title: Action brought on 8 August 1997 by Lars Bo Rasmussen against the Commission of the European Communities (Case T-234/97)

text:
C 7/20               EN                 Official Journal of the European Communities                                   10. 1. 98
Action brought on 8 August 1997 by Lars Bo Rasmussen               Ð the defendant could not take into consideration the
  against the Commission of the European Communities                   merits of the applicant because throughout the
                       (Case T-234/97)                                 promotions exercise the relevant authorities did not
                                                                       have access to his file, which was lodged at the Court
                          (98/C 7/59)                                  of First Instance. The file was thus unavailable to the
                                                                       Director-General of DG V, the Restricted Group, and
               (Language of the case: French)                          the Promotions Committee, during the period in
                                                                       question,
An action against the Commission of the European                   Ð contrary to the principle of non-discrimination and to
Communities was brought before the Court of First                      the requirements laid down in Article 45 of the Staff
Instance of the European Communities on 8 August 1997                  Regulations, the appointing authority compared his
by Lars Bo Rasmussen, residing at Dalheim                              merits only with officials in DG V who were eligible
(Luxembourg), represented by Carlo Revoldini, of the                   for promotion, and
Luxembourg Bar, with an address for service in
Luxembourg at his Chambers at 180, route de Longwy.
                                                                   Ð within the meaning of Article 45 of the Staff
                                                                       Regulations, consideration of the merits of officials
The applicant claims that the Court should:                            constitutes the determining criterion in matters of
                                                                       promotion. It is only by way of an alternative that the
                                                                       appointing authority may take into consideration the
Ð annul the decision of the Commission not to promote
                                                                       age of candidates, or their seniority in grade, or length
    him to grade A 4 in the 1996 promotions procedure,
                                                                       of service. Accordingly, the MoeÈl' method, applied by
                                                                       the Commission in order to establish the list of most
Ð annul the decision of the Commission to promote the                  eligible officials, is unlawful on the ground that it does
    85 persons chosen from the list of officials most                  not give sufficient weight to the merits of officials
    deserving of promotion to grade A 4,                               eligible for promotion.
Ð order the defendant to pay monetary compensation in
    respect of non-material damage suffered in the order
    of Lfrs 500 000 or any other amount which the Court
    may deem fair and equitable,
                                                                   Action brought on 12 August 1997 by Nicolaos Progoulis
                                                                     against the Commission of the European Communities
Ð order the defendant to pay the costs.                                                     (Case T-237/97)
                                                                                (98/C 7/60)
Pleas in law and main arguments adduced in support:
                                                                                (Language of the case: French)
The applicant, an official at grade A 5, objects to the
appointing authority's refusal to promote him to the next          An action against the Commission of the European
grade in the 1996 promotions procedure.                            Communities was brought before the Court of First
                                                                   Instance of the European Communities on 12 August
                                                                   1997 by Nicolaos Progoulis, residing in Brussels,
In support of his claims he relies on breach of Article 45
                                                                   represented by Vassilios Akritidis and Konstantinos
of the Staff Regulations and of the general legal principle
                                                                   Adamantopoulos, of the Athens Bar, with an address for
of equal treatment.
                                                                   service in Luxembourg at the Chambers of ArseÁne
                                                                   Kronshagen, 12, boulevard de la Foire.
In that regard, the applicant claims in particular that:
                                                                   The applicant claims that the Court should:
Ð the defendant's decision to authorize the taking into
    account of seniority in grade previously acquired as a         Ð annul the decision of the defendant of 13 May 1997
    temporary agent in respect of the promotions                       rejecting his application to be regraded in step 2 of
    procedure and its extension by analogy to officials                grade B 1 with retroactive effect from 1 March 1983
    who have transferred to another category is contrary               and for the financial consequences of the regrading
    to the applicable Staff Regulations provisions and that,           applied for to be taken into account and calculated
    on that ground, the promotions exercise in question as             retroactively from 1 March 1983, together with
    a whole is unlawful. In his opinion, there is no                   compound legal interest at the annual rate of 10 %,
    legislative provision in the Staff Regulations
    concerning the taking into account of the length of            Ð order the defendant to pay to the applicant the
    service of an official as a temporary member of staff in           amount corresponding to the financial consequences of
    order to determine his seniority. To claim otherwise               the regrading applied for, calculated retroactively from
    would amount to treating other servants as officials to            1 March 1983, together with compound legal interest
    the extent that there would no longer be any sense in              at the annual rate of 10 %, and
    having provisions of the Staff Regulations which
    distinguish between other servants and officials,              Ð order the defendant to pay the costs.


title: Case C-574/12: Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 7 December 2012 — Centro Hospitalar de Setúbal, EPE, Serviço de Utilização Comum dos Hospitais (SUCH) v Eurest Portugal — Sociedade Europeia de Restaurantes Lda

text:
               16.3.2013

               EN

               Official Journal of the European Union

               C 79/5

         Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 7 December 2012 — Centro Hospitalar de Setúbal, EPE, Serviço de Utilização Comum dos Hospitais (SUCH) v Eurest Portugal — Sociedade Europeia de Restaurantes Lda
   (Case C-574/12)
   2013/C 79/09
   Language of the case: Portuguese

      Referring court

   Supremo Tribunal Administrativo

      Parties to the main proceedings

      Applicants: Centro Hospitalar de Setúbal, EPE, Serviço de Utilização Comum dos Hospitais (SUCH)

      Defendant: Eurest Portugal — Sociedade Europeia de Restaurantes Lda

      Questions referred

               1.

               Is it compatible with Community doctrine on in-house procurements that a public hospital, having dispensed with the procedure provided for by law for concluding the relevant contract, should award to a non-profit organisation, which it is in partnership with, and whose aim is to carry out a public service mission in the area of health with a view to enhancing the effectiveness and efficiency of its partners, a contract for the provision of hospital catering services within its area of competence, thereby transferring to that organisation responsibility for its functions in that area, if, under the provisions of its statutes, partners of that organisation may be, not only entities from the public sector, but also those from the social sector, given that on the date of the award, out of a total of 88 partners, there were 23 non-governmental organisations (IPSS) from the social sector, all of which were non-profit making and included charitable associations?

               2.

               Can it be considered that the contractor is subordinate to the decisions of its public partners, in that the latter, on their own or as a whole, exercise a control which is similar to that which they exercise over their own departments, if, under the provisions of its statutes, the contractor must ensure that the majority of the voting rights are held by member partners and are subject to the management, supervision and guidance powers of the member of the Government responsible for health, given that the majority of the Management Board is also made up public partners?

               3.

               In the light of Community doctrine on in-house procurements, can it be considered that the requirement of ‘control which is similar’ has been fulfilled, if, under the provisions of its statutes, the contractor is subject to the guidance powers of the member of the Government responsible for health who is in charge of appointing the President and Vice-President of the Management Board, approving the resolutions of the General Meeting on taking out loans involving a net debt equal to or greater than 75 % of the equity recorded in the previous financial year, approving resolutions on amendments to the statutes, approving resolutions of the General Meeting on the dissolution of the contractor and determining how the assets are to be distributed in the event of a dissolution?

               4.

               Does the fact that the contractor is a large and complex organisation, which operates throughout Portuguese territory, is in partnership with most departments and institutions of the SNS, including the majority of the country’s hospitals, has an estimated turnover in the order of EUR 90 000 000, has a business that includes varied and complex areas of activity, with very impressive activity indicators, and more than 3 300 workers, and participates in two additional enterprise groupings and in two commercial companies, mean that its relations with its public partners may be described as merely internal or in-house?

               5.

               Does the fact that the contractor, under the provisions of its statutes, is able to provide services on a competitive basis to non-partner public entities or private entities, be they national or foreign (i) provided that there is no resulting loss or harm caused to the partners, and that it is beneficial to them and to the contractor, whether economically or in terms of enhancement or technical performance, and (ii) provided that the provision of those services does not represent a volume of invoicing that is greater than 20 % of its overall annual turnover recorded in the previous financial period, mean that the requirement for in-house procurements, in particular the requirement for the ‘essential purpose of the activity’ under Article 5(2)(b) of the CCP, has been fulfilled?

               6.

