title: Case T-52/11: Judgment of the General Court of 19 April 2013 — Aecops v Commission (ESF — Training operations — Reduction in financial assistance initially granted — Regulation (EC, Euratom) No 2988/95 — Time-bar — Legal certainty — Rights of the defence — Reasonable period — Duty to state reasons)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/39

         Judgment of the General Court of 19 April 2013 — Aecops v Commission
   (Case T-52/11) (1)

   (ESF - Training operations - Reduction in financial assistance initially granted - Regulation (EC, Euratom) No 2988/95 - Time-bar - Legal certainty - Rights of the defence - Reasonable period - Duty to state reasons)
   2013/C 156/70
   Language of the case: Portuguese

      Parties

      Applicant: Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) (Lisbon, Portugal) (represented initially by: J. da Cruz Vilaça and L. Pinto Monteiro and subsequently by: L. Pinto Monteiro, P. Farinha Alves and N. Morais Sarmento, lawyers)

      Defendant: European Commission (represented by: P. Guerra e Andrade and D. Recchia, acting as Agents)

      Re:

   Annulment of the Commission’s decision of 27 October 2010 setting the final amount of the expenditure eligible for assistance from the European Social Fund (ESF), granted to the applicant for training operations by Commission Decision C(89) 570 of 22 March 1989 for the funding of training operations (file 89 0979 P3)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Associação de Empresas de Construção e Obras Públicas e Serviços (Aecops) to pay the costs.

      (1)  OJ C 139, 7.5.2011.


title: Case C-138/12: Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 15 March 2012 — Rusedespred OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna pri Tsentralno Upravlenie na Natsionalnata Agentsia za Prihodite

text:
               26.5.2012

               EN

               Official Journal of the European Union

               C 151/24

         Reference for a preliminary ruling from the Administrativen Sad Varna (Bulgaria) lodged on 15 March 2012 — Rusedespred OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna pri Tsentralno Upravlenie na Natsionalnata Agentsia za Prihodite
   (Case C-138/12)
   2012/C 151/38
   Language of the case: Bulgarian

      Referring court

   Administrativen Sad Varna (Bulgaria)

      Parties to the main proceedings

      Applicant: Rusedespred OOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna pri Tsentralno Upravlenie na Natsionalnata Agentsia za Prihodite

      Questions referred

               1.

               Is a taxable person entitled, in accordance with the principle of neutrality, to claim a refund of incorrectly invoiced and undue VAT within the limitation period laid down where, under national law, the transaction in respect of which he has charged the tax is exempt from VAT, the risk of any loss of tax revenue has been eliminated and the provision of national law governing the correction of invoices is inapplicable?

               2.

               Do the common system of value added tax and the principles of neutrality, effectiveness and equal treatment preclude the refusal by a revenue authority, on the basis of a national provision transposing Article 203 of Council Directive 2006/112 (1) of 28 November 2006 on the common system of value added tax, to refund to a taxable person the VAT which that person has entered on an invoice where that tax is not owed, because the transaction in question is exempt from VAT, but was invoiced, charged and paid in error, in so far as the purchaser of the goods or recipient of the service has already been refused the right to deduct tax in respect of the same transaction by a final tax assessment notice on the ground that the supplier of goods or services charged the tax unlawfully?

               3.

               Can a taxable person rely directly on the principles governing the common system of value added tax, in particular the principles of tax neutrality and effectiveness, in order to object to a national provision or its application by the tax authorities or the courts in breach of the aforementioned principles or to the failure by a national provision to observe those principles?

      (1)  OJ 2006 L 347, p. 1.


title: Case F-53/09: Action brought on 20 May 2009 — J v Commission

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/64

         Action brought on 20 May 2009 — J v Commission
   (Case F-53/09)
   2009/C 180/119
   Language of the case: French

      Parties

      Applicant: J (London, United Kingdom) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Commission of the European Communities

      Subject-matter and description of the proceedings

   Annulment of the decision rejecting the applicant’s claim that the disease from which she is suffering should be recognised as an occupational disease, and of the decision to charge her for the fees and costs of the doctor which she designated and 50 % of the fees and incidental costs of the third doctor on the medical committee.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the Commission’s decision rejecting the applicant’s claim that the disease from which she is suffering and which prevents her from carrying out her duties should be recognised as an occupational disease within the meaning of Article 73 of the Staff Regulations;

               —

               annul the Commission’s decision to charge her for the fees and costs of the doctor which she designated and for 50 % of the fees and incidental costs of the third doctor on the medical committee;

               —

               order the Commission to pay the applicant a symbolic sum of EUR one to compensate for the non-material harm suffered;

               —

               order the Commission of the European Communities to pay the costs.


title: Case C-435/02: Reference for a preliminary ruling by the Landgericht Essen by order of that Court of 25 November 2002 in proceedings relating to the commercial register between Axel Springer AG and Zeitungsverlag Niederrhein GmbH & Co. Essen KG

