title: Case C-44/04 and C-45/04: Reference for a preliminary ruling by the Tribunale di Gorizia by order of that Court of 18 December 2003, nos. 1259/2003 and 1260/2003, in the proceedings pending between Azienda Agricola Bogar Roberto & Andrea and AGEA

text:
C 85/16                 EN                          Official Journal of the European Union                                         3.4.2004
      (c)   whether, and if so to what extent, the provisions of            (Federal Finance Court) of 27 November 2003, received at the
            § 40 of the Työturvallisuuslaki mentioned in point              Court Registry on 4 February 2004, for a preliminary ruling in
            10 above conflict with Community law, having                    the case of Finanzamt Arnsberg against Stadt Sundern on the
            regard to the consequences as regards criminal law              following questions:
            and the law on compensation, described in points 12
            to 15 above, which derive from failure to comply                1.    May or must the Member States which have incorporated
            with them.                                                            into their domestic law the common flat-rate scheme for
                                                                                farmers provided for in Article 25 of Directive 77/388/
(1) Directive 98/37/EC of the European Parliament and of the Council
                                                                                EEC (1) ultimately exempt flat-rate farmers from payment
    of 22 June 1998 on the approximation of the laws of the Member                of turnover tax?
    States relating to machinery (OJ L 207 of 23.7.1998, p. 1).
                                                                            2.    If Question 1 is answered in the affirmative: Is that the
                                                                                case only for supplies of agricultural products and for
                                                                                agricultural services or also for other transactions of a
                                                                                flat-rate farmer, or are the other transactions subject to
                                                                                the general scheme under Directive 77/388/EEC?
Reference for a preliminary ruling by the College van                             What are the consequences for the grant of a hunting
beroep voor het bedrijfsleven by order of that Court of                           licence by a flat-rate farmer?
23 January 2004 in the case of Maatschap J.B. en R.A.M.
Elshof against the Minister for Agriculture, Nature and
                            Food Quality                                    (1) OJ L 145, p. 1.
                           (Case C-42/04)
                          (2004/C 85/26)
Reference has been made to the Court of Justice of the                      Reference for a preliminary ruling by the Tribunale di
European Communities by order of the College van beroep                     Gorizia by order of that Court of 18 December 2003,
voor het bedrijfsleven of 23 January 2004, received at the                  nos. 1259/2003 and 1260/2003, in the proceedings pend-
Court Registry on 3 February 2004, for a preliminary ruling in              ing between Azienda Agricola Bogar Roberto & Andrea
the case of Maatschap J.B. en R.A.M. Elshof against the Minister                                        and AGEA
for Agriculture, Nature and Food Quality on the following
question:
                                                                                (Case C-44/04 and C-45/04)
Does the term ‘batch’ in Article 4(3) of Regulation (EC) No
1046/2001 (1) have the same meaning as the term ‘load’ in                                             (2004/C 85/28)
point 1 of Annex II to that regulation or must the term ‘batch’
be taken to mean all the animals which are delivered for
rendering by a holding on one day or pursuant to one decision
to purchase?                                                                Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Tribunale di Gorizia
                                                                            (Italy) of 18 December 2003, received at the Court Registry on
(1) OJ L 145 of 31 May 2001, p. 31.
                                                                            4 February 2004, for a preliminary ruling in the proceedings
                                                                            pending between Azienda Agricola Bogar Roberto & Andrea
                                                                            and AGEA on the following questions:
                                                                            Must Article 1 of Regulation (EEC) No 856/84 (1) of 31 March
Reference for a preliminary ruling by the Bundesfinanz-                     1984 and Articles 1 to 4 of Regulation No 3950/92 (2) of
hof by order of that Court of 27 November 2003 in the                       28 December 1992 be interpreted as meaning that the
     case of Finanzamt Arnsberg against Stadt Sundern                       additional levy on milk and milk products is in the nature of
                                                                            an administrative penalty with the result that producers are
                                                                            liable to pay it only where quantities allocated have been
                           (Case C-43/04)                                   exceeded by them intentionally or as a result of negligence?
                          (2004/C 85/27)
                                                                            (1) OJ L 90 of 1.4.1984, p. 10.
                                                                            (2) OJ L 405 of 31.12.1992, p. 1.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesfinanzhof


title: Case T-254/08: Order of the Court of First Instance of 22 December 2009 — Associazione Giùlemanidallajuve v Commission (Alleged infringements of Articles 81 EC and 82 EC — Complaint — Application for a declaration of failure to act — Adoption of a position by the Commission bringing the failure to act to an end — No need to adjudicate)

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/32

         Order of the Court of First Instance of 22 December 2009 — Associazione Giùlemanidallajuve v Commission
   (Case T-254/08) (1)

   (Alleged infringements of Articles 81 EC and 82 EC - Complaint - Application for a declaration of failure to act - Adoption of a position by the Commission bringing the failure to act to an end - No need to adjudicate)
   2010/C 51/61
   Language of the case: French

      Parties

      Applicant: Associazione Giùlemanidallajuve (Cerignola, Italy) (represented by: L. Mission, A. Kettels, G. Ernes and A. Pel, lawyers)

      Defendant: European Commission (represented by: A. Bouquet, Agent)

      Re:

   Application seeking a declaration, under Article 232 EC, that the Commission unlawfully abstained from adopting a position on the applicant’s complaint, concerning infringements of Articles 81 EC and 82 EC allegedly committed by the Federazione Italiana Giuoco Calcio (FIGC), the Comitato Olimpico Nazionale Italiano (CONI), the Union of European Football Associations (UEFA) and the International Federation of Association Football (FIFA).

      Operative part of the order

               1.

               There is no further need to adjudicate on the action.

               2.

               The Associazione Giùlemanidallajuve and the European Commission shall bear their own costs.

      (1)  OJ C 223, 30.8.2008.


title: Joined Cases T-433/03, T-434/03, T-367/04 and T-244/05: Order of the Court of First Instance of 26 June 2008 — Gibtelecom v Commission (Competition — Telecommunications — Decisions not to take any further action on complaints based on Article 86 EC — Failure of the Commission to define a position on complaints based on Article 86 EC — Actions for annulment — Actions for failure to act — Action which becomes devoid of purpose in the course of proceedings — No need to adjudicate)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/40

         Order of the Court of First Instance of 26 June 2008 — Gibtelecom v Commission
   (Joined Cases T-433/03, T-434/03, T-367/04 and T-244/05) (1)

   (Competition - Telecommunications - Decisions not to take any further action on complaints based on Article 86 EC - Failure of the Commission to define a position on complaints based on Article 86 EC - Actions for annulment - Actions for failure to act - Action which becomes devoid of purpose in the course of proceedings - No need to adjudicate)
   (2008/C 223/67)
   Language of the case: English
   Parties

      Applicant: Gibtelecom Ltd (Gibraltar) (represented by: M. Llamas, barrister, and B. O'Connor, solicitor)

      Defendant: Commission of the European Communities (represented by: F. Castillo de la Torre and A. Whelan, and subsequently by F. Castillo de la Torre, Agents)
   Re:
   Actions for (i) annulment of the alleged decisions of the Commission of 17 October 2003, 5 July 2004 and 26 April 2005 not to take any further action in respect of two complaints calling on the Commission to act, on the basis of Article 86(3) EC, to put an end to infringements of Community law allegedly committed by the Kingdom of Spain, and (ii) a declaration under Article 232 EC that, by failing to define a position on the further action which it proposed to take with respect to certain aspects of one of those complaints, the Commission failed to fulfil its obligations under Community law.
   Operative part of the order

               1.

               There is no need to adjudicate on the actions;

               2.

               There is no need to adjudicate on the Kingdom of Spain's application to intervene in Case T-367/04;

               3.

               Gibtelecom Ltd and the Commission shall each bear their own costs.

      (1)  OJ C 59, 6.3.2004.


title: Case F-27/12: Action brought on 24 February 2012 — ZZ v Commission

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/22

         Action brought on 24 February 2012 — ZZ v Commission
   (Case F-27/12)
   2012/C 184/48
   Language of the case: Italian

      Parties

      Applicant: ZZ (represented by: R. Ferlin, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Application for annulment of the Commission’s decision not to include the applicant in competition EPSO/COM/AD/02/10–AD7.