               If the response to any of the above questions is not in itself sufficient to conclude whether or not the requirements under Article 5(2) of the CCP have been fulfilled having regard to Community doctrine on in-house procurements, does an overall assessment of these responses imply the existence of that type of procurement?


title: Case F-121/11: Action brought on 22 November 2011 — ZZ v Commission.

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/72

      Action brought on 22 November 2011 — ZZ v Commission.
      (Case F-121/11)
      (2012/C 25/140)
      Language of the case: French

         Parties

         Applicant: ZZ (represented by: L. Levi and C. Bernard-Glanz, lawyers)

         Defendant: European Commission

         Subject-matter and description of the proceedings

      Annulment of the decisions of the Ispra Claims Office refusing to grant authorisation for an official, posted in Jordan, to claim transport and accompaniment expenses incurred to allow his son to carry out psychotherapy in French, the child’s mother tongue, in Beirut (Lebanon).

         Form of order sought

                  —

                  Annul the refusals to grant authorisation for the medical services sought by the applicant in favour of his son, his wife and himself, those refusals resulting from three decisions adopted respectively on 22 February, 10 March and 18 April 2011 by the Head of the Ispra Claims Office of the European Commission;

                  —

                  annul the decision adopted on 12 August 2011 by the Director of Directorate D of DG Human Resources and Security of the European Commission, as the Authority empowered to conclude contracts of employment (AECE), rejecting the complaint lodged by the applicant on the basis of Article 90(2) of the Staff Regulations of Officials of the European Communities;

                  —

                  order the Commission to pay the costs.


title: Case C-127/15: Judgment of the Court (Third Chamber) of 8 December 2016 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Verein für Konsumenteninformation v INKO, Inkasso GmbH (Reference for a preliminary ruling — Directive 2008/48/EC — Consumer protection — Consumer credit — Article 2(2)(j) — Rescheduling agreements — Deferred payment, free of charge — Article 3(f) — Credit intermediaries — Debt recovery companies acting on behalf of lenders)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/2

         Judgment of the Court (Third Chamber) of 8 December 2016 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Verein für Konsumenteninformation v INKO, Inkasso GmbH
   (Case C-127/15) (1)

   ((Reference for a preliminary ruling - Directive 2008/48/EC - Consumer protection - Consumer credit - Article 2(2)(j) - Rescheduling agreements - Deferred payment, free of charge - Article 3(f) - Credit intermediaries - Debt recovery companies acting on behalf of lenders))
   (2017/C 038/02)
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: Verein für Konsumenteninformation

      Defendant: INKO, Inkasso GmbH

      Operative part of the judgment

               1.

               Article 2(2)(j) and 3(f) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC must be interpreted as meaning that a credit rescheduling agreement, which is concluded, following the consumer’s default, between that consumer and the lender through a debt collection agency, is not agreed to ‘free of charge’, within the meaning of that article, where, by that agreement, the consumer undertakes to repay the total amount of that credit and to pay interest and costs that were not provided for by the initial contract under which that credit was granted;

               2.

               Article 3(f) and Article 7 of Directive 2008/48 must be interpreted as meaning that a debt collection agency which concludes, on behalf of a lender, a rescheduling agreement for an unpaid credit, but which acts as a credit intermediary only in an ancillary capacity, which is for the referring court to determine, must be regarded as being a ‘credit intermediary’ within the meaning of Article 3(f) and is not subject to the obligation to provide the consumer with pre-contractual information under Articles 5 and 6 of that directive.

      (1)  OJ C 205, 22.6.2015.


title: Case C-501/04: Action brought on 6 December 2004 by the Commission of the European Communities against the Kingdom of Spain

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/16

         Action brought on 6 December 2004 by the Commission of the European Communities against the Kingdom of Spain
   (Case C-501/04)
   (2005/C 19/31)
   Language of the case: Spanish
   An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 6 December 2004, by the Commission of the European Communities, represented by Enrico Traversa, Legal Adviser, and Ramón Vidal Puig, of its Legal Service, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare that by giving policyholders the option of cancelling contracts in the event of transfer of its portfolio under the right of establishment or the freedom to provide services where the transferor and/or transferee is not an insurance undertaking with its head office in Spain, but not where the transfer is between Spanish undertakings, the Kingdom of Spain has failed to fulfil its obligations under

                           —

                           Article 12(6) of Council Directive 92/49/EEC (1) of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC;

                           —

                           Article 14(5) of Directive 2002/83/EC (2) of the European Parliament and of the Council of 5 November 2002 concerning life assurance;

               —

               order Kingdom of Spain to pay the costs.

         Pleas in law and main arguments
   Although Article 12(6) of Directive 92/49 and Article 14(5) of Directive 2002/83 give the Member States the authority to grant the option of cancelling contracts, a Member State breaches those provisions where, when granting that option, it discriminates, directly or indirectly, between insurance undertakings with their head office in the Member State in question and undertakings of other Member States which are operating in that Member State under the right of establishment or the freedom to provide services.
   The Spanish legislation is discriminatory because it provides for different and more favourable treatment for Spanish insurance undertakings than for insurance undertakings from other Member States as regards the option of cancellation and that difference in treatment is not based on objective differences between the situations contemplated.
   The difference in treatment is not justified by considerations relating to consumer protection.

      (1)  OJ L 228 of 11.8.1992.

      (2)  OJ L 345 of 19.12.2002.


title: Case C-193/12: Judgment of the Court (Seventh Chamber) of 13 June 2013 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Directive 91/676/EEC — Protection of waters against pollution caused by nitrates from agricultural sources — Designation of vulnerable zones — Excessive nitrate content — Eutrophication — Obligation of four-yearly revision)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/33

         Judgment of the Court (Seventh Chamber) of 13 June 2013 — European Commission v French Republic
   (Case C-193/12) (1)

   (Failure of a Member State to fulfil obligations - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Designation of vulnerable zones - Excessive nitrate content - Eutrophication - Obligation of four-yearly revision)
   2013/C 225/55
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: J. Hottiaux and B. Simon, acting as Agents)

      Defendant: French Republic (represented by: G. de Bergues and S. Menez, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Article 3(1) and (4) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1) and Annex I thereto — Incomplete identification of vulnerable zones — Excessive nitrate content — Eutrophication — Incorrect four-yearly revision

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to designate as vulnerable zones a number of zones characterised by the presence of surface and groundwater bodies which are, or may be, affected by excessive nitrate content and/or eutrophication, the French Republic has failed to fulfil its obligations under Article 3(1) and (4) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, and Annex I thereto;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 217, 21.7.2012.


title: Case C-445/99: Action brought on 23 November 1999 by the Commission of the European Communities against the Italian Republic

