by the High Court of Justice, Queen's Bench Division, by order of that court of 3 February 1995, in the case of The Queen against the Secretary of State for the Home Department, ex-parte: Mann Singh Shingara (Case C-65/95)

text:
 24 . 6 . 95             EN                  Official Journal of the European Communities                                      No C 159/ 11
 31 December 1992 ( Directive 92/35/EEC ) and 1 January                 preliminary ruling in the case of The Queen against the
 1993 ( Directive 92/40/EEC ).                                          Secretary of State for the Home Department, ex-parte :
                                                                        Mann Singh Shingara, on the following questions :
 H OJ No L 157, 10 . 6 . 1992 , p . 19 .
 ( 2 ) OJ No L 167, 22 . 6 . 1992, p . 1 .
                                                                        1 . ( 1 ) In Article 8 of Council Directive 64/221 /EEC of
                                                                                25 February 1964 on the coordination of special
                                                                                measures concerning the movement and residence
                                                                                of foreign nationals which are justified on grounds
                                                                                of public policy, public security or public health ( l ),
Action brought on 4 April 1995 by the Commission of the                           do the words 'the same legal remedies . . . as are
       European Communities against the Italian Republic                          available to nationals of the State concerned in
                          ( Case C-118/95 )                                       respect of acts of the administration ' refer (a ) to
                                                                                specific remedies available in respect of decisions
                             ( 95/C 159/22 )                                      concerning entry by nationals of the State
                                                                                concerned ( in casu, an appeal to an immigration
An action against the Italian Republic was brought before                         adjudicator ) or ( b ) do they refer only to remedies
the Court of Justice of the European Communities on                               available in respect of acts of the administration
4 April 1995 by the Commission of the European                                    generally ( in casu, an application for judicial
Communities, represented by Eugenio de March, Legal                               review )?
Adviser, acting as Agent, with an address for service in
Luxembourg at the office of Georgios Kremlis, Wagner ,
                                                                            ( 2 ) If the answer to ( 1 ) is ( a ), do the words quoted from
Centre, Kirchberg.
                                                                                Article 8 of Directive 64/221 refer only to the legal
                                                                                remedies available to nationals of the               State
The applicant claims that the Court should :                                      concerned in the same circumstances ( in casu,
                                                                                refusal of entry on grounds of national security), or
 1 , declare that by failing to adopt by law, regulation or                       do they also refer to the specific remedies available
       adminstrative action within the prescribed time limit the                  in analogous or similar circumstances to nationals
       necessary provisions to implement Council Directive                        of the State concerned ; and, if so , how similar or
        92/33/EEC of 28 April 1992 on the marketing of                            analogous must the circumstances be ?
       vegetable propagating and planting material, other than
       seed ( 1 ) and Council Directive 92/34/EEC of 28 April
        1992 on the marketing of fruit plant propagating                2 . In the light of the answer to Question 1 , where a
       material and fruit plants intended for fruit                         Community national is refused entry into the United
       production (2 ) the Italian Republic has failed to fulfil its        Kingdom on grounds of national security does Article 8
       obligations under the EC Treaty;                                     of Directive 64/221/EEC require that national to have a
                                                                            right of appeal to an immigration adjudicator if, on the
2 , order the Italian Republic to pay the costs .                           correct construction of the relevant provisions of
                                                                            national law, a British national refused entry to the
Pleas in law and main arguments adduced in support:                         United Kingdom on grounds of national security has a
                                                                            right of appeal for the purpose of establishing that he is a
The pleas in law and main arguments are the same as in Case                 British national and is therefore entitled to enter the
C-79/95 ; the time limit for implementation expired on                      United Kingdom irrespective of whether his presence in
31 December 1992 .                                                          the United Kingdom is undesirable for reasons of
                                                                            national security ?
(') OJ No L 157, 10 . 6 . 1992 , p . 1 .
( 2 ) OJ No L 157, 10 . 6 . 1992 , p . 10 .
                                                                        3 . Do the opening words of Article 9 ( 1 ) of Directive
                                                                            64/221 /EEC ('where there is no right of appeal to a court
                                                                            of law, or where such appeal may be only in respect of
                                                                            the legal validity of the decision, or where the appeal
                                                                            cannot have suspensory effect') apply equally to
Reference for a preliminary ruling by the High Court of                     Article 9 ( 2 )?
Justice, Queen's Bench Division, by order of that court of
3 February 1995 , in the case of The Queen against the
Secretary of State for the Home Department, ex-parte:                  4 . Where a        decision has been taken to exclude a
                       Mann Singh Shingara                                  Community national from the territory of a Member
                           ( Case C-65/95 )                                 State other than his own on public policy or public
                                                                            security grounds and the Community national has left
                              95/C 159/23 )                                 that territory without there having been an appeal or
                                                                            reference for an advisory opinion to an independent
Reference has been made to the Court of Justice of the                      competent authority pursuant to Articles 8 or 9 of