text:
C 44/12                  EN                       Official Journal of the European Union                                       22.2.2003
Action brought on 16 October 2002 by the Commission                       received at the Court Registry on 29 November 2002, for a
of the European Communities against the Italian Republic                  preliminary ruling in the administrative judicial proceedings
                                                                          between Arnold André GmbH & Co. KG and the Landrat
                                                                          (Principal Officer) of the Herford Local Authority on the
                          (Case C-374/02)
                                                                          following question:
                           (2003/C 44/22)
                                                                          Is the provision in Article 8 of Directive 2001/37/EC (1), by
                                                                          which, with a view to the approximation of the laws,
                                                                          regulations and administrative provisions of the Member States
An action against the Italian Republic was brought before the             concerning the manufacture, presentation and sale of tobacco
Court of Justice of the European Communities on 16 October                products, the placing on the market of tobacco for oral use is
2002 by the Commission of the European Communities,                       prohibited, without prejudice to Article 151 of the Act
represented by M. Konstantinidis and Roberto Amorosi, acting              concerning the Accession of Austria, Finland and Sweden,
as Agents.                                                                compatible with the superior law of the European Communi-
                                                                          ties?
The applicant claims that the Court should:
                                                                          (1 ) OJ L 194, p. 26.
—     declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Council Directive 1999/31/EC (1) of 26 April 1999 on
      the landfill of waste, or in any event by failing to inform
      the Commission thereof, the Italian Republic has failed to
      fulfil its obligations under Article 18 of that directive:
                                                                          Reference for a preliminary ruling by the Landgericht
—     order the Italian Republic to pay the costs.                        Essen by order of that Court of 25 November 2002 in
                                                                          proceedings relating to the commercial register between
                                                                          Axel Springer AG and Zeitungsverlag Niederrhein GmbH
                                                                                & Co. Essen KG
Pleas in law and main arguments
                                                                                (Case C-435/02)
Article 249 EC, according to which a directive is to be binding,
                                                                                (2003/C 44/24)
as to the result to be achieved, upon each Member State to
which it is addressed, implies that Member States are required
to comply with the time-limits for transposition laid down in
directives. When the time-limit expired, the Italian Republic             Reference has been made to the Court of Justice of the
had not promulgated the provisions necessary to comply with               European Communities by order of the Landgericht Essen
the directive referred to in the Commission’s claims.                     (Regional Court Essen) of 25 November 2002, received at the
                                                                          Court Registry on 2 December 2002, for a preliminary ruling
                                                                          in proceedings relating to the commercial register between
( 1) OJ L 182 of 16.7.1999, p. 1.
                                                                          Axel Springer AG and Zeitungsverlag Niederrhein GmbH &
                                                                          Co. Essen KG on the following questions:
                                                                          (1) Is Directive 90/605/EEC ( 1), in conjunction with
                                                                                Article 47 of Directive 78/660/EEC ( 2), compatible with
                                                                                the fundamental Community right of freedom to exercise
                                                                                a trade or profession in so far as Kommanditgesellschaften
Reference for a preliminary ruling by the Verwaltungsger-                       (limited partnerships) whose personally liable partner is a
icht Minden by order of that Court of 14 November                               private limited company are obliged to publish their
2002 in the administrative judicial proceedings between                         annual accounts and annual report, in particular without
Arnold André GmbH & Co. KG and the Landrat of the                               any restriction being imposed on the group of persons
                     Herford Local Authority                                    entitled to inspect those documents?
                                                                          (2) Is Directive 90/605/EEC, in conjunction with Article 47
                          (Case C-434/02)                                       of Directive 78/660/EEC, compatible with the fundamen-
                                                                                tal Community rights of freedom of the press and radio
                           (2003/C 44/23)                                       in so far as Kommanditgesellschaften whose personally
                                                                                liable partner is a private limited company and which are
                                                                                engaged in the press and publishing sector or the radio
                                                                                broadcasting sector are obliged to publish their annual
Reference has been made to the Court of Justice of the                          accounts and annual report, in particular without any
European Communities by order of the Verwaltungsgericht                         restriction being imposed on the group of persons
Minden (Administrative Court Minden) of 14 November 2002,                       entitled to inspect those documents?
 ---pagebreak--- 22.2.2003              EN                           Official Journal of the European Union                                           C 44/13
(3) Is Directive 90/605/EEC compatible with the general                     of certain alleged irregularities in its conduct. According to the
      principle of equality in so far as it places at a disadvantage        applicant, the Customs Service merely has jurisdiction to
      those Kommanditgesellschaften whose personally liable                 record in its statements facts gathered during the course of its
      partner is a private limited company as compared with                 investigations. It is not competent to evaluate those facts and
      Kommanditgesellschaften whose personally liable partner               the Commission ought to have conducted its own investigation
      is a natural person, even though creditors of a GmbH &                of the matter. The applicant says that, in finding the Customs
      Co. KG (a limited partnership in which the unlimited                  Service’s statement to be sufficient proof, the Court of First
      partner is a private company) are better protected by the             Instance erred in law and its judgment is thereby vitiated.
      duty of disclosure imposed on private limited companies
      than are creditors of a Kommanditgesellschaft whose
      personally liable partner, as a natural person, is not under
      any duties of disclosure?                                             The applicant maintains that the judgment is also vitiated by
                                                                            the fact that the Court failed to give consideration to the
                                                                            subjective element as a decisive factor in determining whether
( 1) OJ L 317 of 16.11.1990, p. 60.                                         a decision to withdraw a certain grant was permissible. The
( 2) OJ L 222 of 14.8.1978, p. 11.
                                                                            Court should have distinguished between the possible case of a
                                                                            culpable, but not fraudulent, breach of the financial conditions,
                                                                            such as would justify no more than the reduction or suspension
                                                                            of the grant, and a fraudulent breach of the financial conditions,
                                                                            entitling the Commission to withdraw the grant in its entirety.
Appeal brought on 13 December 2002 by Sgaravatti
Mediterranea S.r.l. against the judgment delivered on
                                                                            Lastly, the applicant maintains that the Court’s finding that
26 September 2002 by the Fifth Chamber of the Court of
                                                                            there is no possibility of a breach of the principle of ne bis in
First Instance of the European Communities in Case
                                                                            idem is questionable, given that the sanction imposed by means
T-199/99 between Sgaravatti Mediterranea S.r.l and the
                                                                            of the injunction issued in Italy came after the Community
          Commission of the European Communities
                                                                            decision. According to the applicant, when the Commission
                                                                            decided to withdraw the grant which was due it knew or ought
                        (Case C-455/02 P)                                   to have known that an administrative sanction would be
                                                                            handed down in Italy.
                         (2003/C 44/25)
An appeal against the judgment delivered on 26 September
2002 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-199/99 between
Sgaravatti Mediterranea S.r.l and the Commission of the
European Communities was brought before the Court of
Justice of the European Communities on 13 December 2002
by Sgaravatti Mediterranea S.r.l., a company with registered
offices in Capoterra (CA), Italy, represented by Massimo Merola             Reference for a preliminary ruling by the Tribunal du
and Piero A.M. Ferrari, Lawyers.                                            Travail de Bruxelles by judgment of that Court of 21 No-
                                                                            vember 2002 in the proceedings between Michel Trojani
                                                                                and Le Centre Public d’Aide Sociale de Bruxelles
The applicant claims that the Court should:
—     annul the judgment of the Court of First Instance delivered
      on 26 September 2002 in Case T-199/99;                                                        (Case C-456/02)
—     annul Commission Decision C(1999) 1502 of 4 June
      1990 or, in the alternative, refer the case back to the                                        (2003/C 44/26)
      Court of First Instance in accordance with Article 54 of
      the EC Statute of the Court of Justice;
—     in any event, order the Commission to pay the costs of
      both sets of proceedings.
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by judgment of the Tribunal du Travail
Pleas in law and main arguments                                             de Bruxelles (Labour Court, Brussels) of 21 November 2002,
                                                                            received at the Court Registry on 18 December 2002, for a
                                                                            preliminary ruling in the proceedings between Michel Trojani
The applicant takes issue with the improper use of a statement              and Le Centre Public d’Aide Sociale de Bruxelles on the
made by the Customs Service as evidence, sufficient in itself,              following questions:


title: Case T-268/11 P: Appeal brought on 26 May 2011 by the European Commission against the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-120/07 Strack v Commission

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/31

         Appeal brought on 26 May 2011 by the European Commission against the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-120/07 Strack v Commission
   (Case T-268/11 P)
   2011/C 232/56
   Language of the case: German

      Parties

      Appellant: European Commission (represented by: J. Curral and B. Eggers, Agents

      Other party to the proceedings: Guido Strack (Cologne, Germany)

      Form of order sought by the appellant

   The appellant claims that the General Court should:

               —

               set aside the judgment of the Civil Service Tribunal of 15 March 2011 in Case F-120/07 Strack v Commission;

               —

               order both parties to bear their own costs of the proceedings at first instance and of this appeal.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies essentially on three grounds of appeal.

               1.

               First ground of appeal: infringement of European Union law in the interpretation of Article 4 of Annex V to the Staff Regulations of officials of the European Union (the Staff Regulations):
               First, the Civil Service Tribunal infringed European Union law and settled case-law by interpreting the first paragraph of Article 4 of Annex V to the Staff Regulations to mean that it did not apply to the carrying over of the right to leave in cases of long term illness.

               2.

               Second ground of appeal: Infringement of European Union law in the legally erroneous determination of the scope and legal effect of the second paragraph of Article 1(e) of the Staff Regulations:
               Secondly, the Tribunal infringed European Union law and failed to state sufficient reasons in its erroneous interpretation of the scope of the second paragraph of Article 1(e) of the Staff Regulations as imposing a comprehensive duty on the institutions to guarantee as a minimum to officials, with reference to all working conditions relating to health protection, the standards in Directives adopted pursuant to Article 153 TFEU. The objective however of the second paragraph of Article 1(e), which was introduced as part of the 2004 reform of the Staff Regulations, is merely to remedy a lacuna in respect of technical provisions lacking in the Staff Regulations for the safeguarding of the health and safety of the staff in the premises of the institutions (for example. fire protection, hazardous substances, ventilation, ergonomics, etc.). The Staff Regulations accordingly now allow the application of the technical minimum standards in the respective Directives transposed into national law. However, the provision cannot and should not affect working conditions in respect of carrying over leave and compensation for unused leave which are determined exclusively by the bodies enacting the Staff Regulations. In so far as the Tribunal so decided, the decision was contrary not only to the current provisions of the Staff Regulations and the Tribunals’ case-law, but also was in breach of the principle of legal certainty.

               3.