text:
C 47/16               EN                     Official Journal of the European Communities                                        19.2.2000
The appellant claims that the Court should:                             the European Communities, represented by Paolo Stancanelli,
                                                                        of its Legal Service, acting as Agent, with an address for service
1. Set aside the contested judgment;                                    in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                        Wagner Centre, Kirchberg.
2. Annul the contested hardship decision of the Commission
    of 24 October 1997;
                                                                        The applicant claims that the Court should:
3. Order the Commission to pay the costs.
                                                                        — Declare that, by failing to adopt the laws, regulations
                                                                             and administrative provisions necessary to comply with
Pleas in law and main arguments                                              Council Directive 96/34/EC (1) of 3 June 1996 on the
                                                                             framework agreement on parental leave, the Italian Repub-
The appeal is directed against the judgment of 28 September                  lic has failed to fulfil its obligations under the EC Treaty;
1999 by which the Court of First Instance dismissed the
application for annulment of the decision refusing an appli-            — Order the Italian Republic to pay the costs.
cation for additional ripening licences as a transitional measure
to compensate for a situation of hardship not its own fault
                                                                        Contentions and principal arguments adduced in support
under Article 30 of the organisation of the market in bananas
(Council Regulation No 404/93 (1)). Breach of Community law
is complained of, namely:                                               By virtue of Article 249 EC (ex Article 189 of the EC Treaty),
                                                                        under which a directive is binding on the Member State to
— Article 30 of Regulation No 404/93: The Court of First                which it is addressed as regards the result to be achieved,
    Instance fails to recognise that the case of hardship as            Member States are required to observe time-limits for the
    found by the Court of Justice in Case C-68/95 T. Port is            transposition of directives. The prescribed period expired on
    only one of the cases to which Article 30 is applicable, and        3 June 1998 and the Italian Republic has not yet adopted the
    that the conditions laid down by the Court of Justice for           provisions needed to comply with the directive to which the
    the Commission to be obliged to compensate a case of                Commission refers in its application.
    hardship do not automatically apply. In the present
    case the transitional difficulties did not arise from the
                                                                        (1) OJ 1996 L 145, p. 4.
    applicant’s conduct, but were structural difficulties which
    had arisen for new undertakings such as the applicant
    and had been made worse by the introduction of the
    organisation of the market in bananas. The structural
    disadvantage of the applicant as a new undertaking in the
    former GDR — as that of all other new undertakings —
    consisted in the fact that in 1989 and 1990, the years
    which Regulation No 404/93 determined as the reference              Action brought on 23 November 1999 by the Com-
    period for 1993 and 1994, it had not been able to carry             mission of the European Communities against the Repub-
    out any relevant transactions for reference purposes;                                            lic of Austria
— the principle of equal treatment: For new undertakings in                                        (Case C-446/99)
    the territory of the former GDR — as the only group in
    the Community — the aforesaid reference years were                                              (2000/C 47/25)
    necessarily simply immaterial. The principle of equal
    treatment required the Community institutions to take
                                                                        An action against the Republic of Austria was brought
    account of this exceptional situation, since different situ-
                                                                        before the Court of Justice of the European Communities on
    ations were otherwise treated in the same way.
                                                                        23 November 1999 by the Commission of the European
                                                                        Communities represented by Josef Christian Schieferer, a
(1) OJ L 47 of 25.2.1993, p. 1.                                         member of the Legal Service of the European Commission,
                                                                        with an address for service in Luxembourg at the office of
                                                                        Carlos Gómez de la Cruz, a member of the Legal Service of the
                                                                        European Commission, Wagner Centre C 254, Kirchberg,
                                                                        Luxembourg.
                                                                        The applicant claims that the Court should:
Action brought on 23 November 1999 by the Com-
mission of the European Communities against the Italian                 1. Declare that, by failing to adopt and communicate to
                             Republic                                        the Commission the laws, regulations and administrative
                                                                             provisions necessary to ensure compliance with
                        (Case C-445/99)                                      Article 9(2), (4) and (6) of Directive 97/13/EC (1) of the
                                                                             European Parliament and of the Council of 10 April 1997
                         (2000/C 47/24)                                      on a common framework for general authorisations and
                                                                             individual licences in the field of telecommunications
An action against the Italian Republic was brought before the                services, the Republic of Austria has failed to fulfil its
Court of Justice on 23 November 1999 by the Commission of                    obligations under that Directive;


title: Case T-416/04: Judgment of the Court of First Instance (Fourth Chamber) of 27 September 2006 — Kontouli v Council of the European Union (Officials — Invalidity pension — Weighting — Determination of place of residence — Withdrawal of an administrative act — Legitimate expectations)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/46

         Judgment of the Court of First Instance (Fourth Chamber) of 27 September 2006 — Kontouli v Council of the European Union
   (Case T-416/04) (1)

   (Officials - Invalidity pension - Weighting - Determination of place of residence - Withdrawal of an administrative act - Legitimate expectations)
   (2006/C 294/96)
   Language of the case: English
   Parties

      Applicant: Anna Kontouli (represented by: initially V. Akritidis and M. Tragalou, and subsequently V. Akritidis, lawyers)

      Defendant: Council of the European Union (represented by: M. Sims and D. Zahariou, acting as Agents)
   Re:
   Application, first, for annulment of the Council's decision of 5 December 2003 withdrawing the right to have the weighting fixed for the United Kingdom applied to the applicant's invalidity pension and, second, for damages
   Operative part of the judgment
   The Court:

               1.

               Annuls the Council's decision of 5 December 2003 withdrawing the application of the weighting for the United Kingdom to the applicant's pension in so far as it withdraws that entitlement, with retroactive effect, for the period from 1 May 2003 to 31 December 2003;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Council to bear one third of the applicant's costs in addition to its own costs.

      (1)  OJ C 31, 05.02.2005.


title: Case T-440/13: Action brought on 12 August 2013 — ‘Millano’ Krzysztof Kotas v OHIM (shape of boxes of chocolates)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/57

         Action brought on 12 August 2013 — ‘Millano’ Krzysztof Kotas v OHIM (shape of boxes of chocolates)
   (Case T-440/13)
   2013/C 344/104
   Language of the case: Polish

      Parties

      Applicant: Zakład Wyrobów Cukierniczych ‘Millano’ Krzysztof Kotas (Przeźmierowo, Poland) (represented by: B. Kański, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               set aside the decision of the Second Board of Appeal of 22 May 2013 in Case R 755/2012-2.

      Pleas in law and main arguments

      Community trade mark concerned: the three-dimensional trade mark in the shape of boxes of chocolates for goods in Class 30 — application no 10 359 602

      Decision of the Examiner: application for registration refused

      Decision of the Board of Appeal: appeal dismissed

      Pleas in law: breach of Article 7(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009


title: Case T-306/10: Action brought on 23 July 2010 — Yusef v Commission

text:
               25.9.2010

               EN

               Official Journal of the European Union

               C 260/20

         Action brought on 23 July 2010 — Yusef v Commission
   (Case T-306/10)
   ()
   2010/C 260/28
   Language of the case: English

      Parties

      Applicant: Hani El Sayyed Elsebai Yusef (London, United Kingdom) (represented by: E. Grieves, Barrister and H. Miller, Solicitor)

      Defendant: European Commission

      Form of order sought

               —

               declare that the Commission’s failure to act and remove the applicant from annex 1 of Council Regulation (EC) 881/2002 was unlawful;

               —

               order immediately the Commission to remove the applicant from the said annex;

               —

               order that the Commission pays, in addition to its own costs, those incurred by the applicant and any sums advanced by way of legal aid by the cashier of the Court of Justice.

      Pleas in law and main arguments

   The applicant applies under Article 265 TFEU for the revocation of Commission Regulation (EC) No 1629/2005 of 5 October 2005 amending for the 54th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al Qa’ida Network and the Taliban (1) as concerns him.
   In support of the action, the applicant relies on three pleas in law.
   First, he submits that the Commission has failed to independently review the basis of the applicant’s inclusion in annex 1 at any point, or required any reasons for that inclusion.
   Second, he claims that the Commission has failed to provide to the applicant any reasons justifying his inclusion in annex 1 in breach of his right to an effective judicial remedy, the right to defend himself and in breach of his rights to property under the European Convention on Human Rights.
   Third, he contends that the Commission’s failure to remove the applicant from annex 1 is irrational as there are no reasons available which would satisfy the relevant criteria for inclusion in annex 1 and the United Kingdom Foreign and Commonwealth Office stances that the applicant no longer fulfils the relevant criteria.

      (1)  OJ 2005 L 260 p. 10


title: Case C-325/09: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 12 August 2009 — Secretary of State for the Home Department v Maria Dias

text:
               24.10.2009

               EN

               Official Journal of the European Union

               C 256/13

         Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 12 August 2009 — Secretary of State for the Home Department v Maria Dias
   (Case C-325/09)
   2009/C 256/26
   Language of the case: English

      Referring court

   Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Applicant: Secretary of State for the Home Department

      Defendant: Maria Dias

      Questions referred

               1.

               If a European Union citizen, present in a Member State of which she is not a national, was, prior to the transposition of Directive 2004/38/EC (1), the holder of a residence permit validly issued pursuant to Article 4(2) of Directive 68/360/EEC (2), but was for a period of time during the currency of the permit voluntarily unemployed, not self-sufficient and outside the qualifications for the issue of such a permit, did that person by reason only of her possession of the permit, remain during that time someone who ‘resided legally’ in the host Member State for the purpose of later acquiring a permanent right of residence under Article 16(1) of Directive 2004/38/EC?

               2.

               If five years’ continuous residence as a worker prior to 30 April 2006 does not qualify to give rise to the permanent right of residence created by Article 16(1) of Directive 2004/38/EC, does such continuous residence as a worker give rise to a permanent right of residence directly pursuant to Article 18(1) of the EU Treaty on the grounds that there is a lacuna in the Directive?