      Form of order sought

               —

               Annul Decision No R/718/11 of the European Commission of 21 November 2011;

               —

               In the alternative, annul the competition in its entirety;

               —

               Order the Commission to pay the sum of EUR 50 000 by way of compensation for the non-material damage caused to the applicant;

               —

               Order the defendant to pay all the costs of the proceedings and all legal costs.


title: Case C-309/06: Judgment of the Court (Third Chamber) of 10 April 2008 (reference for a preliminary ruling from the House of Lords — United Kingdom) — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise (Taxation — Sixth VAT Directive — Exemption with refund of tax paid at the preceding stage — Erroneous taxation at the standard rate — Right to zero rate — Entitlement to refund — Direct effect — General principles of Community law — Unjust enrichment)

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/7

         Judgment of the Court (Third Chamber) of 10 April 2008 (reference for a preliminary ruling from the House of Lords — United Kingdom) — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise
   (Case C-309/06) (1)

   (Taxation - Sixth VAT Directive - Exemption with refund of tax paid at the preceding stage - Erroneous taxation at the standard rate - Right to zero rate - Entitlement to refund - Direct effect - General principles of Community law - Unjust enrichment)
   (2008/C 128/11)
   Language of the case: English
   Referring court
   House of Lords
   Parties to the main proceedings

      Applicant: Marks & Spencer plc

      Defendant: Her Majesty's Commissioners of Customs and Excise
   Re:
   Reference for a preliminary ruling — House of Lords — Interpretation of Article 28(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Existence of Community law capable of being relied on by a supplier of a product (teacakes) in respect of which national legislation maintains an exemption with refund of input tax — VAT incorrectly paid by reason of a misconstruction of the national legislation by the competent authorities — Application of the general principles of Community law, including that of fiscal neutrality — Possibility for an individual to rely on those general principles for the purpose of recovering the sums wrongly levied
   Operative part of the judgment

               1.

               Where, under Article 28(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, both before and after the insertion of the amendments made to that provision by Council Directive 92/77/EEC of 19 October 1992, a Member State has maintained in its national legislation an exemption with refund of input tax in respect of certain specified supplies, a trader making such supplies does not have any directly enforceable Community-law right to have those supplies taxed at a zero rate of value added tax.

               2.

               Where, under Article 28(2) of Sixth Directive 77/388, both before and after the insertion of the amendments made to that provision by Directive 92/77, a Member State has maintained in its national legislation an exemption with refund of input tax in respect of certain specified supplies but has mistakenly interpreted its national legislation, with the consequence that certain supplies benefiting from exemption with refund of input tax under its national legislation have been subject to tax at the standard rate, the general principles of Community law, including that of fiscal neutrality, apply so as to give a trader who has made such supplies a right to recover the sums mistakenly charged in respect of them.

               3.

               Although the principles of equal treatment and fiscal neutrality apply in principle to the case in the main proceedings, an infringement of those principles is not constituted merely by the fact that a refusal to make repayment was based on the unjust enrichment of the taxable person concerned. By contrast, the principle of fiscal neutrality precludes the concept of unjust enrichment from being applied only to taxable persons such as ‘payment traders’ (taxable persons for whom, in a given prescribed accounting period, the output tax collected exceeds the input tax) and not to taxable persons such as ‘repayment traders’ (taxable persons whose position is the inverse of that of payment traders), in so far as those taxable persons have marketed similar goods. It will be for the national court to determine whether that is the position in the present case. Furthermore, the general principle of equal treatment, the infringement of which may be established, in matters relating to tax, by discrimination affecting traders who are not necessarily in competition with each other but are nevertheless in a similar situation in other respects, precludes discrimination between ‘payment traders’ and ‘repayment traders’, which is not objectively justified.

               4.

               The answer to the third question is not affected where there is evidence that a trader who has been refused repayment of value added tax which was wrongly levied has not suffered any financial loss or disadvantage.

               5.

               It is for the national court itself to draw any conclusions with respect to the past from the infringement of the principle of equal treatment referred to in point 3 of the operative part of this judgment, in accordance with the rules relating to the temporal effects of the national legislation applicable in the main proceedings, in compliance with Community law and, in particular, with the principle of equal treatment and the principle that it must ensure that the remedies which it grants are not contrary to Community law.

      (1)  OJ C 261, 28.10.2006.


title: Case T-531/10: Judgment of the General Court of 14 December 2011 — Häfele v OHIM (Vorfront) (Community trade mark — Application for Community word mark Vorfront — Absolute ground for refusal — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/25

         Judgment of the General Court of 14 December 2011 — Häfele v OHIM (Vorfront)
   (Case T-531/10) (1)

   (Community trade mark - Application for Community word mark Vorfront - Absolute ground for refusal - Article 7(1)(c) of Regulation (EC) No 207/2009)
   2012/C 32/50
   Language of the case: German

      Parties

      Applicant: Häfele GmbH & Co. KG (Nagold, Germany) (represented by: M. Eck and J. Dönch, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: S. Schäffner, subsequently by: R. Manea and finally by: A. Pohlmann, acting as Agents)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 14 September 2010 (Case R 570/2010-1), concerning an application for registration of the word sign Vorfront as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Häfele GmbH & Co. KG to pay the costs.

      (1)  OJ C 30, 29.1.2011.


title: Case C-271/08: Action brought on 24 June 2008 — Commission v Germany

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/27

         Action brought on 24 June 2008 — Commission v Germany
   (Case C-271/08)
   (2008/C 223/43)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: G. Wilms and D. Kukovec, Agents)

      Defendant: Federal Republic of Germany
   Form of order sought

               —

               Declare that the Federal Republic of Germany has until, 31 January 2006, infringed Article 8 in conjunction with Titles III to VI of Directive 92/50/EEC (1) and, since 1 February 2006, infringed Article 20 in conjunction with Articles 23 to 55 of Directive 2004/18/EEC (2), because local authorities and local authority undertakings with more than 1 218 employees awarded public service contracts concerning occupational pension schemes without a European call for tenders directly to the organisations and undertakings mentioned in Paragraph 6 of the Tarifvertrag zur Entgeltumwandlung für Arbeitnehmer/-innen im kommunalen öffentlichen Dienst (TV-EUmw/VKA) (Collective agreement on the conversion of earnings into pension contributions for local authority employees);

               —

               order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments
   In Germany, employees have the right to demand that part of their future earnings — up to 4 % of the relevant contribution assessment ceiling for the statutory pension fund — are paid into their occupational pension schemes through the conversion of earnings into pension contributions (Entgeltumwandlung). According to the Tarifvertrag zur Entgeltumwandlung für Arbeitnehmer/-innen im kommunalen öffentlichen Dienst (Collective agreement on the conversion of earnings into pension contributions for local authority employees — ‘the collective agreement’) the conversion of earnings into pension contributions is the responsibility of local authorities or, as the case may be, local authority undertakings. The conversion of earnings into pension contributions has to implemented through public bodies offering supplementary private pensions or, as the case may be, undertakings that are part of the Sparkassen finance group or local authority insurance companies (Kommunalversicherer). As a general rule, local authorities or, as the case may be, local authority undertakings enter into group insurance contracts for all their employees, under which the conversion of earnings into pension contributions is agreed with one of the organisations mentioned above.
   According to information available to the Commission, local authorities or, as the case may be, local authority undertakings awarded those public service contracts relating to occupational pension schemes directly to the organisations and undertakings mentioned in the collective agreement, without first issuing a European call for tenders.
   Public services relating to occupational pension schemes fell within the scope of Annex I A, category 6 of Directive 92/50/EC and, since 1 February 2006, have come under Annex II Part A of Directive 2004/18/EC. They constitute insurance and pension fund services that do not fall within the scope of the statutory social security system. Therefore, the service contracts at issue, which were awarded by local authorities — in other words, contracting authorities — constitute public contracts for pecuniary interest concluded in writing within the meaning of the abovementioned directives. In addition, according to the case-law, Article 1(a) of Directive 92/50/EC does not make a distinction between contracts that a contracting authority awards in the context of carrying out its general interest functions and contracts that are not connected to those functions. Therefore, the Court of Justice rejected the idea that the nature of a contracting body can be determined by its function. The objection raised by Germany that, as regards occupational pension schemes, public authorities or, as the case may be, local authority undertakings do not — for the purposes of procurement law — carry out the functions of contracting authorities, could not be upheld.
   Further, the Commission takes the view that the contracts at issue exceeded the relevant thresholds by a significant amount. Contrary to the view taken by the defendant, that calculation does not have to be done for every single contract. What matters is the duration of the framework agreement since, for the purposes of Community law on public procurement, the public contract does not concern individual agreements between the employee and the employer. Accordingly, the value of a framework agreement to be taken into account is equivalent to the estimated total value — net of value added tax — of all contracts whose implementation is envisaged throughout the entire duration of the framework agreement. According to calculations undertaken by the Commission, at least 110 cities in the Federal Republic of Germany exceeded the threshold.
   Local authorities and local authority undertakings should not have awarded public service contracts relating to occupational pensions schemes to organisations and undertakings mentioned in the collective agreement, but rather after issuing a European call for tenders. This finding is not affected by the fact that continued payment of remuneration has been agreed under a collective wage agreement. First, the case-law of the Court of Justice clearly shows that Community law does not make general provisions for collective bargaining autonomy and, second, the Commission cannot see how, if contracting authorities were to fulfil their obligation to put contracts out to public tender, this would limit the application of the principle of collective bargaining autonomy enshrined in the German Basic Constitutional Law.