               Third ground of appeal: Procedural infringement:
               Third, the Tribunal infringed procedural requirements, since of its own motion it interpreted the applicant’s first claim as an infringement of the second paragraph of Article 1(e) of the Staff Regulations and de facto nullified a provision of the Staff Regulations when there was no plea of illegality and the Council and the Parliament of the European Union had no opportunity to intervene.


title: Case T-80/09 P: Judgment of the General Court of 12 July 2011 — Commission v Q (Appeal — Civil service — Officials — Cross-appeal — Psychological harassment — Article 12a of the Staff Regulations — Communication on the policy on psychological harassment at the Commission — Duty on the part of the administration to provide assistance — Article 24 of the Staff Regulations — Scope — Request for assistance — Provisional distancing measures — Duty to have regard for the welfare of officials — Liability — Claim for damages — Unlimited jurisdiction — Conditions for implementation — Staff report — Action for annulment — Interest in bringing proceedings)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/32

         Judgment of the General Court of 12 July 2011 — Commission v Q
   (Case T-80/09 P) (1)

   (Appeal - Civil service - Officials - Cross-appeal - Psychological harassment - Article 12a of the Staff Regulations - Communication on the policy on psychological harassment at the Commission - Duty on the part of the administration to provide assistance - Article 24 of the Staff Regulations - Scope - Request for assistance - Provisional distancing measures - Duty to have regard for the welfare of officials - Liability - Claim for damages - Unlimited jurisdiction - Conditions for implementation - Staff report - Action for annulment - Interest in bringing proceedings)
   2011/C 252/75
   Language of the case: French

      Parties

      Appellant: European Commission (represented by: V. Joris, D. Martin and B. Egger, Agents)

      Other party to the proceedings: Q (Domsjö, Sweden) (represented by: S. Rodrigues and Y. Minatchy, lawyers)

      Re:

   Appeal against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 9 December 2008 in Case F-52/05 Q v Commission, not yet published in the ECR, seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 9 December 2008 in Case F-52/05 Q v Commission, not yet published in the ECR, in so far as, at paragraph 2 of the operative part of the judgment, it orders the Commission of the European Communities to pay to Q compensation in the sum of EUR 500 together with the sum of EUR 15 000, in so far as that sum is intended to make reparation for the non-material damage suffered by Q as a result of the delay in opening the administrative inquiry, and, for the purpose of dismissing the application at first instance as to the remainder at paragraph 3 of the operative part, rules, at paragraphs 147 to 189 of the grounds of the judgment, on ‘the complaint of psychological harassment raised by [Q]’ and, at paragraph 230 of the grounds, finds that there is no need to rule on the claim for annulment of Q’s career development reports drawn up in respect of the periods from 1 January to 31 October and from 1 November to 31 December 2003, respectively.

               2.

               Dismisses the appeal and cross-appeal as to the remainder.

               3.

               Refers the case back to the Civil Service Tribunal for a ruling on the claim seeking annulment of the career development reports referred to above and on the sum to be paid to Q by the Commission solely in respect of the non-material damage resulting from the Commission’s refusal to take a provisional distancing measure.

               4.

               Costs reserved.

      (1)  OJ C 102, 1.5.2009.


title: Action brought on 4 January 1997 by Anna Maria Campogrande against Commission of the European Communities (Case T-3/97)

text:
No C 74/22            EN                  Official Journal of the European Communities                                         8 . 3 . 97
Application brought on 12 December 1996 by J. J. M. van              The pleas in law and main arguments in support are
Rossum and C. C. W. M. van Rossum v. Council and                     analogous to those in Case T-206/96.
         Commission of the European Communities
                       ( Case T-207/96 )                             (') OJ No L 90, 1 . 4 . 1984 , p. 13 .
                                                                     ( 2 ) OJ No L 84, 23 . 9 . 1989 , p. 2 .
                          ( 97/C 74/46 )                             ( 3 ) OJ No L 131 , 26 . 5 . 1977, p. 1 .
                (Language of the case: Dutch)
An application was brought before the Court of First
Instance of the European Communities on 12 December                  Action brought on 4 January 1997 by Anna Maria
1996 against the Council and Commission of the                       Campogrande against Commission of the European
European Communities by J. J. M. van Rossum, residing                                              Communities
at Alphen (Netherlands ), and C. C. W. M. van Rossum,                                             ( Case T-3/97)
residing at Maasbommel ( Netherlands ), both represented
by A. A. M. van Beek, of the Tilburg bar.                                                           ( 97/C 74/47 )
                                                                                (Language of the case: French)
The applicants claim that the Court of First Instance
should:
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
1 . declare that the European Economic Community is                  Instance of the European Communities on 4 January 1997
    liable in damages to the applicants;                             by Anna Maria Campogrande, of Brussels, represented by
                                                                     Marc-Albert Lucas, of the Liege Bar, with an address for
                                                                     service in Luxembourg at the Chambers of Evelyne Korn,
2 . declare that the European Economic Community is                  21 rue de Nassau .
    liable to the applicants for the loss of income suffered
    by the applicants as a result of the application of
    Council Regulation ( EEC ) No 857/84 of 31 March                 The applicant claims that the Court should:
    1984 (') and the application of Council Regulation
    ( EEC ) No 764/89 of 20 March 1989 (2 ) amending                 — annul or declare illegal the Commission's decision of
    Regulation (EEC ) No 857/84, in so far as no provision
                                                                            19 July 1988 concerning the procedure for filling
    was made in those Regulations for a representative
                                                                           middle-management              posts    ( COM(88)PV      928 ,
    reference quantity to be allocated to SLOM assignees
                                                                           published in the 'Administrative Notices' No 578 of
    who had delivered no milk in the reference year
                                                                           5 December 1988 ), as amended by its decision of
    chosen by the Member State concerned pursuant to
                                                                           28 June 19 95 ( published in 'Administrative Notices'
    an undertaking under Council Regulation ( EEC)
                                                                           No 898 of 7 July 1995 ),
    No 1078/77 ( 3 ) of 17 May 1977;
                                                                     — in the alternative, variously:
3 . declare that the applicants have suffered loss of
    income in an amount constituted by the difference                      — annul or declare illegal the Commission's decision
    between the income, including turnover and herd                            to fill the post of Head of Unit of the 'Andean
    increase, which in the normal course of affairs they                       Pact' at career bracket A 4/A 5 ('Summaries of
    would have obtained from the quantities of milk                            Vacancy Notices' No 39 , of 14 December 1995 ,
    which they would have delivered if, during the period                      COM/ 141 /95 ),
    between 1 April 1984 ( the date of entry into force of
    Regulation ( EEC) No 857/84 ) and 31 March 1994
    (the date of expiry of the 1993/1994 period of levy ),                 — annul or declare illegal the vacancy notice for the
    they had had available to them the reference quantity                      post in question,
    of milk to which they were entitled and, on the other
    hand, the income which they actually received during                   — annul the decision of the appointing authority to
    the abovementioned period;                                                 appoint someone else to the post in question,
4.  declare that interest shall accrue on the amounts of             — in any event, order the appointing authority to pay the
                                                                           costs .
    income owing to the applicants with effect from the
    date of delivery of the Court's judgment, at the rate of
    8 % per annum, or at such rate as the Court may                  Pleas in law and main arguments adduced in support:
    deem fit, until the date of full and final settlement;
                                                                     The applicant, an official in grade A 4 step 5, contests the
5 . order the defendants to pay the costs .                          appointing authority's decision rejecting her candidature
 ---pagebreak--- 8 . 3 . 97          1 EN 1                Official Journal of the European Communities                                 No C 74/23
for the post of Head of Unit responsible for relations with          Action brought on 6 January 1997 by Roberto D'Orazio
the member countries of the 'Andean Pact'. According                 and Pierre Hublau against Commission of the European
to the competition notice, the post fell in career bracket                                     Communities
A 5/A 4 .
                                                                                ( Case T-4/97)
                                                                                ( 97/C 74/48 )
In support of her claims, the applicant alleges, first of all,
breach of Article 5 (4 ) and Annex I to the Staff                                   (Language of the case: French)
Regulations inasmuch as, by applying to the circumstances
of this case its decision of 19 July 1988 concerning the             An action against the Commission of the European
procedure for filling middle-management posts, the                   Communities was brought before the Court of First
defendant has defined identically the duties corresponding           Instance of the European Communities on 6 January 1997
to posts in different career brackets. In this respect, she          by Roberto D'Orazio, residing in Clabecq ( Belgium ), and
considers that in its judgment in Case T- 10/94 Kratz v.             Pierre Hublau, residing in Tubize ( Belgium ), represented
Commission (') the Court of First Instance did not hold              by Patrice Bonbled, Caroline Sokolovitch and Olivier
that the Commission could define the duties attaching to             Gemberling, of the Brussels Bar.
two basic posts corresponding to separate career brackets
without placing them in rank. On the other hand, it seems
to have ruled that they could be filled at different levels          The applicants claim that the Court should:
where they were not of equal importance.
                                                                     — annul the Commission decision .
Second, the applicant alleges misuse of powers, in so far
as the contested decision forms part of a policy whose               Pleas in law and main arguments adduced in support:
objective is the appointment of younger administrators, as
distinct from pursuing the interests of the service . In             The applicants, who are the presidents of the trade-union
addition, in her opinion, the procedure for filling middle          and employee delegations of the public limited company
management posts is such as to prejudice the necessarily             Forges de Clabecq, an integrated steel undertaking that
objective character of the decision as to the level of the           produces liquid steel and finished flat products, take issue
post to be filled.                                                   with the Commission decision of 18 December 19 96
                                                                     opposing intervention by the Region of Wallonia in favour
                                                                     of the said undertaking.
Last, the applicant alleges breach of the principle that
officials are entitled to reasonable career prospects and of         That intervention was, in particular, to take the form of a
Article 5 ( 3 ) of the Staff Regulations, in that the staff          capital investment of Bfrs 1 500 000 000 by the Societe
policy guidelines and career-bracket profiles drawn up by            Wallonne de Siderurgie to recapitalize the beneficiary
the Commission work to the advantage of some officials               company.
and to the disadvantage of others who do not correspond
to them. Grade A 4 officials, including a majority of
officials with considerable seniority, like the applicant,           In support of their claims, the applicants first submit that
who wish to further their career, have no choice under               there has been a breach of the fundamental principles of
that policy but to apply for Head of Unit posts at grade             Community legality. They point out in this regard that the
A 5/A 4 level, in order to acquire the management                    right to work is a constitutional tradition accepted in all
experience required . By contrast, grade A 5 officials, a            of the Member States . This tradition was encapsulated by
majority of whom are young, enjoy greater career                     the European Parliament, on 12 April 1989, in the
opportunities as a result of the new rules for filling posts.        declaration of fundamental rights and freedoms . The
                                                                     applicants stress that this declaration encompasses
                                                                     collective social rights and social protection . The contested
                                                                     decision, in their view, applies a number of legal principles
In the alternative, the applicant claims that the decision           without taking account of human and sociological factors .
setting the level of the post in question is illegal . In that
regard, she considers that, having regard to the political
importance of the 'Andean Pact' unit, its work load, the             Second, the applicants submit that the Commission has
staff available to it and its budget, the post in issue should       adduced insufficient reasons for its decision to classify the
have been filled at grade A 3 . In the further alternative,          restructuring in question as public aid. In their view, the
the applicant also claims that the vacancy notice is illegal,        Commission did not carry out any economic analysis of
since it is imprecise and contains a manifest error of               the undertaking, and instead merely reproduced a number
 appreciation.                                                       of opinions issued by experts in the Region of Wallonia .
                                                                     Specifically, no economic argument can justify the
                                                                     conclusion that, once the restructuring has been
 (M Case T-10/94 Kratz v. Commission [ 1995 ] ECR 11-1455 .          completed, the Forges de Clabecq company cannot
                                                                     become viable .