      (1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC
   OJ L 158, p. 77

      (2)  Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families
   OJ L 257, p. 13


title: Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 257, 15.10.2005

text:
               29.10.2005

               EN

               Official Journal of the European Union

               C 271/28

         (2005/C 271/52)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 257, 15.10.2005

   Past publications

      OJ C 243, 1.10.2005

      OJ C 229, 17.9.2005

      OJ C 217, 3.9.2005

      OJ C 205, 20.8.2005

      OJ C 193, 6.8.2005

      OJ C 182, 23.7.2005

   These texts are available on:

               EUR-Lex:http://europa.eu.int/eur-lex

               CELEX:http://europa.eu.int/celex


title: Reference for a preliminary ruling by the Bundesvergabeamt by order of that court of 5 December 1996 in the case of Walter Tögel against Niederösterreichische Gebietskrankenkasse (Case C-76/97)

text:
No C 108/ 18            EN                   Official Journal of the European Communities                                        5 . 4 . 97
      91 /689/EEC of     12     December    1991    on hazardous               procedure from being conducted under the Federal
      waste 0 ), the Kingdom of Spain has failed to fulfil its                 Procurement Law for awards of contracts for services,
      obligations under the EC Treaty,                                         and must such a national court conduct a review
                                                                               procedure in accordance with the fourth part of the
                                                                               Federal Procurement Law ?
— order the Kingdom of Spain to pay the costs.
                                                                        3 . ( a ) Are the services mentioned in the facts of the case
Pleas in law and main arguments adduced in support:                                 (with reference to Article 10 of Directive 92/50/
                                                                                EEC ) to be classified as services coming under
The pleas in law and main arguments are similar to those                            Annex IA, category No 2 ( land transport services )
                                                                                and contracts for such services are thus to be
relied on in Case C-56/97 ( 2); the time-limit expired on
26 June 1995 .                                                                      awarded in accordance with the provisions of
                                                                                Titles II and IV of the Directive, or are they to be
                                                                                classified as services coming under Annex IB of
(') OJ No L 377, 31 . 12 . 1991 , p. 20 .                                           Directive 92/50/EEC ( health ) with the result that
(2) See page 12 of this Official Journal .                                          contracts for such services are to be awarded in
                                                                                accordance with the provisions of Articles 13 and
                                                                                14, or do those services fall outside the sphere of
                                                                                application of Directive 92/50/EEC ?
                                                                               ( b) Do the provisions of Articles 1 to 7, points 14 and
Reference        for    a preliminary ruling by the                                 16 , satisfy the preconditions laid down in the Van
Bundesvergabeamt by order of that court of 5 December                               Duyn Judgment on the direct applicability of a
1996 in the case of Walter Togel against                                            Community Directive, with the result that services
            Niederosterreichische Gebietskrankenkasse                               coming under Annex IB of the Directive are to be
                          ( Case C-76/97)
                                                                                awarded under the procedure therein mentioned or
                                                                                are the relevant provisions of the Directive for the
                            ( 97/C 108/34 )                                         services mentioned in Annex 1A capable of
                                                                                fulfilling the preconditions laid down in the
                                                                                abovementioned case ?
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt                   4 . Is there under Article 5 or other provisions of the EEC
 ( Federal Procurement Office ) of 5 December 1996,
                                                                               Treaty, or under Directive 92/50/EEC, an obligation
received at the Court Registry on 20 February 1997, for a                      on the State to interfere in existing legal situations
preliminary ruling in the case of Walter Togel against                         concluded for an indefinite period or for several years
Niederosterreichische           Gebietskrankenkasse      on    the
                                                                                but which were not entered into in accordance with
 following questions:                                                           the abovementioned Directive ?
  1 . May an individual derive, from Article 1 ( 1 ) and ( 2 )           H OJ No L 395 , 30 . 12 . 1989 , p . 33 .
       and Article 2 ( 1 ) or other provisions of Council                ( 2 ) OJ No L 209, 24 . 7. 1992 , p . 1 .
       Directive 89/665/EEC ( ] ) on the coordination of the
       laws, regulations and administrative provisions
       relating to the application of review procedures to the
       award of public supply and public works contracts, a
       specific right to have review proceedings conducted
       before authorities or courts which comply with the
                                                                         Reference for a preliminary                 ruling from the
       provisions of Article 2 ( 8 ) of Directive 89/665/EEC,
                                                                         Handelsgericht Wien by order                of that court of
       which right is so sufficiently precise and specific that,         20 December 1996 in the case of Osterreichische Unilever
       in the event of non-transposition of the Directive in                  GmbH v. Smithkline Beecham Markenartikel GesmbH
       question by the Member State, an individual may
       successfully assert that legal right against that Member                                      ( Case C-77/97)
       State in legal proceedings ?                                                                    ( 97/C 108/35
  2 . In conducting a review procedure on the basis of an
        individual's right, founded on Article 41 of Directive            Reference has been made to the Court of Justice of the
        92/50/EEC (2 ) in conjunction with Directive 89/665/              European Communities by an order of the Handelsgericht
        EEC, to the conduct of a review procedure, must a                 Wien ( Commercial Court, Vienna ) of 20 December 1996 ,
        national court, analogous to the Federal Procurement              which was received at the Court Registry on 21 February
        Office, refuse to take cognizance of provisions of                 1997, for a preliminary ruling in the case of
                                                                           Osterreichische Unilever GmbH v. Smithkline Beecham
        national law such as Section 91 ( 2 ) ( 3 ) BVergG, which
        confer on the Federal Procurement Office powers of                 Markenartikel GesmbH on the following question:
        review only in the case of infringements of the Federal
        Procurement law and regulations adopted thereunder,                Does Article 30 of the EC Treaty in conjunction with
        on the ground that those provisions preclude a feview              Council Directive 76/768/EEC of 27 July 1976 on the


title: Case C-341/14: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 14 July 2014  — J. Harmsen; other party: Burgemeester van Amsterdam

text:
               29.9.2014

               EN

               Official Journal of the European Union

               C 339/9

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 14 July 2014 — J. Harmsen; other party: Burgemeester van Amsterdam
   (Case C-341/14)
   2014/C 339/10
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Appellant: J. Harmsen

      Other party: Burgemeester van Amsterdam

      Questions referred

               1.

               Does Chapter III of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) apply to purely internal situations, or is the assessment of the question as to whether that chapter applies subject to the case-law of the Court of Justice concerning the Treaty provisions on freedom of establishment and the free movement of services in purely internal situations?

               2.

               If the answer to Question 1 is that the case-law of the Court of Justice concerning the Treaty provisions on freedom of establishment and the free movement of services in a purely internal situation applies to the assessment of the question as to whether Chapter III of Directive 2006/123 is applicable:

                           (a)

                           Should the national courts apply the provisions laid down in Chapter III of Directive 2006/123 in a situation such as that in the present case, in which the service provider has not established himself on a cross-border basis and does not offer services on a cross-border basis, but nevertheless relies on those provisions?

                           (b)

                           Is it relevant to the answer to that question that the operator provides services primarily to self-employed prostitutes from Member States other than the Netherlands?

                           (c)

                           In order to answer that question, is it necessary to determine whether undertakings established in other Member States have shown or will show genuine interest in establishing a window prostitution business in Amsterdam?

               3.

               To the extent to which the operator is entitled to rely on the provisions of Chapter III of Directive 2006/123, does Article 10(2)(c) of that directive preclude a measure such as that at issue here, whereby an operator of window prostitution businesses is allowed to rent out rooms in shifts only to prostitutes who are able to make themselves understood by the operator in a language which he understands?