      (1)  OJ 1992 L 209, p. 1.

      (2)  OJ 2004 L 134, p. 114.


title: Case C-529/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 28 November 2007 — Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH

text:
               9.2.2008

               EN

               Official Journal of the European Union

               C 37/13

         Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 28 November 2007 — Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth GmbH
   (Case C-529/07)
   (2008/C 37/17)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: Chocoladefabriken Lindt & Sprüngli AG

      Defendant: Franz Hauswirth GmbH
   Questions referred

               1.

               Is Article 51(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (1) to be interpreted as meaning that an applicant for a Community trade mark is to be regarded as acting in bad faith where he knows, at the time of his application, that a competitor in (at least) one Member State is using the same sign, or one so similar as to be capable of being confused with it, for the same or similar goods or services, and he applies for the trade mark in order to be able to prevent that competitor from continuing to use the sign?

               2.

               If the first question is answered in the negative:
               Is the applicant to be regarded as acting in bad faith if he applies for the trade mark in order to be able to prevent a competitor from continuing to use the sign, where, at the time he files his application, he knows or ought to know that by using an identical or similar sign for the same goods or services, or goods or services which are so similar as to be capable of being confused, the competitor has already acquired ‘valuable property rights’?

               3.

               If either the first or the second question is answered in the affirmative:
               Is bad faith excluded if the applicant's sign has already obtained a reputation with the public and is therefore protected under competition law?

      (1)  OJ 1994 L 11, p. 1.


title: Case C-306/08: Judgment of the Court (Third Chamber) of 26 May 2011 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directives 93/37/EEC and 2004/18/EC — Procedures for the award of public works contracts — Urban development legislation of the Autonomous Community of Valencia)

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/3

         Judgment of the Court (Third Chamber) of 26 May 2011 — European Commission v Kingdom of Spain
   (Case C-306/08) (1)

   (Failure of a Member State to fulfil obligations - Directives 93/37/EEC and 2004/18/EC - Procedures for the award of public works contracts - Urban development legislation of the Autonomous Community of Valencia)
   2011/C 211/05
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: A. Alcover San Pedro, D. Kukovec and M. Konstantinidis, Agents)

      Defendant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 1, 6(6), 11, 12 and Title II of Chapter IV (Articles 24 to 29) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) and Articles 2, 6, 24, 30, 31(4)(a), 48(2) and 53 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Urban development legislation of the Valencian Community — Non-conformity with Community law

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the European Commission to pay the costs.

      (1)  OJ C 223, 30.8.2008.


title: Case C-451/03: Reference for a preliminary ruling by the Corte d'Appello di Milano — Sezione Prima Civile by order of that Court of 15 October 2003 in the case of Servizi Ausiliari Dottori Commercialisti s.r.l. against Notaio Giuseppe Calafiori; intervener: The Public Prosecutor, in the person of the Attorney General at the Court of Appeal, Milan

text:
C 7/20                 EN                          Official Journal of the European Union                                              10.1.2004
      which carries out the operations listed in Annex II A or B                 out the operations listed in Annex II A or B of the
      or recovers or disposes of it himself, the Italian Republic                directive. It has therefore also failed to fulfil its obligations
      has failed to fulfil its obligations under Article 4 and                   under Article 8 of that directive.
      Article 8 of Directive 75/442/EEC (1), as amended by
      Directive 91/156/EEC (2).
                                                                           (1) OJ 1975 L 194, p. 39.
                                                                           (2) OJ 1991 L 78, p. 32.
—     order the Italian Republic to pay the costs.
Pleas in law and main arguments
                                                                           Reference for a preliminary ruling by the Corte d’Appello
—     As regards the site of the former Enichem industrial plant,          di Milano — Sezione Prima Civile by order of that Court
      in view of the information provided by the Italian                   of 15 October 2003 in the case of Servizi Ausiliari Dottori
      authorities and the subsequent prolonged silence maintai-            Commercialisti s.r.l. against Notaio Giuseppe Calafiori;
      ned by them, it must be considered that the removal                  intervener: The Public Prosecutor, in the person of the
      operations of the waste deposited on Island 5 were not                     Attorney General at the Court of Appeal, Milan
      completed as planned by December 2002; that Enichem
      has not submitted, by December 2002, a project for the
      decontamination of the waste deposited on Islands 12,                                          (Case C-451/03)
      14 and 17 and that it is therefore lying in the same place,
      even though it is beyond doubt that it needs to be
      removed; that regarding the waste on Island 16 there is
      at present only an outline plan still a long way from being                                     (2004/C 7/33)
      implemented.
—     As for the Pariti I and Conte di Troia dumps, the technical
      preliminary investigations conducted by the Ministry of              Reference has been made to the Court of Justice of the
      the Environment concerning the plan for the identifi-                European Communities by order of the Corte d’Appello di
      cation of the sites in question has not been completed for           Milano — Sezione Prima Civile (Court of Appeal, Milan —
      October 2002 as planned, and therefore the situation                 Civil Section I) of 15 October 2003, received at the Court
      has remained completely unchanged since the reasoned                 Registry on 27 October 2003, for a preliminary ruling in the
      opinion was delivered.                                               case of Servizi Ausiliari Dottori Commercialisti s.r.l. against
                                                                           Notaio Giuseppe Calafiori; intervener: The Public Prosecutor,
                                                                           in the person of the Attorney General at the Court of Appeal,
                                                                           Milan on the following questions:
—     In the light of the foregoing, notwithstanding that the
      Conte di Troia dump does not constitute an immediate
      risk to the environment, the fact remains that the Italian           1.    Must Articles 4, 10, 82, 86 and 98 of the EC Treaty be
      Republic has not brought into force any measures to                        interpreted as precluding national rules such as those laid
      ensure that the waste lying in the Pariti I dump since                     down in Legislative Decree No 241 of 9 July 1997, as
      1989 and Enichem’s Manfredonia site since 1993 is                          amended by Legislative Decree No 490 of 28 December
      recovered and disposed of without using processes or                       1998, read together with the consolidated law on income
      methods which could harm the environment. It has                           tax (Decree of the President of the Republic No 917 of
      therefore failed to fulfil its obligations under Article 4 of              22 December 1986) and Law No 413 of 30 December
      the directive.                                                             1991, which exclusively reserves the right to provide
                                                                                certain types of tax advice to a single category of
                                                                                operators, namely the Centri di Assistenza Fiscale (or
                                                                                CAFs), and denies other economic operators in the sector
—     The Italian Republic has failed to bring into force the                    who are nevertheless professionally qualified to provide
      necessary measures to ensure that the holder of the waste                  tax and accounting advice (doctors, commercial account-
      on Enichem’s Manfredonia site and in the Pariti I and                      ants, lawyers and work consultants) the opportunity of
      Conte di Troia dumps has it handled by a public or                         providing, on the same terms and conditions, the type of
      private waste collector or by an undertaking which carries                 advice reserved to the CAFs?
 ---pagebreak--- 10.1.2004              EN                         Official Journal of the European Union                                            C 7/21
2.    Must Articles 43, 48 and 49 of the EC Treaty be                          common system of value added tax: uniform basis of
      interpreted as precluding national rules such as those laid              assessment, in particular Articles 2, 4, and 9, the Thir-
      down in Legislative Decree No 241 of 9 July 1997, as                     teenth Council Directive (86/560/EEC) (2) of 17 Novem-
      amended by Legislative Decree No 490 of 28 December                      ber 1986 on the harmonisation of the laws of the
      1998, read together with the consolidated law on income                  Member States relating to turnover taxes — arrangements
      tax (Decree of the President of the Republic No 917 of                   for the refund of value added tax to taxable persons
      22 December 1986) and Law No 413 of 30 December                          not established in Community territory, in particular
      1991, which exclusively reserves the right to provide                    Articles 1 and 2, and the general principles of Community
      certain types of tax advice to a single category of                      law:
      operators, namely the Centri di Assistenza Fiscale (or
      CAFs), and denies other economic operators in the sector
      who are nevertheless professionally qualified to provide
      tax and accounting advice (doctors, commercial account-                  1.   How is the expression ‘fixed establishment’ in
      ants, lawyers and work consultants) the opportunity of                        Article 9 of the Sixth Directive to be interpreted?
      providing, on the same terms and conditions, the type of
      advice reserved to the CAFs?
                                                                               2.   What are the factors to be considered in determining
3.    Must Article 87 of the EC Treaty be interpreted as                            whether the supply of slot gaming services is from
      meaning that a measure such as that arising from the                          the business establishment of a company such as Cl
      rules laid down in Legislative Decree No 241 of 9 July                        or from any fixed establishments that a company
      1997, and in particular Article 38 thereof, which provides                    such as Cl might possess?
      for payment to be made to CAFs from State funds in
      respect of the activities referred to in Articles 34(4) and
      37(2) of that legislative decree, constitute State aid?
                                                                               3.   In particular:
                                                                                a)   Where the business of a company (‘A’) is
                                                                                structured in circumstances such as those of the
                                                                                present case so that a connected company (‘B’),
                                                                                whose business establishment lies outside the
                                                                                territory of the Community, supplies slot gam-
Reference for a preliminary ruling by the High Court of                                  ing services and the sole purpose of the struc-
Justice (England & Wales), Chancery Division, by order                                   ture is to eliminate A’s liability to pay VAT in
of that court dated 17 October 2003, in the case of 1) RAL                               the State in which it is established:
(Channel Islands) Ltd, 2) RAL Ltd, 3) RAL Services Ltd,
4) RAL Machines Ltd against Commissioners of Customs
                            and Excise                                                   (i)   can the slot gaming services be regarded
                                                                                as supplied from a fixed establishment in
                                                                                that Member State; and, if so,
                         (Case C-452/03)
                          (2004/C 7/34)                                                  (ii) are the slot gaming services to be deemed
                                                                                to be supplied from the fixed establish-
                                                                                ment or are they deemed to be supplied
                                                                                from the place where B has established its
                                                                                business?
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of Justice
(England & Wales), Chancery Division, dated 17 October 2003,
which was received at the Court Registry on 27 October 2003,                        b)   Where the business of a company (‘A’) is
for a preliminary ruling in the case of 1) RAL (Channel Islands)                         structured so that, for the purposes of the place
Ltd, 2) RAL Ltd, 3) RAL Services Ltd, 4) RAL Machines Ltd and                            of supply rules, a connected company (‘B’), in
Commissioners of Customs and Excise on the following                                     circumstances such as those of the present case,
questions:                                                                               purports to supply slot gaming services from a
                                                                                business establishment outside the territory of
                                                                                the Community and has no fixed establishment,
(1) In the circumstances of the present case and
                                                                                from which those services are provided, in the
                                                                                Member State in which A is established and the
(2) having regard to the Sixth Council Directive (77/388/                                sole purpose of the structure is to eliminate A’s
      EEC) (1) of 17 May 1977 on the harmonisation of the                                liability to pay VAT in that State on those
      laws of the Member States relating to turnover taxes —                             services:


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 16 July 1998 in Case T-81/97: Region of Tuscany v. Commission of the European Communities (Integrated Mediterranean programmes - Community financial assistance - Regulation (EEC) No 4256/88 - Regulation (EEC) No 2085/93)

text:
C 299/34             EN                 Official Journal of the European Communities                                    26.9.98
  JUDGMENT OF THE COURT OF FIRST INSTANCE                          President, R. M. Moura Ramos and P. Mengozzi, Judges;
                       of 17 July 1998                             Blanca Pastor, Principal Administrator, for the Registrar,
                                                                   gave a judgment on 14 July 1998, in which it:
in Case T-28/97: AgneÁs Hubert v. Commission of the
                  European Communities (1)                         1. dismisses the action;
(Officials Ð Action for annulment Ð Transfer/reposting             2. the parties shall bear their own costs.
Ð Interests of the service Ð Absence of statement of
            reasons Ð Action for compensation)                     (1) OJ C 166, 31.5.1997.
                        (98/C 299/57)
               (Language of the case: French)
In Case T-28/97: AgneÁs Hubert, an official of the                   JUDGMENT OF THE COURT OF FIRST INSTANCE
Commission of the European Communities, residing in                                       of 16 July 1998
Brusels, represented by Marc-Albert Lucas, of the LieÁge
                                                                   in Case T-81/97: Region of Tuscany v. Commission of the
Bar, with an address for service in Luxembourg at the
                                                                                European Communities (1)
Chambers of Evelyne Korn, 21, rue de Nassau, v. the
Commission of the European Communities (Agents:                    (Integrated Mediterranean programmes Ð Community
Gianluigi Valsesia, Christine Berardis-Kayser and Denis            financial assistance Ð Regulation (EEC) No 4256/88 Ð
Waelbroeck) Ð application, first, for annulment of the                            Regulation (EEC) No 2085/93)
Commission's decision of 27 March 1996 changing the
                                                                                (98/C 299/59)
applicant's posting and, second, for compensation for the
material and non-material damage allegedly resulting                              (Language of the case: Italian)
therefrom Ð the Court of First Instance (Fourth
Chamber), composed of: P. Lindh, President, and K.                 In Case T-81/97: Region of Tuscany, represented by Vito
Lenaerts and J. D. Cooke, Judges; B. Pastor, Principal             Vacchi and Lucia Bora, of the Florence Bar, with an
Administrator, for the Registrar, has given a judgment on          address for service in Luxembourg at the office of Paolo
17 July 1998, in which it:                                         Benocci, 50, rue de Vianden, against the Commission of
                                                                   the European Communities (Agents: Paolo Ziotti and
1. dismisses the action;                                           Alberto Dal Ferro) Ð application for annulment of several
                                                                   acts of the Commission concerning the Community
2. orders the parties to bear their own costs.
                                                                   assistance allocated to project No 88.20.IT.006.0 (works
                                                                   for the supply of drinking water in Tuscany) Ð the Court
(1) OJ C 131, 26.4.1997.
                                                                   (Third Chamber), composed of: V. Tiili, President, C. P.
                                                                   BrieÈt and A. Potocki, Judges; J. Palacio GonzaÂlez,
                                                                   Administrator, for the Registrar, has given a judgment on
                                                                   16 July 1998 in which it:
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                   1. annuls the decision contained in the letter of
                       (First Chamber)                                  31 January 1997;
                       of 14 July 1998
                                                                   2. dismisses the      remainder    of  the   application  as
in Case T-42/97: Giorgio Lebedef v. Commission of the                   inadmissible;
                  European Communities (1)
                                                                   3. orders the Commission to pay the costs.
(Officials Ð Refusal to authorise secondment on union
duties to the person designated by a trade union Ð                 (1) OJ C 166, 31.5.1997.
                         Admissibility)
                        (98/C 299/58)
               (Language of the case: French)
                                                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
In Case T-42/97: Giorgio Lebedef, an official at the                                      of 16 July 1998
Commission of the European Communities, residing in
Senningerberg (Luxembourg), represented by Gilles                  in Case T-195/97: Kia Motors Nederland BV and
BouneÂou, of the Luxembourg Bar, with an address for                     Broeckman Motorships BV v. Commission of the
service in Luxembourg at his Chambers at 4, rue de                                   European Communities (1)
l'Avenir, against the Commission of the European                   (Commission decision declaring that the repayment of
Communities (Agents: Gianluigi Valsesia and Julian                 import duties is not justified Ð Action for annulment Ð
Currall) Ð application for, first, the annulment of a               Article 239 of the customs code Ð Duty to state reasons)
decision of the Commission of 12 May 1996 refusing to
                                                                                (98/C 299/60)
grant to the applicant the secondment on union duties
requested by his trade union and the re-examination of all                        (Language of the case: Dutch)
secondment on trade union duties granted in the past and,
secondly, a finding that the secondment on trade union             In Case T-195/97: Kia Motors Nederland BV, established
duties procedure was unlawful Ð the Court of First                 in Vianen (The Netherlands), and Broeckman Motorships
Instance (First Chamber), composed of: B. Vesterdorf,              BV, established in Rotterdam (The Netherlands),


title: Case C-595/16: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 23 November 2016 — Emmea Srl and Commercial Hub Srl v Comune di Siracusa and Others