title: Case C-445/13 P: Appeal brought on 6 August 2013 by Voss of Norway ASA against the judgment of the General Court (First Chamber) delivered on 28 May 2013 in Case T-178/11: Voss of Norway ASA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/40

         Appeal brought on 6 August 2013 by Voss of Norway ASA against the judgment of the General Court (First Chamber) delivered on 28 May 2013 in Case T-178/11: Voss of Norway ASA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-445/13 P)
   2013/C 344/70
   Language of the case: English

      Parties

      Appellant: Voss of Norway ASA (represented by: F. Jacobacci, B La Tella, avvocati)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the judgment of the General Court of 28 May 2013 (T-178/11);

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

   By its appeal, Voss of Norway ASA (‘Voss’) seeks annulment of the judgment of the General Court of the European Union (‘GC’) of 28 May 2013 in Case T-178/11 (‘ judgment under appeal’), by which the GC dismissed Voss’ application seeking the annulment of the decision of the First board of Appeal (‘BOA’) of the Office for Harmonisation in the Internal market (Trade Marks and Designs) (OHIM) of 12 January 2011 in Case R 785/2010-1 (‘the contested decision’) upholding the request for a declaration of invalidity lodged by Nordic Spirit in respect of the Community trade mark (‘CTM shape mark’), registered by Voss on 3 December 2004.
   The appeal is based on the following grounds:

                     First Plea: the judgment under appeal failed to take into account Voss’s second plea to the GC, namely that the burden of proof was reversed before the Board of Appeal

               The GC failed to consider whether the BOA had made an error of law regarding the procedural question of the burden of proof. This plea in law has an independent significance overall for CTM law. This reversed Burden of Proof standard — which contravenes general principles of law — could become part of the body of relevant case-law. For that reason only, the BOA decision should have been annulled and the judgment under appeal set aside.

                     Second Plea: the GC also erroneously shifted the burden of proof

               The GC also shifted the burden of proof, which rested exclusively on Nordic Spirit AB as the cancellation party contesting the validity of a registered CTM, on to Voss to submit concrete evidence that the Voss shape mark is distinctive. To that effect, the GC quoted case-law regarding trademark applications — and non-registered trademarks — that did not enjoy a presumption of validity, as Voss’s CTM shape mark does. This constitutes a clear violation of the rules ensuring a fair trial, Article 99 CTMR (1) and Rule 37 (b) (iv) CTMIR (2) which, by itself, is sufficient to annul the contested decision.

                     Third Plea: the erroneous definition of the norms and customs of the sector which constitutes an infringement of Article 7(1) (b) CTMR

               The GC correctly stated, at para. 45, that it is necessary to ascertain whether the contested CTM departs significantly from the norms and customs of the relevant sector. Thus the analysis of whether a 3D shape mark is distinctive requires first and foremost an examination of the ‘norms of the sector’ in order to then determine whether a particular 3D mark can be distinguished by the consumer from other undertakings.
               However, the identification by the GC of the latter falls far short of a well-grounded definition of the ‘norms’ of the sector for beverages. The indications identified by the GC relating to the norms of the sector are first factually wrong (the reference to an inexistent ‘cylindrical section’) and so vague and general that — if applied — no beverage bottle would ever pass the test for distinctiveness (not even the famous Coca-Cola bottle, if it were the object of a cancellation action). By contrast, the Cancellation Division properly defined the norms of the sector.
               Further, the Board of Appeal in decision R 2465/2011-2 dated 1 February 2012 (Freixenet v. OHIM), held at para. 36 that ‘previously, nor the examiner, nor the Board, presented documents which contained references to the reality of the market existing at the day of application, and
                     did not identify nor indicate concrete examples of identical or similar bottles commonly used in the sector before said date. This omission is a sufficient ground to uphold the appeal
                  .’ Thus, the General Court, by omitting to indicate concrete examples of the norms of the sector, clearly infringed Article 7 (1) (b) of the CTMR.