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber) of 17 May 1995 in Case T-16/94: Dimitrios Benecos v. Commission of the European Communities (Vacancy notice - Level of post to be filled - Rejection of candidatures - Reasoning)

text:
No C 189/ 14            EN                  Official Journal of the European Communities                                    22 . 7 . 95
Reference for a preliminary ruling by Juzgado de lo Socal              ( Social Court) No 2, Santiago de Compostela, of 26 May
No 2, Santiago de Compostela, by order of that court of                1995 , which was received at the Court Registry on 12 June
26 May 1995 in the case of Mercedes Lores Guillín v.                   1 995 , for a preliminary ruling in the case of Mercedes Lores
Instituto Nacional de Empleo and Instituto Nacional de la              Guillín against Instituto Nacional de Empleo (National
                           Seguridad Social                            Employment Institute ) and Instituto Nacional de la
                           (Case C-184/95 )                            Seguridad Social (National Social Security Institute ) on
                                                                       questions which are the same as in Case C-88/95 i 1 ).
                              95/C 189/27 )
Reference has been made to the Court of Justice of the
European Communities by an order of Juzgado de lo Social               (!) OJ No C 137, 3 . 6 . 1995, p. 12.
                                                      COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                               JUDGMENT OF THE COURT OF FIRST INSTANCE
                         ( Fourth Chamber)                                                      (Fourth Chamber)
                           of 17 May 1995                                                         of 17 May 1995
in Case T- 1 0/94 : Achim Kratz v. Commission of the                   in Case T-16/94 : Dimitrios Benecos v. Commission of the
                   European Communities { l )                                             European Communities ( 1 )
(Vacancy notice — Level of post to be filled — Fixed by                (Vacancy notice — Level ofpost to be filled — Rejection of
       appointing authority after consulting the advisory                                 candidatures — Reasoning)
          committee on appointments — Rejection of                                                 ( 95/C 189/29 )
                             candidatures)
                            ( 95/C 189/28
                                                                                (Language of the case: French)
                (Language of the case: French)
                                                                       In Case T-16/94 : Dimitrios Benecos, an official of the
In Case T- 1 0/94 : Achim Kratz, an official of the                    Commission of the European Communities, residing in
Commission of the European Communities , residing in                   Brussels, represented by Jean-Noël Louis, Thierry
Tervuren ( Belgium ), represented by Nicolas Lhoëst, of the            Demaseure and Véronique Leclercq, of the Brussels Bar,
Brussels Bar, with an address for service in Luxembourg at             with an address for service in Luxembourg at the Chambers
the Chambers of Fiduciaire Myson Sàrl, 1 Rue Glesener,                 of Fiduciaire Myson Sàrl, 1 Rue Glesener, against the
against the Commission of the European Communities                     Commission of the European Communities (Agents :
( Agents : Joseph Griesmar and, at the oral proceedings,               Ana-Maria Alves Vieira and Denis Waelbroeck and, at the
Gianluigi Valsesia ) — application for annulment of the                oral proceedings, Gianluigi Valsesia ) — application for the
decision of 3 May 1993 not to accept the applicant's                   annulment of the decision of the Commission rejecting the
candidature for the post of Head of the Unit 'Public Health            applicant's candidature for the post COM/106/92 as
— Europe against Aids ' — the Court of First Instance                  Head of the Unit I/E/4 'Infrastructure (including
( Fourth Chamber ), composed of K. Lenaerts, President of              telecommunications ) and energy ( including nuclear safety)'
the Chamber, R. Schintgen and P. Lindh, Judges; B. Pastor,             — the Court of First Instance (Fourth Chamber), composed
for the Registrar, gave a judgment on 17 May 1995 , the                of K. Lenaerts , President of the Chamber, R. Schintgen and
operative part of which is as follows :                                P. Lindh, Judges; B. Pastor, for the Registrar, gave a
                                                                       judgment on 17 May 1995 , the operative part of which is as
1 , the decision of the Commission of 3 May 1 993 rejecting            follows :
      the applicant's candidature for the post of Head of the
      Unit 'Public Health — Europe against Aids ' and the
      related decisions to fix that post at Grade AS!A4 and            1 , the action is dismissed;
      subsequently to appoint Mrs Dellicour to that post are
      annulled;
                                                                       2 , the Commission is ordered to pay the costs.
2 , the Commission is ordered to pay the costs.
                                                                       f 1 ) OJ No C 76 , 12 . 3 . 1994 .
( ! ) OJ No C 76 , 12 . 3 . 1994 .


title: Case C-472/04: Action brought on 4 November 2004 by Commission of the European Communities against Italian Republic

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/31

         Action brought on 4 November 2004 by Commission of the European Communities against Italian Republic
   (Case C-472/04)
   (2005/C 6/58)
   Language of the case: Italian
   An action against the Italian Republic was brought before the Court of Justice of the European Communities on 4 November 2004 by the Commission of the European Communities, represented by Knut Simonsson and Claudio Loggi, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare that, by failing to adopt (all) the laws, regulations and administrative provisions needed to comply with Directive 2001/96/EC (1)of the European Parliament and of the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers, and by failing in any event to give the Commission notice thereof, the Italian Republic has failed to fulfil its obligations under Article 17 of that directive;

               —

               Order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposition expired on 5 August 2003.

      (1)  OJ L 13 of 16.1.2002, p. 9.


title: Case T-284/13 P: Appeal brought on 22 May 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 11 March 2013 in Case F-17/12 Marcuccio v Commission

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/52

         Appeal brought on 22 May 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 11 March 2013 in Case F-17/12 Marcuccio v Commission
   (Case T-284/13 P)
   2013/C 207/86
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by G. Cipressa, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

               —

               Set aside in its entirety and without exception the order under appeal.

               —

               Refer the case back to the Civil Service Tribunal.

      Pleas in law and main arguments

   The pleas in law and main arguments are the same as those relied on in Case T-203/13 P Marcuccio v Commission.


title: Judgment of the Court (First Chamber) of 16 January 2003 in Case C-63/02: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland Failure of a Member State to fulfil its obligations — Failure to implement Directive 98/83/EC)