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/19

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia (Italy) lodged on 23 November 2016 — Emmea Srl and Commercial Hub Srl v Comune di Siracusa and Others
   (Case C-595/16)
   (2017/C 239/25)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per la Sicilia

      Parties to the main proceedings

      Applicants: Emmea Srl and Commercial Hub Srl

      Defendants: Comune di Siracusa, Assessorato delle Attività Produttive per la Regione Siciliana, Libera Consorzio Comunale (formerly Provincia) di Siracusa, and Camera di Commercio di Siracusa
   By order of 27 April 2017, the Court (Tenth Chamber) declared that the request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia, made by order of 20 October 2016, is manifestly inadmissible.


title: Case C-508/06: Action brought on 14 December 2006 — Commission of the European Communities v Republic of Malta

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/15

         Action brought on 14 December 2006 — Commission of the European Communities v Republic of Malta
   (Case C-508/06)
   (2007/C 56/26)
   Language of the case: English
   Parties

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

      Defendant: Republic of Malta
   The applicant claim that the Court should:

               —

               declare that the Maltese authorities have failed to fulfil their obligations under Article 11 of Council Directive 96/59/EC (1) as read in conjunction with Article 54 of the 2003 Act of Accession.

               —

               order Republic of Malta to pay the costs.

         Pleas in law and main arguments
   The time limit within which the Republic of Malta was required to have communicated the plans and outlines under article 11 of the directive expired on 1 May 2004.

      (1)  OJ L 243, p. 31.


title: Case T-444/07: Judgment of the Court of First Instance of 30 June 2009 — CPEM v Commission of the European Communities (ESF — Cancellation of financial assistance — OLAF report)

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/20

         Judgment of the Court of First Instance of 30 June 2009 — CPEM v Commission of the European Communities
   (Case T-444/07) (1)

   (ESF - Cancellation of financial assistance - OLAF report)
   2009/C 193/30
   Language of the case: French

      Parties

      Applicant: Centre de promotion de l'emploi par la micro-entreprise (CPEM) (Marseilles, France) (represented by: C. Bonnefoi, lawyer)

      Defendant: Commission of the European Communities (represented by: L. Flynn and A. Steiblytė, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2007) 4645 of 4 October 2007, cancelling the assistance granted by the European Social Fund (ESF) by Decision C(1999) 2645 of 17 August 1999, and also application for damages

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders the Centre de promotion de l'emploi par la micro-entreprise (CPEM) to pay the costs, including those relating to the interim proceedings.

      (1)  OJ C 37, 9.2.2008.


title: Case T-400/11: Order of the General Court of 9 September 2013 — Altadis v Commission (Action for annulment — State aid — Aid scheme allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions — Decision declaring the aid scheme to be incompatible with the common market and not ordering the recovery of the aid — Act entailing implementing measures — Lack of individual concern — No obligation to recover — Inadmissibility)

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/21

         Order of the General Court of 9 September 2013 — Altadis v Commission
   (Case T-400/11) (1)

   (Action for annulment - State aid - Aid scheme allowing for the tax amortisation of financial goodwill for foreign shareholding acquisitions - Decision declaring the aid scheme to be incompatible with the common market and not ordering the recovery of the aid - Act entailing implementing measures - Lack of individual concern - No obligation to recover - Inadmissibility)
   2013/C 336/43
   Language of the case: Spanish

      Parties

      Applicant: Altadis, SA (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers)

      Defendant: European Commission (represented by: R. Lyal, C. Urraca Caviedes and P. Němečkova, acting as Agents)

      Re:

   Application for partial annulment of Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).

      Operative part of the order

               1.

               The action is dismissed;

               2.

               Altadis, SA is ordered to pay the costs.

      (1)  OJ C 282, 24.9.2011.


title: Case T-219/06: Order of the Court of First Instance of 3 April 2008 — PTV v OHIM (map&guide travelbook)

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/37

         Order of the Court of First Instance of 3 April 2008 — PTV v OHIM (map&guide travelbook)
   (Case T-219/06) (1)

   (2008/C 142/67)

      Language of the case: German

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

      (1)  OJ C 237, 30.9.2006.


title: Case C-67/99: Action brought on 25 February 1999 by the Commission of the European Communities against Ireland

text:
C 136/8                EN                   Official Journal of the European Communities                                     15.5.1999
3. If Question 1 is answered in the negative or Question 2 in          Pleas in law and main arguments
    the affirmative:
    Is Article 203(1) of the Customs Code to be construed as           Article 4(1) of the Directive imposes two obligations. Firstly,
    meaning that there is a removal from customs supervision           Member States must propose a list of sites designated as special
    where the non-Community goods declared for release into            areas of conservation and, secondly, they must transmit this
    free circulation are removed from the prescribed place of          list to the Commission, together with the relevant information
    storage/examination and consequently from the local area           on these sites.
    for which the customs office in question is responsible,
    even though the customs office had ordered a customs               The Commission submits that Ireland has proposed no site in
    examination?                                                       respect of 26 of the habitat types of Annex I of the Directive
                                                                       and 20 of Annex II in Ireland. In particular, Ireland has
4. If Question 3 is answered in the negative:                          proposed no sites for certain priority habitat types and species
    Is Article 204(1) of the Customs Code to be construed as           which have a significant presence on Ireland’s territory.
    meaning that the unauthorised removal of the goods from
    their place of storage has had ‘no significant effect’ on the      The Commission also draws attention to the fact that, for
    correct operation of the temporary storage if, after their         some habitat types and species, the competent Irish authority
    removal, the goods could, on request, have been presented          has communicated an intention of not proposing any site. The
    at another customs office?                                         Commission considers that such an exclusion from site
                                                                       proposal of natural habitat types and species is contrary to the
5. Can there be no question of a customs debt on importation           requirements of Article 4(1) of the Directive.
    being incurred
    (a) under Article 201(1)(a), in conjunction with Article           Secondly, the Commission concludes that, in the case of
        201(2), of the Customs Code, where the customs                 certain habitat types and species habitats, the number of sites
        declaration is simply accepted by the customs office,          definitively proposed by Ireland is manifestly insufficient in
        or                                                             the light of the criteria listed in Annex III and in view of the
                                                                       conservation objective pursued by the Directive. The natural
    (b) under Article 203(1) of the Customs Code, or                   importance of such habitats requires both that a larger number
                                                                       of sites be proposed and that the distribution of these sites be
    (c) under Article 204 of the Customs Code,
                                                                       more evenly balanced over the national territory as a whole.
        if formally unobjectionable certificates of origin corres-
        ponding to Form A were attached to the customs
        declaration accepted by the customs office and the             (1) OJ L 206, 22.7.1992, p. 7.
        preferential tariff rate ‘free’ applied to the goods
        covered by the declaration?
                                                                       Action brought on 26 February 1999 by the Commission
Action brought on 25 February 1999 by the Commission                   of the European Communities against the United
       of the European Communities against Ireland                                                  Kingdom
                         (Case C-67/99)
                                                                                (Case C-69/99)
                        (1999/C 136/12)
                                                                                (1999/C 136/13)
An action against Ireland was brought before the Court of
Justice of the European Communities on 25 February 1999 by             An action against the United Kingdom was brought before the
the Commission of the European Communities, represented                Court of Justice of the European Communities on 26 February
by Mr Richard Wainwright, Principal Legal Adviser, and Mr              1999 by the Commission of the European Communities,
Paolo Stancanelli, member of the Legal Service, acting as              represented by Mr Richard Wainwright, Principal Legal
agents, with an address for service in Luxembourg at the office        Adviser, acting as agent, with an address for service in
of Mr Carlos Gómez de la Cruz, member of the Legal Service            Luxembourg at the office of Mr Carlos Gómez de la Cruz,
of the Commission, Centre Wagner.                                      member of the Legal Service of the Commission, Centre
                                                                       Wagner.
The Applicant claims that the Court should:
— declare that, by failing to transmit to the Commission the           The Applicant claims that the Court should:
    full list of sites mentioned in the first subparagraph of
    Article 4(1) of Council Directive 92/43/EEC (1) of 21 May          — declare that, by failing to adopt all the measures necessary
    1992 on the conservation of natural habitats and of wild                to comply with its obligations under Article 3(1) and (2),
    fauna and flora, together with the information on each site             and under Article 5 of Council Directive 91/676/EEC (1) of
    required by the second paragraph of Article 4(1) of the                 12 December 1991 concerning the protection of waters
    said Directive, Ireland has failed to fulfil its obligations            against pollution of nitrates from agricultural sources, the
    under the Directive;                                                    United Kingdom has failed to fulfil its obligations under
                                                                            that Directive and under the Treaty establishing the
— order Ireland to bear the costs.                                          European Community;


title: Case C-516/10: Action brought on 29 October 2010 — European Commission v Republic of Austria