European Communities by an order of the High Court of                       Council Directive 64/221 /EEC, does that Community
Justice, Queen's Bench Division, of 3 February 1995 , which                 national have a right of reference to an independent
was received at the Court Registry on 13 March 1995 , for a                 competent authority under Article 9 ( 2 ) if that national
 ---pagebreak--- No C 159/ 12            EN                   Official Journal of the European Communities                                    24 . 6 . 95
    subsequently returns or seeks to return to the territory of            ( Such cases being those in which the Member State has
    the Member State concerned, in respect of:                             an 'obligation' (which, for the Italian Constitutional
                                                                           Court, is a 'precise obligation': see judgment of the
    ( a ) the refusal of an application for a residence permit;            Constitutional Court (4 July), 11 July 1989 , No 389, last
          or                                                               subparagraph of paragraph 4 of the grounds of the
                                                                           judgment) to remove from its legal order those
    ( b ) the refusal of an application for entry; or                      provisions which are incompatible with Community
                                                                           law: judgment of the Court of Justice in Case 104/86
    (c ) a decision ordering expulsion ?                                   [ 1988 ] ECR 1799 )).
5 . Do the answers to question 4 vary according to                      — Is a national provision which (without stating reasons )
    whether :
                                                                           reserves to non-profit-making 'companies and firms ' the
                                                                           provision of an entire category of services, which are
    ( a ) the applicant has entered the territory of the                   important inter alia from the financial point of view,
          Member State before asking for a residence                       contrary to Article 58 of the EEC Treaty, in so far as
          permit;                                                          that Article makes a clear distinction between 'profit
                                                                           making companies and firms ' and 'non-profit-making
    ( b ) the applicant has been expelled from the Member                  companies and firms '?
          State before he has asked for a residence permit, or
          has never asked for a residence permit;
                                                                        — Do Articles 52,58 and 5 9 of the Treaty prohibit national
    ( c ) the earlier departure was as a result of a decision              legislation which hampers the pursuit of a business
          ordering expulsion, or of a threat of detention and              activity by imposing on an undertaking established in a
          expulsion and was followed by a decision to                      particular Member State, which wishes to establish itself
          exclude ?                                                        in another Member State within the meaning of the
                                                                           Treaty, the alternative of either carrying on that activity
(') OJ No L 56 , 4 . 4 . 1964, p . 850 .                                   on a non-economic basis — in that case adopting one of
                                                                           the legal forms which are listed exhaustively but do not
                                                                           coincide with those that facilitate establishment — or —
                                                                           if it intends carrying on the activity on an economic basis
                                                                           — accepting the burden of services which should be
                                                                           provided at the expense of the public health service ?
Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale per la Lombardia by order of                   — Does Article 59 of the Treaty prohibit national
that Court of 2 March 1 995 in the case of Sodemare SA Anni                legislation which, by virtue of the procedures laid down
                 Azzurri Holding and Others                                by domestic law, directs the users of welfare services —
                          ( Case C-70/95 )                                 who are allowed by the said domestic law to choose who
                            ( 95/C 159/24 )                                is to provide them — solely towards undertakings to
                                                                           which, exclusively by reference to their legal structure,
                                                                           the State reimburses the costs of the health services
Reference has been made to the Court of Justice of the                     which all the authorized undertakings are required to
European Communities by an order of the Tribunale                          provide, thereby, first, channelling the demand for
Amministrativo          Regionale        per    la     Lombardia           services towards certain providers and, secondly,
(Administrative Court for the Lombardy Region ) of                         depriving the user of real freedom of choice ?
2 March 1995 which was received at the Court Registry on
2 March 1995 , for a preliminary ruling in the case of
Sodemare SA and Others against Regione Lombardia,                       — Do Articles 3 ( f), 5 , 85 and 86 , possibly in conjunction
intervener Fermabel on the following questions :                           with Article 90 of the Treaty, prohibit the legislation at
                                                                           issue which, under the machinery provided by national
— Under Article 190 of the EEC Treaty, must a national                     law:
    provision which, although dealing with a matter falling
    'within the field of application' of the Community
    Treaties , nevertheless contains no statement whatsoever               ( a ) allows only companies with a particular legal
    of the reasons on which it is based , be regarded as                          structure to provide, without charges to be borne by
    contrary to Community law with the result that that                           the undertaking, services which are ancillary to the
    national provision, lacking a statement of reasons,                           services provided by it against payment;
    cannot be applied by the national court: that result being
    limited to those cases — of which the present case
    appears to be one — where the national provision                       ( b ) allows them to present themselves on the market as
    creates an ambiguous state of affairs, in that it keeps the                   a category of undertakings which, having similar
    persons concerned in a state of uncertainty regarding the                     qualitative and quantitative characteristics, are
    possibilities available to them of relying on Community                       described to users as a largely unitary
    law ?                                                                         organization;