text:
C 44/10                   EN                            Official Journal of the European Union                                         22.2.2003
Regulation (EEC) No 1308/70 of the Council of 29 June 1970 on                   2.    Orders the Kingdom of Spain to pay the costs.
the common organisation of the market in flax and hemp, as amended
by Council Regulation (EC) No 2826/2000 of 19 December 2000
on information and promotion actions for agricultural products on               (1 ) OJ C 68 of 16.3.2002.
the internal market and Regulation (EEC) No 619/71 of the Council
of 22 March 1971 laying down general rules for granting aid for
flax and hemp, as amended by Council Regulation (EC) No 1420/
98 of 26 June 1998, must be interpreted so precluding national
legislation which has the effect of prohibiting the cultivation and
possession of industrial hemp covered by those regulations.
( 1) OJ C 84 of 6.4.2002.
                                                                                JUDGMENT OF THE COURT
                                                                                (First Chamber)
                                                                                of 16 January 2003
                   JUDGMENT OF THE COURT
                              (First Chamber)                                   in Case C-63/02: Commission of the European Communi-
                                                                                ties v United Kingdom of Great Britain and Northern
                                                                                Ireland ( 1)
                          of 16 January 2003
in Case C-29/02: Commission of the European Communi-                            Failure of a Member State to fulfil its obligations — Failure
                     ties v Kingdom of Spain ( 1)                                               to implement Directive 98/83/EC)
(Failure of a Member State to fulfil its obligations — Failure                                            (2003/C 44/19)
                 to transpose Directive 98/83/EC)
                              (2003/C 44/18)                                                        (Language of the case: English)
                     (Language of the case: Spanish)
(Provisional translation; the definitive translation will be published          In Case C-63/02, Commission of the European Communities
                     in the European Court Reports)                             (Agent: M. Shotter) v United Kingdom of Great Britain and
                                                                                Northern Ireland (Agents: P. Ormond, assisted by M. Demetri-
                                                                                ou, barrister): Application for a declaration that, by failing to
                                                                                adopt for Northern Ireland and Wales all the laws, regulations
                                                                                and administrative provisions necessary to comply with
In Case C-29/02, Commission of the European Communities
                                                                                Council Directive 98/83/EC of 3 November 1998 on the
(Agent: G. Valero Jordana) v Kingdom of Spain (Agent:
                                                                                quality of water intended for human consumption (OJ 1998
L. Fraguas Gadea): Application for a declaration that, by failing
to adopt or, in any event, to communicate to the Commission                     L 330, p. 32) or, in any event, by failing to notify such
                                                                                provisions to the Commission, the United Kingdom of Great
the laws, regulations and administrative provisions necessary
                                                                                Britain and Northern Ireland has failed to fulfil its obligations
to comply with Council Directive 98/83/EC of 3 November
1998 on the quality of water intended for human consumption                     under Article 17(1) and (2) of that directive, the Court
                                                                                (First Chamber), composed of: M. Wathelet, President of the
(OJ 1998 L 330, p. 32), the Kingdom of Spain has failed to
fulfil its obligations under that directive, the Court (First                   Chamber, P. Jann and A. Rosas (Rapporteur), Judges; S. Alber,
                                                                                Advocate General; R. Grass, Registrar, has given a judgment
Chamber), composed of: M. Wathelet, President of the Chamb-
                                                                                on 16 January 2003, in which it:
er, P. Jann and A. Rosas (Rapporteur), Judges; S. Alber,
Advocate General; R. Grass, Registrar, has given a judgment
on 16 January 2003, in which it:
                                                                                1.    Declares that, by failing to adopt for Northern Ireland and
                                                                                Wales all the laws, regulations and administrative provisions
1.     Declares that, by failing to adopt the laws, regulations and                   necessary to comply with Council Directive 98/83/EC of
       administrative provisions necessary to comply with Council                     3 November 1998 on the quality of water intended for human
       Directive 98/83/EC of 3 November 1998 on the quality of                        consumption, the United Kingdom of Great Britain and
       water intended for human consumption, the Kingdom of Spain                     Northern Ireland has failed to fulfil its obligations under
       has failed to fulfil its obligations under that directive;                     Article 17(1) of that directive;
 ---pagebreak--- 22.2.2003                EN                          Official Journal of the European Union                                                C 44/11
2.    Orders the United Kingdom of Great Britain and Northern                                     ORDER OF THE COURT
      Ireland to pay the costs.
                                                                                (Sixth Chamber)
( 1) OJ C 109 of 4.5.2002.
                                                                                of 21 November 2002
                                                                             in Case C-360/01: Italian Republic v Commission of the
                                                                             European Communities and Council of the European
                                                                                Union ( 1)
                  JUDGMENT OF THE COURT
                           (First Chamber)                                   (Sugar — Pricing system — Marketing year 2001/2002 —
                                                                             Regionalisation — Non-deficit areas — Classification of
                                                                             Italy — Validity of Regulations (EC) Nos 1263/2001 and
                         of 16 January 2003                                  1260/2001 — Action for annulment — Manifestly inadmis-
                                                                                sible in part)
in Case C-122/02: Commission of the European Communi-
                  ties v Kingdom of Belgium (1)
                                                                                (2003/C 44/21)
(Failure of a Member State to fulfil its obligations — Failure
                to transpose Directive 98/83/EC)                                                  (Language of the case: Italian)
                           (2003/C 44/20)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                             In Case C-360/01, Italian Republic (Agent: U. Leanza, and G de
                                                                             Bellis) v Commission of the European Communities (Agent: C.
                                                                             Cattabriga) and Council of the European Union (Agent:
In Case C-122/02, Commission of the European Communities                     F. P. Ruggeri Laderchi) — application for the annulment of
(Agents: G. Valero Jordana and J. Adda) v Kingdom of Belgium                 Article 1 of Commission Regulation (EC) No 1263/2001 fixing
(Agent: A. Snoecx): Application for a declaration that, by                   the derived intervention prices for white sugar for the 2001/
failing to adopt all the laws, regulations and administrative                02 marketing year (OJ 2001 L 178, p. 60), in so far as it fails
provisions necessary to comply fully with Council Directive                  to fix derived intervention prices for white sugar for all the
98/83/EC of 3 November 1998 on the quality of water                          areas of Italy and, in so far as necessary, the annulment of
intended for human consumption (OJ 1998 L 330, p. 32) or,                    Article 2(1)(a) of Council Regulation (EC) No 1260/2001 of
at any rate, by failing fully to inform the Commission thereof,              19 June 2001 on the common organisation of the markets in
the Kingdom of Belgium has failed to fulfil its obligations                  the sugar sector (OJ 2001 L 178, p. 1) — the Court
under that directive, the Court (First Chamber), composed of:                (Sixth Chamber), composed of: J.-P. Puissochet (President of
M. Wathelet, President of the Chamber, P. Jann and A. Rosas                  Chamber), R. Schintgen, C. Gulmann, V. Skouris and N. Col-
(Rapporteur), Judges; L.A. Geelhoed, Advocate General;                       neric (Rapporteur), Judges; J. Mischo, Advocate General;
R. Grass, Registrar, has given a judgment on 16 January 2003,                R. Grass, Registrar, gave a judgment on 21 November 2002,
in which it:                                                                 the operative part of which is as follows:
1.    Declares that, by failing to adopt all the laws, regulations and       1.    The application is dismissed as manifestly inadmissible inas-
      administrative provisions necessary to comply fully with Council             much as it is directed against the Council.
      Directive 98/83/EC of 3 November 1998 on the quality of
      water intended for human consumption, the Kingdom of
      Belgium has failed to fulfil its obligations under that directive;     2.    The Italian Republic is ordered to pay the costs relating to that
                                                                                part of the application.
2.    Orders the Kingdom of Belgium to pay the costs.
                                                                             (1 ) OJ C 331 of 24.11.2001.
( 1) OJ C 131 of 1.6.2002.


title: Case C-540/13: Judgment of the Court (Fourth Chamber) of 16 April 2015 — European Parliament v Council of the European Union (Action for annulment — Police and judicial cooperation in criminal matters — Setting of the date on which an earlier decision is to take effect — Determination of the legal basis — Legal framework applicable following the entry into force of the Treaty of Lisbon — Transitional provisions — Secondary legal basis — Consultation of Parliament)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/7

         Judgment of the Court (Fourth Chamber) of 16 April 2015 — European Parliament v Council of the European Union
   (Case C-540/13) (1)

   ((Action for annulment - Police and judicial cooperation in criminal matters - Setting of the date on which an earlier decision is to take effect - Determination of the legal basis - Legal framework applicable following the entry into force of the Treaty of Lisbon - Transitional provisions - Secondary legal basis - Consultation of Parliament))
   (2015/C 198/08)
   Language of the case: French

      Parties

      Applicant: European Parliament (represented by: F. Drexler, A. Caiola and M. Pencheva, acting as Agents)

      Defendant: Council of the European Union (represented by: K. Pleśniak and A.F. Jensen, acting as Agents)

      Operative part of the judgment

   The Court:

               1)

               Annuls Council Decision 2013/392/EU of 22 July 2013 fixing the date of effect of Decision 2008/633/JHA concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences;

               2)

               Declares that the effects of Decision 2013/392 are to be maintained until the entry into force of a new act intended to replace it;

               3)

               Orders the Council of the European Union to pay the costs.

      (1)  OJ C 359, 7.12.2013.


title: Case C-336/05: Order of the Court (Fifth Chamber) of 13 June 2006 (reference for a preliminary ruling from the Tribunal départemental des pensions militaires du Morbihan –France) — Ameur Echouikh v Secrétaire d'État aux Anciens Combattants (Article 104(3), first subparagraph, of the Rules of Procedure — Euro-Mediterranean Agreement EC-Morocco — Article 65 — Principle of non-discrimination in matters of social security — Armed services invalidity pension)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/17

         Order of the Court (Fifth Chamber) of 13 June 2006 (reference for a preliminary ruling from the Tribunal départemental des pensions militaires du Morbihan –France) — Ameur Echouikh v Secrétaire d'État aux Anciens Combattants
   (Case C-336/05) (1)

   (Article 104(3), first subparagraph, of the Rules of Procedure - Euro-Mediterranean Agreement EC-Morocco - Article 65 - Principle of non-discrimination in matters of social security - Armed services invalidity pension)
   (2006/C 224/31)
   Language of the case: French
   Referring court
   Tribunal départemental des pensions militaires du Morbihan
   Parties

      Applicant: Ameur Echouikh

      Defendant: Secrétaire d'État aux anciens combattants
   Re:
   Reference for a preliminary ruling — Tribunal départemental des pensions militaires du Morbihan — Interpretation of Articles 64 and 65 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels on 26 February 1996 (OJ 2000 L 70, p. 2), of Articles 40 to 42 of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, signed in Rabat on 27 April 1976 (OJ 1978 L 264, p. 1) and of the general principle of non-discrimination based on nationality as enshrined in Article 12 of the EC Treaty and Article 14 of the ECHR — Direct effect — Meaning of ‘worker’, ‘remuneration’ and ‘social security benefit’ — National legislation refusing an armed services invalidity pension to a Moroccan national who has served in the Member State's armed forces
   Operative part of the order
   The first subparagraph of Article 65(1) of the Euro-Mediterranean establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels on 26 February 1996 and approved on behalf of the Communities by Decision 2000/204/EC, ECSC of the Council and Commission of 24 January 2000 is to be interpreted as meaning that it precludes the host Member State from refusing to grant an armed services invalidity pension to a Moroccan national who has served in that State's army and resides in its territory on the sole ground that the person concerned is of Moroccan nationality.