                     Fourth Plea: Error in law regarding the assessment of the distinctive character of the Voss bottle shape trade mark — Infringement of Article 7(1) (b) CTMR

               It emerges from the applicable case law regarding the distinctive character that a trade mark must be considered and assessed as a whole and that the assessment of each of the component pieces merely helps the overall assessment but cannot serve as a substitute for the same. In the judgment under appeal, the GC only evaluated each component individually and did not assess the trade mark as a whole.
               The GC thus erred in law in assessing whether the mark has distinctive character, as it did not consider, as it was required to do, the overall impression given by the mark, but adopted the wrong approach by separating the mark into its component parts, each being found somewhat original.

                     Fifth Plea: Serious distortion of evidence in comparing 3D shape with a two-dimensional section and in identifying the norms and customs of the sector

               Both statements: ‘The vast majority of bottles that can be found on the market have a cylindrical section’ and “bottles come in all sorts of shapes and sizes” were grossly inaccurate and have been nevertheless expressly or impliedly reiterated by the GC in order to dismiss the application for annulment of the BOA decision, thus amounting to a serious distortion of facts or evidence, which constitutes an error of law.

                     Sixth Plea: the decision of the General Court essentially impedes registration of 3D CTM’S violation which constitutes a violation of Article 7(1) (b) CTMR in conjunction with Article 4 CTMR

               The result of the reasoning set out by the General Court is that it is essentially impossible for a product package to be distinctive both as a whole and as a combination of separate components at the same time. On a practical level, the result is that no product packaging can ever pass the test of distinctiveness as established by judgment under appeal and defeats the purpose of the CTMR.

      (1)  Community Trade Mark Regulation — Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 11, p. 1, replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark
   OJ L 78, p. 1

      (2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation 40/94 on the Community trade mark
   OJ L 303, p. 1


title: Case F-75/11: Action brought on 28 July 2011 — ZZ v Council

text:
               15.10.2011

               EN

               Official Journal of the European Union

               C 305/11

         Action brought on 28 July 2011 — ZZ v Council
   (Case F-75/11)
   2011/C 305/13
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: D. Abreu Caldas, A. Coolen, J.-N. Louis, E. Marchal and S. Orlandi, lawyers)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of the Appointing Authority’s decision not to promote the applicant to Grade AST 7 in the 2007 promotion exercise

      Form of order sought

               —

               Annulment of the Appointing Authority’s decision of 18 April 2011 to reject the applicant’s complaint against the decision not to promote him to Grade AST 7 in the 2007 promotion exercise;

               —

               So far as necessary, annulment of the Appointing Authority’s decision not to promote the applicant to Grade AST 7 in the 2007 promotion exercise;

               —

               An order that the Council pay the costs.


title: Case F-135/14: Action brought on 25th November 2014 — ZZ v EMA

text:
               19.1.2015

               EN

               Official Journal of the European Union

               C 16/50

      Action brought on 25th November 2014 — ZZ v EMA
      (Case F-135/14)
      (2015/C 016/75)
      Language of the case: English

         Parties

         Applicant: ZZ (represented by: S. Rodrigues, A. Blot, lawyers)

         Defendant: European Medicines Agency (EMA)

         Subject-matter and description of the proceedings

      The annulment of the decision to assign the applicant on non-active status.

         Form of order sought

                  —

                  Annul the decision dated 31 January 2014 of the EMA to place the applicant on non-active status as of 1 February 2014 until the alleged expiry of his contract on 15 March 2014, together with the letter dated 14 March 2014 allegedly intending to ‘clarify’ the reason for placing him on non-active status;

                  —

                  annul, so far as necessary, the EMA’s decision dated 15 August 2014, rejecting the Applicant’s complaint dated 24 April 2014 against the aforementioned decisions;

                  —

                  repair the moral prejudice suffered by the Applicant estimated at 20 000 euros;

                  —

                  order the EMA to pay all the costs incurred by the Applicant for the present appeal.


title: Case C-422/01: Reference for a preliminary ruling from the Regeringsrätten (Supreme Administrative Court) of 23 October 2001 in the case of Försäkringsaktiebolaget Skandia and Ola Ramstedt v Riksskatteverket (National Tax Board)

text:
C 84/36                EN                    Official Journal of the European Communities                                       6.4.2002
(a)   Do the provisions of Council Regulation (EEC)                     under which an insurance policy issued by an insurance
      No 1785/81 of 30 June 1981 (1) and/or of Council                  company in the UK, Germany or Denmark which meets the
      Regulation (EEC) No 193/82 of 26 January 1982 (2)                 conditions laid down in Sweden for occupational pension
      preclude those authorities from stipulating that such a           insurance — apart from the condition that the policy must be
      transfer or reallocation of quotas is for value and,              issued by an insurance company operating in Sweden — is
      therefore, that the recipient undertaking or undertakings         treated as an endowment insurance policy with income tax
      must pay financial consideration?                                 effects which, depending on the circumstances in the individual
                                                                        case, may be less favourable than the tax effects of an
                                                                        occupational pension policy?
(b) Even if the answer is in the negative, do the same
      provisions nevertheless preclude the price of the quota to
      be transferred, and the distribution thereof, from being
      decided by public auction? Do those provisions preclude
      recourse to public auction even where it has been
      stipulated that, as part of the reallocation of quotas
      carried out by such a procedure, the measures required to         Reference for a preliminary ruling from the Cour de
      prevent any possible negative repercussions for national          Cassation, Grand Duchy of Luxembourg, by judgment of
      agricultural producers of sugar beet will be adopted?             that court of 8 November 2001 in the case of Design
                                                                                Concept SA v Flanders Expo SA
(c)   Is the interpretation of Community law the same, and
      must the answers also be so, in the light of Council                                       (Case C-438/01)
      Regulation (EC) No 1260/2001 of 19 June 2001 (3) on
      the common organisation of the markets in the sugar                                         (2002/C 84/61)
      sector, which repeals the earlier regulations?
                                                                        Reference has been made to the Court of Justice of the
(1) On the common organization of the markets in the sugar sector       European Communities by a judgment of the Cour de Cas-
    (OJ 1981 L 177, p. 4).                                              sation (Court of Cassation), Grand Duchy of Luxembourg, of
(2) Laying down general rules for transfers of quotas in the sugar      8 November 2001, which was received at the Court Registry
    sector (OJ 1982 L 21, p. 3).                                        on 13 November 2001, for a preliminary ruling in the case of
 3
( ) OJ 2001 L 178, p. 1.                                                Design Concept SA v Flanders Expo SA on the following
                                                                        question:
                                                                        ‘Is Article 9(2)(e) of Sixth Council Directive 77/388/EEC of
                                                                        17 May 1977 on the harmonisation of the laws of the Member
                                                                        States relating to turnover taxes — Common system of
                                                                        value added tax: uniform basis of assessment (1), concerning
                                                                        “advertising services”, applicable to services supplied indirectly
                                                                        to the advertiser and invoiced to a third party who in turn
Reference for a preliminary ruling from the Regeringsrät-               invoices them to the advertiser, if the advertiser does not
ten (Supreme Administrative Court) of 23 October 2001                   produce goods in the price of which the cost of the services is
in the case of Försäkringsaktiebolaget Skandia and Ola                  going to be included?’
     Ramstedt v Riksskatteverket (National Tax Board)
                                                                        (1) OJ 1977 L 145, p. 1.
                         (Case C-422/01)
                          (2002/C 84/60)
                                                                        Reference for a preliminary ruling by the Bundesverwal-
Reference has been made to the Court of Justice of the                  tungsgericht by order of 18 September 2001 in the
European Communities by a decision of the Regeringsrätten               case of Stadt Villingen-Schwenningen v Ophilia Akosua
of 23 October 2001, which was received at the Court Registry                                         Owusu
on 25 October 2001, for a preliminary ruling in the case of
Försäkringsaktiebolaget Skandia and Ola Ramstedt v Riksskat-                                     (Case C-444/01)
teverket on the following question:
                                                                                (2002/C 84/62)
Are the provisions of Community law on freedom of move-
ment for persons, services and capital, in particular Article 49
EC, in conjunction with Article 12 EC, to be interpreted as             Reference has been made to the Court of Justice of the
meaning that they preclude application of national tax rules            European Communities by order of 18 September 2001 by


title: Case C-71/09 P: Appeal brought on 17 February 2009 by the Comitato Venezia vuole vivere against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/20