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/21

         Action brought on 29 October 2010 — European Commission v Republic of Austria
   (Case C-516/10)
   ()
   2011/C 13/38
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: G. Braun and E. Montaguti, acting as Agents)

      Defendant: Republic of Austria

      Form of order sought

               —

               Declare that, by maintaining in force Paragraph 5 in conjunction with Paragraph 2(3) and (4) and Paragraph 6(2)(g) of the VGVG, the Republic of Austria has infringed Articles 49 TFEU and 63 TFEU;

               —

               Declare that, by maintaining in force Paragraph 6(2)(d) in conjunction with Paragraph 2(3) and (4) of the VGVG, the Republic of Austria has infringed Articles 49 TFEU and 63 TFEU;

               —

               Order the Republic of Austria to pay the costs.

      Pleas in law and main arguments

   The Commission does not question the fact that Member States may restrict the purchase of plots of land on grounds of public interest. However, the provisions of the Vorarlberger Grundverkehrsgesetz (VGVG) cited in the forms of order sought constitute a disproportionate restriction on the free movement of capital and the right of establishment.
   In particular, the so-called Interessentenregel (‘interested parties rule’), according to which the VGVG landowners take precedence in purchases of agricultural land over non-landowners, is disproportionate. The continued agricultural use of the land can, according to the defendant, thus be guaranteed if the potential purchaser is willing to lease the land on a long-term basis to the previous tenant.
   Similarly, it is not apparent why the interested parties rule should also apply where the previous owner includes his plot of land as an asset in kind in an undertaking or a foundation, although the continued agricultural use of the land is ensured.
   In the view of the Commission, it is also disproportionate that the abovementioned interested parties rule is repeatedly applied where the purchase is not completed for reasons unconnected with the vendor.
   Finally, the Commission disputes that the VGVG does not provide for any kind of regulation which permits, in the case of a lack of interest from landowners in the exploitation of a plot of agricultural land, that land to be sold without an obligation on the purchaser to use it for agricultural purposes.


title: Case C-129/07: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Giovanni Galeota v Agenzia Entrate Ufficio Latina

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/9

         Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Giovanni Galeota v Agenzia Entrate Ufficio Latina
   (Case C-129/07)
   (2007/C 117/14)
   Language of the case: Italian
   Referring court
   Commissione Tributaria Provinciale di Latina
   Parties to the main proceedings

      Applicant: Giovanni Galeota

      Defendant: Agenzia Entrate Ufficio Latina
   Questions referred

               1.

               Must the judgment in Case C-207/04 (1) be interpreted as meaning that the Italian legislature should have extended to men the advantageous age-limit that applies to women?

               2.

               Must it be held in the present case that a rate equal to half of the rate applied for the taxation of severance pay must be applied to sums received as voluntary redundancy incentives by men who have passed the age of 50?

               3.

               Given that amounts paid by way of personal income tax do not form part of the taxpayer's salary since they are not paid by the employer in respect of the employment, and given that an amount paid by an employer to an employee as an incentive is not in the nature of pay, is it consistent with Community law to rule that the application of different age limits — namely 50 years of age for women and 55 years of age for men — is contrary to Community law, in light of the fact that Directive No 79/7 (2) permits the Member States to preserve different pensionable ages?

               4.

               Must Community law (Council Directive 76/207/EEC (3) of 9 February 1976, which prohibits discrimination on grounds of sex) be interpreted as precluding — or as not precluding — application of the relevant national rules that gave rise to the present case, with the effect that the national legislation (Article 17(4a) (now Article 19(4a) of DPR No 917/86) must be regarded as incompatible — or compatible — with Community law?

      (1)  Paolo Vergani v Agenzia delle Entrate, Ufficio di Arona [2005] ECR I-7453.

      (2)  OJ 1979 L 6, p. 24.

      (3)  OJ 1976 L 39, p. 40.


title: Action brought on 26 July 1996 by Thai Bicycle Industry Co. Ltd against the Council of the European Union (Case T-118/96)