      (1)  OJ C 296, 26.11.2005.


title: Case C-314/12: Judgment of the Court (Fourth Chamber) of 27 March 2014 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH (Reference for a preliminary ruling — Approximation of laws — Copyright and related rights — Information society — Directive 2001/29/EC — Website making cinematographic works available to the public without the consent of the holders of a right related to copyright — Article 8(3) — Concept of ‘intermediaries whose services are used by a third party to infringe a copyright or related right’  — Internet service provider — Order addressed to an internet service provider prohibiting it from giving its customers access to a website — Balancing of fundamental rights)

text:
               19.5.2014

               EN

               Official Journal of the European Union

               C 151/2

         Judgment of the Court (Fourth Chamber) of 27 March 2014 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH
   (Case C-314/12) (1)

   ((Reference for a preliminary ruling - Approximation of laws - Copyright and related rights - Information society - Directive 2001/29/EC - Website making cinematographic works available to the public without the consent of the holders of a right related to copyright - Article 8(3) - Concept of ‘intermediaries whose services are used by a third party to infringe a copyright or related right’ - Internet service provider - Order addressed to an internet service provider prohibiting it from giving its customers access to a website - Balancing of fundamental rights))
   2014/C 151/02
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Applicant: UPC Telekabel Wien GmbH

      Defendants: Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH

      Re:

   Request for a preliminary ruling — Oberster Gerichtshof — Interpretation of Articles 3(2), 5(1) and (2)(b), and 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) — Internet site allowing illegal downloading of films — Right of the copyright holder of one of those films to require an Internet service provider to block its customers’ access to that specific site — Feasibility and proportionality of the blocking measures

      Operative part of the judgment

               1.

               Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29.

               2.

               The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.

      (1)  OJ C 303, 6.10.2012.


title: Case T-21/12: Action brought on 17 January 2012 — Alfacam and Others v Parliament

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/27

         Action brought on 17 January 2012 — Alfacam and Others v Parliament
   (Case T-21/12)
   2012/C 89/45
   Language of the case: French

      Parties

      Applicants: Alfacam (Lint, Belgium); Via Storia (Schiltigheim, France); DB Video Productions (Aartselaar, Belgium); IEC (Rennes, France); and European Broadcast Partners (EUBROPA) (Aartselaar) (represented by: B. Pierart, lawyer)

      Defendant: European Parliament

      Form of order sought

               —

               Annul the decision adopted by the European Parliament on 18 November 2011 which awards to the Belgian company WATCH TV S.A. the contract EP/DGCOMM/AV/11/11 lot 1 Provision of video, radio and multimedia services — Services to be provided to the European Parliament in Brussels;

               —

               accordingly, annul the decision adopted by the European Parliament which did not accept the tender of the first four applicants, acting within the framework of the consortium EUROPEAN BROACAST PARTNERS, that tender ranking second for the contract EP/DGCOMM/AV/11/11 lot 1 Provision of video, radio and multimedia services — Services to be provided to the European Parliament in Brussels;

               —

               order the European Parliament to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on a sole plea alleging infringement of Article 94 of the Financial Regulation, (1) in so far as the tenderer’s tender contained false declarations, so that that tenderer should have been excluded from the award of the contract.

      (1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).


title: Case C-290/14: Judgment of the Court (Fourth Chamber) of 1 October 2015 (request for a preliminary ruling from the Tribunale di Firenze — Italy) — Criminal proceedings against Skerdjan Celaj (Reference for a preliminary ruling — Area of freedom, security and justice — Directive 2008/115/EC — Return of illegally staying third-country nationals — Return decision accompanied by an entry ban of three years’ duration — Breach of an entry ban — Third-country national previously removed — Sentence of imprisonment in case of new unlawful entry into the national territory — Compatibility)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/8

         Judgment of the Court (Fourth Chamber) of 1 October 2015 (request for a preliminary ruling from the Tribunale di Firenze — Italy) — Criminal proceedings against Skerdjan Celaj
   (Case C-290/14) (1)

   ((Reference for a preliminary ruling - Area of freedom, security and justice - Directive 2008/115/EC - Return of illegally staying third-country nationals - Return decision accompanied by an entry ban of three years’ duration - Breach of an entry ban - Third-country national previously removed - Sentence of imprisonment in case of new unlawful entry into the national territory - Compatibility))
   (2015/C 381/08)
   Language of the case: Italian

      Referring court

   Tribunale di Firenze

      Party in the main proceedings

   Skerdjan Celaj

      Operative part of the judgment

   Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as not, in principle, precluding legislation of a Member State which provides for the imposition of a prison sentence on an illegally staying third-country national who, after having been returned to his country of origin in the context of an earlier return procedure, unlawfully re-enters the territory of that State in breach of an entry ban.

      (1)  OJ C 292, 1.9.2014.


title: Case T-252/12: Action brought on 11 June 2012 — Gretsch-Unitas v Commission

text:
               28.7.2012

               EN

               Official Journal of the European Union

               C 227/30

         Action brought on 11 June 2012 — Gretsch-Unitas v Commission
   (Case T-252/12)
   2012/C 227/51
   Language of the case: German

      Parties

      Applicants: Gretsch-Unitas GmbH (Ditzingen, Germany) and Gretsch-Unitas GmbH Baubeschläge (Ditzingen, Germany) (represented by: H.-J. Hellmann, C. Malz and S. Warken, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the defendant’s Decision of 28 March 2012, which was notified to the applicants on 3 April 2012, relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement (COMP/39452 — Mountings for windows and window-doors) in so far as it concerns the applicants;

               —

               in the alternative, reduce the fine imposed on the applicants;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First, the defendant did not provide sufficient reasons for the contested decision as regards the determination of the basic amount of the fine imposed on the applicants and thus failed to comply with the obligation to state reasons under the second paragraph of Article 296 TFEU, which is an essential procedural requirement.

               2.

               Secondly, the defendant, in determining the basic amount of the fine imposed on the applicants, and without objective justification, treated them differently from other undertakings, and thus infringed the principles of proportionality and equal treatment.

               3.

               Thirdly, the defendant erred in setting the fine imposed on the applicants as it incorrectly assessed the extent of the reduction in the fine in respect of the applicants as the first undertaking which provided evidence that added significant value. The defendant also failed to explain in the manner required by law how it assessed the extent of the reduction in the fine in respect of the applicants as the first undertaking which provided evidence that added significant value

               4.

               Fourthly, the defendant infringed the principles of proportionality and equal treatment in calculating the reduction in the fine imposed on the applicants in that it did not make allowance for the competitive advantage which Siegenia received with reference to its economic position.

               5.

               Fifthly, the defendant’s decision is erroneous having regard to the consideration which must be given to the gravity of the infringement in setting the fine imposed on the applicants.

               6.

               Sixthly, the defendant failed to take account, as a mitigating factor when exercising its discretion in setting the fine imposed on the applicants, of their significantly smaller degree of participation in the conduct relevant for the purposes of the law on cartels.

               7.