title: Case T-479/15: Judgment of the General Court of 14 September 2016 — Lotte v EUIPO — Kuchenmeister (KOALA LAND) (European Union trade mark — Opposition proceedings — Application for EU word mark KOALA LAND — Prior national word mark KOALA — Rejection in part of the application for registration — Likelihood of confusion — Genuine use — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 42(2) and (3) of Regulation No 207/2009)

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/39

         Judgment of the General Court of 14 September 2016 — Lotte v EUIPO — Kuchenmeister (KOALA LAND)
   (Case T-479/15) (1)

   ((European Union trade mark - Opposition proceedings - Application for EU word mark KOALA LAND - Prior national word mark KOALA - Rejection in part of the application for registration - Likelihood of confusion - Genuine use - Article 8(1)(b) of Regulation (EC) No 207/2009 - Article 42(2) and (3) of Regulation No 207/2009))
   (2016/C 392/51)
   Language of the case: German

      Parties

      Applicant: Lotte Co. Ltd (Tokyo, Japan) (represented by: M. Knitter and S. Schicker, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: M. Fischer, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Kuchenmeister GmbH (Soest, Germany) (represented by: P. Blumenthal, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 4 June 2015 (Case R 815/2014-1) concerning opposition proceedings between Kuchenmeister and Lotte.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Lotte Co. Ltd to pay the costs.

      (1)  OJ C 337, 12.10.2015.


title: Judgment of the Court (Fifth Chamber) of 1 July 1999 in Case C-173/98 (reference for a preliminary ruling from the Cour d'appel de Bruxelles): Sebago Inc., Ancienne Maison Dubois et Fils SA v G-B Unic SA (Trade mark - Exhaustion of a trade-mark proprietor's rights - Proprietor's consent)