text:
26 . 10 . 96           EN                    Official Journal of the European Communities                                  No C 318/ 11
The applicant asks that the second paragraph of Article 215             Pleas in law and main arguments adduced in support
of the EC Treaty be applied on the basis of the no-fault
liability to which the functioning of the institutions gave rise        The applicant, an undertaking incorporated under German
and, in the alternative, on the basis of the Community                  law which wishes to advertise by fax, contests the
authorities' liability for fault.                                       Commission 's refusal to adopt a position on its complaint
                                                                        against the Federal Republic of Germany following the
In the context of no-fault liability, it relies on the concept of       judgment of the Bundesgerichtshof ( Federal Court of
public liability for breach of the principle of equality in             Justice ) of 25 October 1 995 , which restricted advertising by
bearing public burdens, claiming that application of the                fax solely to cases in which the recipient has expressly or by
system of an ' area without frontiers' instituted by the Single         implication consented to the receipt of such
Act caused to it, as an authorized customs agent, exceptional           communications .
special and direct damage . The consequence of the abolition
of the authorized customs agent's activities was a massive              That refusal is incompatible both with the Community
reduction in the turnover of certain businesses in the sector           competition rules and with the principles governing the
and, much more seriously, the disappearance of some of                  setting-up and functioning of the internal market. In
them .                                                                  particular, the effect of the abovementioned judgment of the
                                                                        Bundesgerichtshof has been to strengthen the market
As regards liability for the fault of the Community's agents,           position of large undertakings in the advertising industry
the applicant maintains that, in the context of the legislative         ( the print and broadcasting media ). In addition, that
action of the Community which caused the damage , the                   judgment constitutes an obstacle to the creation of a
Community authorities disregarded the vested rights of                  homogeneous market .
customs agents and the principle of the protection of
legitimate expectations .
Referring to the nature of the damage , the applicant states
that as a result of the establishment of the European Area , in
its activities as a forwarding agent which it had pursued for a         Action brought on 26 July 1996 by Thai Bicycle Industry
considerable length of time, it abruptly suffered two-fold                   Co . Ltd against the Council of the European Union
damage in the form of: ( a ) the practically total and definitive                               ( Case T-l 18/96 )
loss of its business as a customs agent, and ( b ) the                                            ( 96/C 318/24 )
exceptional costs of running its business when it was
 required to face up to the unexpectedness of events, above                             (Language of the case: English)
 all in the social area , but also in the technical and
 administrative areas .
                                                                        An action against the Council of the European Union was
                                                                         brought before the Court of First Instance of the European
                                                                         Communities on 26 July 1996 by Thai Bicycle Industry Co .
                                                                         Ltd , represented by Jean-Frangois Bellis and Richard Luff,
                                                                         with an address for service in Luxembourg at the Chambers
 Action brought on 29 July 1996 by Intertronic-F. Cornells               of A. F. Brausch, 8 rue Zithe .
 GmbH against the Commission of the European
                            Communities
                                                                         The applicant claims that the Court should :
                         ( Case T- 11 7/96 )
                                                                         — annul Council Regulation ( EC ) No 648/96 of 28 March
                           ( 96/C 318/23 )
                                                                              1996 imposing a definitive anti-dumping duty on
                                                                              imports of bicycles originating in, inter alia, Thailand in
                 (Language of the case: German)                               so far as it imposes a definitive anti-dumping duty on
                                                                              bicycles manufactured by the applicant,
 An action against the Commission of the European
 Communities was brought before the Court of First                            and
 Instance of the European Communities on 29 July 1996 by
 Intertronic-F . Cornelis GmbH, Emden ( Federal Republic of              — order      the   Council    to  bear   the   costs   of  these
 Germany ), represented by Professor Schumacher, Bremen                       proceedings .
 ( Germany ), and Wilhelm Wiltfang, Rechtsanwalt,
 Krummhorn ( Germany ).                                                  Pleas in law and main arguments adduced in support
 The applicant claims that the Court should :                            The applicant, a limited company established under the laws
                                                                         of Thailand, specializing in the production of bicycles and
 — declare that the defendant has failed, contrary to the EC              bicycle and motorcycle parts , challenges the imposition of
     Treaty, to put a stop to the implementation by the                   anti-dumping duties on its exports to the European
     enforcement authorities of the Federal Republic of                   Community .
     Germany, and by the legally established associations for
     the promotion of commercial interests , of the ban on                The applicant submits that the institutions have committed
     advertising by fax, constituting a breach of the                     two manifest errors in determining its dumping margin :
     prohibition of restraints of trade ;
                                                                          The applicant's dumping margin has been artificially
  — order the defendant to pay the costs .                                inflated, contrary to Article 2 ( 3 ) ( b ) ( ii ) of Council
 ---pagebreak--- No C 318 / 12         EN                 Official Journal of the European Communities                                    26 . 10 . 96
Regulation (EEC ) No 2423/88 , by the institutions' refusal to      — order the Commission to pay the costs .
use the applicant's profit margin in computing the
applicant's constructed normal value . Rather, the
institutions have used the profit margin which they                 Pleas in law and main arguments adduced in support
computed for other producers . The refusal in question is to
be considered as a result of several arbitrary or illogical         The applicant is the developer of a veterinary medicinal
determinations, such as:                                            product called Optiflex 640, which is a recombinant bovine
                                                                    somatotrophin ( BST ) used for administration to dairy cows
                                                                    as a productivity aid to milk production. Owing to the fact
— the determination that the profit margin on a company's           that this is a product derived from biotechnology, it is
    profitable domestic sales in the exporting country              subject to the procedure for marketing authorization laid
    cannot be used to compute the company's constructed             down in Council Directive 87/22/EEC and also to the
    normal value if such company's profitable domestic              Community procedure for establishing maximum residue
    sales represent less than 10% in volume ( but not               limits ( MRLs ) of veterinary medicinal products in
    turnover ) of its total domestic sales,
                                                                    foodstuffs of animal origin laid down in Regulation ( EEC )
                                                                    No 2377/90 ('the Regulation '). Member States are not to
— the determination that the applicant's cost of production         authorize the placing on the market of a veterinary
    should be increased by percentage points (to such an            medicinal product unless, inter alia, the active substance
    extent that, as a result, the applicant's profitable            capable of pharmacological action is mentioned in Annex I
    domestic sales happened to represent slightly less than         ( substances in respect of which MRLs have been
    10% in volume — but not turnover — of its total                 established ), II ( substances in respect of which it is not
    domestic sales ) on arbitrary and illogical grounds .           necessary for the protection of public health to establish an
                                                                    MRL ) or III ( substances in respect of which a provisional
The institutions have also infringed Article 2 ( 3 ) of Council     MRL is applicable ) to the Regulation .
Regulation ( EEC ) No 2423/88 in refusing to apply the
' OEM adjustment' in the determination of the applicant's           The applicant challenges in the present case the refusal by
constructed normal value . Even though, according to the            the Commission to add BST to the products figuring in
applicant, the substantive conditions for the application of        Annex II, and submits that the contested decision should be
the ' OEM adjustment' were met, the institutions have               annulled on the following grounds :
confused the ' OEM adjustment', which they are required to
make pursuant to Article 2 ( 3 ), with a claim for allowances       — Infringement of the Community procedure for the
under Article 2 ( 10 ) of Regulation ( EEC ) No 2423/88 .               establishment of MLRs, as laid down in Article 6 of the
                                                                        Regulation .
                                                                        The Commission 's decision was based on confusion
                                                                         between the concept of MRLs and marketing
                                                                        authorizations and on an incorrect interpretation of the
                                                                         Council Decision imposing a moratorium on BST. There
                                                                        is nothing in the Regulation to suggest that the
Action brought on 1 August 1996 by Lilly Industries Ltd                 establishment of an MRL is subject to the condition that
  against the Commission of the European Communities                    the substance will immediately benefit from a marketing
                       ( Case T-120/96 )                                authorization, so that an MRL could be obtained for
                          96/C 318/25 )                                 products which, purely provisionally, may not be placed
                                                                         on the market owing to the existence of a moratorium.
                                                                        The applicant stresses in this regard that some uses of
               (Language of the case: English)                           BST are still possible even now and that there is therefore
                                                                        already a need to establish an MRL.
An action against the Commission of the European
Communities was brought before the Court of First                   — Misuse of powers and breach of the principle of legal
Instance of the European Communities on 1 August 1996 by                certainty.
Lilly Industries Ltd, represented by Denis Waelbroeck, of
the Brussels Bar, of Liedekerke Wolters Waelbroeck &                    The contested decision runs counter to the assurances
Kirkpatrick, 3 boulevard de PEmpereur, Brussels, with an                given in the past that the Commission would apply solely
address for service in Luxembourg at the offices of Arendt &            traditional criteria of safety, quality and efficacy in
Medernach, boite postale 39, L-2010 Luxembourg.                         assessing veterinary products in the biotechnology
                                                                         sector, to the assurances specifically given to the
                                                                         applicant that an MRL would soon be established for
The applicant claims that the Court should :                             Somidobove and to the conditions prescribed in the
                                                                         Regulation, inasmuch as the defendant was not entitled
— annul the Commission Decision of 22 May 1996                          to refuse to grant an MRL for reasons other than the
    concerning a definition of a position, in accordance with            safety of the product.
    Article 175 of the EC Treaty, on the inclusion of bovine
    somatotrophin in Annex II to Council Regulation ( EEC )         — Infringement of Article 2 of the Council Decision
    No 2377/90 ,                                                        amending Decision 90/218/EEC, concerning the placing


title: Case F-89/15: Action brought on 18th May 2015 — ZZ v Commission

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/62

         Action brought on 18th May 2015 — ZZ v Commission
   (Case F-89/15)
   (2015/C 279/80)
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: G.-M. Enache, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision not to include the applicant on the reserve list of competition EPSO/AD/248/13 and claim for compensation in respect of the material and non-material damage allegedly sustained.

      Form of order sought

               —

               Annul the Decision of the Appointing Authority regarding the complaint lodged by the applicant under Article 90(2) of the Staff regulations contesting the decision of the selection board not to include his name on the reserve list of competition EPSO/AD/248/13;

               —

               annulment of the Decision of the selection board on the request for review submitted by the applicant in competition EPSO/AD/248/13;

               —

               annulment of the Decision of the selection board in open competition EPSO/AD/248/13 not to include the applicant’s name on the reserve list for Open Competition EPSO/AD/248/13;

               —

               compensate the material and moral damages suffered. Material damages are estimated by the applicant at 50  000 euros, representing loss caused by difference between the basic salary he would have been entitled to once recruited from the reserve list and his actual basic salary he remained on. Moral damages estimated at 50  000 euros for the burden posed to the applicant due to the efforts in and personal time wasted out unnecessarily for dealing with the situation and for staying apart from his family whereas he would have had the chance by being recruited from the reserve list and reunited with his family members;

               —

               order the Commission to pay the costs.


title: Case T-370/10: Action brought on 30 August 2010 — Rubinetterie Teorema v Commission

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/62

      Action brought on 30 August 2010 — Rubinetterie Teorema v Commission
      (Case T-370/10)
      ()
      (2010/C 288/111)
      Language of the case: Italian

         Parties

         Applicant: Rubinetterie Teorema SpA (Flero, Brescia, Italy) (represented by: R. Cavani, lawyer, M. Di Muro, lawyer, P. Preda, lawyer)

         Defendant: European Commission

         Form of order sought

                  —

                  Annul Decision C(2010) 4185 of 23 June 2010;

                  —

                  In the alternative, impose a token fine;

                  —

                  In the further alternative, substantially reduce the fine imposed by the decision to such amount as the Court deems appropriate;

                  —

                  Order the Commission to pay the costs.