               Seventhly, the defendant’s scheme of fines, as a whole, infringes the principle that punishments and penalties set should reflect individual circumstances and is therefore unlawful.


title: Appeal Chamber

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/4

      Appeal Chamber
      (2010/C 288/07)
      On 14 September 2010, the General Court decided that, for the period from 20 September 2010 to 31 August 2011, the Appeal Chamber will be composed of the President of the Court and, in rotation, two Presidents of Chambers.
      The Judges who will sit with the President of the Appeal Chamber to make up the extended formation of five Judges will be the three Judges of the formation initially hearing the case and, in rotation, two Presidents of Chambers.


title: Case T-378/04: Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (Orsay) (Community trade mark — Opposition procedure — Application for the word and figurative trade mark Orsay — Earlier national word and figurative trade mark D'ORSAY — Ground for refusal — Risk of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/26

         Judgment of the Court of First Instance of 14 February 2008 — Orsay v OHIM — Jiménez Arellano (Orsay)
   (Case T-378/04) (1)

   (Community trade mark - Opposition procedure - Application for the word and figurative trade mark Orsay - Earlier national word and figurative trade mark D'ORSAY - Ground for refusal - Risk of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2008/C 79/51)
   Language of the case: German
   Parties

      Applicant: Orsay GmbH (Willstät, Germany) (represented by: D. von Schultz and S. Elbe, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially, by: T. Eichenberg, later by: G. Schneider, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: José Jiménez Arellano S.A. (Madrid, Spain) (represented initially, by: J. Astiz Suárez, later by: S. Hernán-Carrillo Portolés and finally by: A. Tarí Lázaro, lawyers,
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 June 2004 (Case R 909/2002-4) concerning an opposition procedure between José Jiménez Arellano S.A. and Orsay GmbH.
   Operative part of the judgment

               1.

               The application is dismissed;

               2.

               Orsay GmbH is ordered to pay the costs.

      (1)  OJ C 314 of 18.12.2004.


title: Case T-215/05: Action brought on 27 May 2005 by Marie-Yolande Beau against the Commission of the European Communities

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/24

         Action brought on 27 May 2005 by Marie-Yolande Beau against the Commission of the European Communities
   (Case T-215/05)
   (2005/C 205/45)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 May 2005 by Marie-Yolande Beau, residing in Paris, represented by Georges Vandersanden and Laure Levi, lawyers.
   The applicant claims that the Court should:

               —

               annul the decision of the appointing authority refusing to accede to the request for recognition of the occupational origin of her disease and charging to her the fees and incidental costs of the doctor nominated by her and half of the fees and incidental costs of the third doctor,

               —

               order the defendant to pay all of the costs.

         Pleas in law and main arguments
   In the present proceedings, the applicant is challenging the appointing authority's refusal to accede to her request for recognition, in accordance with Article 73 of the Staff Regulations, of the occupational origin of her disease.
   In that regard, she asserts that she began to have serious respiratory problems early in 1996, whereas upon being recruited, in 1988, she was in good health. Furthermore, a decision was taken to invalid her from the service.
   In support of the form of order sought, the applicant claims that the medical committee:

               —

               misunderstood the concept of occupational disease and failed to comply with its terms of reference. In that regard, the applicant asserts that the medical committee did not respond in its report to the question whether the occupational factor was one factor or the factor that triggered her pathology. On that point, the fact that the applicant has continued to suffer certain difficulties after leaving the service does not mean that her pathology could not have an occupational origin. Furthermore, the Commission did not make a finding as to the possible application in the present case of Article 14 of the Staff Regulations,

               —

               did not give a proper account of the reasons for its findings, in the light of medical reports that were appreciably different,

               —

               failed to take the relevant medical reports into consideration,

               —

               based its findings on an incomplete report,

               —

               subjected the applicant to respiratory functional tests which, unlike a possible provocation test specific to tobacco, which was not carried out, could not be relevant.


title: Case C-515/09: Judgment of the Court (Eighth Chamber) of 29 July 2010 — European Commission v Republic of Estonia (Failure of a Member State to fulfil obligations — Directive 2006/21/EC — Management of waste from extractive industries — Failure to transpose within the prescribed period)

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/14

         Judgment of the Court (Eighth Chamber) of 29 July 2010 — European Commission v Republic of Estonia
   (Case C-515/09) (1)

   (Failure of a Member State to fulfil obligations - Directive 2006/21/EC - Management of waste from extractive industries - Failure to transpose within the prescribed period)
   2010/C 246/23
   Language of the case: Estonian

      Parties

      Applicant: European Commission (represented by: A. Marghelis and K. Saaremäel-Stoilov, Agents)

      Defendant: Republic of Estonia (represented by: L. Uibo, Agent)

      Re:

   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, all the provisions necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (OJ 2006 L 102, p. 15)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, the Republic of Estonia has failed to fulfil its obligations under that directive;

               2.

               Orders the Republic of Estonia to pay the costs.

      (1)  OJ C 63, 13.03.2010.


title: Case C-479/11 P: Appeal lodged on 21 September 2011 by Katinan Justin Koné against the order delivered on 13 July 2011 by the General Court in Case T-349/11 Koné v Council

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/3

         Appeal lodged on 21 September 2011 by Katinan Justin Koné against the order delivered on 13 July 2011 by the General Court in Case T-349/11 Koné v Council
   (Case C-479/11 P)
   2012/C 6/04
   Language of the case: French

      Parties

      Appellant: Katinan Justin Koné (represented by: L. Bourthoumieux, J. Vergès, R. Dumas and M. Ceccaldi, avocats)

      Other party to the proceedings: Council of the European Union

      Form of order sought

               —

               Declare the action brought by Mr Katinan Justin Koné admissible;

               —

               Annul the order in Case T-349/11 of 13 July 2011, after holding it to be time-barred;

               —

               Refer the action back to the General Court in order that the appellant may claim his rights;

               —

               Order the Council of the European Union to pay the costs under Articles 69 and 73 of the Rules of Procedure of the Court.

      Pleas and main arguments

   In support of his appeal, the appellant raises the following pleas in law:

               —

                  Force majeure, the fact of the war interrupting the limitation period. The events with which the appellant had been confronted since November 2010 in Côte d’Ivoire constitute a case of force majeure within the meaning of Article 45 of the Statute of the Court of Justice of the European Union, having regard to the state of war which interrupted the limitation period for acts adopted against him by the Council.

               —

               The present case of force majeure because of the war constitutes an obstacle to the appellant’s freely exercising his right of action against actions which manifestly infringe fundamental rights.

               —

               The fundamental rights and freedoms take priority over the principle of legal certainty. By applying the principle of legal certainty in order to declare the appellant’s application inadmissible, the General Court infringes the fundamental right of access to courts and tribunals and of the rights of the defence. Thus, the appellant has been deprived of his right to be heard by a court having jurisdiction.

               —

               The unenforceability of the time-limit on account of distance and of the time-limit for lodging an appeal in the event of war. The time-limit on account of distance and the time-limit for lodging an appeal cannot be enforced against a person residing in a State at open war. Such time-limits apply only in peacetime and on the continent of Europe. The appellant is located on another continent and, therefore, the strict application of Article 102 of the Rules of Procedure of the General Court to the present case is indisputably in breach of Article 6(1) of European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 263 of the Treaty on the Functioning of the European Union.

               —

               The primacy of Article 263 of the Treaty on the Functioning of the European Union. Article 102 of the Rules of Procedure of the General Court would render inoperable any obligation of notification as provided for in the Treaty on the Functioning of the European Union which provides that the period for lodging an appeal starts to run with effect from the publication or notification to the plaintiff of the measure or the day on which it came to his knowledge. Article 102 of the Rules of Procedure avoids the obligation of notification and does not take into account the day on which the application effectively became aware of the measure, thus restricting the letter and the spirit of Article 263 TFEU. Accordingly, Article 102 calls into question the rights laid down and protected by the Treaty, which is of higher legal standing and which is mandatory for the institutions comprising the European Union. Consequently, since the contested measures were not notified to the appellant, in breach of Article 263(5) of the Treaty on the Functioning of the European Union, the period for lodging an appeal can start only from when he became aware of the measures adopted against him.

               —

               A serious infringement of fundamental rights and freedoms. The principle of legal certainty as stated by the General Court seriously calls into question legal certainty as a whole since citizens seeking justice who reside outside the European Union and who reside in a country at war have sanctions issued against them against which they cannot effectively exercise their rights since they do not know of the sanction.

               —

               In the alternative, the appellant seeks the annulment of the measures adopted against him by the Council on the ground of the seriousness of the breach of fundamental rights and freedoms. Since the contested measures infringe fundamental freedoms protected by different international treaties, it is for the Court of Justice to annul those measures in so far as their unlawfulness contravenes the established European legal order and on the ground that no time-limit for lodging an appeal can be enforced because of the seriousness of the breach of the protected fundamental rights and freedoms.