         Appeal brought on 17 February 2009 by the Comitato ‘Venezia vuole vivere’ against the judgment delivered on 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani SpA and Others v Commission
   (Case C-71/09 P)
   2009/C 113/41
   Language of the case: Italian

      Parties

      Appellant: Comitato ‘Venezia vuole vivere’ (represented by: A. Vianello, avvocato)

      Other parties to the proceedings: Hotel Cipriani SpA, Società Italiana per il gas SpA (Italgas), Italian Republic, Coopservice — Servizi di fiducia Soc. coop. rl, Commission of the European Communities

      Form of order sought

   The appellant claims that the Court should:

               —

               uphold the present appeal;

               —

               set aside the judgment of the Court of First Instance of the European Communities (Sixth Chamber, Extended Composition) of 28 November 2008 in Joined Cases T-254/00, T-270/00 and T-277/00 Comitato Venezia Vuole Vivere v Commission of the European Communities, notified on 3 December 2008, and annul Commission Decision 2000/394/EC (1) of 25 November 1999, failing which, annul Article 5 of that decision in so far as it imposes an obligation to recover the amount accounted for by the social security relief in question and provides for interest to be applied to that amount in respect of the period in question;

               —

               order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice.

      Pleas in law and main arguments

   The Comitato Venezia Vuole Vivere (‘the Committee’) relies on six pleas in law in support of its appeal.
   By the first plea, the Committee maintains that the Court of First Instance erred in law, infringing Article 87(1) EC, and failed to fulfil its obligation under Article 253 EC to state reasons. In particular, the judgment under appeal does not adequately examine the compensatory nature of the aid covered by the contested decision or the effects of that aid on the market, failing to state the related grounds, and breaches the principle of non-discrimination and equal treatment so far as concerns the examination of the situation of the municipalised undertakings vis-à-vis the applicant undertakings.
   By the second plea, the Committee alleges infringement of Article 86(2) EC and, in particular, failure to examine the applicability to the case before it of the derogation relating to the operation of services of general economic interest. By contrast, such an examination was carried out in the case of the municipalised undertakings.
   By the third plea, alleging infringement of Article 87(3) EC, the Committee criticises the approach taken in the judgment under appeal so far as concerns the Commission’s absolute discretion regarding the applicability of the derogation relating to regional difficulties and so far as concerns the lack of an adequate examination of circumstances of the case.
   By the fourth plea, the Committee alleges infringement of Article 87(3((d) EC and, in particular, criticises the granting to the Consorzio Venezia Nuova of the derogation for ‘cultural’ purposes and the failure to undertake an examination of that aspect in the case of the other undertakings.
   By the fifth plea, the Committee criticises the failure to attribute due significance to the continuity between the aid found to be unlawful (introduced after June 1994) and the rules previously in force (as far back as 1973), in breach of Articles 1 and 15 of Council Regulation (EC) No 659/1999 (2) of 22 March 1999 laying down detailed rules for the application of Article [88 EC].
   By the sixth plea, the Committee criticises the automatic nature of the order for recovery, maintaining that this is in breach of Article 14 of Regulation No 659/99.

      (1)  Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50).

      (2)  OJ 1999 L 83, p. 1.


title: Case C-42/13: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 28 January 2013 — Cartiera dell’Adda SpA and Cartiera di Cologno SpA v CEM Ambiente SpA

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/11

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 28 January 2013 — Cartiera dell’Adda SpA and Cartiera di Cologno SpA v CEM Ambiente SpA
   (Case C-42/13)
   2013/C 101/23
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per la Lombardia

      Parties to the main proceedings

      Applicant: Cartiera dell’Adda SpA, Cartiera di Cologno SpA

      Defendant: CEM Ambiente SpA

      Questions referred

               1.

               Is it contrary to Community law, when an undertaking participating in a tendering procedure has failed to declare, in its request for participation, that its technical director has not been the object of any of the prosecutions and convictions referred to in Article 38(1)(b) and (c) of Legislative Decree No 163/2006, for an interpretation of that article to be given, in accordance with which the awarding entity must order the exclusion of that undertaking even when that undertaking has suitably proved that the use of the term ‘technical director’ in its request was due to a mere clerical error?

               2.

               Is it contrary to Community law, when an undertaking participating in a tendering procedure has provided relevant, suitable evidence that the persons required to make the statements referred to in Article 38(1)(b) and (c) have not been the object of any of the prosecutions and convictions referred to therein, for an interpretation of that article to be given, in accordance with which the awarding entity must order the exclusion of that undertaking as a consequence of the failure to comply with the lex specialis under which the tendering procedure was launched?


title: Case C-354/10: Judgment of the Court (Sixth Chamber) of 1 March 2012 — European Commission v Hellenic Republic (Failure to fulfil obligations — State aid — Tax-exempt reserve fund — Incompatibility with the common market — Recovery — Failure to execute)

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/2

         Judgment of the Court (Sixth Chamber) of 1 March 2012 — European Commission v Hellenic Republic
   (Case C-354/10) (1)

   (Failure to fulfil obligations - State aid - Tax-exempt reserve fund - Incompatibility with the common market - Recovery - Failure to execute)
   2012/C 118/03
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: D. Triantafyllou and B. Stromsky, acting as Agents)

      Defendant: Hellenic Republic (represented by: P. Mylonopoulos and K. Boskovits, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Failure to take, within the period prescribed, the measures necessary for recovery of the aid held unlawful and incompatible with the internal market by Article 1(1) (excepting the aid referred to in Article 1(2) and Articles 2 and 3) of the Commission decision of 18 July 2007 (C(2007) 3251) concerning the tax-exempt reserve fund (State aid C 37/2005)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, all the measures necessary for recovery, in accordance with Article 1(1) of Commission Decision 2008/723/EC of 18 July 2007 on State aid C 37/05 (ex NN 11/04) implemented by Greece — tax-exempt reserve fund, of the aid held unlawful and incompatible with the internal market, excepting the aid referred to in Article 1(2) and Articles 2 and 3 of that decision, the Hellenic Republic has failed to fulfil its obligations under Articles 4 to 6 of that decision;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 246, 11.9.2010.


title: Reference for a preliminary ruling by the Finanzgericht Bremen by order of that court of 4 August 1998 in the case of Hans Sommer GmbH & Co against Hauptzollamt Bremen (Case C-15/99)