         Pleas in law and main arguments

      The decision contested in these proceedings is the same as that contested in Case T-368/10 Rubinetteria Cisal v Commission.
      The pleas in law and main arguments are similar to those relied on in that case.
      In particular, the applicant alleges:

                  —

                  Infringement of the rights of the defence in relation to Teorema and the consequent invalidity of the decision owing to:

                              —

                              the delay in communicating to Teorema the accusations made by the Commission;

                              —

                              the difficulties in accessing the file and the lack of an adequate extension of the time-limits;

                  —

                  The fact that there is no agreement whose purpose or effect is to prevent, restrict or distort competition and/or no adverse effects on Community trade, and

                  —

                  The incorrect assessment of the evidence relating to the alleged involvement of Teorema in Euroitalia’s meetings.


title: Case T-383/11: Action brought on 21 July 2011 — Makhlouf v Council

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/30

         Action brought on 21 July 2011 — Makhlouf v Council
   (Case T-383/11)
   2011/C 282/62
   Language of the case: French

      Parties

      Applicant: Eyad Makhlouf (Damas, Syria) (represented by: P. Grollet and G. Karouni, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Implementing Decision 2011/302/CFSP of 23 May 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria, to the extent that it affects the applicant in that it infringes fundamental rights;

               —

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

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the rights of the defence and of the right to a fair hearing. The applicant submits that his rights of the defence have been infringed since the sanctions at issue have been applied to him, without his having previously been heard, having the opportunity of defending himself or having any knowledge of the basis on which those measures have been taken.

               2.

               Second plea in law, alleging infringement of the duty to state reasons laid down in the second paragraph of Article 296 TFEU. The applicant complains that the Council has taken restrictive measures affecting him, without having informed him of the grounds thereof in order to enable him to defend himself. The applicant argues that the defendant gave information merely in a general and stereotypical manner without giving precise details the factual and legal elements which form the legal justification for its decision or the considerations which led it to adopt that decision.

               3.

               Third plea in law, concerning the merits of the reasoning. The applicant submits that the Council relied on a manifestly incorrect reasoning and that it used a synthesis thereof, such that it could not be regarded as adequate in law.

               4.

               Fourth plea in law, alleging breach of the guarantee in respect of the right to effective legal protection. The applicant submits that not only was he unable effectively to make his views known to the Council, but, in the absence of any indication in the contested decision of specific and concrete grounds justifying that decision, nor was he in a position to avail himself of a right of action before the General Court.

               5.

               Fifth plea in law, alleging infringement of the general principle of proportionality.

               6.

               Sixth plea in law, alleging infringement of the right of property, since the restrictive measures and, more precisely, the measure freezing funds, disproportionately affecting the applicant’s fundamental right to use his assets as he sees fit.

               7.

               Seventh plea in law, alleging infringement of the right of privacy, since the measures freezing funds and restricting his freedom from restraint also disproportionately affect the applicant’s fundamental right.


title: Case C-231/14 P: Appeal brought on 8 May 2014 by InnoLux Corp., formerly Chimei InnoLux Corp. against the judgment of the General Court (Sixth Chamber) delivered on 27/02/2014 in Case T-91/11: InnoLux Corp., formerly Chimei InnoLux Corp. v European Commission

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/20

         Appeal brought on 8 May 2014 by InnoLux Corp., formerly Chimei InnoLux Corp. against the judgment of the General Court (Sixth Chamber) delivered on 27/02/2014 in Case T-91/11: InnoLux Corp., formerly Chimei InnoLux Corp. v European Commission
   (Case C-231/14 P)
   2014/C 212/23
   Language of the case: English

      Parties

      Appellant: InnoLux Corp., formerly Chimei InnoLux Corp. (represented by: J.-F. Bellis, avocat, R. Burton, Solicitor)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment under appeal in so far as it upholds the fine imposed by the Contested Decision on InnoLux based on the value of intra-group deliveries of LCD panels within the appellant’s factories in China and Taiwan;

               —

               annul the Commission’s decision in so far as it imposes a fine on InnoLux based on the value of intra-group deliveries of LCD panels within the appellant’s factories in China and Taiwan;

               —

               accordingly reduce the fine imposed on InnoLux to €173 million; and

               —

               order the Commission to bear all of the costs of these proceedings, including the proceedings before the General Court.

      Pleas in law and main arguments

               1.

               First plea: the General Court erred in law by ruling that intra-group deliveries of LCD panels within the appellant’s factories in China and Taiwan come within the scope of Article 101 TFEU and Article 53 EEA by the mere fact that computer monitors into which the LCD panels are incorporated as components in the factories in question are sold in the EEA by the appellant.
               This plea is based on the following grounds:

                           a.

                           The finding of infringement in the Contested Decision only covers deliveries in the EEA of LCD panels, whether sold to third parties or supplied intra-group, and makes no distinction between intra-group deliveries by vertically-integrated cartel participants who form a single undertaking with their related purchaser and those who do not;

                           b.

                           The use of the concept of so-called ‘direct EEA sales through transformed products’ is inconsistent with the rationale underlying Europa Carton to treat intra-group deliveries in exactly the same way as sales to third parties;

                           c.

                           It is inconsistent with the Wood Pulp I implementation doctrine to apply Article 101 TFEU and Article 53 EEA to deliveries of LCD panels that take place outside the EEA;

                           d.

                           The concept of so-called ‘direct EEA sales through transformed products’ leads to the unlawful exclusion from the scope of Article 101 TFEU and Article 53 EEA of transactions concerning LCD panels which take place and restrict competition within the EEA, on the basis of a reasoning which was expressly rejected by this Court in Commercial Solvents;

                           e.

                           The extra-territorial application of EU competition law resulting from the use of the concept of so-called ‘EEA direct sales through transformed products’ gives rise to a risk of double jeopardy for undertakings and jurisdictional conflict with other competition authorities.

               2.

               Second plea: the General Court erred in law by ruling that the applicability of the category of so-called ‘direct EEA sales through transformed products’ to the intra-group deliveries of LCD panels of each of the addressees of the Commission’s decision was assessed by the Commission ‘on the basis of the same objective criteria’, while rejecting as inadmissible all pleas raised by the appellant contesting the relevance, objectivity and coherence of the criterion used, namely whether they formed a single undertaking with their related purchasers.
               This plea is based on the following grounds:

                           a.

                           Whether or not the vertically-integrated addressees of the Contested Decision form a single undertaking with their related purchasers is not an ‘objective difference’ justifying the differential treatment of their respective intra-group deliveries;

                           b.

                           The principle of legality cannot be invoked to dismiss the appellant’s plea to have its intra-group deliveries of LCD panels treated on the basis of the same method as that applied to the intra-group deliveries of LCD panels of LG Display and AUO since that method is perfectly legal.


title: Case T-562/14: Action brought on 28 July 2014 — Yoo Holdings v OHIM — Eckes-Granini Group (YOO)

text:
               6.10.2014

               EN

               Official Journal of the European Union

               C 351/18

         Action brought on 28 July 2014 — Yoo Holdings v OHIM — Eckes-Granini Group (YOO)
   (Case T-562/14)
   2014/C 351/22
   Language in which the application was lodged: English

      Parties

      Applicant: Yoo Holdings Ltd (London, United Kingdom) (represented by: D. Farnsworth, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Eckes-Granini Group GmbH (Nieder-Olm, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 29 April 2014 given in Case R 762/2013-2.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘YOO’ for the services in Classes 35, 41 and 43 — Community trade mark application No 10 487 924

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

      Mark or sign cited in opposition: National and International trade mark registration for the word mark ‘YO’ for goods in Classes 29, 30 and 32

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

      Decision of the Board of Appeal: Partially annulled the contested decision and upheld the opposition in part

      Pleas in law: Infringement of Article 8(1)(a) and (b) CTMR.


title: Case T-499/09: Action brought on 14 December 2009 — Evonik Industries AG v OHIM (Representation of a purple rectangle with a rounded right side)

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/45

         Action brought on 14 December 2009 — Evonik Industries AG v OHIM (Representation of a purple rectangle with a rounded right side)
   (Case T-499/09)
   2010/C 37/65
   Language in which the application was lodged: German

      Parties

      Applicant: Evonik Industries AG (Essen, Germany) (represented by J. Albrecht, lawyer)

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

      Form of order sought

               —

               Annul the decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Fourth Board of Appeal) of 2 October 2009 (Case R 491/2009-4);

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: a figurative mark representing a rectangular shape in the colour Purple Pantone 513 C, for goods and services in classes 1 to 45 (Application No 7 235 179)

      Decision of the Examiner: registration rejected

      Decision of the Board of Appeal: appeal dismissed

      Pleas in law: misapplication of Article 7(1)(b) of Regulation No 207/2009 (1), on the ground that the trade mark concerned has the requisite distinctive character

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).