text:
28.8.1999               EN                      Official Journal of the European Communities                                             C 246/7
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                          (Fifth Chamber)
                                                                                of 1 July 1999
                           of 1 July 1999
                                                                           in Case C-173/98 (reference for a preliminary ruling from
                                                                           the Cour d’appel de Bruxelles): Sebago Inc., Ancienne
                                                                                Maison Dubois et Fils SA v G-B Unic SA (1)
in Case C-155/98 P: Spyridoula Celia Alexopoulou v
        Commission of the European Communities (1)
                                                                           (Trade mark — Exhaustion of a trade-mark proprietor’s
                                                                                rights — Proprietor’s consent)
(Appeal — Action declared manifestly unfounded or mani-
  festly inadmissible — Officials — Classification in grade)                                            (1999/C 246/13)
                          (1999/C 246/12)                                                         (Language of the case: French)
                                                                           (Provisional translation: the definitive translation will be published
                                                                                in the European Court Reports)
                    (Language of the case: French)
                                                                           In Case C-173/98: reference to the Court under Article 234 EC
                                                                           (ex Article 177) from the Cour d’appel (Court of Appeal),
                                                                           Brussels, Belgium, for a preliminary ruling in the proceedings
(Provisional translation: the definitive translation will be published     pending before that court between Sebago Inc., Ancienne
                   in the European Court Reports)                          Maison Dubois et Fils SA and G-B Unic SA — on the
                                                                           interpretation of Article 7(1) of the First Council Directive
                                                                           89/104/EEC of 21 December 1988 to approximate the laws
                                                                           of the Member States relating to trade marks (OJ 1989 L 40,
In Case C-155/98 P: Spyridoula Celia Alexopoulou, an official              p. 1) — the Court (Fifth Chamber), composed of:
of the Commission of the European Communities, residing in                 J.-P. Puissochet, President of the Chamber, P. Jann, J.C. Moitin-
Brussels (Belgium), represented by Olivier Slusny, of the                  ho de Almeida, C. Gulmann (Rapporteur) and D.A.O. Edward,
Brussels Bar, with an address for service in Luxembourg at the             Judges; F.G. Jacobs, Advocate General; H. von Holstein, Deputy
Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim —                      Registrar, for the Registrar, has given a judgment on 1 July
appeal against the order of the Court of First Instance of the             1999, in which it has ruled:
European Communities (First Chamber) of 13 February 1998
in Case T-195/96 Alexopoulou v Commission [1998] ECR-SC
I-A-51 and II-117, seeking to have that order set aside, the               Article 7(1) of the First Council Directive 89/104/EEC of 21
other party to the proceedings being Commission of the                     December 1988 to approximate the laws of the Member States
European Communities (Agents: Gianluigi Valsesia and Julian                relating to trade marks, as amended by the Agreement on the
Currall) — the Court (Fifth Chamber), composed of:                         European Economic Area of 2 May 1992, must be interpreted as
J.-P. Puissochet, President of the Chamber, J.C. Moitinho de               meaning that:
Almeida, C. Gulmann, L. Sevón (Rapporteur) and M. Wathelet,
Judges; P. Léger, Advocate General; H. von Holstein, Deputy                — the rights conferred by the trace mark are exhausted only if the
Registrar, for the Registrar, has given a judgment on 1 July                    products have been put on the market in the Community (in the
1999, in which it:                                                              European Economic Area since the Agreement on the European
                                                                                Economic Area entered into force) and that provision does not
                                                                                leave it open to the Member States to provide in their domestic
1. Dismisses the appeal;                                                        law for exhaustion of the rights conferred by the trade mark in
                                                                                respect of products put on the market in non-member countries;
2. Orders Spyridoula Celia Alexopoulou to pay the costs.
                                                                           — for there to be consent within the meaning of Article 7(1) of that
                                                                                directive, such consent must relate to each individual item of the
                                                                                product in respect of which exhaustion is pleaded.
(1) OJ C 258 of 15.8.1998.
                                                                           (1) OJ C 209 of 4.7.1998.


title: Case T-907/16: Action brought on 22 December 2016 — Schwenk Zement v Commission

text:
               27.2.2017

               EN

               Official Journal of the European Union

               C 63/33

         Action brought on 22 December 2016 — Schwenk Zement v Commission
   (Case T-907/16)
   (2017/C 063/45)
   Language of the case: German

      Parties

      Applicant: Schwenk Zement KG (Ulm, Germany) (represented by: U. Soltész, M. Raible and G. Wecker, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the Commission to pay the applicant’s costs.