text:
27.3.1999             EN                Official Journal of the European Communities                                    C 86/7
Reference for a preliminary ruling by the Landgericht              The applicant claims that the Court should:
Regensburg by order of that court of 16 December 1998
in the Business registry case relating to Firma Wiesenhof
   Geflügelspezialitäten, a branch of Lohmann & Co. AG             Ð declare that, by failing to adopt the necessary laws,
                                                                        regulations and administrative provisions to transpose
                        (Case C-5/99)
                                                                        Article 11 of European Parliament and Council
                       (1999/C 86/12)                                   Directive 94/62/EC of 20 December 1994 on
                                                                        packaging and packaging waste (1), the Kingdom of
                                                                        Belgium has failed to fulfil its obligations under that
                                                                        directive;
Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht
Regensburg (Regional Court, Regensburg) of 16 December             Ð order the Kingdom of Belgium to pay the costs.
1998, received at the Court Registry on 7 January 1999,
for a preliminary ruling in the commercial register case
relating to Firma Wiesenhof Geflügelspezialitäten, a               Pleas in law and main arguments adduced in support:
branch establishment of Lohmann & Co. AG, on the
following questions:
                                                                   Subject to certain exceptions in Article 11(2) and
                                                                   Article (3), Article 11 of Directive 94/62/EC provides that
(a) Are Articles 10 and 12 of Directive 69/335/EEC (1) to          Member States are to ensure that the sum of concentration
    be interpreted as meaning that the terms duties' and          levels of lead, cadmium, mercury and hexavelant
    duties paid by way of fees or dues' extend to fees            chromium present in packaging or packaging components
    payable by citizens for registration of a company in           does not exceed:
    the commercial register by a Court of a Member
    State?
                                                                   Ð 600 ppm by weight 2 years after the date referred to
                                                                        in Article 22(1);
(b) If Articles 10 and 12 of Directive 69/335/EEC are held
    to apply to fees demanded by courts:
                                                                   Ð 250 ppm weight 3 years after the date referred to in
                                                                        Article 22(1);
    Are Articles 10 and 12 of Directive 69/335/EEC to be
    interpreted as precluding national legislation, such as
    Sections 32 and 79 ff of the German Court Fee Rules,           Ð 100 ppm weight 5 years after the date referred to in
    requiring payment of a fee for registration of a                    Article 22(1).
    company in the commercial register, which increases
    proportionally to the company's share capital, with no
    upper limit, and in this case amounts to                       The date referred to in Article 22(1) is 30 June 1996.
    DEM 34 910,00 to register a branch establishment of
    a company?
                                                                   It is not disputed, nor can it be disputed, that the
                                                                   Kingdom of Belgium has not adopted any measure to
(1) OJ L 249, 3.10.1969, p. 25.                                    transpose the provisions of Article 11 of the directive into
                                                                   its domestic law.
                                                                   (1) OJ L 365, 31.12.1994, p. 10.
Action brought on 19 January 1999 by the Commission of
the European Communities against the Kingdom of
                            Belgium
                       (Case C-14/99)                              Reference for a preliminary ruling by the Finanzgericht
                                                                   Bremen by order of that court of 4 August 1998 in the
                       (1999/C 86/13)                              case of Hans Sommer GmbH & Co against Hauptzollamt
                                                                                Bremen
                                                                                (Case C-15/99)
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities                                   (1999/C 86/14)
on 19 January 1999 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal
Adviser, acting as Agent, with an address for service in           Reference has been made to the Court of Justice of the
Luxembourg at the Office of Carlos Gómez de la Cruz,               European Communities by order of the Finanzgericht Bre-
Wagner Centre, Kirchberg.                                          men (Finance Court, Bremen) of 4 August 1998, received
 ---pagebreak--- C 86/8                EN                  Official Journal of the European Communities                                   27.3.1999
at the Court Registry on 20 January 1999, for a                      with an address for service in Luxembourg at the Office of
preliminary ruling in the case of Hans Sommer GmbH &                 Carlos Gómez de la Cruz, of its Legal Service, Wagner
Co v. Hauptzollamt Bremen on the following questions:                Centre, Kirchberg.
1. Are expenses' or handling costs' relating to honey
     imported from the USSR from 1989 to 1991 charged                The Commission claims that the Court sholud:
     by the German import company to the purchaser
     pursuant to separate contractual arrangements part of
     the transaction value under Article 3(1) of Council             Ð order the defendant to refund to the Commission all
     Regulation (EEC) No 1224/80 of 28 May 1988 on the                   the financing which it has received from the
     valuation of goods for customs purposes (OJ L 134,                  Community, namely to pay the entire amount of the
     31.8.1980, p. 1), as ameded by Regulation (EEC)                     debt of ECU (now EUR) 350 641,99 together with
     No 3193/80 (OJ L 333, 11.12.1980, p. 1), if after                   interest calculated in accordance with the provisions of
     importation the import company must take samples                    the agreement amounting, up until 31 December 1998,
     for establishing the quality of the honey in accordance             to ECU (now EUR) 49 129,18, that is to say a total
     with the German Honey Regulation and provide the                    amount of ECU (now EUR) 399 771,17, and
     results of the chemical analyses?                                   additionally interest at 2 % above the rate of the
                                                                         European Monetary Cooperation Fund in respect of
                                                                         the period from 1 January 1999 until the defendant
2. If question 1 is answered in the affirmative:                         has fully discharged its debt;
     Is Commission Decision K(95) 2325 of 28 September
     1995 null and void?                                             Ð order the defendant to pay the Commission's general
                                                                         legal costs including the fees of its authorised lawyers.
3. If question 2 is answered in the affirmative:
                                                                     Pleas in law and main arguments adduced in support:
     Must the authorities refrain from post-clearance
     recovery of duties pursuant to Article 5(2) of Council
     Regulation (EEC) No 1697/79 if, upon an external                The objects of the defendant company are the design,
     check concerning imports in an earlier period and               construction, installation, operation and supervision of
     following a check review, they raised no objection to           apparatus for the exploitation of wind energy in order to
     the fact that a global sum for expenses was not                 produce and sell electric current.
     included in the customs value in the case of similar
     purchase transactions and it is not clear that the trader
     could have been in doubt as to whether the result of            The action, which has been brought pursuant to an
     the check was right?                                            arbitration clause, seeks the refund of financial assistance
                                                                     granted by the Commission to the defendant for the
4. If question 3 is answered in the negative:                        realisation and demonstration of a pilot wind-energy
                                                                     programme under which a wind farm was to be installed
                                                                     on the south-east cost of Crete in the area of Sitia. The
     Do the circumstances set out in question 3 amount               Commission decided to terminate the contract entered into
     to special circumstances' within the meaning of                by the parties under English law, on the ground that the
     Article 13 of Council Regulation (EEC) No 1430/79               defendant had infringed its obligations.
     justifying the remission of import duties?
Action brought on 26 January 1999 by the Commission of               Reference for a preliminary ruling by the Supremo Tribu-
the European Communities against Aiolika Parka Sitias                nal Administrativo, Second Chamber, by judgment of that
                             A.E.                                    Court of 9 December 1998, in the case of Modelo Conti-
                        (Case C-18/99)                                          nente, SGPS, SA and Fazenda PuÂblica
                        (1999/C 86/15)                                                      (Case C-19/99)
                                                                                (1999/C 86/16)
An action against Aiolika Parka Sitias A.E. was brought
before the Court of Justice of the European Communities
on 26 January 1999 by the Commission of the European                 Reference has been made to the Court of Justice of the
Communities, represented by Richard Wainwright,                      European Communities by an judgment of the Second
Principal Legal Adviser, and Olivier Couvert-CasteÂra, a             Chamber of the Supremo Tribunal Administrativo
civil servant on secondment to its Legal Service under the           (Supreme Administrative Court) of 9 December 1998,
scheme for national experts, assisted by Maria Bra, of the           which was received at the Court Registry on 28 January
Brussels Bar, and Kiriaki Kapoutzidou, of the Athens Bar,            1999, for a preliminary ruling in the case of Modelo Con-


title: Case C-56/09: Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Commissione tributaria provinciale di Roma — Italy) — Emiliano Zanotti v Agenzia delle Entrate — Ufficio Roma 2 (Freedom to provide services — Citizenship of the European Union — Articles 18 EC and 49 EC — National income tax legislation — Right to deduct total tuition fees from gross tax up to a fixed percentage — University course attended in another Member State — Imposition of a quantitative limit — Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by national State universities — Imposition of a territorial limit — Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by the national State university nearest to the taxpayer’s residence for fiscal purposes)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/9

         Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Commissione tributaria provinciale di Roma — Italy) — Emiliano Zanotti v Agenzia delle Entrate — Ufficio Roma 2
   (Case C-56/09) (1)

   (Freedom to provide services - Citizenship of the European Union - Articles 18 EC and 49 EC - National income tax legislation - Right to deduct total tuition fees from gross tax up to a fixed percentage - University course attended in another Member State - Imposition of a quantitative limit - Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by national State universities - Imposition of a territorial limit - Deduction up to a maximum amount laid down for registration and course fees paid for similar tuition provided by the national State university nearest to the taxpayer’s residence for fiscal purposes)
   2010/C 179/14
   Language of the case: Italian

      Referring court

   Commissione tributaria provinciale di Roma

      Parties to the main proceedings

      Applicant: Emiliano Zanotti

      Defendant: Agenzia delle Entrate — Ufficio Roma 2

      Re:

   Reference for a preliminary ruling — Commissione tributaria provinciale di Roma — Interpretation of Articles 149 EC and 151 EC — National income tax legislation — Deduction of the costs of attending secondary and university courses held abroad from the gross tax payable in respect of taxable income — Limitation of the recognition of costs

      Operative part of the judgment

               1.

               Article 49 EC must be interpreted as:

                           —

                           precluding national legislation which allows taxpayers to deduct from gross tax the costs of attending university courses provided by universities situated in that Member State but excludes generally that possibility for university tuition fees incurred at a private university established in another Member State;

                           —

                           not precluding national legislation which allows taxpayers to deduct from gross tax university tuition fees incurred at a private university established in another Member State up to the maximum amount set for the corresponding costs of attending similar courses at the national State university nearest to the taxpayer’s residence for fiscal purposes.

               2.

               Article 18 EC must be interpreted as:

                           —

                           precluding national legislation which allows taxpayers to deduct from gross tax the costs of attending university courses provided by universities situated in that Member State but excludes generally that possibility for university tuition fees incurred at a university established in another Member State;

                           —

                           not precluding national legislation which allows taxpayers to deduct from gross tax university tuition fees incurred at a university established in another Member State up to the maximum amount set for the corresponding costs of attending similar courses at the national State university nearest to the taxpayer’s residence for fiscal purposes.

      (1)  OJ C 90, 18.04.2009.


title: Case T-329/02: Action brought on 24 October 2002 by URS Nederland BV against the Commission of the European Communities

text:
21.12.2002            EN                      Official Journal of the European Communities                                     C 323/41
Pleas and main arguments                                                 Action brought on 24 October 2002 by Wagenborg
                                                                         Sleepdienst BV against the Commission of the European
                                                                                Communities
The pleas relied on are the same as in Case T-326/02.
                                                                                (Case T-330/02)
                                                                                (2002/C 323/68)
Action brought on 24 October 2002 by URS Nederland                                          (Language of the case: Dutch)
BV against the Commission of the European Communities
                        (Case T-329/02)
                        (2002/C 323/67)                                  An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 24 October 2002 by Wagenborg Sleepdienst
                   (Language of the case: Dutch)                         BV, established in Rotterdam, represented by T.R. Ottervanger,
                                                                         with an address for service in Luxembourg.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European             The applicants claim that the Court of First Instance should:
Communities on 24 October 2002 by URS Nederland BV,
established in Rotterdam, represented by T.R. Ottervanger,
with an address for service in Luxembourg.                               1.    Primarily, annul Commission Decision C(2002) 2158 of
                                                                               19 June 2002 concerning State aid by the Netherlands in
                                                                               favour of the activities of Netherlands tugboats in sea
The applicants claim that the Court of First Instance should:                  harbours and on inland waterways of the Community;
1.    Primarily, annul Commission Decision C(2002) 2158 of               2.    In the alternative, annul Articles 2 and 3 of the Com-
      19 June 2002 concerning State aid by the Netherlands in                  mission’s contested decision in which the Commission
      favour of the activities of Netherlands tugboats in sea                  requires the Netherlands Government to adopt all necess-
      harbours and on inland waterways of the Community;                       ary measures in order to recover aid from the recipients
                                                                               — with the exception of aid paid before 12 September
2.    In the alternative, annul Articles 2 and 3 of the Com-                   1990;
      mission’s contested decision in which the Commission
      requires the Netherlands Government to adopt all necess-
      ary measures in order to recover aid from the recipients           3.    Order the Commission to pay the costs.
      — with the exception of aid paid before 12 September
      1990;
3.    Order the Commission to pay the costs.
                                                                         Pleas and main arguments
Pleas and main arguments
                                                                         The pleas relied on are the same as in Case T-326/02.
The pleas relied on are the same as in Case T-326/02.


title: Case C-269/13 P: Judgment of the Court (Sixth Chamber) of 10 April 2014  — Acino AG v European Commission (Appeal — Medicinal products for human use — Suspension of the marketing and the withdrawal of certain consignments of medicinal products containing the active ingredient Clopidogrel — Variation of marketing authorisations — Prohibition on marketing — Regulation (EC) No 726/2004 and Directive 2001/83/EC — Precautionary principle — Proportionality — Obligation to state reasons)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/14

         Judgment of the Court (Sixth Chamber) of 10 April 2014 — Acino AG v European Commission
   (Case C-269/13 P) (1)

   ((Appeal - Medicinal products for human use - Suspension of the marketing and the withdrawal of certain consignments of medicinal products containing the active ingredient Clopidogrel - Variation of marketing authorisations - Prohibition on marketing - Regulation (EC) No 726/2004 and Directive 2001/83/EC - Precautionary principle - Proportionality - Obligation to state reasons))
   2014/C 175/16
   Language of the case: German

      Parties

      Appellant: Acino AG (represented by: R. Buchner and E. Burk, Rechtsanwälte)

      Other party to the proceedings: European Commission (represented by: M. Šimerdová and B.-R. Killmann, acting as Agents)

      Re:

   Appeal against the judgment of the General Court (Seventh Chamber) of 7 March 2013 in Case T-539/10 Acino v Commission, in so far as that Court dismissed an application for annulment of Commission Decisions C (2010) 2203, C (2010) 2205, C (2010) 2210 and C (2010) 2218 of 29 March 2010 and Commission Decisions C (2010) 6430, C (2010) 6432, C (2010) 6434 and C (2010) 6435 of 16 September 2010, relating to the suspension of the marketing of medicinal products for human use containing the active ingredient Clopidogrel manufactured at a certain site, the withdrawal of consignments of those medicinal products from the market, the variation of the marketing authorisations and the prohibition on marketing those medicinal products — Precautionary principle — Proportionality — Obligation to state reasons

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal.

               2.

               Orders Acino AG to pay the costs.

      (1)  OJ C 215, 27.07.2013.


               5.11.2015

               EN

               Official Journal of the European Union

               C 366/11

         Request for an Advisory Opinion from the EFTA Court by Héraðsdómur Reykjavíkur dated 13 April 2015 in the case of De Nederlandsche Bank NV v the Depositors’ and Investors’ Guarantee Fund (TIF)
   (Case E-9/15)
   (2015/C 366/08)
   A request has been made to the EFTA Court by a letter dated 13 April 2015 from Héraðsdómur Reykjavíkur (Reykjavik District Court, Iceland), which was received at the Court Registry on 17 April 2015, for an Advisory Opinion in the case of De Nederlandsche Bank NV v the Depositors’ and Investors’ Guarantee Fund (TIF) on the following questions:

               1.

               Is it compatible with the provisions of the EEA Agreement, and in particular with Article 7(1) of Directive 94/19/EC on deposit-guarantee schemes, in the event of a systemic crisis, that the obligations of a pre-funded deposit guarantee scheme should be restricted to its assets at the time when deposits become unavailable in the sense defined in Article 1(3) of the Directive and the assets are not sufficient to meet the claims of each depositor for up to EUR 20 000?

               2.

               Is it compatible with the provisions of Directive 94/19/EC on deposit-guarantee schemes that following a systemic crisis, a Member State enacts legislation or issues regulatory acts authorising a pre-funded deposit guarantee scheme to establish a new department or account for the collection of premiums and to decide that those premiums are to be channelled into the new department or account for the purpose of building up a fund intended exclusively to meet possible future shocks and not to be available for the payment of earlier obligations?

               3.

               Is it compatible with Article 11 of Directive 94/19/EC on deposit-guarantee schemes, that a national deposit guarantee scheme (i.e. the TIF), which makes payments under guarantee, acquires rights in excess of its right of subrogation of depositors’ claims in liquidation proceedings for an amount equal to its payments from the fund?