      Pleas in law and main arguments

   The present action seeks the annulment of Commission Decision C (2016) 6591 final of 10 October 2016 (Case M.7878 — HeidelbergCement/Schwenk/Cemex Hungary/Cemex Croatia (OJ 2016 C 374, p. 1)).
   In support of the action, the applicant relies on two pleas in law:

               1.

               First plea in law, alleging infringement of Article 1 of Regulation (EC) No 139/2004, (1) read, as appropriate, in conjunction with Paragraph 147 of the Commission Consolidated Jurisdictional Notice under Regulation (EC) No 139/2004 (‘the Consolidated Jurisdictional Notice’)
               In the context of the first plea in law, the applicant submits that the examination of the contested concentration does not come within the Commission’s competence. Had the applicant, correctly, not been regarded as a participating undertaking, the turnover thresholds indicated in Article 1 of Regulation (EC) No 139/2004 would not have been met.

               2.

               Second plea in law, alleging a failure to state reasons
               The applicant claims, in this regard, that, although the Commission did refer to the existence of the exceptional case in Paragraph 147 of the Consolidated Jurisdictional Notice, it failed to prove that the conditions actually existed for such an exceptional case.

      (1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).


title: Case F-30/16: Action brought on 17 June 2016 — ZZ and Others v EIB

text:
               16.8.2016

               EN

               Official Journal of the European Union

               C 296/46

         Action brought on 17 June 2016 — ZZ and Others v EIB
   (Case F-30/16)
   (2016/C 296/58)
   Language of the case: French

      Parties

      Applicant: ZZ and Others (represented by: L.-Y. Levi)

      Defendant: European Investment Bank (EIB)

      Subject-matter and description of the proceedings

   Annulment of the decisions contained in the pay slips for the month of April 2016, fixing the annual adjustment of salaries limited to 0,6 % for the year 2016 and the annulment of subsequent pay slips, and, as far as necessary, the briefing note which the defendant sent to the applicants on 8 March 2016, and an order that the defendant pay damages in respect of the material and non-material harm allegedly suffered.

      Form of order sought

               —

               annul the decision contained in the applicants’ pay slips for the month of April 2016, a decision fixing the annual adjustment of the basic salary limited to 0,6 % for the year 2016, and, therefore the annulment of the similar decisions contained in the subsequent payslips and, as far as necessary, the annulment of the briefing note which the defendant sent to the applicants on 8 March 2016;

               —

               order the defendant to pay compensation for material harm (i) for the outstanding salary corresponding to the application of the annual adjustment for 2016, that is, an increase of 2,3 % for the period from 1 January 2016 to 31 December 2016; (ii) for the outstanding salary corresponding to the consequences of applying the annual adjustment of 2.9 % for 2016 on the amount of the salaries which will be paid from January 2016; (iii) for default interest on outstanding salaries due until full payment of the amounts due, the rate of default interest to be applied having to be calculated on the basis of the rate fixed by the European Central Bank for its main refinancing operations, applicable during the relevant period, plus three percentage points; and (iv) for damages due to the loss of purchasing power;

               —

               order the defendant to pay to each applicant EUR 1 000 by way of compensation for non-material damage;

               —

               order the defendant to pay the costs.


title: Judgment of the Court of First Instance of 14 October 2004 in Case T-255/02, H v Court of Justice of the European Communities (Officials — Action for damages — Exposure to asbestos — Occupational disease — Damage)

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/16

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 14 October 2004
   in Case T-255/02, H v Court of Justice of the European Communities (1)

   (Officials - Action for damages - Exposure to asbestos - Occupational disease - Damage)
   (2004/C 314/40)
   Language of the case: French
   In Case T-255/02, H, an official of the Court of Justice of the European Communities, residing in Oetrange (Luxembourg), represented by J. Iturriagagoitia Bassas, lawyer, against Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — application for damages for the physical harm and the non-material, professional and financial loss allegedly suffered by the applicant — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 14 October 2004, in which it:

               1)

               Dismisses the action;

               2)

               Orders the parties to bear their own costs.

      (1)  OJ C 274 of 9.11.2002.